Factual evaluation: the events of 2 and 3 May 2006
35 The parties, especially the Commonwealth, have placed before me extensive submissions in relation to the factual situation concerning the events of 2 and 3 May 2006. I do not propose to descend into the minute details involved in an examination of those written submissions. Rather, I think that it will be sufficient if I examine the factual situation in a relatively broad manner, bearing in mind, however, the detailed submissions that have been made.
36 Indeed, the factual situation is, in many respects, a comparatively simple one. There is a complexity of evidence, however, which is explicable on the basis that those involved in the circumstances of the two days in May have had to do their best to recollect and reconstruct those circumstances, sometimes at a distance from the events themselves.
37 A convenient starting point is the Notice of Motion filed on behalf of the accused. This was dealt with by way of directions in the preparation for the hearing of pre-trial issues arising in the trial. Kirby J had been designated as the trial judge and the motion came before him for directions during March and April 2006. Relevantly, the motion sought an order in the following terms: -
"5. An order that the book entitled "Provision in the Rules of Jihad - Short Wise Rules and Organisational Structures that Concern every Fighter and Mujahid Fighting against the Infidels" as well as any statements made by the accused during the execution of a search warrant at his premises on 6 May 2004 be excluded in exercise of the Court's discretion to exclude evidence improperly obtained, or alternatively upon the ground that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused."
38 The motion was first returnable on 31 March 2006. There were four mentions dealing with preliminary directions in relation to the motion (and other matters) on 10 March, 31 March, 12 April and 19 April 2006. It is immediately apparent from an examination of the transcript of those mentions that the evidence to be adduced by the Crown at trial was likely to be within a very short compass. The Crown proposed to prove that the accused had published the book the subject of the charge. That involved proving his connection with Internet transmissions by which the text of the book was placed on a publicly accessible site. Apart from proving that matter, and some oral statements, which he made in the course of the execution of the search warrant at his home, the thrust of the Crown case would be to ask the jury simply to look at the book itself and its contents. The Crown case was that an examination of the book would plainly satisfy the jury that it was connected with preparation for a terrorist act. It can be seen immediately that, were the book and the oral statements to be excluded in pre-trial decision, the Crown case would simply fall to the ground.
39 Initially, the hearing of the motion was listed to take place on 24 April 2006, although the date was later changed. It was ultimately listed for hearing on 11 May 2006. Kirby J gave directions that the accused's submissions in support of the motion should be filed by 4pm on 5 May 2006. The Crown was to respond by 10 May 2006. These orders were made on 19 April 2006.
40 The subpoena that is central to the present motion was issued on 20 April 2006. It was addressed to "Magistrate P. Morgan LCM, Downing Centre Local Court, 143-147 Liverpool Street, Sydney". It was issued at the request of the accused's lawyers and it required the production of documents to the Sydney Registry of the Supreme Court of New South Wales. The return date of the subpoena was Friday, 28 April 2006 at 9.30am. The documents required to be produced were: -
"1. All original and copy, record, materials and all other documents prepared in support of and relied on in issuing search warrant 616/2004 at the Downing Centre Local Court by Registrar P. Morgan LCM on 5 May 2004".
41 It is necessary to return to the mention on 19 April 2006. On that day, Mr Ian Barker QC had appeared before Kirby J. Mr Fagan SC had appeared for the Crown. There were a number of important issues dealt with at the directions hearing. There is no need for me to detail all of these. One matter arose, however, in the context of the subpoena which was to be issued, as it happened, on the next day. It is clear from a reading of the transcript that Kirby J was anxious to ensure that written submissions in support of the motion be finalised without delay. Mr Barker QC discussed this aspect of the matter with Kirby J. In the course of that discussion, he made it plain what the nature of the legal argument on the exclusion issue would be. Senior counsel said: -
"The argument is, as I understand it, that the compulsory interrogation of Mr Khazaal by ASIO led to a disclosure of evidence now used against him which is contrary to the Act."
