CDirector of Public Prosecutions v Galea (Ruling No 1)
[2019] VSC 587
•19 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0235
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP GALEA |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 and 6 August 2019 |
DATE OF RULING: | 19 September 2019 |
CASE MAY BE CITED AS: | CDPP v Galea (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 587 |
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CRIMINAL LAW – Practice and procedure – Subpoenas – Applications to set aside – Whether legitimate forensic purpose.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr R Maidment QC Ms A Sharp | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms F Gerry QC | Slades & Parsons |
| For ASIO and the AFP | Mr C Horan QC Mr A Yuile | Australian Government Solicitor |
| For Victoria Police | Mr A Solomon-Bridge | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
Phillip Galea is charged with two terrorist offences.
On 19 June 2019, the defence issued subpoenas addressed to the Australian Security Intelligence Organisation (‘ASIO’), the Australian Federal Police (‘AFP’) and Victoria Police (‘VicPol’), seeking the production of various categories of documents.
ASIO and the AFP objected to the production of any of the documents sought from them under those June subpoenas, primarily on the ground of lack of legitimate forensic purpose. VicPol produced some documents falling within the terms of its subpoena, but objected to producing other documents on the grounds of oppression and/or lack of legitimate forensic purpose. The subpoenaed parties also foreshadowed possible public interest immunity (‘PII’) claims in the event that they were ordered to produce certain documents under their respective June subpoenas.
Argument about the June subpoenas was heard in open court, in the presence of Mr Galea and the defence legal team. Accordingly, there was no need to consider the appointment of special counsel to assist the court, as had been raised as a possibility in the defence written submissions dated 30 July 2019.
On 15 July 2019, further subpoenas were issued to ASIO and VicPol in respect of some other documents. Objection was taken to the July subpoenas on the basis of PII. My decisions in relation to the July subpoenas will be contained in separate rulings.
After hearing the parties’ submissions, I ruled that there was no legitimate forensic purpose for most of the documents sought in the June subpoenas. I said I would publish my full reasons later; these are those reasons.
The issues in the proceeding
The following is a very simplified summary of the relevant issues in dispute in this case.
Charge 1 relates to acts alleged to have been done between 29 August 2015 and 6 August 2016, in preparation, or planning, for a terrorist act, contrary to s 101.6(1) of the Criminal Code (Cth) (‘the Code’). Those acts include conducting research into possible left-wing targets for a terrorist act (namely, the Resistance Centre, the Melbourne Anarchist Club, and Trades Hall), conducting research into the nature and sources of ingredients and methods for making explosive devices, and encouraging others to participate in attacks on targets associated with left-wing ideology. The prosecution say those acts were done with the intention of advancing a political, religious or ideological cause, and intimidating the government and/or the public.
In response to charge 1, Mr Galea accepts that he engaged in conduct that may be perceived by others as preparation and planning for a terrorist act. However, he denies that he had any intention to prepare or plan for a real terrorist attack. He says his plans were fake plans, and were deliberately unachievable. He says he acted to expose what he believed to be police corruption, police failure to investigate and deal with left-wing extremists, and police targeting of him and Reclaim Australia (a right-wing group to which he belonged), including by the use of informants.
Charge 2 relates to attempts between 19 November 2015 and 6 August 2016 to make a document, called the Patriot’s Cookbook, likely to facilitate a terrorist attack, contrary to ss 11.1(1) and 101.5(1) of the Code. The prosecution allege that Mr Galea intended to distribute the Patriot’s Cookbook, once it was completed, to right-wing extremists, to equip them to take the law into their own hands by engaging in terrorist acts against left-wing and Muslim groups.
Mr Galea does not dispute that he was researching and writing the Patriot’s Cookbook, but says he only intended to publish it after receiving legal advice about it. He believed that left-wing and Muslim extremist activity was sufficiently prevalent, and police activity sufficiently weak, that there was a real risk of societal breakdown, eventually leading to civil war. He says he was writing the book as an informative educational tool, to prevent societal breakdown, and to respond to and defend against societal breakdown if prevention failed. He says he had no intention to create a manual for carrying out a terrorist attack, now or in the future.
