Plaintiff v Defendants

"(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from any telecommunications service that the person is using, or is likely to use, would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved ..."

"I am satisfied, on the basis of the information given to me by the applicant agency, that:

(a) Division 3 of Part IV of the Act has been complied with in relation to the application;

(b) there are reasonable grounds for suspecting that the named person is using, or is likely to use, more than one telecommunications service; and

(c) information that would be likely to be obtained by intercepting, under a warrant, communications made to or from any telecommunications service that the named person is using, or is likely to use, would be likely to assist in connection with the investigation by the agency of the following class 1 offences, in which that person is involved:

• Conspiracy to import a prohibited import, namely amphetamine or precursors used in the clandestine manufacture of amphetamine, contrary to s.223B(1)(b) and s.233BAA of the Customs Act 1901 (Cth); and

• Conspiracy to possess a prohibited import, namely amphetamine or precursors used in the clandestine manufacture of amphetamine, which are reasonably suspected of having being imported into Australia contrary to s.11.5(1) of the Criminal Code Commonwealth and s.233B(1)(c) of the Customs Act 1901 (Cth)

Being offences in relation to which the Australian Crime Commission is conducting a special investigation within the meaning of the Australian Crime Commission Act 2002 (Cth)."

8 The warrants went on to recite the factors to which the AAT member was required to have regard by s.45A of the Act.

9 The applicant contends that notwithstanding the warrants were sought in relation to class 1 offences an investigation was conducted into the alleged involvement by the plaintiff and the co-accused in the cultivation of cannabis. Cultivation of cannabis is neither a class 1 offence nor a class 2 offence. An investigation into trafficking in cannabis is however an investigation into a class 2 offence. Nothing in the material obtained pursuant to the intercepts and produced as evidence against the plaintiff refers in any way to amphetamines. No charges of the type referred to in the warrants have been laid against the plaintiff. Repeat applications were made for the warrants in circumstances where the previous intercepts gave rise to an expectation that evidence of cannabis-related activity would be produced. The matters which the AAT member was required to have regard to under s.45A were specific to class 1 offences. Different considerations apply with respect to class 2 offences pursuant to s.46 and s.46A of the Act.[1]

10 On 15 November 2005 the criminal proceeding against the plaintiff was listed before the trial judge for the purpose of preliminary submissions regarding the admissibility of the intercept materials relied upon by the prosecution in its case against the plaintiff. Prior to the hearing a subpoena duces tecum was served on the ACC seeking production of the affidavits sworn and relied upon by the ACC in support of the application for the telephone intercepts warrants.

11 When the matter came before the trial judge the ACC sought to have the subpoena set aside on the grounds that the plaintiff had not shown a 'a legitimate forensic purpose' for the production of the material but was engaging in a 'mere fishing expedition'. The ACC also indicated that in the event that the subpoena was allowed to stand, it would contend that it was entitled to raise public interest immunity in relation to the affidavit material. After hearing argument the trial judge upheld the primary submission of the ACC and set aside the subpoena giving written reasons for his decision.

12 Such reasons constitute part of the record of the court by virtue of s.10 of the Administrative Law Act 1978.

13 The central submission made on behalf of the plaintiff to this Court is that the trial judge applied an incorrect test in determining whether the plaintiff had a 'legitimate forensic purpose'.

Fragmentation of Proceedings

14 It is submitted on behalf of the Director of Public Prosecutions that this Court should not enter into the question of the correctness of the trial judge's ruling because it would result in the fragmentation of proceedings. I accept as a general rule a criminal trial should not be fragmentated save in exceptional circumstances[2].

