Director of Public Prosecutions (Cth) v Brookman (Ruling No 4 AFP Pii)

[2020] VSC 818

IN THE SUPREME COURT OF VICTORIA Redacted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0100

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
ADAM MATHEW BROOKMAN	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATES 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, 2 October 2020, 12 November 2020, 27 November 2020
DATE OF RULING:	30 November 2020
CASE MAY BE CITED AS:	DPP (Cth) v Brookman (Ruling No 4 – AFP PII)
MEDIUM NEUTRAL CITATION:	[2020] VSC 818

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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 and Mr J Davidson	Australian Government Solicitor

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

AFP’s PII claims............................................................................................................................. 1

Inadvertently disclosed documents........................................................................................... 2

Further queries of the parties...................................................................................................... 3

Material included in earlier briefs of evidence......................................................................... 4

Proposal for a confidential mention........................................................................................... 5

Further submissions sought........................................................................................................ 5

Matters withdrawn from PII determination............................................................................. 7

Material filed by the AFP in support of its claims.................................................................... 10

Expertise and experience of A/Comm Lee and D/Supt Moger.......................................... 13

Likelihood and gravity of risks that would arise from disclosure...................................... 14

The AFP’s PII categories/grounds........................................................................................... 16

Category A claims: law enforcement methodology that is not publicly known..... 16

Category B claims: National security............................................................................. 19

Category C claims: Safety and welfare of witnesses.................................................... 20

Category D claims: AFP’s relationship with a foreign partner agency (primarily the FBI).................................................................................................................................. 22

Police-to-police information sharing................................................................. 22

Other interactions with the FBI.......................................................................... 24

Other category D claims...................................................................................... 25

Category E claims: Information from other domestic agencies.................................. 27

Category F claims: Current or future investigations or prosecutions....................... 28

Category G claims: Information, the disclosure of which could adversely affect the security of Commonwealth personnel.............................................................................. 29

Category I claims: Statutory restrictions........................................................................ 29

Categories L and M........................................................................................................... 30

General submissions................................................................................................................... 30

Defence submissions....................................................................................................................... 31

Submissions in relation to the AFP’s ‘Category D claims’.................................................... 31

Social media access..................................................................................................................... 32

AFP knowledge regarding Witness A’s identity in July 2015.............................................. 32

New approach regarding F/A O’Neale’s notes..................................................................... 33

[*Redacted]................................................................................................................................... 34

New inspection checklist........................................................................................................... 34

Analysis.............................................................................................................................................. 36

General comments about the Court’s ultimate decision and the balancing exercise 37

Defence’s concessions....................................................................................................... 39

Information already available to the Defence............................................................... 40

Considerations under s 130(5) of the EA........................................................................ 41

Decision........................................................................................................................................ 43

Majority of the AFP’s PII claims...................................................................................... 43

11 closely considered documents.................................................................................... 44

HER HONOUR:

Introduction

1. I refer to the Ruling in relation to the AGD’s PII claims in this matter (‘AGD PII Ruling’)[1] which sets out the relevant background information to this Ruling.[2] Both Rulings should be read together. The AFP’s investigation of AB was called ‘Operation Hawarden-Belvoir’, and it generated the documents the subject of the AFP’s PII claims.

   [1]DPP (Cth) v Brookman (Ruling No 3) dated 18 September 2020 (‘AGD PII Ruling’)[2020] VSC 819.

   [2]AGD Ruling.

AFP’s PII claims

1. On 18 September 2020, the Court notified the parties of its decision to uphold the AGD’s PII claims.[3] At that time, the Court requested that the AFP provide its documents to the Court for inspection, as well as further submissions in support of its PII claims. This approach was in keeping with the AGD and AFP’s suggestion that the AGD’s PII claims be determined first, followed by those of the AFP. The Defence did not object to this sequence of events. It should be noted that the AFP did not object to the Court inspecting the AFP’s documents. As is discussed in the AGD PII ruling,  while this issue was not argued afresh in relation to the AFP’s documents, I was satisfied that inspection was necessary in this case.[4] 

   [3]Given the overlap between several of the AGD and AFP’s PII claims and documents, my decision on the AGD’s PII claims was made subject to revisions arising out of my inspection of the AFP PII claims and documents.

   [4]Having regard to the principles mentioned in Alister v R (1983) 154 CLR 404; (1983) 50 ALR 41, 46, regarding inspection of documents in criminal proceedings;

1. Initially, the AFP submitted that they had not identified all of their PII claims, where such claims were subsumed by a claim of client legal/legal professional privilege (‘LPP’).[5] By email on 22 September 2020, the Court advised the parties that it would determine the AFP’s PII claims first, and then proceed to the outstanding LPP claims made by the AFP, the AGD, and the CDPP. For that reason, the Court requested that the AFP identify all of its claims within the documents, regardless of whether they overlapped with other claims.[6] The parties did not object to this approach.

   [5]AFP emails of 19 August 2020 and 21 September 2020.

   [6]Court email of 22 September 2020.

1. On 25 September 2020, the AFP filed submissions in support of its PII claims. On 30 September 2020, the AFP delivered four folders of documents to the Court.[7] Together with these documents, the AFP delivered schedules setting out the details of the claims. These schedules were updated versions of the schedules annexed to the affidavit of Assistant Commissioner Scott Lee (‘A/Comm Lee’), filed earlier in the proceeding, as discussed below.[8] Annotated versions of certain documents were also provided to assist in identifying the PII claims.[9]

   [7]Comprising 102 documents.

   [8]See AFP Submissions on Public Interest Immunity dated 25 September 2020 (‘AFP Submissions’) at [17].

   [9]Ibid.

1. The AFP made some claims over documents belonging to the AGD. The AFP submitted that it was unnecessary for the Court to determine those claims wholly subsumed within AGD PII claims that had already been upheld by the Court.[10] Nevertheless, those documents were again provided to the Court for inspection within the AFP’s documents, with the relevant claims marked up as ‘not in dispute’, so the Court would be able to peruse that material within the wider context of the AFP documents.

   [10]AFP Submissions, [12].

Inadvertently disclosed documents

1. The AFP advised that the two documents previously inadvertently disclosed to the Defence (and subject to earlier Court orders) now formed part of the AFP PII documents, and that part PII claims were asserted over them. They submitted that the PII claims over those documents could be resolved with the other outstanding AFP PII claims. The Defence ultimately agreed with this.[11] The AFP submitted that if the PII claims were upheld, the Court’s interim orders made on 8 November 2019 in relation to those documents ought to be confirmed on a final basis.[12]

   [11]Transcript 27 November 2020, 12 (Mr Morrissey SC).

   [12]Such an Order has been made, in accordance with this decision.

1. The Court did not examine the contents of the inadvertently disclosed documents, but since they formed part of the disputed AFP PII claims it was not necessary to revisit them other than noting that the Court has custody of those documents in a sealed envelope.

Further queries of the parties

1. After receiving the AFP’s documents, the Court called a Mention on 2 October 2020 so that the AFP could clarify some of its annotations within the PII documents.[13]

   [13]The various annotations, which included typed notes in the margins to explain the bases of PII claims, and the coloured highlighting throughout the documents delineating the parts of the documents over which PII was claimed, were somewhat unclear to the Court upon its preliminary review.

1. The Defence, AFP, and the CDPP attended the Mention,[14] and Counsel for the AFP provided some clarification as to the AFP’s annotations and highlighting. Further, the Defence confirmed that it no longer required the Court to review and determine claims over information relating to AB’s ‘repatriation from Turkey to Melbourne’. The Court has taken this Defence concession into account in inspecting the AFP’s documents that deal with this issue.

   [14]The AGD were excused from attending.

1. During the Mention, Counsel for the Defence confirmed that if the Court should have any further queries about the annotation and interpretation of the AFP’s PII claims, there was no objection to the Court contacting the AFP’s solicitor directly to seek clarification. The Court made several further enquiries of that kind in October 2020.[15] As a courtesy, all parties were notified that enquiries were being made, but the details of the enquiries were forwarded to the AFP’s solicitors only.

   [15]Enquiries were made on 16 and 21 October 2020, to which the AFP responded on 22 and 28 October 2020.

1. The Court requested a soft copy of the documents, because the overwriting of certain claims made it more difficult to read the documents. The AFP agreed to provide the Court with a copy of the majority of its PII documents[16] on a secure computer, to enable the Court to review them electronically. That computer was delivered to the Court on 9 October 2020.

   [16]With the exception of certain classified documents which could only be provided in hard copies.

Material included in earlier briefs of evidence

1. On 21 October 2020, the Court requested that the parties consider whether a copy of the materials provided to the Defence in the early services of the brief of evidence[17] could be provided to the Court, to assist in the determination of the AFP PII claims. The Defence have consistently complained about the extent of disclosure by the CDPP and the Informant. Accordingly, during inspection of the AGD documents, the Court requested an agreed statement of facts from the parties regarding previous disclosure. The Agreed Statement of Facts[18] (‘Agreed Statement of Facts’) did not explain the precise contents of earlier services of material on the Defence, hence the Court’s request for a copy of these materials to assist with determining the AFP PII claims.

   [17]Materials obtained by the Crown on a ‘police-to-police’ basis.

   [18]Filed 11 September 2020.

1. Ultimately, the Court received a copy of that material on USB from the CDPP on 26 October 2020. The USB included a statement of William O’Neale (F/A O’Neale) dated 29 September 2015 (with associated social media exhibits and Witness A’s [*Redacted]). The Court was told that the USB material had earlier been provided to the AFP on a police-to-police basis and was provided to Defence as early as the first service of the brief in October 2015.[19] That material remained on the brief in the second and third services, the latter of which was served on 11 March 2016. The reference at [1] in the Agreed Statement of Facts is a reference to this material. The social media records obtained via MAR were initially provided (in uncertified form) to the Defence on 21 July 2016 (and later again, in certified form, in September 2016).

   [19]The police-to-police material was provided to the Defence by way of the inclusion of the Informant, William O’Neale’s statement dated 29 September 2015 in the brief of evidence and his statement attached: – Screen shots from Iron Clad Facebook Profile 5-16-14’;– Screen shots from Iron Clad Facebook Profile 4-25-14’; – Pledge of loyalty to ISIL; ‘58031 20150929 ;– ‘Facebook communications between Abu Sufyaan and [*Redacted]’; ‘58032 20150929 ; – ‘Facebook communications between Abu Sufyaan and [*Redacted]’; ‘58040; Correspondence from United States Authorities’; ‘58046 ;  ‘Attachments K-Q of Interview and witness statement of Witness A on 25 August 2015’; ‘58047 ‘; Attachments A-J of Interview and witness statement of Witness A on 25 August 2015’.

