Reported Decision: 169 A CRIM R 543 New South Wales Court of Criminal Appeal CITATION: R v Taylor [2007] NSWCCA 104 HEARING DATE(S): 24 November 2006 JUDGMENT DATE: 18 April 2007 JUDGMENT OF: James J at 1; Hidden J at 2; Hislop J at 40 DECISION: Leave to appeal granted, appeal allowed in part - ruling concerning subpoena to Australian Crime Commission vacated, matter remitted to District Court - otherwise appeal dismissed. CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against interlocutory orders - subpoenas seeking telephone intercept material - intelligence reports relating to Crown witnesses - legitimate forensic purpose - approach to legitimate forensic purpose in relation to intercepted conversations LEGISLATION CITED: Criminal Appeal Act 1912 s5F(3) State Drug Crime Commission Act 1985 R v Saleam (1989) 16 NSWLR 14 Alister v The Queen (1983-84) 154 CLR 404 House v The King (1936) 55 CLR 499 R v Francis (2004) 145 A Crim R 233 CASES CITED: State Drug Crime Commission NSW v Chapman (1987) 12 NSWLR 447 R v Gillard (1999) 76 SASR 76 R v Harris (unreported, Victorian Supreme Court, 3 June 1985) Nominal Defendant v Manning (2000) 50 NSWLR 139 Brimaud v Honeysett Instant Print Pty Limited (unreported, 19 September 1988) Dennis James Taylor (applicant) PARTIES: Australian Customs Service (1st respondent) Australian Crime Commission (2nd respondent) New South Wales Commissioner of Police (3rd respondent) FILE NUMBER(S): CCA 2006/2366 D Carroll (applicant) COUNSEL: Dr J Renwick (1st & 2nd respondents) R Grady (3rd respondent) Legal Aid Commission (applicant) SOLICITORS: Australian Government Solicitor (1st & 2nd respondents) Director of Public Prosecutions (3rd respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0028 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2366 JAMES J HIDDEN J HISLOP J Wednesday 18 April 2007 Regina v Dennis James Taylor Judgment 1 JAMES J: I agree with Hidden J. 2 HIDDEN J: The applicant, Dennis James Taylor, is awaiting trial in the District Court on the following charges: (1) Manufacturing a large commercial quantity of MDMA (the drug commonly known as ecstasy), with an alternative count of knowingly taking part in the manufacture of that quantity of the drug. (2) Knowingly taking part in the manufacture of methylamphetamine. (3) Aiding and abetting the importation of prohibited tier 1 goods (safrole). 3 In preparation for his trial, there were issued on his behalf subpoenas directed to the Australian Crime Commission, the New South Wales Commissioner of Police and the Australian Customs Service to produce certain documents. On 22 September 2006 Sweeney DCJ set aside the subpoenas to the Australian Crime Commission and the Australian Customs Service in their entirety, and the subpoena to the Commissioner of Police in large part. The applicant seeks leave to appeal, pursuant to s5F(3) of the Criminal Appeal Act, against those decisions. The Crown case 4 Put shortly, it is the Crown case that in 2002 and 2003 a criminal syndicate was importing precursor chemicals for the manufacture of illegal drugs, and was later manufacturing the two drugs referred to in the indictment. It is alleged that, at the direction of a co-accused, Phillip Giam, the applicant set up an import company, through which a quantity of safrole, a precursor to ecstasy, was imported from China. It is also alleged that the applicant made available a shed at the back of his family home in Wollongong as a laboratory, in which the two drugs were manufactured by another co-accused, John Bemand. 5 In 2004 and 2005 respectively, Mr Bemand and Mr Giam were dealt with for their part in the criminal enterprise and were sentenced to terms of imprisonment. Each of them will be a witness for the Crown at the applicant's trial. It will be necessary to refer to particular aspects of the Crown case when dealing with the application. I shall turn first to the subpoena to the Australian Crime Commission. The subpoenas to the Commissioner of Police and the Australian Customs Service can then be considered together. Australian Crime Commission 6 The subpoena to the Australian Crime Commission sought all originals or copies of telephone intercept recordings in relation to a particular mobile phone number connected in the name of the applicant. Her Honour's judgment records that the subpoena was challenged on behalf of the Commission on the basis that it was "too broad" and that no legitimate forensic purpose for the production of the material sought by it had been shown. 7 There was evidence that the Commission had intercepted calls on the line, pursuant to warrants, during a period in 2003. It had been asserted from the bar table by counsel then appearing for the Commission, over the protest of counsel for the applicant, that the terms of the subpoena encompassed some eleven thousand calls. In the event, her Honour found it unnecessary to deal with the argument about the breadth of the subpoena and she set it aside upon the basis that no legitimate forensic purpose had been established. In this Court counsel for the applicant submitted that her Honour had fallen into error in her approach to that question. 8 A Commission document which was before her Honour asserted that "over 300 intercepted telephone conversations" were believed to "possess varying degrees of relevancy" to the present charges. They were said to have been intercepted "in connection with a non-related investigation involving Mr Taylor". Those calls had been disclosed to the Director of Public Prosecutions, and her Honour was informed that the Crown proposed to rely on about 110 of them. 9 It was anticipated that Mr Bemand and Mr Giam would give evidence that the applicant was provided with a phone to be used specifically for the criminal enterprise. The forensic purpose of the subpoena advanced by counsel for the applicant was 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 apparently incriminating. As I understand it, this relates, at least in part, to certain words used in the calls which were alleged to be a code for the purpose of the enterprise but which the applicant would say bore their ordinary meaning and had no sinister connotation. 