R v Roy (No 2)

[2024] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Roy (No 2)

Citation: 

[2024] ACTSC 305

Hearing Dates: 

6 and 26 September 2024

Decision Date: 

3 October 2024

Before:

McCallum CJ

Decision: 

(1)    Paragraphs 1 and 3(c) of the subpoena to the AFP dated 24 June 2024 are set aside.

(2) I confirm my ruling made on 10 September 2024 declining to issue a certificate pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth).

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside part of a subpoena – where subpoena based on misreading of an affidavit sworn in support of an application for a search warrant – whether subpoena too broad

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for certificate under the Mutual Assistance in Criminal Matters Act1987 (Cth) – whether documents sought could lead to a chain of inquiry that could establish that the manner in which the evidence was obtained involved an unlawful interception – whether documents might show that foreign collection of personal data would be a breach of privacy in Australia – whether foreign country was likely to grant request for assistance – whether material sought from the foreign country not otherwise available – whether material would likely be admitted in the proceeding – probative value of the material if admitted – whether the material has real and not speculative significance

Legislation Cited: 

Crimes Act 1900 (ACT) ss 64A, 65

Crimes Act 1914 (Cth) s3E

Criminal Code (Cth) ss 474.19, 474.22, 474.22A, 474.25A

Evidence Act 2011 (ACT) s 138

Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 5, 39A

Surveillance Devices Act 2004 (Cth)

Telecommunications (Interception and Access) Act 1979 (Cth) s 7

Cases Cited: 

BA v Attorney-General (Cth) [2017] VSC 259; 319 FLR 329

R v TB(No 4) [2023] SASC 76

Parties: 

Commonwealth Director of Public Prosecutions ( Crown)

Richard James Roy ( Accused)

Attorney-General (Cth) (Interested Party)

Commissioner of the Australian Federal Police (Subpoena Recipient)

Representation: 

Counsel

E Hobba ( Crown)

J Pappas and later T Taylor ( Accused)

J Davidson (Interested Party)

T Giugni (Subpoena Recipient)

Solicitors

Commonwealth Director of Public Prosecutions

Hugo Law Group ( Accused)

Attorney-General’s Department (Interested Party)

Australian Government Solicitor (Subpoena Recipient)

File Number:

SCC 117 of 2022

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․Richard Roy has been committed to this Court for trial for numerous offences involving the creation, possession and accessing of child abuse material. The current indictment dated 9 May 2023 includes 2 counts alleging possession of child abuse material via a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth); 2 counts in the alternative of possessing child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT); 10 counts of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code; 12 counts of using a child for production of child exploitation material contrary to s 64A of the Crimes Act (eight of those being in the alternative); 37 counts of accessing child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code; and 27 counts of accessing child pornography material using a carriage service contrary to s 474.19(1) of the Criminal Code.

2․The prosecution case rests heavily if not exclusively on material seized during the execution of a search warrant issued under s 3E of the Crimes Act 1914 (Cth) authorising officers of the Australian Federal Police (AFP) to search the accused’s home and two vehicles registered in his name. An affidavit in support of the grant of that warrant was sworn by Susan Corey, a member of the AFP.

3․By application in proceeding filed 25 June 2024, the accused proposes to seek a pre-trial ruling excluding evidence obtained under or in consequence of the search warrants. The application invokes s 138 of the Evidence Act 2011 (ACT). The Court has been informed that an amended application will be filed but that has not yet occurred.

4․The grounds specified in the current iteration of the application seek to impugn the Corey affidavit, contending that it contained and relied on information that was:

(a)available to the AFP as a result of the use of law enforcement tools that were obtained improperly or unlawfully;

(b)not full and accurate; or

(c)misleading. 

5․That application is listed for hearing in the week commencing 16 December 2024.  In aid of the application, the accused has taken a series of interlocutory steps to obtain evidence concerning the way the investigation began and the steps described in the Corey affidavit. 

6․On 6 September 2024, I heard two interlocutory applications concerning those interlocutory steps.  The first was an application by the AFP to set aside part of one of a number of subpoenas issued at the request of the accused. The second was an application by the accused for an order under the Mutual Assistance in Criminal Matters Act 1987 (Cth).

