Regina (C'Wealth) v Baladjam & Ors

Supreme Court of NSW|2008-07-10|Before: Whealy J, Wilcox J, Foster J, Gibbs CJ

CITATION : Regina (C'Wealth) v Baladjam & Ors [No 29] [2008] NSWSC 1452

DECISION : Order that the New South Wales Crime Commission be excused from any obligation to produce to the Court documents contained in Exhibit "A1" and Exhibit "C".

CATCHWORDS : CRIMINAL LAW - Practice and Procedure - Subpoenas - Absence of legitimate forensic purpose - Public interest immunity claim

LEGISLATION CITED : Listening Devices Act 1984 (NSW) New South Wales Crime Commission Act 1985

Alister v The Queen 1983 HCA 45; 1984 154 CLR 404 at 414 Attorney General v Chidgey [2008] NSWCCA 65 at (64), (68 and 81 to 86) Attorney General v Stuart (1994) 34 NSWLR 667 at 672E Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J Cain v Glass [No 2] (1985) 3 NSWLR 230 at 233-234 Carroll v The Attorney General (1994) 70 A Crim R 162 at 181-182 Conway v Rimmer (1968) AC 910 at 971, 979, D v Jacobson v Rogers (1995) 182 CLR 572 at 588-589 D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 230 Marinovich v DPP & Anor (198) 14 ALD per Foster J at 315 CASES CITED : Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504 R v Baladjam [No 28] at paras 41 and 60) R v Lodhi 21 February 2006 R v Saleam [No 1] (1989) 16 NSWLR 14 at 18C R v Saleam [No 2] (1999) NSWCCA 86 at (11) R v Stig NSWCCA (unreported) 17 October 1996; BC 9604843 R v Taylor [2007] 169 A Crim R at 543 Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ State Drug Crime Commission v Chapman (1987) 12 NSWLR 447 Waind v Hill & National Employers Mutual General Association (1978) 1 NSWLR 372 at 385B-E Young v Quinn (1985) 4 FCR 483 at 494 and 495

Regina (C'Wealth) v Omar BALADJAM [No 29] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA

FILE NUMBER(S) : SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

W Abraham QC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown P Singleton - State Crown (By Leave) M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar COUNSEL : Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma

Commonwealth DPP State Crown Solicitors Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2007/2397001 - Regina v Omar BALADJAM [No 29] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Subpoena issued by accused Jamal to New South Wales Crime Commission - Public interest immunity claim - Legitimate forensic purpose

1 HIS HONOUR: Two applications have been made involving claims for public interest immunity. They arise in connection with a subpoena issued by Mr Michael Doughty, solicitor, on behalf of one of the accused, Mohammed Omar Jamal. The subpoena is dated 1 April 2008 and is addressed to "The Proper Officer, New South Wales Crime Commission". The subpoena is very extensive. It is necessary, however, to set out only paragraphs 12 to 15 of the subpoena. They are as follows: "12. All surveillance logs, records and/or running sheets where the accused's name is recorded for the period 8 July 2004-21 December 2005. 13. Copies of all warrants issued pursuant to Part 4 of the Listening Devices Act 1984 authorising the use of a listening device against any of the following: (i) Mohammed Omar Jamal, 15 Punchbowl Road, Belfield NSW, and/or motor vehicle registration number ULK 830 for the period 1 July 2004-21 December 2005; (ii) he said Auto King, Chemical Cleaning Solutions, Peter's Hardware, Padstow Station Hardware and Auto Equip for the period 1 August 2005-21 December 2005 and; (iii) Adam Houda for the period November 2005-December 2005. 14. Copies of any search warrants issued pursuant to s 11 New South Wales Crime Commission Act 1985 authorising the search of premises at 15 Punchbowl Road, Belfield, NSW and/or motor vehicle registration number ULK 830. 15. Copies of all covert search warrants issued pursuant to Part 3 of the Terrorism (Police Powers) Act 2002 directed at 15 Punchbowl Road, Belfield, NSW and/or motor vehicle registration number ULK 830 for the period 1 January 2003-22 December 2005." 2 As I have said, there are two public interest immunity claims. It will be necessary to deal with these separately. The first claim, the one which has taken the greater burden of the Court's time, relates to material that is said to have been captured by paragraphs 12 to 15 of the subpoena. Mr Singleton, who appears for the New South Wales Crime Commission, has explained that this somewhat oblique reference to those parts of the subpoena that capture the documents the subject of the first claim for public interest immunity arises because of a need for confidentiality in relation to identifying precisely which paragraph of the subpoena had, in fact, caught the relevant documents. 3 The open claim for immunity in respect of the subject documents is contained in Exhibit "A", the affidavit of Deputy Commissioner Naguib Kaldas. Mr Kaldas exhibited the relevant documents to his affidavit and these have been admitted on a confidential basis as Exhibit "A1". The full nature of the public interest immunity claim is detailed in a second affidavit by Mr Kaldas. This has been admitted on a confidential basis as Exhibit "A2". 4 The second claim for public interest immunity arises in connection with four warrants issued pursuant to s 16 of the Listening Devices Act 1994. These were produced apparently on the basis that they fell within paragraph 13 of Mr Jamal's subpoena. The first two warrants were issued by her Honour Virginia Bell J on 22 March 2005. The remaining two warrants were issued by her Honour on 11 April 2005. The listening devices authorised the installation and use of certain devices in certain premises for various periods of time between 22 March and 1 May 2005. The copy warrants produced, however, have been redacted (or to use a more familiar English word, "edited") so as to eliminate the description of the actual listening device in each case, and to conceal the location of the premises where the device in each case was to be installed. 5 The second claim for public interest immunity relates only to the redacted material. There is no objection to the production of the copy warrants. They have been admitted as Exhibit 1. I should add that not only have the four warrants been produced in answer to the subpoena, it is also my understanding that, overall, a considerable body of other information or other documentation has been produced. The public interest immunity claims relate, however, only to the two categories I have identified. 6 I shall now identify the material in support of the second public interest immunity claim. Exhibit "C" is an open affidavit from Carlene York, the Assistant Commissioner of Police (Director, Forensic Services Group). Ms York provides evidence that no conversations were recorded as a result of the installation of the four warrants. For that reason, there is no transcript of any conversations as a result of the installation of the warrants. Public interest immunity has been claimed, however, over the redacted parts of the warrants on the basis that disclosure of the information so edited would reveal confidential police methodology. There is a second confidential affidavit (Exhibit "E"), which gives detailed reasons in support of the public interest immunity claim. 7 In view of the nature of the public interest immunity arguments, Mr Singleton very sensibly provided the Court, through the exhibits process, with the documents in respect of which production is sought to be denied. In some cases of public interest immunity, the very nature of the claim may make it undesirable that the Judge see the documents. There are, however, cases such as the present where it is helpful for the Court to be supplied with the documents in issue prior to the legal arguments taking place.