10 These asserted forensic purposes are consistent with a statement which the applicant provided to police in 2003, in which he described an innocent relationship with Mr Bemand and Mr Giam and in which he gave an account of his use of the relevant mobile phone. Counsel for the Commission in this Court argued that the question of the codes had not been raised before her Honour. However, from a reading of the material it appears to me that it was raised, as I have said, as part of a submission relating to the identification of exculpatory material. 11 Her Honour referred to the principles relating to legitimate forensic purpose, citing relevant authority. The principles are familiar and were summarised by Hunt J (as he then was) in R v Saleam (1989) 16 NSWLR 14 at 17-18. The applicant is not entitled to use a subpoena as a "mere fishing expedition", and must be able "to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents". Adopting the words of Gibbs CJ in Alister v The Queen (1983-84) 154 CLR 404, that test would be met if it appears to be "on the cards" that the documents would materially assist his defence. 12 Her Honour recorded a submission by counsel for the applicant that, if about three hundred calls were considered to be of relevance to the charges, it was "on the cards that the remaining conversations cannot be linked to criminal activity". Counsel acknowledged that he could not identify with greater particularity what calls could assist, saying that his client had no detailed recollection of his phone calls some three years earlier. Her Honour accepted that the applicant could not be expected to remember the detail of the calls but, as a result, characterised his counsel's submission as no better than a desire "to listen to the remaining almost 11,000 calls to see if there is anything there that will assist" him. This, she concluded, amounted to a fishing expedition, so that the applicant was unable "to satisfy the court that there is some concrete ground for a belief that the documents contain information which would materially assist the accused or that it was on the cards that they would do so". 13 Before us, argument proceeded upon the basis that the applicant had to show an error in the exercise of her Honour's discretion, in the sense explained in House v The King (1936) 55 CLR 499. Strictly speaking, her Honour was called upon to make a judgment rather than exercise a discretion, although the two tasks are analogous for present purposes: R v Francis (2004) 145 A Crim R 233, per Simpson J at [24]-[25]. In my view, the question to be determined in the present application is whether her Honour's finding that no legitimate forensic purpose had been shown was open to her. 14 In this Court counsel for the applicant relied upon three cases dealing with intercepted conversations, which do not appear to have been cited to her Honour. In State Drug Crime Commision NSW v Chapman (1987) 12 NSWLR 447, Allen J considered a provision in the State Drug Crime Commission Act 1985 to the effect that members of the Commission or of its staff were not required to produce in a court any document relating to the exercise of the Commission's functions except where it was necessary to do so for the purposes of a prosecution instituted as a result of a Commission investigation. As a result of such an investigation, the defendants faced committal proceedings in respect of serious drug offences. They subpoenaed the Commission to produce documents which his Honour described as "of the nature of tapes of conversations intercepted by listening devices". The Commission did not object to the production of documents relating to conversations evidence of which was to be tendered in the proceedings, but it relied upon the statutory provision to resist production of any of the other documents. 15 The Commission argued that the exception to the statutory immunity where it was necessary to produce documents "for the purposes of a prosecution" was confined to documents necessary to ensure the success of that prosecution. Allen J rejected this argument, holding that the exception included documents enabling the defendants to test the prosecution evidence. It is in this context that his Honour said (at 451): In the present case it is manifest that there may be in the possession of the Commission records of telephone intercepts which would be of critical importance to the defendants to establish that conversations put in evidence by the prosecution had in fact innocent explanations. Indeed, in respect generally of phone tap records it is common experience that frequently it is necessary to go beyond the particular telephone conversations being immediately considered in order to get their true flavour. The other conversations have to be considered, not a selection. Yet if the argument for the Commission is correct it could adduce in these committal proceedings its own choice of conversations to be considered by the magistrate and deny to the defendants any knowledge of what the other conversations were to which they were not parties and deny them even the recollection of what they said in the conversations to which they were parties. 16 Presumably, his Honour's reference to "telephone intercepts" was a mistake as the case appears to have been concerned with recordings by listening devices. What he said, however, is applicable to conversations intercepted by either of those means. 