Mohareb v Office of the Director of Public Prosecutions NSW

The applicant's motion for contempt

1. On 1 February 2018, over two years before the sentence was imposed on Mr Kelso in the District Court, the applicant filed a notice of motion seeking to have Mr Kelso dealt with for contempt of court on the basis of the same assault which became the subject of the District Court criminal proceedings. Much litigation has occurred in relation to the applicant's motion in the intervening six years. Unless it is relevant to the present application for leave to appeal, we will not attempt to summarise that litigation history. The contempt proceedings are allocated to the Common Law Division of the Court: Mohareb v Kelso [2020] NSWCA 105 per Simpson AJA.
2. There are obvious issues about conducting contempt proceedings about the same subject matter as criminal proceedings which have already been concluded. As Leeming JA explained in Mohareb v Kelso (No 3) [2021] NSWCA 213: [6] … the fact that the criminal proceedings have been … brought to their conclusion has an important bearing upon the essentially punitive proceedings which are the subject of his motion, insofar as they are based on the same conduct of Mr Kelso. It is no part of this Court's role in determining this procedural appeal to express any concluded view on the merits of the motion. However, it would be as well for Mr Mohareb to consider carefully whether in substance he is seeking to bring about the result that Mr Kelso is punished twice for the same crime, and if so whether that is something which the legal system will permit.
3. Reflecting the obvious issues about conducting contempt proceedings about the same subject matter as concluded criminal proceedings, on 5 May 2023, the Attorney General of NSW apparently filed a notice of motion in the applicant's contempt proceedings seeking an order they be stayed on the principles of double jeopardy or as an abuse of process. The applicant referred to this notice of motion before the primary judge and in this Court but did not provide the Court with a copy.

