R (Cth) v Alqudsi

Principles

1. The applicant, being the addressee in the subpoena, has standing to set aside the subpoena as does any party to the proceedings or any person with sufficient interest. [9] The basis upon which a subpoena may be set aside pursuant to UCPR r 33.4 is well rehearsed. While there have been many statements as to the nature of an objection to a subpoena, fundamentally they are related and overlap.
2. It is clear that a subpoena, at least to a non-party, cannot be a substitute for discovery, but that ground is often misunderstood. Fundamentally, the ground involves a proposition that a third party should not have imposed upon him, her or it the task of judging whether a document relates or is relevant to issues between the parties to the litigation. [10] In the Motions before the Court, the grounds upon which the subpoena is sought to be set aside are oppression; lack of a legitimate forensic purpose; and an abuse of process.
3. The mere fact that there are a significant number of documents that are required to be produced does not, in and of itself, amount to oppression. On the other hand, if the subpoena requires production that places an excessive burden on the producing party, particularly in circumstances where the documents are only marginally adjectivally relevant to the proceedings, this may amount to oppression. [11] However, the determination of whether "an excessive burden" is being placed on the producing party must be measured in the context of the proceedings as a whole.
4. In the current proceedings, while the Crown and its investigating officers from the AFP are the Commonwealth and, technically, the Commissioner is not the Crown or instructing the Crown or providing investigating officers for the proceedings, the investigation was conducted jointly by the Commissioner and the AFP. I refer to the earlier comments relating to the duty of disclosure and the extraordinary number of documents that have been obtained in the course of those investigations.
5. Assuming for present purposes that the subpoena is sufficiently particularised and the documents serve a legitimate forensic purpose, it would seem that given the seriousness of the charges and the requirement that the accused must have a reasonable opportunity to prepare and to present his case in relation to the charge preferred, the Court should err, if it is to err at all, on the side of achieving justice and providing the accused with a reasonable opportunity to look at documents that are adjectivally relevant. A liberal approach to the principles should be adopted "…in order to ensure, so far as possible, against the risk of injustice to an accused person". [12]
6. The foregoing relies on the documents particularised in the subpoena being adjectivally relevant. That phrase is one of the descriptions used for documents that have a legitimate forensic purpose. The documents that are sought must be "apparently relevant", "adjectivally relevant" or of evidentiary value. In order for a subpoena requiring production of a document to have a legitimate forensic purpose there must be shown to be a reasonable cause to believe that the documents that have been subpoenaed have the capacity to throw some light on the issues in the proceedings. [13]
7. While it is necessary for the issuing party to demonstrate the legitimate forensic purpose for which a document is sought, most often the adjectival relevance will be obvious from the description of the document and the context of the proceedings. However, it is not legitimate to speculate or rely upon speculation that there may be material in documents which may be of assistance in the proceedings. [14] Mahoney AP, in Carroll, supra, at 181 stated that in order for a legitimate forensic purpose to be established: "…the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in litigation. It is not open to a party, as on a 'fishing expedition' to subpoena documents merely in order to determine whether they may be relevant and may be of some assistance to his case in the proceeding."
8. Lastly, there are a number of bases upon which a subpoena may be an abuse of process. Most often, it is that the subpoena is issued for a purpose extraneous to the proceedings and, in that respect, it overlaps significantly with whether the document has a legitimate forensic purpose. It is unnecessary for the Court, as presently constituted, to expound further on the principles to be applied. They were dealt with at length by the Court of Appeal in Blacktown City Council, supra, and I adopt and rely upon, with respect to the judges therein, the more complete summary of the principles.
9. One matter needs to be clarified. I accept and apply the principles adopted by the Court of Appeal in Blacktown City Council and, in particular, consider that a legitimate forensic purpose exists if the document that is sought to be produced will materially assist on an identified issue or if there is a reasonable basis, beyond speculation, that it is likely the document subpoenaed also assists. Such a test does not require that the document needs to be of material assistance to the case of the accused, in these proceedings.
10. Particularly in the case of criminal proceedings, the accused is entitled to have all material available to the Crown or that could be available to the Crown, including material available to investigating officers, relating to the case it has to meet. Obviously, that would include material that was exculpatory; but it is not so confined.
11. Further, given that the Crown is required to prove guilt beyond a reasonable doubt, material that would cast doubt on the case of the Crown is plainly of adjectival relevance and has a legitimate forensic purpose.
12. Such material would include the identity of persons who attended meetings that are said to have occurred; and any person or entity that may throw light on whether the accused was "intentionally directing" the activities of a terrorist organisation. Thus, if another person, to the exclusion of the accused, could be identified as a person who was directing the activities of the terrorist organisation, namely, the Shura, then the identity of that person is plainly adjectivally relevant and would, in ordinary circumstances, need to be the subject of disclosure by the Crown.
13. Lastly, it should be noted that this judgment and these proceedings, insofar as they deal with the setting aside of the subpoena also raise the issue of public interest immunity. However, the agitation of the issue of public interest immunity is a matter that has been separated out from the more usual grounds for the setting aside of a subpoena and will be dealt with separately from the issues with which these reasons and these orders deal.
14. In that regard, certain documents have already been produced in a form that is redacted. Some of those reductions relate to public interest immunity. Insofar as the redactions relate to public interest immunity, nothing in these reasons is intended to undermine the right of the addressee to argue public interest immunity and that objection is fully reserved.
15. However, with the exception of public interest immunity, a document that is required to be produced is not to be considered piecemeal. The document either has a legitimate forensic purpose or it does not. It is unnecessary for the issuing party in a subpoena to show or establish that every part of a document has a legitimate forensic purpose; it is necessary only to disclose that the document as a whole has such a purpose.
16. The issuing party has, as already noted, amended the Schedule after discussion with the addressee. The parties are to be commended for any compromise on those issues that has been achieved.