Legitimate forensic purpose
There was no dispute as to the relevant legal principles that apply in this case. They were conveniently summarised by J Forrest J in Australian Federal Police v Magistrates’ Court of Victoria as follows:
The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:
(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c) the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under the subpoena “will materially assist the defence”;
(d) a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied;
(g) in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused;
(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[1]
[1][2011] VSC 0003, [28]; footnotes within the quoted passage have not been reproduced here.
It is not necessary for me to refer to any of the other authorities to which I was taken, concerning the concept of ‘legitimate forensic purpose’, as they are no more than illustrations of those general principles.
Documents concerning other groups or persons
The defence sought the production of documents falling within the following categories:
(a) Documents in relation to any investigation by the subpoenaed party into ANTIFA, the Melbourne Anarchist Club, or other anarchist movements in Melbourne, or the individual members of any such groups, for violence, potential or planned violence, promoting violence, or for terrorist-related activity (ASIO [1] and [2]; AFP [2] and [3]; VicPol [6] and [7]); [2]
[2]The references in parentheses are to the relevant paragraph numbers in the respective subpoenas.
(b) Copies or reports of any internal investigation by the subpoenaed party into the conduct of its investigations into ANTIFA or other anarchist movements in Melbourne (ASIO [6]; AFP [4]; VicPol [8]);
(c) Any evidence that the subpoenaed party chose not to investigate ‘anarchist or far left groups’ (AFP [5]; VicPol [9]); and
(d) A list of church fires in Victoria investigated as terrorist-related activity (ASIO [7]; AFP [7]). Mr Galea believes that there was a spate of church fires around 2015, which were investigated as potential ISIS-related activities.
In subsequent correspondence, the defence narrowed what was meant by ‘anarchist or far left groups’, by specifying some named organisations. The defence also narrowed the types of documents sought, and specified some date ranges for relevant categories. The subpoenaed parties disputed that there was a legitimate forensic purpose in respect of the narrowed categories of documents.
The defence case is that Mr Galea believed that extreme left-wing, anarchist and Muslim activity was on the rise in Australia, and was not being properly policed. He also believed that he was being unfairly targeted by the authorities, and wanted to expose police failures or corruption. In so far as the defence response says that Mr Galea did various acts, or formed various intentions, because of his beliefs that the police were corrupt, or were failing to properly investigate and deal with extremists, those matters go to his subjective state of mind. However, neither the charges nor the defence response involve any relevant objective requirement; Mr Galea’s beliefs do not need to have been reasonable, only genuinely held.
In order to establish that Mr Galea genuinely held a particular state of mind at any relevant time, it may be necessary to look at the information that was known to Mr Galea at that time. But the genuineness of his state of mind cannot be established by having regard to information in the possession of investigative or intelligence bodies that was not available or known to him at the relevant time (which is what the subpoenas seek to have produced).
Neither the prosecution case nor the defence response will require the jury to consider what, if any, investigations ASIO and the police were in fact making into anarchist, far left or Muslim groups. Nor will they require an examination of the adequacy, or perceived adequacy, of those investigations. Such matters are utterly irrelevant to this case.
The defence also argued that these documents would be relevant to an assessment of where Mr Galea’s ideology sits on the spectrum of possible ideologies. What the police or ASIO were doing by way of investigating a small number of nominated groups, during a particular period, is not relevant to how Mr Galea’s ideology may be categorised across the full spectrum of ideologies.
There is no reasonable possibility that the documents sought in relation to these categories of documents will materially assist the defence in either of the ways suggested.
Furthermore, the allegations of police failures or corruption, and selective targeting, are purely speculative. They are mere assertion, without any proper grounds or evidence that might raise a possibility that material falling within the subpoenaed categories is held. Those paragraphs of the subpoenas are nothing more than a fishing expedition.