17 The procedural background to R v Gillard (1999) 76 SASR 76 need not be examined. It is sufficient to say that the South Australian Court of Criminal Appeal was dealing with an interlocutory application relating to an appeal, one ground of which was that the appellant had not been supplied with recordings of the whole of a series of conversations recorded by telephone intercepts and listening devices in the investigation of the crimes of which he had been convicted. It was in this context that Duggan J, with whose judgment Lander J agreed, said at [49]-[50]: Apart from the considerations which arise by reason of the fact that the appellant was tried on serious criminal charges, the circumstances of the present case give rise to important considerations of fairness. The recorded conversations obtained through the interceptions and the listening devices formed an important part of the prosecution case. Legislation of the type under consideration in this case provides an important aid in the detection and proof of crime. However this method of investigation is capable of providing both inculpatory and exculpatory evidence. In my view the legislation should not be used in a manner which leads to a lop-sided approach whereby the prosecution has significantly greater access than an accused person to the recorded conversations. Generally speaking, inconvenience and the administrative difficulties involved in providing an accused person with access to this type of information should not stand in the way of disclosure to the defence. I am also of the view that a request for access to information of the type under consideration in the present case should not be rejected on the ground that it is in the nature of a "fishing expedition". The listening and interception devices were used to investigate and obtain evidence in relation to the offences with which the appellant was eventually charged. The prosecution was able to obtain a considerable body of relevant evidence from this source concerning the appellant's alleged involvement. The potential for the appellant to uncover evidence from the same source which is relevant to his case cannot be denied. I think it is at least "on the cards" that the material will assist the appellant. 18 In a concurring judgment, Bleby J said at [77] – [78]: Listening devices and telephone interceptions provide a powerful weapon in the armoury of police investigation of crime. Both are highly intrusive of a person's privacy. Those listening to the conversations do so from a perspective of suspicion against the target. Otherwise they would not be able to use the devices. They will be alert to detect anything that may assist in proving a case against the target. They may also hear and identify conversations which tend to exculpate the target. Such conversations must necessarily be disclosed to an accused person. But a listener of the greatest possible integrity only ever hears part of the life and conversations of the target. He or she cannot know the significance of every conversation in its complete context. With the best will in the world, the listener may fail to appreciate the true significance of what in fact is an exculpatory conversation. From the target's point of view, he may well know of and be able to identify conversations which, if recorded, would be of assistance in his defence. On the other hand, he may have forgotten that he even had what turns out to be a conversation of significance to his case. An apparently irrelevant conversation at the time may well, in the light of subsequent events, assume great significance. 19 A little later, after referring again to the "power and intrusive nature of the weapon in the hands of crime investigators", Bleby J continued at [79] to [80]: Few in the community would wish to deny their right to properly controlled access to sophisticated methods in order to detect sophisticated crime. The advantages are great. But so are the responsibilities. Fairness to the appellant in this case requires that just as the prosecution has gained valuable evidence from such surveillance, so should the appellant be able, if he wishes, to scrutinise the same material, or parts of it which he thinks might possibly be of assistance, in order to raise a reasonable doubt on the case against him. 20 In Gillard at [48], Duggan J referred to an unreported decision of Ormiston J in R v Harris (unreported, Victorian Supreme Court, 3 June 1985). That was a case in which the whole of the Crown case was said to depend on inferences drawn from intercepted telephone conversations. Ormiston J directed that the accused have access to a large number of recordings of conversations which the prosecution did not intend to lead in evidence. In the course of his ruling his Honour said: I do not accept that they can remember what they said or did in detail two or three years ago, especially when the Court knows that there are 472 relevant conversations, on the view the Crown takes, and that some 14,000 conversations have been taped from those telephone numbers in all. If the activities of the accused were innocent, then the taped conversations may well provide real evidence of their innocent activities…. The privacy of the accused has been invaded and they have good reason to enquire what has been recorded of their conversations during the period of the alleged conspiracy. 21 Counsel for the Commission sought to distinguish each of these cases. He pointed out that State Drug Crime Commission v Chapman was concerned with the scope of a statutory immunity from production, rather than the notion of legitimate forensic purpose as it has been developed at common law. He noted that in Gillard the Court was considering conversations intercepted in the course of the investigation of the crimes charged, whereas in the present case the calls were intercepted in connection with an unrelated investigation. As to Harris, he relied upon the fact that, unlike the present case, the Crown case turned on inferences from the intercepted conversations. I do not consider any of these distinctions to be material. The passages quoted from all three cases contain relevant and, in my view, helpful observations about the approach to the question of legitimate forensic purpose in any case in which production of records of intercepted conversations is sought. 