Regina v Gergis

A complication arises - a Prostitute is murdered 17 On 7 November 1998 the body of Rachel Campbell was located in church grounds at Rosebery. She was last seen alive when dropped off to commence her work as a prostitute in the vicinity of Forbes Street Darlinghurst on the evening of 6 November 1998. The body was found naked underneath a sheet and a blanket with fatal knife wounds to the throat. 18 On 10 December 1998, police investigating the murder spoke with an number of other prostitutes in the Forbes Street Darlinghurst area. At this point of time investigating police were told by Maree Williams that she had been robbed at knife point by a heavily built male person of Mediterranean appearance. This person had been armed with a large silver knife and was driving a red Mercedes Benz. As I have recited earlier, the applicant was arrested on 21 November 1998 and charged with the robbery, whilst armed, of Maree Williams. A few days later he was charged with the assaults on Miss McMillan. 19 It is quite clear that the applicant was under suspicion at least from mid-November for the murder of Rachel Campbell and in the months following he remained under suspicion. For example, Detective Snr Constable Jeremy Raftos applied on 24 February 1999 for the issue of a search warrant to enter and search the applicant's premises at 13 Lyndhurst Avenue, Hunters Hill. This search warrant was issued on the basis that there were grounds for believing that certain items belonging to the applicant were available at his home and that these items were connected with the murder of Miss Campbell.

The Further History of the Charges against the Applicant 20 A committal hearing was held on 15 June 1999. Mr Price, the presiding Magistrate had made certain orders under s 48E of the Justices Act limiting the cross-examination of the witnesses McMillan and Williams. His Worship permitted cross-examination as to the identification by Miss McMillan of the applicant and the situation in which she came to ascertain the licence plate number of the relevant motor vehicle. He also permitted her to be cross-examined as to the nature and quantity of prohibited drugs that she had taken prior to the attack and certain other matters. Cross-examination was permitted of Miss Williams in relation to her identification of the applicant and her ability to recall the number plate of the red Mercedes. At the conclusion of the committal proceedings, the applicant was committed for trial in the District Court at Sydney.

The Subpoenas 21 Between August 1999 and June 2000, there were in fact six subpoenas served on the Commissioner of Police. For reasons not necessary to explain, the issues which arise in relation to these applications for leave to appeal concern only the three subpoenas I identified at the outset of this judgment. 22 On 24 January 2000 the Commissioner of Police applied before his Honour Judge Keleman to set aside the subpoenas which had been issued on 20 November and 23 December 1999. This hearing was set down for two days. The basis of the motion was a claim that no legitimate forensic purpose existed for production of the material sought. Prior to argument before his Honour, the respondent for the first time asserted a claim of public interest immunity in relation to certain of the material sought. The hearing was adjourned to allow the respondent to prepare properly this further claim. 23 On 28 and 29 February 2000 his Honour Acting Judge Stewart heard submissions and gave his rulings in relation to the first of the three subpoenas which are the subject of the applications before this Court. On 12 July 2000 his Honour Acting Judge Andrew heard further arguments regarding the defence subpoenas. Counsel for the applicant submitted that the Acting Judge should review the orders made by Acting Judge Stewart regarding the subpoena issued on 20 November 1999. In effect, his Honour declined to do so. His Honour heard argument regarding the subpoenas issued on 23 December 1999, 21 February 2000 and the remaining subpoenas. His Honour gave his decision on 13 July 2000. He dealt with the various subpoenas in the manner I indicated at the outset of this judgment. 24 On 21 July 2000 Acting Judge Andrew made new orders regarding paras 16 and 17 of the defence subpoena issued on 21 February 2000. According to the applicant's submission these new orders reversed orders which had previously been made in favour of the applicant. The respondent on the other hand says that his Honour merely clarified the previous orders he had made.

The Nature of the disputed Materials sought in the Three Subpoenas 25 It is convenient at this stage to set out in some little detail the material which is sought in these leave applications.

The First Subpoena 26 The first review application focuses upon two paragraphs in the schedule to the subpoena issued on 20 November 1999. These are paras 1 and 18 which are as follows: -

Paragraph 1 Cops entries, running sheets, statements (where the hard copy or electronically recorded) made in relation to alleged murder of Rachel Campbell.