For these reasons, there is no legitimate forensic purpose in relation to these categories of documents.
Information provided about Mr Galea
Para [4] of the ASIO subpoena also sought the following:
Any statement, document or information provided to ASIO made by Heidi Martin, Darren Norsworthy, Greg Button or Aaron de Keulenear, or any other member or affiliate of [five named right wing groups], the Anarchist Club and ANTIFA about Phillip Galea.
Martin, Norsworthy, Button and de Keulenear were at various times members of one or more of the same right wing organisations as Mr Galea. All four of those people are on the list of prosecution witnesses. The statements of Martin, De Keulenear and Norsworthy disclose that they contacted an ASIO public ‘hotline’ in early 2016, to report their concerns about Mr Galea’s activities. Given those matters, ASIO conceded that there would be a legitimate forensic purpose in seeking any statement, document or information about Mr Galea provided to ASIO by any of those four people. However, ASIO foreshadowed that some PII issues may arise; those PII issues will be dealt with in another ruling.
ASIO otherwise objected to the breadth of para [4], in so far as it sought the same materials in relation to information provided by ‘any other member or affiliate of’ seven named groups or movements. The defence conceded that that part of para [4] was far too broad, and was not being pursued. The defence then sought to narrow para [4] to statements, documents or information about Mr Galea provided to ASIO by three other people: Wanda Marsh, Jaye Moore and Jake Dempsey.
ASIO did not object to para [4] being read down in this way (rather than requiring a fresh subpoena to be issued); however, it disputed that there was any legitimate forensic purpose in relation to any Marsh, Moore or Dempsey documents.
Marsh, Moore and Dempsey are members of various right wing groups. But their involvement in any relevant events seems peripheral, on the material currently before the court. Norsworthy gave evidence at the committal that he, Martin and De Keulenear spoke to a number of people in their groups, including Marsh, before they decided to contact the ASIO hotline. Marsh and Dempsey were both parties to conversations with Mr Galea, and Moore was mentioned in some conversations involving Mr Galea, all of which were picked up in telephone intercepts that will be in evidence. But none of those three will be called as prosecution witnesses, so there is no legitimate forensic purpose in obtaining the subpoenaed material for the purpose of their cross-examination.
Defence counsel also referred to several beliefs held by Mr Galea about Moore, Marsh and Dempsey. First, it was said that Mr Galea’s actions were motivated by a desire to expose what he believed was police corruption (including corruption through the use of informers); in that context, he believed that Moore was a police informant of some sort. Secondly, Mr Galea believes that ASIO’s attention was ‘wrongly’ directed at him by Marsh, Moore and Dempsey, who were really planning terrorist activities themselves, and wanted to divert ASIO’s attention elsewhere. The defence say that Mr Galea’s actions were motivated by a desire to expose what he believed was unfair targeting of him by the authorities.
The defence can lead evidence about Mr Galea’s actual beliefs or motives, and the bases on which he formed them, if and in so far as those matters are relevant to the charges or his defence; they can also subpoena appropriate material relating to those matters. However, whether or not Marsh, Moore or Dempsey were in fact ASIO informers is beside the point. As with the material sought about anarchist and left-wing groups, it is completely irrelevant whether Mr Galea’s beliefs or motives were reasonably held, or based on objectively-verifiable facts.
Furthermore, as with the previous categories of documents, there is simply no evidence before me to substantiate any of these beliefs, or anything to indicate that the material sought in relation to Moore, Marsh and Dempsey is anything more than a fishing expedition.
No legitimate forensic purpose has been established for seeking the production of documents relating to any statements, documents or information provided to ASIO by Marsh, Moore or Dempsey.
Search warrant materials
On 18 November 2015, VicPol obtained two search warrants in the Magistrates’ Court, which authorised the searching of Mr Galea’s premises, and the seizure of items relating to the possession or manufacture of explosives. One of those warrants was issued under the Magistrates’ Court Act 1989 (Vic), and the other under s 465 of the Crimes Act 1958 (Vic) (‘Crimes Act’). They related to offending that was the subject of earlier charges, not the current ones.
