R v Kamler[2023] QDC 27

DISTRICT COURT OF QUEENSLAND

Introduction

12. [1]
    On 30 January 2023, the defendant pleaded not guilty when arraigned in respect of the charge that on 9 October 2020 at Nambour in the State of Queensland, he unlawfully disclosed the name of an informer, contrary to s 119(2) of the Drugs Misuse Act 1986 (“DMA”). Accordingly, a jury was empanelled, the prosecutor case opened and the prosecution evidence presented, on that same day. At the close of the prosecution case, counsel for the defendant made a submission as to there being an absence of a case for his client to answer. After submissions and on 31 January 2023 and upon it being ruled that there was no case for the defendant to answer, the jury were directed to and did return their verdict acquitting the defendant. These are the elaborated reasons for the conclusion leading to that directed verdict.

12. [2]
    The prosecution case was presented in short compass and was premised upon the interactions of the defendant, at the time that he was a serving as Senior Constable of Police and when, on the evening of 9 October 2020, he attended at a building containing a number of residential units at 5 Sapphire Court, Nambour with another police officer. The evidence, which will be examined in more specific detail subsequently, was mainly derived from the recordings made by the bodyworn camera worn by the defendant on that occasion, together with some limited evidence from the persons who were the subject of the attention of those policeofficers on that night.

12. [3]
    By way of broad overview, the factual sequence disclosed in that evidence was that:

3. (a)
   after locating Mr J in the grounds of the unit complex and having discussions with him of his behaviour on that night (in circumstances where it was established that he had been visiting and staying with an occupant of a unit, Ms R, for a couple of weeks and had been drinking with her on that evening) including his admissions as to some behaviours which were explicable of the disturbance prompting police involvement, as the defendant later sought to explain to Ms R, he determined to issue a police protection notice pursuant to the Domestic and Family Violence Protection Act 2012 to Mr J;

3. (b)
   prior to that determination being communicated to Ms R and at a time when it may be discerned that Mr J remained outside and, in the company of the other attending police officer, the defendant went to Ms R’s unit and into the loungeroom where she was located. In the course of their interaction and in the course of her protestation that there had been only a minor disagreement between them, she proffered that she was willing to tell the police that Mr J had “marijuana” in the bathroom;

3. (c)
   Ms R was invited to show the police officer and it is apparent that they went together to the bathroom wherethe defendant declared that it smelt liketobacco and then proceeded to suggest that it be flushed down the sink, which is what then is understood to have occurred;

3. (d)
   as the defendant proceeded to explain to Ms R that there would be the police protection notice and that Mr J would not be then permitted to remain or return to her residence, there is a sequence of events whereby Ms R becomes emotional and the eventuality is that with the defendant proceeding to exit through the doorway of her unit a struggle ensued with the defendant’s recorded assertions that she had bitten or at least attempted to bite him as he sought to restrain and arrest her. The defendant also claimed that he had struck her in the face in order to prevent her doing that and also that she was spitting at him. She was arrested and placed in the police van with her audible protests in terms of kicking from inside the van and calling out, as matters proceeded; and

3. (e)
   as hewas issuing an explanation of the policeprotection noticeto Mr J, towards the conclusion of that dealing with Mr J and when the accompanying police officer had returned to the unit in order to obtain some of his property for him to leave, the defendant is recorded as telling Mr J that Ms R had “dobbed you in for pot”.

12. [4]
    There were two aspects or limbs to the no case submission made for the defendant;

3. 1.
   First, that there was an absence or insufficiency of evidence to prove that the information provided by Ms R was about, or to use the words of the section “in respect of the commission of an offence defined in Part 2” of the DMA.

3. 2.
   Secondly, that in the circumstances there was an insufficiency of evidence that Ms R was an informer, because of the absence of expectation of confidentiality attaching to the information she had provided.

3. Legal context – definition of informer

12. [5]
    As has been noted, the charges brought pursuant to s 119 of the DMA, which is, in some immediate context, as follows:

3. “119
   Protection of informers

3. (1)
   Where an informer supplies information to a police officer in respect of the commission ofan offence defined in part 2 the informer’s identity at all times shall be kept confidential.

