Relevant decisions from other jurisdictions

Dale v Australian Federal Police [1997] AATA 354

This decision considered the application of the equivalent exemption under Commonwealth legislation. Section 37(2)(a) of the Freedom of Information Act 1982 (Cth) concerns documents, the disclosure of which would, or could reasonably be expected to, prejudice a person's fair trial or the impartial adjudication of a case.

The applicant applied to the Australian Federal Police (AFP) and was refused access to documents concerning the employment of an informant working for the AFP and any information provided by the informant to the AFP. The informant had been murdered in 1986 and an Arthur (Neddy) Smith had been charged with the murder.

The applicant submitted that he required the material for research for a book and an academic thesis.

Is there a reasonable expectation that disclosing the information would, or could prejudice a person's fair trial or the impartial adjudication of a case?

A person's fair trial

The AFP asserted that the fair trial of the accused in the impending criminal trial would or could reasonably be expected to be prejudiced as result of disclosing the documents in issue.

The prosecution for the criminal trial gave evidence to the effect that:

• disclosing some of the material would tend to influence potential jurors
• the material was in inadmissible form
• disclosure would detract from the effectiveness of the prosecution's task of establishing guilt beyond all reasonable doubt and the effectiveness of the defence.

Whether the expectation of prejudice exists as a result of disclosure

The AAT found that the exemption under the Commonwealth legislation was broad enough to extend to prejudice working against the prosecution's case in a criminal trial. The provision should take into account all circumstances affecting a person's fair trial and not just prejudice against the accused's defence.

Accordingly, access was refused under section 37(2)(a) of the FOI Act (Cth) on the basis that disclosure would prejudice a person's fair trial.

Wallace v Australian Federal Police [2004] AATA 845

This decision considered the application of the equivalent exemption under Commonwealth legislation. Section 37(2)(a) of the Freedom of Information Act 1982 (Cth) concerns documents, the disclosure of which would, or could reasonably be expected to, prejudice a person's fair trial or the impartial adjudication of a case.

Is there a reasonable expectation that disclosing the information would, or could prejudice a person's fair trial or the impartial adjudication of a case?

A person's fair trial

The applicant applied to the Australian Federal Police (AFP) and was refused access to various documents concerning allegation that he had conspired to import heroin into Australia and was in possession of a fraudulent passport. The applicant was convicted of both matters; however, a further criminal trail was impending concerning two outstanding matters.

Whether the expectation of prejudice exists as a result of disclosure

The decision noted that there are two parties to a criminal trial and the interests of both the prosecution and the defence need to be considered in determining whether disclosure would prejudice a person's fair trial.

In this case, there was no evidence as to how disclosure could reasonably be expected to prejudice the fair trial of the accused. Accordingly, access was granted under section 37(2)(a) of Commonwealth FOI Act.

Manly and Ministry of the Premier and Cabinet (1995) 14 WAR 550

This decision considered the application of the equivalent exemption under Western Australian legislation. Schedule 5, clause 5(1)(d) of the Freedom of Information Act 1992 (WA) concerns documents, the disclosure of which could reasonably be expected to prejudice a person's fair trial or the impartial adjudication of any case or hearing of disciplinary proceedings.

Is there a reasonable expectation that disclosing the information could prejudice a person's fair trial or the impartial adjudication of a case?

A person's fair trial

The applicant applied to ¬¬¬the Ministry of Premier and Cabinet and was refused access to documents concerning a third party's financial affairs. Mr Smith was under an ongoing police investigation which may have led to a criminal trial. The Information Commissioner relied on the assertions of the DPP and Commissioner of Police and found that disclosing the documents would prejudice a future criminal trial.

Whether the expectation of prejudice exists as a result of disclosure

The Supreme Court of Western Australia found that the WA Information Commissioner had not exercised her discretion in the matter as she simply adopted the conclusions of other persons (the submissions of the DPP and Commissioner of Police), that a person's fair trail would be prejudiced by disclosure. Upon review of the relevant matter, it was found that there was nothing in the documents to support a reasonable expectation that a person's fair trial would be prejudiced by disclosure; the court would not infer that a person's fair trial would be prejudiced by wide-spread media coverage.⁹

Accordingly, the matter was not exempt under the equivalent FOI Act (WA) provision; however disclosure was refused to the relevant matter under another section of the FOI Act (WA).

⁹Manly and Ministry of the Premier and Cabinet (1995) 14 WAR 550 at paragraph 31. [up]