7․On 10 September 2024, I determined those applications, reserving my reasons. I granted the application by the AFP, setting aside the relevant parts of the subpoena and refused the application by the accused, declining to issue a certificate under s 39A of the Mutual Assistance in Criminal Matters Act. 

8․A remark made by Mr Davidson (appearing for the Attorney-General) at the conclusion of the proceedings on that occasion subsequently prompted the accused to apply to reopen his application under the Mutual Assistance in Criminal Matters Act.  I heard further submissions and received further evidence on 26 September 2024.  That further material has not persuaded me to vary my original ruling declining to issue a certificate.  This judgment records my reasons for the rulings on both applications.  I am giving these reasons orally to ensure that the hearing of the application listed in December is not delayed.

Application to set aside subpoena

9․The application to set aside part of a subpoena concerned the fourth subpoena issued at the request of the accused, being a subpoena dated 24 June 2024.  The application concerned categories 1 and 3(c) in the schedule to the subpoena.  The balance of the subpoena has either been complied with or responded to with an indication that there is nothing to produce.  To explain the documents sought in the two categories that remained, it is necessary to refer in some detail to the Corey affidavit. 

10․The affidavit was sworn for presentation to the officer asked to issue the warrant.  It is dated 12 January 2021.  It sets out in familiar form the physical areas in respect of which a search warrant was sought and the proposed conditions to the warrant.

11․The information provided to establish the basis for the issue of the search warrant is set out in par 6 of the affidavit.  That part of the affidavit begins by explaining the nature of “file sharing”, including the fact that computer software freely available on the internet provides a means for a person to obtain and share digitally stored information in various forms.  The affidavit proceeds to explain peer-to-peer file sharing, which is a method of communication available to internet users through the use of special software.  The author explains that computers linked together through the internet using this software form a network that allows for the sharing of digital files between users on the network.  The affidavit further explains that a user first obtains the peer-to-peer software, which can be downloaded from the internet.  In general, this allows the user to set up files on a computer to be shared with others running compatible peer-to-peer software.

12․The author explains how the process of obtaining files using peer-to-peer software proceeds:

A user obtains files by opening the P2P software/client on the user’s computer, and conducting a search for files currently being shared on the network.  Alternatively, a user can use file-sharing indexing websites to search for files.  The results of a keyword search are displayed to the user.  The user then selects file(s) from the results for download.  The download of a file is achieved through a direct connection between the computer requesting the file and the computer(s) sharing the file.

For example, if a person was interested in obtaining child abuse material, he or she would open the P2P client on his/her computer or use a file-sharing website and conduct a keyword search for files using a term such as “preteen sex.”  The search is sent out over the network of computers using compatible P2P software.  The results of the search are returned to the user’s computer and displayed.  The user selects from the results displayed the file(s) he/she wants to download.  The file is downloaded directly from the computer sharing the file.  The downloaded file is stored in the area previously designated by the user and/or the software. The download file will remain until removed or deleted.

13․The affidavit further states that, during the process of files being shared, the file is processed in a way that creates a hashed algorithm value for each file or piece of a file being shared and that the hashed algorithm values so created are unique; that is to say that each file that has been shared on a peer-to-peer network acquires a hashed algorithm which is in the nature of a fingerprint.

14․Continuing with the explanation of the way in which the investigation began, the author of the affidavit explains in par 6.9:

Suitably qualified online investigators are able to use similar P2P client software with modifications for law enforcement.  The software is designed as an automated scanning tool.  By using the same hashing algorithm, investigators are able to uniquely identify files of interest on P2P networks. These files are recognisable by their unique hash values (the fingerprint) and have been previously confirmed to contain child abuse material.

Emphasis added

15․The affidavit then goes on to explain that the person who commenced the relevant investigation in the present case on 6 July 2020, using logs obtained through the use of the law enforcement specific tool described earlier in the affidavit, identified a suspect who had used a device on 14 June 2020 and 20 June 2020 at a nominated IP address. That IP address in due course was identified to be associated with the accused, and that information formed the basis for the application for the warrant.

