District Court New South Wales Medium Neutral Citation: R v MUJUEVIC, SALIBA, RYMER, CUSENS [2017] NSWDC 214 Date of orders: 13 April 2017 Decision date: 13 April 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Orders sought in Notice of Motion declined Catchwords: Criminal - Procedure - Subpoena - production of documents - Public Interest Immunity - Closed Court Legislation Cited: Evidence Act 1995 Cases Cited: AG v Stuart (1994) 34 NSWLR 667 AG v Lipton [2012] NSWCCA 156 Category: Principal judgment Parties: Regina Eldin Mujuevic Jamie Saliba Chris Michael Rymer Troy Cusens Representation: Counsel: Mr Kimbell - Crown Mr Steel - J Saliba Ms Carroll - C Rymer Mr Pontello - T Cusens Mr Pickin - E Mujuevic Mr Bhalla - Commissioner of Police File Number(s): 2014/00347047; 2014/00347931; 2014/00347405; 2014/00347675 Judgment CLOSED COURT FOR DISCUSSION BETWEEN HIS HONOUR AND RICHARD BALDACCHINO AS TO GIVING EVIDENCE Application by Accused Saliba pursuant to Notice of Motion filed 04/04/17; see transcript p 1312 1. HIS HONOUR: Last Tuesday week, Mr Saliba moved, through his counsel, for various orders set out in a notice of motion signed by his solicitor on 3 April, but actually filed in Court on the morning of 4 April. We spent that morning dealing with the various issues that arose in respect of that motion which, amongst other things, sought to revisit the issue of access to documents produced by the Commissioner of Police in response to a subpoena issued on behalf of Mr Saliba, but additionally sought to adduce evidence that it was thought may bring into focus the terms of s 130 Evidence Act 1995. 2. Alternatively, it was also sought by Mr Saliba that the proceedings be stayed permanently or temporarily for further consideration of the "matters of state", or alternatively to that, Mr Saliba be tried separately from Mr Cusens, Mr Mujuevic and Mr Rymer, in respect of the current indictment. 3. A number of the matters that were moved upon within the motion fell away as the matter was both discussed and determined. I do not propose to go through all the issues that were dealt with by myself in discussion with the parties. I point out, in relation to the subject matter of the motion, that it required me to close the Court in order to have a discussion with the Commissioner of Police's legal representative, Mr Bhalla of counsel. 4. Supporting the motion of Mr Saliba was an affidavit by Mr Saliba's solicitor. It set out a number of matters, some of which I was aware from the previous conduct of the trial, but other matters of which I was unaware. I am completely unaware of precisely what material had been served upon the parties independently of what has been produced in court in my presence. 5. Essentially in respect of matters thought to be protected pursuant to s 130 of the Act, or otherwise protected by a claim of public immunity, the central issue agitated on behalf of Mr Saliba was that, as it was articulated in para 21 of the solicitor's affidavit in support of the motion, if Mr Saliba was precluded from raising at the trial that Mr Christian was providing information to the police, or Detective Seymour in particular, these trial proceedings would be unfair. It was articulated in the affidavit, but it is more a submission, that: "Because this evidence is in answer to the motive relied upon by the Crown for Saliba being the shooter, and also relied upon by at least one other co accused in the trial in support of 'cut throat defence'. " 1. As a matter of history, I had earlier permitted of the material produced under subpoena, but subject to the claim of public interest immunity, the release of handwritten notes made by Mr Seymour. In my view, they were notes to which the parties were entitled. I also requested that Mr Seymour provide a further statement. He, in fact, provided two statements, the second being a slight amendment to the first statement he provided to explain the circumstances in which the handwritten notes provided to all the parties had come into existence. 2. It seemed to me they were very much tied up with the material that had been served already upon the parties, particularly in the statement Mr Seymour had made in respect of his contact with Mr Christian immediately after the shooting incident where he was injured. 3. The matter that brought the subject matter of this motion into sharp focus had arisen the day before; that is, 3 April 2017. On 3 April, Mr Steel had cross examined Mr Christian in relation what I would categorise as matters that might give rise to motives for other people other than Mr Saliba and any of the other accused to be involved in any joint criminal enterprise to wound Mr Christian. It should be pointed out that as I understand the Crown case relying upon Mr Christian's account of events, a motive for Mr Saliba and Mr Rymer to be involved in a joint criminal enterprise to wound Mr Christian was to avoid having to satisfy a debt that Mr Christian said was owed to him by those two men in respect of transactions between himself and those men relating to the prohibited drug cocaine. That issue had been squarely raised in the presence of jury in the cross examination of Mr Christian. 