3. (2)
   A person who unlawfully discloses the name of an informer,or any other particularthat may belikely to lead to the informer’s identification, is guilty of a crime.

3. Maximum penalty—5 years imprisonment.

3. (3)
   A person is not criminally responsible for an offence defined in subsection (2) if the person proves that the disclosure was made in good faith for the protection of the interests of the informer or for the public good.

3. 120
   Source of information not to be disclosed

3. (1)
   Where an informer supplies information to a police officer in respect of the commission ofan offence defined in part 2 then in a relevant proceeding—

3. (a)
   the prosecutor; or

3. (b)
   a person who appears as a witness for the prosecution; or

3. (c)
   where a police officer appears as a witness for the defence, that police officer;

3. shall not be asked and if asked shall not be compelled to disclose the name of an informer, or other particular that may be likely to lead to the informer’s identification, or the fact that in respect of the offence he or she received information from an informer or he or she furnished information to an informer or the nature of the information.

3. (2)
   In any proceedings arising out of a charge of having committed an offence defined in part 2 a police officer appearing as aprosecutor or witness shallnot becompelled to produce any reports or documents, made or received by the police officer in the police officer’s official capacity or containing confidential information in relation to such offence, or to make any statement in relation to such reports, documents or information.

3. (3)
   In this section—

3. relevant proceeding means a proceeding under this Act or another Act, other than a proceeding for—

3. (a)
   an offence against section 119(2); or

3. (b)
   aanother offence under this or another Act in which it is alleged that a person has unlawfully disclosed the name of the informer or another particular that may be likely to lead to the informer’s identification.”

12. [6]
    In R v Demir (1990) 2 Qd R 433, when these provisions effectively appeared as ss 46 and 47 of the DMA, Cooper J held that in the prohibition which is encapsulated within these provisions, is traceable to a common law rule seeking to protect, as a matter of public interest, sources of information provided to police. After noting the recognised exception to the common law rule in terms of disclosure that is necessary to show the innocence of an accused, His Honour said:

3. “The public interest which supports the common law rule is the protection of persons who come forward with information to enable the efficient and effective detention of the perpetrators of crime and the prevention of crime before it is committed. That public interest is reflected in ss 46 and 47 of the Drugs Misuse Act. Section 46 makes it an offence to disclose the identity of an informer or information likely to lead to such disclosure.

3. Section 47 of the Act restates the common law rule with one exception. The use of the words, “shall not be compelled to disclose”, removes the exception to the common law rule, which I havereferred to above, andwhich would allow the disclosure in certain circumstances. The consequence is that s. 47 of the Act provides an absolute protection to informers and gives the common law rule an absolute operation in respect of the matters covered by the section. The section covers thosematters falling within the common lawruleset out in the quotation from Archbold, which I have cited above.

3. Just as at common law the rule is not a matter of “privilege” to be claimed or waived by the witness or the Crown, so too, in my opinion, the operation of s. 47 of the Act does not require that the Crown or the witness claim the benefit of the section before it comes into operation. Nor can the operation of the section be waived by either of them. The court will, whether or not the benefit of the section has been claimed, apply its provisions on its own motion, whenever, in the opinion of the presiding judge, its application is called for.”

3. Similar views were expressed in R v The Stipendiary Magistrate at Southport, ex parte Gibson [1993] 2 Qd R 687, where in the context of determining that ss 46 and 47 of the DMA did not apply to the position of a police officer performing undercover investigatory duties, it was observed by Ambrose J that:

3. “Although the term ‘informer’ is not defined either in the Criminal Code or the Drugs Misuse Act, it is a term that has long been used in the criminal lawto describeaperson who is not amember of the police force who informs police officers of facts relating to the proposed commission of offences and the criminals involved or of the identity of persons involved in the commission of criminal offences already committed.”^[1]

