Director of Public Prosecutions (Cth) v Brookman (Ruling No 3 AGD Pii)
[2020] VSC 819
•30 November 2020
| IN THE SUPREME COURT OF VICTORIA | REDACTED |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0100
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Crown |
| v | |
| ADAM MATHEW BROOKMAN | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23, 25, 29 October 2019, 1, 6, 19 November 2019, 5 December 2019, 28 January 2020, 11, 21, 24, 28 February 2020, 3 March 2020 and 3 March 2020. |
DATE OF RULING: | 30 November 2020 |
CASE MAY BE CITED AS: | DPP (Cth) v Brookman (Ruling No 3 – AGD PII) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 819 |
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CRIMINAL LAW – Documents subpoenaed in unredacted form – Public interest immunity claimed – Whether public interest in disclosure outweighed by public interest in preserving secrecy or confidentiality – ss 130 and 131A of Evidence Act 2008 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson QC with Mr S Ginsbourg and Mr A Yuile | CDPP |
| For the Accused | Mr P Morrissey SC with Ms G Morgan | Stary Norton Halphen |
| For the Australian Federal Police | Mr J Forsaith | Australian Government Solicitor |
| For the Attorney General | Mr A Berger QC Mr J Davidson Mr T Burslem | Australian Government Solicitor |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Overview of key legal principles.................................................................................................... 2
Key background information.......................................................................................................... 7
Witness A....................................................................................................................................... 8
The MAR processes...................................................................................................................... 8
AB is committed to this Court..................................................................................................... 9
The MAR social media records................................................................................................. 10
Previous discussion of disclosure in this matter.................................................................... 14
The Defence subpoenas.............................................................................................................. 19
Inadvertent disclosure of certain AFP docs................................................................... 19
The parties’ file documents and oral hearings are held............................................... 20
Inspection of the disputed documents........................................................................................ 21
Inspection of the 5 MARs and request for further documents for inspection................... 23
Further information is sought from the parties............................................................ 24
Agreed statement of facts.......................................................................................................... 25
Additional materials from the AGD on 4 November 2020................................................... 25
Documents tendered by the AGD in response to the Defence subpoenas.......................... 25
AGD documents.......................................................................................................................... 25
Defence documents..................................................................................................................... 27
Forensic value of the disputed AGD PII documents................................................................ 28
The Witness A disclosure issue................................................................................................. 29
Witness B’s evidence.................................................................................................................. 30
The relevance of the disputed documents to a fair trial........................................................ 30
The MAR social media materials.............................................................................................. 31
Basis for the AGD’s PII claims...................................................................................................... 34
The Harmer affidavits................................................................................................................ 35
The MAR process and expectations of confidentiality................................................ 37
Risk of harm if the MAR PII documents are disclosed................................................ 39
AGD response to issues raised in the Defence’s 13 November 2019 letter............... 41
Lowe affidavit.............................................................................................................................. 44
Chidgey affidavit........................................................................................................................ 45
AGD submissions........................................................................................................................ 45
Oral submissions: the role of the AGD........................................................................... 47
Submissions on the 14 documents.................................................................................. 48
Approach to Inspection of all the AGD PII documents........................................................... 49
Analysis of the disputed documents............................................................................................ 50
Section 130(5) considerations.................................................................................................... 50
Assessment of the Strength of the AGD’s PII claims over the documents.......................... 53
Weight to be given to the evidence put forward by the AGD.............................................. 53
Significance of the international mutual assistance relationship between the U.S. and Australia.............................................................................................................................................. 54
Currency of the AGD PII claims............................................................................................... 55
Assessment of the forensic importance of the AGD PII documents to the Defence and to the broader administration of justice........................................................................................... 56
Witness A Disclosure Material.................................................................................................. 56
The need to consider the limitations on the AGD’s role regarding Witness A Disclosure Material................................................................................................................... 57
Information already provided to the Defence about the Witness A Disclosure Material 58
General Disclosure Material...................................................................................................... 59
Forensic purposes related to Witness B.......................................................................... 59
Information already provided to the Defence about the General Disclosure Material 60
Comparison between what was requested under MAR and what was provided, and U.S. conditions on information provided under MAR............................................ 60
Police-to-Police cooperation............................................................................................. 60
Documents supporting a Defence application for a stay of the trial......................... 61
MAR social media materials and documents relating to ‘vetting’............................. 61
Decision............................................................................................................................................. 62
The documents not referred to in Annexure A...................................................................... 62
The documents referred to in Annexure A............................................................................. 63
Further consideration of a single AGD claim after inspecting the AFP’s documents....... 65
Annexure A....................................................................................................................................... 67
Annexure B....................................................................................................................................... 97
HER HONOUR:
Introduction
The accused (‘AB’) is charged with providing support or resources to a terrorist organisation, contrary to s 102.7(1) of the Criminal Code Act 1995 (Cth), and with performing services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), contrary to section 7(1)(e) of that Act.
I have made two earlier rulings in this matter. The first ruling, DPP (Cth) v Brookman (Ruling No 1),[1] deals with legal issues relating to the indictment and the charges against AB. It sets out some of the factual and procedural background to this matter. The second ruling, DPP (Cth) v Brookman (Ruling No 2),[2] deals with the admissibility of evidence described as 'the A-31 evidence'.[3]
[1][2018] VSC 749R (4 December 2018).
[2][2019] VSC 558R ( 20 August 2019).
[3]The A-31 evidence comprises various image and video data files, in particular four videos made in Syria, which Norwegian authorities extracted from a phone seized in Norway.
On 23 October 2019, the Defence filed two subpoenas to produce, addressed respectively to the proper officer of the Australian Federal Police (‘the AFP’) and to the proper officer of the Commonwealth Attorney General’s Department (‘the AGD’) (together, the ‘Defence subpoenas’). This ruling considers claims of public interest immunity (‘PII’) made on behalf of the AGD. A further ruling will address the AFP’s PII claims.[4] A subsequent ruling in relation to the LPP claims will follow.
[4]DPP (Cth) v Brookman (Ruling No 4 – AFP PII).
The Defence subpoenas are dated 23 October 2019 and addressed respectively to the proper officer of the AFP and of the AGD. Each subpoena seeks the same 21 wide-ranging categories of documents, a full list of which is annexed at Annexure B.
The AGD’s PII claims over documents held by both the AGD and the AFP (‘AGD PII Claims’) will be addressed first. On 18 September 2020, the Court notified the parties it would uphold the AGD’s PII claims. That decision was subject to possible reconsideration once the Court commenced inspecting the AFP claims, given many of the AFP claims overlapped with the AGD’s documents. On 30 November 2020, the Court confirmed its decision to uphold all of the AGD’s PII claims, and notified the parties of its decision to uphold the AFP’s PII claims (the reasons for that determination are set out in the AFP PII Ruling). These reasons relate to my determination in relation to the AGD’s PII claims.
Overview of key legal principles
Section 130 of the Evidence Act 2008 (Vic) (‘the EA’) provides as follows:
Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused— whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.
Section 131A of the EA provides:
Application of Part to preliminary proceedings of courts
(1) If—
(a)a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and
(b)the person objects to giving that information or providing that document—
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence
Common law principles inform the operation of the statutory immunity under s 130 of the EA.[5] As explained in R v Mohamed, Chaarani & Moukhaiber,[6] the onus lies upon the party seeking to prevent disclosure of the material to establish both that the material relates to ‘matters of state’ in the terms of s 130(4) of the Act, and that the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosing the material in question.
[5]See Ryanv State of Victoria [2015] VSCA 353 at [58]–[67] (per Tate JA, with Santamaria and Ferguson JJA agreeing)(‘Ryan’); R v Mohamed, Chaarani & Moukhaiber [2019] VSC 188 at [10] (‘Mohamed’).
[6][2019] VSC 188 at [20].
The statutory regime (like the common law doctrine of PII) is intended to prevent the disclosure of documents where disclosure would be injurious to the public interest. The law recognises that there may be two conflicting aspects of the public interest. On the one hand, there is the public interest in avoiding any harm that may be caused by the disclosure of matters of state. On the other hand, there is the public interest in avoiding the frustration of the administration of justice as a result of documents being withheld from a proceeding that are relevant and otherwise admissible.[7]
[7]Conway v Rimmer [1968] AC 910, 940 (per Lord Reid); Sankey v William (1978) 142 CLR 1, 38-9 (per Gibbs ACJ); Kamasaee v Commonwealth of Australia (No 4) [2016] VSC 492, [6] (per Macaulay J) (‘Kamasaee’).
Where both aspects of the public interest are engaged, the Court must undertake a balancing exercise, which involves assessing and weighing each aspect of the public interest to determine which ought prevail in all the circumstances of the matter, and whether or not the contents of particular documents should be disclosed.[8] In doing so, the Court must take into account the matters set out in s 130(5) of the EA. It may also be guided by more specific considerations set out in the applicable authorities.[9]
[8]Kamasaee, [8].
[9]See Ryan, [57].
At common law, there is a ‘rough but accepted’ division of ‘class’ and ‘contents’ PII claims,[10] which remains relevant in applying s 130 of the EA.[11] Class claims are made to protect particular classes of documents, regardless of the actual contents of those documents. Contents claims are made on the basis of documents’ contents, so it is necessary to identify in those claims, with some particularity, why disclosure of particular information would harm the public interest.[12]
[10]See Sankey v William (1978) 142 CLR 1, 39.
[11]Ryan, [67]; see also Ahmet v Chief Commissioner of Police [2014] VSCA 265, [20](‘Ahmet’).
[12]Ahmet, [22].
In this matter, the AGD’s PII claims are advanced as class claims.[13] Nonetheless, the balancing exercise should still be undertaken, even for documents belonging to a class ‘in respect of which there are strong public policy considerations militating against disclosure’ as ‘the immunity from disclosure of documents falling within such a class is not absolute.’[14]
[13]Submissions dated 21 February 2020 filed on behalf of the AGD, [15].
[14]Ahmet [20], citing Sankey v William (1978) 142 CLR 1 and Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616.
Where necessary to properly undertake the balancing exercise, it is open to the Court to inspect documents subject to PII claims, including those subject to class claims.[15] First, however, the Court must consider whether the party seeking access to the documents in question has a legitimate forensic purpose in doing so.[16] The Court should not inspect documents ‘simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused’.[17]
[15]Evidence Act 2008 (Vic), s 133 (‘EA’).
[16]Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667, 676.
[17]Ibid.
Having said that, in a criminal proceeding, where the Court is considering whether to inspect the documents that the Defence is seeking, it may be sufficient that it is ‘on the cards’ that those documents will materially assist the Defence. In Alister v R, (‘Alister’s case’) Gibbs CJ explained as follows:[18]
Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.
[18](1983) 154 CLR 404; (1983) 50 ALR 41, 46. Citations omitted.
Gibbs CJ went on to illustrate the point, saying:[19]
If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.
[19]Ibid.
Also in Alister’s Case, Brennan J said:[20]
…In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law. The procedural safeguards are neither easy to devise nor simple to apply. On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest. It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way.
[20](1983) 50 ALR 41, 81. Citations omitted.
In determining the strength of the PII claim, the court need only be satisfied that a ‘real’ risk to the public interest could arise, if the documents/information were disclosed.[21] The risk does not have to be established as a matter of probability or certainty. In Kamasaee, Macaulay J, in analysing the wording of s 130 of the EA, observed that:
[…]the word ‘prejudice’, understood in its ordinary meaning in conjunction with the subject of national defence, security or international relations, encompasses the creation of a risk that falls short of having a 50 per cent chance of eventuating[…]that conclusion is reinforced by the contrasting use of ‘damage’ in s 130(4)(b) which carries a more certain connotation[…]that construction of the phrase accords with the common law which s 130 is intended to substantially reflect.[22]
[21]Kamasaee, [13].