22 As I have said, her Honour does not appear to have had the benefit of these authorities. In my respectful view, her approach to the question of legitimate forensic purpose was unduly restrictive. It is most unlikely that the applicant would have been able to identify with any particularity the calls which might have assisted his case, but 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 (particularly those in which a code was said to be used) might be explained innocently, was sufficient to warrant the production of records of all the calls. 23 Accordingly, I am satisfied that it was not open to her Honour to have found that no legitimate forensic purpose was established and her ruling in respect of this subpoena must be vacated. Commissioner of Police and Australian Customs Service 24 To understand her Honour's ruling in relation to the subpoenas directed to the New South Wales Commissioner of Police and the Australian Customs Service, it is necessary to sketch some background. In February 2006 the applicant's solicitor issued subpoenas against the Commissioner and the Customs Service to produce, among other things, all records of intelligence relating to Mr Bemand and Mr Giam. The Commissioner and the Customs Service objected to the production of documents in answer to that paragraph of each subpoena on the basis that no legitimate forensic purpose had been shown. In May 2006 Ainslie-Wallace DCJ upheld that objection and declined to order production. 25 It had been put to her Honour that, "through information otherwise obtained", the applicant believed that Mr Bemand and Mr Giam had been monitored by New South Wales Police and the Customs Service over a period of years. Initially, when questioned by officers of the New South Wales Crime Commission, Mr Bemand said that, as far as he was aware, the applicant had no involvement in or knowledge of the laboratory at the home in Wollongong. It was some time later that he was visited by police and implicated the applicant, offering to give evidence against him. Counsel for the applicant had argued that the inference might be drawn that Mr Bemand's change of heart was because police had information about criminal activity by him which they held over his head. Access to any intelligence relating to both men was sought for a purpose of cross-examination of them on their credit. 26 Judge Ainslie-Wallace was of the view that "the applicant does no more than hope that there is material which might allow an attack to be made on the credibility of the witnesses against him". She added that counsel for the applicant "could not point to any information which could assist that purpose", and that the applicant had "no idea whether there was information relating to uncharged criminal offences of a similar kind, but assumed that there might be, based on the fact that Bemand and Giam have been monitored over the years". 27 Accordingly, her Honour concluded that the relevant paragraph of each subpoena was no more than a fishing expedition. She expressed herself to be fortified in that conclusion by "the width of the terms" of the paragraph. 28 Noting her Honour's comment about the way in which the paragraph was expressed, the applicant's solicitor issued fresh subpoenas later in May 2006. Each of these subpoenas sought the production by the Commissioner and the Customs Service of information, expressed in greater detail, about Mr Bemand and Mr Giam. It is not necessary to set out the relevant paragraphs of each subpoena. It is sufficient to say that the subpoena to the Commissioner sought, among other things, a variety of documents, such as intelligence reports, incident reports and COPS entries, in relation to both men concerning a variety of dealings with prohibited drugs and precursors to prohibited drugs over a specified period. The subpoena to the Customs Service, seeking documents described as intelligence reports, information reports and investigation reports, was to much the same effect. 29 These subpoenas were dealt with by Judge Sweeney in her decision of September 2006. Her Honour found that they raised the same issue as that determined by Judge Ainslie-Wallace, without amplifying in any relevant way the material which had been before that judge, and she set aside the relevant paragraphs of the subpoena to the Police Commissioner and the whole of the subpoena to the Customs Service as an abuse of process. It is that decision which is the subject of the present application. 30 Put shortly, the applicant complained that Judge Sweeney erred in determining that the subpoenas of May 2006 were an abuse of process. It was contended that she should have assessed their forensic purpose on their merits, treating them as fresh subpoenas couched in terms significantly different from those of February 2006, and approaching them in the light of circumstances which were said to have changed since the decision of Judge Ainslie-Wallace. 