12. [7]
    That observation was referred to in R v Mason (2000) 112 A Crim R 266 at [23]. That was a case concerned with examining the validity of the claim made by police officers that the basis for a search of a person and his car and the location of illicit drugs, was effectively a tip off from an unidentified person who briefly and surreptitiously engaged with the officers as they entered a nightclub area and immediately before the conduct of the disputed searches. In considering the question as to whether the unidentified person was an informer and after referring to the observations of Ambrose J, it was stated:

3. “[26]
   Given the rationale for the rule, namely the preservation of anonymity, there must be present an element of confidentiality in the identity of the informer. This was implicitly recognised by the New South Wales Court of Criminal Appeal (Gleeson CJ, Clarke and Sheller JJA) in R v Smith (1996) 86 A Crim R 308 at 311:

3. “The fact that one person provides information to another in confidence does not of itself mean that disclosure of such information may not be compelled in legal proceedings. The private interest in confidentiality yields to the public interest in the due administration of justice....

3. The rationale of this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered.”

3. It is only the assurance of confidentiality of the identity of the informer that prevents the valuable sources of information from drying up.

3. [27]
   Is it sufficient if a person merely expresses a desire that his or her identity remain confidential, or must it be a condition of the giving of the information that the informer's identity remains confidential? The rationale for the immunity requires that there be protection of actual confidences, or of information given in confidence. That means, on a true analysis, that the immunity will only protect the identity of a person where the information is given upon condition that the confidence is honoured and that the person's identity will not be disclosed, or upon an assurance by the recipient that that will be the case. Anything less would seem not to be justified by the rationale for the immunity.”^[2]

3. The judgment then proceeds, in the context in which the issue there arose, to consider and determine that “the Court should be satisfied on the balance of probabilities that the information was given on the basis that the informer’s identity would remain confidential”, and to note that there was no occasion to be concerned to enquire into the genuineness of any such claim, with the following further pertinent observations:

3. “[31]
   None of the cases suggest that the existence of a threat to the informer is a condition precedent to the operation of the rule. It is therefore not necessary to establish that there is such a threat. For the same reason it is not necessary to establish the existence of any other condition which might justify the preservation of the confidentiality of the informer's identity. The rationale for the rule is the flow of intelligence about the perpetration of crime. That does not require any inquiry as to the reasons why confidentiality might be sought in a particular case. The only question is whether the condition of confidentiality exists.

3. [32]
   Can the court be satisfied that the condition exists where, as in this case, there is no express condition imposed by the informer as to the confidentiality of his identity? There will be many cases, as in this one, wherethe information is almost encoded,whereitmerely consists of anon-verbal sign, or wherethe person may not even want to beseen to have had contact with the police, let alone to convey information. It will seldom be elaborate; it is likely to be information only about one particular fact. The information may not even identify a suspect. It may just be that a crime of some sort is likely to be committed at a given time or place. In none of these cases is it likely that a condition of confidentiality will have been mentioned, let alone agreed upon. Yet, if there were any suggestion that the identity of the informer would be released, the information would probably not have been forthcoming.

3. [33]
   Merely because nothing is said does not mean that a condition of confidentiality has not been acknowledged. Often it will be implied from the conduct of the parties and from the other surrounding circumstances. In the examples I have mentioned above, the very brevity or incompleteness of the information will be a strong indicator that the condition applies. It is pointless to attempt to list all the circumstances which might give rise to an inference that the informer intended that the information should be given conditional upon his identity remaining confidential.”^[3]

12. [8]
    Each of the decisions to which reference has been made was referred to in Commissioner of the Police Service v Cornack [2004] 1 Qd R 627. Relevantly, in the judgment of Jerrard JA, it was observed:

3. “[40]
   These examples and arguments demonstrate that it is proper to construe the expression “an informer” in s. 119 and s. 120 as describing a person who supplies information in confidence to a person known or believed to be a police officer, in respect of the commission of an offence by another. As Williams J.A. remarked during argument, that appropriate concept is reasonably well expressed in s. 454(2)(b) of the Police Powers and Responsibilities Act, in its description of a “confidential source of information, in relation to the enforcement or administration of the law…”

3. [41]
   In Gibson, Williams J. referred (at 692) to the decision of the House of Lords in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 at 218 for a description of the common law rationale of the rule applied in those courts prohibiting the identification of police informants. Lord Diplock wrote:

3. ‘if their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence.’

