Police v Abram
[2011] QMC 22
•23 August 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Abram [2011] QMC 22
PARTIES:
POLICE
(prosecution)
COMMISSION OF THE QUEENSLAND POLICE SERVICE
(witness)
v
ABRAM, Geoffrey William
(applicant/defendant)
FILE NO/S:
MAG-00244364/10(1)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for production of documents
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
23 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
26 July 2011
MAGISTRATE:
Judge Butler SC, Chief Magistrate
ORDER:
1. Items 7 and 9-13 of the Summons of a Witness are struck out;
2. I direct that the Commissioner of the Queensland Police Service:Produce to the Court at the next adjournment date the documents referred to in Items 16 and 17 of the summons; and(a)
File with the Court and serve on the applicant any affidavit material in support of a claim of public interest immunity no later than 7 days prior to the next adjournment date.(b)
3. I direct that the Director of Public Prosecutions file with the Court and serve on the Applicant any affidavit material on the issue of possession of the documents referred to in Item 16 and 17 of the summons no later than 7 days prior to the next adjournment date.
4. Should the Director of Public Prosecutions seek to raise objection on the basis of public interest immunity to production of the documents referred to in Items 16 and 17, I further direct that the Director give notice to the Applicant under s590AQ and file with the Court and serve on the Applicant any material in support of that objection no later than 7 days prior to the next adjourned date.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION FOR PRODUCTION OF DOCUMENTS SUBJECT OF SUMMONS OF A WITNESS - production of documents in Register of Covert Acts - public interest immunity – legitimate forensic purpose
Justices Act 1886 (Qld), s 78, s 83, s 83A
Police Powers and Responsibilities Act 2000 (Qld), s 673
COUNSEL:
B Ryan (sol) for the applicant
E Kennedy for the witness
MJ Hynes for prosecution
SOLICITORS:
Brendan Ryan Legal for the applicant
Queensland Police Service Solicitor for the witness
Director of Public Prosecutions for prosecutions
The applicant Geoffrey William Abram seeks production of documents pursuant to a summons of a witness directed to the Commissioner of the Queensland Police Service (the Commissioner) requiring that he attend before the Magistrates Court on 11 July 2011. On that date a legal representative appeared on behalf of the Commissioner and objected to production of certain requested documents. Also a legal representative appeared on behalf of the Director of Public Prosecutions who has carriage of the prosecution in this matter.
When the subject matter of the application was brought to my attention I advised the parties that I had, until 6 to 7 years ago, been a member of the Controlled Operations Committee in my position as Chairperson of the Crime and Misconduct Commission. Each of the parties indicated that they had no objection to my sitting to hear the matter.
The applicant stands charged before this Court with offences of trafficking in cannabis over a period from 1 August 2010 to 15 September 2010. Trafficking is an offence which can not be dealt with summarily. The matter is at the pre-committal stage before the Brisbane Magistrates Court, a committal hearing date not having yet been set.
The relevant summons of a witness was issued pursuant to s 78 and s 83 of the Justices Act 1886 by a Justice of the Peace. It required the Commissioner to “produce all documents and writing in your possession or power” in respect of 21 nominated items, being 18 documents and 3 items seeking information.
The applicant has been provided with 5 items and advised that 8 items do not exist. The applicant accepts that advice. The Commissioner objects to the production of 8 items. Two of these items specify information rather than documents, but they should be read as referring to any documents describing or containing that information. As the Commissioner has not denied the existence of the 8 requested items, I proceed on the assumption that the documents exist
The hearing of this application is authorised under s 83A of the Justices Act1886 which provides the process by which a magistrate may hear an application for a direction about the conduct of a proceeding. Any direction made will be binding unless leave is given to reopen.[1]
[1] Section 83A (6), Justices Act 1886
Items 7,9,10, 11, 12, 13 (in part), 16 and 17 remain in contest. They are described as follows:
7. The formal application made by a police officer of the Queensland Police Service, for authority to conduct a Controlled Operation under part 3 of chapter 11 Police Powers and Responsibilities Act 2000, to an Assistant commissioner in proceedings nominated as Operation Hotel Dragon which commenced on the 28th day of January 2010 for which a Controlled Operations Certificate was signed on or about the 28th day of January 2010.