[22]Ibid.
In considering the AGD’s PII claims,[23] and in deciding whether to inspect the documents, and upon any inspection, in conducting the balancing exercise required under s 130(5) of the EA, it is necessary to understand the broader context of the case before the Court. The evidence put forward by the AGD in support of non-disclosure on the basis of PII is outlined below, along with the opposing submissions, in support of disclosure, put forward by the Defence.
[23]Whether assessed on a class basis as the Court was invited to do, or whether assessed on a contents basis.
Key background information
AB, an Australian citizen, was arrested in Australia on 24 July 2015 following a cooperative process in which his solicitors arranged for him to surrender himself to Australian diplomatic staff in Turkey, so that he could be accompanied back to Australia, prior to being arrested on Australian soil. Upon arrival in Australia, AB was charged by the AFP with offences from which the current indictment is derived.
It is alleged that AB was involved in unlawful activity in Syria between May to November 2014, and that he left Syria for Turkey in early 2015.
The United States (‘the U.S.’) provided assistance to Australian authorities in their investigation of AB both through formal and informal channels. The U.S. Federal Bureau of Investigation (‘the FBI’) assisted the AFP on a police-to-police basis. Further, the U.S. responded to a series of mutual assistance requests (‘MARs’) made by the AGD, on behalf of Australia, under a formal, government-to-government process, pursuant to a bilateral treaty entered into between Australia and the U.S. on 30 April 1997, known as the ‘Treaty between the Government of Australia and the Government of the United States of America on mutual assistance in criminal matters’ (‘the Treaty’).[24]
[24]That treaty was given effect in Australia by the Mutual Assistance in Criminal Matters (United States of America) Regulations 1999 (Cth).
The Defence has limited knowledge of the communications that have taken place in the course of cooperative efforts between Australian and U.S. authorities.
However, it is known by the parties that the U.S. authorities have assisted in two key ways:
(a) through the process of obtaining social media materials (ISP records) pertaining to AB and his activities in Syria; and
(b) by giving access to [*Redacted], known in the proceeding as Witness A, and to [*Redacted], known as Witness B, and by [*Redacted] to give evidence in the proceeding.[25]
[25][*Redacted].
Witness A
Witness A is a significant witness in this matter. [*Redacted].
[*Redacted][26].[27].
[26][*Redacted].
[27][*Redacted].
[*Redacted].[28]
[28][*Redacted.
[*Redacted].[29]
[29][*Redacted].
[*Redacted].[30].[31].[32]
[30][*Redacted].
[31][*Redacted].
[32]Committal Transcript, 6 June 2017, 144 (Witness A); The Defence submitted this was a matter of concern in its October 2019 outline of subpoena purposes: at [5(d)].
[*Redacted].[33].[34]
[33]Witness A AFP Statement, 29 [170].
[34]Agreed Statement of Facts dated 11 September 2020, 2 [4] (‘Agreed Statement of Facts’), Annexure B.
The MAR processes
Regarding the MAR processes, the AGD affidavit material states that, between 2015 and 2018, the AGD made a number of MARs to the U.S. for the purpose of obtaining potentially admissible evidence in the case against AB, including social media records pertaining to AB and his conduct in Syria.[35]
[35]Open affidavit of Anna Harmer, Deputy Secretary of the Commonwealth AG’s Department, affirmed 16 January 2020, 4 – 5.
Of the five MARs, four were directed towards obtaining admissible evidence against AB. The other MAR [*Redacted].[36]
[36][*Redacted].
[*Redacted],[37].[38].[39]
[37][*Redacted].
[38][*Redacted].
[39][*Redacted].
AB is committed to this Court
[*Redacted], the committal hearing took place over a period of three days from 5–7 June 2017. Witness A gave evidence over two days at the committal.[40] Witness B also gave evidence, as did F/A O’Neale.[41] [*Redacted].[42]
[40]On 5 and 6 June 2017.
[41]There were two other witnesses at committal, an AFP officer working in the digital forensics team and a translator/interpreter employed by the AFP.
[42]Agreed Statement of Facts, 4 [13]–[14]; It was later electronically provided to the Defence electronically on 19 July 2019.
[*Redacted].[43]
[43][*Redacted].
On 7 June 2017, AB was committed for trial to this Court. Since then, there have been unfortunate delays as the Court and the parties have contended with a variety of complicated pre-trial issues that have arisen for consideration. I will not attempt to outline all of those issues here, but I will focus on the issues that have a bearing upon the PII claims.
On numerous occasions, the Defence has expressed dissatisfaction with the level of disclosure in this matter, especially in relation to Witness A’s evidence.[44] From early on, the Defence foreshadowed challenges to Witness A’s evidence and a possible application for a permanent stay of proceedings. The Crown was adamant that the Defence had been provided with all material evidence in their possession and that all avenues had been exhausted to obtain further material.[45]
[44]Following the committal proceedings, this issue was first canvassed in the first directions hearing before me: see Transcript of Proceedings, DPP (Cth) v Brookman (Supreme Court of Victoria, S CR 2017 0100, Jane Dixon J) (‘Transcript’), 2 October 2017, 10-12.
[45]Ibid 18.
On 16 September 2019, Witness A gave pre-trial evidence, and was cross-examined again, via video-link ahead of a listed trial date at the end of that month. The Defence applied for Witness A to give pre-trial evidence after the Crown supplied a letter from the DOJ to the AGD, dated 5 June 2019,[*Redacted].[46]
[46]In its written outline of submissions in support of the application for pre-trial cross-examination of Witness A, the Defence stated that it was served with a copy of this letter on 3 July 2019. The Defence had previously been provided with a DOJ letter regarding Witness A, titled [*Redacted] and dated 26 May 2017.
[*Redacted]:[47]
[*Redacted].
[47][*Redacted].
On 30 September 2019, which was the date set aside for any remaining pre-trial matters to be determined in advance of jury empanelment, oral argument began regarding the admissibility of Witness A’s evidence.
The MAR social media records
That same day, the Defence told the Court it had become aware of reason for concern that the MAR social media records had ‘been the subject to some sort of vetting and redaction or removal process by U.S. authorities’.[48] The process of service of social media records appears to have occurred in three stages.[49] Some records of AB’s social media communications obtained in advance of the formal MAR process were served on the Defence on 11 March 2016. On 21 July 2016, Defence were served with five discs of social media evidence ‘from search warrants conducted by United States authorities pursuant to MAR’. However, the certified versions[50] of all the social media records were provided as part of the fourth service of the brief of evidence on 27 September 2016. These records were voluminous and formed a significant part of the Crown case as it was framed in October 2019 at the time of pre-trial argument. I will refer to those certified records as the ‘MAR social media records’. Initially, the Court was not told the basis for the Defence’s concern regarding the MAR social media records, but was told the concern had arisen following a remark made in discussions between counsel.[51]
[48]Transcript, 30 September 2019, 108 (Mr Morrissey SC).
[49]Agreed Statement of Facts, [1]-[7].
[50]under the Foreign Evidence Act 1994 (Cth).
[51]Transcript, 3 October 2019, 2 (Mention hearing)(Mr Ginsbourg).
On 1 October 2019, AB was arraigned, and pleaded not guilty to both charges on the indictment against him. Meanwhile, the Court was informed that further discussions and inquiries were taking place regarding the MAR social media records. Both parties agreed that the outcome of those inquiries would have a bearing on all other pre-trial issues, especially the Defence application to exclude parts of Witness A’s evidence.[52]
[52]Transcript, 1 October 2019, 275; Transcript, 3 October 2019, 3 (Mention hearing)(Mr Ginsbourg and Mr Morrissey SC).
On 4 October 2019, F/A O’Neale gave pre-trial evidence and was cross-examined about whether there was any vetting by U.S. agencies of the MAR social media records. He testified that he had been permitted to view certain social media records during a visit to FBI offices which occurred over some days from 13 July 2015. F/A O’Neale’s visit was prior to AB’s arrest and prior to the first formal MAR being made by the AGD in October 2015.[53]
[53]F/A O’Neale gave evidence at committal as to a MAR being made in October 2015, depositions p 182.
F/A O’Neale said that the AFP did not request or receive all of the social media materials that he viewed at the FBI offices. {*Redacted].[54]
[54]Transcript, 4 October 2019, 313-314.
Following F/A O’Neale’s pre-trial evidence, the Crown reiterated that it had provided the Defence with all the social media records it had been supplied with. The Commonwealth Department of Public Prosecutions (‘CDPP’) sent a letter to this effect to the Defence on 3 October 2019.[55] The Crown intended to rely on Part 3A of the Foreign Evidence Act 1994 (Cth) (‘the FEA’) to have the MAR social media records admitted into evidence. The Defence challenged the admissibility of the MAR social media records under the FEA.[56]
[55]Agreed Statement of Facts, Annexure L.
[56]Transcript, 4 October 2019, 328-9 (Mr Morrissey SC).
On 7 October 2019, the Court heard argument on the admissibility of the MAR social media records. Those records had been produced in the form of several discs, each annexed to an affidavit on behalf of each relevant ISP provider,[57] which in turn was attached to a certificate issued by the AGD under the FEA. In the course of argument, and upon close inspection of the relevant affidavits and annexed discs, an issue arose as to the chain of custody of the discs containing the MAR social media records. Ultimately, the Crown conceded that it could not establish continuity in the chain of custody of the MAR social media records.[58]
[57]There were six such affidavits, each attached to certification certificates from the AGD, which were made by: (1) Shannon Chance, Records Custodian at Instagram, LLC; (2) Caitlin Hayes, Microsoft Online Services Custodian of Records, Microsoft Corporation; (3) Virginia Serpa, Global Law Enforcement Manager, ASKfm; (4) Brian Harrington, Records Custodian, Facebook, Inc.; (5) Christine Yu, Legal Assistant and Custodian of Records, Google Inc.; and (6) Beth Jarvis, Records Custodian, Facebook, Inc.
[58]Transcript, 18 October 2019, 752.
Accordingly, the Crown announced a withdrawal of reliance on the FEA to admit the MAR social media records in the Crown case, and conceded that they were otherwise unable to have those records admitted into evidence. The Crown did not apply for time to attempt another MAR process, given the likely delays involved.[59] The Crown was apparently unable to procure evidence directly from the relevant ISP companies that are based outside Australia.[60]
[59]Ibid 752-3.
[60]Ibid 753.
On 17 October 2020, the CDPP emailed the Defence and the Court regarding their withdrawal of the MAR social media records, and explaining why the affidavits from the ISP companies accompanying the MAR social media records did not accurately describe the manner in which the records were produced by those companies. The email stated inter alia:
On 15 October 2019, the CDPP case officers were informed of a practice within the United States (when internet records are requested by Australia under a Mutual Assistance Request) whereby the Internet Service Providers (ISP) (or similar companies) upload the records to be produced on to a secure server, to then be accessed by a US law enforcement agency. We are informed that these records, which then form the annexures/attachments to a statement/Affidavit deposed by the appropriate representative of the ISP, are downloaded by that agency on to a disc or other hardware to be provided to the requesting country through official central authority channels.
We have also been informed that the law enforcement agency, which has executed a warrant on the ISP in the US pursuant to the Mutual Assistance Request, then ensures that the records can lawfully be provided to a foreign country (in this case, Australia). We are informed that this can include removing extracts of the material on the basis of relevance to the warrant (that is, relevance to the MAR as the warrant is based on the MAR – which we have previously referred to as an assessment as to scope of the MAR), as well as bases including US Constitutional safeguards such as freedom of speech and privacy.
