R v Mohamed, Chaarani and Moukhaiber (Ruling on public interest immunity claim)
[2019] VSC 188
•25 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0068
S CR 2018 0069
S CR 2018 0070
| THE QUEEN | |
| v | |
| AHMED MOHAMED, ABDULLAH CHAARANI & HATIM MOUKHAIBER | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 19, 20 & 21 March 2019 |
DATE OF RULING: | 25 March 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling on public interest immunity claim) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 188 |
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CRIMINAL LAW – Material subpoenaed from Victoria Police – Claim of public interest immunity in respect of some of documents produced – Immunity claimed on basis that disclosure would prejudice the prevention, investigation or prosecution of an offence - Applicable law – Public interest in disclosing material outweighed by public interest in preserving secrecy – Evidence Act 2008, s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson QC with Mr A Sim | Commonwealth Director of Public Prosecutions |
| For the Accused Mohamed | Mr J Kelly SC with Mr M Page | Leanne Warren and Associates |
| For the Accused Chaarani | Mr P Tehan QC with Mr L Richter | James Dowsley and Associates |
| For the Accused Moukhaiber | Ms F Gerry QC with Mr J Anderson | Stary Norton Halphen |
| For the Chief Commissioner of Police | Mr A Dinelli | Victorian Government Solicitors Office |
HIS HONOUR:
Introduction
The legal representatives of the accused Moukhaiber issued subpoenas to a number of parties including the Chief Commissioner of Victoria Police (‘VicPol’) seeking the provision of documents in a number of different categories. I have previously declined to set aside those subpoenas on the basis of an asserted lack of legitimate forensic purpose to the subpoenas.
In response to the subpoena issued to it, VicPol has produced a number of documents to the Court. VicPol asserts a claim of public interest immunity (PII) in respect of some of the documents. I have been provided with two affidavits of Detective Senior Sergeant Mark McCann, both of which are partly open, and partly confidential. I have also been provided with two outlines of submissions of Mr Dinelli of counsel for VicPol. Again, in each case, these outlines were partly open and partly confidential.
I am now required to rule on the claim of PII made by VicPol.
Further background to this ruling
Counsel for Moukhaiber, Ms Gerry QC, raised a preliminary question of whether or not special counsel should be appointed to assist in the process of my making the necessary decision on public interest immunity. Ms Gerry submitted that I should appoint special counsel to protect the interests of the accused. I declined to do so, for reasons set out in a ruling announced on 19 March 2019.[1]
[1]Transcript 2149.
I considered that as well as receiving the partly-confidential affidavits and outlines of submissions on behalf of VicPol, it would be necessary for me to hear submissions and evidence in closed court. Mr Dinelli described this as being ‘orthodox procedure’. Ms Gerry on the other hand, had earlier described it as an extreme procedure. I accept the position of Mr Dinelli, and was of the view that the interests of justice in the circumstances required me to conduct the proceeding in closed court.
Ms Gerry, at my invitation, prior to the closed court procedure commencing, made submissions as to a number of things she requested that I keep firmly in my mind as I engaged in the process of hearing submissions and evidence in closed court, and contemplated the documents over which PII was claimed. All of these submissions were designed to ensure that I would be aware of the sorts of matters which may be of importance in considering the material, and that the rights of the accused were properly protected. I will not set out the list of matters here, but note that they are to be found in the transcript at pages 2150 to 2155.
The law
Section 130 of the Evidence Act 2008 (‘the Act’) relevantly provides:
Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2) The court may give such a direction on its own initiative or on the application of any person (whether or not the person is a party).
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would –
(a) prejudice the security, defence or international relations of Australia; or
…
(c) prejudice the prevention, investigation or prosecution of an offence
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters –
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding – whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused – whether the direction is to be made subject to the condition that the prosecution be stayed.
By operation of section 131A of the Act, s 130 applies to the claim of PII now made with any necessary modification as if the claim was an objection to the giving or adducing of evidence.
