Chief Commissioner of Police v Zammit

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04815

CHIEF COMMISSIONER OF POLICE	First Plaintiff
and
CAMERON BURNS	Second Plaintiff
v
NICOLE ZAMMIT	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2023
DATE OF JUDGMENT:	2 November 2023
CASE MAY BE CITED AS:	Chief Commissioner of Police v Zammit
MEDIUM NEUTRAL CITATION:	[2023] VSC 635

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ADMINISTRATIVE LAW — Judicial review — Decision of the Magistrates’ Court of Victoria — Contested witness summons for production of documents relating to investigation — Magistrate refused to set aside witness summons — Whether magistrate’s decision affected by jurisdictional error or error of law on the face of the record — Whether magistrate’s reasons inadequate — No error established — Magistrate’s reasons adequate — Telecommunications (Interception and Access) Act 1979 (Cth), s 46.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms S Maharaj KC with Mr J Bayly	Victorian Government Solicitor
For the First Defendant	Mr AP Lewis and Dr JR Murphy	Fayman Lawyers
For the Second Defendant	No appearance

TABLE OF CONTENTS

Relevant provisions...................................................................................................................... 4
The magistrate’s reasons.............................................................................................................. 8
Ground A — Was there rationally probative evidence to support the critical finding?.. 16
Ground B — Did the magistrate make the critical finding?................................................. 24
Ground C — Did the magistrate fail to consider critical evidence?.................................... 27
Ground D — Did the magistrate fail to consider the prospect of the evidence being excluded?.................................................................................................................................................. 30
Ground E — Did the magistrate constructively fail to exercise jurisdiction?.................... 31
Ground F — Were the magistrate’s reasons adequate?........................................................ 32
Ground G — Did the magistrate ask the correct question about oppression?.................. 34
Disposition................................................................................................................................... 37

HER HONOUR:

Early on 16 August 1998, Sergeant Gary Silk and Senior Constable Rodney Miller were shot dead in the course of duty after pulling over a car outside the Silky Emperor Restaurant on Cochranes Road, Moorabbin. Victoria Police established Operation Lorimer to investigate their murders. In mid-2000, Bandali Debs and Jason Roberts were charged with the murders, and they were tried in late 2002. Both men were found guilty and sentenced to life imprisonment.

Nicole Zammit is the daughter of Mr Debs and, in August 1998, was the girlfriend of Mr Roberts. It was her car that her father was driving when he was intercepted by Sgt Silk and SC Miller. Ms Zammit was interviewed by police investigating the murders in July 2000.

In 2012, Mr Roberts’ solicitor approached the Office of Public Prosecutions (OPP) claiming that Mr Roberts was innocent of the murders. The OPP then initiated a review of the Operation Lorimer investigation, during which Ms Zammit was interviewed by Detective Senior Sergeant Ron Iddles. At that time, Ms Zammit stated that Mr Roberts was at home with her when Sgt Silk and SC Miller were murdered.

Many years later, Mr Roberts applied for and was granted leave to appeal his conviction on the basis that there was fresh and compelling evidence that should, in the interests of justice, be considered on appeal.[1] The fresh evidence was unrelated to Ms Zammit’s alibi evidence. It was evidence that one or more police officers had fabricated evidence about dying declarations made by SC Miller, which formed part of the prosecution case that there were two offenders.
[1]Criminal Procedure Act 2009 (Vic), s 326C(1); Roberts v The Queen (2020) 60 VR 431.

In November 2020, the Court of Appeal allowed Mr Roberts’ appeal.[2] The Court of Appeal held that the fresh evidence demonstrated ‘facts bearing on the reliability of evidence adduced by the Crown at trial going to a central issue in the case — namely, whether the Crown could demonstrate beyond reasonable doubt that there was more than one offender’.[3] It further held that there had been irregularity in Mr Roberts’ trial due to non-disclosure of material evidence to the defence, which ‘gave rise to a serious departure from proper process affecting the fundamental fairness of the trial’.[4] The Court of Appeal quashed Mr Roberts’ convictions and ordered a new trial.
[2]Roberts v The Queen [2020] VSCA 277 (Roberts appeal).
[3] Roberts appeal, [19](b).
[4]Roberts appeal, [19](c).

On 9 March 2021, an officer of Victoria Police applied for a warrant under s 39 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) to authorise interceptions of communications made to or from Ms Zammit’s mobile telephone number. The stated purpose of the warrant was to investigate Ms Zammit’s suspected involvement in the offence of ‘assist offender (murder)’. The TI warrant was issued by a member of the Administrative Appeals Tribunal (AAT) on 9 March 2021, and was in force until 6 June 2021.

In preparation for his retrial, in June 2021 Mr Roberts filed a notice under s 190 of the Criminal Procedure Act 2009 (Vic), identifying Ms Zammit as an alibi witness.

On 15 October 2021, Senior Constable Cameron Burns filed a charge-sheet in the Magistrates’ Court of Victoria, charging Ms Zammit with ten dishonesty offences involving the procurement and use of false medical certificates to claim paid personal leave. The exhibits in the police brief included audio recordings and transcripts of conversations intercepted by police pursuant to the TI warrant. This material had been referred by Operation Lorimer to the Financial Crime Squad in late August 2021.

The retrial of Mr Roberts commenced in the Supreme Court on 7 March 2022. Ms Zammit was not called as a witness. On 11 July 2022, the jury acquitted Mr Roberts of both charges of murder.

Ms Zammit intends to contest the charges against her in the Magistrates’ Court. She has caused two witness summonses to be issued by that court, directed to the Chief Commissioner of Police. The first summons, dated 13 August 2022, sought production of the affidavit in support of the TI warrant. The second summons, dated 6 October 2022, sought production of a range of documents relating to ‘any investigation by Victoria Police of the Accused with respect to the suspected offences of assist offender (murder) and attempting to pervert the course of justice’. The specific documents sought by the October summons were:

(a) the LEAP narrative with respect to the investigation;

(b) the Interpose Narrative / entries with respect to the investigation;

(c) copies of all warrants obtained by police during the course of the investigation;

(d) copies of all running sheets, diary entries, Patrol Duty Returns, reports, de-briefing reports, and any other notes made by or created by any member of Victoria Police in relation to the investigation; and

(e) copies of all Attendance Registers and/or Custody Register entries for each attendance of every person who has been the subject of formal interview under caution in relation to the investigation.

The Chief Commissioner objected to the production of these documents. He did not oppose production of some other documents sought by the October summons.

On 20 October 2022, Magistrate Sonnet heard argument in relation to the contested documents sought by the October summons. The Chief Commissioner was represented by senior counsel, and relied on an affidavit of Inspector Katrina Hall, of the Special Projects Unit, Intelligence and Covert Support Command.

On 7 November 2022, the magistrate rejected the Chief Commissioner’s claim for non-production of the contested documents. The magistrate published written reasons for that ruling on 10 November 2022,[5] holding that Ms Zammit had demonstrated a legitimate forensic purpose in seeking production of the requested documents, and that such production was not oppressive in the circumstances.
[5]Referred to below as Reasons.

In this proceeding, the Chief Commissioner and SC Burns (together, Victoria Police) seek judicial review of the magistrate’s ruling. They seek an order in the nature of certiorari quashing the magistrate’s decision to not set aside the October summons, and an order in the nature of mandamus requiring the Magistrates’ Court to remake the decision according to law. They contend that the magistrate’s decision was affected by jurisdictional error or error of law on the face of the record on several grounds. They also complain that the magistrate’s reasons were inadequate.

The proceeding was defended by Ms Zammit, who maintains that the magistrate’s ruling was correct. The Magistrates’ Court took no active role in the proceeding.[6]
[6]In accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6.

For the reasons that follow, no error has been demonstrated in the magistrates’ ruling, and the proceeding must be dismissed.

Relevant provisions

The TIA Act regulates access to telecommunications in Australia. It does so by prohibiting interception and access to private telecommunications, except in special circumstances that are authorised by the Act.