We have sought further information as to whether, but not yet had confirmed, this process was undertaken in relation to this matter. However, on the face of the material (noting the similarities between the handwriting on a number of the discs, as raised by Defence on 15 October 2019) the prosecution consider that this process occurred in this case. In those circumstances, the prosecution does not maintain the submission that the court should accept that the discs attached to each of the Affidavits of the six persons (Jarvis, Harrington, Hayes, Chance, Yu and Serpa) were physically produced and attached by those individuals, as the language of the Affidavits would otherwise have suggested. Accordingly, and on that basis, we consider that it would be inappropriate for the prosecution to rely on the provisions of the Foreign Evidence Act for the current Affidavits of Jarvis, Harrington, Hayes, Chance, Yu and Serpa) and we no longer seek to do so.
Ultimately, the Crown reframed its case without the use of the MAR social media records, and prepared and filed an amended Summary Prosecution Opening (‘SPO’) dated 22 October 2019. There is still some social media evidence sought to be led in the Crown case consisting of screenshots of AB’s accounts, taken and preserved by lay witnesses, and[*Redacted].
Following the Crown’s announcement that the MAR social media records were no longer being relied upon at trial, Defence counsel renewed an application to seek exclusion of the entirety of Witness A’s evidence, despite having previously retreated from that position. This was the context in which the Defence sought and obtained leave to file and serve the current subpoenas. The Defence was asked on 25 October 2019 about the general tenor of those subpoenas. The Defence confirmed that the subpoenas were in large part directed to the issue of disclosure and the procedural fairness aspects of the way in which information was obtained [*Redacted], and how [*Redacted] evidence had been procured and proffered to the court.[61]
[61]Transcript 25 October 2019, 781 (Mr Morrissey SC).
On that same day, a document titled ‘Defence Outline of Subpoena Purposes’ that had been provided to the subpoenaed parties was tendered by the Defence.[62]
[62]Ibid.
Previous discussion of disclosure in this matter
As already mentioned, the issue of disclosure has been raised at various points throughout this proceeding, both in writing and in open court. Given the Defence emphasis on the Crown’s disclosure obligations as an aspect of a fair trial, it is useful to recount the occasions on which disclosure has been raised. This sheds light on what the Defence already knows, and is relevant to an assessment of the importance of the disputed PII documents and information:
(a) On 5 October 2015, the Crown served Defence with a copy of a statement from F/A O’Neale, [*Redacted];[63]
[63]Chronology of Events Relevant to the Social Media Material (prepared by the Crown and Defence and handed up on 4 October 2019).
(b) On 11 March 2016, the Defence were provided with certain Facebook records, obtained on a ‘police-to-police’ basis, prior to formal service following receipt via the Mutual Assistance Request;[64]
[64]Agreed Statement of Facts [1], and Annexure L.
(c) [*Redacted];[65]
[65]Agreed Statement of Facts, Annexure B, 2. The Crown confirmed this position again by letter on 28 September 2016, see Agreed Statement of Facts, [9].
(d) On 21 July 2016, the Defence were provided with 5 discs of social media records.[66] These records were said to have been obtained through the search warrants conducted by the U.S. pursuant to the MAR;[67]
[66]Said by letter on 3 October 2019 to have constituted ‘the full records’.
[67]Ibid [5] and Annexure M.
(e) By letter on 26 September 2016,[68] the Defence was told that:
[68]Agreed Statement of Facts, [4].
(i) [*Redacted],[69].[70]
[69]Agreed Statement of Facts, [6].
[70]Ibid.
(f) On 27 September 2016 certified versions of the MAR social media records obtained from the U.S. were served on the Defence;
(g) On 28 September 2016, the CDPP confirmed the position stated at (e), and advised that they considered disclosure had been completed;[71]
[71]Agreed Statement of Facts, [9].
(h) By letter dated 5 June 2017, the CDPP advised the Defence that the U.S. would not [*Redacted];[72]
[72]Agreed Statement of Facts, [12].
(i) On 2 October 2017, at a Directions Hearing in this Court, regarding the documents related to the evidence of Witness A, the parties argued as follows:[73]
[73]Transcript 2 October 2017, 17-18.
…
MR RAPKE: … The defence have sought, for some time, almost the middle of last year, documents and material from Crown. The Crown has done everything it possibly can to provide that material to the defence pursuant to those requests, recognising this material that they ought to have. We don't buy into the argument whether it's going to be of assistance or not. They've requested it and we're not prepared to say it's irrelevant and the Crown did everything it could to provide that material to the defence.
But because it's not the Crown's material, it's not held by the Crown, it wasn't in the Crown's custody or possession of[sic] control, the Crown had to rely upon other agencies, overseas agencies predominantly from the United States, to provide that material and the Crown made requests of the FBI and the United States and other agencies, the Department of Justice and so on, to try and obtain that material but unsuccessfully.
[*Redacted].
[*Redacted].
[*Redacted].
That led to the defence advising the Crown, and the defence has always been in this position, of saying, "Well, we are disadvantaged by this. Our client is disadvantaged by not having this material and we're going to make an application for a permanent stay of those proceedings on the basis that material which we need to defend our client is not being provided".
Now, our learned friend has spoken about calls for material at the committal. There were many of those calls. But all that was called for was material which had previously been sought and denied. So our friends have to assume, although we've not formally responded, they'll have to assume we can't respond to those calls. We don't have the material. We can't get it. Every single avenue available to the defence and to the Crown has been pursued and exhausted so the defence are now in a position where they should assume that what they've called for they will not get. Not because we don't want to cooperate, we don't want to give it, but we don't have it and we can't get it.
…
(j) Mr Rapke for the Crown then submitted that the Crown had done ‘everything [they] can and used every avenue available’ to get access to the requested materials, however they had been unsuccessful.[74] Mr Morrissey submitted for the Defence that this was the first time that the Defence had been notified that they were not going receive the materials they had called for, and that the Defence would now proceed on that basis and accepted the Crown’s submission that there was likely a ‘substantial overlap’ between what the Defence had requested at Committal and what had been sought under the mutual assistance requests.[75]
[74]Transcript 2 October 2017, 18-19.
[75]Transcript 2 October 2017, 28.
(k) In their list of pre-trial issues dated 20 December 2017, at paragraph 10, the Defence requested, the following:
…Copies of the documentation [*Redacted]. If this documentation cannot or will not be provided, formal reasons for this situation are sought;[76]
[76]Defence List of Pre-Trial Issues dated 20 December 2017, 4 [10a].
Later in that document at paragraph 16, the Defence said:
The defence reserves its position with respect to the admissibility of the evidence of [Witness A], given that copies of the documentation [*Redacted].[77]
[77]Ibid 6.
(l) In their Response to the Defence’ list of pre-trial issues dated 19 January 2018, the Crown said:
… The Crown does not have in its possession or control the material sought. It has attempted, unsuccessfully, to obtain it from the United States. It is not expected that the refusal of the US and its agencies (such as the FBI) to release it to the CDPP will change. The defence should proceed on the basis that it will not have access to that material at any time.[78]
[78]Crown Response to Defence List of Pre-Trial Issues, 4 [11].
(m) On 30 January 2019, the Defence filed their updated pre-trial issues list, and foreshadowed that they had asked the Crown to make available for Basha inquiry [certain witnesses][*Redacted].[79]
[79]Defence List of Pre-Trial issues dated 30 January 2019, 5.
(n) At a Mention on 31 January 2019, the Crown addressed the request for the above named witnesses by confirming that those witnesses would not be made available:
MR ROBINSON: They won't be, Your Honour. We have - and in fact the initial document our friend served recognised that they were not able to be called and that if they were to be called, and there was change in that, we would tell our friends. And indeed, we will. But, as we understand it, they rely upon U.S law to say that they will not give evidence. And of course, they are not compellable except by making a neutral(indistinct) [sic] request and that won't be met, is the way it appears to the Crown on the enquiries and our friends will understand why that is.[80]
[80]Transcript of 31 January 2019, 6-7.
(o) On 4 February 2019, the Crown filed a written reply that addressed the Defence request for the further [*Redacted] witnesses (amongst other things) as follows:
The persons requested are not witnesses on the brief. The Crown is unable to compel them to give evidence. It is apparent to the Crown, from previous dealings with US authorities, that a formal mutual assistance request to secure the attendance of these witnesses would be futile. The persons sought will accordingly not be made available by the Crown.[81]The issue of disclosure was raised at various points throughout this proceeding, both in writing and in open court.
[81]Crown’s ‘Pre-trial applications’ document filed 4 February 2019, 2 [9].
(p) On 11 and 12 July 2019, the Defence requested further information regarding [*Redacted] and the social media records. In response, on 20 August 2019, the CDPP provided Defence with a table collating theirs, the AFP, the AGD, and the [*Redacted] responses to the Defences’ queries.[82]
[82]Agreed Statement of Facts [20] and Annexure J.
(q) On 21 August 2019, the Crown provided the Defence with a further copy of all of the social media records previously provided;[83]
[83]Agreed Statement of Facts Annexure L; and Chronology of Events Relevant to the Social Media Material (prepared by the Crown and Defence and handed up on 4 October 2019).
(r) By letter to Defence dated 3 October 2019, the CDPP advised as follows:
In summary, in respect of the social media records the subject of Mutual Assistance Requests (‘MAR’), all material received by the prosecution pursuant to this request, as well as all ‘police to police’ material received by the prosecution has been provided to defence in full. This foreign material was provided as soon as practicable, as per our disclosure obligations. We note that some of this material was initially provided to the defence on 11 March 2016 (‘police to police’ material), with the totality of the material provided on 21 July 2016 (uncertified version), then again on 27 September 2016, this being the final certified version under the Foreign Evidence Act 1994 (Cth). As you observe and as is clear on the face of the documents, the MAR material appears to have been vetted. The CDPP, AFP and AGD did not vet, delete or alter any of the material; the material received from the foreign agencies was provided to defence in the form provided to the Commonwealth agencies. The CDPP, AFP and AGD have not been advised by the foreign authorities the basis for any vetting and are not aware of any deletions or alterations of the foreign material provided in this matter.[84]
[84]Agreed Statement of Facts, Annexure L.
(s) Also in that letter, the CDPP responded to the Defence’ queries sent by letter on 28 September 2019.[85] In response to the Defence query ‘have all records provided pursuant to MAR (including any record which may identify whether the records are incomplete and have been altered in any way) been produced to defence?’ the CDPP advised as follows:
[85]Agreed Statement of Facts, Annexure K.
As noted above, the full records received were provided to defence on 21 July 2016, with the certified version provided on 27 September 2016.
All the material provided by the foreign agencies, whether the police to police material or the material provided pursuant to the MAR has been provided to defence in the form that the material was provided by the foreign agencies.
For further clarification, [*Redacted]. I note this document was filed after our office provided the entirety of the social media records in accordance with the Foreign Evidence Act 1994 (Cth). At paragraph [26], your office noted:
The further material provided on 27 September 2016 under mutual assistance request to the USA, includes Facebook, AskFM and Instagram records associated with the Accused and others.
There are over 6000 pages of Facebook records. [*Redacted]
As you are aware, [*Redacted]
[*Redacted]
[*Redacted]
The Defence subpoenas
The ‘Defence outline of subpoena purposes’ tendered on 25 October 2019 elaborated on the nature of the Defence claim to the subpoenaed documents.[86] It stated that it was ‘prepared to provide initial assistance to the Court and the parties (and in particular the subpoenaed parties) in understanding the legitimate forensic purpose attaching to the [Defence subpoenas]’.[87] By that point, the AFP had already engaged counsel to represent it and within a week the AGD followed suit.
