New South Wales Supreme Court CITATION : Regina (C'Wealth) v Baladjam & Ors [No 37] [2008] NSWSC 1457 HEARING DATE(S) : 11/08/08; 12/08/08 JUDGMENT DATE : 26 August 2008 JURISDICTION : Criminal JUDGMENT OF : Whealy J at 1 DECISION : Order 1 in Notice of Motion dated 4 June 2008 made. Secondly, order that ASIO be excused from producing the documents referred to in each of the five categories set out in the subpoena and call of 13 May 2008. CATCHWORDS : CRIMINAL LAW - Practice and Procedure - Application to set aside calls for production of material - Legitimate forensic purpose - Alleged absence of attention by Secretary of Telecommunications carrier to matters required under Statute - Statutory interpretation - Meaning of s 18(1) Telecommunications (Interception and Access) Act 1979 (Cth). LEGISLATION CITED : Acts Interpretation (Cth) 1901 Telecommunications (Interception and Access) Act 1979 (Cth) Alister v The Queen (1984) 154 CLR 404 Attorney General v Chidgey [2008] NSWCCA 65 at (64), (68) and 81 to 86) Attorney General v Stuart (1994) 34 NSWLR 667 at 679G Carroll v The Attorney General (1994) 70 A Crim R 162 at 181-182 Commissioner of Taxation v Futuris Corporation [2008] HCA 32 Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175 Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 CASES CITED : Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504 R v Baladjam [No 17] 27 May 2008 R v Baladjam [No 28] 24 June 208 at paras 41 and 60 R v Hickman: Ex Parte Fox and Clinton (1945) 70 CLR 598, 615 per Dixon J R v Khazaal per Latham J 16 July 2008 R v Saleam (No 1) (1989) 16 NSWLR 14 at 18(C) R v Saleam (No 2) (1999) NSWCCA 86 at (11) Williams v Minister for Justice [2007] 239 ALR 689 Regina (C'Wealth) v Omar BALADJAM [No 37] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA FILE NUMBER(S) : SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001 R Maidment SC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown Mr N Williams SC - ASIO M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar COUNSEL : Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma Commonwealth DPP Australian Government Solicitors Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J PARRAMATTA: TUESDAY 26 August 2008 2007/2397001 - Regina v Omar BALADJAM [No 37] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA JUDGMENT - Application by ASIO to set aside calls for production of material made on 13 May 2008 – Legitimate forensic purpose – s 18 Telecommunications (Interception) and Access) Act 1979 (Cth) 1 HIS HONOUR: By notice of motion dated 4 June 2008, the Commonwealth of Australia and the Director-General of Security (ASIO) have sought an order in the following terms: "1. The call for production of five categories of material made pursuant to s 36 of the Evidence Act 1995 (Cth) on 13 May 2008 to the Australian Security Intelligence Organisation on behalf of Khaled Cheikho be set aside on the grounds that there is no identified legitimate forensic purpose." 2 Khaled Cheikho is one of nine men accused of conspiring with each other to do acts in preparation for a terrorist act or acts. Pre-trial applications in relation to the charge have been heard and determined by the Court over the last five months. The Court is presently dealing with a number of issues relating to subpoenas issued on behalf of various of the accused. This application relates to one of those issues. 3 Originally, Khaled Cheikho's lawyers issued a subpoena on 13 May 2005. The subpoena was addressed to ASIO and sought five categories of material in its schedule. For reasons related to security, Khaled Cheikho then sought to make an oral call for production of the material referred to in the schedule to the subpoena. This call was made on the same date as the subpoena, namely, 13 May 2008, and it was made, by agreement, in substitution for the call under the subpoena. The five categories of material listed in the call were as follows: "1. Any and all documents and/or records relied upon by Mr Paul O'Sullivan in order to draft the certificate, including schedules, purportedly issued by Mr O'Sullivan pursuant to s 18 Telecommunications (Interception) Act 1979 and dated: (a) 31 August 2005; (b) 3 June 2004; (c) 6 September 2004; and (d) 3 March 2005. 2. Any and all correspondence between the Australian Security Intelligence Organisation ("ASIO") and SingTel Optus referring to the making and/or contents of the certificates referred to in paragraph 1. 3. Any and all correspondence between ASIO and SingTel Optus referring to the making and/or the contents of the certificates issued by Paul O'Brien pursuant to s 18(1) Telecommunications (Interception) Act 1979 in respect of warrants issued by the Attorney-General under section 9A Telecommunications (Interception) Act 1979 on: (a) 31 August 2005; (b) 3 June 2004; (c) 6 September 2004; and (d) 3 March 2005. 4. Any internal memoranda recording the contents of telephone conversation between Optus and ASIO in which any of the matters referred to in paragraphs 1/3 were recorded. 