R v Eastman (No 14)
[2017] ACTSC 66
•31 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 14) |
Citation: | [2017] ACTSC 66 |
Hearing Date: | 27 March 2017 |
DecisionDate: | 31 March 2017 |
Before: | Kellam AJ |
Decision: | See paragraph [49]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoenas – subpoena addressees application to set aside – assertion that no legitimate forensic purpose – too broad – oppressive |
Cases Cited: | DPP v Selway [No 2] [2007] VSC 244; 16 VR 508 Felice v County Court of Victoria [2006] VSC 12 Ragg v Magistrates’ Court of Victoria [2008] VSC 1; 18 VR 300 |
Parties: | NSW Commissioner of Police (Applicant in First Application) Australian Criminal Intelligence Commission (Applicant in Second Application) David Harold Eastman (First Respondent in First and Second Applications) ACT Director of Public Prosecutions (Second Respondent in First and Second Applications) |
Representation: | Counsel Ms G Mahony (Applicant in First Application) Mr S Coyle (Applicant in Second Application) Ms L Line (First Respondent in First and Second Applications) Mr K Lee (Second Respondent in First and Second Applications) |
| Solicitors NSW Crown Solicitors Office (Applicant in First Application) HWL Ebsworth Lawyers (Applicant in Second Application) Legal Aid ACT (First Respondent in First and Second Applications) ACT Director of Public Prosecutions (Second Respondent in First and Second Applications) | |
File Number: | SCC 111 of 1992 |
On 16 September 2016 the accused, through his legal representative, issued subpoenas to the Australian Criminal Intelligence Commission (ACIC) (S/29936) and to New South Wales Police (S/29939), seeking production of documents.
By applications dated 15 March 2017, the Commissioner of New South Wales Police (the Commissioner) and ACIC sought orders that the respective subpoenas be set aside. The application on behalf of ACIC was supported by an affidavit sworn and dated 15 March 2017 by Mr Richard Grant, the acting Executive Director of Intelligence, employed by ACIC. No affidavit was filed in support of the application of the Commissioner.
The grounds of each such application are similar. In substance it is argued that each of the subpoenas is an abuse of process in that no legitimate forensic purpose is established for the production of the documents sought, and further, because it requires the recipient to form forensic judgments about the relevance of documents sought.
It is relevant to note at this point that on 5 October 2016 a subpoena was issued against Victoria Police (VicPol) (S/29942) seeking (with minor exceptions) in essence the same documents which the subpoena issued on 16 September 2016 sought of the New South Wales Police. The documents in response to that subpoena were provided to the Court by VicPol on 19 October 2016. Orders were made in chambers on 20 October 2016, with the consent of VicPol, that there be immediate access of all documents to both parties, and that copies of the documents may be tendered in court in proceedings relating to the matter, but not otherwise be provided to a third-party. The consent order further provided that information contained in the documents is not to be disclosed, communicated or otherwise disseminated to a third-party, but may be referred to in proceedings relating to this matter.
On 21 March 2017, the solicitor for the accused, Mr Dean Ager, swore and filed a ‘general’ affidavit in response to the applications made by ACIC and by the Commissioner. In addition, and on the same date, Mr Ager swore and filed a ‘confidential’ affidavit containing as exhibits, the confidential documents provided to the Court by VicPol as referred to above.
When the applications came before me on the morning of 27 March 2017, and by consent of all parties, I ordered that the Court be closed, except to the parties and their legal representatives. The Court adjourned for a short period so that discussion could be had with VicPol as to the release of the confidential documents to counsel for ACIC and counsel for the Commissioner. I was subsequently informed that VicPol had provided authority for the documents in question to be released to the legal representatives of each of those third parties.
The documents which the relevant subpoena seeks to be produced by ACIC are as follows:
(a)Documents referring to the involvement of [redacted] in the activities of the Italian organised crime group known as ‘Ndrangeta between 1980 and 1990.
(b)Documents referring to the association of [redacted] between 1980 and 1990 with individuals who were recorded as being members or suspected members of the Italian organised crime group known as ‘Ndrangeta”.
The documents which the relevant subpoena seeks to be produced by New South Wales Police are as follows:
(a)The New South Wales Police criminal record for [redacted].
(b)Person history for [redacted].
(c)Documents referring to the involvement of [redacted] in the activities of the Italian organised crime group known as ‘Ndrangeta between 1980 and 1990.