[86]Transcript, 25 October 2019, 785. The document was marked as Exhibit 1 on the oral argument on 25 October 2019 regarding the Defence subpoenas.
[87]At 1, Counsel for the Defence, Peter Morrissey SC, made submissions outlining the forensic purposes of the subpoenas, utilising that document as an aid: Transcript, 25 October 2019, 785 – 802.
Inadvertent disclosure of certain AFP docs
While no application was made to have the Defence subpoenas set aside, the Court was made aware early on of intensive, ongoing discussions between the parties (outside of Court) in an effort to agree upon a practical approach to the production of documents and to clarify, and in some instances confine, the categories of documents sought. As part of that process, the AFP sought and obtained leave to produce documents directly to the other parties, in the first instance, before formally producing them to the Court.[88] In the course of that initial disclosure of material by the AFP to the Defence, some documents over which PII is claimed were accidentally and inadvertently disclosed. They were later provided to the Court to be preserved as part of the ongoing PII process.[89]
[88]Transcript, 25 October 2019, 778, 806 (Mr Forsaith).
[89]The Court was informed of the inadvertent disclosure on 29 October 2019. On 8 November 2019, the Court made interim orders regarding the return, destruction, and non-disclosure of the materials inadvertently disclosed. The Defence handed over to the Court some of those materials, which it had marked up with notes, pending the outcome of the PII claims over those materials.
The parties’ file documents and oral hearings are held
The subpoenaed parties foreshadowed PII and LPP claims (in whole or part) over a large number of the documents sought by the Defence. The CDPP also foreshadowed LPP claims. It was agreed[90] that the production of the subpoenaed documents and determination of any PII and LPP claims should be completed before the determination of outstanding pre-trial issues.
[90]In the course of the consideration of timetabling issues by the Court, with the assistance of the Crown and the Defence: see Transcript, 18 November 2019, 885, 899–900.
From October 2019 to February 2020, considerable time and effort was expended by the subpoenaed parties in the process of collating and producing subpoenaed documents and identifying PII and LPP claims. In the course of that process, on 29 October 2019, the AFP produced a first tranche of documents to the Court[91] and a second tranche on 18 November 2019.[92] Both subpoenaed parties later produced documents to the Court on USB flash drives.[93]
[91]Marked as exhibit AFP(A) on the oral argument re: the Defence subpoenas: Transcript, 29 October 2019, 813.
[92]The AFP’s second tranche of documents was not marked as an exhibit, but its production was noted for the record by the Court: Transcript, 18 November 2019, 901. Prior to that, the AFP tendered a letter it had sent to the Defence, regarding the categories of documents sought, which was marked as exhibit AFP(B): Transcript, 1 November 2019, 1 (Mention hearing).
[93]Those USB documents were briefly discussed in Court and it was agreed the Court would not yet examine those documents: Transcript, 5 December 2019, 909–911, 920–922.
The AGD had earlier informed the Court of email correspondence with the U.S. in which the U.S. indicated to the AGD that disclosure of the documents sought by the Defence would ‘likely impact’ on its ‘crime cooperation and relationship with Australia’.[94] The AGD was awaiting a formal letter from the DOJ outlining more fully (and officially) its position on the matter.[95]
[94]Transcript, 29 October 2019, 811 (Mr Burslem).
[95]That DOJ letter was dated 22 November 2019 and a copy of it was annexed to the AGD’s confidential affidavit in this matter: see the open affidavit of Anna Harmer, dated 16 January 2020, at [32]–[33].
On 5 December 2019, the Court set a timetable for the filing of affidavit material and submissions and for the hearing of the parties’ PII and LPP claims.[96] It was agreed that the PII claims made by the AGD ought be heard and determined first, prior to the hearing of the AFP’s PII claims and the parties’ LPP claims.[97] The CDPP confirmed, in February 2020, its interest as a non-subpoenaed third party[98] and retained counsel to represent it in respect of its own LPP claims.[99]
[96]That timetable was later amended in Court on 28 January 2020.
[97]Transcript, 5 December 2019, 90–5, 909, 914–15. The AGD also suggested its PII and LPP claims could potentially be heard at the same time.
[98]A solicitor for the CDPP wrote to the Court and the parties regarding its interest as a non-subpoenaed third party on 19 February 2020, which led to a Mention hearing regarding the CDPP’s foreshadowed LPP claims on 21 February 2020.
[99]The CDPP retained Andrew Yuile, who first appeared before the Court in this matter on 25 February 2020. Crown trial counsel remained the same. At times, Nick Robinson QC, lead counsel for the Crown, appeared in hearings related to the parties’ PII and LPP claims.
Ultimately, the hearing of the AGD’s PII claims took place over several days on 28 January 2020,[100] 25, 26 and 28 February 2020 and 3 March 2020. During this period, the AGD also tendered affidavit material in respect of its LPP claims, and the AFP tendered affidavits and other documents and made limited, oral submissions as well. A full list of the documents tendered by the parties is set out below.
[100]This hearing date took place prior to all of the relevant materials being filed (including the AGD’s written submissions regarding its PII claims). Whilst the first part of the hearing dealt with timetabling issues, the Defence began oral submissions in the second half of the hearing (based on its written submissions of 28 January 2020): Transcript, 28 January 2020, 947 – 966. The Defence had the opportunity to continue its oral submissions (and refresh the Court’s memory on its prior submissions) from 25 February 2020.
It should also be noted that after reserving to consider the competing arguments about the AGD documents, the COVID-19 pandemic struck, and arrangements were made for a confidential case conference to be conducted by Coghlan J. I also heard an application for bail by AB in late July 2020, after returning from a period of leave.
Inspection of the disputed documents
Pursuant to s 133 EA, in determining whether to direct that a document not be adduced as evidence under s 130(1), the Court may inspect the document.
Mr Berger, on behalf of the AGD, submitted that there was a real question whether it was ‘on the cards’ that any of the PII documents would materially assist the Defence and in what way. Much of what seemed to be sought from the AGD related to the MARs and information about what was sought under the MARs.
The Court did not need to inspect the documents to uphold their PII claims but the documents would be made available for ‘private inspection by the Court,’ if the Court concluded it should inspect the documents.[101] Limited inspection by the Court of the MAR documents might address Defence concerns that some kind of orchestrated process had occurred in the construction and response to the MARs.
[101]AGD submissions, [65]–[70].
Mr Berger initially suggested inspection of the first MAR and [*Redacted] as a practical means to short circuit inspecting every document. Mr Berger submitted that inspection of the MARs might assist because:[102]
…if there's been a fulsome request for all available evidence, it doesn't matter what the Australian Federal Police told the Attorney-General's department about [*Redacted] or difficulties or anything like that, because your Honour can be satisfied that there's been a fulsome request that does not suggest any impropriety on the part of the Attorney-General's department in fulfilling its obligations.
[102]Transcript, 3 March 2020, 1203.
In all, there were 5 MARs served by the AGD on the U.S. in the present case, and ultimately the AGD was agreeable to the court inspecting all 5 MARs.
Inspection of the MARs would, according to Mr Berger, assist the Court to see if there was any credence to Defence concerns and whether, upon inspecting them, the other concerns fell away. Alternatively, it might lead to other documents being called for or a further subset of documents being inspected or explained—perhaps by way of further affidavit or other evidence from the AGD:
If your Honour is to inspect any or indeed all of the requests, we submit you will find nothing of the kind that the accused has suggested may be there, in terms of a carving out or qualifying or crafting of the request in a way that might work to the Crown's advantage and the accused's disadvantage, but rather your Honour will find, in relation to the initial request, an attempt to get essentially everything that could conceivably be relevant to the proceedings.[103]
[103]Transcript, 3 March 2020, 1219.
The Defence ultimately did not oppose the Court inspecting the formal mutual assistance requests but argued that the Court ought still inspect the balance of the AGD PII documents.[104]
[104]Ibid 1225 (Ms Morgan).
Inspection of the 5 MARs and request for further documents for inspection.
I decided to view the 5 MARs first, before considering whether other documents held by the AGD should be inspected.[105] While I found that limited inspection of those documents was useful, I decided that I should inspect all of the documents subject to AGD PII claims so as to apprehend the subpoenaed documents within a fuller context, having regard to the principles mentioned in Alister’s Case regarding inspection of documents in criminal proceedings.[106] It did not appear to the Court that any of the disputed documents were of such a nature that the Court should refrain from conducting a private inspection.
[105]The 5 MARs had been placed in a sealed envelope for ease of access should the Court decide to adopt this approach. I therefore unsealed the envelope and inspected the 5 MARs.
[106](1983) 154 CLR 404; (1983) 50 ALR 41, 46.
On 25 May 2020, the Court requested (via email) that the AGD provide, for inspection, all documents subject to AGD PII claims. The AGD PII documents were delivered into the Court’s custody on 5 June 2020. The documents did not include the documents that were subject to AGD PII claims that the Defence did not press the Court to inspect.[107] The material provided included documents held by the AFP over which the AGD claims PII. In total, 503 documents (many of which involved multiple items) were delivered for the Court’s inspection.[108]
[107]In Mr Lowe’s open affidavit on behalf of the AGD, he describes correspondence from the Defence indicating the categories of documents it did not press for the Court to inspect. Mr Lowe concluded that those categories applied to 69 of the PII documents: 3 March 2020 affidavit of Finnegan Lowe at [9]–[12], [17]. On 4 June 2020, Mr Lowe wrote to the Court and the parties, explaining that, subject to any contrary view by the Court or the Defence, the AGD did not intend to produce those 69 documents for inspection.
[108]The AGD schedules of documents listed 464 AGD documents subject to AGD PII claims and 108 AFP documents subject to AGD PII claims. As explained, of those documents, 69 were not provided to the Court. The 108 AFP documents included three documents not listed in the AGD affidavit material, as the AGD identified the claims over those documents later on (when preparing documents for the Court’s inspection). On 18 June 2020 Mr Lowe wrote to the Court and parties requesting, with the Defence’s consent, that the Court consider those three documents in light of the AGD affidavit material previously filed.
On 19 June 2020, Mr Lowe, solicitor for the AGD, emailed the Court with the consent of the parties, and advised that there were three additional documents belonging to the AFP, over which the AGD claimed PII. Mr Lowe confirmed the AGD sought to rely on the material already filed in support of the claims over those three documents. The Court also inspected those documents.
Further information is sought from the parties
In August 2020, after inspecting the AGD’s PII documents, the Court gave a preliminary indication about the outcome of the inspection of documents related to the Witness A disclosure issue, but sought further information about 14 specific documents (‘the 14 documents’) not exclusively related to that issue. In particular, the Court invited further evidence or submissions from the AGD about the 14 documents and also invited the AFP to provide its PII evidence or submissions over those documents. The AGD, AFP and CDPP were also invited to provide evidence or submissions about the LPP claims over those 14 documents.
This process led to further material being filed by the AGD, AFP, CDPP and the Defence in August and September 2020 in relation to PII claims over the 14 documents. The AGD then filed submissions about all of its LPP claims and the CDPP filed an affidavit in support of all of its LPP claims and a submission that was partly related to the 14 documents, but also explained in broader terms the categories of its LPP claims. The AFP filed a further affidavit on 28 August 2020 on LPP claims in documents that had not been covered in their earlier LPP affidavit filed on 20 February 2020, some of which were relinquished, and reference was also made to LPP claims over the 14 documents. The Defence then filed a submission as to the AGD’s PII claims on the 14 documents and a further submission on the CDPP’s LPP claims over the 14 documents. For ease of reference all of the documents filed by the AGD in support of their PII claims are listed below.[109]
[109]The documents filed by the AFP are set out in the AFP PII Ruling.
