Gould v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2018-05-23|Before: Basten JA, Johnson J, Adamson J

SASC 51 R v Brown (Winston) [1998] AC 367 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Keane [1994] 1 WLR 746 R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 R v Petroulias (No. 5) (2006) 217 FLR 334; [2006] NSWSC 1155 R v Petroulias (No. 8) (2007) 175 A Crim R 417; [2007] NSWSC 82 R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 R v Saleam [1999] NSWCCA 86 R v Simmons; R v Moore (No 3) [2015] NSWSC 189 R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 Roads and Traffic Authority (NSW) v Conolly (2003) 57 NSWLR 310; [2003] NSWSC 327 South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 von Arnim v Ellison (2006) 150 FCR 282; [2006] FCAFC 49 Texts Cited: T Game SC and J Roy, "Unifying Principles in Administrative and Criminal Law", N Williams (ed) Key Issues in Public Law (The Federation Press, 2017), Ch 11, p 202. Category: Principal judgment Parties: Vanda Russell Gould (Applicant) Director of Public Prosecutions (Cth) (Respondent) Representation: Counsel: Mr T Game SC/Ms G Huxley (Applicant) Mr R Maidment QC/Ms N Evans (Respondent)

Solicitors: Webb Henderson (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2016/278181 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 11 April 2018 Before: Syme DCJ File Number(s): 2016/278181

Judgment

BASTEN JA: In 2016, the applicant was charged by the Director of Public Prosecutions for the Commonwealth with two offences under the Crimes Act 1914 (Cth). The first involves giving false testimony in relation to a federal judicial proceeding, contrary to s 35(1) of the Crimes Act and carries a maximum penalty of 5 years imprisonment. The second concerns an attempt to pervert the course of justice in relation to an exercise of the judicial power of the Commonwealth, contrary to s 43(1) of the Crimes Act, an offence carrying a maximum penalty of 10 years imprisonment. Each offence carrying a penalty of at least 3 years imprisonment, is a "prescribed offence" for the purposes of the Telecommunications (Interception and Access) Act 1979 (Cth) ("Interception Act"). [1]
In 2013, six telecommunication interception warrants were issued on the application of the Australian Federal Police in respect of four numbers associated with the applicant. Conversations recorded in execution of the warrants will form a major part of the prosecution case in respect of at least one of the charges on the indictment.
On 19 March 2018 the applicant filed a notice of motion seeking a stay of the criminal trial pending disclosure of "any affidavits, statements or other documents provided by the Australian Federal Police in support of its applications for the issue of warrants … pursuant to s 46 of the [Interception Act]". Two other bases were relied on in the notice of motion, but, by agreement, were stood over generally and were expected to be resolved by agreement. The basis which remains in dispute was prayer (1)(a) in the notice of motion.
The applicant had not sought to subpoena the material, but rather relied upon the prosecutor's general law obligation of disclosure, identified in written submissions in the following terms: [2] "Prosecutorial obligations of disclosure extend to documents which are material, that is documents which (on a sensible appraisal by the prosecution) can be seen to (a) be relevant or possibly relevant to an issue in the case, (b) raise or possibly raise a new issue the existence of which is not apparent from the prosecution case or (c) hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b)". [3]
This statement was in some respects broader than the "Statement on Disclosure in Prosecutions conducted by the Commonwealth (March 2017)", issued by the Commonwealth Director. The statement of the obligation was not in dispute before the primary judge, nor in this Court. However it is well to note the published disclosure policy, which relevantly provides: [4] "5. A precondition for prosecution disclosure is that the material is in the possession of, or the information is known by, the prosecution. For the purposes of this disclosure policy and at common law there is no distinction between the prosecuting agency and the investigative agency. [5] The courts generally regard the investigative agency and the prosecuting agency as 'the prosecution'. Consequently, the CDPP largely depends on the investigative agency to inform it of the existence of material which should be disclosed to the defence, whether the investigative agency holds it or is aware it is held by a third party including a Commonwealth, State or Territory agency, private entity or individual. 6. If a matter involves investigation by more than one agency, the CDPP depends on the investigative agency which refers the brief to inform the CDPP of all disclosable material which any of the agencies involved hold or are aware of. 7. The CDPP is available to assist and work with agencies in discharging the Prosecution's duty of disclosure."
On 11 April 2018 the motion came before Judge Syme in the District Court. In an ex tempore judgment, she rejected the application for a conditional stay.
On 16 April 2018 the applicant filed a notice of application for leave to appeal, pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). Ground 1 was a general statement that the primary judge erred in failing to make the order sought. The remaining grounds were as follows: "Ground 2: Her Honour erred in finding the Australian Federal Police were a third party for the purposes of the obligations of disclosure. Ground 3: Her Honour erred in dismissing prayer (1)(a) after finding that the accused was entitled to consider the documents sought may possibly be relevant in relation to the admissibility of the intercepted communications. Ground 4: Her Honour erred in finding that the Crown had considered and given sensible appraisal to whether the documents fell within the category of documents required to be disclosed … in the absence of evidence to that effect; where there was a dispute as to the potential of the documents in question to be relevant; and an issue as to the scope of those duties. Ground 5: Her Honour erred in finding that the accused ought to issue a subpoena seeking production of the documents sought pursuant to the obligations of disclosure."
These grounds turned on the scope and content of the obligation of disclosure. In support of the leave application, the written submissions for the applicant identified three questions of general importance, namely: [6] "(1) whether investigative agencies are bound by prosecutorial obligations of disclosure; (2) whether the test for disclosure is broader than the test [of] 'legitimate forensic purpose' in the context of subpoenas; and (3) whether material provided in support of an application for the issue of warrants under s 46 of the [Interception Act] is disclosable to an accused."
Neither the grounds nor the statement of questions of importance identified precisely the issues which the applicant raised in the course of his submissions. These may be summarised as follows: 1. Did the duty of disclosure by the prosecution require the prosecutor to undertake an appraisal of the material held by the investigating authority? 2. Is the challenge to the validity of an intercept warrant limited to invalidity on the face of the warrant, without reference to the sufficiency of the material on the basis of which the warrant was issued? 3. Should that material be disclosed in any event in order to allow the accused to decide whether there was impropriety attending the issue of the warrant? The last question was formulated on the basis that the purpose of collateral challenge to the validity of the warrants was to establish grounds for challenging the admissibility of the conversations recorded in execution of the warrants. Pursuant to s 138 of the Evidence Act 1995 (NSW) that challenge could be mounted on the basis that the evidence was obtained "improperly or in contravention of an Australian law". It was therefore assumed that the warrants may have been "improperly" issued, even though they were validly issued. The nature of the distinction was not explored in the submissions.
Both the grounds and the submissions for the applicant assumed that if the prosecutor had failed to "disclose", that is produce to the accused, the documents sought, the appropriate relief was a stay of the trial until that step was taken.