It is apparent that the Australian Law Reform Commission intended that s 130 and its equivalents introduced in other jurisdictions reflect the common law position where PII was concerned.[2]
[2]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) Vol 1, [864].
It has been accepted that the principles of PII at common law assist in informing the content and operation of s 130 of the Act.[3]
[3]Director of Public Prosecutions (Vic) v Debono (2012) 225 A Crim R 585 (‘Debono’), [18]; New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60, [43].
In the important case of Sankey v Whitlam,[4] Gibbs ACJ expressed the relevant principle as follows:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows:
There is the public interest that harm should not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to the relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the public interest lies.[5]
[4](1978) 142 CLR 1.
[5]Ibid 38-9 (citations omitted).
The public interest in admitting the evidence is based on the principle that all relevant and (otherwise) admissible evidence should be admitted in order to achieve justice in the case at hand.[6]
[6]Debono (No 3) [21].
The authorities indicate that in the balancing process which occurs where questions of PII arise, the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused whose liberty is at stake in a criminal trial.[7]
[7]Sankey v Whitlam (1978) 142 CLR 1, 42, 62 (citation omitted); Alister v The Queen (1983) 154 CLR 404, 414 (Gibbs CJ), 456 (Brennan J).
As Kyrou J stated in Debono:
In a case involving serious criminal charges against an accused, the authorities recognise that it is appropriate to adopt a more ‘liberal’ approach to the production of documents in respect of which public interest immunity is claimed than in a civil case.[8]
[8]Debono (No 3) [23].
In Jarvie v Magistrates’ Court of Victoria (‘Jarvie’),[9] a case concerning the question of whether undercover police operatives would be permitted to give evidence in criminal proceedings without being required to divulge their true names, Brooking J, in whose judgment the other members of the Court of Criminal Appeal agreed, contemplated how the principles of PII were to be converted into a practical test where the competition was between the public interest in the anonymity of undercover operatives and the public interest in an accused person’s right to a fair trial. His Honour described it as self evident that identity must be disclosed if to refuse to do so would occasion a miscarriage of justice. That proposition, however, was too general to provide a test of practical use.
[9][1995] 1 VR 84 (‘Jarvie’).
Brooking J went on to set out a test laid out by the Court of Criminal Appeal in Cerrah v R,[10] in which Vincent J said:
It is, in my view, clear that before what appears to be a legitimate claim against disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice.
[10]Cerrah v R (Victorian Court of Criminal Appeal, Vincent J, 6 October 1988).
In respect of this test, Brooking J stated:
I would respectfully suggest that the words ‘is at the very least capable of being, if not likely to be, of some real assistance to him’ should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer’s identity may be of substantial assistance to the defendant in answering the case against him…
The fact that there is good reason to think that disclosure of the informer’s identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed.[11]
[11]Jarvie (No 9) 89-90.
In The Queen v Peters,[12] a case concerning PII but not related to the informer aspect of it, the Court of Appeal provided recent support for the correctness of the test proposed by Brooking J in Jarvie.
[12][2018] VSCA 115, [53].
The occasion to undertake the balancing exercise of weighing the competing public interests arises only after the Court has determined that the documents in question are entitled to protection from disclosure.[13]
[13]Debono (No 3) [27].
The onus lies upon the party seeking to prevent disclosure of the material to establish both that the material relates to ‘matters of state’ in the terms of s 130(4) of the Act, and that the public interest in preserving secrecy or confidentiality outweighs the public interest in disclosing the material in question.[14]
[14]Debono (No 3) [28]–[29].
As was stated by the Court of Appeal in State of Victoria v Brazel, in considering the common law position:
Since immunity will not be lightly conferred, it should not be lightly claimed…The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.[15]
[15](2008) 19 VR 553.
The material provided to the Court
As I have already mentioned, there were two affidavits and two outlines of submission which were provided to the Court on behalf of VicPol. In each case, the affidavits were partly open and partly confidential. For obvious reasons, I am required to be circumspect in my treatment of the contents of these documents.