42 The matter then under discussion was somewhat complicated by the fact that there had been an earlier subpoena issued by the defence. This was a subpoena issued to ASIO. It had been issued on 3 April and returnable on 12 April 2006. A complex of documents was sought in this subpoena. These documents related to intelligence obtained in relation to the suspected terrorist activities of the accused. In particular, it sought "any authorities or approvals given by the Director-General of ASIO to persons other than officers of the Australian Security Intelligence Organisation to enable those other persons to exercise authorities or powers under the ASIO Act 1979". It is clear that there was a potential for confusion in relation to the subpoena issued on the earlier date and the subpoena which was to be issued to the Local Court on 20 April. There were extensive and complicated national security issues in relation to the earlier subpoena. For that reason, ASIO had sought to come to an agreement with the accused's legal team as to the width and extent of the subpoena, and in relation to the protection of sensitive material that might be involved in the production of documents under that earlier subpoena.
43 By contrast, as will have been noted, the critical subpoena, the one issued to the Local Court, was not, on its face, a complicated document. It simply required the production of documents "prepared in support of and relied on in issuing" the search warrant.
44 A young solicitor, Justin Le Blond, had caused the subpoena to be issued to the Local Court. He was employed by Mr Houda. Although Mr Houda had overall conduct of the litigation, it appears that he left it to Mr Le Blond to speak to his junior barrister, Peter Lange, about the detail of the process of obtaining the information necessary to support the contemplated written submissions. It was Mr Lange, for example, who apparently gave instructions to Mr Le Blond to issue the subpoena.
45 From Mr Le Blond's perspective, the first problem that arose was this: the subpoena had been made returnable for Friday 28 April 2006. Mr Le Blond became aware however, that the Supreme Court Subpoena List operated only between Monday to Thursday. It did not function on a Friday. I should add that it seems that Mr Le Blond was on something of a learning curve, as he had been admitted as a solicitor only a brief time before, on 7 October 2005. In any event, he wrote to the Supreme Court Registry on 28 April requesting that the return of subpoena be listed for Tuesday 2 May 2006. Mr Le Blond said that he did not notify the Department of Public Prosecutions, the Australian Federal Police or any other Commonwealth Agency as to the issue of the subpoena. He did not understand it to be normal practice in criminal proceedings to do so. His experience, limited though it may have been, was that, whenever the DPP has an interest, it would appear on a return of subpoena, presumably because it has been informed by the recipient of the subpoena that it had been required to produce documents that might be the subject of an immunity claim. During his evidence, Mr Le Blond gave evidence of this situation arising in other matters, although he conceded he had not previously issued a subpoena to a Court.
46 As I have said, the Local Court arranged for the production of documents in answer to the subpoena. These documents, it seems, arrived at the Supreme Court Registry on 1 May 2006. The subpoena was listed before Registrar Durkin on 2 May 2006 at 9am. Mr Le Blond said he attended the Court on that morning. His purpose was to call on the subpoena and seek access to any documents produced. There was no appearance by the DPP at this return of subpoena. The Registrar informed Mr Le Blond that no documents had been produced. This was clearly an error.
47 Both Mr Houda and Mr Le Blond gave evidence that their experience had been, in the absence of opposition from any other person, that access would have been made available by the Registrar in the Court at the return of the of the subpoena. It did not happen on this occasion because of a mistaken belief on the Registrar's part that no documents had in fact been produced.
48 An officer from the Registry rang Mr Houda shortly after Mr Le Blond had left the Court on 2 May 2006. This person said to Mr Houda: -
"Documents have been produced in answer to the Local Court subpoena but the Registrar at the return of the subpoena hearing did not know this as the documents were not delivered to the Court from the Registry".
49 An officer of the Supreme Court who worked in the Registry gave evidence. This was Mr Richard Stride. He gave evidence on a number of topics. One of those related to the situation where an error of the kind that obviously happened here had occurred on other occasions. In such a situation, Mr Stride indicated that it was a possibility that he would ring the solicitor and let him know that the documents had in fact been produced. He did not, however, recall ringing Mr Houda.
50 Mr Houda rang Mr Le Blond on his mobile phone. The latter was still in the precincts of the Court at the time. Mr Houda asked him to go back to the Court and ask for access to the documents. He told Mr Le Blond that he had had a call from the Registry and that the caller had indicated that the documents had in fact been produced.
51 Mr Le Blond hurried back to Court 7E. But by the time he arrived there, the Court was closed, as its work for the morning had concluded. He spoke to a court officer and was told to go to the office of the Duty Registrar. Mr Le Blond told the Duty Registrar that he needed to get access to the documents which had in fact been produced. The Duty Registrar told him that she could not grant access because access must be granted in "open court". According to Mr Le Blond's affidavit, the Duty Registrar said:-
"You will have to get the written consent of the DPP before I can grant you access. If you get a letter from the DPP stating that they consent then I will grant you access".