3. [42]
   I respectfully observe that an informative and useful discussion of this topic appears in the judgment of Bleby J. in R. v. Mason (2000) 77 S.A.S.R. 105, and particularly at 110–116. After considering (at 111) the variety of circumstances in which information will beprovided to the police, ranging from those who give a formal interview intending it to be the basis of their evidence given in court to those who anonymously provide information, his Honour expressed the view that given the rationale for the (common law) rule, namely the preservation of anonymity, there must be present an element of confidentiality in the identity of the informer; and that it is only the assurance of confidentiality of that identity that prevents the valuable sources of information from drying up. He went on (at 112) to observe that the community will only protect the identity of a person where the information is given upon condition that the confidence is honoured and that the person's identity will not be disclosed or upon an assurance by the recipient that that will be the case.

3. …..

3. [44]
   To that concept of confidentiality of identity described in R. v. Mason and in s. 454(2)(b) of the Police Powers and Responsibilities Act, which concept is an integral part of the definition of “an informer” in s. 119 and s. 120 of the Drugs Misuse Act, there can be added the allied concept of the circumstances necessarily giving rise to that confidentiality, and well described in a judgment of Fullagar J. in Signorotto v. Nicholson [1982] V.R. 413 at 417 (ll. 27-31). This is that such an informer has given:

3. ‘…the policeman information received in his character as a policeman and as part of his duties in upholding the law.’

3. [45]
   Construing the expression “an informer” in s. 119 and s. 120 to mean one who supplies information about other people's behaviour in confidence to a police officer in the latter's character as apoliceofficer and who receives the information in the exercise of the functions of the Police Service described in . of the Police Service Administration Act 1990, gives those sections an effect consistent with the common law…”

3. Muir J expressed a general agreement with the reasons of both Williams and Jerrard JJ.A. And relevantly in the judgment of Williams JA, the following was observed:

3. “[3]
   Neither statute contains a definition of an “informer,” though disclosing particulars likely to lead to the identification of an informer constitutes a criminal offence. However, the “informer” has been known to the Common Law for centuries. In the trial of Hardy in 1794 for treason (24 State Tr. 199) Lord Chief Justice Eyre at 816 said the law did not enforce “discovery of the channels by which the disclosure was made to the officers of justice.” In the same case Buller J. at 818 said: “… discovery is necessary for the purpose of obtaining public justice, and if you call for the name of the informer in such a case no man will make discovery and public justice would be defeated.” Lord Ellenborough stopped questioning which was likely to reveal the identity of an informer in the treason trial of Watson in 1817 (32 State Tr. 1 at 100).

3. [4]
   Those cases were cited with approval by Lord Esher M.R., Lindley L.J., and Bowen L.J. in Marks v. Beyfus (1890) 25 Q.B.D. 494. That decision has since been regarded as laying down the modern Common Law with respect to disclosure of information about informers. It was followed and applied by the House of Lords in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171. The passage from the judgment therein of Lord Diplock at 218 was cited with approval by the Full Court in R. v. The Stipendiary Magistrate at Southport, ex parte Gibson [1993] 2 Qd.R. 687.

3. [5]
   In all of those cases the underlying factor rendering the giver of the information an “informer” was the confidentiality of the information provided which resulted in a public prosecution. It is that element of confidentiality which distinguishes the “informer” from other persons who provide information to police officers. It is not everyone who in some way provides a police officer with information which aids in the investigation of a crime who is an “informer” for purposes of statutory provisions such as those referred to above.

3. [6]
   That the real “informer” is a confidential source of information is confirmed by s. 454(2)(b) of the Police Powers and Responsibilities Act 2000.

3. [7]
   Section 120 of the Drugs Misuse Act makes it clear that the prohibition on disclosure covers much more than the name of the informer. It would clearly cover, and this is important for present purposes, a question designed to elicit the fact that a known person who provided information did so in the capacity of an “informer”; that is, the information was given to a known police officer in circumstances where confidentiality attached.