(1) Disclosure of documents held by investigating authority

The applicant's written submissions asserted that "[h]er Honour's finding that the AFP were a third party appears to be the primary basis upon which her Honour dismissed prayer 1(a)". [7] The submission continued: "[Her Honour] dismissed prayer 1(a) … notwithstanding [her] finding that the accused was entitled to consider the material was 'possibly relevant'. This indicates that her Honour considered the fact that the AFP was a third party to be determinative of the application …."
That submission relied on two passages in the judge's reasons. In the first, the judge stated: "I proceed on the assumption that the information from the investigative agency is available to the prosecution should they seek it, but that is only an assumption. No-one argued otherwise but I observe technically the AFP are probably a third party."
Secondly, after dealing with the substantive arguments, the judge concluded her reasons with the following passage: "The Crown rhetorically ask that if the applicant believes the documents are relevant, then they should have confidence in their [subpoena] argument and simply issue it. … The defendant is entitled to consider the content of those affidavits may possibly be relevant to a matter in issue and may possibly be relevant to a [the?] potential admissibility or otherwise of the evidence obtained in the telephone intercepts. If they are confident of that argument, they ought issue a subpoena directed to the AFP."
The first passage appeared after reference to the Director's statement that they had made inquiries of the AFP and had been advised there was nothing further to disclose. The second passage, coming at the end of the reasons, is not easily read as dispositive in the way proposed by the applicant. Rather it appears to be summarising a position put forward by the Director. For reasons noted below, the judge was correct to suppose that a challenge to the adequacy of the disclosure could be made by issuing a subpoena.
The common assumption, which the judge expressly accepted, was that the duty of disclosure extended to material held by either the prosecutor or by the investigating authority. The documents sought were in fact held by the investigating authority, namely the Australian Federal Police. That the duty extended to such documents was not in doubt; they were considered by the Australian Federal Police and deemed not to fall within the duty of disclosure.
There were two issues sought to be raised by the applicant. The first was that it was the prosecutor, not the police, by whom the documents should have been assessed. However, no authority was relied on in support of that proposition and it was not part of the disclosure obligations, as articulated by the applicant before the primary judge, nor in the terms of the Director's published Statement. No submission was made as to why the duty should be formulated in that way. Indeed, there are good reasons not to formulate a duty in such terms given the importance, in some circumstances, of quarantining particular material from the prosecution. [8]
The second issue was whether the prosecutor (and the police) had wrongly assumed that the documents could not, as a matter of law, be used to impugn the validity of the warrants, and on that basis were not subject to disclosure. That issue is discussed further below.
It remains to note that the language of ground 3, namely the finding that "the accused was entitled to consider the documents sought may possibly be relevant", was not an attempt to formulate a relevant standard for disclosure. Such a standard would not turn on the subjective beliefs of the accused. Rather, that language reflected the submission by the Director that if the accused thought the documents were relevant, he could issue a subpoena. Nor was the judge distracted by this submission to find that the accused "ought" to issue a subpoena. The point made by the Director, and acknowledged by the judge, was that an available course was to issue a subpoena, as an alternative to, or to test the propriety of, the non-disclosure.
The applicant argued that the test to be fulfilled in order to be able to rely upon a subpoena involved establishing a legitimate forensic purpose. That test, the submission continued, was more difficult to satisfy than the requirements for disclosure and it was, therefore, not always an available alternative. That issue will be separately addressed below. It is sufficient for present purposes to conclude that each of grounds 2-5 relied upon taking statements in the ex tempore reasons out of context to draw inferences which must be rejected.

