R v Rokomaqisa (No 6)

1. The ACIC is established by the ACC Act and in litigation such as the present it has certain immunities_._ Relevantly, s 51 provides:

(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) ...

(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.

"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 National Anti - Corruption Commission Act 2022 or regulations under that Act; or

(d) the Parliamentary Joint Committee on Law Enforcement Act 2010 or regulations under that Act; or

(e) the Inspector - General of Intelligence and Security Act 1986, or any other Act, or instrument made under an Act, that confers functions, duties or powers on the Inspector - General of Intelligence and Security.

1. The reference in s 51 to the ACC is taken to be a reference to the ACIC. Section 7(1A) of the ACC Act states, "The ACC may also be known by one or more names or acronyms specified in the regulations." Australian Crime Commission Regulations 2018 (Cth) reg 8 specifies "the Australian Criminal Intelligence Commission" and the "ACIC" for the purposes of sub-s 7(1A) of the ACC Act.
2. The CEO, being the "Chief Executive Officer of the ACC" (s 4), and subpoena recipient, is a person to whom s 51 applies: s 51(1)(a).
3. Mr Doherty is the National Manager, North Operations in the Queensland office of the ACIC and previously was the State Manager, Queensland. He deposed that he is "aware of all involvement of the ACIC in the matters relating to the Accused that are the subject of the present proceedings".
4. Mr Doherty's affidavit confirms that documents which answer the subpoena came into the custody or control of the CEO (and members of the ACIC staff generally) by reason of the performance of their duties under the ACC Act.
5. The exceptions, s 51(3) and why it was claimed that none of them apply are set out in turn.

"The ACIC, 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"

1. Counsel for the accused accepted that the ACIC is "strictly not a party to the proceedings". Although it was said in parentheses that, "it may be contended that the ACIC is a party to the extent that it is a party to the subpoena issued within the context of the proceedings",[1] no such contention was advanced.
2. "Relevant proceeding" is clearly a reference to the proceeding in which there is a question whether the immunity applies which, in this instance, is the criminal prosecution of Rokomaqisa in this Court. The parties to the proceeding are the Director of Public Prosecutions on behalf of the Crown and the accused. The ACIC did not become a party to the proceeding by having been served with a subpoena. It was, and remains, a third party to the proceeding.

"It is necessary to do so [that is, to produce in any court any document ...] for the purpose of carrying into effect the provisions of a relevant 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'."

1. A "relevant Act" is defined in sub-s (4) (extracted above).
2. Production of documents sought by the subpoena has nothing to do with carrying into effect any provision of the ACC Act. Nor has it anything to do with carrying into effect the provisions of a law of New South Wales under which the ACIC performs a duty or function, or exercises a power, in accordance with s 55A. Section 55A is concerned with laws of a State which may confer upon, inter alia, the ACIC, its CEO, an examiner, or a member of staff, various nominated duties, functions or powers, but none are identified in the present case as applicable. Finally, none of the legislation in s 51A(4)(c)-(e) are applicable either (and are conceded to be irrelevant[2]).

"It is necessary to do so [that is, to produce in any court any document ...] for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACIC in the performance of its functions"

1. There are two parts to this. First, was the prosecution instituted as a result of an operation or investigation carried out by the ACIC in the performance of its functions? If so, is it necessary for the material to be produced for the purposes of this prosecution?
2. Mr Doherty deposed:

"Since 17 June 2021, the ACIC has conducted no investigation or operation, or any joint investigation or joint operation, in relation to [the] Accused or his connection with Bilal Hamze or Ibrahem Hamze.

The ACIC has had no involvement in the institution of the present prosecutions against the Accused.

So far as I am aware, including through inquiries undertaken by officers of the ACIC for the purpose of responding to the Subpoena, the prosecution of the Accused has not been instituted as a result of an operation or investigation carried out by the ACIC in the performance of its functions."

1. What led to the service of this subpoena was the discovery by the defence of the ACIC having previously disseminated material which had some relevance to the Alameddine and Hamze organised criminal organisations with specific reference to the murder of Bilal Hamze and the targeting of Ibrahem Hamze to NSW Police. This included material predating the period 17 June 2021 to 15 August 2021 which is the period covered by the charges the accused now faces.
2. Mr Doherty's affidavit included that there was no investigation or operation, or joint investigation or operation, conducted by the ACIC in that period "in relation to the accused or his connection with Bilal Hamze or Ibrahem Hamze".
3. The affidavit of Mr Taleb responded by asserting that the subpoena was not limited to material relating to the investigation of the accused but extended to the production of material relating to the murder and conspiracy to murder which he said would capture an extended cohort of individuals acting alone or in concert.
4. The ACIC was correct in understanding the subpoena did not have the broader scope that Mr Taleb asserted. It called for the production documentary material meeting the following description:

"In relation to the investigation and prosecution of Samuel John Rokomaqisa to which H82668570 and H89197410 relates:

1. All information in the possession, custody or control of the Australian Criminal Intelligence Commissioner (ACIC) including ... relating to:

(i) The murder of Bilal Hamze ...

