Director of Public Prosecutions v The State of Victoria
[2024] VSC 634
•17 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2023 03018
BETWEEN:
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| and | |
| THE STATE OF VICTORIA & ORS (according to the attached schedule) | Defendants |
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JUDICIAL REGISTRAR: | McCann JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2024 |
DATE OF JUDGMENT: | 17 October 2024 |
CASE MAY BE CITED AS: | DPP v The State of Victoria |
MEDIUM NEUTRAL CITATION: | [2024] VSC 634 |
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CIVIL PROCEDURE – Application to set aside subpoena pursuant to r 42.04 of the Supreme Court (General Civil Procedure) Rules 2015 – Where Director of Public Prosecutions intending to release disclosure packages to persons potentially affected by the Royal Commission into the Management of Police Informants – Where subpoena issued to ensure continued safety by checking disclosure materials before they are released – Where the issuing party already has the most complete and least redacted compilation of relevant documents – Where it is unnecessary to have the redacted versions of disclosure packages in order to be able to pursue forensic purposes – Subpoena set aside.
Webb v Wheatley [2015] VSC 153; Di Cesare v Bird [2021] VSC 25; ACN 096 450 770 (aka AJH Lawyers Pty Ltd) v MathiesonNominees [2017] VSC 559; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; 37 ATR 432; Holloway v State of Victoria [2015] VSC 526; State of Victoria v Lane [2012] VSC 328; National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Doyle SC with Mr G Buchhorn | Office of Public Prosecutions |
| For the Twelfth Defendant | Mr C Thomas | Doogue + George Lawyers |
TABLE OF CONTENTS
Introduction
Background
Outline of the objection
Submissions from Mr Bickley
Legitimate Forensic Purpose
Consideration
JUDICIAL REGISTRAR:
Introduction
The Director of Public Prosecutions (‘the DPP’) has made application to vary a number of suppression orders. For convenience, in these reasons I will refer to the Plaintiff as ‘the DPP’.
The variations are sought to allow the DPP to release disclosure packages to people identified by the Royal Commission into the Management of Police Informants (‘the RCMPI’) as potentially affected by the use of former barrister turned informant Nicola Gobbo by Victoria Police. There are a number of defendants to those applications set out in the schedule attached to this ruling.
The Twelfth Defendant, referred to by the RCMPI pseudonym of ‘Mr Bickley’ in this ruling, has filed written submissions in relation to the variation of the two suppression orders that impact him. He has also filed two subpoenas. The DPP seeks to have the subpoena filed by Mr Bickley on 8 August 2024 set aside.
In this subpoena Mr Bickley seeks:
The Twelfth Defendant’s witness disclosure package as referred to at paragraph 41.2 of the confidential affidavit of Jaclyn Bain Urquhart sworn 17 July 2024.[1]
[1]The nature of the witness disclosure package sought is described more fully at paragraph 8(b).
Background
On 14 July 2024 the DPP filed an application to vary 64 suppression orders with the insertion of the following words:
PROVIDED THAT nothing in this order prevents the disclosure of information by the Director of Public Prosecutions for Victoria to potentially affected persons whose convictions may have been affected by the use of Ms Nicola Gobbo as a police informer, and the use of that material by potentially affected persons in any subsequent appeal proceeding commenced under the Criminal Procedure Act 2009 (Vic).
On 6 February 2024 both Mr Bickley, and the Thirtieth Defendant, referred to by the RCMPI pseudonym Mr Cooper (‘Mr Cooper’), filed written submissions in response to the DPP’s application to vary the suppression orders.
In summary, in those submissions Mr Bickley seeks an opportunity to check the disclosure material before it is disclosed to any potentially affected person (‘PAPs’).
Mr Cooper filed a subpoena in addition to his submissions seeking production of extracts from all disclosure packages. It is explained in the affidavits of Eli Fryar and Jaclyn Urquhart that there are three different types of disclosure packages that had been compiled by the Chief Commissioner of Victoria Police (‘the Chief Commissioner’) in respect of each of the PAPs. In respect of Mr Bickley, there are only two types of package that may contain his name, being the following packages:
(a)his individual disclosure package (which he has already been given by the DPP);
(b)his witness disclosure packages (which have been produced in two other proceedings: Ghazwan Farachi v the King and The Director of Public Prosecutions v Abdullahi Radi). This package consists of the individual package, already provided to the Twelfth Defendant, but with additional redactions that allowed the package to be disclosed to individuals against whom the Twelfth Defendant was a witness (‘witness disclosure package’).
