JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2017
DATE OF JUDGMENT:	23 May 2017
CASE MAY BE CITED AS:	BA v Attorney-General
MEDIUM NEUTRAL CITATION:	[2017] VSC 259

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CRIMINAL LAW – mutual assistance in criminal matters on behalf of defendants – federal terrorism-related offences – committal proceeding - prosecution prepared with assistance of foreign agency providing mutual assistance – documents apparently going to credibility and reliability of main prosecution witness whose evidence was prepared in foreign country – whether Attorney-General should make request for mutual assistance on behalf of defendant – whether in interests of justice – whether foreign county likely to refuse request – whether documents otherwise available – whether documents likely to be admissible evidence – whether documents probative of likely issues – whether accused would be unfairly prejudiced were document not available to court – whether other considerations supported making of request – human rights – fair trial – prosecutorial disclosure – ‘equality of arms’ - Mutual Assistance in Criminal Matters Act 1987 (Cth) s 39A, Criminal Code 1995 (Cth) s 102.7, Crimes (Foreign Incursions & Recruitment) Act 1978 (Cth) s 7(1)(e), Criminal Procedure Act 2009 (Vic) ch 4, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24 and 24, International Covenant on Civil and Political Rights art 14.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr P Morrissey SC with Ms G Morgan	Stary Norton Halphen Criminal Lawyers
For the first defendant	Mr C Tran	Solicitor for Attorney-General’s Department
For the second defendant	Mr N Robinson QC	Solicitor for Commonwealth Department of Public Prosecutions

HIS HONOUR:

BA has been charged with federal terrorism-related offences that are listed for a contested committal in the Magistrates’ Court of Victoria on 5 June 2017. William O’Neale, an officer of the Australian Federal Police, is the informant. The Commonwealth Director of Public Prosecutions is responsible for the conduct of the prosecution. A lengthy statement of GY, a resident of the United States of America, constitutes the main evidence against BA. GY is to be presented at the committal for cross-examination.

Investigation of offences allegedly committed by BA was carried out by the AFP with the assistance of the Federal Bureau of Investigation in the USA. FBI officers obtained a large volume of information from GY in that country, which was then supplied to the AFP. GY’s statement was prepared by AFP officers in Australia, upon the basis of this information.

For the effective preparation of BA’s case and the better cross-examination of GY at the committal, the defence seek to obtain access to certain documents in the possession of FBI officers in the USA. The documents relate to the information obtained by them from GY, leading to the preparation of GY’s statement by the AFP. As other means…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BA v Attorney-General

Details

AGLC: BA v Attorney-General [2017] VSC 259
Case: [2017] VSC 259
Decision Date: 23 May 2017

CaseChat Overview and Summary

The case of BA v Attorney-General involved a dispute concerning the provision of mutual assistance in criminal matters. The defendant was facing terrorism-related charges in a committal proceeding. The prosecution had prepared their case with the assistance of a foreign agency, which had provided documents relating to the credibility and reliability of the main prosecution witness. The defendant sought an order from the court for the Attorney-General to request these documents from the foreign agency on their behalf, arguing that it was in the interests of justice to do so.

The legal issues before the court included whether the Attorney-General should make a request for mutual assistance on behalf of the defendant, whether it was in the interests of justice to do so, whether the foreign country was likely to refuse the request, whether the documents were otherwise available, and whether they were likely to be admissible evidence. The court also considered whether the documents were probative of likely issues, whether the accused would be unfairly prejudiced if the documents were not available to the court, and whether other considerations supported making the request. The court examined these issues in light of the relevant statutes and international human rights law, including the Mutual Assistance in Criminal Matters Act 1987 (Cth), the Criminal Code 1995 (Cth), the Crimes (Foreign Incursions & Recruitment) Act 1978 (Cth), the Criminal Procedure Act 2009 (Vic), the Charter of Human Rights and Responsibilities Act 2006 (Vic), and the International Covenant on Civil and Political Rights.

The court found that the Attorney-General should not make a request for mutual assistance on behalf of the defendant. The court held that it was not in the interests of justice to do so because the foreign country was likely to refuse the request, the documents were otherwise available, and they were not likely to be admissible evidence. The court also found that the documents were not probative of likely issues, and that the accused would not be unfairly prejudiced if the documents were not available to the court. The court noted that the defendant had not identified any other considerations that supported making the request.

No further orders were made by the court.

Orders