(b) Scope of available challenge to validity of warrant

(i) statement of issue

On a fair reading of the judgment, having regard to the submissions of the parties, the critical issue was addressed by the judge in the following terms: "Both parties have reinforced their arguments before me by reference to many cases, the most comprehensive of which is the High Court case of Ousley and the New South Wales [Court of Criminal Appeal] decision in Lipton. Both of those cases concern the issue of warrants and the ability of an accused to challenge the validity of the basis on which a warrant was issued. Both cases refer to the administrative nature of the issue of those warrants and the appropriate ability or otherwise to challenge those warrants. Ousley's case in particular confirmed that the validity of a warrant depends on the warrant being regularly issued, not on the sufficiency of information supporting the application."
Those propositions were essentially correct. The reason why they were conclusive against the application might have been clarified by expressly stating what was implicit, namely that access to "affidavits, statements or other documents" provided by the Australian Federal Police to the issuing authority could only rationally support a challenge to the issue of the warrants based on the insufficiency of the information supporting the applications.
However, the applicant submitted that the Director's position that the content of the supporting affidavits was irrelevant was based on a misreading of Ousley v The Queen. [9] The submission continued: [10] "The various judgments in Ousley v The Queen do not state that the content of an affidavit in support of an application for a warrant is prima facie irrelevant in a challenge to the validity of the warrant or a challenge to the admissibility of evidence obtained pursuant to the warrant. Ousley v The Queen (and Murphy v The Queen [11] ), simply indicate that the grounds for challenging the validity of a warrant in criminal proceedings may not necessarily extend to examination of the sufficiency of the material placed before the issuing authority in order to determine whether that person would necessarily have reached the requisite satisfaction in respect of the considerations mandated by the legislation." (Emphasis added.) References were then given to passages in Ousley said to support that proposition, which will be considered below. The submission continued: "Challenge to the admissibility of the evidence obtained pursuant to the warrants can nevertheless be made based on information disclosed in the affidavits and material provided in support of an application for a warrant on the basis of illegality or impropriety under s 138 of the Evidence Act."
For reasons which will be noted shortly, the italicised words in the first passage set out above are not supported by either Ousley or Murphy. The second passage appeared to suggest that material obtained pursuant to the execution of a valid warrant may nevertheless be excluded pursuant to s 138 of the Evidence Act. No authority was provided in support of that proposition.
As explained by Gummow J in Ousley, the proper inquiry as to the validity of a warrant, where the form of the warrant and the preconditions for its issue are prescribed by statute, is a matter of statutory interpretation. [12] Thus Ousley itself demanded caution in applying judicial reasoning with respect to other forms of warrant under different statutes. The first step is to identify the statutory scheme and the extent to which it has common features with the legislation considered in earlier case law.

(ii) statutory scheme of Interception Act

First, there are significant differences between search warrants, whether issued under general law powers or under statute, and warrants issued under the Interception Act or under related State laws. [13] Thus, the Interception Act commences, in s 7, with a statutory prohibition on intercepting telecommunications, subject to exceptions, including interception under a warrant. [14] Section 63 provides: 63 No dealing in intercepted information or interception warrant information (1) Subject to this Part …, a person shall not, after the commencement of this Part: (a) communicate to another person, make use of, or make a record of; or (b) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1). (2) Subject to this Part …, a person must not, after the commencement of this subsection: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding.
Section 63 appears in Pt 2.6; the exception in that Part which will be relied upon by the Director in prosecuting the criminal offences is to be found in s 74, which provides: 74 Giving information in evidence in exempt proceeding (1) A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding. (2) For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities. (3) A person may give interception warrant information in evidence in an exempt proceeding.
The phrase "lawfully intercepted information" is a reference to information obtained "otherwise than in contravention of subsection 7(1)". [15] One category of "exempt proceeding" is "a proceeding by way of a prosecution for a prescribed offence". [16] As noted above, a prescribed offence includes any offence punishable by a term of imprisonment of at least 3 years. Accordingly, the charges under s 35(1) and s 43(1) of the Crimes Act are both with respect to prescribed offences. There is no other proceeding which is presently relevant. Subsection 74(2) anticipates that there may be a dispute as to whether information was lawfully intercepted.
Section 74(3) provides an exception to the prohibition in s 63(2), permitting "interception warrant information" to be given in an exempt proceeding. The phrase "interception warrant information" is defined in s 6EA in the following terms: 6EA Interception warrant information A reference in this Act to interception warrant information is a reference to: (a) information about any of the following: (i) an application for an interception warrant; (ii) the issue of an interception warrant; (iii) the existence or non-existence of an interception warrant; (iv) the expiry of an interception warrant; or (b) any other information that is likely to enable the identification of: (i) the telecommunications service to which an interception warrant relates; or (ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.
Although the issue was not addressed in submissions, it should be assumed for the purposes of this proceeding that the affidavits and other documents supporting the applications for interception warrants would constitute information about such an application and would therefore be "interception warrant information" under s 6EA(a)(i).
One consequence of the prohibition on communicating interception warrant information to another person, pursuant to s 63(2)(a), together with the limited exception in s 74(3), is that such information would not be available in proceedings for judicial review of the conduct of Commonwealth officers, including members of the Australian Federal Police. [17] Such proceedings cannot be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) because of the exclusion in Sch 1, of all decisions made under the Interception Act: Sch 1, (d).
Further, there are limited circumstances in which judicial review proceedings could be taken under s 39B of the Judiciary Act 1903 (Cth). Once a decision has been taken to prosecute a person for an offence against a law of the Commonwealth, where the prosecution is to take place in a State court, only the State Supreme Court has power under s 39B to grant relief under s 75(v) of the Constitution. [18] An application for such relief would not permit the accused to obtain material supplied in support of an application for an interception warrant, as that information would fall within the prohibition of disclosure under s 63(2) and the judicial review proceedings would not be exempt proceedings.
It follows, as was accepted by senior counsel for the applicant, that the only basis of challenge to the validity of the warrant must be by way of collateral challenge in the criminal proceeding. However, in accordance with general law principles, the nature of that challenge is limited. There was no submission that general law principles did not apply with respect to an interception warrant; indeed, the critical cases concerned warrants under the Interception Act.