Principles to be applied 8 The claim for public interest immunity is to be determined by reference to well established common law principles. Those principles may be succinctly stated. Production will not be required of documents, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose them: Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ. Put another way, the relevant question is: "...would the public interest be best served and least injured...by compelling or by refusing to compel disclosure to the Court of the information and of the documents sought by the subpoena?" 9 (Alister v The Queen (1984) 154 CLR 404 at 453 per Brennan J.) 10 In both of these cases it was recognised that, when such an issue arises, the Court is required to consider two conflicting aspects of public interest, those being harm done by the production of the documents as against a consideration of the fair and efficient administration of justice: See Alister (at 412) per Gibbs CJ. 11 Public interest immunity is but one form of valid objection to production of documents pursuant to subpoena (Attorney-General v Stuart (1994) 34 NSWLR 667 at 672E; Alister v The Queen 404.) In an appropriate case the Court may take an informal "peek" at the documents without their being formally produced. (Conway v Rimmer (1968) AC 910 at 971, 979, 995; Attorney-General v Stuart at 672D. Indeed, in Alister's case, the High Court examined the documents for itself prior to deciding that they should not be produced.) 12 Public interest immunity is a doctrine of substantive law and represents a fundamental immunity (Jacobson v Rogers (1995) 182 CLR 572 at 588-589). It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. As indicated above, the balancing process requires that the public interest in confidentiality must be weighed against the public interest in disclosure. 13 There are a number of well-recognised categories of public interest immunity. However, the categories of public interest immunity are not closed and must alter from time to time, whether by restriction or by extension as social conditions and social legislation develop. (D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 230); see also Sankey v Whitlam at 39). Categories of public interest immunity include Cabinet documents and other State papers; documents the production of which would hinder or affect proper policing (Young v Quinn (1985) 4 FCR 483 at 494 and 495); documents the production of which would hinder ongoing police investigations (Young v Quinn; Marinovich v DPP & Anor (1987) 14 ALD per Foster J at 315; Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J; Attorney-General v Stuart per Hunt CJ at CL at 680-681; and per Smart J at 690E); and, finally, there may be mentioned as a common category the protection of police informers (Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233-234; Attorney-General v Stuart at 679G; R v Smith (1996) 86 A Crim R 308 at 311-312). 14 There are further categories of public interest beyond those I have set out above. These include aspects of national security, international affairs and interstate relations. They include information about police internal investigations; information obtained generally in confidence, and commercially sensitive information. There is no need for me to list the authorities in support of these and other categories not mentioned in this brief outline. 15 Where, however, a public interest immunity claim is raised in relation to documents called for by a subpoena, it is still necessary for the Court or tribunal hearing the claim to follow the three stage process spoken of in the various authorities to which I have referred. First, there is the ascertainment of the legitimate forensic purpose; secondly, there is the establishment of the claim of immunity; and finally, there is the third step in the process, namely the balancing exercise. 16 The term "legitimate forensic purpose", in relation to subpoenas, has two aspects, as Simpson J said in R v Saleam (No 2) (1999) NSWCCA 86 at (11)): "Before access is granted, or an order to produce made, the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case." 17 See also R v Saleam (No 1) (1989) 16 NSWLR 14 at 18(C); Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504; Carroll v The Attorney-General (1994) 70 A Crim R 162 at 181-182; Attorney-General v Chidgey (2008) NSWCCA 65 at (64) (68 and 81 to 86). 18 As these authorities show, the onus falls on the subpoenaing party to establish that the subpoena has a legitimate forensic purpose. It is not sufficient to show that the material caught will simply include relevant documents. A statement of the legitimate forensic purpose must be precise and a fishing expedition can "never be allowed" (Alister at 414). A fishing expedition will include an endeavour to ascertain whether or not there is an issue that the subpoenaing party may be able to exploit, or to check whether or not some fact or facts exist (Attorney-General v Chidgey at (81 to 86)). In particular, it is not legitimate simply to subpoena documents if all the party is doing is trying to get hold of documents to see whether they may assist him in his case or to see whether he or she has a defence. (See my earlier decision R v Baladjam [No 28] at paras 41 and 60). 19 As to the second aspect of the identification of a legitimate forensic purpose, it is then necessary for the subpoenaing party to persuade the Court that the documents sought will assist in the achievement of that purpose. The expression "on the cards" comes from Gibbs CJ in Alister's case. In Attorney-General v Chidgey, the Court disapproved of a number of more recent statements of the test as expounded by individual judges both in New South Wales and elsewhere. The "on the cards" test is a relaxation of the test applicable in civil cases. It is a more appropriate test in criminal proceedings because it recognises that an accused person may be on trial for his or her liberty (Alister at 456; R v Saleam (No 1) at 17-18). Normally, where a subpoenaing party cannot establish that a subpoena under challenge was issued for a legitimate forensic purpose and, in criminal proceedings, that it is on the cards the documentation sought will materially assist his or her case, then the subpoena will not be regarded as valid and may be set aside (Principal Registrar of the Supreme Court v Tastan at 508).