9. A copy of the recommendation of the Controlled Operations Committee provided to an Assistant Commissioner in relation to the Controlled Operations Certificate which was signed for Hotel Dragon by an Assistant Commissioner on or about the 28th day of January 2010.
10. The identity of the Controlled Operations Committee members that considered the formal application made by a police officer to an Assistant Commissioner for a Controlled Operations Certificate which was signed for Hotel Dragon on or about the 28th day of January 2010.
11. The date and time that the formal application was forwarded to the Controlled Operations Committee, the date and time the Controlled Operations Committee considered the application by a police officer, the date and time the Controlled Operations Committee forward its recommendation to an Assistant Commissioner, the date and time the Assistant Commissioner received the recommendation from the Controlled Operations Committee to approve a Controlled Operations Certificate for Operation Hotel Dragon which was signed on or about the 28th day of January 2010.
12. A copy of the report made to the report entity for the Queensland Police Service in relation to this controlled operation for Hotel Dragon on a date following the 28th day of January 2010 and if more than one report, a copy of all reports.
13. A copy of all applications to vary any Controlled Operations Certificate that were made following the commencement of Operation Hotel Dragon and or following the certificates approving Controlled Operations during Operation Hotel Dragon in 2009 and/or 2010, together with all certificates approving the variation of the original Controlled Operations Certificate.
16. A copy of the application for a prospective data warrant which was taken out on the 31st August 2010 issued against mobile phone service 0402 818 650.
17. A copy of the prospective data warrant which was signed on or about the 31st day of August 2010 by an authorising person.
The Commissioner objects to the production of these documents on the following bases:
§ The Commissioner's position in relation to items 7, 9-12 and 13 (the application to vary a controlled operation) listed in the summons is that the documents are not in the custody or control of the Commissioner nor are they owned by the Commissioner.
§ The Commissioner respectfully submits that items 7, 9-12 and 13 (the application to vary a controlled operation) listed are unable to be produced as disclosure is prohibited pursuant to Chapters 11 and 21 of the Police Powers and Responsibilities Act 2000 (PPRA) which relates to controlled operations.
§ The Commissioner maintains that items 7, 9-12 and 13 (the application to vary a controlled operation) and 16-17 should not be disclosed as the disclosure is contrary to the public interest. The legislative basis for this objection can be found in s 590AQ of the Criminal Code Act 1899, s 803 of the Police Powers and Responsibilities Act 2000 and is also a principle of the common law.
Furthermore, counsel for the Director of Public Prosecutions (DPP) submitted that in so far as the applicant seeks documents relating to the issue of a Controlled Operation Certificate, disclosure of that material is unnecessary as the documents sought are not relevant to the proceedings against the applicant. In short, it is argued that the applicant was identified from telephone intercepts and not as a result of any covert methods approved under a Controlled Operation Certificate.
The applicant is of the view that interest in him developed from police investigation of a person Damian Walker. That person was the main target of Operation Hotel Dragon in respect of which a Controlled Operation Certificate was issued. The applicant argues that scrutiny of the documents sought is necessary to determine whether the Controlled Operations Committee did indeed approve the police application. He argues that the defence is entitled to ensure the proper procedures as legislated were followed. It is asserted that if there were a deficiency in this process then the defence would be entitled to challenge the admissibility of evidence obtained as a result.
Before considering the possible content of the documents sought and their relevance to the case against the applicant, it is necessary that I consider the preliminary objections of the Commissioner.
I first direct my attention to Items 7, 9-12 and 13 (the application to vary a controlled operation) whose disclosure is said to be prohibited pursuant to the provisions of the Police Powers and Responsibility Act 2000 (PPRA).
Are the Item 7, 9 – 12 and 13 documents in the custody or control of the Commissioner?
The Commissioner submitted in argument that the relevant items constitute material relating to a Controlled Operation. It was asserted from the Bar table that these documents are held on the Register of Covert Acts and not anywhere else. No information was placed before me as to the physical form of the Register. I assume that it is some form of document repository.
Under s 664 of the PPRA the police service must keep a register of covert acts. A “covert act’ is defined to include the making of a Chapter 11 application and to include the exercise of powers under an authorisation for a controlled operation[2]. Chapter 11 of the PPRA relates to Controlled Operations.