(d)Documents referring to the association of [redacted] in the activities of the Italian organised crime group known as “Ndrangeta between 1980 and 1990.
(e)Documents referring to contact between [redacted] and individuals with the family name [redacted], including but not limited to [redacted].
In his ‘general’ affidavit sworn on 21 March 2017, Mr Ager annexed as DA1 a copy of a document known as MF1130, which refers to police investigations into the possibility of an organised crime group being involved with the murder of Deputy Commissioner Winchester. The document in question was prepared by the Australian Bureau of Criminal Intelligence (ABCI) for the ACT Coroner in December 1990. At page 12 of that document, and with reference to the Italian criminal group known as the ‘Ndrangeta, the following appears:
… the murder of Colin Winchester illustrates the willingness of this group to dispose of those who may threaten its prosperity. Mr. Winchester was murdered perhaps for two reasons:
1. He was perceived by the group to have gone against his word of providing protection in his role as corrupt officer, for which ‘he’ received payment, yet in 1988 the National Crime Authority decided to take action against the members of the group involved in illegal activities between 1981 to 1983; and
2. He may have been contemplating giving certain direct and truthful evidence of a magnitude great enough to threaten the liberty of members of the group, resulting in the confiscation of illegally accumulated assets, perhaps leading investigators to senior members of Italian organized crime in Australia.
I should add that in relation to the above quotation, it is clear and beyond argument that Deputy Commissioner Winchester in no way actually acted as a corrupt officer or received any personal payment in respect thereof.
In addition, annexed to Mr Ager’s affidavit is a copy of a document marked DA4, which is said to be in the possession of the solicitors for the accused. It is headed ‘Operation Navigator’ and relates to the movements of a number of people throughout late 1985 in Victoria, New South Wales and Queensland. Observations were made of [redacted] which were reported by the VicPol Bureau of Criminal Intelligence to the New South Wales Police Bureau of Criminal Intelligence. The report refers, inter alia, to evidence that [redacted] was in contact with one [redacted].
Furthermore, a document marked DA5 and headed ‘NC-IN-CONFIDENCE’ sets out the detail of an interview the National Crime Authority (NCA) conducted with a Ms Valerie Cumberland in 1994. In the course of that interview, Ms Cumberland stated that she had travelled to Canberra with persons by the name of Alan Trenery about one or two weeks before the ‘Winchester shooting’. On the way back from Canberra, Ms Cumberland stated that she went to the boot of the car which was open and she observed what she could ‘only describe as a long rifle’. Subsequently, she told police she received information from Cheryl, an acquaintance,that Cheryl and Mr Trenery had returned to Canberra the same weekend as the shooting. Ms Cumberland told the NCA that she telephoned the Victoria police and told them about the gun in the back of the car driven by Mr Trenery, but that police did not appear to her to be particularly interested in her report. She told the NCA that some days later, Mr Trenery, came and saw her ‘in the caravan park’ while looking for Cheryl, who Ms Cumberland said had by then split up from him. He mentioned that the police had come round and questioned him about guns and ‘he thought that it was Cheryl’. He made a comment: ‘Doesn't matter anyway. They'll never find them, they’re smashed up, and up at Gippsland.’
In the confidential affidavit sworn by Mr Ager, reference is made to a copy of a partially redacted VicPol Information Report dated 4 September 2014 and sub-headed ‘Information pertaining to the murder of former NSW (sic) Commissioner Colin Winchester’ (DA2). That report relates to information that a male person (who provided his name to VicPol, but whose identity has been redacted in the documents produced by VicPol to the Court in response to the subpoena) attended at Box Hill police station on 22 August 2014 and asserted that he knew an Allan Trenery. He told police that he met up with Mr Trenery ‘one night in 2006’ and that Mr Trenery stated that years earlier he had transported the gun that was used to kill Colin Winchester. He said that he had driven from Canberra to Melbourne ‘to get rid of it’ and that ‘he took it to his family's farm in Gippsland and threw it in the dam there’. The informant told police that a known associate to Mr Trenery was ‘a crook by the name of [redacted]’ although he stated that he doubted that [redacted] was ‘related to the case’. In addition, VicPol provided a chart of the [redacted] which asserts that [redacted] is related by marriage to [redacted]. It will be recalled that [redacted] was established by police investigations to have had a number of connections with [redacted] as well as members of the [redacted] family.
