R v Rogerson; R v McNamara

Supreme Court of NSW|2015-05-20|Before: Bellew J

INTRODUCTION

Glen Patrick McNamara and Roger Caleb Rogerson have each pleaded not guilty to (inter alia) the murder of Jamie Gao on 20 May 2014. It is not necessary for present purposes to set out the Crown case against the two accused. It is summarised in a previous judgment: R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [7].
On 24 April 2015 the solicitor for the accused McNamara caused a subpoena to be issued to the Proper Officer of the Australian Crime Commission ("ACC") seeking production of (inter alia) the following: "For the period of 1 January 2013 to date and in relation to: 1. JAMIE GAO (dob 27/11/1993) 2. LOCK CHUN LAM (dob 23/12/1990) 3. CHUN KIT LAM (dob 15/08/1992) 4. YUEN WING CHEUK (AKA WING JAI) 5. SHUN YIP CHAN 6. KAI TAK PHUNG Relating to any matter of violence including but not limited to kidnapping and assault, possession and/or use of a firearm and/or offensive weapon or offensive implement, possession and/or supply and/or importation of prohibited drugs or precursor chemicals: a. All intelligence reports and intelligence assessments made by or in the possession custody or control of the Australian Crime Commission; b. Transcripts of examination conducted by the Australian Crime Commission; c. Records of interview; records of conversation conducted by the Australian Crime Commission officers, servants or agents; d. Telephone intercept warrants and transcripts of recorded telephone calls, listening device warrants and transcripts of recordings made by listening device; e. Records of communication including electronic communication between the Australian Crime Commission and NSW Police, Australian Federal Police, NSW Crime Commission, Australian Customs Service, Department of Immigration and Border Protection, INTERPOL, and any law enforcement agency located in Hong Kong or the People's Republic of China."