[2] Dictionary, Schedule 6, PPRA
The Commissioner is required to keep a number of specified documents relating to controlled operations and to keep a general register which must be, or form part of, the Register of Covert Acts.[3]
[3] Subsection 270 and 271, PPRA
The Police Service may, pursuant to s 664(3), keep its register in the way the Commissioner considers appropriate.
Restriction is placed on who may inspect the police service register. Section 673 reads:
“(1) The register of covert acts kept by the police service is not open to inspection by anyone other than –
(a) the commissioner; or
(b) a monitor; or
(c) the CMC chairperson.
(2) However, the CMC chairperson must give the commissioner reasonable notice of intention to inspect the register.”
The Commissioner may authorise other persons to inspect the Register for purposes specified under and limited by the PPRA. [4]
[4] Section 675 PPRA
The submission of the Commissioner to this Court is that documents in the Register are not in his ownership, custody or control. It is argued the Register “is owned by the Controlled Operations Committee consisting of the Commissioner of the Queensland Police Service, a monitor and the CMC Chairperson”.
I reject this argument. The Controlled Operations Committee has no legal personality. The Commissioner holds the statutory duty to keep certain documents relating to controlled operations and to keep the Register. He determines the way in which it is kept and is enabled under the legislation to both inspect and authorise others to inspect the Register.
I find that documents forming part of the Register of Covert Acts are within the custody and control of the Commissioner.
Is the Commissioner prohibited by the PPRA from producing the documents to the court?
Reliance is placed on s 673 to argue that the Commissioner may not produce the documents in answer to the summons.
That section provides that the register of covert acts is not open to inspection “by anyone” other than those specified.
A similar provision was considered by the Court of Appeal in Von Snarski v Criminal Justice Commission [1998] 1Qd R 562 where all members of the court held that a requirement in s 99 of the Criminal Justice Act 1989 providing that CJC records “shall not be made available for inspection by any person without the express authority in writing of the chairperson” did not prevent disclosure in answer to a summons under s 83 of the Justices Act.
The basis for this conclusion was expressed in the joint judgement of Pincus and Davies JJA in the following passage:
“Doubt has been expressed, in respect of provisions similar to s 99, as to whether a phrase such as "any person" includes a court so as to preclude the production in evidence of any such record or thing in the possession of the Commission. See Miller v. Miller (1978) 141 C.L.R. 269 at 277; Hilton v Wells (1985) 157 CLR 57 at 87. In our view that doubt is well founded. We would construe s 99 as not prohibiting the tendering in evidence in court and the subpoenaing for that purpose of documents or other things in the possession of the Commission; that view is consistent with the construction given to s 7(4) of the Telecommunications (Interception) Act 1979 (Cth) in Hilton v. Wells (at 76), which was applied in Sankyo Steamship Co. Ltd v. Sumitomo Australia Ltd (1992) 37 F.C.R. 353.”
I consider that decision is applicable to this matter where limitation is placed on “inspection by anyone”. The term “anyone” is defined in the Macquarie Dictionary as meaning “any person; anybody”. The PPRA was enacted after the decision in Von Snarski and had the Parliament intended to prevent disclosure to a Court it could have easily made that clear in the legislation.
In my view the Commissioner is not prevented by operation of the PPRA from disclosing the relevant documents to the Court in answer to the summons.
As a matter of completeness I draw attention to s 266(1) of the PPRA which makes it an offence for a person to disclosure information without authorisation. The subsection reads as follows:
“Unauthorised disclosure of information
(1) A person commits an offence if—
(a) the person intentionally, knowingly or recklessly discloses any information; and
(b) the person knows that, or is reckless as to whether, the information relates to an authorised operation or a corresponding authorised operation; and
(c) the person knows that, or is reckless as to whether, the disclosure is not made—
(i)with the approval of the chief executive officer of the relevant law enforcement agency; or
(ii)in connection with the administration or execution of this chapter or a corresponding law; or
(iii)for the purposes of any legal proceeding arising out of or otherwise related to this chapter or a corresponding law or of any report of the proceeding; or
(iv)under any requirement imposed by law; or
(v)under another law.”
It is apparent that it is not an offence under this section for disclosure to be made under a requirement imposed by law.