52 This was understood to be a reference to access being given in the Registry, rather than in open court.
53 Mr Le Blond said he informed both Peter Lange and Adam Houda of these events. Here, two points need to be made. First, Mr Le Blond appeared to be uncertain as to whether the Duty Registrar had said to him, as he deposed in his affidavit, "You will have to get written consent of the DPP before I can grant access" or whether she may have said "I can grant access if I have a letter or some form of written document from the other side or the other party". In the ultimate, Mr Le Blond thought it "highly probable" that rather than using the term "the DPP", when he told Mr Lange of the discussion with the Duty Registrar, he had said that he needed the consent of "the other side or the other party". Secondly, Mr Houda said he had no recollection of being told by Mr Le Blond of the precise conversation that had taken place with the Duty Registrar. He conceded that it was possible that Mr Le Blond may have told him something about it. But he thought it rather more likely that the information had come to him from Mr Lange on the following day.
54 Mr Le Blond was now faced with something of a dilemma. He was in a difficult position. Through no fault of his own, he had not obtained access to the documents in open court that morning. He had complied with his employer's direction and attempted to obtain access through the Duty Registrar. This too had been unsuccessful. He may have spoken to his counsel about the problem. Mr Lange said that his recollection was that Mr Le Blond had stated that he had been told by the Duty Registrar that he could not make an access order without the consent of the other party. Mr Lange thought it was he who had advised Mr Le Blond to contact Mr Abdul-Karim of the DPP's office and explain that the defence team wanted the Director's consent as a matter of urgency. Mr Le Blond's evidence was that this may have been his own decision,
55 It may be convenient if I interrupt the narrative flow to record that, by the next day, Mr Lange said he became uncertain as to what the Duty Registrar may have meant by the expression "the other party". As a result of that uncertainty, he advised Mr Le Blond to contact the Registrar of the Downing Centre Local Court with a view to obtaining information that the Local Court had no objection to access being given to the documents. This enquiry was, in fact, made but the result was unsatisfactory. Mr Le Blond was told "The document is now with the Supreme Court. What they do with it is up to them". According to Mr Lange, Mr Le Blond also reported to him that, on the day previous he had, in fact, spoken to Mr Abdul-Karim. According to Mr Le Blond, the latter stated that the Australian Federal Police may object to inspection, although he had no instructions in the matter.
56 I now return to the detail of the events of Tuesday 2 May and to Mr Le Blond's part in those events. As I have said, Mr Le Blond rang Mr Abdul-Karim. There are a number of differences between these two gentlemen about the content of the conversations between them. The essential differences are these: first, Mr Le Blond thinks that when he rang Mr Abdul-Karim at 4.45pm on the Tuesday, the response was that the DPP's solicitor said that he would get back to Mr Le Blond about consent no later than the next afternoon. He asked for a copy of the subpoena to be faxed to him and said that he would get instructions. In fact, about 5.30pm on Tuesday afternoon, Mr Le Blond sent a copy of the subpoena, with a covering letter, to Mr Abdul-Karim. He informed Mr Lange that he had done so.
57 Despite the fact that Mr Le Blond's letter enclosing the copy subpoena referred to the "urgency" of the situation, Mr Abdul-Karim maintained he had gained the impression that there was no particular urgency. He denied that he promised to get instructions by the following afternoon. He maintained that he had made it clear to Mr Le Blond that he did not consent to access but that he would pass the matter on for the instructions of the relevant agencies.
58 There is a further difference of opinion about the conversations the two men had on the next day. About 1.30pm on the Wednesday, Mr Le Blond says he rang Mr Abdul-Karim who, shortly thereafter, returned his call. Mr Abdul-Karim was asked whether he was able to give consent to access. According to Mr Le Blond, he replied: -
"I'm still not in a position to give you consent and I am still waiting on instructions
59 Mr Le Blond insists that Mr Abdul-Karim did not tell him that the DPP opposed access. On the other hand, Mr Abdul-Karim, during his evidence, maintained that he had made a categorical statement to Mr Le Blond that the DPP's office did not consent to the defence being granted access to the documents.