12. [9]
    A common feature of these cases concerned directly with the Queensland legislation, is the observation that the lack of definition of the concept “informer”. That situation was the subject of legislative attention in 2020, with the insertion, from 25 May 2020, of the following definition in s 4 of the DMA:

3. “informer means a person who supplies information to a police officer in respect of the commission of an offence defined in part 2 on the basis that the person’s identity will be kept confidential.”^[4]

3. It may be seen that this encompasses the essential concepts as they have been explained in these cases, and particularly the attachment of a condition of confidentiality to the provision of the information, in the words “on the basis that the person’s identity will be kept confidential”. As has been noted, the requirement was described in Mason in terms “that a condition of confidentiality has … been acknowledged”, in the circumstances of the provision of the information.

12. [10]
    In this regard it may immediately be observed that:

3. (a)
   whilst the test to be applied may involve some consideration of the motivation of the provider of the information and particularly any subjective desire of confidentiality, the question is neither so limited nor determined;

3. (b)
   rather the question is as to whether the circumstances as to the provision of the information is such that it was provided and received, or dealt with, upon such a basis; and

3. (c)
   in that sense it may also be observed that a wholly subjective and unexpressed attitude of a receiving police officer not to recognise an expressed or apparent qualification of confidentiality attaching to the receipt of such information, would also not limit or determine such a conclusion.

12. [11]
    As specifically noted in Mason and where, as here, there is an absence of explicit statement of any basis of confidentiality attaching to the provision of information to a police officer, the issue is to be determined by considering what was implicit in the circumstances or by inference drawn from those circumstances.

12. [12]
    However, and as noted in Cornack, the attachment of the aspect of confidentiality to those circumstances is critical to understanding an exchange of information in the course of police investigations, so that the circumstances may attract the protection of the recognised public interest immunity from disclosure. That lies, as was the subject of some discussion in that case, in understanding that police officers necessarily investigate suspected offences or circumstances calling for their intervention, by obtaining information from a broad range of sources. For example, from persons complaining about the commission of an offence and other persons who may have witnessed or be able to provide information and/or evidence about some aspect of the commission of an offence, or at least such an allegation.

12. [13]
    Thepreservation of the confidenceattaching to the provision of such information may be seen as an underlying premise of s 13A and 13B of the Penalties and Sentences Act. However, that situation cannot and does not extend to circumstances where the information is to be relied upon as evidence and where the provision of it may be ultimately publicly exposed at trial. This limitation of the operative benefits of the processes engaged under s 13A serves to underscore a distinction between information provided in wholly confidential circumstances and that obtained in the course of police investigation and which necessarily becomes disclosable in any subsequent prosecution.

12. [14]
    In the circumstances of this case, as matters stood at the close of the prosecution case, and in dealing with the concept of confidentiality to be addressed in the definition and proof of the concept of Ms R being an informer, the following draft directions were the subject of consensus with the parties:

“A condition or agreement of confidentiality does not have to be expressly stated by the parties.

Merely because nothing is said does not mean that a condition of confidentiality has not been acknowledged. It may be implicit from the conduct of the parties and from other surrounding circumstances.

Where the informer has not made known explicitly the basis upon which the information is given and in particular has not made known that it is given conditional upon her identity remaining confidential, it may be inferred from any conduct of the informer or from other surrounding circumstances that it was given and accepted on such a condition.”

Legal principles — no case submission

12. [15]
    The principles applicable to consideration of a no case to answer submission, as is made here, mean that there are particularly limited circumstances where such a conclusion may be reached. In respect of what is cognisable here, as the prosecution reliance upon a circumstantial case, being the proof of the only reasonable or rational inference to be drawn from the relevant circumstances, it was recognised in R v Stewart, ex parte Attorney-General,^[5] that where there is “evidence from which the inference might properly be drawn”, then it is “a question of fact within the province of the jury” and not amenable to determination by a trial judge merely on the basis that there might be other competing inferences potentially open on the evidence. It was observed:

“only if the evidence had been such that an inference [as contended by the prosecution] was incapable of being formed in reasonable doubt could it be said that that there was in law, no material on which a verdict of guilty might be found, that there might remain a possibleinference consistent with innocence did not serve to remove the question from the province of the jury.”