The public interest objection - test to be applied.
Having rejected these initial objections to the production of the documents, I must now turn to the Commissioner’s further submission that disclosure of the material would be contrary to the public interest.
The Commissioner relied on the public interest objection in the alternative in respect of the controlled operations documents and as his primary argument in respect of Items 16 and 17.
The test to be applied when considering any objection to the production of documents under a subpoena has been the subject of considerable judicial consideration.
When considering such an objection in R v Moti [2009] QCS 293, Martin J acknowledged he was bound by the decision in Alister v R (1983) 154 CLR 404. In applying that High Court decision his Honour received considerable assistance from the judgement of the Court of Criminal Appeal of New South Wales in Attorney-General (NSW) v Chidgey (2008) 182A Crim R 536.
His Honour found the correct test to be that set out in the reasons of Beasley JA in Chidgey:
“The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms:
The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.
Legitimate forensic purpose – test to be applied
The issue that remains is whether the applicant has identified a legitimate forensic purpose for obtaining the documents and whether such a purpose has been established.
The test of legitimate forensic purpose is applied in the context of a balancing process between the interest of an accused person whose liberty may be at stake and the public interest in protecting the integrity of current and future police investigations. This balance is recognised at Common Law and also in the PPRA at 803 which reads:
“803 Protection of methodologies
(1)In a proceeding, a police officer can not be required to disclose information mentioned in subsection (2), unless the court is satisfied disclosure of the information is necessary—
(a) for the fair trial of the defendant; or
(b) to find out whether the scope of a law enforcement investigation has exceeded the limits imposed by law; or
(c) in the public interest
(2)The information is information that could, if disclosed, reasonably be expected—
(a) to prejudice the investigation of a contravention or possible contravention of the law; or
(b) to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; or
(c) to endanger a person’s life or physical safety; or
(d) to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; or
(e) to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety; or to facilitate a person’s escape from lawful custody.”
The applicant’s submission appears to proceed from the premise that he has a right or entitlement to access the information unless production is specifically excluded under legislation. That reverses the onus which, as can be seen from the statement of the test given above, falls upon the applicant. The applicant must establish a legitimate forensic purpose for accessing the material.
The judgement in Attorney-General (NSW) v Chidgey[5], which incidentally involved a subpoena to produce documents completed by police in accordance with requirements of the New South Wales Controlled Operations Act, is also of considerable assistance in reviewing the authorities on the principles governing determination as to whether a legitimate forensic purpose has been disclosed.
[5] [2008] NSWCCA65
The judgement of Beasley JA, with whom the other members of the court agreed, explained as follows:
“[58] The principles that govern the application of a party to produce documents pursuant to a subpoena are well settled. In this regard, the basic principle was stated by Jordan CJ in Commissioner for Railwaysv Small (1938) 38 SR NSW 564 at 575:
… a party is no more entitled to use a subpoena ... than he is a summons for interrogatories, for the purpose of ‘fishing’, ie, endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ... (Emphasis added) (Citations omitted).”
Referring to comments by Mahoney AP in Carroll v Attorney-General for New South Wales[6] Beasley JA said:
[6] (1993) 70 A Crim R 162
“[60] His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued:
‘In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief’ referred to in s 16(l). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient.”[7]
[7]Attorney-General (NSW) v Chidgey at [60]
His Honour explained that the second element of the test in R v Saleam[8], that is, that it must be “on the cards” that documents would materially assist the case, subsumes in it the notion that “mere relevance” is insufficient.
[8] [1999] NSWCCA 86 at [11]
Beasley JA noted that the expression “on the cards” is to be found in the judgement of Gibbs CJ in Alister v R[9] where His Honour said:
“Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence”.[10]
[9] [1983] HCA 45; (1984) 154 CLR 404 at 414
[10]Alister v R per Gibbs J at 414
Beasley JA went on to comment as follows:
“[68] The approach of Gibbs CJ in Alister has been consistently adopted and applied in this state. An early, useful example is Principal Registrar of the Supreme Court v Tastan. Barr AJ (as his Honour then was) said, at 499 that there will be no legitimate forensic purpose if, ‘all the party is doing is trying to get hold of the documents to see whether they may assist him in his case’: see The Commissioner for Railways v Small. His Honour noted that there was nothing in the case before him that made it appear to be ‘on the cards’ that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents ‘to see whether he had a [defence]’.[11]
[11] Attorney-General (NSW) v Chidgey at [68]
Chidgey involved a subpoena for documents created to comply with the requirements of the New South Wales Controlled Operations legislation. At first instance the magistrate held the defendant should be allowed access to the documents to “check” that there had been compliance with the requirements of the Law Enforcement (Controlled Operations) Act. He identified this as a legitimate forensic purpose and found that if there had been non compliance, it was “on the cards” that an argument to exclude the evidence could be mounted.
