R v Mohamed, Chaarani and Moukhaiber (Ruling on Special Counsel)

[2019] VSC 535

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
DATE OF HEARING:	19 March 2019
DATE OF RULING:	19 March 2019
CASE MAY BE CITED AS:	R v Mohamed, Chaarani & Moukhaiber (Ruling on Special Counsel)
MEDIUM NEUTRAL CITATION:	[2019] VSC 535

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CRIMINAL LAW – Subpoena – Claim of public interest immunity (‘PII’) by Chief Commissioner of Police – Confidential affidavits provided by Chief Commissioner – Defence application for appointment of special counsel to assist Court in resolving PII issues – Applicable law – No need for appointment of special counsel in this case - Evidence Act 2008, s 130.

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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

HIS HONOUR:

Introduction

1. The legal representatives of the accused Moukhaiber issued subpoenas to a number of parties including the Chief Commissioner of Victoria Police 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.

1. In response to the subpoena issued to it, the Chief Commissioner asserts a claim of public interest immunity (‘PII’) in respect of documents produced to the Court. I have been provided with two affidavits of Det. S/Sgt 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 the Chief Commissioner. Again, in each cases, these outlines were partly open and partly confidential.

1. Counsel for the accused Moukhaiber has 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.

The law

1. Counsel for the accused filed a detailed document entitled Application for the Appointment of Special Counsel, dated 15 March 2019. In the document, counsel set out the law relating to the appointment of special counsel, and made submissions in support of that course being followed in this case. I will not summarise that position here. I note that in further submissions made in Court, Ms Gerry QC for the accused put forward what she described as a practical solution for the Court to consider. That solution would require me to view the documents, hear from counsel for the Chief Commissioner in closed court if necessary, then make a decision on disclosure of the material to the defence. If my decision was to make all of the material available to the defence, then there would be no reason to appoint special counsel. If, on the other hand, my preliminary decision was to withhold any of the material, I should proceed to appoint special counsel.

1. Mr Dinelli, perhaps with some force, described that invitation as tantamount to defence counsel seeking to have her cake and eat it too.

1. In the circumstances, it seems to me that it is appropriate that I decide on the preliminary issue of the desirability of appointing special counsel.

The Chief Commissioner’s position

1. Mr Dinelli conceded at the outset that there is the power, in certain situations, to appoint special counsel. He submitted that the Chief Commissioner would not oppose such a course if I thought it was necessary to assist me to determine the issues in relation to PII in this case.

1. He submitted, however, that the appointment of special counsel would not be necessary in this case. The issues between the prosecution and the defence have been well ventilated in this case in connection with the arguments thus far over the subpoenas, and should be well understood by me. There are very few documents which are the subject of the PII claim, something which clearly distinguishes the position from that which applied in R v Lohdi.[1]

   [1][2006] NSWSC 586 (‘Lodhi’).

1. In the circumstances, it was submitted that the appointment of special counsel would be entirely unnecessary. There was no reason why what he described as the orthodox approach should not be followed, meaning that I would view the material in question, read the confidential affidavits and outlines, seek further clarification or assistance from him in closed court if necessary, and then decide the issue for myself in line with s 130 of the Evidence Act 2008 (‘the Act’).

1. If I ran into any difficulty or uncertainty, then would be the time to contemplate the appointment of special counsel.

The defence position

1. The defence position was quite the opposite. As Ms Gerry put it, this was not a routine PII claim, for reasons on which she elaborated. This is a terrorism trial in which the accused seeks material which might assist the defence and go some way to undermining the prosecution case. She submitted that the position I, as the trial judge, find myself in is problematic, and she submitted that this was a position in which the subpoenaed parties should not have placed me. She submitted that the use of confidential affidavits and evidence is ‘extreme’. Furthermore, as the defence outline asserted, there was no open material which justified the use of these extreme measures.