Upon the hearing of the application before me, counsel for the ACT DPP tendered an Information Report apparently prepared by VicPol in relation to the information received by them on 4 September 2014, that the informant had been told by Mr Trenery that he had transported the gun that was used in the murder of Deputy Commissioner Winchester and had thrown it in the dam on his family's farm in Gippsland. The Information Report reveals that VicPol attended upon Mr Trenery on 31 May 2016. Mr Trenery denied that he transported ‘the gun that killed Winchester and he did not tell anybody that he did’. The report indicates that in a preceding telephone call, Mr Trenery had said ‘[h]e did buy a .22 Lithgow rifle form (sic) a bloke (nfd) in Canberra and has never owned any other rifles’. He later said that ‘the only gun he took from Canberra was the Lithgow in 1994’. It would appear from that Information Report that police did not ask Trenery anything about his association with [redacted].
Mr Lee on behalf of the ACT DPP produced some material that could be read as suggesting that the statements of Ms Cumberland referred to above were unreliable and that the position of the Crown is that the information provided by the so-called Box Hill informant was also unreliable. Mr Lee stated that the purpose of tendering that material was ‘simply to put the documents upon which [counsel for the accused] rely in establishing a legitimate forensic purpose, into context.’ However, in my view, it is not for me to weigh the strength or otherwise of the material which is relied upon by counsel for the accused to establish a legitimate forensic purpose, unless that material is so patently absurd or fanciful on the face of it, that it should obviously be rejected, which is not the case before me.
The principal objection raised to the subpoena addressed to the New South Wales Police force is that the subpoena is an abuse of process in that the defence has failed to identify a legitimate forensic purpose for the material sought. It also raises complaints about the width of the request for documents, and that the request is ambiguous in that the recipient must form a judgement about what documents would fall within its scope. ACIC joins in both of those submissions.
On behalf of ACIC, it is further argued that the subpoena is oppressive in that it is a request for a class of documents that is so wide, that it places an onerous responsibility upon the recipient to collect and produce documents which have no, or limited, relevance to the proceedings. ACIC rely upon an affidavit filed on 15 March 2017 sworn by Mr Richard Grant, the acting Executive Director of Intelligence of ACIC. That affidavit refers to what was described as ‘a preliminary series of searches’ and states that those searches revealed that there were difficulties in relation to the production of documents. It states that the majority of the documentation from the period 1980 to 1990 is retained in hard copy form only, and that hard copy documentation has been archived at various ACIC locations or with the National Archives of Australia at different locations in Australia. It is stated that some documentation has been scanned and retained in electronic form on archival databases, but that these are ‘not readily accessible due to age’. The affidavit provides that preliminary searches of the ACIC case management system conducted on 10 October 2016 identified approximately 106 hard copy files with a ‘link’ to [redacted]. I shall return to the matters raised by Mr Grant in his affidavit in more detail below.
I turn now to the issue as to whether the subpoenas reveal a legitimate forensic purpose for the production of the material sought. Annexed to the affidavit of Mr. Ager sworn and filed on 21 March 2007 and marked DA2 is a copy of a document headed ‘Annexure 7 – Submissions on behalf of the Applicant’. This document contains the written submissions made on behalf of Mr Eastman to the so-called Eastman Enquiry. It sets out in some detail the alternative hypothesis to the prosecution case against the accused. It is contended that there is a case to be made that Mr Winchester was killed by an unidentified member of a crime syndicate, the ‘Ndrangeta. It is contended that the information provided to VicPol by the unidentified informer in Box Hill in 2014 is significant as it makes Mr Trenery ‘a vital link in [the] defence’, being the contention that Mr Winchester was killed by a member of the ‘Ndrangeta. It is argued that the information is of ‘significant importance’ in that the information is ‘likely to be accurate because it is consistent with the information independently provided by Ms Valerie Cumberland to the National Crime Authority in 1994 that Mr Trenery had admitted to her that he had disposed of the rifle used to kill Mr Winchester’. It is noted that on that occasion Mr Trenery provided details to Ms Cumberland about the location of the disposed weapon. It is argued that those details are consistent with that provided to VicPol by the Box Hill informant as to the geographical location of the disposal of the weapon. It is noted that Ms Cumberland’s information is also consistent regarding the nature of Mr Trenery's occupation and that the information about where the firearm had been disposed is consistent with VicPol records as to where Mr Trenery was living in 1990 and the place of residence of other members of the Trenery family. It is contended that a link can be made between Mr Trenery and the ‘Ndrangeta and that the evidence of the 2014 Box Hill informer given to VicPol that ‘a known associate’ to Trenery was ‘a crook by the name of [redacted]’ provides that link. It is argued that there is already some evidence that [redacted] had close involvement with the ‘Ndrangeta, arising from a number of documents. This includes the document of the Australian Bureau of Criminal Intelligence that lists murders connected with Italian organized crime noting that one murder victim was a ‘close associate of [redacted]’, together with other documentation which details his involvement in cannabis cultivation in 1985 and sets out his associations with, amongst others, [redacted].