1. In the fourth service of the brief of evidence (on 27 September 2016), the Defence were advised that the statement of F/A O’Neale dated 29 September 2015 (with attached social media exhibits and Witness A’s [*Redacted]) had been removed from the brief, as the certified version of that material had since been provided and included instead.

Proposal for a confidential mention

1. In late October 2020, the parties were notified via email that the Court planned to hold a confidential mention with only the AFP present, to seek additional submissions and/or evidence on some of their PII claims.

1. The Defence filed submissions objecting to this process and, ultimately, the Court decided not to hold a confidential mention, but instead sought additional evidence/submissions from the AFP in relation to specific documents containing PII claims (and from the AGD in relation to one document), as set out below.

Further submissions sought

1. 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.

1. On 29 October 2020, a list of eleven specified documents was emailed to the parties. The Court requested that the AFP closely consider each of the identified claims within the documents. One of the selected claims overlapped with an AGD claim which the Court had earlier indicated it would uphold, although this was subject to possible reconsideration when viewing the AFP’s documents. Given the overlap, the Court invited the AGD to also file further submissions/evidence in support of their claim.[20]

   [20]The AGD filed further material on 4 November 2020. That material is considered in the AGD PII Ruling.

1. On 2 November 2020, the Court notified the AFP that a page from its PII documents, over which a part PII claim was made, appeared to be missing from the documents provided.[21] A copy of the missing page was delivered to the Court later that day.

   [21]Being page 0082 of AFP.0001.0007.0010.

1. On 4 November 2020, the AFP filed some additional evidence, in support of one of its claims identified by the Court on 29 October 2020 regarding claims still under consideration. The AFP’s open affidavit filed that day indicated that further consultations were occurring with the FBI regarding the remaining claims.[22] The AFP also communicated with the Court and the parties via email around this time, indicating that more time was needed to conduct those consultations, indicating they could ultimately result in the AFP reducing some of its claims or abandoning some altogether. In light of that indication, the Court allowed the AFP time to conclude those consultations and file its further materials. A short time after that, the AFP provided an update to the Court and the parties and indicated it could be several weeks before the consultations with the FBI were concluded. This prompted the Defence to request that a Mention be listed. That Mention was held on 12 November 2020 and the Defence submitted that the further time granted to the AFP was not likely to be fruitful and that further time ought not be permitted. The Defence argued for an imminent deadline to be imposed[23] on the AFP for the filing of any further materials. Ultimately, after concluding consultations with the FBI, the AFP filed its further materials on 25 November 2020.

   [22]Affidavit of Detective Superintendent Nicholas Moger (‘D/Supt Moger’) dated 4 November 2020.

   [23]Being the following Monday.

1. Detective Superintendent Moger (‘D/Supt Moger’), in his open affidavit of 25 November 2020, explains, in general terms, that since the Court’s request of 29 October 2020, the AFP had corresponded with the FBI via email requesting that the FBI review the relevant disputed documents/information, and contextual information provided by the AFP to assist, and advise whether the material ‘still needed to be treated as confidential’.[24] The FBI ultimately responded by identifying redactions that it considered were no longer necessary from their standpoint,[25] redactions that were considered necessary from their standpoint, and one additional piece of information that it considered ought to be redacted.[26]

   [24]D/Supt Moger Affidavit dated 25 November 2020, [8].

   [25]D/Supt Moger confirmed that information had since been disclosed to Defence as it was no longer subject to PII claims, save for the information subject to an overlapping AGD PII claim. 

   [26]That piece of information was already subject to an AGD PII claim that had previously been upheld, but the Court nevertheless reviewed the AFP’s revised PII claim and determined it ought to be upheld.

1. A further Mention was held on 27 November 2020 so that the Defence could provide a response to the additional evidence and submissions filed by the AFP. Submissions were made orally by the Defence with a further oral reply by counsel for the AFP. The Court then adjourned and indicated it would provide a determination the following week. These reasons relate to that determination.

Matters withdrawn from PII determination

1. Since the AFP filed its initial evidence in support of its PII claims in February 2020, there has been a slight narrowing of the range of documents in dispute between the AFP and the Defence.

1. PII claims over the range of information/documents outlined below are no longer pressed by the Defence, except as otherwise stated:

(a)        security and logistical arrangements for [*Redacted],[27] except in the circumstances described by the Defence in their letter annexed to the Affidavit of A/Comm Lee, which states:

[27]AFP submissions of 25 September 2020, [14.1].

[W]e confirm that we do not seek to challenge those PII claims except and to the extent that the information held relates to the following:

1. Any guarantee, promise, undertaking or agreement that the witness [Witness A] would not be at risk of any criminal charges [*Redacted];

2. Any guarantee, promise, undertaking or agreement that [*Redacted] would not be made available to defence as a potential witness, or that [*Redacted] presence [*Redacted] would not be made known to defence, or in relation to any measures taken to obscure his presence in Australia from defence;

3. Any information concerning the extent to which [Witness A] was [*Redacted] during the period [Witness A] was present {*Redacted].[28]

[28]Defence Outline of Submissions re PII/s130EA Claims by AFP dated 6 October 2020 (‘Defence Submissions’), [20].

(b)       passport biodata of Australian officials, U.S. officials, and Witness A;[29]

[29]AFP Submissions, [14.2].

(c)        claims regarding mutual assistance requests:[30]

[30]AFP Submissions, [14.3].

(i)         connected to the Clarissa Ward interview;

(ii)       to Norway for the A-31 materials; and

(iii)      for social media accounts other than [*Redacted]. However, in the Defence’s communications with the AFP in February and March 2020, the Defence clarified that:

[*Redacted].

(iv)      to the U.S. for assistance with the translation of Chechen language material in A-31 (unless the document suggests the date on which the U.S. became aware of A-31, other than through communications with Australian authorities);

(d)       phone numbers and other contact details not publicly available;[31]

[31]AFP Submissions, [14.4].

(e)        visas, flights, or other travel arrangements, or the reimbursement of travel expenses;[32]

[32]AFP Submissions, [14.5].

(f)        material that is not relevant, including information concerning unrelated investigations (save where the target was in communication with Witness A or [*Redacted]);[33]

[33]AFP Submissions, [14.6].

(g)       personal information (e.g., date of birth or vehicle registration details);[34]

[34]AFP Submissions, [14.7].

(h)       the accused’s repatriation/return from Turkey to Melbourne,[35] other than any material concerning inter-agency meetings regarding AB after he contacted the Consulate-General, should that material concern the forensic purposes stated in relation to the evidence of Witness A or the availability of evidence from U.S. authorities, in which case, that material is sought;[36]

[35]See Affidavit of Assistant Commissioner Scott Lee dated 21 February 2020 (A/Comm Lee Affidavit), [61.2]-[61.3].

[36]Defence Submissions, [18].

(i) Australia’s interactions with Turkish authorities in relation to the matters described in A/Comm Lee’s affidavit,[37] and references to possible cooperation with the Turkish National Police in order to locate the accused;[38]

[37]A/Comm Lee Affidavit, [61.2]-[61.3]; AFP submissions, [14.8].

[38]Defence Submissions, [28(d)].

(j)         search warrant methodology;[39]

[39]A/Comm Lee Affidavit, [72].

(k)       references to security clearances held by particular members;[40]

[40]Defence Submissions, [19]; A/Comm Lee Affidavit, [80]–[82).

(l)         AUSTRAC information subject to statutory restrictions;[41]

[41]AFP Submissions, [14.12].

(m)      risk assessments performed in relation to AB’s family members;[42]

[42]Defence Submissions, [19]; A/Comm Lee Affidavit, [69].

(n)       claims made on the basis of the safety and welfare of witnesses in relation to enquiries made with ‘Medical Relief for Syria’;[43] or

[43]Defence Submissions, [19]; A/Comm Lee Affidavit, [86]-[87].

(o)        the claim described at [100] of A/Comm Lee’s affidavit[44], being

[44]Defence Submissions, [19].

the PII claim at page 278–79 of the case note entries (AFP.0001.0010.0514). That particular case note entry sets out criminal intelligence about entities linked to an entity referred to in a document that was located during the execution of a search warrant. I am informed by D/Sgt Bubb and believe that none of this criminal intelligence otherwise linked back to [AB]. It is, however; of relevance to other investigations and potential POIs. For this reason, it would in my view be contrary to the public interest to disclose it.

(p)       operational resourcing considerations and decisions within the Melbourne JCTT;[45]

[45]Defence Submissions, [28a].

(q)       the operational name of an ongoing foreign investigation;[46]

(r)        security considerations for interviewing AB at the Melbourne Assessment Prison;[47] and

(s)        identifiers for classified documents.[48]

[46]Defence Submissions, [28b].

[47]Defence Submissions, [28c].

[48]Defence Submissions, [28e].

1. Because the Defence no longer presses the Court to determine PII claims over the above material, some of the AFP’s evidence in support of those claims (filed before the further narrowing)[49] is now redundant. However, for completeness, all of the categories and bases for the PII claims outlined in the AFP’s evidence have been included in this ruling.

   [49]AFP Submissions, [14].

Material filed by the AFP in support of its claims

1. The AFP filed or tendered, in support of its PII claims:

(a)        an open affidavit of A/Comm Lee  dated 21 February 2020 (this document also touched on LPP claims);[50]

[50]Attaching several exhibits.

(b)       a confidential affidavit of A/Comm Lee dated 24 February 2020;

(c)        an open affidavit of D/Supt Moger, dated 5 October 2020;

(d)       a confidential affidavit of D/Supt Moger, dated 5 October 2020;

(e)        an open affidavit of D/Supt Moger, dated 4 November 2020;

(f)         a confidential affidavit of D/Supt Moger, dated 4 November 2020;

(g)       a further supplementary open affidavit of D/Supt Moger, dated 25 November 2020;

(h)        a further supplementary confidential affidavit of D/Supt Moger, dated 25 November 2020;

(i)         written submissions on 25 September 2020 (‘AFP Submissions’); and

(j)         written supplementary submissions on PII 25 November 2020 (‘AFP Supplementary Submissions’).

1. The AFP submit that the filing of a confidential affidavit alongside an open affidavit reflects ‘orthodox’ practice and is necessary in the circumstances of this case.[51] The Defence confirm that they have no objection to the filing of confidential affidavits, given that the s 130 EA process permits the admission of ‘secret’ evidence.[52] I have had regard to the Defence submissions as to the limits on the Court’s role in undertaking an inspection of documents for the purposes of determining whether PII should be upheld.[53]

   [51]AFP Submissions, [23].

   [52]Defence Submissions, [7].

   [53]Defence Submissions, [10], citing HT v the Queen [2019] HCA 40, the plurality at [33], see also Nettle and Edelman JJ at [55] and Gordon J at [72]-[74].