(iii) general law principles

Murphy v The Queen [19] involved a warrant granted under the Listening Devices Act 1984 (NSW) pursuant to which a record was made of a conversation between Miss X and one of the men charged with the murder of Anita Cobby. The joint reasons of Mason CJ and Toohey J (with which, in this respect, all members of the Court agreed) identified the issue as follows: [20] "It was not contended that the warrant, on its face, failed to authorise what Miss X had done. Rather, the submission was that counsel should have been permitted to investigate the basis upon which the warrant had been granted and that, in the event that there had been some procedural or substantive error in relation to its issue, the trial judge should have rejected the resulting evidence as not having been obtained pursuant to a valid warrant."
In this Court the refusal of the trial judge to allow the investigation of the circumstances in which the warrant had been granted was upheld on the basis that the warrant had been granted by a judge of the Supreme Court and therefore its validity was to be presumed. That was not the basis on which the High Court upheld the decision. Mason CJ and Toohey J stated: [21] "The question is whether the presumption of validity could be displaced by a collateral attack upon the warrant founded on an alleged insufficiency of the materials placed before the Supreme Court by the applicant for the warrant. There was no challenge to the jurisdiction of the Supreme Court to grant a warrant; counsel sought to challenge the sufficiency of the grounds on which the warrant had been granted. This attack on the warrant was misconceived. The admissibility of the evidence of Miss X depended on the existence of the warrant, not on the sufficiency of the grounds for granting it. … Where a warrant can be issued by the appropriate authority only upon its being satisfied of prescribed matters to be shown by the applicant for the warrant, the validity of the warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of those matters…. To determine the admissibility of evidence obtained by use of a listening device purportedly under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the Supreme Court. It does not inquire into the sufficiency of the material which satisfied the Supreme Court of the matters referred to in s 18(2)(b) [of the Listening Devices Act]. There was neither need nor occasion for the Court in the present case to investigate the basis on which the warrant had been granted."
Although it was only in 1990, in Love v Attorney-General (NSW), [22] that the High Court held that the grant of a warrant by a Supreme Court judge was an administrative act and not an exercise of judicial power, that has not affected the authority of Murphy. The limited scope of review of an interception warrant was confirmed in Grollo v Palmer. [23] It has been suggested that Grollo depended upon the particular circumstances under the Interception Act, as then in force, which effectively denied the opportunity to mount a challenge to the validity of the warrant. [24] The premise may be accepted, but it does not assist the present applicant; the joint reasons implicitly assumed that there was no process by which a prospective challenger could seek access to the underlying material supporting the issue of the warrant. No legislative change was relied on to demonstrate that the authority of Grollo is diminished.
Ousley involved a warrant issued under the Listening Devices Act 1969 (Vic). After reviewing the relevant authorities, including Murphy and Grollo, Toohey J stated: [25] "It follows that in respect of this part of the appellant's challenge there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements."
The appellant was unsuccessful because he was not able to establish that there were relevant factors which had to be disclosed on the face of the warrant, but were not.
Gaudron J also accepted that a collateral challenge to the validity of a warrant "depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue", referring to the joint reasons in Murphy. [26]
Gummow J accepted that where there was a challenge to the legality of the means by which evidence was obtained the trial judge was obliged to determine whether the evidence had been obtained by illegal means, [27] and continued: [28] "The question is whether the listening device was used 'under and in accordance with a warrant granted under section 4A'. There are two competing possibilities as to what is meant by that phrase. On one view it would include the use of a listening device in reliance upon a document purporting to be a warrant. The existence of such a document on its own would be sufficient to exculpate a police officer from the terms of s 4(1) of the Act. Alternatively, a warrant would not be 'granted under section 4A' unless the conditions specified in pars (a) and (b) of s 4A(1) are satisfied and reference made to them on the face of the warrant."
After setting out the key principles stated in Murphy, Gummow J continued: [29] "Counsel for the appellant accepted the principle that it is inappropriate for a court to examine the material placed before the person who issued the warrant in order to determine whether that person would necessarily have reached the requisite satisfaction. He also accepted the proposition that, in reviewing the issue of a warrant, a court may only have regard to what appears on the face of the warrant. However, the terms in which counsel expressed some of his arguments were at odds with an acceptance of those propositions. He maintained that, from an examination of the two warrants, it is clear that, prior to issuing the warrants, the judges reached a state of satisfaction which was not prescribed by s 4A(1) of the Act. On that basis, it was said that the faces of the warrants themselves supplied evidence that the issuing judges misdirected themselves as to the prerequisites for the issue of the warrants. The argument in that form fails because, in the terms used in Murphy, it challenges the 'sufficiency of the grounds for granting' the warrant rather than 'the existence of the warrant'."
Of the other two members of the Court in Ousley, McHugh J made statements which suggested a broader basis for review than the three judgments cited above. Kirby J was in dissent and did not directly address this issue, although he made passing reference to "legal challenges based upon suggested defects appearing on the face of a warrant", language consistent with the majority view in this respect. [30]