On 31 August 2020, the AGD’s solicitors delivered revised copies of the 14 documents to the Court.[110]
[110]Some claims within these documents were reduced.
In late August 2020, in inspecting the AGD’s PII documents, the Court noticed some inconsistent claims, both within the 14 documents and throughout the AGD’s PII claims more generally. In open correspondence to all parties, the Court sought clarification from the AGD’s solicitors on these issues. On 2 September 2020, the AGD’s solicitors provided clarification to all parties on the inconsistent claims within the 14 documents.
On 7 September 2020, the AGD’s solicitors delivered to the Court further bundles of revised documents which comprised a further copy of 4 documents from within the 14 documents that had been revised again to address inconsistencies, and a further 20 documents that had also been revised to address inconsistencies. On 8 September 2020, the AGD’s solicitors wrote to the Court and all parties further explaining its revisions.
Agreed statement of facts
On 26 August 2020, the Court requested that the parties consider filing an agreed statement of facts about what the Defence has already been told by the CDPP, AGD and AFP about what material will not or cannot be provided in relation to evidence in the possession of the U.S. On 11 September 2020, the Crown filed an Agreed Statement of Facts prepared jointly with the Defence (‘Agreed Statement of Facts’).
Additional materials from the AGD on 4 November 2020
As will be seen below, ultimately the Court upheld all of the AGD’s PII claims. However, in the process of determining the AFP’s PII claims, the Court invited the AGD to file some further material in relation to one of its claims over a single bullet point on a page of the AFP’s PII documents.[111] Those materials were filed on 4 November 2020 and are listed below.
[111]AFP.0001.0010.0036. On 27 October 2020, the Court informed the parties via email that the majority of the AFP’s PII claims would likely be upheld, and indicated that it would send out a list of documents that it was still considering and in relation to which it would seek further evidence/submissions. On 29 October 2020, that list was emailed to the parties. That list included the AGD’s PII claim referred to above and accordingly, the Court invited the AGD to also file further submissions/evidence in relation to this claim.
Documents tendered by the AGD in response to the Defence subpoenas[112]
[112]This section is not intended to capture each and every document that was referred to in the course of the hearing on the PII issue.
AGD documents
The following documents were tendered, or filed on behalf of the AGD, in support of its PII claims:
(a) open affidavit of Anna Harmer dated 16 January 2020;
(b) confidential affidavit of Anna Harmer dated 22 January 2020;
(c) supplementary open affidavit of Anna Harmer dated 21 February 2020;
(d) submissions on PII-Mutual Assistance PII claims dated 21 February 2020;
(e) open affidavit of Finnegan Lowe dated 3 March 2020;
(f) open affidavit of Sarah Chidgey (on PII claims over the 14 specified documents) dated 28 August 2020;
(g) supplementary submissions (on PII claims over the 14 specified documents) dated 28 August 2020;
(h) Open affidavit of Sarah Chidgey dated 4 November 2020;
(i) Submissions in relation to one PII claim in response to a query from the Court dated 4 November 2020; and
(j) Confidential supplementary submissions dated 11 November 2020.[113]
[113]In the supplementary submissions filed 4 November 2020, the AGD offered to provide a confidential submission should the Court require further information, the Court requested that further submission, and it was provided on 11 November 2020.
The 16 January 2020 open affidavit of Ms Harmer exhibited:
(a) schedules of the documents subject to AGD PII claims;[114]
[114]Marked as Exhibits ‘AH-1’ and ‘AH-2’.
(b) a copy of the Defence outline of subpoena purposes dated 25 October 2019;[115]
(c) correspondence from the solicitors for the accused dated 13 November 2019, explaining the purposes of the categories of documents sought by way of subpoena;[116] and
(d) a reply from the solicitors for the AGD dated 20 November 2019, clarifying the kinds of documents held by the AGD.[117] Much of the information contained in that letter of 20 November 2019 is repeated in Ms Harmer’s affidavit.
[115]Marked as Exhibits ‘AH-3’.
[116]Marked as Exhibit ‘AH-4’.
[117]Marked as Exhibit ‘AH-5’.
Also, Ms Harmer’s affidavit of 21 February 2020 exhibited further schedules of documents subject to AGD PII claims[118] and Mr Lowe’s affidavit of 3 March 2020 exhibited further correspondence from the Defence in February and March 2020.[119]
[118]Marked as Exhibits ‘AH-6’ and ‘AH-7’.
[119]Marked as Exhibits ‘FL-2’ and ‘FL-3’.
Defence documents
The Defence filed the following documents relevant to their subpoena purposes and relevant to the PII and LPP claims of the other parties:
(a) Defence outline of subpoena purposes dated 25 October 2019;[120]
[120]This document addressed the Defence subpoena purposes generally, in relation to both the documents sought from the AGD and the AFP.
(b) submissions dated 28 January 2020;[121]
[121]Entitled, “Outline of Submissions re PII / s130 claims by AGD” (‘Defence January 2020 Submissions’).
(c) further submissions dated 1 March 2020;[122]
[122]Entitled, “Summary of defence submissions re forensic purpose – AGD subpoena” (‘Defence March 2020 Submissions’).
(d) a folder of documents, containing 247 pages (including part redacted documents) provided by the AFP to the Defence (after the issuing of the Defence subpoenas) and an extract from the diary notes of Ryan Forde (a Detective Leading Senior Constable of Victoria Police and a special member of the AFP in the Joint Counter-Terrorism Team who attended FBI headquarters in 2017);
(e) a re-ordered version of the spreadsheet tendered by the AFP, with the documents subject to PII and LPP claims put into chronological order; and
(f) submissions regarding AGD PII claims over the 14 specified AGD documents dated 4 September 2020.
Forensic value of the disputed AGD PII documents
The Defence submitted that the Court should inspect the AGD’s PII documents as a prelude to undertaking the balancing exercise required to determine the AGD’s PII claims because it was ‘on the cards’ that there is information in the AGD’s PII documents that would materially assist the Defence.
The Defence explained that they sought the subpoenaed documents to support certain applications being made or to expose relevant evidence for trial. Substantive or evidentiary applications foreshadowed by the Defence included applications for:[123]
[123]See Defence March 2020 Submissions, [3]. In the ‘Defence outline of subpoena purposes’ of 25 October 2019, the Defence also suggests the subpoenaed materials may be relevant to a potential application to exclude representations or admissions in materials from AB’s brother and wife: at 5.
(a) exclusion of the entirety of Witness A’s evidence (or part thereof);
(b) exclusion of the evidence given by Witness B, [*Redacted];
(c) a permanent stay of proceedings, on the basis that AB is unable to receive a fair trial.
The Defence framed their oral submissions on the notion that the subpoenaed documents may have cumulative forensic value.[124] In oral submissions, Ms Morgan referred to ‘pieces’ of a ‘jigsaw puzzle’ from different sources.[125] The AGD PII documents needed to be viewed in the context of information already known to the parties. Defence counsel also explained it was seeking to access documents ‘to establish before a jury what the Defence has and does not have compared to what existed, what was in the possession of U.S. authorities, and what is in the possession of Australian authorities.‘[126]
[124]See Defence January 2020 Submissions, [58].
[125]Transcript, 28 January 2020, 938 and as ‘breadcrumbs’ (Transcript, 25 February 2020, 1029-30; Transcript, 28 February 2020, 1084) in building a clearer picture of what has taken place.
[126]Ibid, 958. See also Defence January 2020 Submissions, [62].
The Witness A disclosure issue
The Defence seek documents that might support an application or argument to exclude Witness A’s evidence by exposing unfairness in the way [Witness A]’s evidence was procured, for example by reference to the circumstances[*Redacted] and [*Redacted] AFP statement. The Defence also seek information bearing upon Witness A’s credit, given that the Crown has not produced the [*Redacted] or [*Redacted] in response to queries raised by the Defence with the CDPP.[127]
[127][*Redacted].
The Defence submit that non-disclosure of evidence concerning Witness A has consequences for evidentiary and procedural applications or for assessment of [Witness A’s] evidence before a jury.
The documents sought by the Defence concerning the Witness A disclosure issue are also relied on as being relevant to the fairness of the trial.[128] As such, the Defence also seek documents regarding the processes employed by the AFP, AGD and/or the CDPP to obtain the [*Redacted] evidence.
[128][*Redacted].
The Defence seek documents or information exposing:
(a) {*Redacted];
(b) [*Redacted];[129]
[129][*Redacted].
(c) [*Redacted];[130]
[130][*Redacted].
(d) [*Redacted];[131]
[131][*Redacted].
(e) [*Redacted];[132]
[132][*Redacted].
(f) [*Redacted];[133]
[133][*Redacted].
(g) [*Redacted];[134]
[134][*Redacted].
(h) whether the AFP sought or obtained, any other relevant information regarding Witness A’s evidence, that has not yet been disclosed,[135] {*Redacted];
[135][*Redacted].
(i) [*Redacted],[136];[137]
[136]See Defence January 2020 Submissions, [64]–[67].
[137]Defence March 2020 Submissions, [2(B)-(C)]; Transcript, 26 February 2020, 1051.
(j) [*Redacted];
(k) whether the AGD or AFP explained the procedural and evidential requirements of a fair trial in Australia;
(l) whether the information sought by the Defence [*Redacted] was ever sought by the AGD (either prior [*Redacted] or subsequently) on behalf of the Crown;[138]
(m) whether the U.S. provided all the materials sought under MAR, and if not, whether the U.S. gave reasons for not doing so, [*Redacted].[139]
[138]Defence March 2020 Submissions [2(G)]; Defence January 2020 Submissions, [72]-[73] and Transcript, 28 January 2020, 961-2; 3 March 2020, 1228-31 (Ms Morgan).
[139][*Redacted].
Witness B’s evidence
The Defence also seek documents to assist in its foreshadowed challenge to the evidence of [*Redacted], Witness B [*Redacted].[140]
[140]See Transcript, 25 October 2019, 799-800 (Mr Morrissey SC).
The relevance of the disputed documents to a fair trial.
Due to the confidentiality ordinarily associated with international cooperative efforts in criminal matters, the Defence has limited information about how the U.S. obtained evidence of AB’s activities in Syria, and how that material was later provided to Australian authorities. Yet, based on the information currently known to them, the Defence seeks documents that might show that the U.S. acted improperly, [*Redacted].[141]
[141]Defence October 2019 outline of subpoena purposes, [5].
The Defence also seek documents showing, whether the AGD/AFP/CDPP made proper efforts to seek all relevant evidence from the U.S., including potentially exculpatory evidence, and/or whether there was any questionable selectivity or connivance with the U.S. in their approach.
The Defence also seek documents exposing any failure by Australian agencies to ‘push back’ against the U.S. where the U.S. responses to the MARs were limited in a way that might impact on the fairness of AB’s trial.[142]
[142]See Defence March 2020 Submissions, [5(K)–(N)] & [11]–[12]; Defence January 2020 Submissions, [75]–[78]; and Transcript, 26 February 2020, 1054-56 (Ms Morgan).
In its March 2020 submissions, the Defence submit as follows:[143]
The way that any requests under the treaty were processed is of importance. The material sought is likely to disclose the terms of requests, any gaps in the requests, and any indications that the Australian authorities tailored their requests (formally or informally) in a manner inconsistent with the disclosure obligations of the prosecution.
[143]Defence March 2020 Submissions, [4].