1. The filing of the AFP’s affidavit evidence unfolded in the following way:

(a)        The AFP submitted that the affidavits of A/Comm Lee did not address or review all of the AFP’s claims/documents individually for several reasons. These included time constraints; the security classification of the computer used to prepare the affidavit (further explained in A/Comm Lee’s confidential affidavit); and the fact that some claims were subsumed within an AGD PII[54] claim, and the AFP assumed that those prior claims would be upheld.[55]

[54]Or an LPP claim.

[55]AFP Submissions, [20.1.2].

(b)       Further, some documents were identified after A/Comm Lee’s affidavit was prepared;[56] in respect of which, it was submitted that his evidence is ‘in many cases’ still relevant,[57] and it was ‘hoped’ that his evidence would provide sufficient basis for the ‘vast majority’ of the AFP’s claims to be upheld. The AFP offered to submit supplementary material if required. That material was requested, and the D/Supt Moger affidavits were filed in response.

[56]AFP Submissions, [20.3].

[57]Ibid.

(c)        In his 5 October 2020 affidavit, D/Supt Moger explains that A/Comm Lee was not available to swear a further affidavit in this matter as he was on leave.[58] He confirms that he has read the affidavits of A/Comm Lee, and the Court’s correspondence on 28 September 2020 requesting further affidavit material in this matter.[59]

[58]D/Supt Moger Affidavit dated 5 October 2020, [21].

[59]D/Supt Moger Affidavit dated 5 October 2020, [20].

(d)       D/Supt Moger’s October affidavits are in two parts. Part one addresses additional claims that have been made over the documents previously reviewed by A/Comm Lee. The second part identifies some further documents over which the AFP makes PII claims that were not part of the documents reviewed by A/Comm Lee.

(e)        In the first part of his open affidavit, D/Supt Moger explains that ‘almost all’ additional PII claims have been marked in the bundles provided to the Court, with other ‘overlapping’ claims added to ‘preserve the AFP’s working relationship with the FBI’.[60] He clarifies that the additional claims within the documents reviewed by A/Comm Lee did not result in any further information being withheld from the Defence, due to the fact that the claims overlap with an existing LPP or PII claim.[61] D/Supt Moger’s open affidavit adopts A/Comm Lee’s affidavit in support of those claims, and identifies the specific document identification numbers where those claims appear.[62]  

[60]D/Supt Moger Affidavit dated 5 October 2020, [26].

[61]D/Supt Moger Affidavit dated 5 October 2020, [22a].

[62]D/Supt Moger Affidavit dated 5 October 2020, [26].

(f)        In the second part of his open affidavit, D/Supt Moger sets out, in general terms, the bases for claims over documents that had not been previously reviewed by A/Comm Lee. Many of the new claims are no longer in dispute. Much of the detail concerning the new claims that remain in dispute is set out in D/Supt Moger’s confidential affidavit, and so cannot be repeated here.

(g)       In general terms, the additional claims relate to ‘Ground D — Information provided by foreign countries’; specifically, information from the FBI where no disclosure has been authorised.

(h)       Other claims are made under ‘Ground A — Police methodology’ and Ground B (information that ASIO has not approved for release), or concern ASIO contact details that are not publicly available.

(i)         D/Supt Moger’s further Affidavits filed in November 2020 came about as a result of the Court’s email on 29 October 2020 regarding the 11 documents that contained claims still under consideration.

Expertise and experience of A/Comm Lee and D/Supt Moger

1. A/Comm Lee is the Assistant Commissioner of the Counter Terrorism and Special Investigations Command. He reports to the Deputy Commissioner, who reports to the Commissioner.[63] He has held that role since January 2020,[64] and has been a member of the AFP for 35 years. In that time, he has accrued significant domestic and international experience[65] in criminal and intelligence operations relating to terrorism and other fields,[66] and has experience cooperating with domestic and international partner agencies across a number of roles.[67]

   [63]A/Comm Lee Affidavit, [4].

   [64]A/Comm Lee Affidavit, [10].

   [65]A/Comm Lee Affidavit, [5]–[7].

   [66]A/Comm Lee Affidavit, [4].

   [67]A/Comm Lee Affidavit, [4].

1. D/Supt Moger is Superintendent of Counter Terrorism and Special Investigations, Victoria, at the AFP.[68] He has worked for the AFP since 1988 and has held his current role since June 2019.[69] In that role, he has oversight of the Joint Counter-Terrorism Taskforce (‘JCTT’), and the Countering Foreign Interference and Special Investigations Team in Victoria. In respect of the JCTT, D/Supt Moger reports to the Commander responsible for the JCTT in Victoria (and other states), who in turn reports to A/Comm Lee.[70] During his time with the AFP, D/Supt Moger has held various positions relating to transnational crime and counter-terrorism, and worked with a variety of international law enforcement partners, including the FBI.[71] His experience includes commanding operations that resulted in prosecutions where public interest immunity claims were made.[72]

   [68]D/Supt Moger Affidavit dated 5 October 2020, [2].

   [69]D/Supt Moger Affidavit dated 5 October 2020, [4], [15].

   [70]D/Supt Moger Affidavit dated 5 October 2020, [3].

   [71]D/Supt Moger Affidavit dated 5 October 2020, [4]–[17].

   [72]D/Supt Moger Affidavit dated 5 October 2020, [18].

1. The AFP submit that the Court ought to give substantial weight to A/Comm Lee’s evidence, in light of his relevant expertise, experience, and seniority.[73] They also submit that the evidence of A/Comm Lee and D/Supt Moger is cogent.[74]

   [73]AFP Submissions, [8].

   [74]AFP Supplementary Submissions, [13].

1. The Defence have not disputed the expertise or experience of either A/Comm Lee or D/Supt Moger.

Likelihood and gravity of risks that would arise from disclosure

1. A/Comm Lee and D/Supt Moger describe their opinion of the likelihood and gravity of risks that would arise if the information over which PII is claimed were disclosed.

1. Many of the PII claims advanced by the AFP relate police-to-police information sourced from a foreign law enforcement agency (the FBI), and are underpinned by a relationship of trust between each agency that is of critical operational importance to the AFP. The risk of damage to that relationship by breaching confidence regarding information gained through this mutual cooperation is at the forefront of the A/Comm Lee and D/Supt Moger affidavits.

1. A/Comm Lee accepts that the likelihood of certain risks eventuating may not be high, but states that any ‘material increase’ in the likelihood of ‘loss of life, reduced policing effectiveness and national security’ should be ‘avoided wherever possible’.[75]

   [75]AFP Supplementary Submissions, [34].

1. A/Comm Lee also adopts certain paragraphs of the first Harmer open affidavit[76] regarding the risks presented by ‘mosaic analysis’.[77]

   [76]Being paragraphs [53]–[57] of the Harmer Affidavit filed 16 January 2020.

   [77]A/Comm Lee Affidavit, [32].

1. A/Comm Lee considers disclosure could have ‘catastrophic consequences’ for the AFP as it would damage the AFP’s relationship with the FBI (discussed further below), and, accordingly, ‘diminish and slow’ the flow of information from the FBI to the AFP[78]. Referring to the information contained in 11 specific documents identified in the Court’s email of 29 October 2020, D/Supt Moger adds that these risks apply with ‘greater force’ because, even after specific consultation, the FBI has requested that certain information be kept confidential and not disclosed.[79] He says that Court-ordered disclosure of this material would ‘severely diminish’ the FBI’s willingness to share such material in future, and says it is ‘highly likely’ that any disclosure of such information provided in confidence to the AFP would be reported to higher levels within the FBI, causing them to ‘reconsider future information-sharing with the AFP.’[80]

   [78]A/Comm Lee Affidavit, [59].

   [79]D/Supt Moger Affidavit dated 25 November 2020, [17].

   [80]D/Supt Moger Affidavit dated 25 November 2020, [18].

1. In its supplementary submissions filed November 2020, the AFP submit that ‘as a matter of logic’ future cooperation with the FBI would be ‘jeopardised’ if the material supplied to the AFP in confidence were disclosed, particularly given that that very confidentiality has been ‘recently and specifically reiterated.’[81] The AFP says that the Court has ‘cogent’ evidence before it, that there is a risk of a reduced flow of information from the FBI. This information is received often and is needed so that the AFP can detect and disrupt serious crimes, including terrorism. Any increase in such a risk would be contrary to the public interest.[82]

   [81]AFP Supplementary Submissions, [13].

   [82]AFP Supplementary Submissions, [13].

The AFP’s PII categories/grounds

1. The AFP appear to have framed its PII claims as ‘contents’ claims. A/Comm Lee’s affidavit sets out categories of PII claims (also referred to as ‘grounds’ in the AFP’s materials) with an explanation for each category, as detailed below.

1. It should be noted that certain information within the AFP’s documents has been redacted from the Court[83] because it is wholly unrelated to the prosecution of AB. A/Comm Lee explains:

This information is found within the diary notes of police officers who, at relevant times, were also Involved in other operations. The Commissioner objects to the inspection of such material on the basis that it is not relevant to these proceedings and the cost and delay associated with review that material for potential PII and LPP claims is therefore unwarranted.[84]

[83]A/Comm Lee Affidavit, [29].

[84]A/Comm Lee Affidavit, [29].

1. Also redacted are certain contact details that are not otherwise publicly available.[85] A/Comm Lee explains:

The Commissioner objects to the inspection of this material on the basis that it is not relevant to these proceedings and its disclosure would potentially represent an unreasonable invasion of the privacy of the people concerned.[86] 

[85]A/Comm Lee Affidavit, [30].

[86]A/Comm Le Affidavit, [30].

1. The Defence did not take issue with the above-mentioned materials being redacted from the Court and excluded from inspection.

1. The AFP’s submissions, summarised below, address some of the AFP categories and also state that the claims that remain to be ruled upon fall within categories A–F (inclusive). Often the same piece of information is subject to a PII claim involving overlapping categories such as category A and category D.

Category A claims: law enforcement methodology that is not publicly known[87]

[87]Referred to in the AFP’s ‘Ground Codes’ document (‘Ground Codes’) as sensitive police/law enforcement methodology (methods, procedures, technology) That document explains which highlighting colour refers to which category of PII claim. This document was most recently circulated to all parties on 2 October 2020 via email.

1. In his open affidavit, A/Comm Lee explains that this category of claim is advanced in order to ‘preserve secrecy around police methodologies that depend, for their effectiveness, upon persons of interest (POIs) not being aware of the methodology’.[88] Some of the category A claims relate to JCTT methodology which is assisted or enhanced through relationships with partner agencies. Because of the secrecy attaching to policing methodologies the detailed evidence in support of claims in this category is mainly set out in his confidential affidavit. The open affidavit briefly sets out the kinds of information to which this category relates:

   [88]A/Comm Lee Affidavit, [66].