60 As might be expected, it is not easy to reconcile these differences between the two lawyers. I am satisfied they were each doing their best to recall the conversations that occurred. Each had the benefit of some written material to support his recollections. My overall view is this: Mr Le Blond was a young, rather inexperienced solicitor who was doing his best to comply with instructions from a relatively demanding employer and a barrister who was becoming frustrated by the delays in obtaining access to material which was needed to finalise written submissions urgently. I consider it likely that Mr Le Blond impressed on Mr Abdul-Karim that the matter was urgent and I do not accept that any lesser impression would have been conveyed. Secondly, whatever precise words were used in the various conversations, I accept that Mr Le Blond came away from those conversations believing that it was simply a matter of waiting for consent to be given by Mr Abdul-Karim. I do not accept that Mr Abdul-Karim conveyed effectively the notion that the DPP were, in any event, opposed to the granting of access. Thirdly, I think it is more likely than not that Mr Le Blond conveyed the impression to Mr Lange, and possibly to Mr Houda if he spoke to him on the topic, that, so far as the DPP was concerned, the question of access was still an open one, and that consent might well be forthcoming by the afternoon of Wednesday, 3 May 2006.
61 One thing, I think, is clear. I do not believe that Mr Le Blond communicated the detail of the conversation with Mr Abdul-Karim on the Wednesday afternoon to Mr Houda. Whether he conveyed it to Mr Lange is not as clear, but, on balance, I regard it as unlikely he did. Mr Lange was very preoccupied on Wednesday afternoon, 3 May with the Lodhi trial in which he was then appearing as junior counsel. Mr Le Blond made no mention of any such conversation with Mr Lange in his carefully prepared affidavit of 7 September 2006 (Exhibit 4).
62 Mr Lange, by lunchtime on 3 May, was clearly becoming concerned that he would not be able to meet the deadline in relation to the preparation of written submissions. During the luncheon adjournment of the Lodhi trial, he went to the Registry of the Supreme Court to speak to the Duty Registrar about the problems which had arisen. The Registrar, however, did not become available before Mr Lange had to return to Court. For this reason, Mr Lange was unable to clarify the matter as he had hoped he might do. On his way back to the Court he ran into Robert Wood of the Australian Government Solicitor's office. The two men were well known to one another and had a good working relationship. Mr Lange asked Mr Wood whether he was acting for the AFP in the Khazaal matter (he already knew that Mr Wood was acting for ASIO). Mr Wood said that he acted only on behalf of ASIO. But he offered to pass on a message to the AFP, if Mr Lange wished him to do so. Mr Lange said: -
"Fine. Can you please tell the AFP that, as they know, I have subpoenaed a document, and need access right away because submissions are due on Friday. I cannot wait any longer, and need to know what they propose to do".
63 Mr Wood promised that he would pass on the message to the AFP after Court. In fact, about 4.45pm on that afternoon, Mr Wood, true to his word, rang Sheree Harrison, a solicitor working with the Federal Police. He told her of the discussion he had with Mr Lange and the request that had been made. As it turned out, Sheree Harrison had earlier that day seen a copy of the e-mail Mr Abdul-Karim had sent to Federal Agent Dale Redfern the previous evening. This had been sent presumably as a consequence of the conversation and correspondence Mr Abdul-Karim had with Mr Le Blond on 2 May 2006. Mr Redfern was the AFP case officer who had responsibility for the proceedings involving the accused. Ms Harrison had spent some time earlier on the Wednesday endeavouring to find out the situation from the Downing Centre Local Court. In fact, she had sent a letter by facsimile to Registrar Morgan at 1.30pm on that day. These calls, and the fax letter, demonstrate that the probable situation was that neither Mr Redfern or Ms Harrison had understood from Mr Abdul-Karim that the documents had already been produced by the Local Court at the Supreme Court Registry. They had, of course, been there since 1 May 2006. It also seems that Mr Abdul-Karim had not made reference to the urgency of the situation, at least so far as the legal representatives of the accused were concerned.
64 In any event, when Ms Harrison spoke to Mr Wood late on Wednesday afternoon, she made it clear to Mr Wood that the AFP did object to access being allowed to the affidavit. She also told him that the AFP intended to make an application for public interest immunity over the affidavit or parts of it. Mr Wood promised to let Mr Lange know. Unfortunately, although Mr Wood rang Mr Lange's chambers shortly thereafter, he was unable to contact him. Mr Lange was probably inspecting the affidavit at or shortly before the time the telephone call was made.