Affidavit of Detective Senior Sergeant Mark McCann sworn 12 March 2019
The deponent is a member of VicPol attached to the Victoria Police Security Intelligence Unit, Operations Division, Counter Terrorism Command. The first 17 paragraphs of this affidavit were open, but gave away nothing about the reason why PII was claimed in respect of the subpoenaed items.
One aspect of paragraph 18, in the confidential section of the affidavit, indicated that the Chief Commissioner had no documents to produce under category 4 of the subpoena. That fact was subsequently revealed in open court by Mr Dinelli.
Outline of submission on behalf of VicPol dated 13 March 2019
The outline, after setting out the background to the subpoena, indicated that the Chief Commissioner had responded to the subpoena by producing some documents which answered the relevant description, in respect of which PII was claimed.
Mr Dinelli set out section 130 of the Evidence Act 2008. He then outlined the general principles applicable to PII.
Mr Dinelli indicated that PII was claimed in this case on the basis that disclosure of the information would ‘prejudice the prevention, investigation or prosecution of an offence’, pursuant to s 130(4)(c). It is not appropriate in this ruling to set out the submissions foreshadowed in the outline, but I note that I have considered them in light of the legal principles applicable to PII.
Second affidavit of Detective Senior Sergeant McCann sworn 15 March 2019
A second affidavit was sworn three days after the first, corresponding with the requirement for the production of further material on Friday 15 March 2019. The affidavit was made in respect of VicPol’s PII claim in respect of documents produced that fell within Categories 1 and 2 of the subpoena.
Second outline of submissions on behalf of VicPol dated 15 March 2019
Again, in the circumstances, it is not appropriate for me to summarise the submissions foreshadowed in the outline.
Lead-up to the Court being closed
On 19 March 2019, in the context of dealing with the then defence application that I appoint special counsel to assist the Court in the PII process, Mr Dinelli indicated in open court that the number of pages of documents in respect of which PII was claimed was 37 pages of A4 size and 15 pages of A3 size. As he put it, this distinguished this case from many cases in which there may be a large volume of material for a judge to consider.
On that day, Mr Dinelli urged upon me what he called the ‘orthodox approach’, which would have me consider the confidential material in the affidavits and submissions, have a look at the material which had been produced, and seek his assistance in closed court if necessary. He submitted that the process would demonstrate why the balancing exercise would favour non-disclosure in this case.
Submissions and evidence in closed court; 19 and 20 March 2019
Consistent with what I understand to be the necessary and appropriate practice in the circumstances, I explored the issues relevant to the decisions to be made on PII in closed court. During this process, I raised a number of matters with Mr Dinelli in order to satisfy myself that I properly understood the various documents which had been produced and which were subject to the claim of PII, and the basis on which such claim was made.
I was then much assisted by detailed evidence from the deponent, Detective Senior Sergeant McCann, which, again for obvious reasons, I am not in a position to summarise.
Next, as a result of a number of issues which had arisen in my mind, the Court heard evidence from one of the investigators, Detective Sergeant Peter Zorzi, a VicPol member with the Joint Counter Terrorism Team. I will not summarise most of his evidence, but counsel for VicPol was content for me to include a reference to some aspects of his evidence in this ruling.
Detective Sergeant Zorzi informed the court that none of the individuals referred to in the defence subpoena as being members of the WhatsApp chat group was ever a person of interest or suspect in connection with the fires at the mosque in this case. None of the individuals referred to in redacted parts of the PROMIS reports provided in answer to Category 2 in the final amended subpoena schedule was ever a person of interest or suspect in relation to the crimes. Furthermore, none of the PROMIS reports or any of their contents was considered to be relevant to the crimes alleged in this case.