Paragraph 18 Tapes and transcripts of telephone interceptions in respect of the following telephone numbers (between 21 November 1998 to date): 0413 132 999. 27 There was before Acting District Court Judge Stewart three affidavits of Kenneth Edward Moroney sworn 25 February 2000. Each of these affidavits sworn by a Deputy Commissioner of Police addressed specific paragraphs in each of these schedules to the three subpoenas under dispute. Relevantly, the affidavit dealing with the subpoena issued on 20 November 1999 identified whether documents were available, whether they had been produced and put in issue material in respect of which it was claimed there was no legitimate forensic purpose. Finally, in relation to certain material a claim of public interest immunity was made and argued based upon a confidential statement exhibited to the affidavit, the statement being that of Detective Senior Constable Raftos which outlined the nature of the matters underlining the claim for public interest immunity. 28 His Honour gave careful and detailed attention to the lengthy submissions which were put before him on behalf of the applicant. His Honour came to the conclusion that in relation to each of the paragraphs he was satisfied that no legitimate forensic purpose had been advanced which would support the production of the material. Additionally, so far as a claim for public interest immunity was made in respect to the material in the two paragraphs his Honour also upheld this claim. 29 His Honour's decision was given against the background of his Honour noting the fact that there was no objection on the part of the Commissioner to producing material in relation to conversations between the alleged victim McMillan, (aka Reeid) and the alleged victim Williams, which were set out in Cops entries and other records which arose in relation to the death of Rachel Campbell. 30 Two points may be noted: first, the material which his Honour ordered need not be produced related to the documents made in relation to the alleged murder of Rachel Campbell which were other than those relating to conversations with Miss McMillan and Miss Williams. Secondly, although his Honour upheld the public interest immunity claim, it was not strictly necessary for him so to do in the light of his clear finding that there was no legitimate forensic purpose for the production of the material in issue.

The Second Subpoena 31 In relation to the subpoena dated 23 December 1999 the matter which is in dispute in this review application is in para 2 of the schedule to the subpoena. This is as follows: - "2. All original documentation (where the hard copy or electronically recorded) including the not limited to police note books, duty books, log books, occurrence pads, running sheets, cops entries produced kept or made by the following named officers for the period 1 November 1998 to date." (There then followed the names of some 22 police officers). 32 Deputy Commissioner Moroney, in his affidavit dealing with this subpoena, stated that he had been advised by Detective Raftos and verily believed that photocopies of the relevant notebook entries of police officers involved in the investigations of the offences for which the applicant faced trial had been produced after a previous subpoena. This was a reference apparently to an earlier subpoena issued on 25 August 1999. 33 It is to be noted that the material sought in para 2 of the schedule to this subpoena was in "blanket" form. Apparently it was made clear to Acting Judge Andrew that the call for production was to be limited to documents described in the following manner: - "Police notebooks, duty books, log books, occurrence pads, running sheets, cops entries produced kept or made during the period 1 November 1998 to 31 March 1999 by the named officers in relation to or concerning in any way either

(i) the present charges, (ii) Karen Gergis, (iii) the complainants, (iv) investigations into the murder of Rachel Campbell." (There then followed the names of 10 police officers.) 34 It was accepted before his Honour that documentation had been produced to the defence. This documentation was of the nature of the materials sought but confined to the allegations made by Miss McMillan and Miss Williams. The material was in photocopy rather than original form. 35 His Honour gave careful consideration to the lengthy submissions put on behalf of the applicant. His Honour accepted that certain material had been provided. He was of the view however, that it had not been established that there was a legitimate forensic purpose established to justify the production of the original documentation and other material referred to in the wide ranging call.