Detailed Rulings on Subpoena

1. I will deal with each of the contested paragraphs in categories.

Objection on the basis of legitimate forensic purpose (alternatively public interest immunity)

1. The rulings in the following category do not deal with the issue of public interest immunity. As earlier stated, public interest immunity is to be dealt with later in these proceedings. Nevertheless, the objection, in so far as it deals with legitimate forensic purpose or adjectival relevance, is dealt with in the following rulings.
2. Paragraph 1(1) deals with the surveillance device and in particular relates to Mr Alqudsi and other persons of interest. On its face it is adjectivally relevant.
3. Paragraph 1(2) is in the same category as paragraph 1. Paragraph 10 is an application for an extension of time of the warrants and is not, on its face, adjectivally relevant.
4. Paragraph 1(23) is in the same category as paragraph 1(1). To the extent that the document produced in answer to any of the paragraphs of the subpoena redacts persons of interest, the persons of interest are, on their face, such as to provide a legitimate forensic purpose. Even if that were not so, the document has a legitimate forensic purpose and there is no basis upon which the addressee is entitled to redact parts of a document on the basis of lack of adjectival relevance.
5. Obviously, as earlier stated, public interest immunity objections remain. The foregoing relates to the warrant itself. The Affidavit, in support of the warrant, if that is sought, is not applicable to the validity of warrants, and is not a basis upon which the warrant is capable of being challenged. Nevertheless, the Affidavit would detail the investigations; suspected persons; and the basis, in the early investigations, for the suspicion associated with Mr Alqudsi. Such an Affidavit is adjectivally relevant.
6. Paragraph 1(24) is in the same category as paragraph 1(10) and is subject to the same ruling.
7. Paragraph 1(25) of the Subpoena deals with an Eaglei entry for SD 4981. The matter was disclosed to the DPP by the Commissioner on 4 October 2021, with redactions. In turn, that material was disclosed to the accused on 5 October 2021.
8. In relation to the redacted material, it is said to be based upon lack of forensic purpose and, in the alternative, public interest immunity. The document itself is conceded to be one for which there is a forensic purpose. It is, in my view, impermissible to redact part of the document because some part of the document may not, by itself, have a forensic purpose or be adjectivally relevant.
9. To the extent that it is part of the one document, the document is either adjectivally relevant or it is not. The objection on the basis of lack of forensic purpose is refused. The Court will, at a later time, deal with public interest immunity.
10. The objection to paragraph 1(40) is also refused. The document, subject to any claim for public interest immunity, is to be produced. It is in the same category as the objection of paragraph 25 and the same ruling applies. That foregoing ruling applies to subparagraphs 41, 42, 43, 44, 45, 46, 47, 48, 50, 51, 52, 55, 56, 61, 62, 63, 77, 82, 83, 84, 85, 86, 88, 89, 90, 94, 95, 97, 98, 100, 101, 113, 150, 151. Each of the foregoing number references are to subparagraphs of paragraph 1 of the amended schedule to the subpoena.
11. Some of these subparagraphs recited above and upon which the Court has ruled are the subject of repeated or superfluous calls and/or requirements in the following paragraphs. Nevertheless, the foregoing ruling is applied to paragraph 3, 4, 5, 21, and 24. The objection on the basis of lack of legitimate forensic purpose is rejected and, subject to public interest immunity, the documents are to be produced.
12. Subparagraph 165 of paragraph 1 refers to an "AFP interview". This document derives from the Index of the PEQIN Operation, but the Amended Schedule does not disclose the timing of the interview; the person interviewed; or the connection of the interview to the proceedings before the Court at this time. In the absence of such information, the Court is not able to determine that there is a legitimate forensic purpose for the provision of the interview or the requirement to produce it.
13. While the following documents and their relevance or potential relevance, adjectival or otherwise, is not obvious, the documents are documents that have been disclosed in a redacted form. In those circumstances there is at least an implied concession by the Crown, and possibly the Commissioner and AFP, that the document is adjectivally relevant. The documents have been redacted for a lack of legitimate forensic purpose and for public interest immunity.
14. As earlier stated, the submission on public interest immunity will be dealt with at a later time and nothing in this decision requires the producing of an unredacted document until such time as the claim for public interest immunity has been the subject of consideration by the Court. Nevertheless, if the claim related only to a lack of legitimate forensic purpose or adjectival relevance, then the objection is rejected and documents covered by paragraphs 15, 16, 17, 18 and 23 would be required to be produced.