THE EVIDENCE

In support of the notice of motion the ACC read an affidavit of Warren Gray, the Acting Executive Director of Operations, sworn 8 May 2015. Although there was no objection to that affidavit, counsel for the accused indicated that he wished to cross-examine Mr Gray. That course was objected to by the solicitor for the ACC and I heard submissions from both parties in respect of that issue.
As events transpired, the submissions made by the parties went substantially beyond the issue of whether cross-examination of Mr Gray should be permitted, and extended to the broader, and more fundamental, question of whether the subpoena should be set aside having regard to the provisions of s. 51(3)(b) of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The parties agreed that they would rely upon their respective submissions in respect of both issues, such that if I conclude that the cross-examination of Mr Gray should not be permitted, I can then proceed directly to the question of whether the subpoena ought be set aside.
The salient parts of Mr Gray's affidavit are in the following terms (commencing at paragraph (10)): "10. Subsection 51(3) of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") provides that members of staff of the ACC (among others) shall not be required to produce documents that have come into their custody or control in the course of, or by reason of, the performance of their duties under the ACC Act in any court, except in the circumstances set out in that subsection. 11. In terms of facts relevant to the considerations set out in that subsection I say as follows: 11.1 Such documents and other things in my custody and control that are or may be within the scope of the Schedule to the Subpoena have come into my custody and control in the course of or by reason of the performance of my duties under the ACC Act. 11.2 The ACC is not a party to the present proceedings other than through receiving the subpoena. Nor are any of the CEO of the ACC, the acting CEO of the ACC, a member of the Board of the ACC, or an examiner in his or her official capacity, a party to the present proceedings. 11.3 In terms of subsection 51(3)(a) of the ACC Act, I am not aware of any circumstances which would mean that it is necessary to produce the documents required by the subpoena to carry into effect the provisions of a "relevant Act" (as that term is defined in subsection 51(4)). The present proceedings against the Accused in this Court are not proceedings being conducted under a "relevant Act". 11.4 In terms of subsection 51(3)(b) of the ACC Act: 11.4.1 there was no investigation or operation, or joint investigation or joint operation, being conducted by the ACC on 20 May 2014 (the date of the alleged offences) in relation to either the Accused or the co-accused, or their relationships with Jamie GAO or the other persons named in the subpoena. 11.4.2 since 20 May 2014, the ACC has conducted no investigation or operation, or any joint investigation or joint operation, in relation to either the Accused or the co-accused, or their relationships with Jamie GAO or the other persons named in the subpoena. 11.4.3 there has been no investigation or operation, or any joint investigation or joint operation, conducted by the ACC in relation to the drug offences alleged to have been committed by either the Accused or the co-accused on 20 May 2014. 11.4.4 the ACC has had no involvement in the institution of the present prosecutions against either the Accused or the co-accused. 11.4.5 So far as I am aware, the prosecution of the Accused has not been instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions."
The accused relied upon an affidavit of his solicitor, Hudson Lu, of 11 May 2015. Although the solicitor for the ACC objected to that affidavit on the grounds of relevance, he accepted that it would be necessary for me to read it for the purposes of determining that question.
In paragraph 2 of his affidavit, Mr Lu stated the following: "In response to the notice of motion filed by the Australia (sic) Crime Commission (ACC) to set aside the subpoena issued on (sic) request of my client, I conducted internet research over ACC's involvement with Jamie Gao as I remembered that there were news articles published previously relating to the issue. I also reviewed the documents produced under subpoena's to various parties and brief served over (sic) the proceedings".
The affidavit of Mr Lu annexes a number of documents including articles downloaded from the internet. The contents of those documents may be summarised as follows.
On 2 June 2014 an article under the heading "Murder victim Jamie Gao had been called to give evidence at the Australian Crime Commission" was published in the Daily Mail on line. The article (which is annexure A to Mr Lu's affidavit) contained the following: "Murder victim Jamie Gao had been called to give evidence before a secret hearing at the powerful Australian Crime Commission in the weeks before his death. The commission, the country's peak intelligence gathering agency, took the unprecedented step last week of issuing a statement to deny Gao had been acting as one of their informants when he allegedly delivered $3 million of methamphetamine to former detectives Roger Rogerson and Glen McNamara. … However, the Commission said yesterday it had "nothing to add" when asked whether and why Gao had been recently questioned by ACC investigators at its Sydney headquarters. It has been revealed Federal Police had been watching Gao since 2011 as a suspected drug importer".
On 2 June 2014 another article appeared on the www.news.com.au website. That article is annexure B to Mr Lu's affidavit and is headed "Jamie Gao 'was in secret talks with police': Claim that murdered Sydney student had been called to give evidence at Australian Crime Commission before he was shot to death over drug deal". The article goes on to state (inter alia) the following: "Murdered Sydney student Jamie Gao was reportedly in 'secret talks with police' in the weeks before he was killed. The 20-year-old had allegedly been called to give evidence before the Australian Crime Commission, the country's peak intelligence-gathering agency. When asked why Mr Gao was recently questioned by ACC investigators at its Sydney headquarters, the commission said it had 'nothing to add', The Daily Telegraph claims. … Federal Police have publicly denied claims that Mr Gao, who is thought to have been caught up in a Hong Kong - based Asian organized crime group, was acting as an informant when he delivered $3 million of methamphetamine to former detectives Roger Rogerson and Glen McNamara. Mr Gao had reportedly told his close friends about the hearing but the commission has denied these claims. On Saturday, it was revealed Federal Police were watching over murdered student Jamie Gao for a staggering three years before his death. … It is believed Mr Gao was caught up in organised crime group, at the same time as living an active social life and being loved-up with his new girlfriend."