15 In the present case however;

(a) the accused has not been placed in charge of a jury;

(b) the trial judge's ruling is conclusive of the issues between the plaintiff and the ACC;

(c) the trial judge's ruling related to a matter properly and conveniently dealt with by way of preliminary ruling before the commencement of proceedings before the jury;

(d) the evidence in issue is acknowledged by prosecuting counsel to be central to the prosecution case;

(e) the evidence in issue gives rise to what appears to be a relatively strong prosecution case;

(f) there are substantial factors of efficiency and convenience favouring the resolution of the challenge to the ruling made by the trial judge before the trial proper commences; and

(g) there are numerous cases in which the Federal Court has reviewed a decision with respect to validity of warrants, rather than allowing the matter to be left to the trial judge of a criminal proceeding Oates v Williams[3].

16 In my view it is proper to entertain the plaintiff's application for judicial review at this point in time having regard to the above circumstances.

Legitimate Forensic Purpose

17 The subpoena in issue was set aside on the basis that the trial judge was satisfied that it had no legitimate forensic purpose.

18 There is no dispute that if he were properly so satisfied it was in turn proper for him to set aside the subpoena.

19 Further the fundamental factual framework in which the matter falls to be considered is not an issue. I have already set out the critical statement of facts contained on the face of the warrants. The trial judge stated:

"For the purposes of this application, I accept that during the currency of the first warrant information was obtained fortuitously in relation to the cultivation and trafficking within Victoria of cannabis by the defendant. Notwithstanding this, identical warrants were obtained on 4 July and 30 September 2003. That is, they made no reference to cannabis or another class 2 offence. Class 1 and 2 offences are defined in s.5 of the Act. Warrants concerning class 1 offences fall to be dealt with under s.45 of the Act and class 2 offences under s.46 of the Act."

Further it was conceded that no charges in relation to class 1 offences have yet been made against the plaintiff.

20 The trial judge's conclusions as to the fortuitous obtaining of information in relation to cannabis were open to him having regard to the evidence of officers of the ACC given at the committal hearing relating to the plaintiff.

21 Non compliance with the provisions of the Act may render inadmissible evidence of the results of the intercepts in issues.

22 Section 7 of the Act prohibits the interception of communications over a telecommunications system, subject to certain exceptions. The exception relevant to this proceeding is s.7(2)(b) ie under a warrant.

23 Section 63 prevents, subject to Part VII of the Act, the giving of evidence in any proceeding of both lawfully obtained information and information obtained in breach of s.7 of the Act.

24 Section 6E provides that lawfully obtained information is information obtained other than that obtained in contravention of s.7(1).

25 Section 74(1) permits the giving of evidence of lawfully obtained material in an exempt proceeding.

26 Section 5B(a) includes in the definition of exempt proceedings, a proceeding by way of prosecution for a prescribed offence.

27 Section 5 defines prescribed offence as including an offence punishable by imprisonment of at least three years. Each count on the presentment is a prescribed offence.

28 Section 74(2) provides that the issue of whether the communication was intercepted in contravention of s.71(1) is to be dealt with on the balance of probabilities.

29 The combined effect of s.63 and s.74(1) means non compliance with the legislation renders the product of the intercepts unlawful and inadmissible as evidence.

30 Further non compliance with the Act on the basis here in issue might give rise to questions of discretionary exclusion on a Bunning v Cross[4] basis.

31 As the Trial Judge expressly acknowledged, by reference to the leading authorities, a warrant will not be issued in accordance with s.46A if its evidentiary basis is vitiated by fraud, misrepresentation, or a lack of good faith.

32 His Honour cited the decision of the Full Federal Court in Price v Elder[5]:

"A warrant issued as a result of fraud or misrepresentation by an applicant is liable to be set aside. Further, an applicant for a warrant must act in good faith. A statement that is a half-truth, and thus misleading, may be treated as a misrepresentation such as to affect the validity of a warrant issued on the basis of that misrepresentation ... However, nothing has been advanced that would justify a finding that there has been fraud or misrepresentation in the present matters.

