Moudasser Taleb has been charged with offences under the Criminal Code Act 1995 (Cth), including an offence of intentionally engaging in conduct while being reckless to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code, namely to enter Syria with intent to engage in hostile activity. His trial is due to commence on Monday, 25 February 2019. Counsel has indicated that there will be around four to five days of preliminary legal argument largely concerning alleged improprieties or illegalities which, it will be submitted, render the evidence of various witnesses and various investigations inadmissible in the trial.
Mr Taleb has issued three subpoenas seeking a range of documents generated by investigators in the course of the investigation. These documents have been subpoenaed in an attempt to obtain evidence supporting Mr Taleb's case that he was a reluctant participant who was essentially duped or persuaded by an agent provocateur to engage in the conduct alleged and, secondly, that the evidence against him was obtained illegally or improperly.
The first two subpoenas were subject to substantial legal argument wherein the recipients of the subpoenas (the Australian Federal Police and the NSW Police) submitted that there was no legitimate forensic purpose in the accused obtaining access to those documents. That argument proceeded over four days, namely 21 and 22 November 2018 and 3 and 5 December 2018. I published a judgment on the issue on 30 January 2019. [1] The orders I made are set out at paragraph [72] of that judgment. In addition to those orders, various agreements were reached between the parties in the course of the legal argument. As a result, various documents have been produced either to the Court and then to the accused, or on an informal basis directly to the accused's lawyers.
In respect of some of the documents ordered to be produced, the Commissioner of Police, NSW ('the Commissioner') foreshadowed at an early stage and again once the orders were made, that he sought to make a claim for public interest immunity. Counsel for the Commissioner came to Court on 30 January 2019 ready, willing and able to present arguments on that matter. However, after judgment was delivered, I was informed that Mr Ramage QC was no longer instructed to represent Mr Taleb. The matter was stood down in the list to allow Mr Taleb's solicitor to appear and explain to the Court what was happening in terms of the future conduct of the case. She arrived with Mr Finnane QC who had agreed to accept instructions in the trial. However, he was not yet seized of the issues either generally or specifically with respect to the subpoena arguments. Accordingly, it was necessary for the case to be adjourned until Monday, 11 February 2019.
I was also informed after delivering judgment on the first subpoena argument that a third subpoena had been issued. That subpoena was filed in the Supreme Court on 26 November 2018. However, for reasons which are largely unexplained, it was not served on the Commissioner before 5 December 2018 when the matter was still before me and the parties were still in debate. The Commissioner filed a notice of motion on 18 January 2019 asking that the third subpoena be set aside "upon the grounds of lack of legitimate forensic purpose and abuse of process." As I understand it, the argument in this regard is twofold although that argument was not fully ventilated. The first point is that the subpoena is directed to documents which were subject to the first two subpoenas. The second argument concerns the alleged failure to serve the document in a timely fashion, thus allowing the legal issues which arose to be ventilated along with similar issues being debated in November and December 2018. There was a dispute at the bar table as to whether there was any such failure and, it seems, the documents were served but (perhaps) on the wrong party. [2]
[2]
The third subpoena
I will deal first with the issues arising from the third subpoena as it can be disposed of quickly. [3] Whatever the rights and wrongs of the dispute over service of the subpoena, this is not a basis to assert or to find that the subpoena represents an abuse of the court process. There has been an ongoing dispute between the parties concerning the alleged tardiness of responses to correspondence but there is no evidence to suggest that this is the fault of Mr Taleb. I would not strike the subpoena out on that basis.
The other argument is that the material sought to be produced was subject of the first subpoena and not pressed. At this stage, it is unnecessary further to consider that argument. At least part, if not most or all, of the material sought by the third subpoena concerns an important prosecution witness who goes by the pseudonym of Max Marid. In the course of argument it became clear that this witness had recently received the benefit of letters of assistance or similar documents in the course of sentencing proceedings. In the course of the hearing on 11 February 2019, I directed that the file that related to those sentencing proceedings be produced to my Associate. As a result, we were able to determine that a number of "confidential affidavits" were tendered in those proceedings. It seems likely that that material, if produced, would satisfy the accused's need to have important information concerning or capable of affecting Mr Marid's credibility in order to cross-examine him at the trial. It was also ascertained that the material in question was returned to the lawyer then appearing for the Commonwealth Director of Public Prosecutions.
There is little doubt, subject to legitimate claims for public interest immunity, that such material should and must be disclosed by the prosecution to those representing the accused: see, for example, Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708. The material in question was not in Court on 11 February 2019 and so the parties agreed that the matter could be delayed until the prosecutor (also instructed by the Commonwealth Director of Public Prosecutions) could comply with its disclosure obligations. I was told, and I accept, that the material was not held by the Commissioner to whom the subpoena was directed.
Rather than acting precipitously I simply stood the third subpoena in the notice of motion over until today.
I have been told today that there has been some disclosure by the Commonwealth Director of Public Prosecutions in relation to the relevant material. It seems that there may be further material to be disclosed and that the material may need to be subject to orders lifting certain restrictions made by the judge in sentencing Mr Marid. It is also conceded by Queens Counsel for Mr Taleb that Mr Glover's assertion that there is no material held by the Commissioner should be accepted. Accordingly, I simply note in respect of the third subpoena that there is no material to produce.