Annexure C to the affidavit of Mr Lu is an extract from a statement obtained by police from Mathew Lo, paragraph (12) of which is in the following terms: "I am aware that the Australian Crime Commission raided Jamie's house, I think just before he went to Hong Kong. I don't know exactly when this occurred, it could have been the end of last year. Jamie did not tell me much about why they raided his house, other than they found some boxes of mobile phones and a small bag of cocaine. I don't know anything else about this matter but I am aware Jamie has a current court matter for some assault at a park or something."
Annexure D to the affidavit of Mr Lu is an extract from a NSW Police "COPS" event dated 19 May 2012. The narrative of that event relates to two persons, Chun Lok Lam and Chun Kit Lam (to whom I shall refer for convenience as "the Lams"). The document reads (in part) as follows: "About 8:25am on the 19 May 2012, police from the Asian Crime Squad with assistance from the Australian Crime Commission executed search warrant 350/2012 at the residence of 28 Miriam Road, Denistone. A search of the premises identified $36,600.00 in Austrlian (sic) Currency in the room of Chum Lok Lam and additional $25,100.00 was located in the room of Chun Kit Lam. Both Chun Lok Lam and Chun Kit Lam were arrested and conveyed to Ryde Police Station where they refused to be interviewed. Both Chum Lok Lam and Chun Kit Lam were charged with Dealing with the Proceeds of Crime and Receiving Material Beneifit (sic) derived from Criminal Activites (sic) of Criminal Groups. Checks conducted with the Department of Immigration and Citizenship (DIAC) identified that Chun Kit Lam and another occupant of the residence, Shuyuan He were unlawful non-citizens in Australia. Shuyuan He was also taken into custody and transferred into the custody of the Department of Immigration and Citizenship."
In April 2014, the Lams were each sentenced to terms of imprisonment in respect of a charge of supplying a large commercial quantity of a prohibited drug. Appeals brought by each of them to the Court of Criminal Appeal in respect of their respective sentences were unsuccessful: Lam v R; Lam v R [2015] NSWCCA 87.
Counsel for the accused also tendered a copy of a statement of agreed facts pertaining to the prosecution of the Lams. Counsel relied, in particular, on the contents of paragraph (12) of that document which is in the following terms: "About 4:35pm on 9 May 2012, Lawfully Intercepted Information (LII) reveals a conversation between Loc LAM and a female, where Loc LAM expressed concern that Kit's fingerprints will be identified at the Wolli Creek Premises and that Kit needs to "hide" (BJ-referenced as WANG in the facts): "F: Hello? Lok LAM: SMELLY? BJ has been arrested. But ERICA is fine because ERICA under eighteen. Then he/she wanted her Mum to pick her up. But very strangely, the house not sealed off, ERICA is still at WOLLI CREEK. F: Then? Lok LAM: Then now the problem is, I can't go back in. I dare not go back in. ERICA just called ADAM, that is and JAMMIE, thinking about asking ADAM to find out what the situation is. ADAM said he would only be able to see BJ tomorrow afternoon. BJ is now still at the police station. BJ has just been to court. But then now fuck, I am going to JUSTIN or someone else's home to stay for the time being. Because, now, now I don't know what to do. Then now I ask KIT to stay at a hotel or anything. F: Mm. Lok LAM: Because there are - there are - most importantly, the problem I faced is not big - but there are KIT'S finger prints and so on. F: Then KIT needs to hide. Lok LAM: I tell you. Really very lucky. Really very lucky. Was just getting up and about to start work. F: Mm. Lok LAM: I won't talk anymore with you. You, if possible, when you have time, can you try to call BA's phone to see whether you can call through? But his/her phone could not be called through right now. BERRY is gone too. I don't know what to do now. The most miserable thing is, including the faked ones - F: Do you need to come over to my place to stay? Lok LAM: Of course not. Are you silly? If he/she finds me, he/she will find you as well. Now the most important thing is that - you listen to me - the most important to thing is to see - what worries me most is that including the fake ones, BJ's will exceed 5 kilogram. F: Mm. Lok LAM: That's right. I am now going to FUNG and let him/her know first. Talk to you later. F: Mm. Lok LAM: I will keep messaging with you. Okay. You / Don't you go everywhere please. F: I didn't. Lok LAM: You be more careful yourself. Do you hear me? F: Mm. Lok LAM: Okay. What I am most scared of is, the coppers seem to, I am just like GARRY, you understand? KIT has decided to return to HONG KONG. He - he will fly to MELBOURNE in a couple of days and then fly back. But the problem is, there is still problem, if I am thinking of leaving, then who will give money to BJ and others? F: Mm. Lok LAM: Anyway, I won't talk to you anymore for now. I need to think of solutions. That's all for now. Bye - bye. F: Bye - bye.
Annexure F to the affidavit of Mr Lu is an extract of a statement of Katherine Gao, the mother of the deceased Jamie Gao. Paragraph (11) of that statement is in the following terms: "11. Since the drug search with the police I would talk to Jamie about drugs and he told me that he wouldn't do that. He was cranky that he was involved in this and kept saying that the police always have eyes on him and that he hasn't done anything wrong. He was happy when he got off this charge because he said the solicitor looked after it."
The significance of this extract is said to be that the criminal history of the deceased (Annexure E to Mr Lu's affidavit) contains no reference to the charge referred to by Ms Gao in her statement.