In oral argument, Defence counsel said:[144]
We think it highly likely that agreements or understandings have been reached with US authorities which are not consistent with obligations of disclosure… We say that if such an agreement or understanding has been entered into by any of the state parties, and by that I mean the AGD, the CDPP or the AFP, to conduct a trial in the knowledge that certain information exists that will not be by virtue of an agreement disclosed, that raises very real interest - very real questions about the fairness of the accused man's trial…
[144]Transcript, 28 January 2020, 960 (Ms Morgan).
The MAR social media materials
The Defence also seek documents bearing on the conduct of Commonwealth and U.S. authorities in producing the MAR social media materials records (although the Crown has now withdrawn reliance on those materials). The Defence subpoena on the AGD seeks complete or unredacted copies of documents containing information relating to or created in connection with the process by which MARs would be received and dealt with by U.S. authorities (including in relation to social media records). The subpoena also seeks the content of any MARs made by Australian authorities to U.S. authorities and any limitations imposed by U.S. authorities on access to social media records sought by the Australian authorities. Further, the subpoena seeks information or documents related to any enquiry made in September or October 2019 as to whether social media records had been ‘vetted’ by U.S. authorities or any enquiry in October 2019 as to the practices of U.S. authorities in relation to the provision of affidavits to Australian authorities under MAR.
Defence counsel argue that gaps in the MAR social media records that have been provided might have contained information relevant to AB’s defence.[145] In oral argument, the Defence said:[146]
The reasons for those gaps are also telling and important matters, and so the pursuit of the investigators and why it is that those gaps exist is a matter that the jury would be assisted by…a jury could be asked to consider why in a thousand-piece jigsaw they're only being given the seven pieces, why is it that the prosecutor's[sic] made that choice, or at least the investigator's[sic] made that choice?
[145]Transcript 26 February 2020, 1051; 28 February 2020, 1078; 25 October 2019, 790-91; ‘Defence submissions re public interest immunity claims over the 14 “specified AGD documents”’, 6–11.
[146]Transcript, 25 October 2019, 789 (Mr Morrissey SC).
The Defence seek documents relevant to:
(a) unexplained gaps in the MAR social media materials;[147]
(b) the AFP’s review of a larger volume of social media material in the U.S. when only some of that material was provided in the MAR social media materials;[148] and precisely what occurred in the process of the MAR social media materials being produced for use in evidence;[149] and
(c) the basis for the Crown’s withdrawal of reliance on the MAR social media records.
[147]This issue was discussed at length in preliminary argument in October 2019, regarding the MAR social media material: see Transcript, 4, 7 – 10, 15 & 18 October 2019. See also the pre-trial evidence of F/A O’Neale: Transcript, 4 October 2019, 296-7, 299 & 301.
[148]See the pre-trial evidence of F/A O’Neale on this topic: Transcript, 4 October 2019, 315–19 & 325-6. See also Defence counsel’s analysis of redacted copies of police notes, particularly F/A O’Neale’s notes during his U.S. visit. In particular, Ms Morgan highlights references in police notes to the inspection of unexplained WhatsApp communications as well as notes on conversations from a Facebook account (account number ending in 792) not included in the MAR social media materials: Transcript, 28 February 2020, 1073-90 ( Ms Morgan).
[149]Transcript, 18 October 2019, 752-3.
In later written submissions regarding the AGD’s PII claims over the 14 specified documents (which they call the ‘AGD specified documents’), the Defence elaborate on their reasons for seeking ‘documents concerning U.S. vetting processes of social media records.’[150] The Defence submit that the process the U.S. adopted in reviewing ISP materials has not been fully described by either the CDPP or the AGD.[151] They also submit that the AGD’s evidence does not explain why U.S. domestic laws would lead to information being removed from the social media records in this case.[152] They submit that it is ‘likely’ that there were further relevant social media communications available to the U.S. ‘that have not been provided to the Defence.’[153] Further, some relevant communications could be contained within documents held by Australian authorities or be ‘recorded in other documents responsive to the subpoena.’[154]
[150]‘Defence submissions re public interest immunity claims over the 14 “specified documents” dated 4 September 2020.’
[151]Ibid 9, 25.
[152]Ibid.
[153]Ibid 9 [27].
[154]Defence submissions re public interest immunity claims over the 14 “specified documents” dated 4 September 2020, 9 [27].
| AGD.0001.0001.3472 | Scope: Full Class: Confidential Interjurisdictional Communications A Harmer Exhibit ‘AH-1:‘ This document is an email chain between the AFP, CDPP and AGD discussing arrangements with the United States for witnesses to give evidence. This document is sensitive because it would disclose the content of confidential communications with United States officials. It also contains information learned by Australian authorities about United States capabilities and practices in relation to the management of witnesses, which would reveal the content of previous confidential communications with the United States. Disclosure of the document would be likely to cause harm to Australia's relationship with the United States and its officials. | The strength of the public interest in non-disclosure: Strong: This document is sensitive because it would disclose the content of confidential communications with U.S. officials. The strength of the public interest in disclosure: Weak, the document is mainly logistical and has minimal forensic value for the defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of very limited forensic value to the Defence. |
| AGD.0001.0001.0049 | Scope: Full Class: Confidential Interjurisdictional Communication A Harmer Affidavit at [58]: For example, AGD.0001.0001.0049, AGD.0001.0001.1291 and AGD.0001.0001.3958 disclose information about ongoing US investigations and the likely consequences that would arise if information about those investigations was widely provided . Were that information to be disclosed, a person with some prior knowledge of the matter could infer information about the ongoing investigation in the US. A Harmer Exhibit ‘AH-1‘:This document is a letter from the United States to Australia about the use of information provided under the MAR. This document is sensitive because it would disclose the content of confidential communications with United States officials. | The strength of the public interest in non-disclosure: Strong, direct communication from U.S. about content of MAR response and also would disclose information about ongoing U.S. investigations The strength of the public interest in disclosure: Weak to Moderate, the Defence might be assisted by the information to some degree insofar as it answers some of their subpoena purposes, but the forensic value of the document itself is not strong, because it does not significantly add to information already provided to Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.0054 | Scope: Full Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1‘:This document is a letter from the United States to Australia about the use of information provided under the MAR. This document is sensitive because it would disclose the content of confidential communications with United States officials. | The strength of the public interest in non-disclosure: Strong, the document relates to the use of information provided under the MAR. This document is sensitive because it would disclose the content of confidential communications with U.S. officials. The strength of the public interest in disclosure: Weak to Moderate, the Defence might be assisted by the information to some degree insofar as it answers some of their subpoena purposes, but the forensic value of the document itself is not strong, because it does not significantly add to information already provided to Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.0249 | Scope: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1’: This document is an email chain between the CDPP and AGD discussing the disclosure of documents in the course of litigation and a prospective further MAR to the United States. Material that would disclose the content of confidential communications with United States officials has been redacted, as well as material that would reveal the content of the MAR. | The strength of the public interest in non-disclosure: Strong, because the redacted information would reveal sensitive and confidential communications with U.S. officials including about a MAR. The strength of the public interest in disclosure: Weak, whilst the Defence might be assisted by the information insofar as the information answers some of their subpoena purposes, the forensic value of the document itself is not strong, because the it does not significantly add to information already provided to Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of the claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of very limited forensic value to the Defence. |
| AGD.0001.0001.2694 overlapping with AGD.0001.0001.2360 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1’: This document is an email chain between the CDPP, AFP and AGO discussing the outcome of a meeting with the United States DoJ about assistance provided under the MAR. This document is sensitive because it would disclose the content of confidential communications with United States officials. S Chidgey affidavit [44]: This document is an email from the CDPP to AGD and the AFP discussing a call made by the defence for the production of a [*Redacted]. It is the first email within the chain contained in AFP.0001.0010.0477, and so is totally subsumed by that document. The claims made over it are for the same reasons discussed at paragraphs 32 to 35 above. | The strength of the public interest in non-disclosure: Moderate to Strong, because the redacted information would reveal sensitive communications as explained by Harmer. Also there is information from which the content of a MAR can be inferred and sensitive communications with the U.S., not all of which are directly related to this case. The strength of the public interest in disclosure: Weak to Moderate, whilst the Defence might be assisted by the information insofar as the information answers some of their subpoena purposes, the forensic value of the document itself is not strong, because the it does not significantly add to information already provided to Defence. Also much of the information is procedural and/or is not related to this case. Which of the above public interests prevails The public interest in non-disclosure prevails for all aspects of the claims in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of limited forensic value to the Defence. |
| AFP.0001.0010.0477 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-7’: This document is an email chain between AGD, AFP and the CDPP on 24 November 2017 discussing previous MAR Communication correspondences with the United States DoJ about the protection of sensitive information and discussing Australia's proposed response to that correspondence. This document is sensitive because it would disclose the content of confidential interjurisdictional communications between Australian and United States officials; as well as the deliberation of domestic agencies about prospective confidential communications with the United States. Disclosure would likely adversely affect Australia's mutual assistance relationship with the United States, and would likely have an adverse impact upon the willingness of United States officials to provide information. I am informed by AGD's legal representatives that the AFP also advances a full LPP claim over this document. S Chidgey Affidavit [32] – [35]: 32. This document is an email chain between AGD, the Australian Federal Police (AFP) and the CDPP discussing a call made by the defence for the production of a [*Redacted]. 33. The highlighted portions of this document are sensitive because they would disclose either details of an actual MAR made to the US (ie its specific terms), or the content of previous or planned confidential interjurisdictional communications between Australian and US officials regarding MAR processing. Some of that information constitutes the deliberation of domestic Australian agencies about prior confidential communications from the US and prospective confidential communications with the US. 34. Most of the highlighted text relates to the management of the broader mutual assistance relationship between Australia and the US, in a context not limited to the present matter. Those internal discussions about the management of this relationship reveal confidential communications received from the US and also domestic Australian consideration about how to frame a response to the US. 35. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong, the redacted information would reveal confidential communications with U.S. officials about disclosure under MAR also about the content of a further MAR to be made as explained by Harmer and Chidgey. Further, not all information relates to this case. The strength of the public interest in disclosure: Weak to Moderate, while the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of what the Defence is already provided to the Defence and in light of the fact that much of the information is procedural and/or is not specifically related to this case. Which of the above public interests prevails? The public interest in non-disclosure prevails for all aspects of claims in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.0419 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1‘:This document is an email chain between the CDPP, AFP and AGD discussing the outcome of a meeting with the United States DoJ. This document is sensitive because it would disclose the content of confidential communications with United States officials. S Chidgey Affidavit [32] – [35] and [39] – [41]: 32. This document is an email chain between AGD, the Australian Federal Police (AFP) and the CDPP discussing a call made by the defence for the production of a [*Redacted]. 33. The highlighted portions of this document are sensitive because they would disclose either details of an actual MAR made to the US (ie its specific terms), or the content of previous or planned confidential interjurisdictional communications between Australian and US officials regarding MAR processing. Some of that information constitutes the deliberation of domestic Australian agencies about prior confidential communications from the US and prospective confidential communications with the US. 34. Most of the highlighted text relates to the management of the broader mutual assistance relationship between Australia and the US, in a context not limited to the present matter. Those internal discussions about the management of this relationship reveal confidential communications received from the US and also domestic Australian consideration about how to frame a response to the US. 35. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. … 39. This document is an email chain between AGD, the AFP and the CDPP discussing a call made by the defence for the production of a [*Redacted]. It is within the same email chain as the document AFP.0001.0010.0477 and the claims made over it are largely for the same reasons discussed at paragraphs 32 to 35 above. I further note that page 1 of this document contains additional information about historical general practices around the means of seeking assistance on particular subjects from the US, as well as further information about planned interjurisdictional confidential communications of relevance to the relationship and future MARs generally. 40. Part of this document also relates to confidential discussions between the central authorities of Australia and Norway, as discussed at paragraph 29 above. 