5. Any and all internal memoranda recording conversations between officers and employees of ASIO, including Mr O'Sullivan, concerning the making as well as the contents of the certificates referred to in paragraphs 1 and 3." Background 4 At the outset, it is convenient to note certain aspects of the Telecommunications (Interception and Access) Act 1979 (Cth) ("TI Act"). First, Part 2-2 of the TI Act permits warrants to be issued to the Director-General of Security by the Attorney-General authorising "interception of certain telecommunications". Secondly, s 18(1) permits evidentiary certificates to be created by an officer of a carrier with respect to acts done by employees of a carrier in order to enable such warrants to be executed. Thirdly, s 18(2) makes such certificates "conclusive evidence" of the matters stated in them in certain proceedings, described as "exempt proceedings". (There is no dispute to the proposition that the present proceedings are "exempt proceedings".) Finally, Part 3 of the TI Act provides for the issue of two types of warrants referred to in ss 9 and 9A of the Act as "telecommunication warrants" and "named person warrants" respectively. 5 At trial, the Commonwealth Director of Public Prosecutions will seek to tender as evidence material obtained under the TI Act warrants referred to in the call dated 13 May 2008. The Director-General prepared an evidentiary certificate, and he or his officers arranged for s 18 TI Act evidentiary certificates to be given to the carrier concerned (Optus) for the purpose of the Commonwealth's preparation of the Crown case. The certificates intended to be relied upon by the prosecution for the purpose of the trial, especially that issued by the company secretary of Optus, were issued in substitution for earlier evidentiary certificates. The Crown does not seek to rely upon the earlier certificates of either the Director-General or the company secretary of Optus at trial, but does intend to rely upon the later certificates. I shall refer to these as the "live" certificates. 6 The various certificates, both live and revoked, are in evidence before me (Exhibits "A" – "D" inclusive). There is no need for me to set out the detail of these certificates for the purposes of this decision. Both the earlier and later certificates are in relevantly indistinguishable terms to the certificates recently considered by Latham J in R v Khazaal on 16 July 2008, and at least two of the certificates are the very certificates I considered in R v Baladjam [No 17] on 27 May 2008. In fact, the arguments presented before me in relation to the principal issue arising on this notice of motion are precisely the same arguments as were addressed by Latham J in R v Khazaal. (Latham J set aside the subpoena issued on behalf of Mr Khazaal, holding that no legitimate forensic purpose had been established, and that Mr Khazaal had not shown it was "on the cards" that the material sought would demonstrate that the company secretary of Optus did not turn his mind to the matters purportedly certified.) Legitimate forensic purpose 7 The solicitor for the accused has identified, by letter dated 29 May 2008, the forensic purpose for the issue of the subpoena. The essence of the claim may be seen from the following paragraphs of the letter: "With regard to your recent inquiry as to the legitimate forensic purpose of these subpoenas, we draw your attention to s 18(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) which provides that: 'The Managing Director or secretary of a carrier may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed.' We advise that it is plain from a perusal of the material already disclosed that the secretary of Optus did not in fact turn his mind to the contents of evidentiary certificates which he signed. We believe the material sought in the above subpoena will establish this and we will subsequently argue that the relevant certificates should not be admitted into evidence." Principles to be applied - legitimate forensic purpose 8 The term "legitimate forensic purpose", in relation to subpoenas, has two aspects, as Simpson J said in R v Saleam (No 2) (1999) NSWCCA 86 at (11)): "Before access is granted, or an order to produce made, the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case." 9 See also R v Saleam (No 1) (1989) 16 NSWLR 14 at 18(C); Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504; Carroll v The Attorney General (1994) 70 A Crim R 162 at 181-182; Attorney-General v Chidgey (2008) NSWCCA 65 at (64) (68 and 81 to 86; Alister v The Queen (1984) 154 CLR 404). 10 As these authorities show, the onus falls on the subpoenaing party to establish that the subpoena has a legitimate forensic purpose. It is not sufficient to show that the material caught will simply include relevant documents. A statement of the legitimate forensic purpose must be precise and a fishing expedition can "never be allowed" (Alister at 414). A fishing expedition will include an endeavour to ascertain whether or not there is an issue that the subpoenaing party may be able to exploit, or to check whether or not some fact or facts exist (Attorney-General v Chidgey at (81 to 86)). In particular, it is not legitimate simply to subpoena documents if all the party is doing is trying to get hold of documents to see whether they may assist him in his case or to see whether he or she has a defence. (See my earlier decision R v Baladjam [No 28] at paras 41 and 60). 