65 At approximately 4 o'clock that afternoon, Mr Lange had left the court building where he had been appearing in the Lodhi trial. This trial was in No 3 Court King Street. He conferred briefly with Mr Houda and decided to go to the Registry by himself to make one more attempt to speak to the Duty Registrar. The system there is that persons wishing to interview the Duty Registrar take a ticket but must wait their turn to be called. Mr Lange did this promptly. But it became clear to him that he would not be able to speak to the Registrar that day, given the number of other people waiting ahead of him. It was then that he decided the only way to break what seemed to him to be a deadlock was to have the case listed before Kirby J. Consequently, he telephoned the chambers of the Crown Prosecutor, Mr Des Fagan SC. It was his intention to let Mr Fagan know that he was going to ask the Judge to list the matter urgently for discussion about the situation. Unfortunately, he was once again frustrated. Mr Fagan was in conference and unable to speak to Mr Lange. A message was left with the barrister's clerk for Mr Fagan to call Mr Lange back as a matter of urgency.
66 Mr Lange says that he then called the chambers of Kirby J and spoke to his Associate. I should immediately say that there is a good deal of difference between the recollection of Mr Lange as to what he said to the Associate and the evidence of Miss Garrett as to her recollection of the conversation. In his affidavit, Mr Lange recalls the conversation in the following terms: -
" PL: 'Hello this is Peter Lange. You might remember that I am the defence junior in the case of Khazaal.'
PG: 'Yes, of course. What can I do for you?'
PL: 'We have issued a subpoena to the Downing Centre Local Court in this case. The documents were produced to the Court on Monday, but because of an administrative oversight, they were not entered on the register in Court. As a result, we were obviously not granted access on Tuesday. I have had my instructing solicitor speak to the Downing Centre, and they have said that the matter has nothing to do with them. It seems as if we would have had access to the documents on Tuesday, had they been entered on the register. My instructing solicitor has now been told by the Duty Registrar that we cannot have access without the other party being present. However, the DPP has not given consent, and I have not been able to talk to the Duty Registrar to see whether their consent is really necessary. So, I would like to get this matter listed before the judge. How soon would we be able to get this matter on again? I have already called Mr Fagan, who is in conference at the moment, and asked him to call me back.'
PG: 'One moment, please.'
After approximately half a minute or a minute, the Associate came back on the phone and the conversation continued to the following effect:
PG: 'Who are you with at the moment?'
PL: 'I am with my instructing Solicitor, Adam Houda.'
PG: 'No, I mean who are you with in the registry?'
PL: 'I am not with anyone at the moment'.
PG: 'Find someone behind one of the counters and let me talk to the person. You can have access'."
67 Miss Garrett's affidavit Exhibit "J" has been very carefully drawn. It does not purport to set out the conversation verbatim. Rather, it is a commentary on the evidence of Mr Lange indicating agreement with certain matters, probability in relation to others, lack of recollection in some matters and absolute disagreement in relation to a number of matters. Miss Garrett prepared a diary note on Thursday, 4 May 2006. Now, it is true that by this time she had had some contact with both Sheree Harrison and Mr Vorrieter who is with the Australian Government Solicitor's office. The diary note is a lengthy one and I will not set it out in full. The first portion, however, bears repetition: -
"At approximately 4.30pm on Wednesday 3 May, Mr Lange of counsel phoned me from the Exhibits Registry on level 5. He advised that he wished to gain access to documents from the Downing Centre which he was aware had been received in the Registry as a result of a subpoena issued on behalf of his client. He needed access to the documents in order to complete submissions which were due this coming Friday 5 May. His solicitor had missed the return of subpoenas in the Registrar's court. I am unsure as to whether his instructing solicitor was with him when he spoke to me on the phone. I spoke to Kirby J who advised that it would be in order for Mr Lange to inspect the documents.
I then asked Mr Lange to ascertain the name of Exhibit's clerk who was assisting him. He advised that it was "Tanya". He passed the phone to Tanya and I advised her that it was in order for Mr Lange to inspect the documents. I then relayed this to Mr Lange."