THE RELEVANT LEGISLATIVE PROVISIONS

Section 7A of the ACC Act is in the following terms: Functions of the ACC The ACC has the following functions: (a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; (b) to undertake, when authorised by the Board, intelligence operations; (c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity; (ca) to do any of the following (whether in its own name or through officers or members of staff of the ACC), as permitted or required for the purposes of Part IAB or IABA of the Crimes Act 1914 or any other law of the Commonwealth: (i) to apply for, and to grant, integrity authorities in relation to members of staff of the ACC; (ii) to conduct and participate in integrity operations in relation to members of staff of the ACC; (iii) to assist the Australian Federal Police, Customs or the Australian Commission for Law Enforcement Integrity in making applications for integrity authorities; (iv) to assist those agencies in the conduct of integrity operations; (d) to provide reports to the Board on the outcomes of those operations or investigations; (e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board; (f) to provide advice to the Board on national criminal intelligence priorities; (g) such other functions as are conferred on the ACC by other provisions of this Act or by any other Act.
Section 51 of the ACC Act, which is the pivotal section in the present case, is in the following terms: Secrecy (1) This section applies to: (a) the CEO; and (aa) a member of the Board; and (b) a member of the staff of the ACC; and (c) an examiner. (2) A person to whom this section applies who, either directly or indirectly, except for the purposes of a relevant Act or otherwise in connection with the performance of his or her duties under a relevant Act, and either while he or she is or after he or she ceases to be a person to whom this section applies: (a) makes a record of any information; or (b) divulges or communicates to any person any information; being information acquired by him or her by reason of, or in the course of, the performance of his or her duties under this Act, is guilty of an offence punishable on summary conviction by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 1 year, or both. (3) A person to whom this section applies shall not be required to produce in any court any document that has come into his or her custody or control in the course of, or by reason of, the performance of his or her duties under this Act, or to divulge or communicate to a court a matter or thing that has come to his or her notice in the performance of his or her duties under this Act, except where the ACC, or the CEO, the acting CEO, a member of the Board or an examiner in his or her official capacity, is a party to the relevant proceeding or it is necessary to do so: (a) for the purpose of carrying into effect the provisions of a relevant Act; or (b) for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions. (4) In this section: "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions. "member of the staff of the ACC" means: (a) a person referred to in the definition of member of the staff of the ACC in subsection 4(1); or (b) a person who assists, or performs services for or on behalf of, a legal practitioner appointed under section 50 in the performance of the legal practitioner's duties as counsel to the ACC. "produce includes permit access to, and production" has a corresponding meaning. "relevant Act" means: (a) this Act; or (b) a law of a State under which the ACC performs a duty or function, or exercises a power, in accordance with section 55A; or (c) the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act; or (d) the Parliamentary Joint Committee on Law Enforcement Act 2010 or regulations under that Act.