The Third Subpoena 36 The matters in dispute in relation to the subpoena issued on the 21 February 2000 were paras 4, 5, 14, 16 and 17 of the schedule to the subpoena. These are in the following terms: - "4. All records, including but not limited to notes, running sheets and statements regarding all conversations between police including but not limited to Detective Senior Constable Raftos, Detective Senior Constable McCarthy and Detective Sergeant Kearney, and Mr John Toniato of 40 Wymston Pde, Abbotsford, at all times. 5. Records of all warrant applications made in respect of the accused, Karim Gergis, his premises at 13 Lyndhurst Cres. Hunters Hill, and telephone numbers 9817 5662, 0413 132 999, 9758 0088 and 0417 253 991, including but not limited to all applications for electronic surveillance warrants. 14. Copies of all progress reports submitted by investigating police, including but not limited to Detective Senior Constable Raftos, Detective Senior Constable McCarthy and Detective Sergeant Kearney, on 24/11/98 or any other date, relating to the charges against Kerim Gergis of "armed robbery" and "assault" and the investigation of the murder of Rachel Campbell. 16. DNA profiles, pathology and toxicology reports and the results of all forensic examinations obtained during the investigation of the murder of Rachel Campbell. 17. Photographs and reports of any bite marks on the body of Rachel Campbell, or bite marks on property found with her body." 37 In relation to para 4 his Honour upheld the claim of public interest immunity. I infer that his Honour was also of the view that no legitimate forensic purpose had been shown for the production of the material in relation to the material of Mr John Tonniato, a prospective witness in the defence case. 38 In relation to para 5 of the schedule, his Honour noted that no reliance would be placed by the prosecution on any telephone intercepts. His Honour was of the view that no legitimate forensic purpose was shown for the production of the warrants for electronic surveillance. His Honour noted that there were two search warrants which the respondent was prepared to produce and he ordered their production. 39 Deputy Commissioner Moroney deposed in his affidavit relating to para 14 of the schedule to the subpoena that there were no progress reports in existence relating to the charges which had been brought against the applicant. He objected to the production of any progress reports relating to the murder of Rachel Campbell on the basis that there was no legitimate forensic purpose for their production. He also claimed public interest immunity. 40 His Honour rejected the call for production of progress reports relating to the murder on the grounds of lack of legitimate forensic purpose and public interest immunity. 41 A complication arose in relation to paras 16 and 17 of the schedule. His Honour clearly took the view that in the light of the concession made to him that the DNA of semen found in and near the victim did not match the applicant, he was of the view that material should be produced which related to the applicant and any comparison or analysis done of the applicant's DNA and the DNA found at the crime scene. Remarks made by his Honour to this effect after he had finished his judgment made this clear. 42 For essentially the same reasons he ordered that photographs and reports or any bite marks on the body of Rachel Campbell or bite marks on property found with her body be produced. His Honour explained that he understood that the applicant had been requested to provide bite impressions "in an effort to exclude him from the Campbell inquiry". 43 His Honour made it clear when queried about the extent of the orders that he had intended the police produce any comparative report in relation to the bite marks of the applicant and the bite marks found at the crime scene together with the report that analysed and compared those marks. His Honour also made it clear that when ordering the comparison of DNA profiles be produced he did not intend this to include pathology and toxicology reports. 44 It then became clear that his Honour had been acting under a misapprehension that the applicant had provided bite marks to the police and that there was in fact in existence a comparison of his bite marks with those found at the murder scene. His Honour acknowledged that this was his mistake and granted a stay of this aspect of his order for a brief period of time. 45 On 21 July 2000 his Honour revisited the question of the orders he made in connection with paras 16 and 17. He acknowledged the somewhat confusing form in which the orders had been left on the last occasion; and for the avoidance of doubt he vacated his earlier orders and made specific orders in relation to both paras 16 and 17. First, he ordered the production of DNA reports, pathology reports and toxicology reports of any comparison and analysis of material as they related to the applicant and the deceased including reports of the examination of the comparison of DNA semen found at the scene of the alleged murder and the DNA of the applicant. He upheld the objection to the production of any other material under para 16 on the ground of public interest immunity. In relation to para 17, his Honour clarified the order that he had made. He recorded that he had been under the mistaken belief that the applicant had produced a bite mark for examination. He then made an order which made it clear that he refused to order the production of details of the bite mark found on the body of the deceased or on property found with her body on the basis of public interest immunity.

