Regina v Lodhi

Australian Government Solicitor - Applicant SOLICITORS : Commonwealth DPP - Crown Michael Doughty - Accused/Respondent

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

JUDGMENT - On application to set aside paragraph 2 of subpoenas addressed to ASIO and AFP

1 HIS HONOUR: On 1 February 2006 I gave leave to the accused Faheem Lodhi to issue two subpoenas. Each was to be returnable for 13 February 2006. The first was addressed to the Australian Security Intelligence Organisation ("ASIO"). The second was addressed to the Australian Federal Police ("AFP"). 2 On the return date of the subpoenas Mr Howe appeared for the Attorney-General and to answer the subpoenas. After some discussion, the subpoenas were adjourned to 14 February 2006. On that occasion, the parties, after sensible discussion, agreed that a revised schedule of documents sought by the subpoenas should be substituted. With the consent of the parties, I annexed the revised document to each subpoena. 3 Notwithstanding the agreed or revised terms of these subpoenas, Mr Howe indicated that he had instructions from the Commissioner of the AFP and the Director-General of Security to object to the second paragraph in each of the revised schedules. The essential basis of the application in each case was an assertion of absence of legitimate forensic purpose. 4 Paragraph 2 in the case of the subpoena addressed to AFP is now in the following terms: - "All warrants obtained by the Australian Federal Police obtained in circumstances where the warrants name Faheem Khalid Lodhi and/or Willie Brigette and/or where the warrants were obtained upon informations suggesting that the warrants were required to investigate the suspected terrorist activities of Faheem Khalid Lodhi and Willie Brigette, but only those warrants pursuant to which telephone interception product and/or listening device product was obtained in the period 6 May 2003 to 20 April 2004." 5 Paragraph 2 to the revised schedule to the subpoena to ASIO is in the following terms: - "All computer access warrants, listening device warrants, tracking device warrants, postal inspection warrants, delivery service inspection warrants and telecommunication interception warrants obtained in circumstances where the warrants name Faheem Khalid Lodhi and/or Willie Brigette and/or where the warrants were obtained upon informations suggesting that the warrants were required to investigate the suspected terrorist activities of Faheem Khalid Lodhi and Willie Brigette, but only those warrants pursuant to which product was obtained in the period 6 May 2003 to 20 April 2004."

The principles to be applied 6 Where a claim of public interest immunity is made, the court is required to consider two conflicting aspects of the public interest: - (i) whether the harm would be done by the production of the documents, and (ii) whether the administration of justice would be frustrated or impaired if the documents were to be withheld.

The court must decide which of those aspects predominates in the particular case. 7 This balancing aspect can only be undertaken when it appears that (a) damage will be done to the public interest by producing the documents sought or documents of that class, and (b) there are or are likely to be documents which contain material which is relevant to the issues raised in the proceedings: Sankey v Whitlam (1978) 142 CLR 1 at 38-39; Alister v The Queen (1984) 154 CLR 404 at 412. This latter issue encompasses the concept known as the legitimate forensic purpose for the party who desire to have access to the documents (R v Saleam (1989) 16 NSWLR 14 at 18). 8 In order to determine whether there is such a legitimate forensic purpose, it is not appropriate for the judge to inspect the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused: Alister v The Queen (at 414, 439, 454). It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his legitimate forensic purpose for seeing the documents before the judge proceeds to the balancing process: Burma Oil Co Limited v Governor and Company of the Bank of England (1980) AC 1090 at 1113-1114, 1129; Alister v The Queen (at 412, 414, 438). 9 A legitimate forensic purpose, however, will be shown if the Court is satisfied that there is some concrete ground for a belief that the documents contain information which would materially assist the accused, or (as Gibbs CJ put it in Alister at 414) "it was on the cards" that they would do so (see also Principal Registrar of the Supreme Court of New South Wales v Tastan (unreported) decision of Barr AJ 23 December 1994).

Submissions of counsel 10 Mr Howe submitted that neither the AFP nor ASIO should not be required to produce the documents referred to in paragraph 2 of each revised schedule. He argued that the applicant had not demonstrated a legitimate forensic purpose and that the party issuing each subpoena was engaged in no more than a "fishing expedition". Mr Boulten SC, on the other hand, gave details of the Crown case against his client and in particular that part of it that relied upon the accused's association with Willie Brigette. He said that there was no dispute that physical surveillance evidence existed in relation to the accused and Willie Brigette; and that some of this would be relied upon by the Crown during the trial. The accused's case, on the other hand, will be that he was not involved in any planning for a terrorist act and that he was not a participant in any preparation for a terrorist act. Moreover, the accused will assert that he had no documents or things in his possession that were themselves, to his knowledge, connected with a terrorist act. Specifically it will be said that he had no "illicit connection" with Brigette, in the context of terrorism. 11 In those circumstances, Mr Boulten argued that there was a legitimate forensic purpose in seeking the information in the documents. It was "on the cards" that material of that kind existed and it could not be said that these paragraphs represented a "fishing expedition".