Other Documents and Objections

1. The remainder of the documents fit within the following categories: documents to which there is no objection as to production; paragraphs or subparagraphs for which there is nothing to produce; documents which are yet to be reviewed because of the corruption of certain CCTV footage and other storage devices; and oppression. For obvious reasons, the Court will not deal with those paragraphs over which there is no objection or for which there is nothing to produce.
2. In relation to those documents which are pending review, the Court will deal with those matters when the documents can be in a form that is capable of being produced and/or reviewed. Otherwise the only remaining objection is the objection relating to oppression.
3. The objection on the basis of oppression and, the subsidiary objection of lack of legitimate forensic purpose, covers the following paragraphs: subparagraph 87 to paragraph 1; paragraph 2; paragraph 6; paragraph 19; paragraph 20; paragraph 22; and paragraph 25.
4. As to subparagraph 87 of paragraph 1, this deals with an investigator note re-surveillance of Creswell Street. Creswell Street was an address at which the accused lived. According to the Schedule provided by the Commissioner these documents were disclosed to the DPP by the Commissioner on 4 October 2021 and, in turn, disclosed by the DPP to the accused on 5 October 2021.
5. The objection seems to relate to the meaning of the term "investigator note", which is said covers a wide range of documents. Those documents, it is submitted, may include administrative records unrelated to the investigation, other than peripherally and dealing, for example, with the storage of surveillance devices or product. I find the submission difficult to accept in circumstances where material has been disclosed to the DPP and by it to the accused. As I understand the request it is for documents, being notes taken at the surveillance of that which is directly or indirectly observed by investigators seeing or hearing an occurrence or event. It does not relate to chits or notes for the coverage of expenses, notes as to the storage of surveillance device products or the like. To the extent that it has not already been disclosed, such documents have a legitimate forensic purpose and their production is not oppressive.
6. Paragraph 2 of the schedule seeks all Eeaglei entries, without limitation. The Eeaglei is a storage facility for product of the operations to which reference has already been made. The evidence before the Court is that there are 14,703 products, including but not limited to audio-visual files, documents, reports and administrative materials held on Eaglei in respect of operation APPLEBY alone. Then there is stored on Eaglei the documents in relation to operation PEQIN and operation PEQIN/Fellows. There are 6976 products held on Eaglei in respect of operation PEQIN and PEQIN/Fellows. The evidence is that operation PEQIN/Fellows does not relate to the accused. Information respect to operation ANXION is not held on Eaglei.
7. The evidence before the Court is that some Eaglei entries in relation to operation PEQIN have already been produced to the accused, with redactions based upon public interest immunity. I reiterate the attitude of the Court to the public interest immunity issues which will be dealt with later.
8. On its face, the subpoena paragraph 2 does not, in its broad nature, involve a legitimate forensic purpose. If the document otherwise deals with matters that arise from Operation PEQIN then, invariably, they are the subject of other subpoena paragraphs. Moreover it would seem on the basis of the material and its peripheral relevance, if any, that the entries or documents that would be produced under paragraph 2 are such that the paragraph is oppressive.
9. Paragraph 6 seeks all documents outlining the procedures for the notification of security threats. It is not immediately apparent how such procedures would be relevant to anything involved in the proceedings before the Court.
10. Assuming for present purposes that the police perceived a threat from the accused and notified the targets alleged in the Crown case statement and referred to above, it is unimaginable how that notification or the procedures for such notifications would assist either the Crown or the accused in the trial.
11. Even assuming, as I do, that law enforcement agencies took a conservative view and notified security threats at a time when there was a suspicion, rather than proof, it would have no forensic purpose in any of the issues that the Court can foresee would arise in the trial. The request in paragraph 6 is rejected and the objection sustained.
12. Paragraph 19 relates to unredacted correspondence and other communications, including emails relating to notes to the effect that something of interest has been recorded in calls between the accused and his solicitor. In circumstances where a warrant has issued for the interception and/or recording of all calls relating to the accused, there will be occasions when such calls include calls between the accused and legal representatives.
13. The matter was the subject of discussion in and Carmody v MacKellar [15] . There the Full Court of the Federal Court (Black CJ, Lindgren and Sackville JJ) accepted that the proper interpretation of the relevant legislative scheme and the doctrine of necessity allowed for the situation where communications that would otherwise be legally professionally privileged could be intercepted and recorded.
14. Such communications have, in this case, not only been intercepted and recorded, but stored. This paragraph seeks, in an unredacted form, such communications in relation to those aspects of the calls that were said in communication between investigators to be "something of interest." On its face, such a document has a legitimate forensic purpose. Apart from anything else, it may invoke objection to the continuation of the trial in circumstances where investigating officers have had access to privileged information. [16]
15. The Commissioner objects to producing documents covered by paragraph 20 of the amended schedule which seeks "all unredacted investigator notes". The objection is on the basis, as is indicated from the foregoing, of oppression and a lack of legitimate forensic purpose.
16. The Commissioner submits that "investigator notes" covers a wide range of documents. [17] Notwithstanding the comments made earlier, in its present form, that which is sought in paragraph 19 of the amended schedule seeks unredacted copies of correspondence.
17. The reference to unredacted correspondence implies that it is correspondence that has otherwise been provided in a form that has been redacted. On that basis, it does not seem that the provision of those documents is oppressive and the documents, if otherwise provided, must have or be seen to have a legitimate forensic purpose. I would allow the subpoena to stand in relation to paragraph 20 on the basis of that understanding, such that it is confined to unredacted investigator notes otherwise described that have already been provided.
18. I turn then paragraph 22 of the amended schedule. The objection taken is the lack of a legitimate forensic purpose and oppression. The documents sought are all documents, reports, notes, emails explaining why there were no daily summaries completed in a particular period of two months.
19. It is not immediately apparent what the adjectival relevance of such a document would be. Moreover, although the objection has not been taken on that basis, it seems to me to require a third-party to sift through documents to determine whether a report note or other document would have the effect of explaining why no daily summaries were completed during the two month period. In my view that would be oppressive and probably fishing.
20. Lastly, I turned to the documents sought in paragraph 26. I take the same view of the use of the term "unredacted" as I have earlier in these reasons. As a consequence, the paragraph seeks unredacted versions of file notes and reports relating to each call and text message in circumstances where the call and text message has otherwise been provided in a redacted form. As such, the request is neither oppressive nor does it lack a legitimate forensic purpose. The paragraph stands and the objection is rejected.
21. The Court makes directions and/or rulings, consistent with the foregoing comment in relation to the paragraphs there considered.