1. Ms Gerry submitted that the defence are in a position in which they are effectively unable to make submissions on the PII issues. It was highly undesirable, she submitted, that the matters at hand should be determined without the presence of counsel for either the prosecution or the defence. There would be no one to ensure the subpoena had been adequately complied with, and no one to protect the interests of the accused.

1. The further submission was made that the fact that the Australian Federal Police did not seek to claim PII was a telling matter. Victoria Police previously, in connection with the subpoena addressed to them, claimed to be a ‘stranger’, and yet now, were making assertions ‘that frustrate the trial process’.[2] In reality, Victoria Police, far from being strangers to the proceeding, are, in effect, ‘partisan’ in the outcome. Their interests conflict with those of the accused. Furthermore, they are not subject to the prosecutorial obligations of the Commonwealth Director of Public Prosecutions.

   [2]Outline [24].

1. Ms Gerry submitted that the depositions in this case were so voluminous that I could not readily claim a mastery of the material enabling me to properly assess the potential relevance of material amongst the PII documents. I would need assistance in this process.

Analysis

1. I accept that it may be open to a trial judge in the position in which I find myself to appoint special counsel to assist in the process of carrying out the duty which arises under s 130 of the Act. That does not mean that this would be an appropriate course to follow here. As Whealy J stated in Lodhi[3]:

I believe, for the reasons I have given, that the Court has power to do so and that it should do so but only if the Court is satisfied that no other course will adequately meet the overriding requirements of fairness to the defendant.[4]

[3][2006] NSWSC 586.

[4]Ibid [45].

1. Mr Dinelli submitted that it would be unnecessary in this case for special counsel to be appointed. I agree.

1. The obligation to deal with the issues arising under section 130 of the Act is mine, and mine alone. I consider that I will be well able to carry out that function, with the assistance of Mr Dinelli on behalf of the Chief Commissioner.

1. The possible relevance of the material the subject of the PII claim is something I understand well. This possible relevance was at the heart of the decision I made earlier in the trial to decline to set aside the subpoena. My understanding is that the defence seek material which may raise or strengthen the possibility that a person other than the accused, from amongst the people who have been of interest in the defence subpoena, may, in fact, be the third terrorist. I am well aware of the importance of this issue.

1. In response to the subpoena, the Chief Commissioner claims PII only in relation to a very small number of documents, which I have already viewed. I will seek further assistance from Mr Dinelli to fully understand the significance of the documents, and the basis on which PII is claimed. With that assistance, and with the knowledge I have of the case, I consider myself to be in a good position to carry out the balancing process required by section 130 of the Act.

1. Ms Gerry claimed that this was not a routine PII case. She submitted that I am in a problematic position. I do not accept this. I am in the position in which judges often find themselves of having to make a decision, guided by the legal principles. In this case, the considerations are clearly spelt out in section 130. I do not agree with the suggestion that the Chief Commissioner has done anything wrong in making this claim. He is doing no more than is his obligation under the law in asserting a claim of PII. Insofar as it has been asserted that the police are in a partisan position, I am confident that I can expect full and appropriate assistance in reaching the decisions I will need to reach in connection with the material. As for Ms Gerry’s submission that there would be no one to ensure that the subpoena has been adequately complied with, that is my duty, which I will endeavour to carry out.

1. Insofar as Ms Gerry submitted that the use of confidential procedures, by way of affidavit material, written submissions, or submissions in camera, would be extreme, I do not accept that contention. The use of such confidential measures has for many years in this State been considered to be appropriate where necessary. It is necessary here. The safeguard in place, of course, is that I am duty-bound to ensure that the rights of the accused are protected. I am required under section 130(5) of the Act to consider a number of matters, including:

(a)the importance of the information or the document in the proceeding; and

(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.

1. The authorities make it clear that if the information or document is needed to support the defence of an accused in a criminal trial, that will be a very strong factor in favour of disclosure.[5]

   [5]Alister v The Queen (1984) 154 CLR 404.

Conclusion

1. I see no need to appoint special counsel in this case. I decline to do so.