31 This is not the occasion to examine in any detail the power of a court to revisit an interlocutory order it has made in the course of proceedings, and the circumstances in which an application to a court to do so might amount to an abuse of process. Those matters were examined at some length by the members of the Court of Appeal in Nominal Defendant v Manning (2000) 50 NSWLR 139. In that case, at [97], Foster A-JA set out a passage from the judgment of McLelland J in Brimaud v Honeysett Instant Print Pty Limited (unreported, 19 September 1988) which is often cited in this context, and upon which counsel for the Customs Service relied in the present case. Broadly speaking, whether an interlocutory decision should be reconsidered is a matter in the discretion of the court which made it, having regard to the interests of justice in the particular case while also being mindful of the need to limit the power of a party, as McLelland J put it, "to have any interlocutory application or order relitigated at will". Factors bearing upon whether a second application is an abuse of process, but not necessarily determinative of it, are whether circumstances have materially changed between the first application and the second or whether the second application is founded upon evidence which was not reasonably available in the first. 32 Although strictly it is not a matter which need be determined for present purposes, I should express my view that Judge Ainslie-Wallace's conclusion in respect of the relevant paragraphs of the first two subpoenas that no legitimate forensic purpose had been shown was one which was open to her Honour. In relation to the second subpoenas, Judge Sweeney found that the argument of counsel for the applicant about legitimate forensic purpose had not advanced beyond that which had been argued before Judge Ainslie-Wallace. She concluded that there had not been any material change of circumstances and that, although the subpoenas were expressed in different terms from those originally issued, the differences were of form rather than of substance. 33 Dealing with that last matter first, in relation to the subpoena to the Customs Service there was unchallenged affidavit evidence from an officer of that Service, Mr Charlwood, that, although the documents sought in the second subpoena were described differently from those sought in the first, both subpoenas in fact sought the same documents. Counsel for the Police Commissioner pointed out that the same is true of the subpoenas directed to his client, the various descriptions of the documents sought in the second subpoena being embraced by the expression "all…records of intelligence" used in the first. 34 Counsel for the applicant referred to Judge Ainslie-Wallace's observation about the width of the terms of the relevant paragraphs in the first two subpoenas. He argued that this was germane to her Honour's decision that no forensic purpose had been shown and that that deficiency was cured by the greater specificity with which the documents sought were described in the later subpoenas. However, in my view, that observation of her Honour was an aside which was not essential to her decision. That decision was founded upon the applicant's inability to show that it was on the cards that the documents sought would disclose relevant criminal activity by the two witnesses. 35 Counsel for the applicant submitted that there had been a material change of circumstances since the ruling of Judge Ainslie-Wallace. Firstly, he pointed out that the current charges, which I have set out at the beginning of this judgment, were not the charges upon which his client had been committed for trial and had not been formulated at the time the matter was before her Honour. However, the committal charges were substantially the same as those now to be presented and the difference is of no significance for present purposes. 36 Secondly, he said that a lengthy statement by Mr Bemand had been served upon the applicant after Judge Ainslie-Wallace's decision, and that statement disclosed other criminal activity by him and Mr Giam of the kind referred to in the later subpoenas. However, it is clear from the transcript of the argument before Judge Ainslie-Wallace that counsel was aware of that material and, indeed, that he put it to her Honour. No doubt, that was part of the "information otherwise obtained" to which her Honour referred as leading to the applicant's belief that the two witnesses had been monitored by police and the Customs Service. However that may be, the applicant has the benefit of that material but it does not follow from it that police or the Customs Service are in possession of intelligence reports about activity of that kind. 37 Finally, counsel for the applicant relied upon certain material which had been disclosed by the Customs Service which was said to indicate that the Service did have intelligence about "suspected illegal importations" by Mr Giam and Mr Bemand. The tender of that material had been rejected by Judge Sweeney. It was before us by way of annexures to an affidavit of counsel's instructing solicitor. That material was objected to by counsel for the Customs Service, but I find it unnecessary to determine that objection. The documents convey to me no more than that Mr Giam was an associate of two men who were suspected of being involved in the importation of illicit drugs or their precursors. They do not convey that the Customs Service has intelligence that Mr Giam himself (or Mr Bemand) was involved in that type of criminal activity. 38 Accordingly, it was open to Judge Sweeney to find that there was no relevant difference between the second subpoenas and the first, and that there was no relevant change in the material bearing on the issue of legitimate forensic purpose since the ruling of Judge Ainslie-Wallace. That being so, it was open to her Honour to find that the relevant paragraphs of the second subpoena to the Police Commissioner and the whole of the second subpoena to the Customs Service were an abuse of process. No error has been demonstrated warranting the intervention of this Court. Orders 39 I would grant leave to appeal and allow the appeal in part. I would vacate Judge Sweeney's ruling concerning the subpoena to the Australian Crime Commission and would remit that matter to the District Court to be dealt with consistently with these reasons. Otherwise I would dismiss the appeal. 40 HISLOP J: I agree with Hidden J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.