Submissions of the accused

The submissions of counsel for the accused concentrated upon that part of the subpoena that sought production of material relating to the Lams. It was submitted that: 1. it was evident from the judgment of the Court of Criminal Appeal that a person by the name of Mr Bing Lee Wang ("Wang") was a co-accused of the Lams; 2. Wang was to be called as a prosecution witness at the trial of the accused; 3. the investigation of the Lams incorporated some investigation of the activities of the deceased, a fact said to be evident from the affidavit of Mr Lu; and 4. the prosecution of the Lams therefore formed "part of the Crown case" against the accused.
In these circumstances, it was submitted that it was legitimate to allow cross-examination of Mr Gray in order to suggest to him that the operation leading to the arrest of the Lams and others was instituted by the ACC.
Inextricably linked to these submissions, and part of the reason for which cross-examination of Mr Gray was said to be both legitimate and necessary, was the proposition that the words "for the purposes of a prosecution" as they appear in s. 51(3)(b) of the ACC Act should be read as referring (in this case) to the prosecution of the Lams as opposed to the prosecution of the accused.

Submissions of the Australian Crime Commission

On behalf of the ACC, it was submitted that s. 51(3) afforded an immunity, to those persons to whom the section applied, from disclosure of documents or other information. It was submitted that the scheme of the legislation was such that the general immunity for which provision was made was subject to particular exclusions and that in this case the relevant exclusion relied upon by the accused was that contained in s. 51(3)(b).
It was submitted that the provisions of s. 51(3)(b) required that the Court come to a view that production of the material sought was necessary for the purposes of a prosecution which had been brought in the circumstances contemplated by the section. It was submitted that in the context of the present case, and before production was ordered: 1. the accused was required to establish that production was "necessary … for the purposes of a prosecution", such that there was a link between the necessity on the one hand, and a prosecution on the other; and 2. the "prosecution" to which the section referred was the prosecution of the accused, not the prosecution of the Lams.
It was submitted that in these circumstances, given that the prosecution relied upon by the accused was some other proceeding, part of the fundamental basis on which it was sought to cross-examine Mr Gray, and on which the order setting aside the subpoena was resisted, could not be made out.
It was further submitted that the affidavit of Mr Gray established that the prosecution of the accused was not instituted in the circumstances to which s. 51(3)(b) was directed. It was submitted that in these circumstances, the ACC should not be required to produce any material, and the subpoena should be set aside.

Submissions of the Crown

Although not directly a party to the notice of motion filed by the ACC, the Crown explained that there was evidence that the deceased had contact, and had dealt, with the Lams. However, the Crown took issue with the suggestion that the prosecution of the Lams formed any part of the prosecution of the two accused.

The affidavit of Mr Lu

The relevance of the affidavit of Mr Lu was said to lie in the fact that its contents supported the proposition that the prosecution of the Lams formed part of the Crown case against the accused.
Some of the material annexed to Mr Lu's affidavit was in the nature of media articles downloaded from the internet. There is an obvious difficulty in relying upon the content of such articles to establish the truth of what is asserted in them. Even if I were to accept the truth and accuracy of the content of the articles annexed to Mr Lu's affidavit, the entirety of his affidavit tends to establish little more than the fact that the deceased had spoken to, and was perhaps under investigation by, the ACC in the period leading up to his death. I am not satisfied that this is relevant to any issue before me, be it in terms of the notice of motion or the trial as a whole.
In my view, there is nothing in the affidavit of Mr Lu which even suggests, let alone tends to establish, that the prosecution of the Lams forms any part of the Crown case against the accused involving the death of the deceased. In particular, the COPS event of 19 May 2012 establishes nothing more than the fact that the Lams were arrested following an investigation by the ACC. That document makes no mention of the deceased at all.
For all of these reasons I am not satisfied that the affidavit of Mr Lu is in any way relevant to the issues I am required to determine.