The Court of Criminal Appeal reasoned that the nature of the documents was known and they were relevant to the criminal proceedings because they were brought into existence for the purpose of authorising the purchase of the drugs, but the question remained as to whether it was “on the cards” that those documents would materially assist the defendant’s case.
Beasley JA, with whom the other members of the Court agreed, said:
“[84] Notwithstanding that the subpoena sought documents that were identifiable, I am of the opinion that the legitimate forensic purpose identified by the Magistrate amounts to no more than a proposition that the respondent was entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A). That is apparent from the terms in which the Magistrate identified the forensic purpose. There was no material before the Magistrate to indicate that there had been, or might have been, non-compliance with s 5(2A).
[85] This is acknowledged in his Honour's comment that there should be access to the documents to enable the respondent to check whether there had been compliance with s 5(2A). In other words, the Magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents "to discover whether he has a case at all": see The Commissioner for Railways v Small at 575. As Jordan CJ stated in that case, a party is not entitled to use a subpoena for that purpose.”
The Court held that the Magistrate erred in allowing access to the material.
Production of documents pursuant to the summons
As stated above it is necessary for the applicant to establish a legitimate forensic purpose. Regrettably the written outline of argument of the applicant doesn’t particularise, in respect of the controlled operations material, what he claims to be the forensic purpose. The applicant sought to provide this information in his oral submissions and I endeavoured to summarise it in paragraph [10] above.
In short, the submission is that the applicant wishes to see the documents to check if the investigators failed to comply with their statutory obligations. There is no evidence (or for that matter information) before me to suggest that the investigators did fail to comply with their obligations.
The applicant’s submission is based on a premise stated in oral argument that the applicant was charged as a result of a controlled operation in respect of Operation Hotel Dragon. The DPP submit that was not the case.
The applicant also submits that the Covert Register information contains nothing that could, if disclosed, cause detriment to any person, identify confidential sources of information or prejudice police methods or procedures. The Commissioner submits to the contrary.
The applicant’s outline does seek to develop an argument as to why there is a legitimate forensic purpose for the disclosure of items 16 and 17, a data warrant application and a data warrant respectively.
In summary, the argument is that information obtained pursuant to the warrant sought gave rise to a claim in a police document (which appears to be a type of running log) supplied as part of the brief, that the applicant used a particular mobile service number. I proceed on the assumption that use of this number is relevant to proof of the prosecution case. Submissions on behalf of the Commissioner did not specifically address why there is an objection to the release of items 16 and 17 as distinct from objection to release of the controlled operation documents.
The public interest objection.
The objection of the Commissioner to production of the summonsed documents is particularized as follows:
“The Commissioner submits that the disclosure of the material requested at items 7, 9-13 (the application to vary a controlled operation) and 16-17 in the summons would:
(a) Enable the existence or identity of a confidential source of information in relation to the enforcement or administration of the law to be ascertained;
(b) Endanger a person's life or physical safety; and
(c) Prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law.
The disclosure of the material would cause these effects because:
(d) the material identifies past and potential future human sources of information;
(e) intelligence of this kind may no longer be forthcoming if the identity of informants are not protected;
(f) the use of covert methods of investigation rely heavily on the confidentiality of the methodologies to ensure their effectiveness. In particular, prospective data is a valuable intelligence tool for tracking the activities of offenders covertly.
It is respectfully submitted that the sensitive and covert nature of the material would disclose police methodologies for these covert activities, reducing the effectiveness of the covert methods, particularly in relation to the prospective data material.”