The Basis of the Claim for Leave to Appeal 46 Before setting out the basis of the present applications, it is desirable to set out the principles which underlie such applications. The statutory basis resides in s 5F of the Criminal Appeal Act 1912 which allows an appeal against interlocutory judgments or orders. It has not been argued in the present matters that the orders made by Acting Judge Stewart and Acting Judge Andrew were not interlocutory orders. Sub-section (3) of s 5F allows the present applicant to appeal to this Court against the present interlocutory orders but only if leave to appeal is given; or if the trial Judge certifies that the judgment or order is a proper one for determination on appeal. No such certificate has been given in the present case. 47 Accordingly, it has been necessary for the applicant to seek leave to appeal. Although the Court has permitted full argument of the various matters raised in the appeals which are at the centre of the applications for leave, there remains a clear procedural distinction between applications for leave to appeal and appeals as of right. In The Queen v Matovski (1989) 15 NSWLR 720 at 723 Gleeson CJ (with whom Lee CJ at CL and Grove J agreed) was careful to note that it was inappropriate to circumscribe the discretion which this Court has in deciding whether to grant or withhold leave to appeal. His Honour took the view however that where no error of law or discretionary principle in the reasons for judgment of the trial Judge had been established; and where a view of the facts at least open to the trial Judge had been taken by him, the case would not been one in which the interest of justice required intervention by the Court. 48 Mr Heathcote who appeared for the applicant did not quarrel with the principles set out in the written submissions on behalf of the respondent. These were to the effect that when a trial Judge is faced with a subpoena of the present kind, a threshold requirement arises for the party calling on the subpoena to establish a legitimate forensic purpose for obtaining access to the documents. Where a party is unable to show that it is at least "on the cards" that such documents will assist his case, he is not entitled to have access to such documents simply to see whether they may do so. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is a pre-requisite before the balance required for that claim can be struck (The Queen v Saleam (1989) 16 NSWLR 14; Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681 F-G; Alister v The Queen (1983-84) 154 CLR 404; Carroll v The Attorney General for New South Wales (1993) 70 A Crim R 162 at 181-182). 49 Mr Heathcote accepted, as I understand his position, that there will ordinarily be a need for the party seeking production to identify the issue or issues in dispute at the trial; what the party's case will be on that issue, or those issues; the manner in which the subpoenaed documents will assist the party's case; and what concrete grounds exist for believing that the documents will in fact so assist. 50 Two major arguments were advanced on behalf of the applicant. The first is that the applicant will be unable to obtain a fair trial in relation to the present charges unless he is able to assert to the jury, and to establish to their satisfaction, that he is innocent of the murder of Rachel Campbell. The gravamen of the basis for seeking access to all of the material which remains in dispute under the various subpoenas, is the assertion of a need to have access in essence, to all of the material deriving from the investigation of Rachel Campbell's murder. 51 In addition, it is argued that there are two specific matters which require the applicant to have access to this material. These are: - (i) The need to show that there was a motive for Miss McMillan and Miss Williams to fabricate the statements they made to the police, and the evidence they gave in the committal proceedings and which they propose to give at the trial. It is said this motivation resides in a suspicion or belief held by each of the complainants that the applicant is the murderer of Rachel Campbell. (ii) The need to establish motive for certain police officers who have, it is alleged, improperly assisted the two complainants to fabricate or tailor their evidence. This motivation, it is alleged, is the suspicion or belief of those police witnesses that the applicant is the murderer of Rachel Campbell. 52 The second major argument relates to the claim for public interest immunity/privilege. It is an argument that questions the validity of the procedure adopted in the present case in relation to the affidavits which claim public interest immunity/privilege. The argument is that the District Court Judges dealing with the claims for public interest immunity/privilege should have rejected as evidence in each case exhibit 2 to the affidavit of Deputy Commissioner Moroney. This was the confidential statement prepared by Detective Senior Constable Raftos of the Homicide and Serial Violent Crime Agency. Although the affidavit of the Deputy Commissioner was admitted into evidence in each instance without objection, objection was taken to the tender of the exhibit accompanying the affidavit. The argument is that Detective Raftos "has not pledged his oath"; and that Deputy Commissioner Moroney cannot attest to the facts contained in the confidential statement (Young v Quinn (1985) 4 FCR 483 at 485).