Chapter 2 of the TIA Act provides for the interception of telecommunications, which is authorised by warrants obtained under this chapter. Applications for warrants are determined by a member of the AAT or a Judge nominated to exercise functions and powers under the Act by the Attorney-General.[7] An agency, such as Victoria Police, may apply for a warrant to intercept telecommunications under Part 2-5. Section 39 provides:
[7]Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), ss 6D, 6DA.

Agency may apply for warrant
(1) An agency may apply for a warrant in respect of a telecommunications service or a person to:
(a) for an application made by the National Anti‑Corruption Commission—an eligible Judge; or
(b) otherwise—an eligible Judge or a nominated AAT member.

(2) An application for a warrant shall be made on an agency’s behalf by:
…
(c) in the case of the Police Force of a State—an officer of that Police Force;
…

Section 40 provides for the form of application for a warrant by an agency, which must be made in writing:

Form of application
(1) Subject to subsection (2), an application for a warrant shall be in writing.
(2) If the person making an application for a warrant on an agency’s behalf:
(a) is the chief officer of the agency or a person in relation to whom an authorisation by the chief officer is in force under subsection (3); and
(b) thinks it necessary, because of urgent circumstances, to make the application by telephone;
the person may make the application by telephone.

(3) The chief officer of an agency may authorise in writing, for the purposes of subsection (2), persons who, or classes of persons who, are entitled under section 39 to make applications on the agency’s behalf.

A warrant for the investigation of a serious offence is then determined and issued in accordance with s 46:

Issue of telecommunications service warrant
Warrant relating to the investigation of one or more serious offences
(1) Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which:
(i) the particular person is involved; or
(ii) another person is involved with whom the particular person is likely to communicate using the service; and

(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
Note: Subparagraph (d)(ii)—subsection (3) restricts the issuing of warrants if subparagraph (d)(ii) applies.

Under s 46(2), the judge or nominated AAT member determining the application must have regard to the following matters in order to be satisfied that they can exercise their discretion to issue a warrant:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1); and
(b) the gravity of the conduct constituting the offence or offences being investigated; and
(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency; and
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason; and
(fa) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

The definition of a ‘serious offence’ is set out in s 5D of the TIA Act:

Serious offences
General types of serious offences
(1) An offence is a serious offence if it is:
(a) a murder, or an offence of a kind equivalent to murder; or

…Offences connected with other serious offences
(6) An offence is also a serious offence if it is an offence constituted by:
(a) aiding, abetting, counselling or procuring the commission of; or
(b) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of; or
(c)conspiring to commit;

an offence that is a serious offence under any of the preceding subsections.
(7) An offence is also a serious offence if it is an offence constituted by receiving or assisting a person who is, to the offender’s knowledge, guilty of a serious offence mentioned in subsection (1), in order to enable the person to escape punishment or to dispose of the proceeds of the offence.

The TI warrant was sought and issued on the basis that it would likely be of assistance in the investigation of Ms Zammit for the offence of ‘assist offender (murder)’. Section 325 of the Crimes Act 1958 (Vic) relevantly provides:

Accessories
(1) Where a person (in this section called the principal offender) has committed a serious indictable offence (in this section called the principal offence), any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence.
(2) If, on the trial of any person for a serious indictable offence, the jury are satisfied that the offence charged (or some other serious indictable offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it, they may find him guilty of any offence under subsection (1) of which they are satisfied that he is guilty in relation to the offence charged (or that other offence).
(3) A person charged with an offence against subsection (1) may be indicted and convicted together with or before or after the principal offender and whether or not the principal offender is amenable to justice.
(4) A person convicted of an offence against subsection (1) shall be liable—
(a) if the principal offence is one for which the penalty is level 1 imprisonment (life) to level 3 imprisonment (20 years maximum); or
(b) in any other case, to imprisonment for a term which is neither—
(i) more than 5 years in length; nor
(ii) more than one-half the length of the longest term which may be imposed on first conviction for the principal offence.

…
(6) In this section, serious indictable offence means an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of five years or more.

It is relevant that the offence of ‘assist offender (murder)’ is a ‘serious offence’ for the purposes of the TIA Act. It was common ground that the alternative offence of attempting to pervert the course of justice is not a ‘serious offence’ for the purposes of the TIA Act, and neither are the dishonesty offences with which Ms Zammit has been charged.

The magistrate’s reasons

After outlining the procedural history of the criminal proceeding against Ms Zammit, the magistrate turned to the two witness summonses directed to the Chief Commissioner. The magistrate grouped the documents sought by Ms Zammit into two categories. The first category related to Operation FCS Mayst 2021,[8] and the second related to the investigation of the ‘assist offender (murder)’ offence undertaken for Operation Lorimer. The Chief Commissioner objected only to production of the second category of documents. Accordingly, the magistrate ruled that the documents in the first category should be released to Ms Zammit.
[8]Operation FCS Mayst 2021 was the name of the investigation that gave rise to the current charges against Ms Zammit.

The magistrate then identified the contested documents sought by Ms Zammit, set out the general background to the criminal charges against her, and outlined the history of the Operation Lorimer investigation and subsequent proceedings. In relation to the application for the TI warrant, the magistrate noted that Inspector Hall had deposed that Operation Lorimer continued its investigation of the murders of Sgt Silk and SC Miller after the Court of Appeal ordered a retrial of Mr Roberts. His Honour also noted Inspector Hall’s statement that:[9]

… “[a] new investigation into the Accused’s potential criminal involvement in the murders commenced after police suspected the Accused had conspired with Roberts for her to provide false alibi evidence”. And, in particular, police investigators formed the belief that the Accused’s statement that Roberts was with her on the night of murder was false as it was contradicted by other sources of evidence.

[9]Reasons, [20].

The reasons next summarised the legal submissions advanced on behalf of Ms Zammit. The magistrate recorded that the legitimate forensic purpose identified by Ms Zammit in seeking production of the contested documents concerned the validity of the TI warrant. His Honour noted the way in which Ms Zammit’s counsel had framed the relevant questions, as follows:[10]

a. Was there a genuine investigation by Victoria Police into the accused for any ‘serious offence’ pursuant to section 5D of the Telecommunications (Interception and Access) Act 1979 and in particular, with respect to the offence of ‘assist offender’ (murder) and not some other offence;
b. Whether the warrant was genuinely sought to investigate the offence of ‘assist offender’ (murder) as opposed to a collateral purpose such as seeking material to undermine the credibility of the Accused if she were a witness at the Roberts trial;
c. Whether police genuinely held the belief on reasonable grounds that intercepting the communications of the Accused would reveal information to assist any investigation of the offence of ‘assist offender’ (murder).

[10]Reasons, [25].

The submission for Ms Zammit was that any document that bore on these questions was material to her defence, and that it was highly probable that the documents sought would contain information relevant to the questions. She argued that the documents would provide information bearing on ‘the question of what, if any, investigation into the accused had occurred, the timing and nature of the investigation, as well as the offence or offences being investigated’.[11]
[11]Reasons, [26].

In relation to the Chief Commissioner’s legal submissions, the magistrate noted both the written submissions filed on his behalf and his reliance on the affidavit of Inspector Hall. The magistrate outlined the Chief Commissioner’s two objections to the production of documents related to the investigation in Operation Lorimer as follows:

(a) The first objection was that Ms Zammit had not identified a legitimate forensic purpose for production of the documents, nor had she established ‘a reasonable possibility’ that the documents would materially assist her case.

(b) The second objection, raised in oral argument, was that it would be ‘oppressive’ in all the circumstances for the Magistrates’ Court to order production.