These statements of fact are proffered from the Bar table and are not supported by any affidavit material. Furthermore, the statements do not detail which of the items they specifically relate to or how they so relate.
The DPP has submitted that “covert methods were not employed by the investigating police with respect to the applicant and did not lead to police discovering his involvement in the operation.” Once again no evidence has been led by way of affidavit in support of these statements of fact.
Furthermore the Commissioner has not produced to the Court the documents sought. This may be explicable in respect to the Controlled Operations documents where it was submitted the Commissioner is restrained by legislation from doing so. I see no reason why the documents in Items 16 and 17 have not been produced to the Court.
The usual practice is for documents the subject of a subpoena to be produced to the Court, if necessary in a sealed envelope, and it is then for the Court to determined, after receiving submissions, whether it should view the documents and whether the documents should be released to the other party.
Has the applicant demonstrated a legitimate forensic purpose in respect of the Controlled Operation material?
The material sought by the applicant in respect of the Controlled Operation is know to exist and in light of my ruling on the preliminary points is capable of production. In the absence of sworn evidence to the contrary, I proceed on the basis that the documents sought were brought into existence for the purpose of authorising Operation Hotel Dragon and that information obtained as a result of that Operation was utilised in the course of the investigation of the applicant and his co-offenders. I therefore proceed on the basis that the documents sought are relevant to the criminal proceedings against the applicant.
I now turn to whether the applicant has demonstrated that is it is “on the cards” that those documents will materially assist his case.
The applicant identified his forensic purpose as being to determine whether the legislative requirements had been complied with. He argued that if there was a defect in compliance in a material particular the admissibility of the evidence obtained as a result of the operation could be challenged. No basis was advanced for suggesting that in this particular investigation there was any failure to follow correct procedures. Mr Ryan alluded to concerns about the validity of a Controlled Operation approval in another case in the past. This concern amounted to no more than a suspicion which was never pursued.
There is no material before me indicating that there was or might have been non-compliance with the provisions of the PPRA in respect of this operation. As pointed out in Chidgey, mere relevance is not enough. Here the applicant is seeking access in the hope of finding some defect or in other words “to see whether he had a [defence]”[12]. That is not a permissible use of the summons. For the reasons given by Beasley JA in Chidgey, there is nothing to suggest that it is “on the cards” that the documents summonsed would materially assist the applicant’s case.
[12]Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 at 499
It follows that the summons, in so far as it relates to items 7, 9 -12 and 13, should be struck out.
Has the applicant demonstrated a legitimate forensic purpose in respect of Items 16 and 17?
The items sought are a data warrant and the application for the grant of that warrant.
The prosecutor made submissions about the facts but in the absence of affidavit material it would be inappropriate to reach conclusions on the basis of those submissions.
The applicant produced two pages of what appeared to be a running log which it may be accepted was provided as part of the Crown brief. The author speaks of a “prospective data warrant” on “telecommunications service 0402 818 650 used by the male person named Geoff” which was obtained by police on 31 August 2010. This is the document summonsed. The log goes on:
“Police ascertained that telecommunications service 0402 818 650 was receiving signal from a mobile phone tower at South Brisbane and Woolloongabba.”
I assume this information was ascertained under the warrant. The log reveals that by reference to the information obtained under the warrant in conjunction with physical surveillance the identity of the applicant was established. It seems highly likely this process of logically connecting the applicant with a phone number assisted in identifying him as a participant in recorded telephone conversations with a suspected person named Andronicos.
It follows that the documents sought appear to be relevant to the case the prosecution is advancing. Unlike with the Controlled Operations material, access to these documents goes to more than an attempt to identify a defect in the approval process; access may assist in testing the veracity of the prosecution identification of the applicant as the participant in incriminating telephone conversations.
The Commissioner raises public interest considerations generally in his submissions to resist production of these documents. However, he has failed to particularize in respect of Items 16 and 17 any specific public interest consideration.
It is not possible given the current paucity of evidence before the Court for a decision to be made in respect of this public interest objection.
In my view, in order for the Court to be able to determine whether these documents should be released to the applicant under the summons, the Commissioner should produce the documents to the Court and provide affidavit material in support of the public interest considerations he seeks to rely upon.