In my view the endeavour on the part of the defence to establish that documentation in the likely possession of both ACIC and the New South Wales police will assist the defence case in establishing a link between [redacted] and the ‘Ndrangeta and perhaps more tenuously with Trenery, cannot in all those circumstances be said to be a fishing expedition. As Osborn J (as he then was) put it in Felice v County Court of Victoria [2006] VSC 12 at [52]:
It is sufficient in a criminal proceeding if the material before the court gives rise to a possibility which is not merely hypothetical, but sufficiently reasonable having regard to the circumstances as a whole, to justify production of documents because it is “on the cards” they will materially assist the defence.
It is appropriate at this point to observe that in the course of the submissions before me there was some contention as to the appropriate test to be applied to establish whether or not there is a legitimate forensic purpose for the production of documents. In the course of her submission, Ms Line of counsel for the accused, on a number of occasions stated that the test for whether or not there was a legitimate forensic purpose was whether there is a reasonable possibility that the documents will materially assist the defence. Counsel for the Commissioner was critical of that approach. She said ‘One of the things Ms Line raised in her submission was the test to be applied and she focused on the reasonable possibility. Now, in my submission the correct text is that of “it’s on the cards” that it will materially assist the case… if you’re the person seeking production of documents, you still need to identify with precision what the legitimate forensic purpose is and upon doing that it has to be “on the cards” that it will materially assist in the defence. It is a lesser test than that imposed in civil proceedings by nature of what is generally at stake in criminal proceedings. But any focus on a reasonable possibility is the wrong focus’.
However, in my view the principles in relation to the production of documents pursuant to subpoena are not in doubt. In Ragg v Magistrates Court of Victoria [2008] VSC 1; 18 VR 300, Bell J conducted a thorough examination of the relevant authorities and stated at [96]:
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
In DPP v Selway [No 2] [2007] VSC 244; 16 VR 508 at [10], Cummins J (although somewhat critical of the use of the metaphor ‘on the cards’) stated that:
[T]he true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence. Probability is too high a standard. Mere possibility is too low. The adverb “reasonably” gives proper scope to the judge to determine the issue responsibly and objectively. Such a standard also is consonant with the principles of open justice (citations omitted).
Accordingly, I am satisfied in all of the circumstances of the present case referred to in paragraphs 10, 11, 12, 13 and 17 above that a legitimate forensic purpose has been clearly articulated and established for the production of the sought after documents and that there is a reasonable possibility that the information sought would materially assist the defence. Accordingly, I dismiss the application to set aside the subpoenas on the basis that no legitimate forensic purpose has been established.
That, however is not the end of the matter as counsel for both the Commissioner and ICAC argue that the subpoenas impose an oppressive burden on them, in essence, because the subpoenas are, it is said, expressed in broad and vague terms. It is convenient to deal with the matters raised on behalf of New South Wales Police first as somewhat different considerations arise in relation to its submissions as compared to those of ACIC.
As stated above, the subpoena issued to the New South Wales police, contained in its schedule a request for five categories of documents. Also, as stated above, the documents sought by the Defence to be produced by the New South Wales police, were described in a similar manner in the subpoena served upon VicPol. The documents requested of VicPol were as follows:
1.The Victoria Police criminal record for [redacted];
2.LEAP person history for [redacted];
3.Documents referring to the involvement of [redacted] in the activities of the Italian organized crime group known as ‘Ndrangeta between 1980 and 1990;
4.Documents referring to the association of [redacted] between 1980 and 1990 with individuals who were recorded as being members or suspected members of the Italian organized crime group known as ‘Ndrangeta;
5.Documents referring to contact between [redacted] and Allan George Trenery (date of birth 21/8/1944).
