Supreme Court New South Wales Medium Neutral Citation: R v Dickson; R v Issakidis (No 3) [2014] NSWSC 1241 Hearing dates: 05 September 2014 Date of orders: 05 September 2014 Decision date: 05 September 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Dismiss the notice of motion filed on behalf of the Commissioner of the Australian Federal Police on 4 September 2014. 2. Order the production of the material referred to in paragraph 2 of the subpoena issued on 29 August 2014 and amended on 3 September 2014. 3. Grant the accused access to that material. Catchwords: CRIME – subpoena issued by accused – transcript of examinees under Proceeds of Crime Act – public interest immunity – class claim – interests of fair trial warrant order for production. Legislation Cited: - Evidence Act 1995 (Cth), s 130, s 131A - Judiciary Act 1903 (Cth), s 68 - Proceeds of Crime Act 2002 (Cth), s 180, s 193, s 197, s 201, s 266A, s 318 Cases Cited: Lee v The Queen [2014] HCA 20 Category: Procedural and other rulings Parties: Crown (Commonwealth Prosecutor) Anthony James Dickson (Accused (12/140639)) Michael John Issakidis (Accused (12/128506)) Commissioner of the Australian Federal Police (AFP) Representation: Counsel: M. McHugh SC, S. Flood, A.P.C. McGrath (Crown) B. Gross QC, C.G. Catt (Dickson) M.J. Byrne QC (Issakidis) E.A. Cheeseman SC, J.C. Conde (AFP) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Tully & Chiper (Dickson) Peter Shields (Issakidis) Proceeds of Crime Litigation (AFP) File Number(s): 2012/140639; 2012/128506 Publication restriction: Nil. ex tempore Judgment Ruling on application to set aside a subpoena 1. On Friday 29 August 2014 I granted the accused, Anthony Dickson, leave to issue a subpoena directed to the Commissioner of the Australian Federal Police (the "Commissioner" and the "AFP" respectively). The subpoena was returnable on Thursday 3 September 2014 at 9.30am. There were two relevant parts of the schedule to the subpoena. Paragraph three sought production of a copy of any interview between the Australian Federal Police and a named person. Material has now been produced in answer to that paragraph. Paragraph two of the subpoena sought a copy of the transcript of any evidence given in proceedings in this Court under the Proceeds of Crime Act 2002 (Cth) ("POCA") between the Commissioner and Mr Dickson, being proceedings 108692 of 2012 (the "POCA Proceedings"), by four named persons. 2. When the subpoena was returnable on 3 September 2014 there appears to have been something of a mix-up in that no one attended on behalf of the Commissioner. However, at short notice senior counsel for the Commissioner, instructed by that part of the AFP that deals with applications under the POCA, was able to attend. She explained that the paragraph was, in a sense, misconceived in that no evidence had been given in the POCA proceedings by those persons. She stated that a sub-set of them had been examined by an examiner acting under s 180 of the POCA. 3. It was foreshadowed that, if the subpoena was amended so that it sought the production of that material, an application to set the subpoena aside would be made. To facilitate this I granted leave to amend the subpoena so that it caught the transcript of those examinations and made it returnable today. There was a degree of urgency attaching to this in that one of the named persons is due to give evidence on Monday. However it emerged that there had only been an examination of two of the persons named, one of whom I will use the designation "AC" and the other the designation "RH". AC is to be called as a witness in the Crown case in some weeks' time. He is clearly a very important witness for the Crown and it can be anticipated that parts of his evidence at least may be hotly in contest. 4. The other person, RH, is not due to be called by the Crown as a witness because, as I understand it, the Crown considers that there is a proper basis for believing that he may have been criminally involved in the events the subject of the proceedings. Nevertheless, it is clear from the evidence that has been led in the trial to date that RH was a very significant player, at least in the financing transactions which were an essential part of what is said to be the overall scheme effected by the two accused. 5. When the subpoena was returnable, senior counsel for the AFP sought to set the subpoena aside. Perhaps at my instigation, the argument raised a number of difficult questions concerning prosecutorial duties of disclosure and any related duty imposed upon the AFP. However, I will deal with the matter on its terms, namely a subpoena issued by the Court requiring the production of documents and an application to set that subpoena aside by reason of a contention that the material sought should be excluded under s 130 of the Evidence Act 1995 (Cth) (see s 131A). 6. As noted, the examinations were conducted under s 180 of the POCA. Section 193 provides: "193 Approved examiner may restrict publication of certain material (1) The approved examiner may: (a) on his or her own initiative; or (b) at the request of the person being examined, or the *responsible authority; give directions preventing or restricting disclosure to the public of matters contained in answers given or documents produced in the course of the examination. (2) In deciding whether or not to give a direction, the approved examiner is to have regard to: (a) whether: (i) an answer that has been or may be given; or (ii) a document that has been or may be produced; or (iii) a matter that has arisen or may arise; during the examination is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against a law of the Commonwealth or a State or Territory; and (b) any unfair prejudice to a person's reputation that would be likely to be caused unless the approved examiner gives the direction; and (c) whether giving the direction is in the public interest; and (d) any other relevant matter." 