Legitimate forensic purpose 20 Neither of the present claims for public interest immunity has attracted an application by Mr Singleton to set aside the subpoena. Nevertheless, both counsels' submissions recognise that it is necessary for Mr Scragg (who appears for Mr Jamal) to establish a legitimate forensic purpose. Mr Scragg's task has been made all the more difficult because he does not know which paragraph of paragraphs 12 to 15 of the subpoena capture the relevant documents. Nor, of course, does he know the nature of the documents. 21 Briefly summarised, Mr Scragg's submissions were these. Paragraph 12 seeks the production of surveillance records where the accused's name is recorded for the period of the conspiracy and up to the time of the accused's arrest. As to the period of the conspiracy, Mr Scragg pointed out that he has been served with a master surveillance summary running for some 499 pages. The surveillance evidence is a significant part of the Crown case and it is to be relied upon by the Crown to show the nature and extent of the association between his client and others of the accused. It is also designed to show his client's association with other persons who are not said to be conspirators, but who have a relevance to the conspiracy. 22 Against that background, Mr Scragg argued that the surveillance records for the period of the conspiracy would be likely to show occasions when his client was not associating with the persons named who were outside of the conspiracy but associated with it. They might also be likely to show an innocent level of association between his client and other of the alleged conspirators, for example, their attending together at purely social or religious events. 23 As to the period between 8 November 2005 and 21 December 2005, Mr Scragg wished to examine surveillance records as part of his client's case that ammunition found at his premises on 9 December 2005 may have been planted there by somebody else. In addition, Mr Scragg said there was a suggestion in the Crown case that his client had "gone underground" in the period before his arrest, and the surveillance records would be likely to show that this was not so. 24 Mr Scragg placed particular reliance on a decision of the New South Wales Court of Criminal Appeal in R v Taylor (2007) 169 A Crim R at 543. 25 Mr Scragg then addressed paragraph 13 of the subpoena. In relation to this paragraph (and indeed paragraphs 14 and 15) he repeated firstly his principal submission. In relation to the reference to Mr Houda in 13(iii), Mr Scragg said that the request contained in the subpoena had been narrowed, by agreement, down to one day, namely 9 December 2005. This was the day when Mr Houda is alleged to have had a particular conversation with one Detective Moroney. Mr Scragg had been told that there was nothing to produce, but he suggested that a clear purpose had been established for the request made in the subpoena in that regard. In other words, Mr Scragg was saying that he was seeking to find a listening device warrant that may have picked up the conversation between Mr Houda and the detective on 9 December 2005. 26 In relation to paragraph 14 of the subpoena, Mr Scragg sought to have produced any warrants issued under s 11 of the New South Wales Crime Commission Act 1985 authorising the search of his client's premises or motor vehicle. Mr Scragg sought to establish a legitimate forensic purpose by arguing that the production of these warrants might be relevant to issues relating to material of an extremist kind said to have been found at his client's premises or on the computer at his house. Such issues might include how long material of that kind had been inside the premises, and who had access to the premises in the relevant period. These were, counsel submitted, all highly relevant issues in relation to the extremist material and other matters said to have been seized. They were also relevant to the question of the ammunition found on the premises and to the movements of the motor vehicle, particularly in September and October 2005. In other words, Mr Scragg seemed to be suggesting in his argument that the existence of other searches that took place of which his client may have been unaware would be important in the defence case. A similar argument was presented in relation to paragraph 15 of the subpoena. 27 In relation to the redacted material is the four warrants Exhibit 1. Mr Scragg has endeavoured to establish a legitimate forensic purpose so as to justify his being provided with the edited material. Mr Scragg disclaimed any desire to receive any information about the nature of the particular device used in the execution of the warrants. He sought, however, to be given access to the edited address or addresses. As I have noted earlier, Mr Scragg is of course significantly hampered by the fact that he does not know the address or addresses appearing in the warrants, whereas the Court possesses that information. Essentially, Mr Scragg's point was that, if the warrants were directed to his client's premises or to his client's motor vehicle, even if no product ensued, the evidence of the absence of such evidence might be relevant so as to cast an innocent light on his client's activities during the period of the warrants, namely, 22 March to 1 May 2005. Similarly, if the warrants relate to any of the businesses referred to in paragraphs 13(ii) of the subpoena, the absence of product would, for the same reason, be significant.