As stated above, VicPol did not raise any of the issues now raised by NSW Police in relation to the subpoena served upon them, although they advised that they held no documents relating to paragraphs 4 and 5 of the schedule to the subpoena. However, even that latter response makes it clear that VicPol had no difficulty in identifying the nature of the documents sought by the subpoena.
Nevertheless, it is first contended on behalf of the Commissioner that it is unclear how paragraph 1 of the schedule which seeks that the criminal record of [redacted] to be produced, assists the defence in making the link between [redacted], the ‘Ndrangeta and Mr Trenery. In my view, it is apparent on the material, that both VicPol and New South Wales Police have information that [redacted] was, in the 1980s, associated with a number of Italian persons in Victoria, South Australia, New South Wales and Queensland who were engaged in the cultivation of marijuana and/or who were believed to be associated with an Italian organised criminal group. The document annexed to the affidavit of Mr Ager referred to above and marked DE4 establishes that in September of 1985, the NSW Bureau of Criminal Investigation and the Victorian Bureau of Criminal Investigation were engaged in monitoring the activities of [redacted] over a considerable number of days.
I consider it to be apparent that there is a real possibility that the criminal record of [redacted] will provide relevant information to the defence, which information may well assist it in establishing the so called ‘link’ it seeks to establish. Whilst it is true, as submitted by counsel for the Commissioner, that a criminal record does nothing more than ‘list where somebody has been convicted or the charges have been withdrawn or dismissed’ and is ‘never going to identify in any detail other than what the charge was and what the outcome was and the relevant dates in the charge and the outcome of criminal antecedents’, I reject the argument that the request for that document ‘demonstrate[s] the absence of anything other than speculation and throwing cards in the air in the hope that the one you catch will reveal the right information.’ Obviously, if the criminal record of [redacted] confirms, at least to some degree, the information referred to in the summary of operation ‘Navigator’ annexed as DA4 to Mr Ager’s affidavit, that may be of assistance to the Defence both in terms of further inquiries that might be made by it, and in terms of cross-examination of prosecution witnesses.
I turn now to the argument advanced by counsel for the Commissioner in relation to paragraph 2 of the schedule to the subpoena. It will be recalled that the subpoena addressed to VicPol sought ‘the LEAP person history’ of [redacted]. It is well known (at least to every judge, magistrate and criminal lawyer in Victoria, and I suspect to every senior police officer in Australia) that VicPol have operated the LEAP (Law Enforcement Assistance Program) for over 25 years. VicPol clearly understood what was meant by paragraph 2 of the schedule in the subpoena served upon it as, without demur, it provided to the Court a detailed history of its interactions with [redacted]. However the subpoena issued and served upon New South Wales Police did not identify the precise computer program of the New South Wales Police. As stated above, paragraph 2 of the schedule seeks the ‘person history’ of [redacted]. It is submitted by counsel for the Commissioner that this phrase is unclear in terms of what it means, what type of documents it is intended to capture and how this assists in making ‘the link’. It is argued, and I think correctly argued, that it is not the role of the subpoena recipient to work out or make a guess at the meaning of the documents sought in a subpoena and that accordingly, paragraph 2 of the schedule should be struck out. Counsel argued that there was a significant difference between the subpoena issued to VicPol and the subpoena issued to New South Wales Police in that the reference to the LEAP person history ‘clearly has a specific meaning and gives a context to the recipient of that subpoena’. Counsel stated that New South Wales Police had ‘nothing similar’. She stated further that the words ‘person history’ have no meaning to New South Wales Police and argued that in such circumstances, it was ‘oppressive to put an obligation on a subpoena recipient to try and actually work out what that document is actually called’. Whilst I find it somewhat surprising that NSW Police have ‘nothing similar’ to the Victorian LEAP system and that the words ‘person history’ even if read as ‘personal history’ have ‘no meaning to the NSW Police force’, I accept what it is that counsel said to me in that regard. There is of course no obligation on a third party to assist the party issuing the subpoena. That said, and whilst I accept that New South Wales Police do not have a system similar to the LEAP system in Victoria, it appears to me to be highly unlikely that the New South Wales Police do not have a system (and more likely a more modern system than the 25-year old VicPol LEAP system) that has the capacity to deliver information about the history of interaction between a nominated person and New South Wales Police. That said, and accepting what I have been told about that matter by counsel for the Commissioner, I order that paragraph 2 of the schedule of the subpoena issued to New South Wales police be struck out.