The application for leave to appeal

1. Despite the applicant's draft notice of appeal seeking to impugn the conduct of a large number of past and present judicial officers of this Court and the District Court over many years, this application for leave to appeal is in a very narrow compass. Although hundreds of pages of evidence and submissions were filed by the applicant, at its heart this is an application for leave to appeal from the setting aside of part of one subpoena and the setting aside of one notice to produce addressed to the subpoena recipient in the same terms as the affected part of the subpoena. The only relevant orders sought are: 1 Grant leave to the Applicant to appeal from the whole of the decision below. 2 Set aside the primary judge's orders setting aside: a. The balance of the Applicant's subpoena to the DPP: and, b. The whole of the Applicant's notices to produce to the DPP. 3 In their place orders: a. For the DPP to comply with: (i) The balance of the Applicant's subpoena to the DPP; and with, (ii) The whole of the Applicant's notices to produce to the DPP which were set aside by the primary judge. b. For the Applicant's costs/disbursements, in this Court and in the Court below.
2. We will address the remaining orders sought in the application for leave to appeal (4 and 5) when addressing the applicant's separate claim by his Amended Notice of Motion that a warrant should be issued for Mr Kelso's arrest.
3. On 7 February 2023, Bellew J in the Common Law Division made orders, relevantly, permitting the applicant to issue a subpoena to the Office of the Director of Public Prosecutions. That subpoena was issued dated 8 March 2023 and there was compliance with part of it. On 5 May 2023, the Office of the Director of Public Prosecutions filed a notice of motion seeking to set aside the balance of the subpoena. On 15 August 2023, a notice to produce was served by the applicant on the Office of the Director of Public Prosecutions in exactly the same terms as the part of the subpoena sought to be set aside for lack of legitimate forensic purpose.
4. On 24 August 2023 Sweeney J (the primary judge) delivered reasons ex tempore: 1. setting aside part of a subpoena dated 8 March 2023; and 2. setting aside a notice to produce dated 15 August 2023 addressed by the applicant to the respondent.
5. Her Honour concluded that: It is clear that Mr Mohareb is unhappy with the DPP's conduct of the prosecution of Mr Kelso for the assault on him on 4 December 2017, and the outcome, in terms of the sentence Mr Kelso received. As a result of Mr Mohareb's dissatisfaction with that prosecution of Mr Kelso, he amended his proceedings in this Court in February this year. In those proceedings, in the Further Amended Summons, he seeks orders that Mr Kelso be further prosecuted and punished for contempt of court in respect of the 4 December 2017 incident. That may involve issues of double jeopardy, Mr Kelso having been convicted of an offence arising out of that incident. In respect of the some of the orders sought by Mr Mohareb in his further amended summons, this Court has no power to direct the DPP or Attorney-General to prosecute anyone or to grant leave to Mr Mohareb to prosecute anyone. The former is contrary to long established authority about the independence of public prosecutors. As for the orders sought that Mr Kelso be punished for contempt, it is not clear how Mr Mohareb intends to prove that. However, he has been provided with the brief of evidence the DPP had for its prosecution of Mr Kelso. Any internal document of the DPP, recording internal correspondence or decision making or reasons for decision, or the "other similar decisions" Deputy Director McGrath referred to in his letter of 2 June 2020, which he cited as a factor in his decision to abandon the Crown appeal against Mr Kelso's sentence, would not have relevance in Mr Mohareb establishing his cause of action, including his allegation of contempt. They are not simply not relevant and would have no evidentiary value. The way in which Mr Mohareb identified his legitimate forensic purpose meets the description of a classic fishing expedition. The action seeking to punish Mr Kelso for contempt could not involve any collateral attack on the DPP for its conduct of, or decision making in, the prosecution of Mr Kelso. It is impossible to discern any legitimate forensic purpose for Mr Mohareb to seek the whole of the DPP's file in relation to the prosecution of Mr Kelso other than documents with which he has already been provided, or the "other similar decisions" Mr McGrath cited in his letter. Therefore the subpoena dated 8 March 2023 issued to the DPP at the request of Mr Mohareb is set aside for lack of legitimate forensic purpose, as is the Notice to Produce dated 15 August 2023.
6. In this application for leave to appeal the applicant relied upon: 1. A White Folder containing: 1. Summons seeking leave to appeal; 2. Draft Notice of Appeal; 3. Applicant's summary of argument; 4. Sweeney J's ex tempore judgment delivered on 24 August 2023; 5. Transcript of the hearing before Sweeney J on 24 August 2023; 6. The DPP's notice of motion seeking to set aside part of the applicant's subpoena and an affidavit affirmed by Daly Chen on 2 June 2023; 7. Affidavit affirmed by Mr Mohareb on 9 August 2023; 8. The DPP's notice of motion seeking to set aside the applicant's notice to produce of 15 August 2023; 9. Three notices to produce issued by the applicant to the DPP together with transcript of the sentence proceedings involving of Mr Kelso on 13 March 2020; 10. Affidavit affirmed by Mr Mohareb on 28 June 2023.
7. A second folder was relied upon by the applicant containing an affidavit affirmed by Mr Mohareb on 22 February 2024.
8. At the hearing of the application for leave to appeal additional material was relied upon as follows: 1. Written submissions by the applicant in reply dated 10 April 2024; 2. An amended notice of motion dated 27 March 2024; 3. Email correspondence between Mr Mohareb and the ODPP and the NSW Police Force between 1-15 October 2019 that was handed up in Court on 22 April 2024; 4. An affidavit affirmed by Mr Mohareb on 8 April 2024; 5. An affidavit affirmed by Mr Mohareb on 16 April 2024.
9. We have taken all of that evidence and those submissions into account.

