Resolution of the issues
38 There is no doubt that the accused would be entitled to raise a challenge to the interception warrants. They are, after all, the basis on which damaging intercepts were obtained and they will be relied on by the prosecution at trial. It was for that reason that the Court of Appeal in DPP v Webb held that the obligations of the prosecution were to produce the warrants and evidentiary certificates in fulfilment of its obligation to make disclosure. There is no suggestion in the decision, however, that in that case the disclosure obligation extended beyond the warrants and evidentiary certificates.
39 If, in the present trial, an attack were to be launched on any of the warrants, it would be necessary at that time to determine the permissible scope and ambit of the attack. This would no doubt depend upon the resolution of competing submissions between the Crown and those seeking to attack the warrants. At this stage, those matters have neither been identified nor argued.
40 On a preliminary basis, however, the law appears to be reasonably clear. In general, any such attack is to be confined to defects appearing on the face of the warrant or to some other plainly apparent jurisdictional matter. An attack on the sufficiency of the material used in procurement of the warrants is not, in general terms, permissible (Ousley v The Queen (1997) 192 CLR 69 at 79, 81 per Toohey J; at 101-103 per McHugh J; at 125-126 per Gummow J; Murphy v The Queen (1989) 167 CLR 94 at 104-106 per Mason CJ and Toohey J; Coco v The Queen (1994) 179 CLR 427 at 435). Mr Waterstreet was at pains to point that the anticipated collateral challenge would not be concerned with the sufficiency of the material in support of the warrants. Rather it would be concerned with the fulfilment of conditions precedent and the like. Such a distinction, it might be observed, may be more apparent than real. Again, the true position cannot be determined at this stage, but may be examined more closely when any such attack is mounted.
41 Against the background of these introductory remarks, I turn now to consider the principles that are applicable to the resolution of the present matter. The general position relating to an application to set aside a subpoena where a party has sought to have documents produced following the issue of a subpoena is that stated by Sir Frederick Jordan in Commissioner of Railways v Small (1938) 38 SR NSW 564 at 575. The Chief Justice said:
"A party is no more entitled to use a subpoena than he is a summons for interrogatories for the purpose of fishing, ie endeavouring not to obtain evidence to support his case but to discover whether he has a case at all."
42 This statement was mentioned with approval by Mahoney AP in Carroll's case; that is, Carroll v the Attorney General of New South Wales (1993) 78 A Crim R 162.
43 A clear statement of the correct test to be applied in the present circumstances, and one which is often referred to, is the statement of Simpson J in The Queen v Saleam (1999) NSWCCA 86, at paragraph 11, where her Honour said:
"The applicant must identify a legitimate forensic purpose for which access is sought and must establish that it is 'on the cards' that the document will materially assist the case."
44 The Chief Justice and Studdert J agreed with her Honour in relation to this statement of the law. (See also the earlier decision of the Court of Criminal Appeal: R v Saleam (1989) 16 NSWLR 14 at 18 A-F per Hunt J).
45 The expression "on the cards" is one that has been approved in a number of cases in the New South Wales Court of Criminal Appeal. It appears to have derived from the judgment of Gibbs CJ in Alister v The Queen (1983) HCA 45; (1984) 154 CLR 404 at 414. There the Chief Justice had said:
"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."
46 (Gibbs CJ had used the phrase in a different context, namely in a discussion concerning whether, in a public interest immunity argument, the Court should itself inspect the documents and whether disclosure should be made to the applicant). See also Burmah Oil Company Limited v Bank of England (1980) AC 1090 at 1129 per Lord Edmund Davies).
47 In Attorney General for New South Wales v Dillon Chidgey at 71 to 80, Beazley JA, with whom James and Kirby JJ agreed, held, according to the headnote (which appears to accurately record the findings of the Court):
"The test of determining whether a party is required to produce documents pursuant to a subpoena is a two step process before access is granted. The applicant must (1) identify a legitimate forensic purpose for which access is sought and (2) establish that it is 'on the cards' that the documents will materially assist his or her case. Mere relevance is not sufficient to establish a legitimate forensic purpose ( Carroll v The Attorney General for New South Wales (1993) 78 A Crim R 162, paragraphs 59 to 63)."
48 In that particular case, the Court of Criminal Appeal held that the legitimate forensic purpose which had been identified by the Magistrate amounted to no more than a proposition that the respondent was entitled to engage in a fishing expedition to ascertain whether there had been compliance with sub-s 5 (2A) and "to discover whether he had a case at all".
49 I should also mention the earlier decision in the New South Wales Court of Appeal of New South Wales Commissioner of Police v Tuxford & Ors (2002) NSWCA 139, in particular the decision of Brownie JA with whom Spigelman CJ and Ipp JA agreed. See also the decision of Barr AJ in Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498. This too is an authority often cited with approval in cases of the present kind.
50 Having stated these general principles, it will be necessary for me to say something more in amplification of two of the decisions to which I have been referred. The first is Carroll's case and I turn to discuss it now.
51 In that case, the plaintiff had sought a review of warrants issued under the Listening Devices Act 1984 (NSW). He contended that there had been no proper supporting material before the Judges who issued them. In that context, the plaintiff sought access to affidavits by police officers which had been relied upon when the warrants had been sought. The defendant argued that such access should be refused by the Court.
52 The proceedings were referred to the Court of Appeal. Mahoney AP and Hunt AJA, Kirby AJA dissenting, held that the affidavits should not be made available for inspection by the plaintiff. At page 70, the Acting President said:
"But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the Court must, in general, be satisfied that the documents are relevant to an issue for decision by the Court in the 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 assistance to his case in the proceeding."
53 At page 182, his Honour said:
"To have access to the subpoenaed document, the party must show or it must appear that the document is relevant to the issue for decision. But mere relevance is not enough: Thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say 'the documents are relevant in a sense that prima facie they establish the case against me: Therefore I am entitled to see them and tender them'
In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion' or 'belief' referred to in s 16(1). Accordingly, prima facie, the documents are relevant to the issue to be decided, namely whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case that could not be claimed. Nor was it shown. At best, the claim was 'I wish to see the document to see if it may assist my case'. That, in my opinion, is not sufficient."
54 Hunt AJA also did not accept that the material put forward by the plaintiff established that it was "on the cards" that the affidavits before the Judges would assist him in his application. His Honour said that it was by reason of such absence of any legitimate forensic purpose that he agreed in the majority decision of the Court to deny the plaintiff access to the affidavits which were before the various Judges who issued the warrants under challenge.
55 The views of the majority in Carroll's case are binding on me and are sufficient to dispose of the present application.
56 In Chidgey's case (which was decided on 28 March 2008) the Court of Criminal Appeal affirmed the remarks of Mahoney AP which I have set out above. Beazley JA (with whom the other members of the Court agreed) accepted, upon analysis, that the judgment of Mahoney AP represented a majority statement on the issue. Moreover, her Honour said that the statement of Mahoney AP had been applied in a number of subsequent decisions both in New South Wales and Victoria. Those decisions are set out in paragraph 63 of her Honour's judgment. I will not repeat them here. Further, her Honour endorsed the traditional approach represented by such authorities as R v Saleam and R v Ali Tastan.
57 The decision of the Court of Criminal Appeal in Chidgey's case confirms the proposition that there will be no legitimate forensic purpose if all the party is trying to do is to get hold of documents to see whether they may assist him or her in the case.
58 Beazley JA suggested that the relevant authorities showed that the formulation of Simpson J in R v Saleam represented the commencement of a line of authority in which the test for the production of, or access to, documents was specifically stated as comprising two steps: A legitimate forensic purpose, and that it was "on the cards" that the document would materially assist the case. However, in stating the test in this specific "two step way", Simpson J did not, the Court said, state any new principle.
59 Finally, the Court rejected as inappropriate other recent statements of the test by individual Judges, both in New South Wales and Victoria (Beazley JA at 72-80).
60 In the light of these statements of principle, I am satisfied that paragraphs 1 to 4 of the subpoena sought to be set aside constitute what is commonly called a "fishing expedition". No matter how it is dressed up in argument, the plain position is that the lawyers for Khaled Cheikho are attempting to have access to the materials used as a basis for the issue of the warrants (and other materials relevant to the execution of the warrants) in the hope that something will emerge from the material which will allow or provide a possible basis for attack on the warrants themselves. This is simply not permissible.
61 In the letter of 15 April 2008, Mr Cheikho's solicitors said:
"As you will no doubt be aware, a significant aspect of the Crown case against all of the accused in this impending trial is evidence of conversations intercepted under the Telecommunications (Interception) Act 1979. Director of Public Prosecutions v Webb (reference supplied) makes clear that in such circumstances the defence is entitled to insist on strict proof and require that it be demonstrated that any such conversations were lawfully intercepted pursuant to a warrant validly applied for and executed as per the regime set up by the Act. The provision of the material we are seeking then is an essential precondition to the admissibility of the substantive evidence sought to be led by the Crown in this case and indeed falls within Crown disclosure obligations."
62 First, it will be seen that Webb's case does not support the allegation made in the last sentence at all. Secondly, the overall thrust of the paragraph I have quoted demonstrates beyond doubt that this is a fishing expedition. The accuseds' lawyers hope to have produced material which, when examined, may show some flaw in the way the warrant was issued or in which it was executed. They cannot point to any such flaw, but hope, no doubt, that it will emerge once the material has been scrutinised.
63 In relation to the paragraph 4 documents, I accept Mr Singleton's submission that, despite the feature that two telecommunication carriers may have been involved in the interception of communications, no justification has been established on the evidence for the production of the material anterior to the issue of the warrant. It is not "on the cards" that the affidavits will address this situation at all.
64 This is not to say that the accused cannot otherwise assert that there is an invalidity arising from the execution of the warrant. What he cannot do, however, is to maintain a subpoena which is not supported by the existence of a legitimate forensic purpose.
65 This leaves me only to consider the decision of Smith J in Australian Crime Commission v Magistrates Court. This is the second authority I identified as requiring discussion.
66 The issues in the case arose in markedly different circumstances from those involved in the present application. The second defendant in those proceedings, Michael Brereton, was charged with the offence of refusing to be sworn in response to an examination summons issued by the Australian Crime Commission. The summons required him to attend before an Examiner appointed under the Australian Crime Commission Act 2002 (Cth). Mr Brereton apparently refused to be sworn in the proceedings involving the proposed examination. This led to the charge against him. At his committal, he issued a number of subpoenas. One of those sought a document recording the examiner's reasons for the issue of the summons. Section 28 of the Australian Crime Commission Act 2002 (Cth) required the Examiner to be satisfied that it was reasonable to issue the summons and, importantly, to record his reasons in writing. The subpoena that was the critical focus of Smith J's decision sought, as I have said, the production of the document recording the Examiner's reasons for issue of the summons. Mr Brereton argued before Smith J that this document was a condition precedent to the valid exercise of the power to issue the examination summons itself.
67 At the hearing before Smith J, the ACC sought orders in the nature of certioraria to have the subpoena quashed. It was the plaintiff's argument that the subpoena could serve no legitimate forensic purpose. However, in the course of argument, counsel for the ACC conceded that the existence of a document recording the reasons of the examiner for issuing the examination summons was a condition precedent to the valid exercise of the power to issue the examination summons.