I turn now to the arguments raised by counsel for the Commissioner in relation to paragraphs 3, 4 and 5 of the subpoena served upon New South Wales police. The gravamen of the complaint in relation to paragraph 3 is that it seeks documents over a ten-year period referring to the ‘involvement’ of [redacted] in the ‘activities’ of the ‘Ndrangata and in relation to paragraph 4, that it seeks documents over the same 10-year period referring to the ‘association’ of [redacted] to ‘individuals with the family name [redacted]’, which requests it is submitted are ‘extremely broad’ and are akin to discovery. Similar arguments are raised by counsel for ACIC in relation to the request made under paragraph 2 of the schedule of the subpoena served on it and referred to in paragraph 7 above. It will be recalled that the request of ACIC is for the production of documents ‘referring to the involvement’ of [redacted] in the activities of the ‘Ndrangeta between 1980 and 1990 and to documents ‘referring to the association’ of [redacted] between 1980 and 1990 with persons who were recorded as being ‘members or suspected members’ of the Ndrangeta.
Counsel for the Commissioner argued that the words ‘involvement’ and ‘activities’ in paragraph 3 of the schedule and the word ‘association’ in paragraph 4 of the schedule in the subpoena addressed to New South Wales police are in effect meaningless to her client. In the course of her submission she asked ‘… what does the word ‘involvement’ mean and what does the word ‘association’ mean? What does the words ‘activities of’ the Italian organized crime mean? Are activities suspected offences, or are they actual offences?’ As stated above, no affidavit was filed on behalf of the Commissioner in the course of this application which might have affirmed the lack of understanding of these words in the context of the subpoena. However, whatever a lay person may say about the meaning of those words, in my view these words are completely understandable by a criminal intelligence organization. Indeed, in my experience, the words ‘association’ and ‘involvement’ and ‘activities’ are everyday terms used in criminal intelligence assessment. By way of simple example, if a person who police suspected was associated with a known Outlaw Motorcycle Gang (OMG) and arrested, and a request for a criminal intelligence unit to provide information to arresting police as to the ‘association with’ or ‘involvement in’ the ‘activities’ of a nominated OMG with the arrested person, could it be argued seriously by such intelligence unit that the request was meaningless or unintelligible? Undoubtedly, in my view, such a request would be the subject of a ready response by the criminal intelligence unit in question.
Accordingly, I reject the argument that the use of those terms in each of the subpoenas is unintelligible to a law enforcement and criminal intelligence body such as New South Wales Police, or for that matter, ACIC. I note further that in his affidavit, Mr. Grant made no such assertion. On the contrary, on the basis of the requests for the two categories of document made to ACIC he was able to conduct what he called ‘preliminary searches’. The request was clearly intelligible to him.
It is true that each of the requests the subject of complaint by counsel for the Commissioner and for ACIC is broad and covers an extended period of time. However, both of the subpoena recipients are crime enforcement agencies with highly sophisticated intelligence systems. In this regard, the observation of Smithers J (with whom Bowen CJ and Nimmo J agreed) in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, 570 (Lucas Industries) is apposite:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organized and well-staffed. What may be burdensome to lesser entities may be of small significance to a large one.
Furthermore, Smithers J expressed his opinion that a person to whom a subpoena is directed is required to read it sensibly and with reference to the circumstances known to him. He said at 570 that:
... a degree of generality in the description of the documents may according to circumstances be compatible with reasonableness in this respect. Thus, in respect of documents concerning the treatment of a hospital patient, production of which is required from the hospital, a description such as “the hospital records relating to treatment of Mr. X between January and July 1977” would be acceptable. Such a description places upon the hospital the burden of searching for the records but, having regard to modern business organization and practices, such a burden is reasonable … (emphasis added)
Furthermore, I note that those observations were made by Smithers J nearly 40 years ago, and well before the improvements in records management brought about by technological advances over the last two decades. If that observation was valid in 1978 it has been all the more so over those decades.