The magistrate acknowledged that Ms Zammit’s alleged current offending, as outlined in the Chief Commissioner’s submissions, was entirely different to the offences that were the subject of the Operation Lorimer investigation. Referring to the factual background to Operation Lorimer set out in Inspector Hall’s affidavit, the magistrate noted the Chief Commissioner’s submission that:[12]

[T]he Lorimer Taskforce continued its investigations with respect to the murders after a re-trial of Mr Roberts was ordered by the Court of Appeal on 10 November 2020. An investigation into the Accused’s potential criminal involvement in the murders commenced after police suspected the Accused had conspired with Mr Roberts for her to provide false alibi evidence (application by Victoria Police, sic). This was the basis for Victoria Police’s application on 9 March 2021 for a warrant under s 39 of the TIAA seeking authorisation for the interception of communications made to or from Ms Zammit’s mobile telephone number.

In relation to this submission, the magistrate noted that:[13]
… the above statement refers to the new police investigation in relation to the provision of false alibi evidence by the Accused. In my view, such statement raises an important issue of what offence the Accused was being investigated for – was it ‘assist offender’ (murder) in connexion with the 1998 acts or the 2013 (and subsequent) acts, or attempting to pervert the course of public justice in connexion with the 2013 acts, or indeed some other offence?

[12]Reasons, [32] (footnotes omitted).

[13]Reasons, [33].

Next, the magistrate summarised the legal principles relating to a challenge to a witness summons or subpoena to produce documents, gleaned from the judgment of J Forrest J in Commissioner of AFP v Magistrates’ Court of Victoria & Ors (Di Pietro):[14]
[14][2011] VSC 3, [28] (Di Pietro).

1.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.
2.The identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced.
3.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’.
4.A ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted.
5.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.
6.A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not sufficient.
7.In criminal proceedings a ‘more liberal’ approach is taken by a court in respect of the application of the test as special weight is to be given to the fact that the documents may assist the defence of an accused.
8.Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.

The magistrate observed that this summary of general principles found support in a number of well-known and settled decisions.[15] His Honour specifically referred to the Court of Appeal’s recent decision of Zirilli v The Queen,[16] which confirmed that the ‘on the cards’ or ‘reasonable possibility’ test should be applied flexibly and with common sense in order to give the accused a fair opportunity to test the Crown’s case and to take advantage of any applicable defences.[17]
[15]Reasons, [36], referring to Alister v The Queen (1984) 154 CLR 404; R v Mokbel (Ruling No. 1) [2005] VSC 410 (Mokbel); Felice v County Court of Victoria & Anor [2006] VSC 12 (Felice); DPP v Selway (2007) 16 VR 508; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300 (Ragg).
[16](2021) 287 A Crim R 407 (Zirilli).
[17]Zirilli, [93]–[98].

The magistrate also noted that since Ms Zammit sought the documents for the purpose of ultimately challenging the validity of the TI warrant, he was required to have regard to the principles relevant to a collateral attack upon a warrant. His Honour referred to what was said by J Forrest J in Di Pietro in that regard, as follows:[18]

A warrant is not susceptible to collateral attack where it is said the material before the appropriate authority was inadequate or insufficient…
This case, however, does not call for an analysis of the validity of the warrant. Rather, as Mr Di Pietro’s argument was formulated by counsel before the Magistrate, it was a collateral attack asserting that it was “on the cards” or reasonably possible that the three warrants were issued in bad faith that the Magistrate was required to consider. This is an accepted exception to the principle preventing a collateral attack on the validity of a warrant.
In Price v Elder[19] the Full Court of the Federal Court said:
A warrant issued as a result of fraud or misrepresentation by an applicant is liable to be set aside. Further, an applicant for a warrant must act in good faith. A statement that is a half-truth, and thus misleading, may be treated as a misrepresentation such as to affect the validity of a warrant issued on the basis of that misrepresentation: Lego Australia Pty Ltd v Paraggio[;] Puglisi v Australian Fisheries Management Authority. However, nothing has been advanced that would justify a finding that there has been fraud or misrepresentation in the present matters.

[18]Reasons, [37], quoting Di Pietro, [30]–[31] (footnotes omitted).

[19](2000) 97 FCR 218, [12] (Price v Elder).

Against that backdrop, the magistrate analysed and determined the Chief Commissioner’s objections to production.

In relation to the Chief Commissioner’s first objection, that the October summons had no legitimate forensic purpose, the magistrate set out and applied a two-stage test:[20]

(a)Has the applicant identified a legitimate forensic purpose for which access is sought?
(b)Has the applicant established … that there is ‘a reasonable possibility’ that the documents sought will materially assist his or her case?

[20]Reasons, [39].

The Chief Commissioner contended that a ‘[v]ague reference to the “legality of the intercept”’ was not sufficient to establish a legitimate forensic purpose.[21] He argued that Ms Zammit made ‘no suggestion that the warrant is on its face invalid, defective or ineffective’, that she had not pointed to anything specific establishing a legitimate forensic purpose, and accordingly she was engaging in a ‘classic fishing exercise.’[22] He submitted that it was difficult to see how any forensic purpose could be established because the charges she now faced were entirely unrelated to the purpose for which the Lorimer warrant was sought, observing that:

(a) the events relevant to Ms Zammit’s conduct — specifically the answers she gave when interviewed by the Lorimer Taskforce in 1998 — took place long before her alleged current offending; and

(b) the purposes and subject matters of Operation Lorimer and Operation FSC Mayst 2021 are different.

[21]Reasons, [40].

[22]Reasons, [40].

As to the first stage, the magistrate did not accept the Chief Commissioner’s submission that Ms Zammit had only made a vague reference to the ‘legality of the intercept.’ Rather, he considered that Ms Zammit had specified the purpose of the summons with some precision. The magistrate said:[23]

In this case, the current charges flow from information obtained as a result of the issuing of a telephone intercept warrant in March 2021. That warrant, according to the written submissions of the Chief Commissioner of Police reproduced above, was sought on the basis that the Accused’s telephone communications related to possible offending said to have taken place in either 1998 (answers given as to the repair of a damaged vehicle used in the police shootings) or 2013 (production of a false alibi for Roberts). Importantly, if the warrant is legally invalid, a real issue of discretionary exclusion of the evidence (supporting the current charges) will arise.

[23]Reasons, [41].

As to the second stage — whether there is a ‘reasonable possibility’ that the documents would materially assist Ms Zammit’s defence — the magistrate noted authorities to the effect that he should take a ‘somewhat broad view’. He observed that the defence is often better able to assess this issue than a court, and so the court should be careful not to close off a legitimate forensic investigation.[24]
[24]Reasons, [42], referring to Ragg; Felice; ACC v Brereton (2007) 173 A Crim R 572 (Brereton).

The magistrate considered that Ms Zammit had ‘affirmatively demonstrated’ a reasonable possibility that the documents would materially assist her defence.[25] His Honour observed that Ms Zammit had not been charged with any relevant offence in 1998 when she was investigated for the offence of ‘assist offender (murder)’, nor when she had been investigated in relation to providing a false alibi in 2013, yet some 20 years later Victoria Police had obtained the TI warrant in respect of an investigation for the offence of ‘assist offender (murder)’.[26]
[25]Reasons, [43].
[26]Reasons, [43].