[3]
Claim for public interest immunity
Returning then to the claim for public interest immunity, counsel for the Commissioner read an open affidavit of Deputy Commissioner Gelina Talbot which was marked as Exhibit VDG. Counsel also provided helpful written submissions which were marked MFI 9. In addition to this open material, a confidential affidavit of Ms Talbot was read and became confidential Exhibit VDH and closed or confidential submissions of counsel were marked confidential MFI 11.
It is by now, a well-established if, from the point of view of appearances, somewhat unfortunate practice that the accused in a criminal case, his lawyers and the prosecutor and those instructing them are unable to see for themselves the material upon which such decisions are based, or even be present when the matter is argued. At one stage when I sought to obtain more information arising out of the confidential material and to ask counsel for the Commissioner blunt questions concerning the issues, the Court was closed to all but my staff, the court staff, and the legal representatives who appeared for the Commissioner. In any event, that process was carried out with the concurrence and understanding of Queen's Counsel for Mr Taleb and the prosecutor.
The process is necessary in order to protect the confidentiality of the material subject of the debate. To allow the material to be inspected by those representing the accused, or the prosecution, or to allow them to be present when those materials are openly spoken about by a trial judge and the Commissioner's representative, would defeat the claim for public interest immunity. In certain circumstances, some of which arose here, it is necessary to do some small violence to the principal of open justice in order to otherwise protect the community's interests.
On a similar note, the detail of the reasons guiding a decision as to whether or not to grant an application for public interest immunity must necessarily remain confidential will be couched in such terms that no hint is given as to the nature of the protected material.
I have considered the material provided in MFI 11 and Exhibit VDH. I have made a comparison between the documents that were produced in their original form and the documents which have or will be provided to the accused's lawyers in a redacted form. Without going into detail, there are three discrete areas where the claim for public interest immunity arises. I am satisfied, for the reasons set out in the confidential affidavit of Ms Talbot and the confidential written submissions on behalf of the Commissioner that there is a public interest in the non-disclosure of the information in question.
Whether there is a public interest in the disclosure of that information is a more complex question. In this respect the public interest in question is the public interest in ensuring that the accused person receives a fair trial and also in the requirement that there be open justice. Both of these are fundamental principles that represent the cornerstone of our criminal justice system. There is little doubt that upholding the claim for public interest immunity in this case, and indeed in any case, undermines to some degree the principle of open justice. In the circumstances of the present case, the material that has been disclosed to the accused is material that is relevant to his case and, in particular, may be relevant to his argument that the police acted unlawfully. That is because, amongst other things, the material demonstrates that the first controlled operation certificate (CB CO 17/023) appeared to relate to the investigation by NSW Police of a Commonwealth offence. The first variation to that authority (CB CO 17/023 v1) expanded the net to include the supply of prohibited firearms as well as other Commonwealth offences.
This is material that could potentially assist the accused in his defence or in his argument that the investigation was tainted by some form of impropriety (because the NSW Police are not authorised to investigate a Commonwealth offence under the Law Enforcement (Controlled Operations) Act 1997 (NSW)). [4] However, the redacted material is of little if any relevance to the issues that have been identified as arising in the accused's trial. I do not doubt that in respect of at least some of the material there would be a forensic advantage to the accused in knowing certain identities and certain information that is contained therein. However, that forensic advantage is not, as I perceive the issues at this point, a particularly significant one in view of the issues to be ventilated. Considering all of those matters, I am satisfied that there is at least some public interest in the disclosure of the information in question.
Accordingly, it becomes necessary to balance or weigh the public interest in disclosure against the public interest in non-disclosure. I have considered the material produced to the Court in confidence closely and I have applied a well-known series of cases to the question of the claim for public interest immunity. I have also considered the extent to which maintaining the confidentiality impacts on the public's interest in open justice and in Mr Taleb receiving a fair trial.
On the basis of that material and those authorities, this is a case where the scales tip heavily in favour of maintaining the confidentiality. There is both an overwhelming public interest in maintaining the integrity of current and future police investigations which could be damaged by disclosure of some of the material and also the personal interests of various parties nominated in the material to protect their identities. Those interests outweigh the more general interest in open justice and the private interest that Mr Taleb has to have access to all unredacted documents that may have some peripheral or incidental relevance to his case.
I stress that nothing in the material suggests that Mr Taleb's trial will cease to be fair as a result of the non-disclosure of this material. While I can perceive that it may have some relevance to him and to arguments he hopes to make, and while it may result in further investigations on the part of his lawyers, on the issues that have been identified to me it is not material of great significance. The non-disclosure of the material will not deprive him of a chance to achieve either the exclusion of otherwise relevant evidence because of the way in which it was obtained or to achieve a verdict of not guilty to the charges he presently faces.
For those somewhat opaque reasons, I uphold the Commissioner's claim for public interest immunity and determine that the disclosure of the documents in the redacted form proposed by the Commissioner constitutes full compliance with the orders made for production on 30 January 2019.
[4]
Endnotes
Commissioner of Police, NSW v Taleb [2019] NSWSC 21.
In revising this judgment for publication, this paragraph has been changed following further submissions after judgment was delivered ex tempore.
This paragraph has been revised for the reasons set out in footnote 2.
See Commissioner of Police, NSW v Taleb [2019] NSWSC 21 at [21]-[24].
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Decision last updated: 05 April 2019