The annexures to the affidavit of Mr. Ager sworn 21 March 2017 and marked DA1 and DA4 make it clear beyond argument that both recipients are highly likely to hold substantial information in relation to the Calabrian mafia (the ‘Ndrangeta) and numerous persons associated, with it. This includes the individuals named in paragraph 5 of the schedule to the subpoena served upon the New South Wales Police force, being individuals with the family name of [redacted]. The ‘preliminary searches’ referred to in Mr Grant’s affidavit filed on behalf of ACIC confirm that view.
In R v Barton [1981] 2 NSWLR 414, Cantor J adopted the opinion of Smithers J referred to above that the words ‘relating to’ did not necessarily impose an unreasonable burden upon a recipient. He said at 428:
It seems to me all the circumstances must be looked at including the identity and situation of the recipient of the subpoena. The fact is that he may well know from his very position the nature of the documents which he is required to produce ... The fundamental consideration, in my view, is whether, in all the circumstances including the identity and situation of the recipient, the class of documents is sufficiently clearly identified.
Likewise, as Kaye J said in McColl v Lehmann [1987] VR 503, 513 in adopting the opinion of Smithers J expressed in Lucas Industries referred to above:
To reject as oppressive or as an abuse of process a subpoena because it directs production of documents by reference to those relating to a specific subject matter within the recipient's knowledge, suggests an excessive indulgence in legalism. Determination of whether the description of documents by that mode satisfies the required test of specification by reasonable particularity ought to be made by taking into account the facts and circumstances within the knowledge of the party to whom the subpoena is addressed. It ought to be expected of the addressee, being mindful of the facts about the subject matter known to him, that he will read the subpoena sensibly.
As stated above, if the documents enumerated in a subpoena are fishing or are effectively a request for discovery, the subpoena should be set aside. I do not consider that paragraphs 3, 4 and 5 of the subpoena directed to New South Wales Police or paragraphs 1 and 2 of the subpoena directed to ACIC are fishing, or effectively a notice for discovery. As Smithers J said in Lucas Industries at 569:
The task it imposes on the respondents is to identify documents as relating to particular subjects. This is quite a different task from that of ascertaining issues and identifying the relationship of documents thereto.
In relation to paragraph 3 of the subpoena, requesting the provision of documents from the New South Wales Police, the particular subject is the ‘involvement of [redacted] in the activities of the organized crime group known as ‘Ndrangeta between 1980 and 1990’. Likewise, in relation to paragraph 4 of the same subpoena, the particular subject is ‘the association of [redacted] between 1980 and 1990 with individuals who were recorded as being members or suspected members of the organized crime group known as ‘Ndrangeta’, just as in paragraph 5 thereof the particular subject is ‘contact between [redacted] and individuals with the family name [redacted], including but not limited to two particular named members of the above family’.
Paragraphs 1 and 2 of the subpoena issued to ACIC are identical to paragraphs 3 and 4 of the subpoena issued to the New South Wales Police force. Taking into account the highly sophisticated nature of criminal intelligence investigations conducted over many years by both recipients, I have little doubt that the task of identifying documents as relating to the subjects set out above is not beyond the capacity or resources of the institutions in question. That task does not require the ascertaining of issues and the identification of documents that may or may not be relevant thereto.
The issue of oppression by way of a serious and unfair burden was not relied upon by counsel for the New South Wales Police but was specifically raised by counsel for ACIC.
As stated above, an affidavit sworn on 15 March 2017 by Richard Grant, the acting Executive Director of Intelligence was filed in support of the application by ACIC to strike out the subpoena addressed to ACIC. Mr. Grant’s affidavit states that preliminary searches of the ACIC case management system have identified approximately 106 hard copy files with a ‘link’ to [redacted]. A ‘link’ to a file means that the search term is recorded as being related to the hard copy file, which may range in size and may constitute a slim folder, a lever arch folder or a box of files. The majority of such hard copy files are recorded as being held by the National Archives of Australia. In respect of such hard copy files Mr Grant has sworn that, to determine the nature of the ‘link’, a hard copy file must be retrieved from the National Archives of Australia and manually reviewed. He has sworn that such a process could take up to a month to retrieve the hardcopy files so they could be reviewed. He states that the time required to manually review the files cannot be estimated, but that he anticipates that the process would require significant resources.