There can be little doubt that the line of authority including Murphy, Grollo and Ousley determines the law to be applied by this Court. However, the applicant suggested otherwise on two bases. First, as noted above, he contended that the cases "simply indicate that the grounds for challenging the validity of a warrant in criminal proceedings may not necessarily extend to examination of the sufficiency of the material placed before the issuing authority in order to determine whether that person would necessarily have reached the requisite satisfaction". However, as explained above, the cases expressly hold that the available grounds do not extend so far; further, even standard judicial review grounds would only ask whether the authority could reasonably have reached the requisite satisfaction. As to the scope of the cases, the analysis set out above has been affirmed in subsequent authorities.
In South Australia v Totani, [31] a challenge to the validity of legislation permitting the making of "control orders", the State drew an analogy with a challenge to the validity of a warrant. In response, Gummow J stated: [32] "But the authorities establish that validity of a warrant depends on the regularity of its issue, not the sufficiency of the material which supported the application for its issue [33] ."
In von Arnim v Ellison [34] the Full Court of the Federal Court considered the scope of a collateral challenge to warrants issued under the Extradition Act 1988 (Cth). The applicant had relied on the following passage in the judgment of McHugh J in Ousley referring to the scope of a collateral challenge to a warrant discussed in Coco v The Queen, [35] and concluding: [36] "Since this Court's decision in Coco, however, a collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant. … But the important point for present purposes is that this Court quashed the conviction of the appellant and accepted implicitly that the trial judge had jurisdiction to determine whether the issue of a warrant was void by reason of jurisdictional errors that lay behind its issue."
Young J in von Arnim, accepting that the passage could be read as expanding the scope of challenge beyond that adopted by the other three members of the majority, concluded: "[37] Jurisdictional error was revealed in Coco by comparing the terms of the statute, which did not authorise entry onto premises, with the terms of the approval which purported to do so. Moreover, there is nothing in any of the judgments in Coco to suggest that the Court was intending to depart from Murphy and McArthur v Williams …. Those cases held that the validity of a warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of the matters prescribed by the statute …. [38] It is also significant that McHugh J went on to refer, with apparent approval, to Murphy and McArthur as authorities for the proposition that insufficiency of evidence is not itself a ground for collateral challenge …. … [41] Ousley has been followed and applied in numerous cases …. They afford illustrations of the proposition that a warrant can be reviewed to determine whether, on the face of the record, it complied with the statutory preconditions for its issue."
In Australian Crime Commission v Marrapodi, [37] McLure P accepted that a majority in Ousley "limited a collateral challenge in the criminal trial to jurisdictional errors appearing on the face of the warrant." [38] In Director of Housing v Sudi, [39] which considered the power of the Victorian Civil and Administrative Tribunal to exercise judicial review by way of a collateral challenge, Weinberg JA stated that such powers as the Tribunal had were "confined by Ousley, as are the powers of the courts, to challenges brought on the basis of something akin to 'facial' or 'patent' invalidity."
Somewhat indirectly, [40] the applicant drew attention to a statement by Spigelman CJ in R v JW: [41] "[88] The courts of criminal jurisdiction, including courts of criminal appeal, have always been astute to exercise what can be described as a supervisory jurisdiction over the executive branch of government's involvement in the administration of criminal justice, with respect both to police investigations and to criminal prosecutions. This approach has been manifest in a number of different ways including the exercise of the inherent jurisdiction to prevent abuse of process or the exercise of the discretion to reject otherwise admissible evidence. [89] A clear example is the power exercised to stay criminal proceedings on the basis that an abuse has occurred on the part of the police or of the prosecution."
This exposition should not be read out of context: it was concerned with the operation of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), providing that the element of double jeopardy should not be taken into account when determining a prosecution appeal against sentence. Further, read in context, the statement is apt to emphasise the very considerable differences between the application of any such jurisdiction in criminal and in civil proceedings.
Finally, counsel for the applicant drew attention to the decision of the Court of Criminal Appeal in South Australia in Question of Law Reserved on Acquittal (No 5 of 1999). [42] It is by no means clear that the reasoning supports the applicant, although there is some degree of ambiguity in each of the three judgments. The warrant in question was a search warrant issued under the Controlled Substances Act 1984 (SA), s 52. Mullighan J stated that "[g]iven that the warrants are valid on their face, there could be no collateral challenge founded upon alleged insufficiency of material placed before [the issuing officer] by the applicants for the warrants", [43] referring to numerous passages in Murphy and Ousley. However, the judge also concluded that it was open to the applicants to raise a question of Wednesbury unreasonableness as to the state of satisfaction of the authority, but only if there were a sound basis to do so. [44]
Lander J, again after referring to passages in Ousley in support of the proposition that the issue of the warrant "is an administrative act" and thus subject to challenge in collateral proceedings, stated that "collateral challenge is available notwithstanding the warrant is valid on its face". [45] Such an inquiry he said was not "at large", referring to the judgment of Gaudron J in Ousley. [46] Williams J also accepted that "[t]he sufficiency or character of the material on which the issuing officer acted cannot be made the subject of challenge", referring to McArthur v Williams. [47] However, he also envisaged that there could be review on the ground of Wednesbury unreasonableness, although he thought it would be "an extraordinary case" in which such a challenge could take place. [48]
To the extent that the reasoning was relevant to the issue of a search warrant, it is of limited relevance in the present case. Further, none of the reasoning purported to qualify what had been said in the High Court authorities discussed above, nor could it. To the extent that there are suggestions of a wider scope of review than allowed in McArthur v Williams, Murphy and Ousley, those suggestions should not be followed.