16․In addition to the evidence set out in the Corey affidavit, there was also before me on the present application a further statement prepared by the investigating officer, James Brown, dated 12 July 2024.  My understanding is that that affidavit was provided during the course of the exchanges between the Commonwealth DPP and the accused concerning compliance with the subpoenas issued by the accused.  Officer Brown repeats, as stated in Officer Corey’s affidavit, that he commenced an investigation on 6 July 2020 into the sharing of child abuse material through peer-to-peer networks using a program to which he refers as CPS, identified in the affidavit as the child protection system peer-to-peer program. He filtered the information available to him on CPS to “geolocate to the ACT region” and identified two files classified as “Child Notable” associated with the IP address which in due course he ascertained was associated with the accused.

17․Officer Brown downloaded a copy of the files identified through that search using the same hash value from a separate source.  He states:

These two files were not downloaded from the suspect and were publicly available for download from the P2P network.

In other words, as I understand his evidence, he used the modified software to identify the fact that the IP address later found to be associated with the accused had downloaded two files with hashed algorithms that proved to be child abuse material and then by separate means identified the connection between the accused and the IP address.

18․Returning to the application to set aside parts of the subpoena, category 1 of the subpoena required the production of records identifying all AFP officers who are “suitably qualified online investigators”. As will be apparent from the facts I have recited, that expression is drawn from par 6.9 of the Corey affidavit (set out at [14] above) where Officer Cory explains generically the process by which qualified police officers are able to make use of an adapted version of the software used by peer-to-peer users in sharing child abuse material.

19․In my assessment, as submitted by Mr Giugni appearing for the AFP on the application, the inclusion of that category in the subpoena is based on a misreading or misconception of the import of the affidavit.  As already explained, that part of the affidavit was explaining in general terms the technical context in which the investigation was commenced and undertaken.  Paragraph 6.9 does not purport to identify any specific group of AFP officers.  There is no legitimate forensic purpose for seeking the documents specified in category 1.

20․The second category the subject of the application was category 3(c) of the subpoena, which required production of any document provided to the AFP by any individual, group or entity which relates to the investigation of the accused.  It may be seen at a glance that the category is very broadly drawn, and so much was accepted by Mr Pappas, who appeared on this application on behalf of the accused.  Mr Pappas further accepted that, in the broad terms in which it is drawn, category 3(c) seeks the disclosure of documents governed by the DPP’s disclosure obligation.  However, he submitted that, to the extent that it was to be read as being more narrowly confined to production of the Child Protection System or documents in possession of the Child Rescue Coalition, he is sceptical as to whether the disclosure obligation has been properly complied with.

21․The accused provided a volume of evidence addressed to those matters, including lengthy correspondence between his solicitors and the solicitors for the AFP.  It is not necessary to go to the detail of that correspondence, save to say that I am not persuaded that the matters raised rise to the level of creating a basis for any scepticism as to whether there has been proper compliance with the duty of disclosure.  No specifics that were capable of making that point good were elaborated upon in any detail, although many individual allegations and complaints were made.  Based on my reading of the careful correspondence between the parties, I am satisfied that the AFP was simply seeking to understand precisely what the accused sought and why he thought there should be more than had already been disclosed.  

22․In any event, in the terms in which it is drawn, which were adhered to during argument, category 3(c) is too broad and I accordingly determined that it was liable to be set aside.

Application for certificate under the Mutual Assistance in Criminal Matters Act

23․Turning to the application under the Mutual Assistance in Criminal Matters Act, the application dated 28 August 2024 seeks the following order:

That it is in the interests of justice in Australia for the Attorney-General of the Commonwealth to make a request on behalf of the accused that the United States of America provide to the accused access to the documents sought by him for the purposes of these criminal proceedings being charges brought against him in Australia, for the purpose of preparing his pre-trial application presently listed to commence on 16 December 2024 to exclude evidence at his trial.

24․The Attorney-General must have had notice of the application as, before the date on which it was filed in court, the Attorney wrote to the Department of Justice of the United States seeking assistance in responding to the application.  I will return to the content of that correspondence.