68 The diary note also records that very shortly after this conversation, the Associate spoke to Richard Stride in the Criminal Registry. She confirmed to Mr Stride that the Judge had given leave for Mr Lange to inspect the envelope. Shortly after this conversation, Miss Garrett received a telephone call from Sheree Harrison who expressed strong disagreement with the fact that the envelope was being inspected. After a discussion with Kirby J, the matter was listed at 9am the next morning for argument re access to the material. Miss Garrett went down to the Criminal Registry and saw Mr Stride there. It was apparent that the inspection had already taken place. Mr Lange had left and the documents had been returned in the envelope to Mr Stride. Ultimately, the matter was listed for mention at 9.30am on the Friday morning, 5 May 2006, instead of the Thursday morning as first had been contemplated.
69 It is clear, as Miss Garrett mentioned in Exhibit "J", that there was an undoubted error in her recollection of the discussion with Mr Lange as evidenced by the diary note. Miss Garrett readily conceded that she had not been told that Mr Lange's solicitor "had missed the return of subpoenas in the Registrar's court". Rather, she was inclined to agree with Mr Lange's affidavit that he may have said that the documents had been produced to the Court on Monday, but because of an administrative oversight, they were not entered on the register in the court. Miss Garrett said that she had a very clear recollection that, at no time in the conversation, did Mr Lange refer to the DPP or mention the issue of consent. She said it was also clear in her mind that Mr Lange had not asked for the matter to be listed before the Judge. She thought that Mr Lange wanted urgent access to the subpoenaed document and that she was being requested to ask the Judge about access.
70 It is very clear to me that both Mr Lange and Miss Garrett are honest witnesses each doing their best to recall, in somewhat difficult circumstances, the precise content of a hurried telephone call made in a somewhat urgent situation. It also seems clear to me that some degree of misunderstanding occurred between Mr Lange and Miss Garrett. While the misunderstanding was plainly mutual, I have no doubt that the major responsibility fell on Mr Lange. It was his obligation to make it clear to the Associate what it was he was asking and why. I am satisfied that he failed to achieve this with necessary clarity. But, at the same time, I am satisfied that Mr Lange was not attempting to deceive or mislead either the Associate or the Judge. No criticism can be made of Miss Garrett who was clearly doing her best to assist Mr Lange.
71 I am also satisfied that at the conclusion of the conversation, Mr Lange understood that it would be no longer necessary for him to have the matter listed, as he had first set out to achieve. Rather, he understood that had been given immediate access to the material. On the other hand, Miss Garrett had formed the view, mistakenly I think, that Mr Lange was asking for access and that coloured the matters she reported to the Judge. I rather take it from the transcript of the mention on 5 May 2006 that there was a possible additional area of confusion, namely whether the conversation related to the subpoena to ASIO which had been the subject of prolonged discussion on previous mentions. This, however, is no more than an impression I have from listening to the evidence and looking at all the material before me. I have formed no concluded view about that aspect.
72 As it happened, Mr Houda met up with Mr Lange in the Registry at about the time the latter was concluding his conversation with the Judge's Associate. It seems that Mr Houda may have been present when "Tanya", told the two men that they could go to the 4th floor Registry where they could inspect the documents. It was in that location that Mr Stride produced the envelope. There is a difference of recollection between Mr Lange and Mr Houda at this point, although I do not think it is of any real moment. The envelope which was produced by Mr Stride was not remarkable in any way. It was not marked, for example, "confidential" or "top secret". Mr Lange said, had the material been contained in a sealed envelope marked in that way (as he had experienced in other matters), he might have been alerted to the fact that he was about to examine material which could have national security sensitivity. In fact, Mr Lange said the envelope was of a type ordinarily seen when a document is subpoenaed. There was no indication that the document inside the envelope was to be treated confidentially or that it was the subject of any form of court order, undertaking of confidentiality or similar. The pages were marked "highly protected" but that particular marking was well known to both men in litigation of this kind and they did not consider it equated with "secret". In addition, it seems the material in the envelope was a copy of the original Warrant Affidavit, although that was not known to or noticed by the respondents.
73 Mr Lange's recollection is that when the material was first being read, Mr Stride came over and said: -
"I have had a telephone call from the AFP. They object to your inspecting the document."
74 In response, Mr Houda sought to return the document to Mr Stride. Mr Stride then replied: -
"No. You have been granted access by the Judge. He has said you can have access."
75 Mr Houda's recollection was that this conversation occurred before the inspection had begun. As I have said, I do not think that anything turns materially upon this difference in recollection. Both men understood, from the remarks of Mr Stride, that the Judge had made an order permitting access to the documents produced in answer to the subpoena after being aware of the objection of the AFP.