Against that background, the magistrate reasoned as follows:[27]

In other words, what has materially changed over the intervening period which has prompted investigators to seek a telephone intercept warrant in respect of the offence ‘assist offender’ (murder). In this regard, I note that the alibi statements presented by the Accused occurred over the period 2013 to 2017, and yet no police investigation into possible offending by the Accused was commenced until March 2021. These facts raise an important question of temporal connexion between any act committed by the Accused and the offence of ‘assist offender’ (murder). And importantly, the Court is entitled to proceed on the basis that ‘Operation Lorimer’ was both an extensive and exhaustive investigation into grave offences that were committed in August 1998 and yet the Accused has never been charged (to date) with any criminal offence in connexion with those offences.
In short, the recitation of these facts demonstrates the somewhat remarkable (and indeed unusual) nature of the current proceedings in this matter. Accordingly, in my view, the documents sought under subpoena are likely to shed important light on the relevant circumstances touching on the application for a warrant. In other words, it is no mere sterile fishing expedition for a possible defence, but rather what is sought is relevantly germane to a defence (which has been clearly articulated) to the current charges.
In reaching this conclusion, I have applied the relevant legal principles as outlined in the authorities and have been acutely mindful of the restrictions in seeking to collaterally attack a warrant. I have given very careful consideration to the arguments presented by both parties. In short, this case raises facts which are somewhat unusual in nature, and accordingly the Accused should not be prevented from pursuing what appears to be at this stage a possible defence to the current charges (of course the Court makes no determination as to the merits of such defence in the absence of full argument which is to occur at a later hearing).
Finally, I agree with the Defence submission that ‘it is on the cards’ (or ‘reasonably possible’ as understood by the authorities) that the documents sought for production will provide information that bears upon “the question of what, if any, investigation into the accused had occurred, the timing and nature of the investigation, as well as the offence or offences being investigated”. In short, this information is obviously germane to the question of whether the warrant was validly issued (which is central to the Accused’s defence to the current charges, namely a collateral attack upon the issued warrant).

[27]Reasons, [44]–[47] (footnotes omitted).

The magistrate noted that the Chief Commissioner’s second objection, that production of the contested documents would be oppressive, was based on the volume of material involved. The magistrate referred to authority that a subpoena may be oppressive when it requires the respondent to extensively examine documents to determine whether there is anything captured by the terms of the subpoena. In assessing whether compliance would be oppressive, the court will consider the resources and capacity of the respondent.[28]
[28]Reasons, [49], referring generally to Lucas Industries v Hewitt (1978) 18 ALR 555.

This second ground of objection was also refused by the magistrate. While accepting that resources and time would have to be expended in order to comply with the terms of the summons, his Honour did not consider the threshold of oppressiveness had been reached. The magistrate reached that conclusion because:[29]

Importantly, and relevantly, an affidavit was prepared in relation to the obtaining of the warrant in March 2021. Without disclosing any details of that affidavit (that document is the subject of a separate contested subpoena to produce), it can be reasonably inferred that the author of that affidavit must have had access to relevant documents in order to prepare the contents of the affidavit in connexion with the request for a telecommunications intercept warrant. Furthermore, ‘Operation Lorimer’ is unquestionably a high-profile and important police investigation and the Court should proceed on the basis that the relevant documents would be stored in a manner that provides ready access to a police investigator.

[29]Reasons, [52].

For those reasons, the magistrate rejected the Chief Commissioner’s claim for non-production of the contested documents.

Ground A — Was there rationally probative evidence to support the critical finding?

The first ground of review identified by Victoria Police was that the magistrate’s decision was affected by jurisdictional error or an error on the face of the record:

… in that [the magistrate] found that there was a reasonable possibility that Victoria Police had engaged in fraud, bad faith, or misleading or deceptive conduct in relation to the obtaining of a warrant to intercept the first defendant’s mobile telephone service under the Telecommunications (Interception and Access) Act 1979 (Cth) (the warrant), in circumstances where there was no rationally probative evidence to support this finding.

Victoria Police’s submissions

Victoria Police argued that, in order to properly exercise his discretion, the magistrate had to determine whether Ms Zammit had demonstrated that there was a reasonable possibility that she would be able to prove on the balance of probabilities that the TI warrant had been obtained by fraud on the part of Victoria Police. This proposition was drawn from two separate lines of authority.

The first line of authority concerned applications to set aside a subpoena — or in this case, a witness summons. Victoria Police referred to settled authority that, on an application to set aside a subpoena issued at the request of the accused, the accused ‘must (i) identify a legitimate forensic purpose for which access is sought, and (ii) establish that it is “on the cards” that the documents will materially assist’ the defence.[30]
[30]Referring to authorities including R v Saleam [1999] NSWCCA 86, [11]; Attorney-General v Chidgey (2008) 182 A Crim R 536, [64]; Ragg, [95]–[97]; Holloway v State of Victoria (2015) 73 MVR 145, [56]; Zirilli, [93]–‍[98].

The second line of authority concerned a collateral challenge to the validity of a warrant in a criminal proceeding. Victoria Police accepted that, on an appropriate factual basis, an accused could challenge the admissibility of evidence obtained under a search warrant on the basis of impropriety by the applicant for the search warrant.[31] However, it submitted that in order to do so, the accused had to demonstrate actual fraud on the part of the applicant, in the sense of an actual intention to deceive the person responsible for issuing the warrant with respect to a material question of fact.[32] It also emphasised that s 138 of the Evidence Act 2008 (Vic) (Evidence Act) is discretionary, and that unlawfully obtained evidence may still be admissible against the accused.
[31]Referring to Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142, [54] (Gould); Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162, 183 (Mahoney AP); R v Robinson [1998] 1 VR 570, 587.
[32]Referring to Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542, 555–6 (Beaumont and Whitlam JJ) (Paraggio); Seven West Media Ltd v Commissioner, Australian Federal Police (2014) 223 FCR 234, [108]–‍[110]; Majzoub v Kepreotis [2009] NSWSC 1498, [68]–[75].

Victoria Police also relied on the reasoning in Di Pietro, in which these two lines of authority came together. In that case, a magistrate had refused to set aside a witness summons seeking production of affidavits sworn by police in support of an application for telephone intercept warrants under the TIA Act. Justice J Forrest held that, while the magistrate had concluded that there was a reasonable possibility that the warrants had been obtained in bad faith or upon misleading material, there was no probative evidence to support that conclusion.[33] Victoria Police argued that I should apply the same reasoning in this case, and reach the same conclusion.
[33]Di Pietro, [75]–[77].

Victoria Police submitted that there was ‘no probative evidence whatsoever’ that there was a reasonable possibility that Ms Zammit would be able to prove on the balance of probabilities that the TI warrant had been fraudulently obtained. It contended that, as at March 2021, there was ‘every reason to believe’ that Ms Zammit was likely to engage in telephone communications ‘with the purpose of impeding the apprehension, prosecution, conviction, or punishment’ of Mr Roberts for the murders of Sgt Silk and SC Miller. It said that the magistrate had suggested that there must have been some nefarious explanation for the timing of the warrant application, and characterised this suggestion as ‘utterly irrational’.[34]
[34]Plaintiffs’ submissions dated 29 March 2023, [43].

Ms Zammit’s submissions

Ms Zammit responded with three arguments, as follows:

(a) First, the finding that the magistrate was required to make, and did make, was that it was reasonably possible that the documents sought by the summons would assist in her defence. It was not necessary to go further and make the more specific finding that there was a reasonable possibility of fraud, bad faith, or misleading or deceptive conduct.

(b) Second, the necessary finding was well open to the magistrate. It could not be said to have been made without a ‘skerrick’ of evidence.

(c) Third, in the alternative, if the magistrate was required to make a finding of the reasonable possibility of fraud, bad faith, or misleading or deceptive conduct, he made that finding and there was evidence for it.

As to the first argument, Ms Zammit relied on the reasoning in Felice v County Court of Victoria & anor,[35] another case involving an application to set aside a subpoena for production of material relied on to obtain a warrant under the TIA Act. Justice Osborn held that the test to be applied was merely whether it was ‘on the cards’ that the documents would materially assist the accused in his defence; the trial judge had placed the bar too high in asking whether there was evidence before him on which fraud, misrepresentation, or lack of good faith could positively be inferred.[36] Ms Zammit argued that Di Pietro should not be read as requiring a specific finding of a reasonable possibility of bad faith; all that is necessary is a general finding that there is a reasonable possibility the documents sought will materially assist the defence.
[35][2006] VSC 12.
[36]Referring to Felice, [40]–[41], [52]–[53].

Ms Zammit submitted that it was clear that the magistrate did find that there was a reasonable possibility that the documents sought would materially assist the defence.[37] She said that his Honour had gone further than required, and had made specific findings about the ways in which the documents might assist the defence case.[38]
[37]Referring to Reasons, [43].
[38]Referring to Reasons, [47].