Resolution of the issues 12 On 14 February I indicated that I was satisfied that Mr Boulten had established a legitimate forensic purpose in relation to paragraph 2 of the revised schedule in each case. I declined to strike out those paragraphs and these are my reasons. 13 A powerful aspect of the Crown case against the accused is his relationship with Willie Brigette. I have, in a number of earlier decisions, set out the nature of the Crown case and, in particular, I have identified the type of evidence that will be relied upon by the Crown to establish the association between the two men. There is no need for me to repeat the details of those matters. It is sufficient to say that the Crown will say that the relationship itself provides a powerful circumstantial back drop to the accused's own actions in collecting and making documents and in the possession of the information set out in the charges. 14 On the hand, as I have indicated, the defence case will be that this was an entirely innocent association and, for that matter, a very limited one. The defence will wish to establish that, after nearly two years of investigating and collating evidence, there has been a very small amount of evidence that forges a connection of any type whatsoever between the accused and Brigette. 15 Quite apart from obtaining surveillance evidence, the AFP and especially ASIO have the statutory capacity to obtain evidence by other means. In the case of the federal police, they have the capacity to intercept telephone calls and utilise listening devices. In the case of ASIO, they also may use listening devices and in addition they are able to utilise tracking devices, postal inspection and telecommunication interceptions. The subpoena, in each case, seeks the warrants used for such purposes in the relevant period pursuant to which product was obtained. 16 In my view, to adopt the language used in Alister v The Queen, it is, "on the cards" that the material sought in paragraph 2 of each subpoena is likely to exist and would materially assist the accused. The importance of the association between the accused and Willie Brigette, for the purposes of the Crown case, is obvious. It is likely that the AFP and ASIO would have used the wide range of their powers to discover and assess the full nature of this relationship. 17 That is not the end of the matter. Mr Howe also submitted that the subpoenaed documents, whatever their number, were unlikely to assist the accused in the manner urged by Mr Boulten. Mr Howe posed two alternative responses to the subpoena. For example, he assumed, for the purposes of argument, that virtually no warrants within the terms of the subpoena were produced at all. That situation, he argued, would undermine the defence argument entirely. 18 Mr Howe then proposed an alternative response to the subpoena, namely the assumption that a great number of warrants were produced. In that situation the defence would have to persuade the jury that the absence of product was probative or indicative of innocence. The Crown, however, might well argue in such a situation that the absence of product merely demonstrated that the accused and Brigette had successfully used subterfuge to prevent the depth of their relationship being uncovered. 19 Mr Howe said that, in this situation, he relied upon the well established proposition that an inference of fact is not available on the basis of evidence or material which might reasonably permit a different conclusion (Holloway v McFeeters (1956) 94 CLR 470 at 477, 480). If such material or evidence enables no more than mere speculation or conjecture, it does not allow the drawing of any inference probative of an issue in the proceedings. 20 I do not doubt the legal proposition advanced by Mr Howe. In my view, however, it has to be borne in mind that the onus of proof in this trial falls upon the Crown. It must establish the elements of the offence, in relation to each charge, beyond reasonable doubt. The Crown case is essentially a circumstantial one. No onus will be placed upon the accused to prove or disprove issues even though appropriate directions will be given to the jury as to the manner in which inferences are generally to be drawn. I accept that Mr Boulten SC is correct when he says, based on the facts assumed by Mr Howe's alternative proposition, that the accused would be entitled to point to the fact that a volume of product was not tendered or relied upon in the Crown case because it simply did not go towards establishing an illicit relationship. The Crown, of course, would be entitled to put forward an argument based upon an asserted secrecy in the relationship between the two men and it will be up to the jury to accept or reject arguments advanced by the competing parties, in the light of appropriate directions to the jury as to the onus of proof and the nature of a circumstantial case. 21 Mr Howe also argued that the defence cannot really know whether or not the warrants sought in the subpoenas exist. He argued that it remained at the level of a speculative possibility only. In my view, however, it is "on the cards" that this material exists and that it would assist the defence case to the extent I have mentioned and for the reasons I have given.

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