For completeness, but of no relevance to Mr Bickley, in respect of other PAPs the Chief Commissioner has also compiled a third type of package described in the affidavit material as other Potentially Affected Persons’ co-offender disclosure packages.
In May 2024 the DPP reached an agreement with Mr Cooper whereby his subpoena was amended to require the DPP to provide Mr Cooper with his individual disclosure package.
The DPP explains that this was done as it would allow Mr Cooper to review the most complete and least redacted compilation of documents relevant to him that might allow him to identify any particular suppression order that might be breached if disclosure were to occur in accordance with the varied terms of the order sought by the DPP. This was information that would allow Mr Cooper to identify any reason why the operation of any suppression order should not be the subject to the proviso sought in the variation.
The DPP also explains that he had formed the view that there was no risk that this arrangement would itself be a breach of the suppression orders the subject of the application.
Because Mr Bickley had filed submissions in relation to the variation application in which he sought the opportunity to check the disclosure material, the DPP contacted Mr Bickley to advise of the arrangement reached with Mr Cooper and invited him to file a subpoena in the same form.
On 24 June 2024 Mr Bickley filed a subpoena requesting the production of ‘the twelfth defendant’s individual general disclosure package as referred to at paragraph 16 of the affidavit of Eli Joseph Fryar sworn 22 August 2023’.
The DPP complied with this subpoena and provided that package. The Court was informed by counsel for the DPP at the hearing of the matter that this package consisted of 2790 pages. The Court was also informed that the first 102 pages of this document is an index pinpointing all of the references to Mr Bickley in Tranche 1 material in his disclosure package, as identified by the Chief Commissioner.
Following on from receipt of this package, on 8 August 2024 Mr Bickley filed the subpoena the subject of the application to set aside. In this subpoena he sought production of ‘the twelfth defendant’s witness disclosure package as referred to at paragraph 41.2 of the affidavit of Jaclyn Bain Urquhart sworn 17 July 2024’.
The DPP objects.
Outline of the objection
The DPP objects to the subpoena on the following bases:
(a)there is no legitimate forensic purpose and that this subpoena amounts to a ‘fishing expedition’;
(b)production would be duplicitous and unnecessary where VicPol has already conducted extensive reviews of the documents (with no deficiencies identified in this process);
(c)the subpoena is an abuse of process as it only purpose it has is related to the form of the DPP’s disclosure materials, and not the ability of the DPP to disclose materials to PAPs which is the issue in the current proceeding.
In respect of legitimate forensic purpose the DPP made the following further points in both written submissions and oral argument:
(a)the authorities require that an issuing party demonstrate that the documents sought will materially assist their case;[2]
(b)it will be a fishing expedition if ‘all the party is trying to get hold of the documents to see whether they may assist him in his case’;[3] and
(c)a purpose, and even a legitimate purpose, are not necessarily a legitimate forensic purpose. The documents must be sought for a purpose related to the issues litigated in the case.
[2]Webb v Wheatley [2015] VSC 153, [55](e); Di Cesare v Bird [2021] VSC 25, [26].
[3]ACN 096 450 770 (aka AJH Lawyers Pty Ltd) v Mathieson Nominees [2017] VSC 559, [31]; Webb v Wheatley [2015] VSC 153, [55](b).
In respect of this last point, the DPP submitted that the point of the application, and the issue in the case, is the variation of suppression orders and not whether the product compiled in accordance with the variation sought continues to provide adequate protection for the defendants currently protected by them.
The DPP submitted that the provision of the redacted packages to Mr Bickley is unnecessary in the sense that he already has the most complete set of materials to use to assess the DPPs application for variation and raise issues in respect of that application.
The provision to Mr Bickley of the redacted packages creates the potential for the additional task of providing the same packages to other defendants. This would be a very large volume of material.
In Mr Bickley’s case, the redacted documents he seeks are ‘another nine versions of the material’.
The DPP submits that, to the extent that Mr Bickley’s purpose is to scrutinise these documents with his safety in mind, or have his lawyers do so, it is neither legitimate or forensic as that is not an issue in these proceedings.
Submissions from Mr Bickley
In his submissions dated 6 February 2024, Mr Bickley states that he is not opposed to the variation of the order. What he seeks is ‘that he should be able to check the materials with his legal advisors to protect himself and those close to him’ prior to disclosure.
In respect of his August subpoena, Mr Bickley says:
(a)he is in the best position to judge how the material might identify him, and by whom, and is in the best position to judge whether the material creates a risk to his personal safety;
(b)he should be able to ensure his safety by checking the materials before they are released, undertaking to do this within 14 days from receiving production; and
(c)production could be easily answered by the DPP.