(a)   the various security and logistical issues surrounding AB’s return to Australia in July 2015 and how those issues were resolved (‘return to Australia in July 2015’). Subject to the qualification explained previously, the Court understands that the Defence no longer disputes the claims over this kind of information;[89]

[89]A/Comm Lee Affidavit, [67]. A/Comm Lee refers to AFP.0001.0010.0514, 249, 251, 256–257 as examples of this kind of claim.

(b)  the use of intelligence to better understand a known target (‘target development’);[90]

[90]A/Comm Lee Affidavit, [68]. A/Comm Lee refers to AFP.0001.0010.0514, 12–13 as an example of this kind of claim.

(c)   the content of risk assessments undertaken by the JCTT in relation to AB’s family members before they were approached by the JCTT (‘risk assessments’). As already explained, this material is no longer pressed;[91]

[91]A/Comm Lee Affidavit, [69].

(d)  the contents of and responses to requests made to web-based service providers for basic subscriber records (‘subscriber requests’) including, for example, the account holder’s name, service start date and last seen date, and requests to subscribers to preserve data requested under a MAR (‘preservation requests’).[92] If such information were disclosed, A/Comm Lee deposes that POIs could gain a better understanding of the kinds of information that can or cannot be requested by law enforcement agencies, and could ‘plan their online activities accordingly’;[93]

(e) the execution of search warrants on AB’s family members on 14 April 2015,[94] and a later warrant on AB’s wife,[95] which could expose inter alia operational planning considerations that are not otherwise publicly known (‘methodology regarding search warrants’).[96] The Defence does not now press for access to this kind of information;

(f)    the measures undertaken to ensure the physical security of Witness A while [Witness A] attended Court to give evidence in this proceeding which, if disclosed, would ‘defeat [their] effectiveness’ and could ‘compromise the safety of witnesses in future matters’.[97] Save for the earlier foreshadowed qualification, the Court understands that the Defence no longer presses for access to this kind of information.

[92]A/Comm Lee Affidavit, [70].

[93]A/Comm Lee Affidavit. A/Comm Lee refers to AFP.0001.0010.0514, 35, 40, 44, 89 as examples of this kind of claim.

[94]A/Comm Lee Affidavit, [73]. A/Comm Lee refers to AFP.0001.0010.0514, 121, 122, 124, 126, 129, 136–13 as examples of this kind of claim.

[95]A/Comm Lee Affidavit, [73]. A/Comm Lee refers to AFP.0001.0010.0514, 246 as an example of this kind of claim.

[96]A/Comm Lee Affidavit, [72]–[75].

[97]A/Comm Lee Affidavit, [76]–[78].

1. A/Comm Lee also sets out several other kinds of ‘category A claims’ in his confidential affidavit which cannot be elaborated upon without imperilling the confidentiality at stake.

1. In their written submissions, the AFP submit that this category, also described as ‘police methods of operation’, is a ‘traditional head’ of public interest immunity that is necessary to ensure ‘useful information’ is not disclosed to ‘those who organise criminal activities’, and to ensure police can carry out their work without impediment or frustration.[98] The AFP assert that the authorities confirm that ‘methodology’ extends to technical information about ‘gadgets’ (for example, listening devices), and to tactics and procedures.[99] PII commonly attaches to methodology that is not publicly known, as well as methodologies where ‘facets’ are publicly known.[100] The breadth of the concept of ‘methodologies’ is reflected in ss 130(4)(c) and (f) of the EA.[101] The AFP submits that the foregoing considerations apply with ‘especial force’ to the AFP.

   [98]AFP Submissions [29]-[30] citing Young v Quin (1985) 4 FCR 483, 495; Marinovich v Simpson (1987) 14 ALD 315 (Forster J); Woodroffe v National Crime Authority (1999) 107 A Crim R 384 (FCA), [46] (Mansfield J).

   [99]AFP Submissions, [31].

   [100]AFP Submissions, [32].

   [101]AFP Submissions, [33].

1. The AFP’s investigations ‘typically involve an international dimension and in many cases, sophisticated and well-resourced actors’ so it is important to ensure that they are not ‘hampered’ in discharging their statutory functions, which include providing policing services ‘in relation to the laws of the Commonwealth’ and ‘safeguarding’ Commonwealth interests.[102]

   [102]AFP Submissions, [34].

Category B claims: National security

1. In his open affidavit, A/Comm Lee deposes that most of the AFP’s claims within this category are asserted over information/documents that would disclose sensitive information about the types of security clearances held by certain AFP members. Those clearances are protected under the Commonwealth’s ‘Protective Security Policy Framework’ (‘PSPF’), which also sets out requirements for classification, storage, and access to sensitive information.[103] Disclosure of that information, in particular the information regarding people who hold higher-level clearances, could allow those members to be ‘targeted’ by persons seeking access to secret information. The Defence no longer presses claims of this kind.[104]

   [103]A/Comm Lee Affidavit, [80]–[82].

   [104]Defence Submissions, [19].

1. A/Comm Lee outlines a small number of further category B claims that relate to national security in his confidential affidavit.[105]

   [105]A/Comm Lee Affidavit, [83].

1. In written submissions, the AFP describes this head of PII as ‘particularly strong’, referring to s 130(4)(a) of the EA, as well as paragraph [20] of the AGD’s submissions.[106] The AFP state that many of its PII claims under this category are no longer in dispute (being those relating to the security clearances of certain AFP members) and relies upon A/Comm Lee’s confidential affidavit, more generally, to provide the basis for the few claims in this category that remain in dispute.[107]

Category C claims: Safety and welfare of witnesses[108]

[106]AFP Submissions, [36].

[107]D/Supt Moger’s confidential affidavit also deals with claims in this category.

[108]Referred to in the Ground Codes as “witness or human source information the disclosure of which may endanger the safety of the witness/source.”

1. This category of claims relates to documents and/or information for which disclosure could ‘adversely affect the safety or welfare of a person who is a witness, a potential witness, or a human source’, including members of the public who investigators have approached confidentially in the course of the investigation.[109] This category of claim also extends to maintaining confidentiality over interactions with witnesses.[110]

   [109]A/Comm Lee Affidavit, [84].

   [110]A/Comm Lee Affidavit, [89].

1. A/Comm Lee explains that maintaining confidentiality over this kind of information both preserves the public interest in keeping these people safe, and encourages people to cooperate with law enforcement authorities in future.[111] In particular, he explains that police engage in rapport-building with witnesses and potential witnesses to encourage their cooperation. Confidentiality over these interactions is ‘vital’ to ensuring such cooperation.[112] Similarly, disclosing confidential information could lead to such sources being deterred in future.[113]

   [111]Ibid.

   [112]A/Comm Lee Affidavit, [89].

   [113]Ibid.

1. In his confidential Affidavit, A/Comm Lee particularises individual claims within this category.

1. In his open affidavit, A/Comm Lee explains that one such category C claim relates to the enquiries that F/A O’Neale made of the organisation ‘Medical Relief for Syria’ (‘MRFS’). A/Comm Lee deposes that the documents clearly show that the communications were held in confidence, therefore the claims over those documents are made under category C.[114] The Defence no longer presses for information relating to enquiries made with MRFS.[115]

   [114]A/Comm Lee Affidavit, [87].

   [115]Defence Submissions, [19].

1. In their written submissions, the AFP liken category C claims to ‘informer’ PII claims, which they say the courts have traditionally regarded as ‘strong’,[116] and which have been ‘upheld in a variety of law enforcement, regulatory and revenue contexts’.[117] These claims have a dual basis: the imperative to protect sources from harm; and the imperative to ensure the ‘continued flow’ of valuable information from sources and others who might engage with authorities in future, but who may be deterred by the disclosure of this kind of information.[118] The AFP submits that the strength of these claims is not dependant on factors such as the value of the information provided, the informer’s intention, any demonstrable risk of harm to an informer, or a formal relationship existing between the source and the recipient.[119] The Court need only be satisfied, on the balance of probabilities, that the information was provided in confidence, which they submit may be implied from the circumstances, including the information itself.[120] Further, the AFP submit that:

Even without such a risk there is an imperative, lest wells of information dry up, to demonstrate to future informers that the judicial process gives great weight to assurances of confidentiality.[121]

[116]AFP Submissions [40]; AFP Supplementary Submissions [11].

[117]AFP Submissions, [39].

[118]AFP Submissions, [39].

[119]AFP Submissions, [40], citing Cain v Glass (No 2) (1985) 3 NSWLR 230, 247B-C (McHugh JA); R v Mason (2000) 77 SASR 105, [30]–[31]; Derbas v R (2012) 221 A Crim R 13, [30]; AFP Supplementary Submissions, [10].

[120]AFP Submissions, [40] citing R v Mason (2000) 77 SASR 105, [24], [28]–[31].

[121]AFP Supplementary submissions, [10].

1. In this case, as the AFP submit, the identity of category C individuals is ‘often clear from the surrounding information’; however, this does not necessarily undermine a claim of PII over the information provided.[122] It is, rather, a matter that the Court must weigh in the balancing exercise.[123] Further, the AFP submit that in various cases across the documents, relevant information ‘emerges’ in passing, in the context of the investigation, but does not concern the accused.[124]

Category D claims: AFP’s relationship with a foreign partner agency (primarily the FBI)[125]

[122]AFP Submissions, [42].

[123]AFP Submissions, [41].

[124]AFP Submissions [42].

[125]Referred to in the Ground Codes as “information sought or received in confidence from an overseas agency or information about the overseas agency’s methodology (risk to relationship(s))” and as “information the disclosure of which would damage the AFP's relationship with a foreign partner agency (primarily the FBI)” in the A/Comm Lee Affidavit at [23.4].

1. Much of A/Comm Lee’s open affidavit deals with this category of documents. He deposes that the AFP has a longstanding relationship with U.S. partner agencies including the FBI, the Department of Homeland Security, and the Drug Enforcement Agency.[126] The AFP’s relationship with the FBI is extremely important, particularly as a significant amount of information flows from the FBI to the AFP.[127]

   [126]A/Comm Lee Affidavit, [39].

   [127]A/Comm Lee Affidavit, [40].

1. That information comes to the AFP from the FBI either directly on a ‘police-to-police’ basis or via a MAR.[128]

Police-to-police information sharing

[128]A/Comm Lee Affidavit, [41].

1. A/Comm Lee deposes that the FBI has ‘time and again’ provided ‘timely and critical’ intelligence to the AFP on a police-to-police basis,[129] and that this kind of intelligence sharing always occurs on a confidential basis.[130] If confidentiality did not apply to this process, then every time information was shared, police officers would have to consider the ‘full range of potentialities’ that could occur if information was disclosed, because the act of doing so could ‘endanger lives or compromise ongoing investigations, police methodology or even national security’.[131]

   [129]A/Comm Lee Affidavit, [42].

   [130]A/Comm Lee Affidavit, [44].

   [131]A/Comm Lee Affidavit, [43].