25․Both the Crown and the Commonwealth Attorney-General (as an interested party) put on written submissions in respect of the application.  I have been greatly assisted by those submissions.  In particular, the Attorney-General’s submissions provide a careful survey of the principles to be applied in determining applications under the Mutual Assistance in Criminal Matters Act.  The discussion that follows is drawn heavily from those submissions.

26․The objects of the Act, as set out in s 5, are to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under the Act and to facilitate the obtaining by Australia of international assistance in criminal matters. The Attorney noted that, where the Act authorises Australia to make a request for international assistance in a criminal matter, it is the Attorney-General or his or her delegate who must make that request.

27․The regulations under the Act provide that the Act is subject to the Treaty between the Government of Australia and the Government of, relevantly in the present case, the United States of America, done at Washington in the United States on 30 April 1997.  A copy of the Treaty was provided to me.  Article 1.3 of the Treaty provides:

This Treaty is intended solely for mutual assistance between the Contracting Parties. The provisions of this Treaty shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of a request.

28․The balance of the Attorney’s submissions addressed the Explanatory Memorandum in support of amendments to the Act which introduced the opportunity for a defendant to make a request to a court for a certificate of the kind here made.  Those principles are also set out very helpfully in a decision of Bell J of the Victorian Supreme Court in BA v Attorney-General (Cth) [2017] VSC 259; 319 FLR 329. That decision provides a powerful and illuminating explanation of the importance of this kind of facility for defendants in obtaining a fair trial. Probably the significant passage of the judgment for present purposes, which was relied upon by both parties, addresses one of the considerations that is mandatory for the court in considering an application under s 39A(3). I will return to that issue.

29․The Attorney did not otherwise address the substance of the application save for submissions in respect of another of the mandatory considerations.  Again, I will return to that issue.

30․The Crown submitted that the application is or amounts to a fishing expedition and furthermore has the potential to delay the proceedings against the accused without any valid or compelling purpose. The Crown submitted that the case against the accused is amply made out by evidence seized during the search warrant on his premises and does not depend on any material from the Child Rescue Coalition. It was accordingly submitted that any argument invoking s 138 of the Evidence Act will be unaffected by the result of any mutual assistance request.

31․Section 39A of the Mutual Assistance in Criminal Matters Act specifies five mandatory considerations for the court in determining whether to issue a certificate.  The first is whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant.  The evidence relied upon by the Attorney-General was directed to establishing that the answer to that issue is that the United States Government is not likely to grant such a request.  At the time of the hearing before me, there were only two previous matters in which such requests had been made.  On each occasion, a response had been given broadly indicating that the United States Department of Justice construes the Treaty in such a way as to prohibit the kind of process now sought to be engaged.  At the time of the primary hearing before me, counsel for the Attorney-General very properly qualified that submission because, although correspondence had been sent to the United States Department of Justice in respect of the present request, that correspondence had not yet been responded to.

32․As already indicated, I gave my ruling in respect of the applications on 10 September 2024, reserving my reasons.  At the conclusion of the proceeding that day, I asked counsel for the Attorney-General, Mr Davidson, whether there had yet been a response to the Attorney’s correspondence with the United States Department of Justice.  Mr Davidson informed the Court that the United States Department of Justice had given “an indication that no response will be forthcoming” and that the Attorney-General had been informed “that the US would await the court’s ruling in effect, and respond if a certificate was issued and a request was made”.

33․At that time, the way in which the correspondence was referred to by Mr Davidson suggested the possibility that the response received from the United States would be determined according to whether I issued a certificate.  Upon reflection, however, I am not persuaded that that is the case. I will return to the detail of that correspondence.

34․Turning to the grounds for the application as originally argued, the assistance sought was to obtain an executable version of the software identified in the Corey affidavit. The forensic purpose identified by the accused for seeking that assistance was developed in three ways. First, it was submitted that an executable version of the software identified in the Corey affidavit might lead to a chain of inquiry that could establish that the manner in which the US authorities obtain the material they share with authorities in other countries involves an unlawful interception, or what would amount to an unlawful interception if carried out in Australia, of the kind prohibited by s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth).