Consideration

1. Leave to appeal will ordinarily only be granted when the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
2. Grounds 1-3 concern the subpoena and the notice to produce.
3. In relation to the subpoena, the primary judge was plainly correct to set aside the subpoena because no legitimate forensic purpose was shown. The applicant has not demonstrated how the documents could possibly aid in determining any issue in the proceedings.
4. Bell P (as the Chief Justice then was) explained the use of the phrase "legitimate forensic purpose" in some detail in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] and [68]: [65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent. … [68] There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215 . The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.
5. The applicant's submissions seeking leave to appeal on the critical issue are summarised at page 3 of the applicant's summary of argument: I say that, in view of all the above, my contention, in support of my, above mentioned Appeal Ground (1), is that it was, our ought to have been obvious to the primary judge, that the withheld copies of the DPP's subpoenaed internal communications about the prosecution of Alexander Edward Kelso and in particular those concerning: - The criminal contempt & related charges which I had suggested to the DPP, and; - The DPPs decision to abandon its appeal from Norrish DCJ's decision. Will materially assist my case: - Either by corroborating the evidence of my 9th August 2023 affidavit and of my associated oral submissions before the primary judge, to the effect that the DPP's conduct of the prosecution against Alexander Edward Kelso, and in particular the DP P's disregard of my request that the criminal contempt & related charges be incorporated, as part of the prosecution of Alexander Edward Kelso and the DPPs decision to withdraw from the appeal proceedings against Norrish DCJ's sentence, were, as I assert they were, negligent, incompetent and intentionally tortuous to me, and that this affected the validity and/or fairness of the original trial, in which case the withheld copies of the DPP's subpoenaed internal communication would be relevant to & would assist me in countering any reliance by the Attorney General on double jeopardy as a ground to have my summons summarily dismissed, on the basis that it is purportedly, an abuse of process. - Or, alternatively and on the contrary, by substantiating & vindicating the DPPs above-mentioned decisions, in which case, this would have to prompt my own decision as to whether or not I myself should consider abandoning my pursuit of my present summons against Alexander Edward Kelso.
6. These submissions demonstrate, conclusively, the absence of any legitimate forensic purpose. The primary judge was undoubtedly correct in concluding that the applicant's action seeking to punish Mr Kelso for contempt could not involve any collateral attack on the DPP for its conduct of, or decision making in, the prosecution of Mr Kelso. Any evidence supporting the assertion that the DPP was "negligent, incompetent and intentionally tortuous" could have no bearing on the applicant's contempt proceedings against Mr Kelso.
7. The applicant emphasised in his oral submissions that the internal communications of the ODPP are allegedly relevant not only to his contempt charge against Mr Kelso but also to "countering any reliance by the Attorney General on double jeopardy as a ground to have my summons summarily dismissed, on the basis that it is purportedly, an abuse of process".
8. The documents sought by the subpoena are equally irrelevant to any claim by the Attorney General that the applicant's contempt proceedings amount to double jeopardy or are otherwise an abuse of process. As Gummow and Hayne JJ (commanding a majority of the Court) in Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30 explained: [49] No doubt a plea in bar is available if the offence charged second is the same offence as was the subject of an earlier conviction or acquittal. But the pleas in bar are not confined to cases of identical charges. As was noted in Pearce, Li Wan Quai expressed the relevant test (as did other earlier cases) as being whether the first prosecution was for an offence "substantially the same" as the second offence charged. Expressing the test in this way presented further questions. In particular, what was meant by "substantially the same"? As the course of United States' decisions reveals, to treat the test of "sameness" as requiring identity (or substantial identity) between the evidence that had to be led in support of the two charges produces a rule that is unstable