Endnotes

1. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council ("Blacktown City Council") [2021] NSWCA 145.
2. R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [46] and following.
3. R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478.
4. Supra, at [77] (Bell P, with whom, relevantly, Brereton and McCallum JJA agreed.
5. Cornwell v R [2010] NSWCCA 59 at [298] (Simpson J).
6. Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142; [2018] NSWCCA 109 at [65].
7. Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85.
8. Ibid, at 456.
9. Commissioner for Railways v Small (1938) 38 SR (NSW) 564.
10. Commissioner for Railways v Small, supra; National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372 ("Waind & Hill").
11. Spencer Motors Pty Ltd v LNC Industries [1982] NSWLR 921.
12. Carroll v Attorney-General for NSW (1993) 70 A Crim R 162 at 170 per Kirby ACJ; Alister v The Queen [1984] HCA 45; (1984) 154 CLR 404 at 456 per Brennan J.
13. Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 at [34], citing Waind & Hill, supra.
14. R v Saleam (1999) 16 NSWLR 14 at 18; [1999] NSWCCA 86; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [22]; Alister v the Queen (1984) 154 CLR 404 at 414; [1984] HCA 85; Blacktown City Council, supra.
15. (1997) 76 FCR 115; [1997] FCA 839.
16. See, inter alia, Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20; X7 v Australian Crime Commission [2013] HCA 29.
17. See the earlier comments in these reasons for judgment in relation to subparagraph 87 of paragraph 1.

Amendments 13 April 2023 - Publication restriction lifted. 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: 13 April 2023