1. A/Comm Lee explains that the AFP will claim PII over information received through police-to-police information sharing unless, and until, the relevant foreign partner agency confirms that the information may be disclosed. The reason for this is to ‘maintain the AFP’s fruitful working relationship with the foreign partner agency by giving effect to the latter’s expectations’ of confidentiality’.[132] When expectations of confidentiality are not met, and especially where an inability to protect police-to-police information is perceived, police officers become more ‘circumspect’ about sharing information, which can lead to intelligence drying up or slowing down.[133]

   [132]A/Comm Lee Affidavit, [46].

   [133]A/Comm Lee Affidavit, [47].

1. In his open affidavit, A/Comm Lee explains that throughout Operation Belvoir, the FBI shared information with the AFP on a ‘police-to-police’ basis both orally and via ‘tear-lines’.[134] During the AFP visit to the FBI in Texas in July 2015 (‘July 2015 visit’), JCTT members were given access to other FBI records, (such as social media records) and some of that information is contained in their notes.[135] In this case, the AFP has reverted to the FBI several times to consult them about the use or disclosure of certain documents; in particular, some of the material obtained via tear-lines,[136] and the material shared by AB via social media which was provided to the AFP on 3 February 2015.[137] Approval was given in relation to certain documents,[138] but not others.[139]

   [134]A/Comm Lee Affidavit, [49].

   [135]Documents AFP.0001.0008.0001 and AFP.0001.0008.0025.

   [136]A/Comm Lee Affidavit, [44.1].

   [137]AFP.0001.0010.0239 and AFP.0001.0011.1571.

   [138]AFP.001.0011.0182 and AFP.0001.0011.0185.

   [139]AFP.0001.0006.0001.

1. The AFP also reverted to the FBI regarding F/A O’Neale’s and Detective Sergeant Hayward’s (D/Sgt Hayward) notes taken during their visit in July 2015. A/Comm Lee explains that the FBI reviewed those notes in 2017, and then again in late 2019, after a copy of the notes was inadvertently disclosed. When approached in November 2019, the FBI maintained that certain intelligence within those notes ought not to be disclosed. After the further review process in November 2020 some aspects were revisited by the FBI but confidentiality was still pressed regarding items in a number of specified documents.[140]

   [140]A/Comm Lee Affidavit, [51].

1. A/Comm Lee provides further information on the communications between the AFP and the FBI in his confidential affidavit. In his open affidavit filed 25 November 2020, triggered by the Court’s inquiry about 11 specific documents, D/Supt Moger adds further explanation about the information sharing arrangements with the FBI. If information received on a police-to-police basis is required for use in criminal proceedings, the AFP ordinarily make a MAR request. The U.S. can refuse the request or grant the request subject to certain conditions.[141] He deposes that it is also well-understood that witnesses made available in response to a MAR request cannot be compelled to answer questions or provide material that they would not be required to answer or produce in their own country. Nevertheless, the AFP may still need to claim PII if any such information is sought under a subpoena or other Court process. D/Supt Moger adds:

I am not aware of any instances where an Australian Court has ordered disclosure of information that the AFP has received in confidence from the FBI.[142]

[141]D/Supt Moger affidavit dated 25 November 2020, [12].

[142]D/Supt Moger Affidavit dated 25 November 2020, [12].

1. D/Supt Moger goes on to say that the FBI have been prepared to share highly classified information with the AFP, even where disclosure of that information could have ‘highly undesirable consequences’. He says this shows that the FBI has a ‘high level of confidence’ in the AFP’s ability to protect such information. He refers to the evidence of A/Comm Lee regarding the consequences that would flow from disclosure of information received in confidence where the FBI has not authorised disclosure (as discussed above).

Other interactions with the FBI

1. In addition to certain confidential criminal intelligence, the AFP makes PII claims under category D in relation to all substantive official communications with the FBI, and any references to knowledge gained through the working relationship as it relates to matters sensitive to the FBI.[143] Once again, further detail is set out in A/Comm Lee’s confidential affidavit.

   [143]A/Comm Lee Affidavit, [54].

1. A/Comm Lee states that the FBI has reiterated its expectations that the above matters be kept confidential, both generally, and throughout Operation Hawarden-Belvoir.[144] He considers that, as with the disclosure of intelligence, FBI officers would become more ‘circumspect’ in working with the AFP, if the AFP could not meet expectations of confidentiality in relation to records of official interactions. Such cooperation would likely slow down as a result, and the consequent diminishing or slowing of criminal intelligence from the FBI to the AFP would have ‘catastrophic’ results (as discussed above).[145]

   [144]A/Comm Lee Affidavit, [55].

   [145]A/Comm Lee Affidavit, [56].

1. Intelligence from the FBI is ‘essential’ for the AFP to be able to ‘detect and disrupt’ serious crimes, including terrorist attacks.[146] For these reasons, damage to the AFP’s working relationship with the FBI would be contrary to the public interest. Further details are provided in A/Comm Lee’s confidential affidavit.

Other category D claims

[146]A/Comm Lee Affidavit, [59].

1. A/Comm Lee deposes that there are several category D claims that overlap with other categories and which arise primarily within the ‘Main Case Note Entries’ relating to AB’s contact with the Australia Consulate-General regarding his lost passport, as well as the various communications between the Turkish and Australian authorities and the AFP to facilitate AB’s return to Australia.[147] These agencies expect that such communications will remain confidential,[148] otherwise disclosure would harm the AFP’s relationships with them. The Court understands that the Defence no longer press for access to this kind of information, subject to some qualifications that are set out above.

   [147]A/Comm Lee Affidavit, [61.3].

   [148]A/Comm Lee Affidavit, [61.4].

1. A/Comm Lee also deposes that the disclosure of certain information regarding the procedures and decisions reached about AB’s return to Australia, which involve confidential police methodology, could allow others in future similar situations to adjust their behaviour in a manner detrimental to Australia’s interests (this aspect also falls under category A).[149] A claim under category E is also made over the provision of AB’s Turkish mobile phone number by another Government agency (category E).

   [149]A/Comm Lee Affidavit, [61.1].

1. A/Comm Lee also notes that the rationale for the AFP’s category D claims was previously explained in the affidavit of Kylie McInnes, solicitor for the AFP, filed on 8 November 2019 in the context of the inadvertent disclosure to the Defence of certain police notes. A/Comm Lee has incorporated the earlier material setting out the reasons for claims of confidentiality in his open affidavit.[150]

   [150]A/Comm Lee Affidavit, [37].

1. In relation to the category D claims over information provided by the FBI in confidence, D/Supt Moger relies on the affidavits of A/Comm Lee, and says those considerations apply with ‘especial force’ to the information received from the FBI at a higher classification level, because that information is ‘particularly sensitive’ to the FBI.[151]

   [151]D/Supt Moger Affidavit dated 5 October 2020, [34].

1. In his open affidavit dated 4 November 2020, D/Supt Moger provides further evidence in response to the Court’s request of 29 October 2020 regarding an AFP Case Note Entry, over which PII is claimed under category D. In that affidavit, D/Supt Moger explains that the Case Note Entry contains information copied from an email received from an AFP liaison officer from an overseas post in response to a request for information (‘RFI’). D/Supt Moger explains that RFIs are themselves confidential as they are typically conducted in order to determine, on a ‘police-to-police’ basis, what information is held or been shared by foreign partner agencies. D/Supt Moger deposes that the material itself makes clear that the information contained therein was received in confidence, and as such there would be an expectation that confidence would be maintained, and in his opinion it would be contrary to the public interest to disclose this case note entry.[152] He expands further in his confidential affidavit. 

   [152]D/Supt Moger Affidavit dated 4 November 2020, [6].

1. The AFP submit that law enforcement agencies rely upon their relationships with foreign partner agencies for the ‘flow’ of information, and that such relationships rely upon mutual obligations of confidence.[153] The AFP re-iterate A/Comm Lee’s evidence that the reciprocal obligation of confidence encompasses MAR processes, and police-to-police information sharing, and that courts have accepted that breaches of confidence are likely to damage relationships with foreign partners and thus make those partners ‘reticent’ to share information in the future.[154] Aside from any rationale for the obligation, the AFP asserts that the fact of confidentiality and the likely consequences of breaches of that confidence are pertinent.[155] They submit further that the basis of these claims is the:

[…] ‘obvious and well-recognised’ imperative not to contravene the understanding upon which the information was provided, lest the agency in question (or other agencies) be deterred from giving similar cooperation in the future.[156]

[153]AFP Submissions, [43].

[154]AFP Submissions, [44]-[45], citing Wilcox J in Nestle Australia Ltd v Commissioner of Taxation (1986) 11 FCR 453, 460–61; Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122.

[155]AFP Submissions, [47], AFP Supplementary Submissions, [14].

[156]AFP Supplementary Submissions, [10(b)].

1. In their written submissions, the AFP submit that category D claims supported by the AFP’s affidavit evidence, particularly those claims that concern intelligence received from the FBI, ought to ‘weigh heavily’ in the balancing exercise.[157]

Category E claims: Information from other domestic agencies[158]

[157]AFP Submissions, [50].

[158]Referred to in the Ground Codes as “information sought or received in confidence from a domestic agency or information about the domestic agency’s methodology (risk to relationship(s))” and in A/Comm Lee Affidavit, [23.5] as “information the disclosure of which would damage the AFP's relationship With a domestic partner agency.”

1. This category relates to information or documents that would disclose the contents of sensitive information received from other domestic law enforcement and intelligence agencies with whom the AFP cooperates. A/Comm Lee expands on this category of claims in his confidential affidavit.

1. In his open affidavit, A/Comm Lee observes that cooperation with other law enforcement and intelligence organisations is ‘essential’ for the AFP to discharge its functions. Failure to protect the information may make those organisations reluctant to provide it or to share ‘effective and candid analysis of intelligence information’. In turn, this would have a ‘significant detrimental impact upon the prevention, detection, investigation and prosecution of serious crime in Australia’.[159] 

   [159]A/Comm Lee Affidavit, [92].

1. In written submissions, the AFP confirm that many of their claims under this category are no longer in dispute, and that the remainder overlap with other PII claims. It is submitted that, as with information received from informers and foreign agencies, there is also an ‘imperative’ to preserve the flow of useful information from domestic agencies, and that this information sharing would also be undermined if those agencies perceived that the recipient was unable to keep the information confidential. The AFP advance PII claims over this information, so that cooperation between different law enforcement agencies is not ‘stifled or discouraged’.[160]

Category F claims: Current or future investigations or prosecutions[161]

[160]AFP Submissions, [51].

[161]Referred to in the Ground Codes as “information that would disclose details of an operational matter/ongoing investigation/matter before the court” and in A/Comm Lee’s Affidavit at [23.6] as “information the disclosure of which could compromise current or future Investigations or prosecutions.”