35․Secondly, there was an argument based on privacy, which contended that the steps taken by the US parties involved the gathering of personal data which, if undertaken in Australia, would be a breach of privacy.

36․Thirdly, an argument was developed by Mr Pappas in relation to the Surveillance Devices Act 2004 (Cth) and an apprehension that the method of investigation in the United States relies on a system outside the clear regime that governs such investigation in Australia.

37․As to the suggestion of unlawful interception, based on my understanding of the evidence I have summarised, the process described in the Corey Affidavit does not involve any interception of a communication passing over a telecommunications system.  There is no evidence to suggest that is how the investigation using the peer-to-peer network proceeded in the present case.  As I have endeavoured to explain, peer-to-peer networks provide a method of sharing files.  That method is available using software that can be downloaded from the internet.  Police use similar peer-to-peer software with modifications for law enforcement.

38․When users of the peer-to-peer network obtain a file using that software, it is processed in such a way as to create a unique hashed algorithm.  Investigators use the modified software, which is designed as an automated scanning tool, to search for known hashed algorithms more expeditiously than by manual searching or posing as a peer.  They are able in that process to see the IP address of any device using the IP address to share files of interest.  In all of those processes, I am unable to see how there is any interception of any communication passing over a telecommunications device.  Rather, the investigation appears to proceed using the modified software posing effectively as a fellow peer in the peer-to-peer network and obtaining information any peer could obtain if they joined that network.  Accordingly, the first forensic purpose identified, as it seems to me, is based on unfounded speculation.

39․As to the privacy argument, Mr Pappas submitted that it is “perfectly feasible and indeed highly likely that what is happening in America which results in the compiling of these logs is an infringement of privacy in this country”.  That argument, as I understood it, related to the collection of the hashed algorithms of known child abuse material and the fact that logs of their being shared are maintained by the AFP in a kind of library which police can consult whenever they find a relevant sharing incident through the process of posing as a peer in the peer-to-peer network.

40․The privacy argument was further developed on the reopening application, when Mr Taylor appeared in place of Mr Pappas. Mr Taylor relied on a recent decision of the Administrative Appeals Tribunal in which a finding was made in relation to a different kind of process that it amounted to a breach of the Privacy Act: Clearview AI Inc v Australian Information Commissioner [2023] AATA 1069.

41․In the present case, the argument is based on the content of the manual relating to the American software, which includes a description of part of the process, referred to as a “username report”.  The evidence included a screenshot showing a tab by which unconfirmed subscriber information can be accessed.  The manual states that this may include name, address, date of birth and phone number.  The proposition appeared to be that this Court could infer from that sparse material that the use of the American software involves the collecting and storing of privacy data that would be a breach of the rights of people using a peer-to-peer network in Australia.

42․With no disrespect to Mr Taylor, who developed the argument carefully, there are three difficulties with that argument. First, it is speculative. There was no identification of any actual instance of such material being obtained and, more importantly, no basis for inferring that it regularly was. Secondly, there was no evidence to suggest that any such data captured and retained or stored concerned the accused. Thirdly and perhaps most importantly, the suggestion that a breach of privacy could provide a basis for seeking to exclude under s 138 of the Evidence Act the evidence of child abuse material obtained in the execution of the search warrant is tenuous at best.

43․In that context I return to the Crown’s submission that the case against the accused is amply made out by evidence seized during the search warrant on his premises and does not depend on any material from the Child Rescue Coalition. I accept that an argument might be mounted that derivative use of unlawfully obtained material might provide a basis for excluding the evidence. The difficulty is that, for the reasons I have endeavoured to explain, that connection is entirely speculative on the evidence before me.

44․Finally, turning to Mr Pappas’ Surveillance Device Act argument, it is enough to say that it was not developed with any great clarity, and it seemed to me to involve the same misconception about the operation of the peer-to-peer network as did the Telecommunications (Interception and Access) Act argument.

45․Returning, then, to the mandatory considerations under s 39A, and leaving aside for the moment the first of those (the issue raised by s 39A(3)(a) whether the foreign country is likely to grant such a request), the second consideration is the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available. I accept that it appears that an executable copy of the software and the other items described in the application under the Act would not otherwise be obtainable.