Submissions on behalf of the New South Wales Crime Commission 28 Mr Singleton submitted that, in accordance with the authorities I have referred to earlier, Mr Scragg had failed to demonstrate a legitimate forensic purpose. In reality, Mr Singleton argued, the submission on behalf of Mr Jamal sought to elicit whether or not there were documents in existence, or other information, which might be of assistance to Mr Scragg's client in the conduct of his defence. Such an endeavour, according to Mr Singleton, was classically a fishing expedition. The very width of the period specified, for example, in paragraph 12 (between 8 July 2004 and 21 December 2005) demonstrated that the subpoena, in its present terms, could not be said to be one that addressed a legitimate forensic purpose. 29 Similarly, Mr Singleton argued that the submissions in relation to paragraphs 13, 14 and 15 were tinged with the same poison. It was not appropriate, for example, to subpoena material simply to see who if anybody, may have turned up at a given shop or business over a period of approximately five months. Insofar as Mr Scragg's arguments have focused on search warrants (covert or otherwise) at 15 Punchbowl Road, Belfield, or in Jamal's car, Mr Singleton submitted that it could not be suggested that it would be "on the cards" that the documents sought would show anything of assistance to the defence case. Search warrants would not show that, for example, a planting of ammunition had occurred at Jamal's home. Nor would such documentation say anything as to whether the accused expressed extremist views at any particular time or held documents that expressed such views. The warrants would not assist the accused in establishing the identity of persons with whom the accused was associating. The Crown case, in any event, is concerned with the accused's level of association with the co-accused especially on social and religious occasions. The Crown intends to lead all evidence of this kind. 30 Mr Singleton accepted that his client had not sought to set aside the subpoena. Rather, it had produced a body of material pursuant to the relevant paragraphs. Counsel submitted that, notwithstanding that no application had been made to set aside the subpoena, the Court might simply determine that no legitimate forensic purpose had been established and, on that basis, order that production not be made without necessarily having to consider the public interest immunity claim. In other words, Mr Singleton submitted that a favourable finding in his direction in relation to the first step in the process identified by the authorities might itself, without more, lead to orders being made as sought by the Crime Commission. Finally, Mr Singleton submitted that Mr Scragg had not identified any legitimate forensic purpose for being given the redacted address or addresses appearing in the four warrants produced pursuant to paragraph 13 of the subpoena.

Legitimate Forensic Purpose 31 I will deal firstly with the principal claim that has been argued, namely the issue of the production of the documents "captured by paragraphs 12 to 15 of the subpoena". Has Mr Scragg established a legitimate forensic purpose? In one sense, this is not an easy issue to resolve. The nature of the Crown case against Mr Jamal is entirely a circumstantial one. The circumstances are very detailed and multi-faceted. I examined some details of the Crown case against Mr Jamal in a bail application decision given in December 2007. I will not repeat the details in this decision. A reading of the bail decision will indicate, I consider, the general nature of the case against Mr Scragg's client. What is Jamal's "defence"? The accused, of course, carries no onus, but all I have been able to glean thus far is that the accused will deny that any of his actions, if they be his, were of a terrorist kind. This is a broad assertion and does not convey to me a particularly clear insight into the nature of the defence case. 32 I will mention in this decision but a few of the matters relied on in the Crown case statement concerning Mr Jamal. First, there is the allegation that on 28 September 2005, he and a co-accused, Hasan, attended Auto King, an automotive parts retailer in Punchbowl, and placed orders for sulphuric acid and distilled water. The accused, according to the Crown case, used a false name "Adam", and provided a mobile telephone number which was connected in a false name. A false reason was given for the purchase. The Crown case is that this phone service was used by Mr Jamal on other occasions. Jamal also provided the shop with a second mobile telephone number, this also being a phone connected in a false name on that very day. (The Crown case is that Jamal attended Auto King on a number of other occasions in the following weeks and inquired about the order that had been placed). To return to 28 September 2005, the Crown case is that on this day Jamal also attended Chemical Cleaning Solutions, a commercial chemical supplier at Campsie, and made inquiries about the purchase of certain chemicals. An order was placed using the second false name mobile telephone service I mentioned earlier. This order was for methylated spirits, hydrochloric acid, citric acid and glycerine. The person placing the order, if it were Jamal, gave a false explanation for wanting to purchase the chemicals, according to the Crown case. 33 Some weeks later, Jamal is alleged to have attended Peter's Hardware at Greenacre. He produced a receipt that had been given to Hasan by an employee of that business on 28 September 2005. Hasan, on that earlier day, had ordered acetone in a false name, and had provided the same false telephone number Jamal had used on that same day. Jamal told the employee at Peter's Hardware that he had come to pick up the order, although it was never collected. Jamal gave a false name and referred to the same false name and telephone number. 34 On 13 October 2005, Jamal and another male, according to the Crown case, attended Auto King to pick up the distilled water and sulphuric acid that had been ordered on 28 September 2005. There was discussion with that employee, and eventually Jamal collected the distilled water from Auto King. It was loaded it into a white station wagon, TUD-473. (Later, in the early morning of 10 November 2005, distilled water containers, consistent with those collected on 28 September 2005, were found in a burnt out car. The Crown case is that this was the vehicle used by Hasan when he attempted to collect orders from a company called Padstow Hardware on 5 November 2005. There were other items found in the car showing a connection between the car and Jamal. A white station wagon TBD 473 was located outside the premises of a co-accused Moustafa Cheikho. Again, there were connections between this vehicle and Jamal.) 35 On 13 October 2005, after the visit to Auto King, the Crown case asserts that Jamal attended Autoquip to collect 200 litres of sulphuric acid although, in the event, it was never collected. On 5 November 2005 Hasan attended Padstow Station Hardware and collected chemicals from the store. He also inquired about sulphuric acid. 36 Searches were conducted at the applicant's premises in November and December 2005. Some of the items seized on one or other of these occasions included a mobile phone handset, including an IMEI number which was identified as 351263009624040. The Crown case is that this handset was used in conjunction with a number of telephones activated in false names. There was also a bum bag containing two boxes of 45 calibre ammunition; one box contained 50 rounds of ammunition, the other box contained 35 rounds of ammunition. 37 There were also located numerous print-outs from various web sites or printed texts from other sources, including an article in which the author sought to disabuse the reader in relation to misconceptions that it would be allowable to hand in Osama Bin Laden; a typewritten text "Fighting for the cause of Allah (Jihad)"; excerpts from the Qur'an that support Jihad and "The Islamic Ruling on defending Muslim land under attack". 38 There was also material found on a computer in the premises. This included material of an instructional nature, including military documents relating to sniper training and weaponry; military documents relating to minefields and other military obstacles; a document entitled "Appendix D Urban Areas; how to move; how to enter a building; how to use hand grenades; how to use fighting positions". There was also a document entitled "Appendix H; field expedient anti-armour devices, contents on how to make expedient devices, eg Molotov cocktails, Eagle fireball; Eagle cocktail and other explosive devices". 39 The Crown case also relies on the association between Jamal and the other co-accused, and on the nature of the relationship between Jamal and an extremist cleric Benbrika. It also relies on the relationship between the accused and others who are not indicted as conspirators. 40 I have gone to some length to outline some features of the Crown case against Mr Jamal. I have done so simply to highlight the lack of precision in Mr Scragg's description of the legitimate forensic purpose for the material sought in paragraphs 12 to 15 of the subpoena. Paragraph 12 seeks all surveillance records for the entire period of the conspiracy and beyond. There is not the slightest focus on any particular matter in which, for example, a particular defence might arise. Similarly with paragraph 13, the time span for the warrants sought for Jamal's premises and/or motor car, cover a blanket period over the whole of the period of the alleged conspiracy and beyond. There is simply no focus on any particular date, occasion, event or occurrence. Paragraph 13(ii) seeks listening device warrants for five different businesses over a five month period. The documents sought in relation to Mr Houda and Detective Moroney relate, by contrast, to one day only. Finally, it might be observed that the search warrants sought to be produced in paragraphs 14 to 15 cover an extended period without any specificity at all, beyond naming the premises and the motor vehicle. 