As to the second argument, Ms Zammit contended that the no evidence ground could only succeed if there was ‘not a skerrick of evidence’ to support the critical finding.[39] She submitted that there was more than a skerrick of evidence to support the finding that the magistrate was required to make. This included the lack of specificity in the Hall affidavit as to when investigators suspected Ms Zammit had committed the offence of assist offender (murder) and what they thought was the offending conduct. It also included ‘the background of publicly documented impropriety and illegality in the earlier parts of the Operation Lorimer investigation’.[40]
[39]Referring to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13, [17] (the Court) quoting Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, [575] (Weinberg J) in turn quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) 239.
[40]First defendant’s outline of submissions dated 17 May 2023, [57.6].

As to the third argument, Ms Zammit referred to settled authority that an inferior court’s reasons must be read fairly, as a whole, and in context, and not in an overzealous search for error.[41] Taking this approach, she submitted that it was tolerably clear that the magistrate was satisfied of a reasonable possibility of bad faith or misrepresentation.[42] In particular, the rhetorical question at the start of [44] of the Reasons[43] implied its answer — namely, that the only thing that had changed was that Mr Roberts was to be retried and thus investigators potentially had a new (ulterior) purpose to obtain evidence against Ms Zammit to discredit her as a witness. Ms Zammit said that it could not be shown that there was not a skerrick of evidence to support a finding that it was reasonably possible that the TI warrant had been obtained as a result of bad faith or misleading conduct on the part of Victoria Police.
[41]Referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) (Wu Shan Liang) and AXG15 v Minister for Immigration and Border Protection (2016) 69 AAR 388, [25] (Logan J).
[42]Referring to Reasons, [37], [43]–[44], [47].
[43]The question being: ‘What has materially changed over the intervening period which has prompted investigators to seek a telephone intercept warrant in respect of the offence “assist offender”.’

Consideration

It is not in dispute that the magistrate correctly stated the general principles to be applied in determining whether to set aside a subpoena or summons to produce documents. His Honour reproduced J Forrest J’s summary of those principles in Di Pietro,[44] referred to the Court of Appeal’s judgment in Zirilli,[45] and summarised the ‘two stage test’ to be applied as follows:[46]

(a)Has the applicant identified a legitimate forensic purpose for which access is sought?
(b)Has the applicant established that there is ‘reasonable possibility’ that the documents sought will materially assist his or her case?

[44]Reasons, [35], quoting Di Pietro, [28], extracted at [31] above.

[45]Reasons, [36], quoting Zirilli, [93]–[98].

[46]Reasons, [39].

The two stages of this test are related. An applicant must identify a legitimate forensic purpose in order to show how production of the documents sought might materially assist their case. In other words, the applicant needs to establish that there is a reasonable possibility that the documents will assist in achieving the identified forensic purpose.

The nub of Victoria Police’s argument was that, in order to answer ‘yes’ to the second question, the magistrate had to be satisfied that there was a reasonable possibility that the documents sought would demonstrate ‘actual fraud’ on the part of the applicant for the TI warrant. I accept that Ms Zammit had to satisfy the magistrate that there was a reasonable possibility that the documents sought would help her to achieve her identified forensic purpose. However, in my view, Victoria Police’s argument stated the question too narrowly.

While fraud is one of the grounds for a collateral attack on the validity of a warrant, it is not the only ground. A warrant may also be found to be invalid as a result of deliberate misrepresentation by the applicant, including the making of a statement that is a misleading half-truth, or if the applicant has acted in bad faith.[47] In oral argument, Victoria Police accepted that bad faith and improper purpose are categories of fraud that may provide grounds for a collateral challenge to the validity of a warrant.[48]
[47]Paraggio, 555, 560 (Beaumont and Whitlam JJ), 569–70 (Hill J); Price v Elder, [12]; Di Pietro, [31].
[48]Transcript, 15 August 2023, 6:8–7:12.

The magistrate explicitly found that Ms Zammit had affirmatively demonstrated a reasonable possibility that the documents sought would materially assist the defence case.[49] Reading the magistrate’s reasons fairly, as a whole, and in context, it is apparent that the magistrate also considered that it was on the cards that the documents sought would support an argument that the application for the TI warrant was not made in good faith to investigate the offence of ‘assist offender (murder)’, but for some ulterior purpose.[50] His Honour found this to be germane to the question of whether the TI warrant was validly issued, which in turn was central to Ms Zammit’s defence.[51]
[49]Reasons, [43].
[50]Reasons, [44]–[47], reproduced at [40] above.
[51]Reasons, [47].

I am satisfied that there was rationally probative evidence to support these findings. I note in particular:

(a) The evidence was that the Lorimer Taskforce had opened a new investigation into Ms Zammit’s involvement with the murders after the Court of Appeal’s decision in November 2020 to set aside Mr Roberts’ conviction and order a retrial.[52]
[52]Affidavit of Inspector Katrina Hall sworn 19 October 2022, [11]–[12] (Hall affidavit).

(b) Ms Zammit had told police when interviewed in 2013 that Mr Roberts was with her on the night Sgt Silk and SC Miller were murdered.[53]
[53]Hall affidavit, [9], [10], [12.2].

(c) Ms Zammit had not previously been charged with any offence in relation to the murders, although it had been known since 2013 that she had assisted her father by lying about when the rear windscreen of her car had been broken.[54]
[54]Hall affidavit, [12.1].

(d) An inference might be drawn that the Lorimer Taskforce commenced the new investigation of Ms Zammit only because she was a potential alibi witness at the retrial of Mr Roberts.

(e) That inference might be displaced by evidence of some new information or occurrence that provided a basis to suspect that Ms Zammit was in 2021 assisting Mr Roberts to escape punishment for the murders.

(f) However, there was no such evidence before the magistrate. The Chief Commissioner did not explain why the Lorimer Taskforce had commenced the new investigation of Ms Zammit. Inspector Hall’s affidavit did not identify when investigators suspected that Ms Zammit had committed the offence of ‘assist offender (murder)’ or what they believed to be her offending conduct. The matters referred to at [12] of Inspector Hall’s affidavit were all matters that had been known to investigators since at least 2013. It did not identify any basis for a belief that the offending was ongoing, or that Ms Zammit’s telephone communications were likely to provide information that would assist in the investigation of the offence.

(g) In addition, there was the background of impropriety and illegality in the initial stages of the Lorimer Taskforce investigation that caused the Court of Appeal to set aside Mr Roberts’ conviction.[55]

[55]Roberts appeal, [259]–[260].

These matters provided more than a skerrick of evidence to support the magistrate’s finding that there was a reasonable possibility that the documents sought by the October summons would materially assist the defence case.

For completeness, it appears to me that the magistrate may not have been entirely accurate in describing Ms Zammit’s forensic purpose as being to challenge the purported validity of the TI warrant. While the Chief Commissioner’s arguments in support of setting aside the October summons assumed a collateral challenge to the validity of the TI warrant, that was not the way the argument was put on behalf of Ms Zammit in her outline of written submissions, namely:[56]

… the accused has raised the issue of whether the TI warrant was obtained as a result of either materially misleading information or material non-disclosure and that accordingly, that evidence being excluded pursuant to section 138 of the Evidence Act 2008 (Vic).

[56]Outline of Defendant’s Position Concerning Subpoenas Issued to Victoria Police for Production of Disclosure Documents dated 18 October 2022, [22].

In other words, Ms Zammit’s stated forensic purpose was the exclusion of the evidence obtained under the TI warrant. The discretion to exclude evidence under s 138 of the Evidence Act applies to evidence obtained improperly or in consequence of an impropriety,[57] as well as to evidence obtained unlawfully.[58] One way to achieve the exclusion of the evidence would be to demonstrate that the TI warrant was invalid, by way of a collateral challenge. That purpose might also be achieved by showing impropriety on the part of the investigator who applied for the warrant.
[57]Evidence Act, s 138 (1)(a).
[58]Evidence Act, s 138 (1)(b).