in application. Rather, as the course of decisions in this Court, up to and including the decision in Pearce, reveals, the relevant test must be framed by reference to the elements of the offences under consideration. But recognising that the test of "sameness" requires examination of the elements of the two offences in question, rather than of the evidence that may be offered in proof of each, does not reveal the extent of the overlap that is to be required if the test is to be met. Rather, to identify the content of the test of "sameness" of two offences, when expressed by reference to the elements of those offences, it is necessary to consider the principles and values that underpin both the availability of a plea in bar of autrefois acquit and the application of an analogous principle in cases in summary jurisdiction. … [52] The values embraced by notions of double jeopardy require that autrefois acquit and analogous principles are given no narrow operation. In particular, neither the plea in bar nor the analogous principle applied in summary jurisdiction is to be confined to precluding the prosecution from controverting one or more elements of an offence charged first where the elements of that first offence are wholly included in the second…. (footnotes omitted)
9. In addressing the question of whether the first prosecution, the criminal case resolved in the District Court, was for an offence "substantially the same" as the second offence, the applicant's contempt proceeding, "requires examination of the elements of the two offences in question, rather than of the evidence that may be offered in proof of each". We reject the assertion that any "evidence" the ODPP allegedly acted negligently, incompetently and intentionally tortuously towards the applicant in the course of Mr Kelso's prosecution could possibly be relevant to the issue of double jeopardy.
10. We also reject the applicant's claim that the documents sought are apparently relevant to the Attorney General's claim of abuse of process. In Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, the High Court explained the operation of the doctrine of abuse of process as it applied to criminal proceedings. Mason CJ, whist emphasising that the concept of abuse of process should not be unnecessarily confined, cited Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 as establishing that: "[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings."
11. The Attorney General's motion in the present case apparently seeks to contend that the applicant's contempt proceedings seek to "litigate anew a case which had already been disposed of by earlier proceedings". We reject the assertion that any "evidence" about the conduct of the ODPP in the course of Mr Kelso's prosecution could possibly be relevant to the issue of an abuse of process by the applicant in prosecuting the contempt motion.
12. In relation to the notices to produce, there were three. As to the first notice, it was in identical form to that part of the subpoena set aside by the primary judge seeking "Copies of the 'additional similar cases' which the Deputy Director of Public Prosecutions, Mr. Peter McGrath refers to in his 2nd June 2020 letter with ODPP reference number 201717404, copy of which is annexed to this Notice to produce". The considerations that apply to the setting aside of subpoenas are generally applicable to notices to produce: Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [34]-[38] (per Ward CJ in Eq). For the same reasons as already given, the decision of the primary judge to set aside the notice to produce as not disclosing a legitimate forensic purpose was plainly correct.
13. As to the second notice to produce, the applicant complained that compliance by the ODPP was belated, but accepted the documents sought had been produced. No error has been shown in the way the primary judge dealt (or did not deal) with this notice to produce. There is no utility in granting leave in relation to a notice to produce which has been complied with, even if belatedly.
14. As to the third notice to produce, the applicant submitted that the recipient had informed him that they had complied with its terms. There was no evidence that this statement by the ODPP was not correct. There is no occasion to grant leave to appeal to address this issue as no arguable error has been shown on the part of the primary judge.
15. No issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable has been shown. Leave to appeal on grounds 1-3 should be refused. Even if leave had been granted, that leave would not have extended to the applicant's draft notice of appeal which addressed completely different and irrelevant matters.