In the overall process which occurred in closed court, I gave consideration to the potential significance of each of the items of evidence in respect of which PII was claimed, insofar as the defence case of the accused Moukhaiber was concerned. I did so in the knowledge that the matter relied on by the defence in establishing the existence of a legitimate forensic purpose for the subpoena was the reasonable possibility that the material in question would materially assist the accused in advancing the prospect that a person other than the accused was the third offender.
Submissions in open court; 21 March 2019
Defence submissions
Following the hearing in closed court, I raised with Ms Gerry the prospect of the defence seeking to issue subpoenas to the telecommunications service providers. Ms Gerry made it clear that she did not propose to seek to issue any further subpoenas. The relevant material, she submitted, was in the hands of VicPol, and should be provided. As she put it:
Our submission remains the same. It must be capable of some form of redaction and, accordingly, we don’t propose to issue any further subpoenas, we maintain our position that the material should come from the subpoenaed parties.[16]
[16]Transcript 2176.
Ms Gerry submitted that it was now plain that the matter at the heart of the claim for PII was the issue of police procedures, rather than national security. She further submitted that the right to a fair trial by virtue of access to relevant information which may assist the defence or undermine the prosecution case must be significantly weighed in the balance. As to the right to a fair trial, that was, she submitted, ‘absolutely fundamental’.[17] She further submitted that there was an overriding objective that justice had to be done and to be seen to be done.
[17]Transcript 2177.
Ms Gerry submitted that it was ‘rather remarkable’[18] that the material in question had not been provided to the prosecution team. In those circumstances, as she put it, ‘the burden upon your Honour must fall in favour of disclosure…to the defence’.[19] She submitted that the fairness of the trial could be protected if the material was fully in the hands of Mr Robinson, who could then make ‘disclosure assessments’.[20]
[18]Ibid.
[19]Ibid.
[20]Transcript 2178.
Ms Gerry urged me to keep the overall fairness of the trial in mind when deciding on the issue of PII. She submitted that there must be ways of providing relevant material to the defence by the use of redactions. She also raised the prospect of orders from the Court enforcing what she called ‘some form of confidentiality ring’ to prevent the defence disclosing material to the accused.[21]
[21]Transcript 2180.
Ms Gerry invited me to find practical ways in which access to the material could be provided to the defence, and to decide the balance in favour of that course. She submitted:
We can’t make any detailed submissions, but we maintain our position. We’ve asked for it. We’d like to have it, and we submit that there must be a way to enable us to avoid any public interest immunity issue.[22]
[22]Transcript 2181.
Before concluding, upon being asked by me if there were any authorities she would seek to draw to my attention on the question of the approach to PII matters in criminal cases, Ms Gerry did refer to a number of decisions, including the matter of Debono to which I have referred.
VicPol submissions
Mr Dinelli took issue with Ms Gerry’s assertion that the defence, in effect, were completely in the dark as to the nature of the claim of PII. As he submitted, in paragraph 14 of the first outline of submissions, it was clearly pointed out that the claim of PII in this case was made on the basis that disclosure of the material would ‘prejudice the prevention, investigation or prosecution of an offence’, pursuant to s 130(4)(c) of the Act.
Mr Dinelli next submitted that the Chief Commissioner was acutely aware of the importance of the fact that the accused was standing trial in the balancing process under this section.
Mr Dinelli pointed out that insofar as Ms Gerry had in effect complained of the need to make only broad submissions, redacted versions of the PROMIS reports had been provided to the defence. Unredacted parts of those reports would provide scope for the defence to explore the subject matter of the reports should they wish to do so.
In respect of the possible issue of further subpoenas by the defence to the telecommunications service providers, Mr Dinelli informed the Court that his enquiries indicated that the three main carriers would have records going back to the relevant period. IPNDs may be able to be provided almost instantaneously. CCRs may take a matter of days.