76 During his evidence, Mr Lange acknowledged that some of the material he looked at was sensitive material. He qualified this by saying that its sensitivity was something which was apparent to him in retrospect. There was other material that was probably sensitive, although he was not aware of the reasons which might make it so. There were also matters that he said were public knowledge. He agreed that, with the benefit of hindsight, alarm bells should have gone off even though they did not at the time. At transcript 110 he said: -
"With the benefit of hindsight, I see it as a very unfortunate incident from which I think everyone has learnt. I am not going to say otherwise. But that does not affect my ultimate belief that I am capable of obeying my undertakings, which I have done in other cases, and which have been accepted."
77 Returning to the inspection, Mr Lange said that, in scanning the document, he was looking for two particular terms. It was only this material that would be relevant to the submissions he was preparing. Moreover, he was in a hurry, as he had a conference scheduled in chambers with senior counsel at about the time he received the document in the Registry. He said that he spent no more than approximately two minutes scanning the document. Once he had found the passage that he was looking for, he pointed this out to Mr Houda. He then placed the document back in its envelope. It was then returned to Mr Stride. He made no note about what he had read. All he wanted to see was whether the AFP had relied upon material obtained in a certain way and that was sufficient for him to be able to make the submission he wished to make in support of the Notice of Motion to exclude evidence. He did not see anything else in the document that, in his view, was relevant to the charge that had been laid against Mr Khazaal. There was some material that could potentially be relevant to other charges but, those charges had not been brought against the accused.
78 Events moved quickly after the inspection had concluded. Mr Lange and Mr Houda went into conference with senior counsel on another matter. Mr Robert Wood rang through and spoke to Mr Lange. He explained the Commonwealth's concern related to the inspection. He asked them to give undertakings and they agreed that they would. On the next day, 4 May 2006, Mr Wood delivered to each of Mr Lange and Mr Houda a letter from AGS dated 4 May 2006. He witnessed the documents they signed. The undertakings were, it will be recalled, contained in these signed letters.
79 The matter was mentioned before Kirby J on 5 May 2006. It was indicated to his Honour that orders would be sought, supplementing the undertakings which had been given, to ensure that there would be no inadvertent or other disclosure of any of the material that had been seen by Mr Lange during the inspection and which may have been seen by Mr Houda. I have already set out, earlier in this decision, the orders which his Honour made. These orders were made by consent and it is clear that there has been no suggestion of any breach of their terms.
80 On 26 May 2006, the Commonwealth indicated its intention to commence proceedings to seek injunctive relief restraining Mr Houda and Mr Lange from acting further in the proceedings. Consequently, the motion was filed on 1 June 2006 and directions were given for the conduct of the proceedings relating to the motion.
81 There is one final factual matter that needs to be mentioned and evaluated. Mr Houda has maintained that, during the inspection by Mr Lange, he did not read the material himself. He also maintained that he told Mr Lange this when they were discussing the issue of giving undertakings, as requested by the Commonwealth. Mr Lange confirms that a discussion in those terms probably took place. Mr Houda also maintains that he told Mr Robert Wood that he had not read the document. Mr Wood said he had no recollection of that having been said in conversation, although he conceded that he did not keep a file note at the time.
82 Mr Houda maintained during his cross-examination that he did not in fact read any of the material inspected by Mr Lange during the brief two-minute inspection. He may have looked at the page to which Mr Lange drew his attention. But he did not read it. I accept Mr Houda's evidence in this regard. Mr Houda impressed me as a passionate, busy and efficient solicitor. He is, however, a solicitor who is more interested in the overall picture than the detail. He employs solicitors to attend to the detail and instructs counsel to advise him as to the strategy and procedures to be adopted. Mr Houda conceded that, with the exception of Mr Wood, he had not mentioned to anybody from the Commonwealth side of the case that he had not read the document until he made this claim in his sworn affidavit. It is also true that in the undertaking letter signed by Mr Houda, he made no claim that he had not seen the material in respect of which the undertakings were given. I do not see either of those matters as of any particular significance. As I have said, Mr Houda was quite firm in his continued assertion that he had not read the material and I accept him on that point. He maintained that he had told Mr Wood this shortly after the matter "blew up" and that he had told Mr Wood this in the presence of Mr Lange. I accept that this was so.