The applicants amended notice of motion on 27 March 2024 and proposed orders 4 and 5 of the application for leave to appeal

1. On 27 March 2024, orders for substituted service of an amended notice of motion (filed 7 March 2024), seeking the issue of an arrest warrant for Mr Kelso under Part 55 r 10, were made by Griffiths AJA: Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68. The issue of an arrest warrant under Part 55 r 10 for Mr Kelso had been also sought by proposed order 4 in the application for leave to appeal.
2. Courts have repeatedly emphasised the need for strict compliance with the procedural requirements in establishing an alleged contempt of court: D Rolph, Contempt (2023, Federation Press) at 756 and the cases there cited. The need for strict compliance with procedural requirements when dealing with allegations of contempt was recently again emphasised in Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [90]-[95] (per Kirk JA).
3. We respectfully disagree with Griffiths AJA that this was an appropriate case to permit substituted service to address the issue of an arrest warrant under Part 55 r 10. Simply put, there was no evidence of strict and formal compliance by the applicant with the requirements of Part 55 of the Supreme Court Rules 1970 (NSW). The requirements for clarity and formality exist not only to serve the end of procedural fairness. They also serve the purpose of ensuring that such matters will not be lightly raised: Matthews v ASIC [2009] NSWCA 155 at [41] per Tobias JA. The primary judge was correct to refuse to countenance an informal application for the arrest of Mr Kelso. An application for leave to appeal from the orders of the primary judge is not an appropriate occasion to permit an applicant to seek orders for the arrest of a person.
4. Nevertheless, the order of Griffiths AJA for substituted service having been made, we will deal with the applicant's claim that the issue of an arrest warrant for Mr Kelso under Part 55 r 10 is warranted.
5. The applicant sought to have Mr Kelso arrested pursuant to Part 55 r 10 of the Supreme Court Rules, which states: 10 Arrest Where - (a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt, and (b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court, the Court may issue a warrant for the arrest of the contemnor and his detention in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security in such manner and in such sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgment or order of the Court.
6. We will assume, without deciding, that Part 55 r 10(a) has properly been complied with. This is an assumption favourable to the applicant, noting that in the area of contempt precision in formulation of a charge is critical: Inghams Enterprises Pty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155, at [32]-[34].
7. The central question on the present application is whether the requirements of Part 55 r 10(b) have been met. Part 55 r 10(b) requires proof, on the balance of probabilities, that the alleged contemnor is likely to withdraw or abscond from the jurisdiction. In Court of Appeal, Registrar of v Ritter (1985) 34 NSWLR 641 at 644, Kirby P explained that although "abscond" and "withdraw" have separate meanings, both involve leaving NSW. His Honour said: Some meaning must be given to this additional clause. "Abscond" implies fleeing the jurisdiction, in order, by inference, to avoid the punishment which might follow from a proved contempt. What kind of "withdraw … from the jurisdiction" is implied differently to "abscond"? It was suggested, in argument faintly, that "withdrew - from the jurisdiction of the Court" included withdrawal from the power of the Court to make an order binding on the defendant; for example, by refusing to attend in the endeavour to frustrate the power of the Court to proceed with the Registrar's summons. But there are two answers to this contention. First, it is not the case that the defendants, by their failure to attend, frustrate the proceedings. Nor is this contended in the plaintiff's summons. On the contrary, the summons warns the defendants that the proceedings will continue in their absence. Secondly, meaning must be given to the word "jurisdiction" in a way compatible with the word abscond. Just as "abscond" implies leaving the "jurisdiction" of New South Wales I take "withdrew … from the jurisdiction" to mean leaving New South Wales in circumstances that would not amount to abscondment. Thus, were it to be established that the defendants were preparing to leave New South Wales to return to Romania because of fear of the present proceedings, such facts would attract the jurisdiction of the Court on the grounds of likely abscondment. Were they to be leaving Australia simply because they had changed their minds about their migration, that would amount to "withdrawal". There is not the slightest evidence of either. Accordingly this rule does not apply.
8. In Part 55 r 10(b) "likely" means more probable that not. A temporary absence from NSW, such as for the purposes of conducting business overseas or a holiday, does not amount to evidence of a person likely absconding or withdrawing from the jurisdiction: Schnabel v Lui (2002) 56 NSWLR 119; [2002] NSWSC 1184.
9. We have considered all of the evidence and submissions relied upon by the applicant for the purposes of the notice of motion, including the submissions made to Griffiths AJA which the applicant referred to in his oral address before us. There is not the slightest reason in the evidence or submissions to conclude that Mr Kelso is likely to "abscond" or otherwise "withdraw" himself from the NSW. No basis has been shown by the applicant for the application of the power of arrest under Part 55 r 10.
10. The evidence, at its highest, demonstrates that the applicant has faced difficulties in serving various documents upon Mr Kelso and that Mr Kelso has apparently taken steps to avoid being contacted by or on behalf of the applicant. The evidence demonstrates the applicant's agents have located Mr Kelso's residence and workplace. Other than evidence of a one-week holiday in Queensland some time ago, there is no evidence that Mr Kelso has ever left NSW, much less that he plans to abscond or otherwise withdraw from the jurisdiction.
11. It simply does not follow from the applicant's non-attendance at this (or any other) hearing and the associated difficulty faced by the applicant in serving documents on Mr Kelso that there is any evidence that that that Mr Kelso plans to abscond or withdraw, or has already absconded or withdrawn, from the jurisdiction as those terms are understood in law as explained by Kirby P in Ritter.
12. The amended notice of motion must be dismissed, with costs. No basis has been shown to justify the arrest of Mr Kelso under Part 55 r 10. For the same reason, leave to appeal on proposed ground 4 should be refused. No arguable basis has been shown warranting the arrest of Mr Kelso, much less that there was an error by the primary judge in failing to deal with the applicant's informal application that a warrant for the arrest of Mr Kelso issue.
13. Leave to appeal on proposed ground 5 should also be refused. No basis whatever for making either orders 5(a) or 5(b) was shown. There is no basis shown, or legal principle identified, justifying any charge being levelled against Mr Kelso and no basis in fact or law shown for the referral to the Independent Commission against Corruption of any person.

Orders

1. For the foregoing reasons the Court makes the following orders: 1. Leave to appeal dismissed. 2. Amended notice of motion filed on 27 March 2024 dismissed. 3. The applicant pay the respondent's costs of the application for leave to appeal and the costs of the motion dated 7 March 2024 and the amended notice of motion filed 27 March 2024.

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