Failure to take into account a relevant consideration can only be made out as a ground of review of an administrative decision if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act. Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statutes some implied limitation on the factors to which the decision-maker may legitimately have regard. Where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd."[6]

33 In so saying however it is clear that it is not open to the plaintiff to simply challenge the sufficiency of the material on the basis of which the warrant was granted.[7]

34 In the present case it is submitted there is a real possibility that the warrants were issued in breach of s.45A. As the trial judge recorded:

"Mr Clelland submits that on the face of the warrants, or at least the second and third warrants, it appears that no mention was made of the cannabis offences when the warrants were applied for, otherwise, he says, they would have referred to it, and no separate warrants have been issued in relation to the cannabis investigations. He argues that this raises the question of whether the issuing officer was misled and, therefore, it is necessary to examine the affidavits to see just what material was put before the issuing officer."

35 Counsel for the plaintiff further submitted to the trial judge that in these circumstances it was 'on the cards' that the affidavits would materially assist the offence and that this was sufficient to establish a legitimate forensic purpose. Again as the trial judge recorded;

"He accepts that he must show a legitimate forensic purpose and he relies on Alister's case, a decision of the High Court...[8] and in particular the decision of the Chief Justice recorded at page 141. The test laid down by his Honour there was '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.'"

36 His Honour went on to record that there was no real case with respect to the first warrant in so far as it would appear that that particular warrant fortuitously turned up information relating to cannabis. In my view this conclusion was clearly open to his Honour and it was not submitted otherwise to me.

37 His Honour rejected the submissions made on behalf of the plaintiff for three reasons:

(a) there was no evidence of fraud;

(b) the presumption of regularity applied; and

(c) there was no evidence of misrepresentation.

38 He ultimately concluded:

"... in my view nothing has been put other than conjecture to suggest fraud, misleading conduct or misrepresentation, and in the end I am satisfied that this really does come down to a fishing expedition."

39 It was submitted on behalf of the ACC before me that not only was this conclusion open to his Honour but that it was correct. Attention was drawn to s.12(1) of the Australian Crime Commission Act (2002). This provides that where the ACC in carrying out an investigation obtains evidence of an offence against a law of a State which would be admissible in a prosecution for the offence, the ACC must give such evidence to the relevant law enforcement agency. It was submitted that this provision explained the disjuncture between the apparent purpose of the warrant and the material relied upon by the prosecution in this case. More particularly it was submitted that there is no necessary nexus between the subject matter of the warrant and the material produced to a State agency pursuant to this statutory scheme. It was further submitted that the evidence of ACC officers at the committal supported his Honour's conclusion that there was nothing to suggest fraud, misleading conduct or misrepresentation and that the presumption of regularity applied to the warrants in issue.

The Test

40 In my view his Honour was clearly correct in concluding that there was no evidence before him from which fraud, misrepresentation or a lack of good faith could positively be inferred.

41 It seems to me however that in testing the question of legitimate forensic purpose against this evidentiary question his Honour placed the bar too high.

42 In Alister's case the court considered the requirement for a legitimate forensic purpose in with the context of a court's power to inspect documents for which a public interest immunity is claimed. Gibbs, C.J. considered the requirement that there be 'some concrete ground for belief which takes the case beyond a mere 'fishing expedition''[9].

43 His Honour stated:

"... the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. 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. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery for only that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, it would be likely to give rise to the approach that justice had not been seen to be done"[10].

44 Murphy, J. agreed with Gibbs, C.J.[11].

45 Brennan, J. forming the third member of the majority on this point[12] stated that:

"The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial to which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum... Of course, the applicants did not know and do not know now whether ASIO have possession of any document admissible in aid of the defence case, but the right to compulsory process cannot be dependent upon the party's ability to prove the existence and content of a document when the party has reasonable grounds to believe that the document exists and seeks to obtain it by subpoena. That would eviscerate the right and limit its enforcement to occasions when the party already has in his possession secondary evidence of the original document the production of which the subpoena is intended to secure"[13].