For example, in Gould v Director of Public Prosecutions (Cth),[59] the New South Wales Court of Criminal Appeal accepted that an accused person could ‘sidestep’ the validity of a warrant and take the alternative course of alleging ‘impropriety’ in the means by which the evidence was obtained.[60] Justice Basten elaborated:[61]

No doubt, on an appropriate factual basis, an accused person could challenge the admissibility of evidence under s 138 of the Evidence Act on the basis there had been impropriety on the part of an applicant for a search warrant (for example, by relying on perjured testimony) or impropriety in the execution of the warrant. However, that is quite a different thing from challenging the validity of the warrant on conventional judicial review grounds. For example, the ground of improper purpose refers to the purpose of the decision-maker, not the purpose or conduct of the applicant.
…
There is no doubt that an accused may seek to establish such impropriety as a basis for challenging the admissibility of evidence. That may be done through a voir dire, usually prior to the empanelling of a jury. Relevant evidence may be obtained from any source. That may require the issue of a subpoena if the evidence is thought to lie in the hands of the prosecutor, or the investigating authority. It can be entirely separate from any challenge to the validity of the warrant and on different grounds …

[59](2018) 359 ALR 142 (Gould).

[60]Gould, [53] (Basten JA, Johnson and Adamson JJ agreeing).

[61]Gould, [54], [56] (Basten JA, Johnson and Adamson JJ agreeing).

The magistrate’s mischaracterisation of Ms Zammit’s forensic purpose was not material to his ruling. However, the forensic purpose that was in fact advanced in argument before his Honour is a further answer to this ground of review. Impropriety for the purposes of s 138 of the Evidence Act covers a much broader range of conduct than ‘actual fraud’, and there is authority to the effect that impropriety need not be wilful or committed in bad faith.[62] For the reasons already given, there was rationally probative evidence to support a conclusion that there was a reasonable possibility that the documents sought would show some impropriety in obtaining the TI warrant.
[62]R v Cornwell (2003) 57 NSWLR 82, [20].

Ground A is not made out.

Ground B — Did the magistrate make the critical finding?

In the alternative to Ground A, Victoria Police contended that the magistrate’s decision was affected by jurisdictional error or an error on the face of the record:

… because it failed to ask the correct question it was required to ask and answer namely, whether there was a reasonable possibility that Victoria Police had engaged in fraud, bad faith, or misleading or deceptive conduct in relation to the obtaining of a warrant to intercept the first defendant’s mobile telephone service, and this in turn led to the second defendant’s failure to make any finding as to whether it was satisfied that there was a reasonable possibility that Victoria Police had engaged in fraud, bad faith, or misleading or deceptive conduct in relation to the obtaining of the warrant to intercept the first defendant’s mobile telephone service.

Victoria Police’s submissions

As with Ground A, the fundamental proposition on which Ground B was based was that, in order to properly exercise his jurisdiction, the magistrate had to determine whether Ms Zammit had demonstrated that there was a reasonable possibility of proving that the TI warrant had been obtained by fraud on the part of Victoria Police. It submitted that it was far from clear that his Honour had done so.

Victoria Police said that the essence of the magistrate’s reasoning on this question appeared from the rhetorical question of: ‘In other words, what has materially changed over the intervening period which has prompted investigators to seek a telephone intercept warrant in respect of the offence “assist offender (murder)”’.[63] It presumed that the magistrate believed that this question had some obvious answer that was inconsistent with the TI warrant having been obtained in good faith. However, this was far from clear and, according to Victoria Police, fell short of an explicit finding on the key issue. It submitted that the failure to make this key finding had the result that the magistrate failed to properly exercise his jurisdiction.
[63]Reasons, [44].

Ms Zammit’s submissions

Ms Zammit put forward four arguments against Ground B.

First, she submitted that Victoria Police had framed the legal question with too much particularity. The correct question was more general, namely: ‘Has the applicant established that there is a “reasonable possibility” that the documents sought will materially assist his or her case?’. This was precisely the question that the magistrate asked and answered.

Second, Ms Zammit argued that the way Victoria Police had framed the ground set the bar too high. She said that she did not have to establish, and the magistrate did not have to find, that there was a reasonable possibility that Victoria Police had obtained the TI warrant by fraud. That was a question to be determined at the voir dire on the legality or propriety of the TI warrant and the evidence obtained as a result of it.

Third, even if the magistrate had to answer a specific question, the question had to allow for the reasonable possibility of impropriety that fell short of rendering the TI warrant invalid. Ms Zammit submitted that Ground B did not even pose the correct question.

Fourth, to the extent that the magistrate was required to answer the question posed by Victoria Police, Ms Zammit submitted that he had asked and answered it.

Consideration

For the reasons already given, I consider that Victoria Police framed the key question that the magistrate had to answer too narrowly.[64] The magistrate had to determine whether there was a reasonable possibility that the documents sought would assist Ms Zammit to achieve the legitimate forensic purpose that she had identified. Her forensic purpose was, and remains, the exclusion of the evidence obtained under the TI warrant — either by collateral challenge to the validity of the TI warrant or by showing impropriety in obtaining the TI warrant.
[64]See [57]–[58] and [62]–[64] above.

As discussed, the magistrate confined his analysis to the possibility of showing that the TI warrant was invalid.[65] It is apparent from his Honour’s reasons that he considered it reasonably possible that the documents sought would support an argument that the application for the TI warrant was not made in good faith to investigate the offence of ‘assist offender (murder)’, but for some ulterior purpose.[66]
[65]See [62]–[64] above.
[66]See [59] above.

Ground B is not made out.

Ground C — Did the magistrate fail to consider critical evidence?

Victoria Police next contended that the magistrate’s decision was affected by jurisdictional error or an error on the face of the record:

… in that it failed to address and/or consider the unchallenged and critical evidence led by the plaintiff concerning the circumstances in which Victoria Police obtained the warrant, which evidence was inconsistent with Victoria Police’s having engaged in fraud, bad faith, or misleading or deceptive conduct in relation to the obtaining of the warrant.

The evidence in question was the affidavit of Inspector Hall.

Victoria Police’s submissions

Victoria Police submitted that the ‘unchallenged evidence’ in Inspector Hall’s affidavit was that investigating police had formed the view that Ms Zammit had on a number of occasions provided them with false information in order to exonerate Mr Roberts. It said that it was therefore ‘obvious’ why investigators would reasonably believe that, in the months leading up to Mr Roberts’ retrial, Ms Zammit would engage in communications to ensure that she could assist him to avoid conviction.

According to Victoria Police, it did not appear that the magistrate had taken Inspector Hall’s affidavit into account at all. Had his Honour done so, he would have had to consider and determine whether there was any reason to reject the ‘entirely clear and entirely innocent answer’ to the rhetorical question posed in the reasons. Victoria Police submitted that the affidavit was of such obvious significance to the application to set aside the summons that the magistrate fell into jurisdictional error by failing to properly consider and engage with it.[67]
[67]Referring to Chang v Neill (2019) 62 VR 174, [92]; Ming v Director of Public Prosecutions [2022] NSWCA 209, [15] (Ming).

Ms Zammit’s submissions

Ms Zammit submitted that there were two reasons to reject Ground C.

First, she said that the ground was based on the false premise that the magistrate was required to consider and make findings about whether Victoria Police had engaged in fraud, bad faith, or misleading or deceptive conduct in relation to the TI warrant. The whole point of the summons was to enable Ms Zammit to access documents that might assist her in making that case.