68 Smith J dismissed the plaintiff's motion. In so doing, his Honour held that the concession made by counsel for the plaintiff necessarily revealed the existence of a legitimate forensic purpose. As to the "on the cards" test, Smith J said: -
"I was referred to a number of cases in which the test to be applied, including the often quoted so called "on the cards" test is considered. In my view, that phrase and other phrases used by Judges are attempts to state ways in which the ultimate question might be approached in a particular case. The ultimate question, however, is whether there is a legitimate forensic purpose which the subpoena will serve. It is necessary to consider, among other things, the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue."
69 In addition, his Honour made reference to a number of remarks made by members of the High Court in Alister v The Queen. These included the observations of Gibbs CJ at 414-415, and those of Brennan J at 451 and 456. After a thorough analysis, Smith J determined that the plaintiff's argument could not be sustained. It ignored the rights of Mr Brereton to test the validity of the summons. Smith J held that an accused in criminal proceedings is afforded compulsory process to allow an accused to conduct his or her defence. His Honour advocated "a more liberal approach to inspection of documents so that the secrecy appropriate to some Government activities was not misused in a criminal process".
70 I have given careful consideration to his Honour's analysis and to the conclusions he drew. I do not, however, find the decision particularly persuasive or helpful in the resolution of the present matter. First, his Honour was dealing with an application for relief in the nature of prerogative relief which sought to attack the issue of the subpoena. That seems to me to be rather a different exercise than the one I am engaged in, namely, an application to set aside a subpoena returnable before me on the basis that the person causing the issue of the subpoena has not demonstrated a legitimate forensic purpose. Secondly, it must be conceded that the legislation his Honour was examining was unusual in a number of respects. Importantly, the very offence with which Mr Brereton was charged with was his failure to allow himself to be sworn before the Examiner who had issued the summons.
71 In the present matter, the applicant for the subpoena is an accused person charged with an offence under the terrorism provisions of the Criminal Code Act. The evidence to be led against him will include evidence of intercepted telecommunications. The warrant or warrants enabling those interceptions may be attacked if there are legitimate grounds to do so. But that has nothing to say about the question of the appropriateness or otherwise of the subpoena. In addition, there was a concession before his Honour that the existence or otherwise of reasons for the issue of the summons was a condition precedent to the valid exercise of the power to issue the examination summons. This concession may be contrasted with the present situation where the warrant in the present matter is available for challenge, whereas the sufficiency of the materials supporting the warrant is not.
72 I should make it clear that I am not intending to be critical in any way of Smith J's conclusion. It is not my province, nor is it my function, to sit on appeal, as it were, from his Honour's decision. I would, however, respectfully point out that Smith J does not appear to have been referred to the considerable body of New South Wales jurisprudence relating to the issue of setting aside a subpoena in circumstances where no legitimate forensic purpose has been demonstrated. His Honour, of course, made reference to the earlier of the two Saleam cases. But it seems clear that he was not referred to, for example, Carroll v The Attorney General of New South Wales. Whether his Honour may have arrived at a different conclusion had his attention been drawn to these authorities, I am unable to say. Nor is it necessary for me to do so.
73 Finally, I would note that the passages in Alister's case referred to by Smith J in his decision are not directly relevant to the application before me. As those passages make clear, their Honours were referring to the particular issue which arose on the appeal. At issue was a public interest immunity question of considerable dimension. This was whether Lee J should have, as trial Judge, inspected the documents produced under the subpoena to ASIO to determine whether they demonstrated a matter that would have been critical or important to the defendant's position. The secondary issue was, in the event that those documents had demonstrated such a degree of critical importance, whether they should have been produced to the accused. As it happened, the High Court Justices decided to inspect the documents for themselves and, having done so, determined that they would not order production to the accused. In the present matter I do not need to see the documents because I am satisfied that the accused is merely engaged in a speculative fishing expedition. This, as I have said, is not permissible. Secondly, unlike the situation in Alister's case, this is not a case where any claim for public interest immunity has been raised so that it is unnecessary to go to the balancing process that needs to be undertaken when such a situation arises.
74 Accordingly, I order that the subpoena dated 14 March 2008 be set aside.