11 As to the second aspect of the identification of a legitimate forensic purpose, it is then necessary for the subpoenaing party to persuade the Court that the documents sought will assist in the achievement of that purpose. The expression "on the cards" comes from Gibbs CJ in Alister's case. In Attorney-General v Chidgey, the Court disapproved of a number of more recent statements of the test as expounded by individual judges both in New South Wales and elsewhere. The "on the cards" test is a relaxation of the test applicable in civil cases. It is a more appropriate test in criminal proceedings because it recognises that an accused person may be on trial for his or her liberty (Alister at 456; R v Saleam (No 1) at 17-18). Normally, where a subpoenaing party cannot establish that a subpoena under challenge was issued for a legitimate forensic purpose and, in criminal proceedings, that it is on the cards the documentation sought will materially assist his or her case, then the subpoena will not be regarded as valid and may be set aside (Principal Registrar of the Supreme Court v Tastan at 508). 12 (See also paras 41-59 of Regina v Baladjam [No 28] where the authorities are also relevantly gathered together). Legitimate forensic purpose - submissions on behalf of Khaled Cheikho 13 As I have indicated earlier, the submissions on behalf of Khaled Cheikho are generally the same as those addressed to Latham J in R v Khazaal. The background detail was identified by me in my earlier decision (R v Baladjam [No 17]). The precise legitimate forensic purpose asserted on the defendant's behalf has been identified in the relevant paragraphs of the letter from Mr Cheikho's lawyers. The nub of the argument is that the secretary of Optus did not turn his mind to the relevance of the facts certified and that, if this be so, the preparation will form the basis for the ultimate exclusion of the relevant certificate or certificates. There are two strands to the argument, although they are interrelated. 14 First, there is the argument based on the "similarities" between the documents emanating from the Director-General and those emanating from the secretary of Optus. Mr Lange (who argued the matter for Khaled Cheikho) said that the "similarities" compel the conclusion that, at the very least, it is on the cards that the certificates were not the subject of consideration by the secretary of the carrier but, rather, were provided to him for signature by the Organisation. It will be suggested that there is an inference to simply sign the draft certificates without turning his mind to the matters of relevance. The second strand of the argument picks up the change in terminology between the "revoked" certificates and the "live" certificates sought to be relied upon in the present trial. This is said to be particularly so in relation to the certificates of the carrier. Once again, Mr Lange submitted that this change of wording demonstrated and gave weight to the suggestion that the secretary of the carrier did not turn his mind to the question as to whether the facts certified were facts relevant to acts or things done by employees of the carrier. Counsel argued that it might be inferred from the change of wording that the certificate was, in fact, provided by ASIO and that it was not the product of the secretary's own consideration. Resolution of the issues 15 I have carefully read the submissions provided by Mr Lange, and those provided on behalf of the Commonwealth. I have also carefully read Latham J's decision in R v Khazaal. In my view, not only can it not be said that Latham J's decision was in error: I would unhesitatingly say that it is plainly correct, and that I agree with it in all respects. Her Honour's reasoning is compelling in relation to the point at issue in the present application. I would merely add some observations of my own. 16 First, it is clear that the relevant certificate or certificates of Mr O'Brien are those that might be described as the "live" certificates. These are the certificates the prosecution will rely on at trial. On their face, those certificates are conclusive as to the legality of the interceptions. They are also conclusive, as Latham J observed, as to the certifier's consideration that the facts set out were relevant to the acts or things done by, or in relation to, Optus employees. That is the very matter stated by Mr O'Brien in the document upon which the Crown will place reliance at trial. In my opinion, there is nothing to suggest that this statement ought not be taken at its face value and given the weight it naturally bears. Indeed, this is one of the matters, which is certified conclusively by Mr O'Brien in terms of the certificate. 