Second, and in any event, she said that the ground failed because the magistrate had clearly considered the affidavit and had referred to it at multiple points in his reasons. Ms Zammit argued that the real complaint of Victoria Police was not that the magistrate did not consider the affidavit, but about what his Honour took from it. She submitted that the weight to be given to particular evidence is a matter for the decision-maker,[68] and that the argument put by Victoria Police shaded into merits review.[69]
[68]Referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40–1 (Mason J).
[69]Referring to Ming, [15].

Consideration

The magistrate clearly did not overlook Inspector Hall’s affidavit. To the contrary, his Honour referred to the affidavit at [20], [27], and [32] of his reasons, including quoting directly from the critical paragraph about the new investigation into Ms Zammit’s potential criminal involvement in the murders.[70]
[70]Reasons, [20], [32].

I understood Victoria Police’s complaint to be that the magistrate had failed to grapple with uncontradicted evidence that provided a complete answer to the questions about the propriety of the application for the TI warrant. This overstated the effect of Inspector Hall’s affidavit. Contrary to Victoria Police’s assertions, the affidavit did not provide unchallenged evidence of the basis on which Lorimer Taskforce investigators had applied for the TI warrant to intercept Ms Zammit’s telecommunications between March and June 2021.

Inspector Hall was not involved in the Lorimer Taskforce investigation and had no personal knowledge of the matters she deposed to in her affidavit. Her affidavit was based on information she had obtained from reading unspecified affidavits, documents, and from briefings she had received from persons she did not identify. The entire affidavit was hearsay, and it is doubtful whether it sufficiently identified the sources of the hearsay evidence to satisfy the exception for interlocutory proceedings in s 75 of the Evidence Act.[71]
[71]See eg, New South Wales Crime Commission v Vu [2009] NSWCA 349, [44]–[48].

Questions of admissibility aside, Inspector Hall’s affidavit was opaque as to why the investigators had commenced the new investigation of Ms Zammit or why they applied for the TI warrant in March 2021. The affidavit provided context about the Lorimer Taskforce and the investigation of Ms Zammit, briefly summarising the circumstances surrounding the murders of Sgt Silk and SC Miller in 1998, the conviction of Mr Roberts and Mr Debs in 2002, and Mr Roberts’ successful appeal in 2020. The critical two paragraphs of the affidavit read as follows:[72]
[72]Hall affidavit, [12]–[13].

12The Lorimer Taskforce continued its investigations with respect to the murders. A new investigation into the Accused’s potential criminal involvement in the murders commenced after police suspected the Accused had conspired with Mr Roberts for her to provide false alibi evidence. Investigators formed the belief that:
12.1 Ms Zammit had assisted Mr Debs and Mr Roberts immediately after the murders and deliberately misled investigators when first interviewed about the murders in July 2000. For example, in the 2013 statement provided to Mr Iddles, [Ms] Zammit stated that she knew that the rear windscreen of her car had been broken on 16 August 1998, which contradicted previous answers she had given to investigators that the windscreen was broken on 19 August 1998; and
12.2Ms Zammit claimed falsely, in the 2013 statement provided to Mr Iddles, that Mr Roberts was with her on the night of the murder. In particular, police investigations disclosed other sources of evidence that contradicted Ms Zammit’s claims that she and Ms Roberts had stayed home that night “looking to get a Limousine”.

13On the basis of the above, on 9 March 2021, an officer of Victoria Police applied for a warrant under s 39 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) to authorise interceptions of communications made to or from Ms Zammit’s mobile telephone number.

Contrary to the submission of Victoria Police, it is not ‘obvious’ from these paragraphs why or with what state of mind the investigators applied for the TI warrant. The paragraphs rehearsed matters that had been known to police since at least 2013. They did not, in my view, provide an ‘entirely clear and entirely innocent answer’ to the magistrate’s question about what had changed between 2013 and 2021 to prompt investigators to seek the TI warrant in respect of the offence ‘assist offender (murder)’. They did not compel the magistrate to conclude that there was no reasonable possibility that the documents sought would assist Ms Zammit’s defence.

Ground C is not made out.

Ground D — Did the magistrate fail to consider the prospect of the evidence being excluded?

Fourth, Victoria Police contended that the magistrate’s decision was affected by jurisdictional error or an error on the face of the record:

… in that it failed to consider whether, in the event that Victoria Police was found to have engaged in fraud, bad faith, or misleading or deceptive conduct in relation to the obtaining of the warrant, there was a reasonable possibility that this would result in the exclusion under s 138 of the Evidence Act 2008 (Vic) of any evidence relied on by the prosecution against the first defendant.

Victoria Police’s submissions

Victoria Police submitted that it could not assist Ms Zammit merely to demonstrate that the TI warrant was obtained unlawfully; she would also have to succeed in having some specific item of evidence excluded from the case against her. It followed that the magistrate had to consider whether there was any real possibility that a successful collateral attack on the TI warrant would result in the exclusion of prosecution evidence under s 138 of the Evidence Act. According to Victoria Police, the magistrate failed to grapple with this significant issue, and thereby committed jurisdictional error and error of law on the face of the record.

Victoria Police conceded that this precise argument was not put below, but maintained that the magistrate had to consider and make findings about the issue in any event.

Ms Zammit’s submissions

Ms Zammit responded that Victoria Police had identified no authority to support the proposition that a criminal accused seeking the production of documents to assist in an exclusionary argument under s 138 of the Evidence Act must establish that there is a reasonable possibility that the final result of the balancing exercise under s 138(1) will be the exclusion of the evidence. She said that she had found no such authority, and that the contention should be emphatically rejected.

Further, Ms Zammit submitted that the contention was inconsistent with the liberal approach to the production of documents to an accused in criminal proceedings, which acknowledges that the way in which documents may assist an accused is ultimately best determined by their lawyers.[73]
[73]Referring to Ragg, [96]–[97], [119]; Johnson v Poppeliers (2008) 20 VR 92, [42]; Mokbel, [71].

Consideration

The magistrate clearly appreciated that Ms Zammit’s ultimate forensic purpose was the exclusion of the evidence obtained under the TI warrant. At [41] of the Reasons, his Honour observed that ‘if the warrant is legally invalid, a real issue of discretionary exclusion of the evidence (supporting the current charges) will arise’.

The ‘reasonable possibility’ test sets a low threshold, and in applying it a court should take a broad interpretation of the issues in the case.[74] Neither side identified any authority that suggested it was necessary for the magistrate to undertake the more granular analysis contended by Victoria Police before me (although not before the magistrate). It was sufficient that his Honour found that Ms Zammit had demonstrated a reasonable possibility that the documents would materially assist the defence case in the way she had identified.
[74]Ragg, [96]–[97], [119].

Ground D is not made out.

Ground E — Did the magistrate constructively fail to exercise jurisdiction?

Victoria Police’s fifth ground was that the magistrate’s decision ‘constructively failed to exercise its jurisdiction on the basis of Grounds A, B, C and D above.’ As I have rejected each of these grounds, there is no need to consider Ground E further.

Ground F — Were the magistrate’s reasons adequate?

The next ground of review was that the magistrate gave no reasons for his decision, or alternatively gave inadequate reasons. The parties’ submissions properly focused on whether the reasons given by the magistrate were adequate.

Victoria Police’s submissions

In support of this ground, Victoria Police relied on the oft-quoted passage from Hunter v Transport Accident Commission,[75] in which Nettle JA outlined the quality of reasons that a judicial officer must give. It said that a failure of an inferior court to give adequate reasons would be an error of law on the face of the record,[76] but would not by itself constitute jurisdictional error.[77]
[75](2005) 43 MVR 130, 136–7.
[76]Referring to AB v Paulet [2022] VSC 414, [329] (AB v Paulet).
[77]Referring to Ming, [40].

Victoria Police submitted that the magistrate’s reasons failed to state an answer to the central question he had to answer — namely, whether there was a reasonable possibility that the TI warrant had been obtained through fraud. Alternatively, if the reasons contained an answer to that question, they did not disclose how the magistrate had reached that answer. Victoria Police argued that the reasons did not grapple with Inspector Hall’s evidence about the new investigation of Ms Zammit.