41. I am informed by Ms Tracey-Patte that by email dated 26 February 2020, legal representatives for [AB] sent an email to the Department's legal representatives confirming that the defence did not press for Her Honour to inspect AGD documents concerning MARs made to Norway in relation to A-31 materials and associated evidence/disclosure material. I consider this information falls into this category. | The strength of the public interest in non-disclosure: Strong, the redacted information would reveal confidential communications with U.S. officials about disclosure about U.S. mutual assistance also about the content of further planned communications. The strength of the public interest in disclosure: Weak to Moderate, while the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence a and in light of the fact that much of the information is procedural and/or is not specifically related to this case. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.2360 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1‘:This document is an email chain between the CDPP, AFP and AGD discussing the outcome of a meeting with the United States DoJ. This document is sensitive because it would disclose the content of confidential communications with United States officials. S Chidgey Affidavit [32]-35] and [42] – [43]: 32. This document is an email chain between AGD, the Australian Federal Police (AFP) and the CDPP discussing a call made by the defence for the production of a [*Redacted]. 33. The highlighted portions of this document are sensitive because they would disclose either details of an actual MAR made to the US (ie its specific terms), or the content of previous or planned confidential interjurisdictional communications between Australian and US officials regarding MAR processing. Some of that information constitutes the deliberation of domestic Australian agencies about prior confidential communications from the US and prospective confidential communications with the US. 34. Most of the highlighted text relates to the management of the broader mutual assistance relationship between Australia and the US, in a context not limited to the present matter. Those internal discussions about the management of this relationship reveal confidential communications received from the US and also domestic Australian consideration about how to frame a response to the US. 35. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information 42. This document is an email chain between AGD and the CDPP discussing a call made by the defence for the production of a[*Redacted]. It is within the same email chain as the document AFP.0001.0010.0477 and the claims made over it are largely for the same reasons discussed at paragraphs 32 to 35 above. 43. Part of this document relates to confidential discussions between the central authorities of Australia and Norway, as noted at paragraph 29 above. As also noted at paragraph 41 above, I am informed that [AB] legal representatives did not press for Her Honour to inspect AGD documents concerning MARs made to Norway in relation to A-31 materials and associated evidence/disclosure material. I consider this information falls into this category. | The strength of the public interest in non-disclosure: Strong, the redacted information would reveal discussion about the outcome of a meeting with the U.S. about disclosure under MAR and the content of a further MAR to be made and sensitive communications as explained by Harmer. The strength of the public interest in disclosure: Weak to Moderate; the information would not greatly add to information already provided to the Defence. Aspects of the information do not relate specifically to this case or are only procedural. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0002.7205 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1‘:This document is an email chain between the CDPP and AGD discussing defence queries put to the CDPP and AFP. Material that would reveal the content of the MAR has been redacted, as well as material that would reveal or could be used to infer the content of confidential communications with United States officials. S Chidgey Affidavit [65] – [67]: 65. This document is an email chain between the CDPP and AGD discussing queries from the defence put to the CDPP and AFP. 66. Highlighted portions of this document are sensitive because they would disclose the content of the MAR, as well as material that would reveal or could be used to infer the content of confidential communications with US officials. In some instances, the highlighted material reveals matters not known by Australian authorities, which could be used to infer the nature and limitations of confidential discussions between Australia and the US. 67. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong, the redacted information would reveal the content of a MAR or could be used to infer the content of confidential communications with the U.S., as explained by Harmer and Chidgey. The strength of the public interest in disclosure: Weak to Moderate, while the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.3108 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1‘ - This document is an email chain between AGD and the CDPP about previous correspondences with the United States DoJ about the MAR Communication protection of sensitive information and discussing Australia's proposed response to that correspondence. This document is sensitive because it would disclose the content of confidential communications with United States officials or could be used to infer the content of confidential communications with United States officials. S Chidgey Affidavit [55]: This document is an email chain between AGD and the CDPP discussing a call made by the defence for the production of a [*Redacted]. It is within the same email chain as the document AFP.0001.0010.0477 and the claims made over it are for the same reasons discussed at paragraphs 32 to 35 above. | The strength of the public interest in non-disclosure: Moderate to strong, the redacted information includes reference to previous correspondences with the DOJ about the MAR Communication and protection of sensitive information and Australia's proposed response to that correspondence. The document would disclose or could be used to infer confidential Communications with U.S. officials. The strength of the public interest in disclosure: Weak to Moderate: while the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.3048 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1‘:This document is an email chain between CDPP and AGD discussing the use of social media records in the proceedings. Material that could be used to infer the content of confidential communications with the United States officials has been redacted, as well as material that would reveal the content of MARs made to the United States. S Chidgey affidavit [45] – [48]: 45. This document is an email chain between the CDPP and AGD discussing the use of social media records in the proceedings, and the content of a MAR to the US. 46. The highlighted portions of this document are sensitive because they would disclose details of an actual MAR made to the US, and could be used to discern the content of previous confidential interjurisdictional communications between Australian and US officials. 47. In particular, the sentence highlighted in green would reveal the matter discussed at paragraph 28 above. 48. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Moderate to Strong. As explained by Chidgey, certain redacted sections of the documents are sensitive because they would disclose details of an actual MAR made to the U.S., and could be used to discern the content of previous confidential interjurisdictional communications between Australian and U.S. officials. Also as stated by Harmer, some of the information could be used to infer the content of confidential communications with the U.S. or would reveal the content of MARs made to the U.S. The strength of the public interest in disclosure: Weak to Moderate: the information relates to the Defence subpoena purposes regarding the content of MARs in respect of social media records. While the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.3453 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1‘:This document is an email chain between AGD and the CDPP where the CDPP has sought advice from AGD on admission of evidence. the FEA Communication Material that would disclose the content of a MAR is redacted, as well as material that would disclose or could be used to infer the content of a confidential communication with the United States. S Chidgey Affidavit [62] – [64]: 62. This document is an email chain between AGD and the CDPP where the CDPP has sought advice from AGD on a legal question relating to evidence law. 63. Highlighted portions of this document are sensitive because they would disclose the content of a MAR, as well as material that would disclose or could be used to infer the content of a confidential communication with the US. 64. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong: the redacted information would disclose or could be used to infer the content of a confidential communication with the U.S. and / or the content of a MAR The strength of the public interest in disclosure: Weak: While the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence Which of the above public interests prevails: The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.3089 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1‘:This document is an email chain between AGD and the CDPP about interjurisdictional a correspondence received from the United States DoJ about Communication assistance provided under the MAR and discussing Australia's proposed response to that correspondence. This document is sensitive because it would disclose the content of confidential communications with United States officials or could be used to infer the content of confidential communications with United States officials. S Chidgey Affidavit: 49. This document is an email chain between AGD and the CDPP about correspondence received from the US DoJ regarding previous assistance provided under the MAR and discussing Australia's proposed response to that correspondence. 50. The highlighted portions of this document are sensitive because they would disclose the content of confidential communications with US officials, or could be used to infer the content of planned confidential communications with US officials. Specifically, the communications reveal information provided confidentially by the US about the processes it adopts when responding to MARs, a matter which falls directly within the letter of Mr Ary. 51. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong, the redacted information would reveal sensitive communications with the U.S. regarding assistance provided under a MAR, as described by Harmer and Chidgey The strength of the public interest in disclosure: Weak, the information mainly relates to procedural and/or logistical issues about litigation processes or intended steps with limited forensic value to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.3101 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1‘:This document is an email chain between AGD and the CDPP about assistance provided under the MAR and discussing Australia's proposed response to that correspondence. This document is sensitive because it would disclose the content of confidential communications with United States officials or could be used to infer the content of confidential communications with United States officials. S Chidgey Affidavit [52] – [54]: 52. This document is an email chain between AGD and the CDPP about correspondence received from the US DoJ regarding assistance provided under the MAR, and discussing the content of an email that the CDPP proposed to send to the defence about that matter. 53. The highlighted portions of this document are sensitive because they would disclose the content of confidential communications with US officials, or could be used to infer the content of confidential communications with US officials. Sections of this email that ultimately formed part of the correspondence to the defence are not subject to a claim. 54. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Moderate to strong, because the redacted information would disclose or could be used to infer confidential communications with U.S. officials communications. The strength of the public interest in disclosure: Weak to Moderate, because the redacted information mainly relates to procedural and/or logistical issues with limited forensic value to the Defence, particularly when viewed in light of information already know to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of limited forensic value to the Defence. |
| AGD.0001.0001.3442 & the duplicate at AGD.0001.0001.3114 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication; Content of Mutual Assistance Request A Harmer Exhibit ‘AH-1‘:This document is an email chain between the CDPP and AGD discussing the drafting of a prospective MAR made to the United States. reveal Material that would the content of the MAR has been redacted, as well as material that could be used to infer the content of confidential communications with United States Officials. S Chidgey Affidavit [59] – [61]: 59. This document is an email chain between the CDPP and AGD discussing the drafting of a prospective MAR made to the US. 60. AG0.0001.0001.3114 forms an earlier email in this email chain, and so many of the claims made over it are for the same reasons discussed at paragraphs 56 to 58 above. However, the highlighting in this document also covers information that reveals the content of planned confidential interjurisdictional communications that were contemplated by Australian authorities. 61. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong, the redacted information relates to a potential future MAR. The strength of the public interest in disclosure: Weak, the information mainly relates to logistical issues which have limited forensic value to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of very limited forensic value to the Defence. |
| AGD.0001.0001.0406 | Scope of PII claim: Part Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1‘:This document is an email chain between the CDPP, AFP and AGD discussing matters to be discussed in a teleconference with the United States DoJ. This document is sensitive because it would disclose the content of confidential communications with United States officials. S Chidgey Affidavit: 36. This document is an email chain between the CDPP, AFP and AGD discussing matters to be raised in a teleconference with the US Department of Justice (DoJ), and discussing the content of potential future requests for assistance. 37. The highlighted portions of this document are sensitive because they would either reveal the content of previous confidential communications with US officials, or reveal the content of planned confidential communications with the US, including planned requests for assistance through a possible future MAR. 38. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong, the redacted information is sensitive because it would disclose the would either reveal the content of previous confidential communications with U.S. officials, or reveal the content of planned confidential communications with the U.S., including planned requests for assistance through a possible future MAR. The strength of the public interest in disclosure: Weak, the information mainly relates to logistical issues which have limited forensic value to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of this claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of very limited forensic value to the Defence. |