1. A number of other aspects of the POCA should be noted. As is often the case with such legislation, s 197 modifies an examinee's rights to claim privilege against self-incrimination so that they are not excused from answering any question that is posed or providing any document that is required to be produced. However there are limits placed upon the use to which such material can be used in evidence against them. 2. Further, s 201 of POCA provides: "201 Breaching directions preventing or restricting publication (1) A person is guilty of an offence if: (a) the person publishes a matter contained in answers given or documents produced in the course of an *examination; and (b) the publication is in contravention of a direction given under section 193 by the *approved examiner who conducted the examination. Penalty: 30 penalty units. (2) This section does not apply to disclosure of a matter: (a) to obtain legal advice or legal representation in relation to the order; or (b) for the purposes of, or in the course of, legal proceedings." 1. This section is of particular significance. It has not been suggested there is any express provision of the POCA that gives a direction by the examiner under s 193(1) the force of law. Instead the POCA operates by using provisions such as s 201 which make it an offence to contravene such a restriction, but include an exception in s 201(2)(b), namely disclosure for the purpose of, or in the course of, legal proceedings. Thus nothing in the POCA creates a blanket restriction on the production of this material to the Court, to the Court granting access to the material to the accused, or to the accused using it during the course of the trial, even where a direction under s 193(1) has been made. 2. During the course of argument I was taken to some other provisions, which I will note. The Court was referred to s 266A which, consistent with the scheme of the POCA that I have described, authorises the disclosure to various bodies of material obtained during the exercise of various functions, including s 180. 3. One of those bodies is the Commonwealth Director of Public Prosecutions. (see item 2 in s 266A(2)). As I have previously stated, it is not necessary to address the questions of the prosecutorial duty of disclosure, given that the Court is being presented with a subpoena requiring the production of the material. 4. In argument, I enquired of senior counsel for the AFP, as to what may be the ultimate use made of material obtained from the examinations. Quite fairly, she referred me to s 318 of the POCA, which contemplates that the transcript of the examination of a witness can be used in evidence in principal proceedings under the POCA, that is, proceedings seeking orders in respect of the proceeds of crime, without the examinees being called. I will shortly address the significance of that provision. 5. For the sake of completeness, I note in hearing these proceedings, and this application, the Court is exercising jurisdiction under s 68 of the Judiciary Act 1903 (Cth). It follows that no question of conflict between state and federal law arises. To the contrary, these proceedings, and this matter, is exclusively concerned with the exercise of federal jurisdiction, and every relevant power derives force from federal law. 6. The nature of the application that is made to set aside the subpoena can be conveniently described as a class application. At the outset it must be accepted that a very high threshold is imposed upon the Crown in seeking to resist material sought by two accused facing serious criminal charges on the basis of a class application. In particular, in this case, as I have said, one of the examinees is an important Crown witness, and the other examinee is an important player in the events the subject of the proceedings. I am more than satisfied that it is strongly in the interests of a fair trial that the accused be granted access to this material. 7. Section 130(1) of the Evidence Act 1995 (Cth) requires the Court to consider whether the public interest, in admitting into evidence information or a document that relates to matters of state, is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document. If so, the Court may direct that the information or document not be adduced as evidence. As I said, in this case that is to be read as extending to exemption from production of the material to the Court pursuant to a subpoena. 8. Section 130(4) outlines, without limitation, a number of circumstances that can relate to matters of state, including material that might "prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to the other contraventions of the law", or "prejudice the proper functioning of the government of the Commonwealth or a State". 9. I doubt that the relevant forfeiture regime created by the POCA could be described as a civil penalty. However, I have no doubt that the function of seeking to forfeit the proceeds of serious criminal activity can be described as an aspect of the proper functioning of the Commonwealth. 10. The critical question is to identify the relevant aspect of the public interest that would outweigh an order for the production of this material. The written submissions of senior counsel for the Australian Federal Police state as follows: "In circumstances where, as here, examinations have been undertaken for the purpose of the POCA on the application of the Commissioner as the statutory proceeds authority and have not been provided to the prosecution, requiring disclosure has the potential to undermine the object of the POCA. The public interest served by the objects of the POCA sought to be protected by the court refusing to grant access to the parties to the criminal proceedings outweighs any risk to the accuseds' fair trial." 