Ms Zammit’s submissions

Ms Zammit said that the essence of what was required of the magistrate’s reasons was to ‘expose the path of reasoning which led the judge (or the magistrate) to arrive at his or her decision’.[78] She said that the adequacy of reasons is to be assessed in the particular decision-making context. In the case of an interlocutory decision in relation to a matter of practice and procedure, the reasoning need not be in-depth; ‘all that is required is reasoning which explains in short compass how and why one party succeeded and the other lost’.[79]
[78]Referring to AB v Paulet, [329].
[79]Referring to Oswal v Carson [2013] VSC 355, [48].

In Ms Zammit’s submission, the magistrate’s reasons more than adequately disclosed the path by which he reached his conclusions, particularly given that it was an interlocutory ruling given in a busy first instance court. She characterised Victoria Police’s complaint about the reasons as a complaint about the conclusion the magistrate reached, not about the adequacy of his reasons.

Consideration

The magistrate gave detailed written reasons for an interlocutory ruling on an application to set aside a witness summons in a criminal proceeding. In the context of an extremely busy court of summary jurisdiction, the magistrate’s reasons were exemplary. I had no difficulty following his Honour’s path of reasoning to the conclusion that the TI warrant should not be set aside.

As discussed, the magistrate found that Ms Zammit had demonstrated a reasonable possibility that the documents sought would materially assist the defence case. It is clear from the magistrate’s reasons, read as a whole, that his Honour considered that it was on the cards that the documents sought by the summons would support an argument that the TI warrant was not validly issued, because the application for the TI warrant was made for a purpose other than investigating the specified offence of ‘assist offender (murder)’.[80] This in turn would raise the issue of discretionary exclusion of the evidence obtained under the TI warrant.[81] The magistrate referred to and quoted from the affidavit of Inspector Hall, as far as it went — which was not so far as to explain what had changed to prompt investigators to seek the TI warrant in March 2021.[82]
[80]See [59] and [75]–[76] above.
[81]See [96]–[97] above.
[82]See [85]–[89] above.

Ground E is not made out. Victoria Police’s arguments in relation to this ground were a repackaging of the arguments that I have already rejected in relation to Grounds A, B, C, and D.

Ground G — Did the magistrate ask the correct question about oppression?

Finally, Victoria Police contended that the magistrate’s decision was affected by jurisdictional error or an error on the face of the record:

… in that in addressing the first plaintiff’s claim that the summons was oppressive, it failed to ask itself the correct question, being whether on its face the summons called for the production of large quantities of documents that were not apparently relevant to any forensic purpose identified by the first defendant.

Victoria Police’s submissions

Victoria Police submitted that the correct test for determining whether a subpoena or summons is oppressive is whether ‘the production of documents which it describes is excessively burdensome and the documents appear not to be “sufficiently relevant” to the proceedings’.[83] It said that the magistrate had incorrectly stated the test to be that ‘a subpoena may be oppressive when it requires the respondent to extensively examine his or her documents and determine whether there is anything that is captured by the terms of the subpoena’.[84]
[83]Referring to Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 926.
[84]Referring to Reasons, [49].

While there was no evidence before the magistrate of the extent of the search required by the October summons, or the resources required to undertake it,[85] Victoria Police submitted that it was obvious on the face of the summons that compliance would require Victoria Police to trawl the Lorimer Taskforce’s records in their entirety, identify and collate those records that appear to relate to Ms Zammit, closely examine them for claims of public interest immunity and client legal privilege, and produce a vast quantity of documents, most of which could not possibly be relevant to the identified forensic purpose. Victoria Police argued that, if the magistrate had applied the correct legal test, he would have been compelled to conclude that the summons was oppressive.
[85]In this proceeding, Victoria Police filed an affidavit of David Cochrane dated 8 June 2023, providing an estimate of the time it would take Victoria Police to produce the documents called for in the summons. Victoria Police relied on this affidavit only in relation to relief, and not to establish any error on the part of the magistrate: Plaintiffs’ submissions in reply dated 8 June 2023, [2.4]; Transcript, 15 August 2023, 2:27–3:13.

Victoria Police conceded that this contended error was not a jurisdictional error, but said that it amounted to an error of law on the face of the record.

Ms Zammit’s submissions

Ms Zammit responded that the magistrate had not misstated the test, but had paraphrased it without repeating his earlier findings that the documents were sought for a legitimate forensic purpose. Given that the earlier paragraphs of the reasons articulated why the magistrate thought the documents sought were relevant to the defence, there was no need to repeat that analysis when dealing with the oppression inquiry. Victoria Police’s complaint was characterised as little more than a semantic quibble, which read the magistrate’s reasons unfairly, and with an eye too attuned to error.[86]
[86]Referring to Wu Shan Liang, 272 and Brereton, [12].

Further, Ms Zammit said that any error in stating the test was not material, because there was no evidence or inference available to the magistrate on which he could have found that meeting the summons would be oppressive. In those circumstances, it was open to his Honour to find that the relevant documents would likely be readily locatable, because they would have been available to the applicant for the TI warrant.[87]
[87]Referring to Reasons, [52].

Consideration

The outline of submissions filed on behalf of the Chief Commissioner ahead of the hearing on 20 October 2022 did not object to the summons on the basis that it was oppressive, and there was no evidence before the magistrate on that question. An oppression objection was taken for the first time at the hearing. Early on in the hearing, the magistrate clarified the Chief Commissioner’s grounds of objection, as follows:[88]

So, as I understand, the primary objection is that the documents that are being sought on behalf of Ms Zammit are simply not relevant to the current proceedings before the court. A second objection that appears to be now taken is that if they are of any relevance, it would [be] marginal relevance, but it would require the search of voluminous materials.

[88]Transcript of Magistrates’ Court hearing, 20 October 2022, 13:15–21 (Court Book, 984).

Senior counsel for the Chief Commissioner agreed with that summary. Her oral submissions did not develop the oppression objection, beyond saying ‘one does not have to make any lengthy submissions to convince Your Honour that it is on its face an extremely oppressive exercise’.[89] In reply, she referred to the breadth of the categories of documents sought in the summons, and the fact that the relevant intelligence holdings were 20 years old, and asked the magistrate to infer that what the Chief Commissioner was being asked to do was onerous. There was no reference to authority, or to the correct legal test for determining whether a subpoena or summons is oppressive.
[89]Transcript of Magistrates’ Court hearing, 20 October 2022, 20:22–24 (Court Book, 991).

The magistrate correctly summarised the oppression argument at [48] of his reasons, when he said that counsel had submitted that ‘in this case the volume of material sought makes compliance with the subpoena oppressive in all the circumstances’. Given the way the argument had been put, there was no need for the magistrate to revisit his earlier conclusions that the summons was ‘no mere sterile fishing expedition’ and that the documents sought were ‘relevantly germane to a defence (which has been clearly articulated)’.[90] Plainly, he considered the documents sought to be of more than marginal relevance. The magistrate accepted that resources and time would be required to comply with the summons, but did not consider that the threshold of ‘oppressiveness’ had been reached.[91] That conclusion was clearly open in the absence of any evidence about the resources and time required to meet the summons.
[90]Reasons, [45], only a few paragraphs before the discussion of oppression at [48]–[52].
[91]Reasons, [51].

Victoria Police has not demonstrated any error in the magistrate’s consideration of the oppression objection. The magistrate addressed the argument that was put to him on behalf of the Chief Commissioner, which was largely premised on its unsuccessful contention that the summons would serve no legitimate forensic purpose.

Ground G is not made out.

Disposition

Victoria Police has not established any error in the magistrate’s ruling on any of the six grounds of review agitated in this proceeding. It is therefore not necessary to consider Ms Zammit’s alternative arguments that relief should be refused on discretionary grounds.

The proceeding will be dismissed. I will hear the parties on the question of costs.

[2023] VSC 635

2 November 2023