46 He further stated after referring to Air Canada v Secretary of State for Trade[14]

"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 case. 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. The procedural safeguards are neither easy to define nor simple to apply. On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest. It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way..."[15].

47 In Saleam[16], Hunt, J. emphasised the need for counsel for the accused to identify expressly and with precision a legitimate forensic purpose for which access is sought to documents. He further held that the criterion finally suggested by Gibbs, C.J. in Alister is appropriate to be applied when a trial judge has to determine whether access should be granted to documents subpoenaed in relation to which objection has been taken that no forensic purpose exists for their production. The trial judge must be satisfied that 'it is on the cards' that the documents would materially assist the accused in his defence. I respectfully agree. In R v Mokbel[17] Gillard, J. emphasised the significance of the power to subpoena in criminal matters and at [38]-[41] he applied the same test

48 In RTA v Connolly, Adams, J. referred to judicial consideration of the phrase 'on the cards'. He observed:

"With respect, it seems to me that this area of the law is bedevilled with metaphors. I think the essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case ,as it seems to me, that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified." [18]

49 There is much to be said for these observations but the test to be applied remains that stated by Gibbs, C.J. in Alister.

50 In the present case:

(a) the character of the documents in issue has been precisely identified;

(b) the legal purpose for which the documents are sought has been clearly articulated;

(c) if the affidavits in question established a basis for setting aside the warrants as invalid this would have fundamental evidentiary consequences for the trial;

(d) the comparison between the stated basis on which the warrants were issued and the sequential intercepted material produced, raises a possibility either that:

(i) the AAT was materially misled as to the purposes of the application; or

(ii) that evidence upon the basis of which a warrant could validly issue for class 1 purposes was tainted by bad faith;

(c) the possibility that the subpoena may disclose material evidence is not merely hypothetical;

(d) the circumstances are sufficient to establish that it is 'on the cards' the affidavits may materially assist the plaintiff's defence;

(e) the case is not one in which the plaintiff is simply 'fishing'.

51 It follows that I am satisfied that his Honour erred in law by requiring evidence which would at this stage provide the basis for a positive inference of fraud, misrepresentation or lack of good faith. As Gibbs, C.J. said in Alister "it would not be right to refuse this disclosure simply because there were no grounds for finding the report could assist the accused". Further as Brennan, J. observed in Alister the right to subpoena material would be eviscerated if independent proof of the matters sought to be proved by subpoena were required.

52 It is sufficient in a criminal proceeding if the material before the court gives rise to a possibility which is not merely hypothetical, but sufficiently reasonable having regard to the circumstances as a whole, to justify production of documents because it is "on the cards" they will materially assist the defence.

53 Accordingly I propose to quash the trial judge's order with respect to the latter two warrants in issue. I do not propose to make consequential orders. I have no reason to doubt his Honour will proceed with the matter according to law.

54 Nothing I have said should be taken to pre-judge the question of public interest immunity which remains outstanding.

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[1] Carmody v Mackellar and Ors (1997) 76 FCR 115.

[2] See EGR v Iorlano [1983] HCA 43; (1983) 151 CLR 678.

[3] [1998] FCA 775; (1998) 84 FCR 348 at 361

[4] [1978] HCA 22; (1978) 141 CLR 54.

[5] [2000] FCA 133; (2000) 111 ACrimR 11

[6] Pp13-14

[7] Ousley v The Queen (1997) 192 CLR 69, per Toohey J at 79-80, McHugh J at 103, Gummow J at 126-127.

[8] 1983 154 CLR 404.

[9] Cf. Lord Wilberforce in Air Canada v Secretary of State for Trade 1983 2AC 394 at 439.

[10] At 414.

[11] At 431.

[12] Wilson and Dawson, JJ. dissented at 439.

[13] At page 451.

[14] Above.

[15] Page 456.

[16] (1989) 39 A Crim R 406

[17] [2005] VSC 410

[18] [2003] NSW SC 327 at [12]