Has the Applicant established a Legitimate Forensic Purpose for the Disputed Classes of Documents? 53 This was the basic question considered at length and in careful detail by each of the two Acting District Court Judges. They were of the opinion that in relation to all the documents claimed (with the possible exceptions of the material referred to in paras 16 and 17 of schedule to the subpoena issued on 21 February 2000) no such claim had been established. I am not satisfied that any error of principle has been shown in relation to the careful and thorough considerations made by each of the Judges in relation to this threshold question. Moreover, I am positively satisfied that whether or not the applicant is innocent of the murder of Rachel Campbell is an entirely irrelevant consideration in relation to his guilt or innocence in respect to the charges which have been brought against him. 54 There are two matters which are especially significant in relation to my satisfaction about this aspect of the applicant's claim. First, it has been made clear to this Court that the Crown does not intend to tender any material at the trial in relation to the Rachel Campbell murder. Additionally, in the event that the applicant raises his good character as an issue in the trial, the Crown has stated that there would be no attempt to rebut the issue of good character by putting to the applicant that he remains a person of interest in the murder inquiry. Although the Crown was not a party to these applications, the Crown Advocate was permitted to appear and gave these assurances to the Court. 55 Secondly, it is conceded by Counsel on behalf of the applicant that it is not, and will not be, asserted that the robbery, the assaults and the murder were committed by one and the same person. 56 Having regard to these matters, I can see no connection between the three charges against the applicant and the murder of Rachel Campbell. Although there are some similar features of the charges and of the murder, (eg they each involve attacks upon prostitutes and occurred within the same time frame), I am not persuaded that there is a basis for the admission of the murder circumstances pursuant to ss 97 and 98 of the Evidence Act. To test the hypothesis, let it be assumed, contrary to what I have said, that the evidence were admitted: What direction could be given by the trial Judge as to the use to which a jury might put the evidence in relation to the charges brought against the applicant? The answer seems to me to be that the trial Judge could give no adequate direction other than to tell the jury to ignore the evidence altogether. Even were the material capable of exculpating the applicant entirely from suspicion in the murder, (and I am not satisfied it goes so far), what bearing would that fact have on the resolution of the issues that arise in relation to the charges which the applicant is facing? The answer seems to me to be that the material would have no bearing on those issues. 57 In so far as the suggested legitimate forensic purpose now advanced asserts a defence need to have access to material which may show motivation on the part of Miss Williams and Miss McMillan to fabricate their complaints against the applicant, the proposition strikes an insurmountable hurdle. There would need to be an evidentiary basis for the various assumptions which are implicit in the suggested purpose. In particular, the applicant would need to demonstrate that each of the complainants was aware of Miss Campbell's murder and the circumstances of it, and that the applicant was suspected of having committed it, before each of them complained to the police of having been separately attacked by the same person. 58 Miss Williams initially complained on 27 October 1998 that she had been assaulted. Although she provided sufficient details to the operator to enable the link to later be made between her attacker and the applicant, she was not aware of his identity at the time. It is however, significant that this call took place well before the date of Miss Campbell's murder. Similarly, the complaint made by Miss McMillan, although it occurred after Miss Campbell's death, was one which was made spontaneously, and quite unconnected to the fact or the circumstances of the murder. The evidence of the lay person Mr Da Silva who took her immediately to the police station establishes this quite clearly. There is nothing to suggest that at the time of making her spontaneous complaint, she knew that the applicant was a suspect in the murder, (if indeed he was at that time). It is also of significance to note that the defence case does not put in issue that it was the applicant who was with Miss McMillan near Mrs Macquarie's Chair on the evening of 9 November 1998. The issue will be confined to what happened in the car between them. 59 The second limb of this first argument relates to the assertion that the police (and in particular Detective Raftos) "assisted" the complainants in the preparation of their statements to implicate falsely the applicant in these offences. Again, the applicant strikes the same hurdle. Before Detective Raftos became involved in the investigation, each complainant had provided to police information which was capable of linking the applicant to each of the incidents. At the forefront of this extensive submission is the assertion that Detective Raftos has "suppressed