Counsel for Mr Bickley responds to the DPPs submissions and says that it is hair splitting to argue there is no legitimate forensic purpose. There is, he says, no distinction to be drawn between their purpose in response to the application, the variation of the order and its application to holdings to produce disclosure packages thoroughly reviewed to ensure that Mr Bickley continues to be afforded protection.
Mr Bickley also submits that provision of the same package with greater redactions is necessary for efficiency because his legal representatives are not resourced to review the package already provided due to its size. Counsel for Mr Bickley estimated that it would take the legal representatives two weeks to review the redacted package(s). Counsel for Mr Bickley was unable to inform the Court how much of the 2,790 page document already provided had been reviewed in the three months his legal team have had it in their possession. Counsel for Mr Bickley was unable to direct the Court to an authority for the proposition that resourcing of the issuing party to review material produced was a consideration on an application to set aside.
Legitimate Forensic Purpose
The relevant considerations on an application to set aside a subpoena are well settled and commence with a consideration of whether a legitimate forensic purpose has been expressly identified by the party issuing the subpoena.[4]
[4]Webb v Wheatley [2015] VSC 153, [55].
This requires a consideration of the documents sought by subpoena and the issues between the parties in the proceedings.
But it is not simply a question of relevance that determines whether a subpoena will be upheld.[5] The issuing party must show that it is ‘on the cards’ that the documents sought will materially assist their case. The expression ‘on the cards’ means ‘reasonable possibility’.[6]
[5]Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; 37 ATR 432.
[6]Holloway v State of Victoria [2015] VSC 526, 17 citing Kyrou J in State of Victoria v Lane [2012] VSC 328; Di Cesare v Bird [2021] VSC 25, [23].
A subpoena will be set aside when the court determines that the production sought is excessively burdensome and the documents sought are of insufficient relevance or unnecessary to the determination of the proceeding.
‘It would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose’.[7] This would be an abuse of the subpoena process.
[7]National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, 382.
Consideration
Ahead of the court’s consideration and determination of his application to vary the suppression orders, the DPP has received collated disclosure packages from the Chief Commissioner that will be distributed in the event of variation of the orders.
In satisfaction of the subpoena filed on 24 June 2024 the DPP provided Mr Bickley with all of the documents that have been collated relating to him (his disclosure package). This totals 2790 pages, 102 of which are an index pinpointing references to Mr Bickley in the remaining pages. One month after this document was provided to Mr Bickley, he filed a further subpoena seeking, in essence, the same document in different form. That is, the witness disclosure package sought in the August subpoena is, in effect, a sub-set of material already produced in response to the first subpoena with redactions applied to it by Victoria Police based on claims of public interest immunity.
Mr Bickley says this is necessary and serves two purposes:
(a)It allows him to check that identifying information relating to him has been removed prior to disclosure; and
(b)It reduces the time and effort required for him to check the entire document for identifying information.
It will be recalled that Mr Bickley is responding to an application to vary multiple suppression orders two of which relate to him. It will also be recalled that he does not oppose the variation but, in his submissions filed on the issue of variation sought, he seeks to be given the opportunity to review the materials to be disclosed with his legal representatives before they are released. He has been provided this material in response to his 24 June 2024 subpoena.
These materials are also sufficient to allow him to address the court in respect of other issues he may seek to raise about safety or administration of justice.
It is unnecessary for Mr Bickley to have the redacted versions in order to be able to pursue forensic purposes.
I was not satisfied that provision of the redacted packages he seeks in his subpoena of 8 August 2024 would save time for him or his lawyers. In any event, his counsel was unable to direct the court to authority for the proposition that saving the time of the issuing party was a legitimate forensic purpose for a subpoena.
Mr Bickley’s subpoena of 8 August 2024 is set aside.