(ii) The conspiracy to murder Ibrahem Hamze ..."

1. In any event, counsel for the ACIC submitted, the fact the CEO holds records which answer the subpoena does not establish the prosecution was instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions. Nor does the fact of having communicated criminal intelligence to a police force concerning the accused. The collection, correlation, analysis and dissemination of criminal information and intelligence and maintaining a national database of that information and intelligence are functions of the ACIC under s 7A(a) of the Act. Section 59AA governs the performance of the function of disclosing information to government bodies, including law enforcement agencies.
2. Counsel for the accused submitted that s 51(3)(b) should be "interpreted broadly" so as to capture the "ACIC activity which is relevant to the institution of a prosecution by another agency, namely the NSW DPP, its delegates, servants or agents including the NSW Police Force".[3] The provision appears to provide for a causative or contributive nexus between ACIC operation or investigation and the institution of the prosecution, the simplest example perhaps being an ACIC investigation or operation gathered certain evidence as a result of which a prosecution was commenced. Parliament's choice of words does not suggest that a mere requirement of relevance should suffice to overcome the immunity.

1. Counsel for the accused submitted that "the type of activity undertaken by the ACIC ... is uncertain" and "it may or may not include examination material for which the Act provides a ... pathway for production".[4]
2. The term "examination material" is defined in s 4B of the Act to be a reference to certain things pertaining to an "examination" which, according to a definition in s 4(1), is an examination under Pt II, Div 2 (ss 24A to 36) of the Act. Section 24A provides that an examination may be conducted for the purposes of a "special ACC operation/investigation". These are defined in s 4(1) as an intelligence operation that the Board has authorised to occur under subsection 7C(2), or an investigation relating to a federally relevant crime that the Board has authorised to occur under s 7C(3).
3. In a similar manner to how ss 44-45 of the Crime Commission Act 2012 (NSW) operates, there are provisions in s 25A(9)-(13) for the confidentiality of examination material but for production to a court and potential dissemination to an accused person if a court is satisfied that doing so is required by the interests of justice.
4. Mr Doherty referred to there having been no investigation or operation (joint or otherwise) on or after 17 June 2021 in relation to the Accused or in relation to his connection with Bilal or Ibrahem Hamze. This must be taken to include a "special ACC operation/investigation" that might have given rise to a power to undertake examinations.
5. A question unanswered is whether there was any investigation or operation before 17 June 2021, but it is difficult to conceive of there having been anything that would fall with the scope of the call of the subpoena.
6. In any event, the short answer to the asserted "separate pathway for production of evidence" is that there is no evidence that any relevant examination had occurred.

1. As indicated earlier, the accused was permitted to provide further alternative submissions which raised some novel propositions. They were rejected for the reasons provided by the ACIC in its reply submissions.
2. The first proposition was that there was a disclosure "pathway" via s 55A of the ACC Act. The provision in s 55A(2) permits a law of a State to confer on the ACIC certain functions or powers, such as the function of undertaking an investigation or intelligence operation relating to a relevant crime: s 55A(2)(a) and (c). However, no State Act was identified under which the ACIC was performing any relevant function. As indicated before, there is no evidence that it was undertaking any investigation or operation, whether under functions or powers conferred directly by the ACC Act or by a State Act enabled under s 55A.
3. Even if relevant information had been obtained in the course of performing functions and powers conferred by a State in reliance on s 55A, s 51(c) was still capable of operating. It initially applies, on its terms, to all information obtained by the persons identified in s 51(1) in the performance of their duties under the ACC Act. This would include information obtained as a result of conducting an examination, investigation, or operation pursuant to a power conferred via s 55A.
4. The accused also invited the Court to recognise a new duty to be applied by implication into the ACC Act which would require the ACIC to disclose the existence or non-existence of relevant disclosable material. This was rejected for three reasons advanced by the ACIC.
5. First, it simply did not arise. There is material which answers the subpoena but the question is whether s 51(3) effectively excuses the CEO from producing it. To the extent the accused relied upon s 25A of the ACC Act, there is no evidence there was any an examination.
6. Second, the implication of such a duty would undermine the direct effect of s 51(3), at least to the extent the accused suggests the duty is to make a disclosure to the court.
7. Third, a court should not read into a statute additional words simply to cure a perceived unfairness or gap in how the legislation operates: Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]- [39].

1. I was satisfied that there is no exception to the immunity contained in s 51(3) of the Act and so it must prevail. In those circumstances the ACIC is not required to produce the material under subpoena. Accordingly, the subpoena was set aside.

[2] Further defence written submissions [4].

[4] Defence written submissions [3]-[4].