12. [16]
    Subsequently and more generally but to similar effect, Doney v The Queen^[6] was decided with the formulation of the appropriate test as to “whether a trial judge may direct a jury to return a verdict of not guilty”, in the following terms:

“…. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”^[7]

12. [17]
    As noted in R v Goldsworthy, Goldsworthy & Hill,^[8] the application of such principles to a circumstantial case, may appropriately be expressed in terms that:

“…. if the evidence in the Crown case is incapable of excluding all reasonable hypotheses consistent with innocence, the evidence will not be capable in law of proving the charge and there will be no case to answer in relation to it. That is just another way of saying that it is only if the evidence is such that an inference of guilt is incapable of being drawn beyond reasonable doubt that it might be concluded there is ‘in law no material on which a verdict of guilty might be found’, however that point is not reached merely by the existence of a ‘possible inference consistent with innocence’. It follows that the question whetherthe Crown has excluded every reasonable hypothesis consistent with innocence is a question for the jury; whether the evidence as a whole, and taken at its highest, is capable of doing so is one for the judge.” (Citations omitted)

The prosecution case

12. [18]
    The prosecution case was largely dependant upon the wholly recorded interactions of the defendant with each of Mr J and Ms R on 9 October 2020. This occurred by his own activation of a body worn camera or recording device and the retention of that recording so that it could be obtained by the investigating police officer.^[9] It is only necessary to specifically note the following contents of that recording:

3. (a)
   in the first instance and in respect of the defendant’s initial dealings with Ms R upon locating her in her unit, as follows:

3. (b)
   after that, the interchange proceeds to the circumstances which have been previously described as leading to a physical interaction between the defendant and Ms R and her arrest and being taken to the police van. There is then the defendant’s conversation with a superior police officer and his explanation to Mr J of the police protection notice which was to issue, leading finally to that occurring and the accompanying police officer returning to the unit to retrieve some property for Mr J, before the following recorded exchange:

12. [19]
    The prosecution contention was that the necessary attachment of confidentiality to the disclosure was implicit in, or the only rational inference to be drawn from the following circumstances:

3. 1.
   At the time of the provision of the information to the defendant, Ms R was separated from Mr J and the information was provided in his absence and without his knowledge.

3. 2.
   The awareness of the defendant of the particular vulnerabilities of Ms R in the context of the domestic violence aspect of the matter under investigation and having regard to the defendant’s own recorded disparaging descriptions of her to a superior officer, as a simpleton and “not the full quid”.

3. 3.
   Ms R’s statements, shortly after first providing the information and as the material is being dealt with, to the effect that “he’s going to end up getting the shits with me” and “he’ll get the shits with me”.

3. 4.
   The defendant’s actions in having the material flushed down a sink.

3. 5.
   The absence of any indication of the defendant that Ms R was under any investigation in respect of the presence of any drugs or otherwise.

3. 6.
   That she did not expect the information to be shared.

12. [20]
    As has been noted, reliance upon the last circumstance is of limited significance and particularly as it is expressed in such limited terms as a reflection of the difficulties encountered in obtaining any clear evidence from Ms R as to her state of mind when she disclosed the presence of “marijuana” to the defendant. Ultimately that evidence was given as follows:

“MS O'ROURKE: Now, before the lunch break, I was asking you about what you told Officer Kamler about the cannabis in the bathroom being [Mr J’s]. Did you expect Officer Kamler was going to share that information with anyone else, including [Mr J].?---No.

All right. Would you have told Officer Kamler that information if you knew it was going to be shared with [Mr J]?---No. Absolutely not.”