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SCHEDULE OF PARTIES
BETWEEN: | S ECI 2023 03018 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
-and- | |
STATE OF VICTORIA | First Defendant |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Second Defendant |
| CHIEF COMMISSIONER OF VICTORIA POLICE | Third Defendant |
COUNTY COURT OF VICTORIA | Fourth Defendant |
MAGISTRATES’ COURT OF VICTORIA | Fifth Defendant |
CORONERS COURT OF VICTORIA | Sixth Defendant |
(RCMPI PSEUDONYM MR AGRUM) | Seventh Defendant |
(RCMPI PSEUDONYM POLICE OFFICER 1) | Eighth Defendant |
NOEL ASHBY | Nineth Defendant |
DAVID BARTLETT | Tenth Defendant |
PHILLIP BATTICCIOTTO | Eleventh Defendant |
(RCMPI PSEUDONYM MR BICKLEY) | Twelfth Defendant |
CHRISTOPHER BINSE | Thirteenth Defendant |
(RCMPI PSEUDONYM MR ANDREWS) | Fourteenth Defendant |
JACQUES EL-HAGE | Fifteenth Defendant |
(RCMPI PSEUDONYM MR GREGORY) | Sixteenth Defendant |
|
|
| EVANGELOS (ALSO KNOWN AS ANGELOS AND EVAN) GOUSSIS | Eighteenth Defendant |
ABBEY HAYNES | Nineteenth Defendant |
(RCMPI PSEUDONYM MR MCGRATH) | Twentieth Defendant |
(RCMPI PSEUDONYM PERSON 12) | Twenty-First Defendant |
(RCMPI PSEUDONYM PERSON 16) | Twenty-Second Defendant |
ROB KARAM | Twenty -Third Defendant |
| ANTONIOS (ALSO KNOWN AS TONY) MOKBEL | Twenty-Fourth Defendant |
HORTY MOKBEL | Twenty-Fifth Defendant |
KABALAN MOKBEL | Twenty-Sixth Defendant |
ZAHAROULA MOKBEL | Twenty-Seventh Defendant |
MOHAMED ABDUL NAZEER | Twenty-Eighth Defendant |
|
|
(RCMPI PSEUDONYM MR COOPER) | Thirtieth Defendant |
LEIGH ROBINSON | Thirty-First Defendant |
SHARON ROPA | Thirty-Second Defendant |
(RCMPI PSEUDONYM MR THOMAS) | Thirty-Third Defendant |
ROBERTA WILLIAMS | Thirty Fourth Defendant |
ANIL SURI | Thirty-Fifth Defendant |
PASQUALE BARBARO | Thirty-Sixth Defendant |
SAVERIO ZIRILLI | Thirty-Seventh Defendant |
(RCMPI PSEUDONYM MR BOYD) | Thirty-Eighth Defendant |
(RCMPI PSEUDONYM MR DUNLOP) | Thirty-Ninth Defendant |
(RCMPI PSEUDONYM MR KING) | Fortieth Defendant |
(RCMPI PSEUDONYM MR KELVIN) | Forty-First Defendant |
(RCMPI PSEUDONYM MR KEARNEY) | Forty-Second Defendant |
(RCMPI PSEUDONYM MR HASTINGS) | Forty-Third Defendant |
(RCMPI PSEUDONYM MR NEWTON) | Forty-Fourth Defendant |
| (RCMPI PSEUDONYM MR COOPER’S RELATIVE) | Forty-Fifth Defendant |
(RCMPI PSEUDONYM MR SATURN) | Forty-Sixth Defendant |
(RCMPI PSEUDONYM RILEY STEVENSON) | Forty-Seventh Defendant |
(RCMPI PSEUDONYM MR KHAN) | Forty-Eighth Defendant |
(RCMPI PSEUDONYM MR THEODORE) | Forty-Ninth Defendant |
AZZAM (ADAM) AHMED | Fiftieth Defendant |
MARIJAN (MARK) BANDA | Fifty-First Defendant |
JANETTE CANNIZZARO | Fifty-Second Defendant |
ANTON CLAITE | Fifty-Third Defendant |
PAUL DALE | Fifty-Fourth Defendant |
GHAZWAN FARACHI | Fifty-Fifth Defendant |
MICHAEL HADDAD | Fifty-Sixth Defendant |
MATTHEW JOHNSON | Fifty-Seventh Defendant |
ZYNAL KHAN | Fifty-Eighth Defendant |
NOEL LAURIE | Fifty-Ninth Defendant |
JAMES MAIN | Sixtieth Defendant |
MICHAEL MANARITI | Sixty-First Defendant |
DAVID MIECHEL | Sixty-Second Defendant |
TOBY MITCHELL | Sixty-Third Defendant |
COLLEEN O’REILLY | Sixty-Fourth Defendant |
GEORGE PROIMOS | Sixty-Fifth Defendant |
ABDULLAHI RADI | Sixty-Sixth Defendant |
FADI SARKIS | Sixty-Seventh Defendant |
FAYEZ FADI SARKIS | Sixty-Eighth Defendant |
ANTONIO (TONY) SERGI | Sixty-Ninth Defendant |
| |
| |
RASIM (SAM) TEZER | Seventy-Second Defendant |
STEPHEN THORNEYCROFT | Seventy-Third Defendant |
| COMMISSIONER OF THE AUSTRALIAN | Seventy-Fourth Defendant |
(RCMPI PSEUDONYM PERSON 3) | Seventy-Fifth Defendant |
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