Karageorge, C. v National Crime Authority
[1995] FCA 295
•8 May 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 892 of 1994
)
GENERAL DIVISION )
BETWEEN: CONSTANTINE KARAGEORGE
Applicant
AND: NATIONAL CRIME AUTHORITY
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 8 May 1995
REASONS FOR JUDGMENT
This judgment concerns an application to stay or summarily dismiss an application. On 19 December 1994 an application was filed in the Registry of the Court which is now said to be an application under s39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") and under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act").
The application identified Mr Constantine Karageorge as the applicant and the National Crime Authority, the Commissioner for Australian Federal Police, the Commonwealth of Australia and the Commonwealth Director of Public Prosecutions as the first, second, third and fourth respondents respectively.
The application was in the following terms:
"APPLICATION UNDER TELECOMMUNICATIONS (INTERCEPTION) ACT, 1979 - s45
Upon the grounds appearing in the Affidavit filed herein the Applicant claims:-
Orders including interlocutory orders that the Respondent supply to the Applicant within three days of the date of order copies of all Affidavits and documents used and relied upon for the issue of various warrants referred to in the schedule hereto.
For such further or other orders as to this Honourable Court shall be deemed necessary.
Costs."
Annexed to the application was a schedule setting out in columns the date upon which a number of warrants were issued, the names of the issuing judges and the Act authorising their issue. While the application refers to grounds appearing in an affidavit, the affidavit of Mr Mark Hunter, solicitor, of 16 December 1994 did not, in terms, identify grounds. The affidavit recounted that Mr Karageorge had been arrested in July 1994 and charged with offences under Commonwealth and New South Wales law, that the charges were founded on evidence obtained from telephone intercepts and listening devices and that the Commonwealth Director of Public Prosecutions had refused to supply copies of the affidavits which led to the issue of the warrants authorising the telephone interception and the use of the listening devices.
It would appear from the Court file that the matter came before this Court on 3 March 1995 when Davies J gave the applicant leave to file an amended application and the first respondent leave to file in Court the notice of motion with which I am presently dealing. The amended application filed in Court was in the same terms as the original application save that the schedule was amended by both deletions and additions.
On 23 March 1995 a further amended application was filed which was in the following terms:
"Application pursuant to Section 39B of the Judiciary Act and Administrative Decisions (Judicial Review) Act.
Upon the grounds appearing in the Affidavit filed herein the Applicant claims:-
Orders including interlocutory orders requiring officers of the first Respondent being officers of the Commonwealth to supply to the Court and/or the Applicant within three days of the date of order copies of all Affidavits and documents used and relied upon for the issue of various warrants as set out in the schedule and which purported to be issued pursuant to Section 16 of the Listening Devices Act (NSW); Section 12G(4) of the Australian Federal Police Act; Section 45 of the Telecommunications (Interception) Act and pursuant to Section 10 of the Crimes Act.
Orders including interlocutory orders for a Judicial Review pursuant to the Administrative Decisions (Judicial Review) Act of the issue of warrants pursuant to Section 10 of the Crimes Act and of the sufficiency and correctness of the Affidavits and documents used and relied upon for the issue of the said warrants.
A declaration that the said warrants issued pursuant to the abovesaid acts and the affidavits and material relied upon the for issue of the said warrants infringed the principles of legal professional privilege and should not have been issued.
Orders including interlocutory orders setting aside the said warrants.
For such further or other orders as to this Honourable Court shall be deemed necessary.
Costs."
It is to be noted that this document identified only one respondent, namely the National Crime Authority. While this
further amended application was not filed pursuant to any order of the Court, it is accepted by the respondent that its notice of motion for summary dismissal can be dealt with by reference to this further amended application. The accompanying affidavit that the further amended application refers to, contains paragraphs which might be thought to identify the grounds upon which the application is made. The relevant paragraphs read:
The warrants issued pursuant to Section 16 of the Listening Devices Act (NSW) and Section 45 of the Telecommunications (Interception) Act were issued for the purpose of recording conversations between the Applicant and his clients.
It is submitted that such conversations were subject to legal professional privilege and that the warrants should not have been issued or executed.
In the alternative it is submitted that the Affidavits and other material relied upon by the first Respondent to obtain the warrants did not sufficiently disclose the prospective breach of legal professional privilege.
Other warrants were issued by Magistrates pursuant to Section 10 of the Crimes Act and it is submitted that the Applicant is entitled to have produced to the Court or himself the Affidavits and material upon which these warrants were issued.
It is further submitted that the Applicant is entitled to have produced to the Court or to himself the Affidavits and other material relied upon for the issue of all warrants including those issued pursuant to Section 16 of the Listening Devices Act (NSW), Section 12G(4) of the Australian Federal Police Act and Section 45 of the Telecommunications (Interception) Act."
The matter was listed before me on 13 April 1995 for the hearing of the respondent's notice of motion to summarily dismiss or stay the application. An application to adjourn the matter was made by the applicant and, though opposed, was granted. Of some significance was that senior counsel for the respondent provided both the Court and the applicant's counsel with a copy of an outline of its submissions to which I now turn.
The application by the respondent to have the principal application dismissed or stayed was based on several grounds though they were related. The first was that the application failed to comply with O54 and O54A. The combined effect of O54r2 and O54Ar3(2) of the Federal Court Rules is that an application under the ADJR Act and s39B of the Judiciary Act should be made in conformity with Form 56. In relation to an application under the ADJR Act the purpose of these provisions is, in a case such as the present, to require the applicant to identify the person whose decision or conduct is to be impugned, to identify the conduct or decision with specificity, to identify the basis upon which the applicant has standing to bring the application, to provide particulars of the grounds upon which the decision or conduct is sought to be impugned and to set out the order sought.