The AFP obtained numerous search warrants during 2016 in relation to terrorist offences, which:
(a) Authorised the searching of premises and persons and the seizure of items;
(b) Required the provision of passwords or codes to access seized items; and/or
(c) Authorised telephone and internet intercepts.
Paragraph [1] of both the AFP and VicPol subpoenas sought all affidavits in support of the applications for those warrants. The AFP and VicPol disputed that there was any legitimate forensic purpose for seeking the supporting affidavits.
The defence raised a number of issues concerning the warrants, none of which disclosed a legitimate forensic purpose for obtaining the supporting affidavits.
Before considering the specific matters raised by the defence, it is convenient to consider the manner in which the validity of a warrant can be impugned in criminal proceedings such as these:
(a) The issue of a warrant is an administrative, not a judicial, act. There is a presumption of validity of a warrant, until the contrary is shown;
(b) A warrant may be challenged for a defect appearing on the face of the warrant;
(c) A warrant is not susceptible to collateral attack on the ground that the material before the issuing authority was inadequate or insufficient; and
(d) A warrant may be set aside if it was issued as a result of fraud or material misrepresentation, or if the applicant was acting in bad faith.
This is not an administrative law review proceeding, such as an application under order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Accordingly, it is no part of the court’s role in this case to consider whether the decision to issue the warrant was made due to some other type of jurisdictional error.
The two VicPol warrants were issued by the same magistrate on the same date. They both contained an identical description in the box headed ‘Name and/or description of person or article, thing or material’; that text appeared to have been ‘cut and pasted’ between the two warrants.
The defence argued that the apparent cutting and pasting of text raised the possibility that the VicPol warrants had been ‘signed off’ without proper scrutiny. Even if that were a permissible basis for a collateral attack on the warrants, it is nothing more than a bare assertion, without any evidentiary foundation.
In so far as the defence foreshadowed an argument that the description in that box went beyond the power granted to the magistrate under s 317 of the Crimes Act, such a challenge could be made on the face of the warrant; it would not involve looking at any supporting affidavit.
In so far as the defence said it was unclear on what basis Mr Galea was suspected of having explosive substances in his possession, that was an impermissible attack on the sufficiency or adequacy of the material before the magistrate.
Some AFP agents assisted VicPol members in the execution of the explosive devices warrants. There is evidence that they went there for the purpose of identifying any Commonwealth-related terrorist offences. VicPol seized certain computers during the execution of their warrants, and later allowed the AFP to have access to them before the AFP obtained their own warrants. The AFP subsequently obtained warrants which entitled them to seize those computers in their own right. The facts surrounding the execution of the VicPol search warrants have been disclosed to the defence in witness statements and other documents.
The AFP and VicPol said that what happened in relation to the execution of the warrants was lawful and proper. That was not a matter that was necessary for me to decide for present purposes. If there was any illegality or impropriety in the AFP attending at the execution of the VicPol warrants, or accessing materials seized under those warrants, that was a matter which could be raised by the defence in the course of arguments as to the admissibility of evidence. It was not a basis for going behind the warrants themselves, or obtaining a copy of the affidavits underlying the warrants.
The defence argued that what happened in relation to the execution of the VicPol warrants indicated that the true purpose for obtaining the VicPol warrants was really to investigate terrorism offences, and this was not brought to the attention of the magistrate. It was argued that this demonstrated fraud or bad faith on the part of VicPol in obtaining the warrants. This was raised for the first time in oral argument, and had not been foreshadowed in the defence written submissions. More significantly, there was simply no evidence to support what clearly amounted to a bare allegation of fraud or bad faith.