4. Mr Steel's cross examination, particularly at p 628 to 632, pointed to reasons that other people may have been disenchanted with Mr Christian. He was specifically asked without objection from anyone: "Q. Was it ever made known to you that you were suspected of being a tip off bloke? A. Nope. I was too busy doing gaol for everyone." 1. He was later asked at p 631: "Q. Even if its suspicion you have to if you're the sergeant at arms or someone else in charge of the chapter, you'd have to make some inquiries to see whether it's true or not? A. Yep. Yep. Yep. Q. So do you accept that what happened to you could have been because there were concerns that you were a tip off bloke and that was the start of the process? A. I got 18 months for pushing anybody. I must be tipping off the wrong people, God damn." 1. Later on, at the bottom of p 631, he was asked this question: "Q. You should agree that someone who is tipping off the police, if that was discovered, or if the club was untrue of a person in that situation they would be kick out of the club; correct? A. Yep." 1. There were some other further questions in relation to the process of isolating and dealing with someone who was "tip off" person in respect of the affairs of the Rebels Motorcycle Club. 2. Counsel for Mr Saliba, between the asking of those questions and the motion filed in court the following morning, had prepared a table, or extract, from material that had been made available to the defence by the Crown, which revealed a large number of text messages that had passed between Mr Seymour and Mr Christian over a point in time between the middle of June and 7 July 2014. It was clear, in the context of the material that I permitted to be released, and also material already available to the parties, that Mr Seymour had, in fact, been contacted by Mr Christian after he had been wounded. Which clearly left the inference open that Mr Christian had the phone number of a police officer; that is, Mr Seymour. Mr Christian in his evidence earlier in the trial had said that his possession of Mr Seymour's number was related to the circumstances of the seizure of a motor vehicle by the police that he had obtained from Mr Baldacchino. 3. It is quite clear, by reference to the detail of the affidavit of Mr Saliba's solicitor, that a large body of material had been produced already to the defence without any claim by the Commissioner of 'public interest immunity', establishing some pre-existing relationship between Mr Seymour and Mr Christian. That is pre-existing before 7 July 2014. I hasten to point out that there has been no suggestion by Mr Christian, nor has it been raised by the Crown, that a motive possessed by any of the accused, on the basis of an allegation of joint criminal enterprise to wound with intent to inflict grievous bodily harm upon Mr Christian, was in any way related to a belief any of the accused had that he, Mr Christian, was in some way providing information about the Rebels Motorcycle Club or individuals within it to the police. 4. The material that was in the possession of counsel in the character of the table of text messages to which I earlier referred between Mr Seymour and Mr Christian was clearly in the "public domain". Even if it was material that suggested a relationship between the two men in the context of the terms of s 130 Evidence Act 1995, bearing in mind the terms of s.130(1), it would be material requiring the Court to take into account the fact that the "substance of the information" had already been published pursuant to s 130(5)(e) of the Act. 5. Section 130(1) provides: "If 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, the Court may direct that the information or document not be adduced as evidence." 1. I have already ruled upon the claim of public interest immunity by the Commissioner in respect of a body of other material, which remains unavailable to the parties. But I have indicated to the parties, and I assure them again, that the other material that I will not permit to be made available to the parties takes no further what is already within the public domain, or may readily be concluded from information within the public domain, including, of course, the material that Mr Steel for Mr Saliba indicated that he wished to cross examine Mr Christian upon on the morning of 4 April 2014. 2. It seemed to me, having regard to the matters raised both by Mr Steel and the Commissioner of Police, in the context of the helpful submissions produced by counsel for the Commissioner of Police when the subpoenaed material was first produced, that counsel for Mr Saliba should be entitled to cross examine Mr Christian upon the text messages claimed to have passed between the police officer and Mr Christian, primarily because that material was in the public domain, and certainly had a connection with evidence that had been adduced without objection concerning the circumstances in which Mr Christian had contacted Mr Seymour. 