Even on the most benevolent reading of the further amended application and accompanying affidavit, either these matters are not addressed or are addressed in an unclear and often ambiguous way. This remains the case notwithstanding that at least from 13 April 1995 the applicant was on notice that the respondent intended to raise this matter in furtherance of its notice of motion.
The combined effect of O54Ar3(2) and Form 56 is to require the provision of similar information in a related claim brought under s39B of the Judiciary Act. The further amended application does not identify the officer or officers of the Commonwealth in respect of whom the application is made: see Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 and Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 575, the grounds upon which relief is sought or, with any specificity, the nature of the relief itself.
At the hearing on 3 May 1995 counsel for the applicant indicated that in so far as warrants had issued under s10 of the Crimes Act 1914 (Cth) ("Crimes Act"), the application was pursued under the ADJR Act and that it was, in relation to other warrants that had been issued and referred to in the schedules to the applications in their various forms, pursued under s39B of the Judiciary Act.
The respondent went on to submit that each of the orders sought were, for various reasons, orders that would not or could not be made by this Court. At this point it is unnecessary for me to deal with the submissions conclusively.
In the course of responding to those submissions, counsel for the applicant touched upon one matter that might be justiciable in this Court, namely whether an officer of the Commonwealth was under a duty, enforceable by a writ of mandamus or injunction, issued under s39 of the Judiciary Act to provide copies of affidavits by reference to which warrants issued which led to the securing of evidence to be used in a prosecution because a prosecutor may be obliged to provide an accused with material relevant to the accused's defence. In response to a request I made, senior counsel for the respondent referred me to Ward (1993) 96 Crim AR 1, Davis (1993) 97 Crim AR 110, Keen (1994) 99 Crim AR 1, R v Cheung Ying Lun, Badgery-Parker J, unreported, 26 November 1992 and Jago v District Court (NSW) (1989) 168 CLR 23 at 57.5 which broadly indicate the existence of an obligation of the prosecutor to provide material to an accused.
However any proceeding raising that issue would presumably also raise an issue, which was adverted to by senior counsel for the respondent, of whether a collateral attack can be made on warrants and thus whether the affidavits which led to their issue are in a class of document that a prosecutor might be obliged to disclose. The balance of judicial opinion, it was submitted, suggests that warrants are not amenable to such an attack: Murphy v The Queen (1989) 167 CLR 94; Love v Attorney General (NSW) (1989-1990) 169 CLR 307; Carroll v Attorney General (NSW) (1993) 70 ACrimR 162; Karina Fisheries v Mitson (1990) 95 ALR 557; Malcolm v Selby, unreported, NSW Court of Appeal, 3 June 1994. A related issue that might arise and again was adverted to by senior counsel for the respondent would be whether, in any event, their production could be resisted on the grounds of public interest immunity. Even if these matters were decided in favour of the applicant and he otherwise established a case for the grant of a remedy under s39B, a question may then arise whether it was appropriate for this Court to grant relief given that the production of the material by a prosecutor might be a matter capable of being dealt with by the Court dealing with the charges themselves. There are many cases where this Court has manifest a reluctance to intervene in a way that might interfere with the conduct of criminal proceedings: see Jarrett v Seymour (1993) 119 ALR 46 at 62 per Sheppard J.
In so far as the principal application seeks to raise a matter under the ADJR Act I presently have no real appreciation of the applicant's case if there is one. It was suggested by counsel for the applicant that the warrants issued under s10 of the Crimes Act should not have issued because it was "on the cards" that they were issued by a Justice who did not have an appreciation of the fact that the applicant was, in relation to a Mr McPherson, his solicitor and that questions of legal professional privilege might arise in relation to documents to which the warrants were directed. The notion of "on the cards" was drawn from the judgment of Hunt J in R v Salean (1989) 10 NSWLR 14 at 20. That was an appeal determined by the New South Wales Court of Criminal Appeal concerning the circumstances in which a trial should grant access to counsel for an accused to material concerning a police investigation which had been produced on subpoena. It was said that access should be granted if it is "on the cards" that the documents would materially assist the accused. However I presently do not see the relevance of that legal principle to proceedings that might be maintained under the ADJR Act unless the order seeking the production of the informations relied upon by the Justices issuing the warrants under s10 is, in truth, sought as some form of pre-trial discovery or notice to produce in such an application. It is by no means clear that it is.
At the conclusion of the hearing counsel for the applicant sought leave to amend the application. The applicant faces serious criminal charges. In those circumstances the applicant should be afforded a further opportunity to recast the application given that there may be an issue of substance he wishes to raise. I am not entirely satisfied that having regard to the submissions that were made on his behalf at the hearing on 3 May 1995 he has no justiciable claim. That amended application should be filed and served within fourteen days of the date of this judgment. The amended application should be accompanied by an affidavit setting out all the facts upon which the applicant relies. I require the applicant to file and serve by the same time an outline of the submissions that will be made in support of the application.
I propose to adjourn these proceedings to 24 May 1995 at 9.00am. If by that time no amended application has been filed or it has been filed but discloses no reasonable basis for the application or is otherwise within the purview of O20r2, I will dismiss the application with costs.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Date:8 May 1995
Counsel for the Applicant: Mr C. Evatt QC &
Mr S. Baker
Counsel for the Respondent: Mr P. Hastings QC &
Mr P. Renehan
Solicitor for the Respondent: Australian Government
Solicitor
Date of hearing: 3 May 1995
Date of judgment: 8 May 1995
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