| AGD.0001.0002.7776 | Scope of PII claim: Full Class: Confidential Interjurisdictional Communication A Harmer Exhibit ‘AH-1‘:This document is an email chain between the United States DoJ and AGD about assistance previously provided under a MAR. This document is sensitive because it would disclose the content of confidential communications with United States officials. S Chidgey Affidavit: 36. This document is an email chain between the CDPP, AFP and AGD discussing matters to be raised in a teleconference with the US Department of Justice (DoJ), and discussing the content of potential future requests for assistance. 37. The highlighted portions of this document are sensitive because they would either reveal the content of previous confidential communications with US officials, or reveal the content of planned confidential communications with the US, including planned requests for assistance through a possible future MAR. 38. I consider that disclosure of the highlighted information would be likely to adversely affect Australia's mutual assistance relationship with the US and have an adverse impact upon the willingness of US officials to provide information. | The strength of the public interest in non-disclosure: Strong, the document is sensitive because it would disclose the would either reveal the content of previous confidential communications with US officials, or reveal the content of planned confidential communications with the U.S., including planned requests for assistance through a possible future MAR. The strength of the public interest in disclosure: Weak, insofar as the information largely relates to logistical issues and so is of limited forensic value to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and Chidgey, and because this document would be of very limited forensic value to the Defence. |
| AFP.0001.0010.0501 (in particular page AGD.0001.0010.0504) | Scope of PII claim: Full Class: Confidential Interjurisdictional Communication; Mutual Assistance Request A Harmer Exhibit ‘AH-2’: This document is an email chain containing emails exchanged between the AFP, AGD and the CDPP and the United States DoJ about the protection of sensitive information and assistance to be provided under a MAR. This document is sensitive because it would disclose the content of confidential interjurisdictional communications between Australian and United States officials. Disclosure would likely adversely affect Australia's mutual assistance relationship with the United States, and would likely have an adverse impact upon the willingness of United States officials to provide information. This document is also sensitive because it would disclose the contents of a MAR to the United States. The contents of mutual assistance requests are subject to an expectation of confidentiality. Disclosure is also likely to result in harm to Australia's mutual assistance relationship with the United States. I am informed by AGD's legal representatives that the AFP also advance a full LPP claim over this document. | The strength of the public interest in non-disclosure: Strong; the document contains communications with the US about the contents of a MAR and the response to a MAR The strength of the public interest in disclosure: Weak to Moderate: while the information is relevant to some of the subpoena purpose, it is largely procedural and is of limited forensic value when viewed in the context of information already provided to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because this document would be of limited forensic value to the Defence. |
| AFP.0001.0013.0029 (in particular page AFP.0001.0013.0031 and AFP.0001.0013.0032) | One of the documents identified in Finnegan Lowe’s email to the Court dated 18 June 2020 as follows: “In the process of preparing documents for the Court’s inspection, the AFP brought to our attention 3 additional documents (belonging to the AFP) that they considered contained information that would be subject to AGD’s class PII claim. The digital identifiers given to the documents are as follows: · AFP.0001.0010.0001 · AFP.0001.0010.0514 · AFP.0001.0013.0029 We subsequently received instructions that AGD does advance a PII claim over those documents. Those documents were provided to the Court for inspection with the relevant PII claims highlighted. Our instructions are that the matters described in the open affidavit of Anna Harmer dated 16 January 2020 and the confidential affidavit of Anna Harmer dated 22 January 2020 apply equally to the PII claims advanced by AGD over those 3 additional documents. As such, we request that the Court consider those documents in light of the evidence already filed by AGD in these proceedings. We have written to the other parties to the proceeding, who have indicated that they do not oppose the 3 documents being considered in the light of the affidavits already filed. The parties have also given their consent to us sending this email to the Court.” Scope: Part Class (per highlighting): Mutual Assistance Request | The strength of the public interest in non-disclosure: Strong. The document relates directly to the content of a MAR and to the content of discussions with the U.S. authorities about the MAR. The strength of the public interest in disclosure: Weak to Moderate: while the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence and because it is largely logistical. Which of the above public interests prevails? |
| AFP.0001.0010.0001 (in particular AFP.0001.0010.0051) | One of the documents identified in Finnegan Lowe’s email to the Court dated 18 June 2020 as follows: “In the process of preparing documents for the Court’s inspection, the AFP brought to our attention 3 additional documents (belonging to the AFP) that they considered contained information that would be subject to AGD’s class PII claim. The digital identifiers given to the documents are as follows: · AFP.0001.0010.0001 · AFP.0001.0010.0514 · AFP.0001.0013.0029 We subsequently received instructions that AGD does advance a PII claim over those documents. Those documents were provided to the Court for inspection with the relevant PII claims highlighted. Our instructions are that the matters described in the open affidavit of Anna Harmer dated 16 January 2020 and the confidential affidavit of Anna Harmer dated 22 January 2020 apply equally to the PII claims advanced by AGD over those 3 additional documents. As such, we request that the Court consider those documents in light of the evidence already filed by AGD in these proceedings. We have written to the other parties to the proceeding, who have indicated that they do not oppose the 3 documents being considered in the light of the affidavits already filed. The parties have also given their consent to us sending this email to the Court.” Scope: Part Class (per highlighting): Interjurisdictional Communications; Mutual Assistance Request | The strength of the public interest in non-disclosure: Strong. The redacted parts information relates to the response to a MAR and logistical issues in preparation for court proceedings. The strength of the public interest in disclosure: Weak, insofar as the information largely relates to procedural and logistical issues and is of limited forensic value to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails for all aspects of the claims in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because the information is of very limited forensic value to the Defence, especially in light of what is already provided to Defence. |
| AFP.0001.0010.0477 | Scope: Part (must be interpreted in light of revised claims provided in relation to overlapping documents.) Class: Confidential Interjurisdictional Communication A Harmer Supplementary Affidavit Exhibit ‘AH-7’: This document is an email chain between AGD, AFP and the CDPP on 24 November 2017 discussing previous MAR Communication correspondences with the United States DoJ about the protection of sensitive information and discussing Australia's proposed response to that correspondence. This document is sensitive because it would disclose the content of confidential interjurisdictional communications between Australian and United States officials; as well as the deliberation of domestic agencies about prospective confidential communications with the United States. Disclosure would likely adversely affect Australia's mutual assistance relationship with the United States, and would likely have an adverse impact upon the willingness of United States officials to provide information. I am informed by AGD's legal representatives that the AFP also advances a full LPP claim over this document. | The strength of the public interest in non-disclosure: Moderate to Strong, because the redacted information would reveal sensitive communications as explained by Harmer. Also there is information from which the content of a MAR can be inferred and sensitive communications with the U.S., not all of which are directly related to this case. The strength of the public interest in disclosure: Weak to Moderate, whilst the Defence might be assisted by the information insofar as the information answers some of their subpoena purposes, the forensic value of the document itself is not strong, because the it does not significantly add to information already provided to Defence. Also much of the information is procedural and/or is not related to this case. Which of the above public interests prevails The public interest in non-disclosure prevails in relation to all aspects of the claim in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because the information is of limited forensic value to the Defence, especially in light of what is already provided to Defence. |
| AFP 0001.0010.0437 and the overlapping document at AFP.0001.0001.0168 | Scope: Full Class: Confidential Interjurisdictional Communication; Mutual Assistance Request A Harmer Affidavit Exhibit ‘AH-2’: This document is an email chain between the AFP, AGD and the CDPP discussing confidential correspondence received from the United States DoJ about assistance provided under a MAR, and Australia's possible response to that correspondence. This document is sensitive because it would disclose the content of confidential interjurisdictional communications between Australian and United States officials. Disclosure would likely adversely affect Australia's mutual assistance relationship with the United States, and would likely have an adverse impact upon the willingness of United States officials to provide information. This document is also sensitive because it would disclose or could be used to infer the contents of a MAR to the United States. The contents of mutual assistance requests are subject to an expectation of confidentiality. Disclosure is also likely to result in harm to Australia's mutual assistance relationship with the United States. I am informed by AGD's legal representatives that the AFP also advance a full LPP claim over this document. | The strength of the public interest in non-disclosure: Strong: the document relates to the content of a MAR and to the content of discussions with the U.S. authorities about mutual assistance processes. The strength of the public interest in disclosure Weak to Moderate: while the information is relevant to some of the subpoena purpose, it is largely procedural and so it is of limited forensic value when viewed in the context of information already provided to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because the information is of very limited forensic value to the Defence, especially in light of what is already provided to Defence. |
| AFP.0001.0010.0514 | One of the documents identified in Finnegan Lowe’s email to the Court dated 18 June 2020 as follows: “In the process of preparing documents for the Court’s inspection, the AFP brought to our attention 3 additional documents (belonging to the AFP) that they considered contained information that would be subject to AGD’s class PII claim. The digital identifiers given to the documents are as follows: · AFP.0001.0010.0001 · AFP.0001.0010.0514 · AFP.0001.0013.0029 We subsequently received instructions that AGD does advance a PII claim over those documents. Those documents were provided to the Court for inspection with the relevant PII claims highlighted. Our instructions are that the matters described in the open affidavit of Anna Harmer dated 16 January 2020 and the confidential affidavit of Anna Harmer dated 22 January 2020 apply equally to the PII claims advanced by AGD over those 3 additional documents. As such, we request that the Court consider those documents in light of the evidence already filed by AGD in these proceedings. We have written to the other parties to the proceeding, who have indicated that they do not oppose the 3 documents being considered in the light of the affidavits already filed. The parties have also given their consent to us sending this email to the Court.” Scope: Part Class (per highlighting): Mutual Assistance Request | The strength of the public interest in non-disclosure: Strong: the redacted parts of the document relate to the content of a MAR and to the content of discussions with the U.S. authorities about mutual assistance processes. The strength of the public interest in disclosure Weak to Moderate: while the information is relevant to some of the subpoena purpose, it is of limited forensic value when viewed in the context of information already provided to the Defence. Which of the above public interests prevails? The public interest in non-disclosure prevails in relation to all aspects of the claim, in light of the likelihood and gravity of the risk posed by disclosure as explained by Harmer, and because the information is of limited forensic value to the Defence. |
Annexure B
Categories of documents sought in the Defence Subpoenas
The Defence Subpoenas called for the production of complete and unredacted copies of documents containing information relating to or created in connection with:
1. Communications between any US authority or representative thereof, and any Australian authority or representative thereof[255] regarding a potential investigation, an investigation and/or the prosecution of [AB];
[255]The terms ‘U.S authority’ and ‘Australian authority’ are defined in the Defence subpoenas.
2. The commencement or existence of a US based investigation where [AB] was a subject;
3. The commencement or existence of an Australian based investigation where [AB] was a subject;
4. The process by which witnesses would or would not be made available to Australian authorities to assist in any investigation or prosecution;
5. The process by which Mutual Assistance Requests would be received and dealt with by US authorities:
a. In relation to the provision of [*Redacted] as witnesses;
b. In relation to the provision of social media records;
c. [*Redacted];
d. In relation to any other Mutual Assistance Request made by Australian authorities to US authorities;
6. The content of any Mutual Assistance Requests by Australian authorities to US authorities;
7. [*Redacted];
8. [*Redacted];
9. [*Redacted];
10.[*Redacted];
11. Any limitations imposed by US authorities on access to other potential witnesses, including but not limited to [*Redacted];
12. Any limitations imposed by US authorities on access to social media records sought by Australian authorities;
13.Any acceptance of, consent or agreement to, or offers to facilitate made by Australian authorities, regarding any limitations imposed by US authorities on the provision of information or documents concerning the witnesses [*Redacted], or potential witnesses [*Redacted], or social media records;
14. Any communications between US and Australian authorities in relation to the [*Redacted];
15. The attendance by AFP officers Tim Hayward and William O’Neale (and any other AFP officer or representative of an Australian authority) upon representatives of the FBI in the US in July 2015;
16. The attendance by AFP officer William O’Neale (and any other AFP officer or other representative of an Australian authority) upon [*Redacted] in March 2016, for the purposes of preparing the statement of [Witness A];
17. The attendance by any other representative of an Australian authority upon US authorities in the USA, or of representatives of a US authority upon Australian authorities in Australia, in connection with the investigation and or prosecution of [AB] by either US or Australian authorities;
18. The provision of letters by the US Department of Justice {*Redacted];
19. Any enquiry made in September or October 2019 as to whether social media records had been “vetted” (or other words to that effect) by US authorities;
20. Any enquiry made in October 2019 as to the practices of US authorities in relation to the provision of affidavits to Australian authorities under MAR;
21. Communications between Australian authorities including but not limited to the Commonwealth Director of Public Prosecutions, the Australian Federal Police, the Federal Attorney-General’s Department, and any other Australian investigative or intelligence agency, about any of the matters described at [1] — [20] above.
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