The proposed cross-examination of Mr Gray

I have set out (in [20] above) my understanding of how the proposed cross-examination of Mr Gray is said to be relevant. As to the first matter relied upon, I accept that Wang was a co-accused of the Lams. Indeed, the basis of the application for leave to appeal brought by each of the Lams was an asserted disparity between the sentence imposed on each of them and that imposed on Wang: see Lam (supra) at [3]. Further, although not mentioned in the Crown case statement, the Crown did not take issue with the suggestion that Wang is to be called as a witness at the trial of the accused.
However for the reasons already expressed, there is no evidence upon which I can conclude that the investigation of the Lams (or the investigation of anyone else who is named in the subpoena) also involved the investigation of the deceased. I am satisfied in these circumstances that the investigation and prosecution of the Lams forms no part of the Crown case against the accused.
In these circumstances, and leaving aside the danger that if cross-examination were permitted it may lead to the disclosure of the very material in respect of which the immunity is claimed (as to which see Young v Quin (1985) 4 FCR 483 at 487 per Bowen CJ) I am not satisfied that there is any legitimate purpose to be served in cross-examining Mr Gray on his affidavit.

The disposal of the motion

Leaving aside the fact that the prosecution of the Lams does not form part of the Crown case against the accused, the accused's resistance to the orders sought in the motion is based upon an interpretation of s. 51(3)(b) of the ACC Act which, in my view, is not reasonably open.
Counsel for the accused submitted that in the circumstances of the present case, the term "a prosecution" as it appears in s. 51(3)(b) should be read as referring to the prosecution of the Lams. Acceptance of that interpretation would mean that it would be open to an accused person to issue a subpoena in his own proceedings and, providing that he could demonstrate the necessity to produce documents for the purposes of some other prosecution instituted as the result of an operation or investigation carried out by the ACC, the statutory immunity in respect of production would not apply. That would be an absurd result and could not possibly have been one which the legislature intended. In my view, the word "prosecution" as it is used in s. 51(3)(b) must mean the prosecution of the accused, not someone else.
Further, whilst I accept that the word "necessary" should not be given a restrictive interpretation, I am satisfied that for the purposes of s. 51(3)(b) of the ACC Act production of the material sought could only be regarded as necessary if such material appeared sufficiently relevant to the issues to be raised in the prosecution of the accused, not the prosecution of some other person: National Crime Authority v Gould and anor. (1989) 23 FCR 191 at 195.
I am fortified in these views by the observations of Slattery J in R v Micalizzi (NSWSC, 13 November 1987, unreported) where, in the context of a similar provision contained in the then National Crime Authority Act 1984 (Cth) his Honour said: "On my reading of s. 51 I am of (the) opinion that its words are unambiguous and do not permit of two interpretations. The Court must therefore give effect to them in accordance with what seems to be their plain meaning. It cannot import into the section any implication permitting disclosure in criminal proceedings contrary to the clear meaning of the words therein. It is also my view that the section gives the Authority immunity against production of documents in all proceedings except as specified in s. 51(3). The Court has no right to add further exceptions".
Even if I were prepared to accept the submission advanced by counsel for the accused as to the interpretation of the word "prosecution", as I have previously noted the exception to the statutory immunity provided for by s. 51(3)(b) requires that production be necessary for the purposes of such a prosecution. The prosecution of the Lams has ended. It could not, in those circumstances, be said that production of any of the material sought is necessary for the purposes of that prosecution.
Bearing in mind my interpretation of s. 51(3)(b) of the ACC Act, and having regard to the contents of paragraph 11.4 of the affidavit of Mr Gray, I am satisfied that the exception to the immunity contained in s. 51(3)(b) has not been made out. It follows that the ACC shall not be required to produce the material sought in the subpoena and in those circumstances the subpoena should be set aside.
In the event that the first of the orders sought in the notice of motion was made, the solicitor for the ACC foreshadowed an application for costs. Orders (2) and (3) below facilitate both parties having the opportunity to make submissions in respect of that question.

ORDERS

For the reasons set out I make the following orders: 1. The Subpoena issued on 24 April 2015 on behalf of the accused McNamara to the Australian Crime Commission is set aside. 2. Any submissions to be made on behalf of the Australian Crime Commission as to costs are to be provided to my Associate in writing on or before 1 June 2015, such submissions not to exceed two pages in length. 3. Any submissions in reply are to be provided to my Associate in writing on or before 5 June 2015, such submissions not to exceed two pages in length.

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: 15 June 2016

National Crime Authority Act 1984(Cth)

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