However, in addition to the hard copy files referred to by Mr Grant in his affidavit, Mr Grant states that ACIC has ‘multiple electronic documents and information management systems’. Searches have already been undertaken upon two of those databases which ‘have returned 814 documents that contain the words [redacted], [redacted] and Ndrangeta in the title or metadata’. He deposes further that the next stage in the process will be to search ACIC’s other electronic databases for references to [redacted] and Ndrangeta in the title or metadata and that the first step will be to conduct document content searches across all ACIC document management systems, which search he anticipates will return over 2000 results.
Mr Grant stated that a document content search of the ACIC Electronic Document Records Management System containing the terms [redacted] returns 723 results. He conceded that some of those documents ‘will be the same as those picked up in the search’ that he referred to of the hard copy files. He stated that searches ‘could be limited to return documents that contain search terms within, for example, a paragraph of each other’ but that, to undertake a comprehensive search, it would be necessary to run searches for the ‘search terms [redacted] and ‘Ndrangeta and [redacted] and ‘Ndrangeta for all other electronic databases to the extent possible’. He estimated that it would take one full-time resource two months to review all electronic records. However, he stated that ‘due to the validity of the subpoena being in dispute and the oppressive burden imposed on the ACIC by the scope of the subpoena, the ACIC as not taken steps beyond preliminary searches’.
Counsel for the accused submitted that the comprehensive searches proposed by Mr Grant, and referred to in the paragraph above, were far too wide and went beyond what was sought by the subpoena addressed to ACIC. There is in my view considerable weight in that submission. From the viewpoint of an electronic search, it appears to me that a search for the name of [redacted] and ‘Ndrangeta would be sufficient to meet compliance with the request for production of documents under paragraphs 1 and 2 of the schedule relating to the subpoena served upon ACIC. Likewise, although Mr. Grant deposes to the fact that there are approximately 106 hard copy files with a ‘link’ to a [redacted], no investigation has been given to ascertain whether those files are voluminous or otherwise. No doubt that is by reason of the frankly expressed statement by Mr Grant to the effect that no steps were taken by ACIC beyond preliminary searches by reason of the validity of the subpoena being in dispute. That said, it is now over six months since the subpoena was issued and if ACIC wished to mount a convincing argument that the subpoena addressed to it is so oppressive that, in the interests of justice it should not be required to comply with the subpoena, I would have expected a substantially more detailed explanation of why that might be so than the material presently placed before the Court. Nevertheless, I am prepared to grant liberty to apply on the part of ACIC if, after an appropriate investigation and consideration of the electronic and hard copy material under its control, and provision of such material as can be reasonably obtained in a reasonable amount of time, in response to the subpoena, it is unable to comply with its obligations under the subpoena. It must, however, be clear that in the circumstances of this case the requirements of justice and the obligation to accord a fair trial must be the paramount circumstances in consideration of any submission that to comply with the subpoena may be oppressive.
In the circumstances, and with the exception of paragraph 2 of the schedule to the subpoena issued to the New South Wales Police on 16 September 2016, which I set aside, I dismiss the application made on behalf of the Commissioner to set aside the subpoena on the grounds that it is an abuse of process.
Likewise, and for the reasons set out above, I dismiss the application made on behalf of ACIC to set aside the subpoena issued to it on the grounds that the subpoena is an abuse of process or alternatively that it imposes an oppressive burden on ACIC.
Finally, I observe that in the application made on behalf of the Commissioner an order was sought in the alternative to the setting aside of the subpoena, that he be excused from the production of certain documents on the grounds of public interest immunity. No submissions were advanced before me in relation to that matter, no doubt because counsel for the Commissioner recognised that to do so would be a conflation of an issue which may, or may not, arise subject to the identification of and the provision of the documents to the Court, with the issue of whether or not the subpoena should be set aside.
Accordingly, the orders I make are that:
(i)Until further or other order, the reasons for this judgment are not to be published other than to the parties to the Applications.
(ii)The application filed on 15 March 2017 by the NSW Commissioner of Police to set aside the subpoena dated 16 September 2016 to produce documents be dismissed, save for paragraph 2 of the schedule thereto which is set aside.
(iii)The application filed on 15 March 2017 by ACIC to set aside the subpoena dated 16 September 2016 to produce documents be dismissed.
(iv)The return date for the production of documents in response to each subpoena be extended to 10.30 am on 20 April 2017.
(v)Each party has liberty to apply with 7 days’ notice to the Court and each other party.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: |
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