46․The issue raised by s 39A(3)(c) is whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding. For the reasons I have explained, there does not appear to be any basis on which the material would be admissible. I accept that the inquiry at this stage is whether it might be possible that some chain of inquiry could be fruitfully followed through the issue of the request, but I am not persuaded even at that low bar.

47․The next issue raised by s 39A(3)(d) is the likely probative value of the material if it were admitted into the evidence in the proceeding with respect to any issue likely to be determined. For the reasons already given, that is a factor that is not established and is not in favour of the application. It follows from those conclusions that I am not satisfied of the fifth mandatory consideration, which is whether the defendant would be unfairly prejudiced if the material were not available to the court.

48․For completeness, I note that the court may have regard to any other matter it considers relevant under s 39A(4). On that topic, I note the point made by the Commonwealth DPP about the prospect of delay. These proceedings have already suffered considerable delay.

49․I return to the question of the correspondence between the Attorney-General’s Department and the United States Department of Justice, the issue raised by s 39A(3)(a). It is not necessary to refer to the terms of the letter from the Commonwealth Attorney-General to the Department of Justice written on 16 August 2024. What is significant is the terms of the response.

50․When the application to re-open the s 39A application was heard on 26 September 2024, counsel for the accused tendered a letter written by the Department of Justice dated 20 September 2024 which, contrary to what Mr Davidson had been given to understand on 10 September 2024, provided a substantive response to the Attorney’s request. The letter, after assuring the recipient that the United States greatly values its cooperative relationship with Australia, continued as follows:

As there is no indication of adoption, support and/or endorsement to obtain the Defendant’s requested materials by the Australian Central Authority or the Director of Public Prosecutions, were the Australian Central Authority to submit a mutual legal assistance request to the United States seeking the requested materials, the United States Department of Justice, as the central authority under the Treaty, would decline to execute such a request pursuant to Article 1(3), (stating that the “treaty is intended solely for mutual assistance between the Contracting Parties. The provisions of this Treaty shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of the request.”)

51․As I have already indicated, the remarks made by Mr Davidson might have created the impression that that response was informed by my declining to issue a certificate.  Upon reflection, however, I think that is wrong.  The terms of the response are similar to the terms of the responses in the two other cases in which the Department of Justice has declined similar requests from Australia.  Accordingly, I infer that the response was not informed by my ruling but rather by the position taken by the US Department of Justice as to the proper interpretation of the Treaty.

52․Even if that is wrong, the judgment of Bell J makes plain, and it accords with common understanding of the proper, respective functions of the court and the executive according to the doctrine of the separation of powers, that the policy of the Act is that the accused must persuade the court asked to issue a certificate that the material sought has real and not speculative significance in the trial or other criminal proceeding. That is properly a judgment or evaluative assessment to be made by the court, not the Attorney-General or the US Department of Justice.  I would not issue a certificate requesting assistance unless I was satisfied in the terms of that test. The judgment of Bell J provides a powerful argument for requesting assistance where, as his Honour found in the circumstances of that case, there is a basis for being satisfied that an accused would be unfairly prejudiced if the documents sought were not available to the court.

53․In that case his Honour was concerned with terrorism charges based on information provided by a person in the United States obtained by FBI officers. The whole basis for the brief and all the documents that could properly be disclosed in respect of it, or at least in respect of the key witness, were held in the United States and would, had they been held in Australia, have been disclosed in accordance with well-established disclosure obligations.

54․Another decision in which the legislation was considered was that of Kimber J in R v TB(No 4) [2023] SASC 76. That was a case in which the basis for the application was not as strong. His Honour was not persuaded in terms of s 39A and refused to issue a certificate. The present case is more in the category of the case considered by Kimber J and, if anything, is weaker than that case. As I have endeavoured to explain, the connection between the argument sought to be put in the pre-trial application and the document sought by the application under the Act is at best tenuous.

55․For those reasons, I make the following orders:

(1)Paragraphs 1 and 3(c) of the subpoena to the AFP dated 24 June 2024 are set aside.

(2)I confirm my ruling made on 10 September 2024 declining to issue a certificate pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth).

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: