Commissioner of Police, NSW v Taleb (No 2) [2019] NSWSC 87

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police, NSW v Taleb (No 2) [2019] NSWSC 87 Hearing dates: 11 and 14 February 2019 Decision date: 14 February 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) The Commissioner's claim for public interest immunity is upheld. (2) Disclosure of the documents in the redacted form proposed by the Commissioner constitutes full compliance with the orders made for production on 30 January 2019. Catchwords: CRIMINAL LAW – subpoena – public interest immunity – confidential affidavit – public interest in non-disclosure of material – public interest in disclosure to accused – part of material disclosed – balance redacted – no question of principle Legislation Cited: Criminal Code Act 1995 (Cth) s 119.1 Law Enforcement (Controlled Operations) Act 1997 (NSW) Cases Cited: Commissioner of Police, NSW v Taleb [2019] NSWSC 21 Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 Category: Procedural and other rulings Parties: Moudasser Taleb Commissioner of Police, NSW Representation: Counsel: M Finnane QC (Mr Taleb) T Glover (Commissioner of Police, NSW)

Solicitors: Zali Burrows at Law (Mr Taleb) Crown Solicitor's Office (Commissioner of Police, NSW) File Number(s): 2017/00179287 Publication restriction: No publication until the conclusion of the trial.

EX TEMPORE Judgment (revised) 1. Moudasser Taleb has been charged with offences under the Criminal Code Act 1995 (Cth), including an offence of intentionally engaging in conduct while being reckless to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code, namely to enter Syria with intent to engage in hostile activity. His trial is due to commence on Monday, 25 February 2019. Counsel has indicated that there will be around four to five days of preliminary legal argument largely concerning alleged improprieties or illegalities which, it will be submitted, render the evidence of various witnesses and various investigations inadmissible in the trial. 2. Mr Taleb has issued three subpoenas seeking a range of documents generated by investigators in the course of the investigation. These documents have been subpoenaed in an attempt to obtain evidence supporting Mr Taleb's case that he was a reluctant participant who was essentially duped or persuaded by an agent provocateur to engage in the conduct alleged and, secondly, that the evidence against him was obtained illegally or improperly. 3. The first two subpoenas were subject to substantial legal argument wherein the recipients of the subpoenas (the Australian Federal Police and the NSW Police) submitted that there was no legitimate forensic purpose in the accused obtaining access to those documents. That argument proceeded over four days, namely 21 and 22 November 2018 and 3 and 5 December 2018. I published a judgment on the issue on 30 January 2019. [1] The orders I made are set out at paragraph [72] of that judgment. In addition to those orders, various agreements were reached between the parties in the course of the legal argument. As a result, various documents have been produced either to the Court and then to the accused, or on an informal basis directly to the accused's lawyers. 4. In respect of some of the documents ordered to be produced, the Commissioner of Police, NSW ('the Commissioner') foreshadowed at an early stage and again once the orders were made, that he sought to make a claim for public interest immunity. Counsel for the Commissioner came to Court on 30 January 2019 ready, willing and able to present arguments on that matter. However, after judgment was delivered, I was informed that Mr Ramage QC was no longer instructed to represent Mr Taleb. The matter was stood down in the list to allow Mr Taleb's solicitor to appear and explain to the Court what was happening in terms of the future conduct of the case. She arrived with Mr Finnane QC who had agreed to accept instructions in the trial. However, he was not yet seized of the issues either generally or specifically with respect to the subpoena arguments. Accordingly, it was necessary for the case to be adjourned until Monday, 11 February 2019. 5. I was also informed after delivering judgment on the first subpoena argument that a third subpoena had been issued. That subpoena was filed in the Supreme Court on 26 November 2018. However, for reasons which are largely unexplained, it was not served on the Commissioner before 5 December 2018 when the matter was still before me and the parties were still in debate. The Commissioner filed a notice of motion on 18 January 2019 asking that the third subpoena be set aside "upon the grounds of lack of legitimate forensic purpose and abuse of process." As I understand it, the argument in this regard is twofold although that argument was not fully ventilated. The first point is that the subpoena is directed to documents which were subject to the first two subpoenas. The second argument concerns the alleged failure to serve the document in a timely fashion, thus allowing the legal issues which arose to be ventilated along with similar issues being debated in November and December 2018. There was a dispute at the bar table as to whether there was any such failure and, it seems, the documents were served but (perhaps) on the wrong party. [2]