evidence in the past"; and that this leads to the apprehension that further relevant material is being withheld. I shall set out in a little detail the way in which these assertions arise. It is convenient to do so by reference to the following matters: - (i) Constable Phillips signed a written statement in September 1999. It appears that a draft of this statement was available at an earlier point of time but was not supplied to the defence. A copy of the signed statement was provided in relation to the defence in response to a subpoena issued on 25 August 1999. The material produced included as well a copy of a COPS entry made by her and a photocopy of her police notebook. Constable Phillips was the police officer who spoke to Miss McMillan shortly after the incident with the applicant on 9 November 1998. (ii) The defence were not aware of Constable Phillips' statement at the committal hearing which took place on 15 June 1999. The statement, and the other documents produced by Constable Phillips, alerted the defence to the fact that Miss McMillan was known by another name ("Reeid"). (iii) With that knowledge, the defence concluded - no doubt accurately - that the reference in the duty diaries of Detectives Raftos and McCarthy as having been taken to Mrs Macquarie's Chair by a person known as Reeid only hours before and on the same day as the applicant's arrest was in fact a reference to Miss McMillan. (iv) Since, prior to the service of the Phillips' statement, the defence did not know of Miss McMillan's other name, that contact and that visit, occurring as it did only hours before the arrest, assumed great significance. Moreover, the Phillips' statement, in relation to the details of the reported offence is "radically different" from Miss McMillan's statement. (v) The significance of all of this was that: first, it suggested the Phillips material had been deliberately suppressed by the police to conceal the connection and to hide the inconsistencies; and secondly, that once the connection was shown, the meeting between the two Detectives and Miss McMillan took on a sinister air and suggested concoction and collaboration to achieve, inter alia, the applicant's arrest; and thirdly, that the defence team was justified in thinking that there might be further "suppressed" material, which would in all likelihood be "hidden" in the murder file. (vi) Thus it was suggested that a legitimate forensic purpose was established for the production of much of the material in respect of which the Acting District Court Judges had denied access. 60 There are three responses to this. First, for my part, I take the view, as I infer both District Court Judges did, that the evidence falls well short of showing any deliberate suppression of material. The plain fact is that Constable Phillips' statement was not completed and signed by her until September 1999. Moreover, it was produced after that date, as it properly should have been in response to a subpoena. Secondly, I do not accept that the sequence of events related by Miss McMillan in her statement is "radically different" from the details she provided to Constable Phillips. There are of course inconsistencies; but there are also important areas in which these statement coincide. Thirdly, the defence lawyers are now in possession of the various documents produced by Constable Phillips, and they will no doubt be able to use the material to their forensic advantage during the trial. It is to be expected that there will be vigorous cross-examination of Miss McMillan in relation to the apparent differences in the report she made to Constable Phillips and the statement she made for the purposes of the committal. 61 In short, I do not think that there is any evidence which provides a reasonable basis for coming to a conclusion that the police had been involved in any collaboration with witnesses or involved in any cover up or suppression of material. The continued reference in the written submissions relied upon by the applicant to the likelihood that there may be documents hidden in the murder file is a suspicion and nothing more. 62 Accordingly, I have come to the conclusion that no legitimate forensic purpose has been shown in relation to any of the material referred to in the disputed paragraphs of the various subpoenas. Although Andrew ADCJ ordered the production, pursuant to para 16 of the subpoena of 16 February 2000 of certain material in relation to the comparison of DNA profiles as they related to the applicant and the deceased, I am not satisfied there was any legitimate forensic purpose in relation to these matters. This is now an academic question as those documents presumably have been made available to the defence. In all other respects, I am satisfied that no error of principle has been demonstrated in the reasons for judgment of each of the Acting District Judges whose decisions have been called into question. The applicant has failed to establish the threshold requirement to establish a legitimate forensic purpose for obtaining access to the documents. I am not persuaded that the interests of justice require intervention by this Court. 63 In those circumstances, it is not necessary to determine the second major argument in relation to the claim for public interest immunity. 64 I propose that the applications for leave to appeal be dismissed.

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