17 The underlying issue is - did Mr O'Brien turn his mind to all the necessary matters? He certificates conclusively that he did so in the document to be relied on at trial, and there is no external collateral basis to show that he did not so. In my opinion, essentially for the reasons given by Latham J, the "similarities" argument does not undermine the relevant validity of the certificates. 18 Secondly, the "revocation" argument does not establish a legitimate forensic purpose. The underlying question raised by Mr Lange's submission is - does the revocation suggest a cover up for an illegality? It is, of course, possible that there may have been an illegality, but leaving aside for the moment the question as to who may possibly have committed an offence in such a situation, the change in terminology in the "live" certificates suggests a positive and persuasive inference that, at least in relation to those certificates, Mr O'Brien certainly turned his mind to the relevant matters. This inference stands squarely against that contended for by Mr Lange in his submissions. 19 Thirdly, the cases relied upon by Mr Lange as analogously helpful do not, in my opinion, provide much assistance to the argument. I agree with Latham J that the decision of the Full Federal Court in Williams v Minister for Justice (2007) 239 ALR 689 may be distinguished. It involved as Latham J noted, a precondition to the exercise of an administrative decision. By way of contrast, s 18 of the TI Act is concerned simply with the proof of a matter of evidence. Williams involved clarification of the legal principles relating to the review of an administrative decision. At issue was legislation, which required the Minister for Immigration to hold a certain opinion about a person's conduct before being entitled to issue a document likely to lead to the person's extradition. The Minister simply had no power to issue the relevant notice if he did not have, in one manner or another, details of, or a summary of, the person's conduct. It was plain, from the material the Minister relied on to form his opinion, that he did not have such details or summary. In effect, he acted in a vacuum, and thus failed to satisfy the mandatory statutory conditions necessary to enable the discretion to be exercised. 20 This seems far removed from the present situation. Here, the Optus executive was entitled to form his own views about matters that were relevant in terms of his employees' actions in enabling the interception, (there were no statutory preconditions to the exercise of the power, nor were there any matters of limitation beyond those stated or necessarily implied by the language of s 18 of TI Act). 21 Mr O'Brien has conclusively certified that the particular matters are relevant. Certainly, they give every appearance of being relevant, indeed highly relevant, to the particular aspects the accused would like to challenge. Viewed in that light, the issue of the subpoena is properly seen as more in the nature of a disgruntled attempt to see if there might be more than meets the eye to the certificates. There is no reasonable basis, however, for thinking that Mr O'Brien did not consider that the certified matters were relevant, and his certificate proves conclusively that they were. 22 None of the matters sought to be relied on by Mr Lange in his argument, support the proposition that Mr O'Brien did not consider the appropriate range of relevant matters in terms of the certification. Rather, it appears quite clearly that he did give ample and proper consideration to the relevant matters in the "live" certificates. There is no suggestion he lacked the power or capacity to revoke the earlier certificates. Such a power clearly exists (s 33 Acts Interpretation Act (Cth) 1901). 23 Mr Lange also relied upon a series of taxation cases. A number of these invoked the well-known "Hickman principle" (R v Hickman: Ex Parte Fox and Clinton (1945) 70 CLR 598, 615 per Dixon J). There is no need for me to detail these decisions. They were relied upon by way of analogy, even though Hickman dealt with a privative clause, not an evidentiary certificate. Those decisions arose, however, within a very particular statutory context. The analogy, in my opinion, is so remote as to be of virtually no assistance at all. 24 The end result sought to be drawn from these cases, however, was to liken the present situation to the position where the Commission of Taxation had issued an assessment without turning his mind to the actual assessment or calculation of the taxpayer's income. Mr Lange argued that the tax cases demonstrated that a conclusive evidentiary certificate would not stand in such a situation, and that this would be so even where a "malicious" certification had not been demonstrated. Of course, at issue here is not an application to set aside the warrants – although that is contemplated – but a question as to legitimate forensic purpose. 25 In my view, however, Mr Lange's analogy breaks down at the precise point he argues that there is "well and truly" available an inference that the certifier in the present matter did not turn his mind to the facts he certified. I simply do not agree with this proposition. I have no doubt the belief is genuinely held by Mr Lange, but it is, in my view, not one reasonably available as an inference from the matters on which reliance has been placed. To adopt (and to adapt) the words of Brennan J in Alister v The Queen here the party believes and hopes that documents exist that may advance his position, but there is an absence of "reasonable grounds" so as to lead to a belief that the material exists. 