One of the AFP telephone intercept warrants, which was issued by a member of the Administrative Appeals Tribunal, showed a warrant expiry date of 27 April 2016. However, the warrant itself was signed with an issue date of 29 January 2017. That was a clear error, apparent on the face of the warrant, which could be the subject of challenge (had anything relevant been done under that warrant),[3] without needing recourse to the affidavit behind the warrant. It was clear from other evidence that the issue date should have been 29 January 2016, not 2017.
[3]The warrant itself was replaced on 2 February 2016 with an identical warrant that was in force until 1 May 2016.
The defence submitted that the date error raised the possibility that the AFP warrant had been ‘signed off without scrutiny’. Even if that were a permissible basis for a collateral attack on that warrant, that is nothing more than a bare assertion.
There is also nothing in the nature of that date error, or in any surrounding evidence, which suggests that the AFP warrant was issued as a result of fraud, material misrepresentation, or bad faith.
There was a further argument that was put in relation to both the VicPol and AFP warrants. Mr Galea believed that he and right wing groups were being unfairly targeted by police or ‘the authorities’, and says that is what caused him to do certain things or form certain intentions. Once again, that is a subjective matter, to be established by having regard to matters that were known to him. The affidavits underlying the various warrants can have no bearing on his state of mind at relevant times.
Furthermore, even if the authorities were in fact targeting right wing groups or individuals, that does not in itself indicate fraud or bad faith in obtaining the warrants. There is simply no evidence to support an allegation of fraud or bad faith, or to make this part of the subpoenas anything more than a fishing expedition.
For these reasons, the defence has not established that there is a reasonable possibility that disclosure of the underlying affidavits would materially assist the defence in any relevant way.
In the course of correspondence between the parties, and in oral and written submissions, the defence foreshadowed both a general challenge to the admissibility of evidence obtained under the various warrants, as well as a specific challenge to the admissibility of evidence obtained from Mr Galea’s computers (on the basis that the AFP and VicPol had illegally or improperly obtained access codes or passwords from him). In relation to that last matter, the defence asserted that Mr Galea had not been served with the necessary warrant or order[4] requiring him to disclose his access codes or passwords before he provided them. That specific challenge to admissibility would not have required the provision of the supporting affidavits – there had either been compliance with the legislative requirements as to service, or not.
[4]Issued under s 456AA of the Crimes Act or s 3LA of the Crimes Act 1914 (Cth).
A timetable was set for pre-trial cross-examination of various police officers, on a voir dire as to admissibility, after the completion of arguments concerning the subpoenas. That cross-examination could have included asking the various officers about why they did what they did in relation to the execution of the warrants, and the handling of the seized materials. However, the defence subsequently informed the court and the CDPP that there would no longer be any objection to the admissibility of evidence obtained under the warrants, on the basis that the evidence had been illegally or improperly obtained.
Abandoned items
For the sake of completeness, I note that, in the course of oral argument, defence counsel indicated that documents falling within the following categories were no longer being sought:
(a) Documents in relation to any ASIO investigation into Martin, Norsworthy, Button or De Keulenear (ASIO [3]);
(b) Copies of any surveillance or investigation into Mr Galea conducted by ASIO or in its possession (ASIO [5]); and
(c) Any evidence that the subpoenaed party chose to target their investigations towards Reclaim Australia/patriotic/far right groups (AFP [6]; VicPol [10]).
Conclusion and orders
For these reasons, I will order that the following paragraphs of the June subpoenas be set aside:
(a) ASIO subpoena: paras [1]-[3], [4] (only in so far as it refers to ‘any other member or affiliate of the United Patriot Front, Reclaim Australia, True Blue Crew, Geelong United Front, Patriots Defence League, the Anarchist Club and ANTIFA’), and [5]-[7];
(b) AFP subpoena: the entire subpoena; and
(c) VicPol subpoena: para [1] (only in so far as it seeks production of all affidavits in support of applications for warrants), and [6] – [10].
Given the absence of any legitimate purpose for the documents sought, it was not necessary for me to consider any oppression or ambiguity arguments by the subpoenaed parties.
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