1. It should be noted that this submission is made a context where, following the examination of the two persons, who I have referred to, an order was made by the examiner under s 193(1) of the POCA, restricting the class of persons to whom the answers and the transcript of examination are to be given. The effect of the orders was that they could not be disclosed to any member of the public, with the exception of various named persons, which included employees or agents of the AFP. It should be otherwise noted that the examinations were conducted in private. 2. The submission that I have just quoted from requires that attention be given to precisely what it is about the objects of the POCA that would be undermined by requiring production of this material. 3. During the course of oral argument, one matter that was raised was that disclosure of this material might undermine the functioning of POCA, because it may have a tendency to undermine the willingness of examinees to co-operate, or perhaps at least fully answer, and, in particular, give truthful evidence. 4. The fundamental difficulty with that contention is that the scheme of the POCA itself contemplates, at least as a possibility, the disclosure of material that is obtained in an examination to the persons who are the object of the investigation. In this case, the examination of AC was undertaken in connection with an investigation under the POCA concerning the affairs of the accused, Mr Dickson. The examination of the person RH was undertaken in connection with an investigation under the POCA into the affairs of Mr Dickson and RH. 5. Provisions such as s 318, to which I have referred, clearly contemplate, at least as a possibility, that the answers that are given in such examinations, and a transcript of those examinations, may ultimately be provided to the accused Mr Dickson in further pursuit of the POCA proceedings against him. Thus, what this particular concern relates to is merely a matter of timing, namely, that the accused Mr Dickson might obtain or see the material at an earlier stage than that contemplated by the POCA. 6. In the scheme of things, that seems to me to be a matter warranting a fairly low level of concern, so far as the balancing process under s 130(1) is concerned. 7. The second and related contention was that the processes of POCA, and, in particular, the consideration that had been given to the issue of a non-publication order under s 193(1), would be frustrated if such material could simply be subpoenaed in "any proceedings" as contemplated by s 201 of the POCA. 8. Whether or not that is so, is not really the issue raised by this application. This is not just "any proceedings". This is a category of proceedings that is treated with the highest level of seriousness by the courts, namely, a trial of two persons on a serious criminal charge. The interests of those two persons receiving a fair trial, and, in particular, having reasonable access to material to test the case against them, is paramount. 9. It seems to me that the scheme of the POCA does not enable orders made under s 193(1) to be used as a basis for automatically excluding access to material obtained under the Act by a court. Instead, if a court issues compulsory processes to obtain such material, then the fact that an order is made under s 193(1) is clearly a matter that needs to be considered in an application of this kind. However each case needs to be considered according to its own facts and circumstances. 10. A third, and related point, was that there is a public interest in withholding from a criminal trial material obtained under compulsory examination. This proposition sounds eerily familiar to the principles that have been enunciated recently by the High Court in cases such as Lee v The Queen [2014] HCA 20. However, it is nevertheless pitched too high. Those cases are principally concerned with the damage that may be done to the accusatorial process by the prosecution having access to material that has been obtained compulsorily from an accused person facing trial. 11. This matter is very different. This case is concerned with whether accused persons facing trial have access to material from third parties that was obtained compulsorily. In my view, the relevant public interest is ensuring a fair trial. An aspect of a fair trial is to enable an accused person to endeavour to employ reasonable methods to collect material that may be exoneratory in nature. 12. The interest that has been referred to may be one that warrants the restriction of access to material being obtained so that it is not available to the prosecution. All I note at this stage is that the Crown has reserved its position on access. To that end, although I will be ordering access to the accused, I will not grant access to the Crown at this point. 13. A fourth and related contention was that to require production of the material may undermine the protections against self-incrimination of examinees that are found in s 197 of the POCA. In my view, this does not advance the matter. As I have said, only one of these two persons is likely to be called by the Crown, namely, AC, and when he is called this Court is obliged to respect his right to avoid self-incrimination. 14. Otherwise, the ordering of production to a Court, and the granting of access to parties, of the transcripts of compulsory examination does not affect any rights in respect of self-incrimination that may exist in respect of that material. 15. When I return to s 130(1), I am more than satisfied that the public interest in ensuring a fair trial substantially outweighs all the matters that have been pointed to on behalf of the Commissioner. 16. Accordingly, I dismiss the notice of motion filed 4 September 2014. I order the production of the material referred to in paragraph 2 of the subpoena, issued on 29 August 2014, and amended on 3 September 2014. I grant the accused access to that material. ********** Amendments 14 June 2016 - Restriction lifted. 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. Decision last updated: 14 June 2016