41 Mr Scragg sought to justify this approach by reliance on three authorities. The first was Taylor's case. In that case the applicant had been charged with offences relating to the manufacture of ecstasy. He had issued subpoenas to the Australian Crime Commission and others, but these were set aside by the trial judge. The subpoena had sought telephone intercept recordings in relation to a particular mobile phone number connected in the applicant's name. The trial judge had held that the subpoena was too broad and that no legitimate forensic purpose had been shown. There was, however, evidence that the Commission had intercepted over 300 calls, which had varying degrees of relevancy to the charges. They were said to have been intercepted in connection with a non-related investigation involving the applicant. The calls had been disclosed to the Director of Public Prosecutions. The Crown proposed to rely upon about 110 of these calls. The forensic purpose identified by Mr Taylor's counsel was to contradict a specific pillar of the Crown case. This was that the applicant had been provided with the phone by other persons to be used specifically for the criminal enterprise. Mr Taylor wanted to contradict this by demonstrating, through an examination of all the intercepted calls, that the phone was used for a variety of legitimate purposes. It was also sought to identify exculpatory material in the calls whereby an innocent explanation might be provided for calls, which were otherwise apparently incriminating. This aspect of "incrimination" related, in part, to a code said to have been used during the calls for the purpose of the enterprise, but which the applicant would say in his defence bore their ordinary meaning, and had no sinister connotation whatsoever. 42 Hidden J (with whom James and Hislop JJ agreed) said that the trial judge's approach to the question of legitimate forensic purpose had been "unduly restrictive". First, it was unlikely that Mr Taylor would have been able to identify with any particularity the calls, which might have assisted his case, but, in any event, it was not incumbent upon him to do so. The nature of the issues raised, that is, whether the phone was used for legitimate purposes or for the purpose of the criminal enterprise, and whether conversations alleged to be incriminating might be explained innocently, were sufficient to warrant the production of all the calls in question. Hidden J referred to a decision of Allan J in State Drug Crime Commission v Chapman (1987) 12 NSWLR 447 where his Honour had made the point that, generally, in respect of phone tap records, it is common experience that it is necessary frequently to go beyond the particular telephone conversation being immediately considered "in order to get their true flavour". 43 Mr Scragg focused on this decision, and in particular the reference to Allan J's remarks in Chapman's case. Mr Scragg submitted that it would be necessary to look at all the surveillance records to get "the true flavour" of surveillance material relied on by the Crown. It is true that the Crown proposes to rely on a body of surveillance evidence and that this has some impact on the presentation of the case against Jamal. It is, by no means, the major point of the circumstantial case against Jamal. It is however, part of the case. It is also true that part of the surveillance evidence will be to show the association between Mr Jamal and the alleged co-conspirators. It will also (or may also) address his association with other persons. As I understand it, however, the focus of the Crown case paragraphs I have attempted to summarise above do not depend on surveillance of Jamal to any significant degree. 44 Be that as it may, Taylor's case seems to me to involve a very different situation from that which exists in the present proceedings. In that case, there was a precise issue identified, namely whether the telephone was being used by Mr Taylor solely for the purposes of the criminal enterprise. Secondly, there was the issue whether the reference to a code being used could be borne out or substantiated by the telephone calls not produced. Here there is no precise identification of what the accused will say at all about his own actions. Regrettably, I can only make an educated guess about the nature of the case for Mr Jamal, especially in the light of the Crown case features I have identified. 45 The second authority upon which Mr Scragg placed reliance was my own decision in R v Lodhi, 21 February 2006. In that case, a subpoena had been addressed to the authorities seeking warrants pursuant to which product was obtained in a period between May 2003 and April 2004. The warrants identified were those obtained upon information suggesting that they were required to investigate the suspected terrorist activities of Lodhi and one Willie Brigitte. The AFP and ASIO asked to be excused from producing the documents referred to in the subpoenas and argued that Mr Lodhi had not demonstrated a legitimate forensic purpose. The Crown case related to certain actions carried out by Mr Lodhi and, in particular, upon his association with Willie Brigitte, a known terrorist. There was no dispute that physical surveillance evidence existed in relation to both Lodhi and Brigitte. Indeed, portion of it was to be relied upon by the Crown during the trial. The accused's case was that he was not involved in any planning for a terrorist act and he was not a participant in any preparation for a terrorist act. Specifically, his case was that he had no "illicit connection" with Brigitte in the context of terrorism. Their association was an innocent one, based on providing hospitality for a stranger who had arrived in this country. I held that a legitimate forensic purpose had been established and I refused to strike out the relevant paragraph of each of the subpoenas. 46 It will be seen that, in Lodhi, the legitimate forensic purpose was the need for the defence to establish that the association between Brigitte and Lodhi was a completely innocent one. It was "on the cards" that, after nearly two years of investigating and collating evidence against both men, there would be, or at least it would be on the cards that there would be, a good deal of surveillance material. The defence wanted to demonstrate that, despite this significant degree of surveillance, very little, if anything, had been detected to show anything of a terrorist nature in the association between the two men. 47 Once again, that seems to me to be a rather different situation than the position argued by Mr Scragg in the present matter. 48 The final case upon which reliance was placed was Saleam (No 1). In that case, Mr Saleam had appealed to the Court of Criminal Appeal against convictions for making a false and misleading statement with intent to obtain money, and for having either stolen or received stolen property. The particular issue related to a subpoena Saleam's lawyers had issued for the purposes of the appeal. It was addressed to the Commissioner of Police and sought the production of every document relating to the investigation and prosecution of the offences with which the appellant and a co-accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness in the committal proceedings and at trial. One of the issues before the Court of Criminal Appeal was whether the subpoena before it was too wide, and whether there was an absence of a legitimate forensic purpose. At 408 Hunt J said: "The terms in which the subpoena was expressed was certainly very wide. The documents sought were, however, specified with some (if perhaps insufficient) particularity, in that in effect every document in the possession of the police had to be produced. The subpoena obviously could be complied with, and it was thus not oppressive, if sufficient time were given. It was nevertheless far too widely drawn and upon its face there could have been no legitimate forensic purpose in having produced many of those documents after the trial had taken place (if indeed there would have been any such purpose in having them produced before the trial): Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 573-575. The time of the Commissioner to complain about the width of the subpoena had, however, passed for he had in fact been able to produce the documents (the documents to which access was specifically objected fell within a clearly identified category, being the reports of the investigation into the allegations of perjury). The width of the subpoena certainly on its face cast doubt upon the legitimacy of the forensic purpose for which the production was required. Again, on its face, the subpoena appeared to be no more than yet another manifestation of the currently fashionable employ of achieving, in effect, a one-sided (and impermissible) discovery against the police by having a call made upon such subpoena shortly before the trial." 