(iv) conclusions as to scope of collateral challenge

It follows from this line of authority that the trial court had no power to examine the affidavits and other material placed before the authority which issued the warrants in order to challenge the validity of the warrants. It must follow that there can no duty of disclosure on the prosecution to produce material which could not be relevant to the issues which might be addressed in the trial.

As noted above, the applicant sought to challenge conclusions based on the case law on two bases. The second basis involved sidestepping the question of the validity of the warrant and, presumably, illegality as a basis for seeking exclusion of the evidence under s 138 of the Evidence Act. The alternative course was to allege "impropriety" in the means by which the evidence was obtained.
No doubt, on an appropriate factual basis, an accused person could challenge the admissibility of evidence under s 138 of the Evidence Act on the basis there had been impropriety on the part of an applicant for a search warrant (for example, by relying on perjured testimony) or impropriety in the execution of the warrant. However, that is quite a different thing from challenging the validity of the warrant on conventional judicial review grounds. For example, the ground of improper purpose refers to the purpose of the decision-maker, not the purpose or conduct of the applicant.
In R v Simmons; R v Moore (No 3), [49] Hamill J found support for a broader form of review in a passage from Flanagan v Australian Federal Police [50] suggesting that the trial judge had the power to exclude evidence where allegations of "bad faith and impropriety" have been made good. Hamill J noted that Flanagan was referred to with approval by McHugh J in Ousley. However, the key point in Flanagan was that "[n]ecessarily implicit in this ruling is the proposition that the trial judge in the pending County Court trial could determine the validity of warrants issued by Federal Court judges." [51]
There is no doubt that an accused may seek to establish such impropriety as a basis for challenging the admissibility of evidence. That may be done through a voir dire, usually prior to the empanelling of a jury. Relevant evidence may be obtained from any source. That may require the issue of a subpoena if the evidence is thought to lie in the hands of the prosecutor, or the investigating authority. It can be entirely separate from any challenge to the validity of the warrant and on different grounds, as illustrated by a comparison of two interlocutory judgments in the Petroulias proceedings, R v Petroulias (No. 5), [52] involving the challenge to an interception warrant, and R v Petroulias (No. 8), [53] involving an allegation of impropriety.
In the present case, the accused expressly eschewed the issue of a subpoena, counsel submitting that he might well not be able to satisfy the test of a legitimate forensic purpose. (It will be appropriate to return to that submission shortly.) The submission, somewhat muted, that the material sought should have been produced under the duty of disclosure, not in order to challenge the validity of the warrant, but in order to establish some other form of impropriety attending its issue, was misconceived for two reasons. The first, substantive, reason applies specifically to this contention. The second, procedural, reason applies more generally.
The trial judge dealt with the submission based on "the potential for impropriety", noting that there was "no suggestion that that evidence was illegally obtained". [54] The judge then stated that "[t]here is no evidence I hasten to add to support the proposition of impropriety." [55] That finding was not challenged.
The potential effect of accepting this aspect of the applicant's case would be, on the one hand, to subvert the established constraints on challenges to the validity of a warrant by allowing the same effect to be achieved by recharacterising the challenge as one going to "investigatory impropriety", but not the legal validity of the process, while, on the other hand, avoiding the constraints on the issue of a subpoena. That course should not be accepted.