1. This category relates to information or documents regarding which disclosure of their existence, scope, or extent of would compromise an ongoing AFP or partner organisation’s investigation, reveal the identity of a POI to the AFP or a partner agency, and/or reveal intelligence holdings about those POIs.[162] 

   [162]A/Comm Lee Affidavit, [94].

1. A/Comm Lee deposes that maintaining secrecy over the above kind of information is ‘vital’ to the ultimate success of those investigations.[163] This is because, in his experience, POIs may change their behaviour to avoid further or continued detection upon learning such information which, in turn, could mean that investigations are ‘unable to proceed to the fullest degree’.[164] He deposes that often the AFP may watch an individual or group before an active investigation commences, in order to gather information for future investigations.[165] It is important that this kind of information remains secret, so that the AFP’s (and other law enforcement agency’s) ability to ‘properly detect, investigate and prosecute crimes’ is not prejudiced.[166] He includes further information relevant to claims under this category in his confidential affidavit.

   [163]A/Comm Lee Affidavit, [95].

   [164]A/Comm Lee Affidavit, [96].

   [165]A/Comm Lee Affidavit, [97].

   [166]A/Comm Lee Affidavit, [98].

1. In its written submissions, the AFP submit that the claims under this category are of a kind that is ‘strong, and well-established’.[167] This category is captured by s 130(4)(c) of the EA. It is submitted that information of this nature ought to be protected to ensure that investigations are not compromised by disclosing information to POIs (or others), thus enabling them to change or adapt their behaviour.[168] Similar claims have been upheld in recent times, including in circumstances where information would prejudice a future investigation, not just an ongoing investigation.[169]

Category G claims: Information, the disclosure of which could adversely affect the security of Commonwealth personnel[170]

[167]AFP Submissions, [57].

[168]AFP Submissions, [54].

[169]AFP Submissions, [57], citing See e.g. Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311, 312 (McLelland J); Zarro v Australian Securities Commission (1992) 36 FCR 40 (Lockhart, Ryan and Gummow JJ); James v Chief Commissioner of State Revenue (2011) 82 ATR 965, [49] (NSWSC, Gzell J); Brennan v NSW [2006] NSWSC 167, [44] (Hall J); R v Eastman (No 18) [2017] ACTSC 180 (Kellam AJ).

[170]Referred to in the Ground Codes as “information that may give rise to risks to security of Commonwealth personnel.”  

1. The schedule to A/Comm Lee’s open affidavit includes some claims under category G, which appear additional to other categories of claim over these documents.

Category I[171] claims: Statutory restrictions

[171]There is no category H.

1. A/Comm Lee deposes that minimal redactions have been made to information protected under s 134 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), which confers an immunity from disclosure to a court or tribunal upon any person who obtains ‘AUSTRAC information’ (being information collected by the Australian Transaction Reports and Analysis Centre) not to disclose that information to a Court or a Tribunal. AFP officers consulted AUSTRAC databases, and some of this information is included in certain AFP case notes.[172] The Court understands that the Defence no longer presses for access to material of this kind.

   [172]A/Comm Lee Affidavit, [104], being in particular AFP.0001.0010.0514 114, 218 and 221; AFP.0001.0001.0025 106–108, 112–113.

Categories L and M

1. A/Comm Lee also notes two further categories of documents — L and M — over which the AGD has made PII class claims, being confidential interjurisdictional communications and the contents of mutual assistance requests (‘MAR’) respectively. These claims overlap with the AGD’s claims, which have already been upheld.[173]

   [173]A/Comm Lee Affidavit, [26].

General submissions

1. The AFP refer to and adopt the submissions of the AGD regarding the applicable general principles relating to PII,[174] as well as the AGD’s submissions on the impracticability of a ‘limited access’ regime regarding the PII documents.[175] The AFP oppose limited access being granted on the basis that any such access would ‘[encroach] upon the confidentiality claimed’. The AFP assert that confidentiality ought to be maintained so as to mitigate the risk of disclosure, including inadvertent disclosure, which necessarily increases over the course of a long trial such as this one.[176]

   [174]AFP Submissions [25], citing AGD submissions [8]–[13].

   [175]AFP Submissions [27], citing AGD submissions, [56]–[64].

   [176]AFP Submissions [27].

1. Mr Forsaith, Counsel for the AFP, also adopted the AGD’s written and oral submissions[177] challenging the strength of the Defence’s forensic purpose for pursuing certain PII material and the strength of the public interest in disclosure when weighed against the importance of the PII claims.

   [177]Transcript, 3 March 2020 1148–85 (Mr Forsaith).

1. In the hearing on 3 March 2020, Mr Forsaith responded to Defence submissions on the forensic purposes for pursuing disclosure in full of notes made by F/A O’Neale and D/Sgt Hayward about their visit to Texas in July 2015, during which they met with the FBI. He suggested that Defence speculation that F/A O’Neale’s notes from that visit revealed the identity of [*Redacted] may not be correct as it was open to infer that [*Redacted].[178] He appeared to suggest that the PII documents would not answer  the Defence question whether F/A O’Neale or D/Sgt Hayward [*Redacted]. However, as will be explained below, it seems that the AFP’s position about these matters has now changed to some degree.[179]

   [178]Transcript, 3 March 2020, 1148–85 and 1158 (Mr Forsaith).

   [179]Transcript, 3 March 2020, 1164–5 (Mr Forsaith).

Defence submissions

1. The Court has taken into consideration the general submissions the Defence filed in response to the AGD claims insofar as they also apply to the AFP’s claims, bearing in mind that the subpoenas to each organisation mirror one another in their wording.[180]

   [180]Those are listed in the AGD ruling.

1. In response to the AFP’s PII claims specifically, the Defence filed the following:

(a)   Written submissions regarding the AFP’s PII claims dated 6 October 2020 (‘Defence Submissions’);

(b)  Clarification regarding the Court’s email dated 26 October 2020; and[181]

(c)   Submission regarding scope and conduct of confidential hearing dated 28 October 2020.

[181]This was filed to clarify a matter within the Agreed Statement of Facts.

Submissions in relation to the AFP’s ‘Category D claims’

1. Regarding the AFP’s category D claims which relate to information deriving from the FBI, the Defence say that at least some of the information received from the FBI on a ‘police-to-police’ basis is relevant to Witness A’s credibility and reliability.[182] The Defence argue that U.S. authorities are likely to have provided information to their Australian counterparts which has a legitimate forensic purpose for the Defence, or which would otherwise assist the accused, but which has not been disclosed to the Defence. [*Redacted].’[183]

   [182]Defence Submissions, [13].

   [183]Defence Submissions, [14].

1. The Defence are especially interested in the notes taken by, or derived from, F/A O’Neale and D/Sgt Hayward during their July 2015 visit to the FBI Texas office.

1. The Defence case is that, during the July 2015 visit, F/A O’Neale and/or D/Sgt Hayward [*Redacted].[184] Based on the notes that have been disclosed, the Defence submits that F/A O’Neale and/or D/Sgt Hayward must have had discussions with the FBI [*Redacted].

   [184][*Redacted].

1. The Defence also submit that it is likely that, prior to the July 2015 visit, AFP officers Drossos, Ragg, and Bate interacted with the FBI, although statements from these AFP officers have not been proffered as part of the brief of evidence.[185]

   [185]Defence Submissions, [32].

Social media access

1. The Defence submit that, whilst some of the social media materials reviewed by D/Sgt Hayward and F/A O’Neale in July 2015 have been produced to the Defence, the Defence has not been given access to some other social media records that are likely to have been viewed by the AFP including for example [*Redacted].[186]

   [186][*Redacted].

1. The Defence suggest that PII claims within the police notes at AFP.0001.0008.0001 (D/Sgt Hayward) and AFP.0001.0008.0025 (F/A O’Neale), which are presently subject to PII claims are likely to contain information that should be disclosed in response to the subpoena.

AFP knowledge regarding Witness A’s identity in July 2015

1. According to the Defence, an issue of credit arises in relation to F/A O’Neale’s notes. He was cross-examined on a voir dire about when he learned the identity of Witness A, [*Redacted].

1. [*Redacted].[187]

   [187]Committal, 6 June 2017, T181–2.

1. As the Defence explain in correspondence sent on 1 November 2019, the solicitors for the AFP[188] maintained that [*Redacted]:

[*Redacted].[189]

[188]The Australian Government Solicitor, who the Defence refer to as the ‘AGD’ throughout their Submissions.

[189]AGS letter to Defence dated 19 December 2019, referred to in Defence Submissions at [40].

New approach regarding F/A O’Neale’s notes

1. However, while preparing documents for inspection by the Court, solicitors for the AFP sent a letter to the Defence dated 25 September 2020 which referred to new instructions regarding how and when the [*Redacted]. The AFP’s solicitors said:

It has recently become apparent that our instructions in this regard were mistaken. Earlier this week, whilst finalising materials to be provided to the Court in relation to the Commissioner’s public interest immunity (PII) claims, we identified one page of information within Federal Agent O’Neale’s July 2015 diary notes (AFP.0001.0008.0025) that is captured by this category of the subpoena. This information is on page AFP.0001.0008.0036. It has been the subject of a PII claim since this document was first disclosed in the context of the committal proceedings and was not amongst the information that was inadvertently disclosed on 25 October 2019.[190]

[190]The AGS explain they have not sought further instructions from F/A O’Neale on this issue for the reasons set out at [63] of the AFP Submissions.

1. The Defence argue that the manner in which the [*Redacted] is ‘of essential importance to the defence enquiry’. [*Redacted], then this would militate strongly in favour of the exclusion of Witness A’s evidence.[191] In further argument advanced on 27 November 2020, the Defence submitted that it was concerned to pursue material beyond the topics of Witness A or Witness  B, or the social media. The Defence retains an interest in information relevant to ‘the process.’ This material could assist with process based evidentiary applications such as an applications under s 90 EA regarding exclusion of Witness A’s evidence or a potential stay application.

   [191]Defence Submissions, [42].

1. The Defence also argue that:

The lack of clarity that attends the process by which the [*Redacted] came into being, and the absence of disclosure of information concerning draft versions of that document, is a matter which, in addition to an application to exclude [Witness A]’s evidence, will be a central matter for cross-examination before a jury. There will be a significant public interest in the defence having access to any documents which may assist in understanding the process by which the [*Redacted] came into being, and the purposes of [*Redacted] authorities in adopting the process that took place.[192]

[192]Defence Submissions, [46].

[*Redacted]

1. [*Redacted].[193]

   [193]Defence submissions, [47].

1. [*Redacted].

1. [*Redacted].  

New inspection checklist

1. The Defence added a further inspection checklist to their October submissions which updated the checklist previously filed. The new checklist, while not exhaustive, seeks to capture the forensic purposes for the subpoena served on the AFP. Further, the Defence submit that although the AGD documents have already been inspected by the Court, the AFP documents need to be considered in the context of the AGD documents subject to the class claims that the Court has indicated it will uphold. This is because the MAR process generally takes place after police-to-police engagement with overseas law enforcement and, if matters were known to the AFP which were not conveyed to the AGD for the purposes of the MAR process, then that would be a significant matter for the Defence.[194]

   [194]Ibid, [56].