26 In its reply submissions, the Commonwealth noted, however, that the authority of the decisions to which the accused made reference (the tax cases) had very recently been fundamentally undermined by the decision of the High Court in Commissioner of Taxation v Futuris Corporation (2008) HCA 32. This led to a flurry of additional written submissions on both sides, as to whether the Futuris decision achieved the result argued for by the Commonwealth. That point, however, is so remote from the present decision, for the reasons, I have given, that I will not attempt to resolve in any definitive or detailed way the differing submissions of the parties in that regard. It is simply not necessary for the purposes of my present task. It is an interesting, but in the end, unnecessary diversion. 27 This much, however, may be said: in 1995 the "Hickman principle" was considered by the High Court in a situation where the Tax Commissioner had issued assessments on an alternative basis to different taxpayers in respect of the same income (Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168). The Commissioner's actions, however, were not found to be wanting in validity. In the following year, the Federal Court (Spender, Burchett and Hill JJ) applied the Hickman principle, in reliance on Richard Water Pty Limited, to a sales tax issue. (Darrell Lea Chocolate Shops Pty Limited v Commissioner of Taxation (1996) 72 FCR 175). There, the Commissioner had issued assessments to the appellant in circumstances where the assessments were necessarily wrong, and were known to the Commissioner to be wrong. The Commissioner was held to be unable to issue assessments based on facts he knew to be wrong. It was, on that basis, an exercise that was not "bona fide". The assessments were set aside. 28 In Commissioner of Taxation v Futuris, the Commissioner was accused of breaching the Hickman principle, and acting without bona fides. The Commissioner was asserted to have engaged in "double counting" when issuing assessments. The High Court rejected the challenges and held that there was no jurisdictional error involved in the assessment process. The Commissioner had acted within jurisdiction. Two points were made for relevant purposes: first, a lack of bona fides was equated with "conscious maladministration" of the legislation (majority decision at [25] and [52]. Second, Dawson J (in Richard Walter Pty Limited) had rejected the application of the Hickman principle to the particular tax assessment, (Dawson J at p 222) either directly or by analogy. In Futuris, the majority adopted the reasoning and remarks of Dawson J. (Futuris at [58 to [70]). The scope of the Hickman principle will only apply to tax assessments where a jurisdictional error has occurred involving conscious maladministration. Otherwise in general litigation the evidentiary certificate will prevail. 29 This brief analysis emphasises that Mr Lange's use of the Hickman principle has no real value to the present issue, even by way of analogy. This is so because here Mr Lange does not assert "conscious maladministration" but merely inadvertence to matters within the statutory ambit. Conclusion 30 I am not satisfied that Mr Lange has established a legitimate forensic purpose for the production and access to the documents captured by the call. Nor am I satisfied that it is "on the cards" that the documents, if produced, will materially assist his client's case. No matter how the argument is dressed up, it seems clear to me that what is involved here is nothing more than a fishing expedition. The accused's reliance on a similarity in wording between the certificates, and his further reliance on the revocation of the earlier certificates, do not justify or permit the call for any of the five categories of material listed in the subpoena of 13 May 2008. I am perfectly satisfied that the call must be rebuffed by the application of the principles involved in the body of authority set out earlier in this decision. 31 The Commonwealth placed before the Court an alternative argument: It submitted that, in any event, all the documents captured by the call were the subject of valid claims for privilege, and that access to the documents should be refused on this basis. It has not been necessary for me to determine this alternative claim. In view of the decision I have reached on the principal matter, I consider that it is undesirable that I express any opinion in relation to the secondary argument. 32 The orders I make are: 1. I make order 1 in the Notice of Motion dated 4 June 2008; 2. I order that ASIO be excused from producing the documents referred to in each of the five categories set out in the subpoena and call of 13 May 2008. ********** 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.