Disclosure under s 590AB
As stated above, this is an application for the production of documents under a summons of a witness. The argument proceeded on that basis and I understood Mr Ryan to indicate that he choose this course, rather than proceeding by way of application for disclosure under the Criminal Code Chapter 62, chapter division 3, because of the difficulty identified in the decision of Deputy Chief Magistrate Hine in Police v Naidu.
It was therefore surprising to find that the applicant’s outline of argument in respect of Items 16 and 17 included a submission that s 590AB of the Criminal Code requires disclosure.
It is apparent from the decision in R v Rollason & Jenkins: exparte AG (Qld) [2007] QCA 065, that the test to be applied to disclosure under Chapter 62, chapter division 2 is broader than and different to the test that applies to production of subpoenaed material. It is therefore necessary to identify on what basis the documents are sought.
The application was not brought under s 83A(5)(aa) in accordance with Practice Direction 13 of 2010. However, in order to avoid delay and as the prosecutor made submissions on disclosure under the Code I will address the submission on s 590A disclosure in this decision.
The Office of the Director of Public Prosecution (ODPP) asserts the material sought is not its possession. The ODPP says that the police were requested to provide the documents in the summons to that Office and in reply the arresting officer stated he was not in a position to disclose the material requested. Section 590AB of the Criminal Code provides:
“Meaning of possession of the prosecution
1. For a relevant proceeding, a thing is in the possession of the prosecution only if the thing is in the possession of the prosecution under subsection (2) or (3).
2. A thing is in. the possession of the prosecution if it is in the possession of the arresting officer or a person appearing for the prosecution.
3. A thing is also in the possession of the prosecution if-
(a) the thing is in the possession of
(i) for a prosecution conducted by the director of public prosecutions the director; or
(ii) for a prosecution conducted by the police service-the police service; and
(b) the arresting officer or a person appearing for the prosecution
(i) is aware of the existence of the thing; and
(ii) is, or would be, able to locate the thing without unreasonable effort.”
As in R v Falzon [2007] QSC 303, which was followed by Deputy Chief Magistrate Hine in Naidu, this is a case where the documents are not in the possession of the person appearing for the prosecution within the meaning of subsection (2) of s 590AE and not in the possession of the Director of Public Prosecutions within the meaning of subsection (3)(a)(i) of that section. In my approach to the interpretation of subsection (3) I prefer the reasoning of Martin J in R v Moti [2009] QSC 293 to that of Fryberg J in R v Hargraves, Hargraves and Stoten [2008] QSC 267.
The question remains as to whether the documents sought are in the possession of the arresting officer within the meaning of subsection (2) of s 590AE. It would seem strange in a case where police obtained a warrant on the applicant’s mobile service as part of the investigation, that the warrant and any application grounding it would not be in the arresting officer’s possession, at least in the extended sense provided for in the definition of “possession” in s 1 of the Criminal Code:
“possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.”
If the documents are in the “possession” of the arresting officer in that extended sense they will be in the possession of the prosecution for the purposes of s 590AE.
Given that no evidence has been adduced before me on this application, it is not possible for me to determine whether Items 16 and 17 are in the possession of the prosecution in the relevant sense.
I will order that the prosecution file affidavit material addressing this issue. In the event possession were to be conceded, the prosecution should, if it wishes to raise public interest immunity, give the necessary notice under s 590AQ and provide affidavit material in support of that claim prior to the next date of hearing of this application.
ORDERS
1. Items 7 and 9-13 of the Summons of a Witness are struck out;
2. I direct that the Commissioner of the Queensland Police Service:
(a) Produce to the Court at the next adjournment date the documents referred to in Items 16 and 17 of the summons; and
(b) File with the Court and serve on the applicant any affidavit material in support of a claim of public interest immunity no later than 7 days prior to the next adjournment date.
3. I direct that the Director of Public Prosecutions file with the Court and serve on the Applicant any affidavit material on the issue of possession of the documents referred to in Item 16 and 17 of the summons no later than 7 days prior to the next adjournment date.
4. Should the Director of Public Prosecutions seek to raise objection on the basis of public interest immunity to production of the documents referred to in Items 16 and 17, I further direct that the Director give notice to the Applicant under s 590AQ and file with the Court and serve on the Applicant any material in support of that objection no later than 7 days prior to the next adjourned date.
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