1. In their October 2020 submissions, the Defence address the categories captured by s 130(5) EA and relevant to the Court’s weighing exercise in respect of the competing public interests, as they did in their submissions regarding the AGD’s PII claims. Particular emphasis is placed on s 130(5)(a) — addressing the importance of the information or document in the proceeding. Like their response to the AGD’s PII claims, the Defence submit that as Witness A is the principal prosecution witness, and that the documents sought under the subpoena are critical to an exploration of how [Witness A’s] evidence was obtained. The Defence submit that ‘such information is likely to go to the credibility and reliability of the witness, and the extent to which substantial contextual evidence relevant to the matters asserted in [Witness A’s] statement has not been disclosed’.[195]

   [195]Defence Submissions, [58(f)].

1. The Defence also reiterate their concern about the basis on which Australian authorities accepted assistance from the U.S. If Australian authorities accepted assistance from the U.S. on the basis or condition that certain pertinent matters or documents would not be disclosed, then they say this would be relevant to Defence applications to exclude Witness A’s evidence or to an application for a stay of the trial.[196] The manner in which any limitations were imposed on U.S. assistance is also submitted to be important, particularly if the AFP ‘promised’ that certain matters would not be disclosed.[197] They submit:

It is not open to the AFP to make promises regarding confidentiality which effectively circumvent the Court’s supervisory role pursuant to s130 EA. If such promises were made, this would support an application to stay the trial. [198]

[196]Defence Submissions, [60].

[197]Defence Submissions, [61].

[198]Defence Submissions, [61].

1. Regarding ss 130(5)(b), (c), and (d), the Defence re-state their submissions made in response to the AGD’s submissions.[199]

   [199]See paragraphs 79–83 of the Defence’s January Submissions in response to the AGD.

1. In respect of s 130(5)(e), the Defence submit that, save for the inadvertently disclosed documents, the ‘substance’ of the information has been published. This point is not further elaborated on.

1. With respect to s 130(5)(f), the Defence re-state their submissions made in response to the AGD’s PII claims in relation to the manner in which Beale J applied the section in R v Yucel (No 6).[200] The Defence estimate that it is ‘likely’ in this case that there is information in the subpoenaed documents which ‘would assist the Accused, to the extent that the absence of that material would be productive of an unfair trial’.[201]

   [200][2018] VSC 371.

   [201]Defence Submissions, [71].

Analysis

1. I refer to and adopt the overview of the key legal principles set out in the AGD PII ruling.[202] 

   [202]AGD PII Ruling [6]–[18].

1. The Court accepts that the categories of PII identified by the AFP are valid in that they identify categories of documents that appropriately relate to ‘matters of state’ for the purpose of s 130(4) of the EA. The AFP specifically rely on ss 130(4)(a), (c), and (f) of the EA. Of course, as the AFP advances their claims as contents claims, rather than class claims, I assessed each claim individually and determined whether each claim attracted PII by virtue of its contents, rather than by virtue of its membership of an identified class of documents.

1. The Court notes that the Defence do not dispute the validity of the claimed categories of PII advanced by the AFP, or that the documents inspected by the Court may validly fall within those categories. Instead, the focus of the Defence argument for disclosure is that the material subject to claimed PII has sufficient forensic purpose to overcome the AFP’s claims.

1. The AFP’s evidence in support of the categories of PII claimed is compelling. The Court accepts that each of the deponents of the AFP PII affidavits (A/Comm Lee and D/Supt Moger) are well qualified to advance the PII claims of the kind put forward  based on their information, knowledge and experience. The Court also accepts the evidence of both A/Comm Lee and D/Supt Moger as to the basis for the AFP’s PII claims, and regarding the nature, gravity and likelihood of the risks to the public interest if disclosure were ordered.

1. Regarding documents obtained from a foreign State (relevantly to this ruling, documents sourced from the FBI), A/Comm Lee and D/Supt Moger are firm in their assertions about potential damage to the AFP’s relationship with the FBI if, following the sharing of timely information about the activities of AB, confidentiality were later to be breached. In their opinion, failure by the AFP to respect the requirements of confidentiality or safe handling when information is shared, would damage the ongoing cooperative relationship with the U.S.. These risks are also referred to in the letter provided by Vaughn Ary.[203]

   [203]Dated 22 November 2019.

1. Having inspected the AFP’s PII claims, and having compared them against the categories or grounds of claim and against any specific or general reference to the information or documents contained in the affidavits of A/Comm Lee and D/Supt Moger, having also had regard to the document provided to Ms Harmer by Vaughn Ary,[204] the validity of the PII claims as a whole is in my view well established. In this regard, I adopt those of my reasons expressed in the AGD PII ruling that relate to the importance of protecting mutual cooperation between Australia and the U.S. in the investigation and prosecution of serious crimes such as terrorism, and the risks that may flow from a failure to protect confidential information. Such risks may include criminal networks using mosaic analysis techniques to overcome current law enforcement methodologies.

   [204]I acknowledge the documents provided by Mr Ary were provided to the Court in support of the AGD’s PII claims, and I note the application of s 130(3) of the EA which allows the Court to inform itself in any way it sees fit. The Ary documents add further context to the evidence of A/Comm Lee and D/Supt Moger in terms of the potential risks to Australia’s law enforcement relationship with the U.S. In view of the evidence and other materials available to the Court.

General comments about the Court’s ultimate decision and the balancing exercise

1. The Court understands the Defence’s subpoena purposes that were enumerated across several different documents filed at different times (in response to both the AGD and the AFP’s PII claims). The bases for the Defence pursuit of the documents or information specified in their subpoenas has been fully articulated on a number of occasions both orally and in writing and has been summarised in this ruling and the AGD PII ruling. The Defence’s pursuit of information has been quite broadly expressed. A large volume of material has been produced in response to the subpoena. The wide nature of the material sought by the Defence is such that there are many PII claims where the disputed information falls within the broad subpoena purposes, but does not appear to the Court to be of a kind that would be of substantial assistance to the Defence. Where the information sought appears to bear a lesser relationship to the charges AB is facing, or to hold lesser forensic value, it is easily outweighed when balanced against the risk of significant harm that would be occasioned to the public interest if the material were disclosed.

1. The Defence have consistently referred to the unwillingness of the U.S. FBI or DoJ to share information for the purpose of disclosure to the Defence, and the tension that exists where domestic law imposes an ongoing duty of disclosure on the AFP or CDPP. The Defence reminded the Court that [*Redacted][205] made reference to the difficulties in the provision of a fair trial in such circumstances. Although the Defence have foreshadowed that these issues might ultimately sound in evidentiary applications or an application for a stay of the trial, the Defence nevertheless relies on fair trial principles to urge the Court to reject the AFP’s PII claims.

   [205][*Redacted].

1. I have carefully considered the matters advanced by both parties. Accepting that the Court should take a liberal approach to the balancing exercise in a criminal proceeding where the accused’s liberty is at stake on grave charges, the Court is not obliged to overrule PII in relation to any material that merely answers a subpoena purpose or bears some relevance to matters being pursued by the Defence.

1. In undertaking the balancing exercise under s 130 of the EA, the Court is not required to ensure that AB receives a perfect trial or that the Defence has access to any and all material that could have some possible relevance to arguments it may wish to put. As the Court of Appeal said in Jarvie v the Magistrates’ Court of Victoria at Brunswick:[206]

The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it.

[…]

A fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused.[207] The possible detriment or disadvantage to which an accused may on occasions be required to submit […] may, as in the present case, result from the need to give effect to some principle, like that of public interest immunity, which competes with the desideratum that accused persons should not be subjected to any disadvantage in defending themselves against criminal charges.[208]

[206][1995] 1 VR 84 (‘Jarvie’).

[207]       Jarvie, [18] – [19] citing Jago v District Court of New South Wales (1989) 168 CLR 23 esp. per Brennan, J. at pp 49–50 and 54; B. v Glennon (1992) 173 CLR 592 esp. at pp 614–7 per Brennan, J.; Dietrich v R (1992) 177 CLR 292 esp. per Brennan, J. at p 325.

[208]Jarvie, [20].

1. In this case, it was the Court’s assessment that much of the information over which PII was claimed had limited forensic value. In a very limited number of cases, discussed further below, the forensic value was higher. However, ultimately, the Court did not consider that any of the information subject to an AFP PII claim would substantially assist the accused in his Defence so as to require disclosure. The Court reached this conclusion in view of what the Defence already knows, including the unredacted material they have received as a result of this subpoena process, and including the material they received as recently as November 2020 after the AFP further revised its claims. Whilst the Defence, understandably, seeks to be armed with the widest extent of information about the nature of communications between the AFP and U.S. law enforcement agencies, or the AFP and internal domestic agencies engaged in monitoring AB’s activities prior to his arrest, or regarding the AFP’s own documents, the Court is obliged to decide where the balance lies.

1. In weighing the Defence subpoena purposes, against the majority of the disputed PII claims, the Court concludes that the PII claims carried significant strength, outweighing the importance of the information for the Defence case. This assessment was made because disclosure would severely compromise domestic police operations or damage the AFP’s relationship with foreign partner agencies such as the FBI.

Defence’s concessions

1. Furthermore, while the Defence narrowed some of its claims, due to qualifications to those concessions, many of its purposes remained broad, and in as much as there was material answering those remaining purposes it appeared to have limited forensic value.

1. For example, the Defence indicated that they would not press for information concerning unrelated investigations, but made a caveat to that concession (’where the target was in communication with Witness A or [*Redacted]’). The Court was therefore required to weigh the strength of the forensic purpose of documents or information containing communications between an [*Redacted] and Witness A or [*Redacted]. It might be thought unsurprising that, if any information of this kind were found to exist within the subpoenaed documents, the Court might be inclined to assess the forensic value of this nature of disputed information as not strong enough to overcome the AFP’s PII.

1. In like vein, the Defence did not press for information or documents about security and logistical arrangements for Witness A’s [attendance][*Redacted] to give evidence, except ‘any information concerning the extent to which [Witness A] was [*Redacted] during the period [Witness A’s][attendance to give evidence][*Redacted].’ Again, the forensic value of this nature of disputed information or document, if it exists in the PII documents, might be expected to be insufficient to overcome the claimed PII.

1. The Defence concession that they would not press for information or documents relating to [*Redacted] was also qualified, in that the Defence maintained its request for information regarding ‘[*Redacted].’