12. [21]
    However, in cross-examination, she agreed that in a recent conference with the prosecution, that her expectation was expressed in terms that “the officer would … confiscate the drugs” and “do whatever they do, take it away and destroy it” and she agreed that she said “no”, when asked the question:

“When you told the officer the drugs were [Mr J’s], from your point of view, did you think that the information was going to be kept private”.^[10]

12. [22]
    She said she expected the officer to take the substance and issue Mr J with a fine or a ticket “or some sort of warning like they normally do”.^[11] She also agreed that in that conference, she had said that she did not care that the defendant “disclosed [her] being an informant” and only cared about the punch to her face, through which she claimed to have lost a tooth.^[12]

12. [23]
    Ms R otherwise explained that her disclosure to the defendant was not premised upon any actual knowledge as to the substance in the bathroom, but rather upon things more generally said to her by Mr J, including that he was going there to have “a cone”.^[13]

12. [24]
    Mr J’s evidence was that the substance was only tobacco.^[14]

In respect of the commission of a Part 2 offence

12. [25]
    Part 2 of the DMA proscribes various offences in respect of “dangerous drugs”, as that concept is defined in s 4 of that Act. As noted in Demir, s 120 of the DMA contains a statutory recognition of the public policy immunity which attaches to police informants and the information supplied by them, at common law, with absolute effect, in contrast to what is recognised as a limited discretion to override that immunity at common law. Hence the significance of the words in the contextual provision, in s 119(1), and in the definition of “informer” for the offence proscribed in s 119(2), in limiting the operation of the provisions in protection of the identity of such an informer to one who confidentially supplies “information …. in respect of the commission of an offence in part 2”.

12. [26]
    The words “in respect of” are intended to have a limiting effect, in the context of the application of the DMA and more particularly the offences proscribed in Part 2 of the Act. But and has been recognised in respect of the use of that phrase in different contexts, the words themselves are of potentially “wide import and permit a relatively loose connection”.^[15] Such a connection or “nexus” has been described in terms of “a discernible and rational link”.^[16] However, and as noted in Fraser v The Irish Restaurant & Bar Company Pty Ltd,^[17]

3. “[40]
   The expression ‘in connection with’ is capable of having a wide meaning but in common with expressions such as ‘relating to’ and ‘in respect of’ its meaning must be derived from the context in which it was used. The following passages from the reasons in Workers' Compensation Board (Qld) v Technical Products Pty Ltd illustrate the point:

3. ‘It has been said, perhaps somewhat extravagantly, that the words “in respect of'” “have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer”: Trustees Executors & Agency Co. Ltd. v. Reilly [1941] VLR 110 at 111, cited in State Government Insurance Office (Q.) v. Crittenden [(1966) 117 CLR 412 at 416]. The words were cited again by Gibbs J. in McDowell v Baker [(1979) 144 CLR 413 at 419], and by Mason J. in State Government Insurance Office (Q.) v. Rees [(1979) 144 CLR 549 at 561], when his Honour added the comment: “But, as with other words and expressions, the meaning to be ascribed to ‘in respect of’ depends very much on the context in which it is found”.

3. ...

3. Undoubtedly the words “in respect of” have a wide meaning, although it is going somewhat too far to say, as did Mann C.J. in Trustees Executors & Agency Co. Ltd. v. Reilly [1941] V.R 110 at 111], that “they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer”. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.’

3. [41]
   The following observations of Davies J in Hatfield v Health Insurance Commission, although directed to a question of statutory construction, are also of relevance:

3. ‘Expressions such as “relating to”, “in relation to”, “in connection with” and “in respect of” are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute… .

3. The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.’

3. [42]
   After quoting the passage from Hatfield, Spigelman CJ, with whose reasons the other members of the Court agreed, said in R v Orcher:

3. ‘[32]
   Finally, the Full Federal Court returned to this matter in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 where the Court said: “The words ‘in connection withrsquo; have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. However, as was pointed out by Sackville J in Taciak v Commission of Australian Federal Police (1995) 59 FCR 285 at 295, the question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the statute. That requires a “value judgment about the range of the statute”: see Pozzolanic (at 289).’ (citations omitted)

12. [27]
    The defendant’s submission was ultimately couched in terms of insufficiency of evidence to establish such a connection to the commission of a Part 2 offence. But the underlying effect of it was the absence of proof or evidence that there was an offence to which Part 2 of the DMA was applicable or more particularly that there was information provided about the presence of any drug, within the purview of that Act. In part the absence of ability for determination of that issue lay in the somewhat unusual decision of the defendant to dispose of the substance, having expressed a view that it was tobacco and therefore property lawfully present there. On the other hand, that was not the suspicion inherent in the information provided by Ms R, nor that apparent on the face of what the defendant later said to Mr J.