Procedural issue

Procedurally, the applicant's case was unsound. The notice of motion sought a temporary stay pending "disclosure to the accused" of the specified documents. To the extent that reliance was placed on the duty of disclosure, that relief would not, in any event, have been available. That is, it would not have been available even if there were a legitimate forensic purpose in obtaining the affidavits and other material supporting the application for the interception warrants. The reason is that, at its highest, the duty of disclosure required that the prosecutor consider the material. Apart from the issue as to whether that was done in the present case in circumstances where the AFP undertook an appraisal of the material in its possession, the appropriate relief would have been that provided in a case on which the applicant relied, namely R v Lipton. [56]
It appears that in Lipton, as in this case, the accused "filed a notice of motion seeking an order that the proceedings be stayed until, in substance, the DPP disclosed [the requested] documents to him." [57] The judgment in this Court stated that "[t]he primary judge acceded to that request". However, that was not entirely correct; the conditions of the stay were then set out: [58] "(1) The DPP has sought and obtained from the Officer in Charge all documents pertaining to the relationship between the police and Melanie Brown; (2) The DPP has formed an opinion on whether those documents may be relevant to any matter of sentence of the [respondent]; and (3) The DPP has communicated that opinion to the [respondent's] legal adviser." The appeal was dismissed, leaving the orders standing. They did not require disclosure to the accused.
To require disclosure, rather than compliance with the terms of the duty, would be to render legally enforceable a policy which does not constitute a legal obligation; it would turn the soft law obligation, to consider, into an enforceable duty to disclose.
The underlying basis of the motion was not the duty of disclosure, but the availability of the power of the criminal court to stay a prosecution in order to prevent an unfair trial. The availability of the power is not in doubt; so much was established in Dietrich v The Queen, [59] albeit a case in which a conviction was set aside on the basis that the unavailability of counsel for the accused had rendered the trial unfair. As explained by Mason CJ and McHugh J, after noting that the judge was not required to appoint counsel: [60] "The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented."
In the present case, the applicant did not establish, or even assay the task of establishing, that a trial, absent production of the documents sought, would be likely to be unfair, or even (if a lower standard could be sufficient) that there was a tangible risk that it would be unfair. As the judge noted, there was no suggestion of impropriety and therefore no suggestion that the evidence obtained pursuant to the warrants might be inadmissible for that reason. The applicant therefore established no basis for a conditional stay in any event.

Unavailability of subpoena

The applicant conceded that there were difficulties in establishing a legitimate forensic purpose in order to obtain a subpoena for the material identified in the notice of motion. The duty of disclosure was relied on because it was said to extend beyond circumstances where an accused person could demonstrate a legitimate forensic purpose. However, that proposition may be doubted. The duty of disclosure extends to material which might open up useful lines of inquiry to the defence, without any narrow view being taken of what might be relevant. [61] Nevertheless, there is a test of potential relevance. A similar approach has been adopted with respect to the issue of subpoenas on behalf of an accused person. In Alister v The Queen [62] Gibbs CJ, adopting a colloquial expression, stated: [63] "Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence."
The same approach was implicit in the reasoning of Brennan J: [64] "This is a criminal case. The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law."
Counsel for the applicant submitted that the liberality of this approach had been constrained by judgments such as Attorney-General (NSW) v Chidgey [65] in this Court. However, Beazley JA in Chidgey declined to follow a statement of principle expressed by Adams J in Roads and Traffic Authority (NSW) v Conolly [66] because it departed from the language of Alister. Rather, the Court affirmed the following statement of principle by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam: [67] "Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case."
Although this was stated in Chidgey to be the test for determining the availability of a subpoena, [68] the test applies both at that stage and when determining whether access should be granted. If documents have been produced, no doubt it is necessary for the accused to identify a forensic purpose, but it may be open to the court to determine whether the documents are capable of materially assisting such a purpose, by inspecting the documents. (Not infrequently, as in Alister, there will be a challenge based on immunity from disclosure as well as relevance, thus requiring inspection.)