Mr Dinelli submitted that the fact that it was open to the defence to subpoena the relevant material from the telecommunications service providers but had chosen not to do so should be a matter which would weigh heavily in the balance in favour of not disclosing the material
Analysis
As I engaged in the process of hearing evidence from witnesses and receiving assistance from Mr Dinelli in closed court, I was, of course, acutely aware of the fact that neither the prosecution nor the defence was permitted to be present during that process. Defence counsel had strongly urged me to appoint special counsel to assist but I had declined to do so.
As already noted, I had been urged by Ms Gerry to bear in mind a list of considerations she provided to the Court before the closed court hearing commenced. I bore all of those matters strongly in mind, and indeed, raised all of them with Mr Dinelli late in the process, for specific discussion. Furthermore, I of course bore strongly in mind, throughout, the importance of ensuring a fair trial for the accused.
Despite the limitations to my knowledge of this case, relative to defence counsel at least, I am in a good position to be awake to the potential significance of items of evidence that may have come to light during the PII process. At all times, I carefully considered each item of evidence with an eye to enquiring whether there was good reason to consider its disclosure would be of substantial assistance to the accused in his defence.
I am satisfied that the documents in respect of which PII is claimed do relate to matters of state as defined in section 130(4) of the Act in that they may ‘prejudice the prevention, investigation or prosecution of an offence’.
Ms Gerry repeatedly sought, in her submissions, to suggest that the PII claim was based on the issue of ‘police procedures’. That term in no way does justice to the true import of the reason for the claim of PII in this case.
Upon being satisfied, as I am, that the documents in question relate to matters of state, I have therefore been required under section 130(1) to weigh up the public interest in disclosing the documents to the defence against the public interest in preserving the secrecy of the documents.
In engaging in that task, I have taken into account the matters set out in section 130(5) of the Act. The first matter for consideration under that subsection is ‘the importance of the information or the document in the proceeding’. In my view, the material subject to the claim for PII is not very important in the context of the trial. Indeed, I can see no real way in which it would be of assistance to the defence. It would fall a long way short of the requirement as spelt out by Brooking J in Jarvie.
On the other hand, I consider that were the material to be made available to the defence, it may well have the effect of prejudicing the prevention, investigation or prosecution of an offence. I cannot spell out my reasons for that concern, but can indicate that the concern is a real and important one.
In respect of the IPND requests and CCRs which were at the heart of categories 1 and 6 of the subpoena schedule, these are documents which would be the property of the relevant telecommunications service providers and may still be able to be secured from them. Were the documents to be provided by the service providers, no issue of PII would arise. I invited Ms Gerry to consider subpoenaing the providers. The defence have not sought to do so. I have taken that matter into account as counsel for VicPol urged me to do. I note that Ms Gerry did not seek to dissuade me from that approach.
As for the PROMIS information reports which were produced to the Court under Category 2 of the subpoena schedule, as has been indicated, redacted copies of them have been provided to the defence, containing some aspects which became unredacted following the closed court hearing. The subject matter of a number of the information reports was clearly material found on the phones of one or other of the accused. All of that material is known to the accused, being either contained within the depositions or amongst other material already disclosed to the accused. It is true that large parts of many of the reports have been redacted, making them difficult to read and understand, but I point out again that the evidence of Detective Sergeant Zorzi was that none of the reports had anything to do with the investigation in this matter, and none of the people named in the redacted parts of any of the reports was ever a suspect or person of interest in this case. Indeed, I would go so far as to say that the redacted parts of the PROMIS reports would not pass the test of relevance under section 55 of the Act.
Furthermore, as Mr Dinelli submitted, the unredacted parts of the PROMIS reports would provide scope for investigation by the defence of the subject matter of the reports should they wish to do that.
Conclusion
It follows from what I have said that to my mind, the public interest in disclosure of the material is weak. As against that, the public interest in preserving the secrecy or confidentiality of the material is strong. In the balancing exercise required of me under s 130 of the Act, it is clear that the former is outweighed by the latter.
It follows that VicPol has substantiated its claim of PII in relation to the material in question. I direct that the material not be disclosed.
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