12. [28]
    It was not in issue that the reference by Ms R to “marijuana” was referrable to her obvious suspicion that such a drug (Cannabis sativa)^[18] was present in her bathroom. Although she was not asked about her motivation for spontaneously informing the defendant of that suspicion, it may be noted that Ms R’s own potential liability in respect of the use and presence of any such substance in her residence may have arisen under ss 10, 11 and 129(1)(c) of the DMA. Her knowledge in any such respect was not established. However, an evident implication as to her spontaneous assertion to the police officer and her conduct otherwise in objection to the police action which emanated in objection to the disposal of the tobacco substance and to the police action which emanated in respect of Mr J, was to ensure, in a perhaps not legally sophisticated way, that any blame for any location of the substance was not directed at her.

12. [29]
    These circumstances do not necessarily deny the proposition that the information was connected to or in respect of the commission of a Part 2 offence. Essentially and underlying the defendant’s submission is the lack of proof of the presence of the drug and the commission of any Part 2 offence. Put simply, the contention is effectively that information which is in the nature of expression of suspicion of the commission of such an offence, without some evidence of the commission of the suspected offence, even if provided in circumstances of confidentiality, is not caught by s 119(2) of the DMA.

12. [30]
    Such a proposition should not be accepted. Whilst, as has been noted,^[19] the provisions of s 119 of the DMA are limited in operation to circumstances pertaining to offences or prospective offences under that Act, there is an adoption of there and in s 120, of the concept of public interest immunity recognised at common law, as operating to protect persons who confidentially provide such information to assist in the “effective detention of perpetrators and the prevention of crime before it is committed”. This immunity therefore acts in ongoing protection of confidential sources of information to police. There is no logical reason why that immunity does not extend to information, which cannot be demonstrated to be anything more than in the nature of suspicion. Any different approach is also not consistent with the authorities where this issue most typically arises, where the claim of public interest immunity arises in the course of proceedings related to the undetermined commission of such offences and before any such determination.

Confidentiality

12. [31]
    The essential difficulty is in any demonstration of the attachment of the requisite sense of confidentiality to the circumstances of Ms R’s disclosure to the defendant. That is, in terms of the capacity of the evidence to allow such an inference to be drawn, in the context that ultimately that fact would need to be established beyond reasonable doubt by the prosecution.

12. [32]
    Not only was there an absence of evidence that the provider of the information expressly sought to do so, in confidence, there is nothing in the circumstances which logically tends to any such implication, including her later indications of expectation that Mr J may not be happy with her, which may equally carry some implication of expectation that he could or would learn of what had happened.

12. [33]
    Ms R’s interactions with the defendant at her unit could hardly have escaped attention and it is possible to discern, a sense of her own motivation in distancing herself, at an early stage, from what she suspected might be the subject of police attention. More particularly and had the result of the defendant’s involvement in this matter been different and the expressed suspicion of Ms R resulted in action by way of charge against Mr J and/or Ms R, it is impossible to see that the evidence of his interaction with Ms R, including the disclosure made by her, would not have been disclosable information or potentially relevant prosecution evidence. Potentially, this could even be envisaged in respect of the position of Ms R in respect of any allegation made against her of permitting use of a place (s 11, DMA) or in relation to the burden that may have been cast on her pursuant to s 129(1)(c) in respect of any allegation of possession of a dangerous drug (s 9, DMA).

12. [34]
    The appropriateness of that conclusion is not in any way affected by the absence of proof that there was a dangerous drug present, or the apparently illogical and inappropriate actions of the defendant in flushing away what he had declared to be tobacco, as the circumstances of the disclosure are not thereby affected or altered. Neither are those circumstances, nor conclusion, capable of being affected by any attempt to discern any particular motivation for the defendant’s later disclosure to Mr J.