49 His Honour went on to state the well established test that it was necessary, in order to prevent a mere fishing expedition, for the Court to be satisfied that a legitimate forensic purpose had been demonstrated and that it was on the cards the documents would materially assist the accused in his or her defence. 50 At 409-410 his Honour also said: "I should, however, stress that nothing which I have said so far should be understood as intending to encourage the issue of subpoenas of this type, either before the trial or any other time. In the vast majority of cases in which they have been issued, the purpose of such subpoenas has been nakedly tactical in nature, in order to frustrate (by means largely irrelevant to the real merits) the speedy disposal of the trial. Trial judges should be vigilant to set aside such subpoenas which are oppressive and in refusing access to the documents produced, unless and until some legitimate forensic purpose is identified expressly." 51 In the end, the Court granted access to the documents which had been produced. Mr Scragg relied upon the fact that access had been granted in that case, even though the call was for "every document relating to the investigation and prosecution of the offences" with which the appellant and his co-accused had been charged. I do not think that Mr Scragg can place very much reliance on Saleam's case. It was a case in which the argument related, despite the width of the subpoena, to a narrow class of documents, which had been produced, along with the whole file, to the Court of Criminal Appeal. It was a case where the principal argument related to access to the limited range of particular documents. The cautionary remarks of Hunt J are, in my opinion, of more value to the present argument than the terms of the order, which was made in the particular circumstances of the appeal. 52 My analysis thus far points fairly clearly to a predisposition to a holding that no legitimate forensic purpose has been established for the production of the documents said to have been captured by paragraphs 12 to 15 of the subpoena. 53 Before making a final decision in that regard, I shall turn to the documents which are the subject of the second claim. Here the issue is a narrow one. Four warrants have been produced and the public interest claim relates, for relevant purposes, only to the redaction of the address or addresses stated in the warrants. Mr Scragg submits that if the redacted addresses relate to his client's home, his client's car or any of the businesses named in paragraph 13(ii), then they may very well be relevant to his client's defence. Obviously, that is correct. The test, of course, is not one of relevance. What has to be done is to identify precisely, having regard to the issues in the trial, the purpose for which the documents are required and whether it is on the cards that the documents are likely to assist the defence case. Once again, I am left with a strong feeling that the real purpose of the call for the production of the redacted material is more in the nature of a fishing expedition than one arising from a genuine evaluation of the issues to be determined at trial. I rather suspect that Mr Scragg may have an optimistic view, not dissimilar to that of Wilkins Micawber in Charles Dickens' David Copperfield, in that he is, if not hourly, at least regularly "expecting something to turn up". 54 I think that I have made it fairly clear that I have some very serious reservations about the existence of a legitimate forensic purpose for the production of the documents in claim one and for the redacted material in claim two. I have, however, decided that I should not dispose of the matter on that basis. I will, despite my misgivings and uncertainty, conclude that it is possible that, notwithstanding the width of the subpoena, there may be a legitimate forensic purpose in relation to the documents and edited material. I do this for five reasons: first, Mr Singleton did not seek to set aside the subpoena. A considerable amount of material has been produced. Secondly, it may be that, with a degree of editing and more precision, the subpoena could be brought into a situation where it will throw up more precisely what it is that Mr Scragg hopes to achieve from the calls pursuant to the subpoena. This will, however, only entail a level of delay and postponement which I think is undesirable, especially having regard to the fact that the Court is now in its fifth month of dealing with preliminary applications. Thirdly, it may be that I have done less than justice to Mr Scragg's submissions, and it may be that I have not sufficiently comprehended the way in which he suggests the material would be useful to his client at trial. Fourthly, I suspect, as I said during argument, that Mr Scragg's client might well be left with a sense of grievance were the Court not to undertake an evaluation of the public interest claim and to carry out the balancing act that is thereby required. Because of the sensible way in which this application has been conducted, I know precisely the nature of the documents that have been produced. I know precisely the nature of the redacted material that is the subject of the second claim. But it is fairer, in the rather unusual circumstances of this application, that I should not leave either Mr Scragg or his client believing that there are documents capable of providing some type of assistance, powerful or otherwise, to the defence case, when in fact there may be none. 55 Finally, this is the first contested public interest immunity claim involving State interests. The decision may, I trust, provide guidance as to the approach to be taken in any later claims. (This is not, however, to suggest that an absence of legitimate forensic purpose will enable a subpoena to survive, especially where an application to strike it out has been made). 56 For those reasons, I propose to take the unusual course of simply stating that it may be possible that a legitimate forensic purpose has been established. If that be so, I am also entitled to assume that it is "on the cards" that material of the kind Mr Scragg hopes will turn up, may be or is available. In making these assumptions, I have put to one side my own knowledge as to the contents of the documents and material I have inspected. 57 I turn then to evaluate the public interest immunity claim, and to balance the competing considerations that need to be examined according to the authorities I have gathered together earlier in this decision.