1. In circumstances where Witness A’s [*Redacted] and AFP statement does not refer to using [*Redacted] any forms of social media, whilst the Court was aware of the need to look out for this category of material, the forensic basis for doing so did not appear strong. Similarly, the forensic purpose for the pursuit of Witness A’s communications with other POI’s (such as [*Redacted]) would need to be balanced against any PII claims made over that material, if it exists, in circumstances where the Court is cognisant that the matter at hand is the prosecution of AB on the current charges.  

Information already available to the Defence

1. As with the AGD inspection, in inspecting the AFP PII documents, the Court has given weight to the nature and extent of information already disclosed or known to the Defence.[209] The Court refers to its summary of those matters in the AGD Ruling.[210] Further to those matters, the Court has also had regard to the fact that the Defence know that Witness A’s [*Redacted].

   [209]Including what they have learned from material disclosed by the AFP/AGD/CDPP, and/or through the evidence of witnesses at Committal and/or pre-trial hearings, particularly Witness A’s evidence and cross-examination on two occasions, and/or correspondence between the parties.

   [210]AGD PII Ruling, [51].

Considerations under s 130(5) of the EA

1. In the Court’s AGD PII ruling the Court referred to the non-exhaustive considerations set out under s 130(5) of the EA.[211] The same overarching considerations apply in relation to the disputed AFP PII information/documents, but whilst the bases for the Defence forensic purposes overlap in respect of both subpoenas, the information or documents sought from the AFP have been assessed on a contents basis and are qualitatively different from the AGD documents.

   [211]See [164] to [175] under the heading “Analysis of Disputed Documents”.

1. The Defence have referred to an apparent conflict between the AFP’s disclosure obligations and the confidentiality obligations ‘imposed by the FBI’, in respect of the preparation and supply of the [*Redacted] and the proffering of relevant social media records. However, even if material would normally be disclosed under domestic law, if a foreign State has provided information on conditions of confidentiality, leading to a PII claim by the AFP, the issue at hand is one of weighing the competing public interests, rather than focusing on the assertion of a conflict of obligations. 

1. Marrying up the principles discussed in the AGD PII analysis, and applying the non-exhaustive factors listed in s 130(5) of the EA to the AFP PII claims, the following observations are made:

(a)   The Court adopts and applies what was said in the AGD PII Ruling to the AFP documents regarding the gravity of the charges and the importance of the accused having a full opportunity to defend the prosecution case (s 130(f)(c)).

(b)  The Court also adopts and applies what was said in the AGD PII Ruling on the question of how the disputed information or documents relates to ‘the nature of the offence, cause of action or defence‘ and to ‘the subject matter of the proceedings’ (s130(5)(c)). As mentioned in the AGD PII Ruling, the Court must consider the importance of the information or documents in the proceeding, in approaching the balancing exercise (s130(5)(a)). Although the repository of the information or documents differs in respect of the AFP, in essence the Defence forensic purpose for pursuit of the material overlaps.

(c) The Court also adopts and applies what was said in the AGD ruling regarding s 130(5)(b) and (d).

(d)  Regarding 130(5)(e) the Court has closely considered whether the substance of the disputed information or documents over which PII is claimed by the AFP has already been published. This is not a straightforward consideration. If a foreign State (the owner of the information) shares national security intelligence about an Australian citizen, but only does so subject to conditions as to its use, the fact that the information may later be replicated in another document that is willingly shared does not necessarily mean that the owner of the information is agreeable to the original information being published, used, or disclosed.

(e)   Turning to the case at hand, there may be instances where the AFP would prefer to disclose the disputed PII information or documents which were provided in confidence by a foreign agency such as the FBI. However, where there is a strong expectation that confidentiality will be maintained, the risk of damage to an otherwise fruitful and cooperative law enforcement relationship poses an impediment to them doing so voluntarily. From the Court’s perspective, the attitude of the owner of the information (the foreign State), is not decisive. But where the foreign law enforcement agency (such as the FBI) partners with the AFP in ongoing and highly valuable law enforcement and national security cooperation, the risk of damage to that partnership leads the Court to give very substantial weight to the preservation of that relationship. I consider that the Court should give significant weight to the strictures imposed by the FBI at the time of supplying the original information even where the information may be later replicated in other documents that have been disclosed, in light of the evidence before me about the damage that would arise from disclosure. I agree with the AFP’s submissions that it is not necessary for the Court to be satisfied as to all the reasons a foreign law enforcement agency might have for providing information subject to confidentiality or for seeking to maintain confidentiality. I also agree that importance attaches to the fact of confidentiality and the likely consequences of breach.[212]

(f) I will consider s 130(5)(f) below.

[212]Schlaepfer v ASIC [2017] FCA 1122.

Decision

1. I have assessed each of the AFP’s PII claims, and the strength of the evidence in support of  them, and considered whether the information over which PII is claimed would be of ‘substantial assistance’ to AB in mounting his defence.[213] 

   [213]R v Mohamed, Chaarani & Moukhaiber (Ruling on public interest immunity claim) [2019] VSC 188, [50].

1. As with the AGD’s documents, after conducting my inspection of the AFP documents, I came to the decision that the bulk of the AFP’s PII claims should be upheld. I then identified a smaller subset of 11 documents for closer consideration, where the public interest in the claimed PII and the public interest in disclosure to the Defence was more finely balanced. The Court then sought further evidence/submissions from the parties in relation to the 11 specified documents. As a result of those further enquiries, some PII claims were reduced in scope, and a small number of claims were abandoned, whilst the remaining claims were still pressed by the AFP.

1. Following that process, the Court ultimately decided that all of the AFP’s outstanding PII claims should all be upheld. However, given that I approached the inspection and determination in two parts, I will set out my decision in two parts.

Majority of the AFP’s PII claims 

1. In relation to the bulk of the AFP’s PII claims, the Court considered they were soundly based and the strength of those claims plainly outweighed the strength of the forensic purposes outlined by the Defence for seeking access to the information or documents. This assessment was made on the basis of the categories of PII claims pressed by the AFP which were elaborated in the AFP affidavit evidence. The Court was, after obtaining necessary clarification on how to interpret each of the annotations, assisted by the AFP’s annotations within the PII documents. These annotations identified each category of PII relied on for each claim. Often there were several annotations on individual pages involving separate categories of claim, which enabled the Court to identify with precision which ground was relied on. The open and confidential affidavits provided explanation of many of the claims, sometimes illuminating specific claims in greater detail, and sometimes expanding in a more general way on the bases for claims arising in specified categories. In relation to these documents, I am satisfied that the evidence provided in support of them was sufficiently precise, and clearly identified the nature, gravity and likelihood of the risks that would follow disclosure.

1. The AFP’s PII claims are targeted and have been consistently reviewed throughout this process to ensure they are no broader than is necessary. As such, throughout this process, the Defence has been provided with a great deal of information that was not already available.

1. I am satisfied that the material subject to PII claims engages ‘matters of state’ for the purposes of ss 130(4)(a), (c), and (f). Conversely, regarding this larger body of material over which the AFP maintains PII claims, I was not satisfied that the Defence forensic purpose for access to the disputed information or documents outweighed the well-substantiated PII claims.

11 closely considered documents

1. Having considered the further material from the AFP in relation to the PII claims listed in the 11 specified documents, and having also considered the parties’ oral submissions about that material, I am satisfied that each of those remaining PII claims ought to be upheld.

1. The forensic purpose with respect to those claims was stronger than in the documents referred to earlier. However, in light of the material filed by the AFP in November 2020, read with the previous material, the Defence’ forensic purpose was outweighed by the public interest in non-disclosure, particularly when the information subject to PII is viewed in context of information already available to the Defence, as discussed above. I am not satisfied that that information would substantially assist the Defence, beyond what is already available to them.

1. I am also not persuaded that s 130(5)(e) favours disclosure due to information having already been ‘published’. I am persuaded by the AFP’s November submissions on this point:

It may be noted, in this context, that the factor referred to in s 130(5)(e) of the Evidence Act is not one that invariably favours disclosure. To the contrary, a document can attract public interest immunity not only on account of the information it contains, but also on account of other circumstances such as what the document reveals about how that information was obtained, or in what forum it was discussed, etc. Thus, for example:

a. information provided in confidence, or gathered through some secret methodology, may properly attract PII as it appears within a particular document notwithstanding that the information itself has elsewhere been disclosed; and

b. cabinet documents attract PII even if they contain information that is publicly available.

In such cases, the public interest in secrecy is not diminished by the availability of the information in some other form, whilst the factor referred to in s 130(5)(e) of the Evidence Act weighs heavily against disclosure for the simple reason that upholding the PII claim will not deny that information to the Accused. [emphasis added]

1. I appreciate that the Defence is in a difficult position given they cannot see the material the Court has reviewed or the AFP’s confidential evidence. However, I am not persuaded that the material I have inspected would assist the Defence in a manner that militates in favour of disclosure, when balanced against the public interest in non-disclosure.

1. I am also of the view that the open evidence before the Court, sufficiently details the nature and gravity of the harm that would be done to the public interest if this material were disclosed.

1. Chief amongst the AFP’s reasons for its PII claims over these particular documents, is to protect and preserve its working relationship with the FBI. The AFP’s November submissions make this point forcefully as follows:

…the basis of the PII claims is the imperative to respect obligations of confidentiality and, thereby, maintain the AFP’s productive working relationship with the FBI. It is not to the point that particular information located within the documents may already be known to the accused; still less in circumstances where this was specifically drawn to the attention of the FBI.[214]

[214]AFP Supplementary Submissions,

1. On this point I note that the AFP have returned to the FBI on numerous occasions throughout this proceeding, including as recently as November 2020, and requested the FBI review whether confidentiality over its information needs to be maintained. In November 2020, certain redactions were relaxed after consultations with the FBI. However, many of the PII claims that remain within the 11 documents reflect the FBI’s expectations of confidentiality. The Court has before it ‘credible evidence as to the extent and nature of the public interest involved,’[215] and it is clear from the AFP’s most recent affidavit evidence that the FBI’s expectations, and thus the AFP’s submissions in relation to the need for confidentiality and the damage that would flow from disclosure, remain current. It is also significant that even after reconsidering its confidentiality requirements, the FBI has not authorised certain information to be released.

   [215]The Queen v Linton Peters [2018] VSCA 115, [46]

1. The AFP has been forthcoming with the parties and the Court in relation to the relationship between its PII claims and the FBI’s expectation of confidentiality. The AFP’s openness about the FBI’s expectations of the AFP in this matter, has allowed the Court to understand the core bases for the AFP’s PII claims and the damage that would be done to the relationship between the AFP and the FBI, and thus Australia’s ability to investigate and prosecute international crime, if disclosure occurs.  

1. I am also not persuaded that this is a case where the disputed PII information or documents are so central to the Defence that the Court’s decision to uphold the AFP’s PII claims can only be made subject to the condition that the prosecution be stayed (s 130(5)(f) of the EA). The disputed material is not of such weight as to lead to this conclusion.

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