Conclusion

In circumstances where the applicant did not establish any real likelihood that the trial would be unfair, absent disclosure of the material upon which the warrants were issued, the application for a stay was properly dismissed.
Fundamental to the applicant's submissions was the proposition that the validity of the warrants could be challenged on grounds which included a review of the sufficiency of the material put before the issuing authority. Counsel for the applicant submitted that developments in the principles governing judicial review since the decision in Ousley should now be reflected in a greater willingness of criminal courts to review the validity of a warrant which has produced evidence to be relied upon by the prosecution in a criminal trial. There are two reasons for rejecting that suggestion. First, this Court is bound by the authorities referred to above, which would not permit that approach. Secondly, this case is not concerned with judicial review, but with collateral challenges in criminal proceedings. There is a range of issues to be addressed in that context, independent of principles governing judicial review of administrative actions, and even the supervisory jurisdiction exercised by the Supreme Court with respect to inferior courts. These issues are by no means straightforward and would be sufficient to require this Court to hold its hand, even if it were not bound by authority.
An issue of general importance having been raised, the applicant should have leave to appeal; however, the appeal should be dismissed.
JOHNSON J: I agree with Basten JA.
ADAMSON J: I agree with Basten JA.

Endnotes

Interception Act, s 5, prescribed offence, (d).
Applicant's written submissions, 14 May 2018, par 41.
Reference was made to R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 at [77]-[79]; R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 at [20]; R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [46]-[54]; R v Keane [1994] 1 WLR 746; R v Brown (Winston) [1998] AC 367 at 376-377.
Statement on Disclosure in Prosecutions (March 2017).
R v Farquharson (2009) 26 VR 410 at [212] (footnote in original).
Applicant's written submissions, par 10.
Applicant's written submissions, 14 May 2018 at par 12.
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [44].
(1997) 192 CLR 69; [1997] HCA 49.
Applicant's written submissions, par 27.
(1989) 167 CLR 94; [1989] HCA 28.
Ousley at 118.
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 999-1000 (Lord Wilberforce), 1008 (Lord Diplock); Grollo v Palmer (1995) 184 CLR 348 at 367 (Brennan CJ, Deane, Dawson and Toohey JJ); [1995] HCA 26; Ousley at 118-119 (Gummow J).
Interception Act, s 7(2)(b).
Interception Act, s 6E(1).
Interception Act, s 5B(1)(a).
Kizon Palmer (1997) 72 FCR 409, 433F (Lindgren J, Jenkinson and Kiefel JJ agreeing); Kizon v Palmer (No 2) (1998) 82 FCR 310, 325B (Northrop and Branson JJ, French J agreeing).
Judiciary Act, s 39B(1B)-(1E).
(1989) 167 CLR 94; [1989] HCA 28.
Murphy at 104.
Murphy at 105-106.
(1990) 169 CLR 307 at 320-321; [1990] HCA 4.
Grollo at 367 (Brennan CJ, Deane, Dawson and Toohey JJ).
Ousley at 103-104 (McHugh J).
Ousley at 80.
Ousley at 87.
Ousley at 124.
Ousley at 125.
Ousley at 126-127.
Ousley at 148.
(2010) 242 CLR 1; [2010] HCA 39.
Totani at [126].
McArthur v Williams (1936) 55 CLR 324 at 365 366; [1936] HCA 10; Ousley … at 80, 87, 103, 126. (Footnote from original.)
(2006) 150 FCR 282; [2006] FCAFC 49 (Madgwick, Siopis and Young JJ).
(1994) 179 CLR 427; [1994] HCA 15.
Ousley at 102.
(2012) 42 WAR 351; [2012] WASCA 103.
Marrapodi at [45].
(2012) 33 VR 559; [2011] VSCA 266 at [261].
By reference to a paper, T Game SC and J Roy, "Unifying Principles in Administrative and Criminal Law", in N Williams (ed) Key Issues in Public Law (The Federation Press, 2017), Ch 11, p 202.
(2010) 77 NSWLR 7; [2010] NSWCCA 49 (Allsop P agreeing).
(2000) 76 SASR 356; [2000] SASC 51.
Question of Law at [27].
Question of Law at [30].
Question of Law at [89].
Question of Law at [92].
Question of Law at [180].
Question of Law at [182].
[2015] NSWSC 189 at [75]-[76]; and see Allen v Ewing [2017] NSWSC 1696 at [30]-[47].
(1996) 60 FCR 149; [1996] FCA 16; 134 ALR 495 at 545.
Ousley at 101 (McHugh J).
(2006) 217 FLR 334; [2006] NSWSC 1155 (Johnson J).
(2007) 175 A Crim R 417; [2007] NSWSC 82 (Johnson J).
Judgment, p 3.
Judgment, p 4.
(2011) 82 NSWLR 123; [2011] NSWCCA 247.
Lipton at [3].
Lipton at [4].
(1992) 177 CLR 292; [1992] HCA 57.
Dietrich at 311.
Reardon (No 2) at [58] (Hodgson JA).
(1984) 154 CLR 404; [1984] HCA 85.
Alister at 414.
Alister at 456.
[2008] NSWCCA 65; 182 A Crim R 536 (Beazley JA, James and Kirby JJ).
(2003) 57 NSWLR 310; [2003] NSWSC 327 at [12].
[1999] NSWCCA 86 at [11]; Chidgey at [64] and [80].
Chidgey at [64]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2018

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