Public interest immunity/balancing exercise. 58 It will be recalled that the first public interest immunity claim seeks to avoid the production of documents said to have been captured by paragraphs 12 to 15 of the subpoena. It will also be recalled that Mr Singleton, with good reason, sought to avoid indicating which precise paragraph or paragraphs of those under discussion related to the captured material. The precise nature of the public interest immunity claim can be seen from particular paragraphs set out in the confidential affidavit of Naguib Kaldas (Exhibit "A2"). In particular, the nature of the claim emerges from paragraphs 6, 7, 9 and 10-18. Further reasons in support of the claim are to be found in paragraphs 19, 22 and 24. Material to support the observation that there is nothing in the captured material to support the defence case of Mr Jamal is plainly apparent from paragraph 20, and from other material as well. 59 I am satisfied that the claim for public interest immunity has been fully substantiated and that it relates to a well recognised category of public interest immunity. The reasons for the claim have been adequately spelled out and precisely identified. (R v Stig NSWCCA (unreported) 17 October 1996; BC 9604843). In my view, the claim is a strong one and the level of the need to keep the material confidential is very high. 60 This having been determined, it is then necessary to consider afresh the purpose for the issue of the relevant paragraphs of the subpoena. It is also necessary to balance the interests of the accused, and the fair and efficient administration of justice, against the harm that would be done by the production of the documents (Alister (at 412) per Gibbs CJ). In relation to the various matters advanced by Mr Scragg, I did suggest to counsel during argument that it might, as a practical matter, resolve the issue completely if I were to say that I had examined the material and that I was satisfied it simply had no application whatsoever to any of the matters identified by Mr Scragg. Mr Scragg was not entirely satisfied with this suggestion so far as it bore on the factual evaluation of the material captured by the subpoena. Nor, indeed, was he satisfied with the propriety of the legal proposition underlying my suggestion. In the latter regard, Mr Scragg referred me to a passage in Saleam (No 1) where Hunt J, at 409, had said: "If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated the Judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisors only) to satisfy himself on that score after his own inspection of the documents." 61 It may well be that Hunt J had in mind the practice in civil proceedings where a Judge had, historically, retained the right to refuse access to the subpoenaing party, until he was satisfied that the proceedings had reached a stage where the documents had become relevant to an issue actually appearing in the trial (see Waind v Hill & National Employers Mutual General Association (1978) 1 NSWLR 372 at 385B-E). In any event, however, Hunt J makes it clear that his comment is confined to a situation where no public interest immunity is either claimed or upheld. It is fair to say, in the present matter, that I have taken more than a "peek" at the captured documents, even though they have not been formally produced to the Court. Indeed, I have examined them very carefully. In a criminal trial, where the Judge is invited to inspect documents involving a claim for public interest immunity, it is his duty to give very careful consideration to the likely issues at trial and to determine, after a close inspection, whether there is any matter which may assist the accused. It is only when that has been done that the appropriate balancing exercise can be performed. In this role, as with many others involved in a criminal trial, the obligation on a Judge is to be impartial, even-handed and alert to matters that may prevent an injustice to the accused. The trial judge must take a liberal approach to an examination of the material to ensure that anything that may be of real assistance is brought into the balance. 62 Mr Scragg has done his best under difficult circumstances. I have the documents and he does not. I have the benefit of the confidential material in Exhibit "A2". Mr Scragg does not. Making every allowance for the matters sought to be relied on by counsel, I can find absolutely nothing in the captured material that would be of the slightest assistance to the accused. In view of the high confidentiality of the reasons underlying the public interest immunity claim, it is my view that I should not record my detailed reasons for this finding, even in confidential form. Of course, if the parties were to insist that some record of reasons be made in this regard, I do not doubt that it could be done. But it is my firm view that the reasons for my conclusion appear immediately and convincingly from the documents themselves and the paragraphs of the confidential affidavit I have identified. Even giving full allowance for the scope of the legitimate forensic purpose identified in a number of ways by Mr Scragg, I consider the documents do not assist the accused in the slightest. They do not touch upon any of the forensic purposes identified by Mr Scragg in his submissions. The balancing exercise in these circumstances must fall heavily and unequivocally on the side of non-production. 63 In those circumstances, I conclude that the documents captured by paragraphs 12 to 15 of the subpoena should not be produced. 64 I turn finally to consider the four redacted warrants which were produced pursuant to paragraph 13 of Mr Jamal's subpoena. It will be recalled that Mr Scragg argued that it was on the cards that the address or addresses in the four warrants might well relate to his client's premises or to his motor vehicle. Alternatively it was on the cards that they might relate to one or more of the businesses referred to in paragraphs 13(ii). Once again, I have had the advantage of examining the un-redacted form of the warrants. Mr Scragg has not. In addition, I have the information contained in the confidential affidavit of Carlene Anne York (Exhibit "E"). This affidavit gives detail as to the "location information", namely, the address or addresses appearing in each of the four warrants. The claim against production related to material, that, if it were revealed, would disclose important aspects of police methodology. It is not possible to say more without breaching the confidentiality involved in the affidavit. The particular matters are dealt with in paragraphs 5 to 10. The need to keep the information confidential is at a reasonably high level. 65 Once again, I have given particular attention to the asserted legitimate forensic purpose identified by Mr Scragg in his submissions. This is a case where no product emerged from the use of the listening devices. The sole issue relied on by Mr Scragg went to the "location information" redacted from each of the warrants. I have endeavoured to make full allowance for the purposes identified by Mr Scragg in his submissions. I am satisfied that the production of un-redacted material in relation to the address or addresses shown in the warrants would not be of assistance to Mr Jamal's case, or to any of the purposes identified by Mr Scragg. 66 It is true, however, that the existence of the warrants, and the fact that no product exists as a consequence of the warrants might, whatever be the nature of the location information, provide some type of negative assistance to the defence case. I very much doubt that this is so, but, in carrying out the necessary balancing exercise, I will allow for that possibility. In my view, the balance still falls fairly and squarely on the side of not ordering the production of the redacted material. 67 The order I make is that the New South Wales Crime Commission be excused from any obligation to produce to this Court the documents contained in Exhibit "A1", and that it be further excused from any obligation to produce to this Court the documents contained in Exhibit "C" in un-redacted form.

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Listening Devices Act 1984(NSW)

At a glance

Court

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Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

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Legislation Cited (1)

Cases Cited (10)

Cited By (6)