3. It is important to point out in this context that the Crown relies upon the representations made by Mr Christian to Mr Seymour at times between about 8.29pm and about 8.45pm on 7 July as representations that establish the "identity" of the people, or at least two of the people, that the Crown alleges were responsible for wounding Mr Christian just prior to 8.29pm on 7 July. 4. In relation to a consideration of s 130, and also the delicate issue of what material could be relied upon and what material could not be produced to the defence, I have had particular consideration of s 130(4) Evidence Act which sets out matters that are to be taken into account for the purposes of determining whether information or a document is protected pursuant to s 130(1). I have also had regard to authorities cited by the Commissioner of Police, particularly AG v Stuart (1994) 34 NSWLR 667, at 675 per Hunt J, and, at 690 per Smart J, (although that is a case, of course, dealing with the common law position pre dating the operation of the Evidence Act) and a later decision, that is post 1 September 1995 the date that the Evidence Act 1995 commenced, that of AG v Lipton [2012] NSWCCA 156, particularly [37] [39] per Basten JA. 5. In my view, all things considered, there was a legitimate forensic purpose for counsel for Mr Saliba to pursue the contents of the text messages, and to specifically ask the Mr Christian, which he was permitted to do, as my extemporare ruling made clear, whether in fact Mr Christian was providing information to Mr Seymour in the course of those text messages sought to be relied upon. A matter germane to what was already established to be a "pre existing" relationship between Mr Seymour and Mr Christian, even in the terms of Mr Christian's evidence. 6. I should point out, in giving this judgment, I reflect upon the fact that Mr Christian in fact did not admit that he was the person who was responsible for sending text messages to the police officer. The police officer, when he gave evidence about those same messages, indicated, as I understood his evidence, that he understood that the messages were coming from Mr Christian. It is a matter, of course, available for comment by counsel for the accused, if need be, particularly Mr Saliba, that the very terms of the messages, putting aside the fact that the messages come from a mobile phone service under the control of Mr Christian, reflect the provision of information that might be expected to be within the knowledge of Mr Christian and not within the knowledge of other people. These are matters, of course, available for comment, one way or the other, by the parties. 7. So it transpired that what Mr Steel for Mr Saliba sought to do he was permitted to do. He may not have been permitted to take the matter further, as he may have otherwise wished, but he had ample opportunity to draw the relevant material that was connected to the issues in the case with the witness. He has ample opportunity to make such comment as he wishes, both in respect of facts in issue and also the credibility of Mr Christian if he so desires. It thus came to pass that the ancillary applications for a stay of proceedings, either temporary or permanent, severance from the other accused, and the other matters raised in the motion fell away. The justice of the situation, in my view, was well satisfied in the circumstances. Although I do not for a moment express any self satisfaction about my resolution of the matter. 8. It thus was the situation that I declined various orders sought by Mr Saliba. It was unnecessary, in the circumstances, to rule upon most of them. To the extent that any protection existed for some of the material, pursuant to s 130 of the Act, counsel for the accused Mr Saliba had the opportunity to adduce evidence, or produce a document, which might otherwise be thought in its terms, or by implication, to offend the terms of s 130. In making this judgment, of course, I am not making any comment upon matters of state that are protected by particular rules which are referred to, particularly in the written submissions of counsel for the Commissioner of Police. I have effectively permitted the parties to take advantage of what is available for the legitimate purposes of conducting their cases without compromising any such matter. So far as the material that I have withheld from the parties is concerned, to my mind, without taking the matter into any particular detail, the claim of public interest immunity still applies. The interests of the accused are not compromised, as I have earlier said. Particularly, it seems to me, that the material that I have withheld primarily relates to issues of methodology which are of no interest at all to any party at the bar table at the present in the legitimate pursuit of issues relevant to whether the accused are guilty or not guilty. ********** 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: 15 August 2017