R v Syed Basri, Saripah

[2008] NSWDC 348

CITATION:	R v Syed Basri, Saripah; Madubuko, Henry and Okonkwo, Ifeanyi [2008] NSWDC 348
JUDGMENT DATE:	22 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	HH proposes to the parties to invite, particularly the AFP, to consider releasing material already before the jury and HH refers particularly to material in respect of which a claim was sought in case note 149145352, and editing material found, particularly HH refers to material to be found in document case note 149144969, a document which appears to be sent on Monday 25 February 2008 at 12.15pm, and on the page that HH had got, which HH will show the parties from here, halfway down the page is an AFP logo with Federal Agent Kelly Mansfield on it. HH cannot better describe that document, and case note 149145352. The parties indicate to HH, what their attitude is to both the editing and whether a final judgment is required.
CATCHWORDS:	Criminal law - subponea upon AFP - sought to be answered by producing redacted documents - terms of subponea - producing edited version of document fails to comply with subponea - failure to respond to terms of subponea - subsequent production compiies with terms of subponea - claim of public interest immunity - basis of immunity - ongoing investigation - relationship with foreign law enforcement - confidential methodology - nature of legitimate forensic purpose of party issuing subponea - material produced meets legitimate forensic purpose - material produced satisfies claim of public interest immunity - absence of jurisdiction to order producing party to edit documents sought on subponea - current greater exposure of law enforcement methodology in community than previously matter to take into account in exercising discretion - parties invited to reconsider their positions in respect of scope of redacted material that AFP prepared to supply independently of subponea.
CASES CITED:	R v James Salem 1989 AcrimR 406
PARTIES:	Regina Saripah Zamrut Binti Syed Basri Henry Ugo Madubuko Ifeanyi Fidel Okonkwo
FILE NUMBER(S):	2008/11/0491; 2008/11/0498; 2008/11/0556
COUNSEL:	Federal Police: Defence: Mr S Russell

JUDGMENT

1. In the matter of Basri and Commissioner of Federal Police, Saripah Syed Basri, hereafter Ms Basri, is presently before the Court being tried upon a single charge that she, on 25 February 2008, at Sydney, she did import a substance, the substance being a border controlled drug, namely, heroin, and the quantity imported being a commercial quantity. It is a serious charge. For a person found guilty it carries a maximum term of life imprisonment. While this is not a worse case, clearly Ms Basri's liberty is at stake.

2. On 16 October last I gave leave for short service of a subpoena upon the Commissioner of the Australian Federal Police. The subpoena sought all notes, statements, memorandums, computer generated information, intelligence reports or similar documents concerning the statements of disclosure made by the Commonwealth Director of Public Prosecutions, namely;

“The AFP advise they were aware Saripah Syed Basri was going to attempt to import a prohibited substance into Australia prior to her arrival in Australia.”

3. No objection was taken to the form of the subpoena or short service on the abridged return date. The AFP has now identified documents falling within the scope of the subpoena. These documents comprise:

A. Overseas liaison communication dated 15 February 2008 to Asia Desk (two pages);
B. Overseas liaison communication dated 22 February 2008 to Asia Desk (2 pages);
C. Official diary of Federal Agent (F/A) Kelly Mansfield (four pages);
D. Case note entry ID 149144969 dated 25 February 2008 by F/A -- at 12.41 hours (two pages);
E. Email from F/A Stephanie Leonard to F/A Kelly Mansfield and vice versa (one page);
F. Email from F/A Kelly Mansfield to Simon Hannaford (ACS) one page;
G. Email from F/A Kelly Mansfield to F/A Masi Laveta and F/A Rod Cooke (one page) and;
H. Case note diary entry, ID 149145352 dated 25 February 2008 FSA Rainer 22.03 hours (three pages).

4. On 16 October 2008 the AFP produced redacted versions of some or all of the documents to the Court. The documents were redacted by with holding information regarded by the AFP as irrelevant. It concerned what the AFP regarded as unrelated matters and telephone numbers of AFP; it also redacted out information subject to claims of public interest immunity.

5. Although not identified in the original documents made available in answer to the subpoena, the current claims for the public interest immunity relate to ongoing investigations, relationship with foreign law enforcement agencies, methodology, not relevant, public interest immunity and now declassified.

6. Subsequent to the first production of documents and when reminded of its obligation, the AFP produced all documents sought, or at least copies of them, from their original condition. Counsel for Ms Basri sought access to the documents. The AFP claimed public interest immunity in respect of most documents produced. It was prepared to concede access to the redacted documents. In effect, what the court is dealing with is an application for public interest immunity to be granted to the Commissioner of the Australian Federal Police insofar as all items identified as public interest immunity claims in the unredacted documents produced.

7. While I have had no opportunity overnight to research the situation, my sense is that neither, at law, nor by virtue of the terms of subpoena which, after all, is an order of the court, nor in terms of common law is it possible to require a party responding to a subpoena to edit a document sought. The subpoena order is an order to produce specified documents. Thereafter, the question of access to a produced document or to produce items (in this case documents) stands or falls upon the access, the argument why it should or should not be released from the custody of the Court.

8. Some claims for public interest immunity in the documents are pressed upon more than one ground. For example, a number of claims were pressed upon grounds which related to “ongoing investigation”, to “relationship with foreign law enforcement” and to confidential “methodology”. In all there were more than 60 items through the 15 or so documents in respect of which claims for public interest immunity were made.

9. My view, as I say tentative as it is, is that to uphold any claim for public interest immunity in respect of any document would result in the whole of that document being excluded or denied to the defence. Before claims are considered, Mr Russell, counsel for the accused Basri, was invited to identify the legitimate forensic purpose for which access to the documents was sought. The test to be applied to determine whether legitimate forensic purpose is made out is that it must be "on the cards" that the documents sought will materially assist the accused's defence. See R v James Salem 1989 A Crim R 406.

10. When confronted by the authorities that heroin was in her suitcase, which had earlier been placed in the luggage hold of the aircraft, Ms Basri denied any knowledge of the heroin. Her case is being conducted upon the basis that there was, indeed, a commercial quantity secreted in the lining of the bag which she brought into Australia but its secretion was never a fact known to her; nor did she intentionally or recklessly import the heroin into Australia.

11. Mr Russell's case is that the AFP, and through them Australian Customs Service, had prior knowledge that Ms Basri would be entering the country and would probably be the medium by which heroin was to be imported into Australia. The legitimate forensic purpose, Mr Russell claims, is that there may be material disclosed in the communications between India and Australia and the observations of those involved in monitoring progress of Ms Basri to Australia that would support her defence. He argues there may be material that may reveal a modus operandi of duping potential couriers by the principals behind this importation.

12. On the material thus far disclosed from the subpoenaed documents there is material that would fit the description referred to above of interest to Mr Russell. I should also indicate that if among the items in respect of which a public interest immunity claim is made there was material that "on the cards" assisted the defence in the way sought by Mr Russell, I would regard that material as meeting a legitimate forensic purpose.

13. I have reviewed each of the items in respect of which claims have been made for public interest immunity. In the course of so doing I came across items where the claim for public interest immunity would need to be upheld. I also came across items where a claim for public interest immunity was made, even though evidence identical to the material in respect of which the claim was sought has been given before this Court. There were items where a claim was made for public interest immunity where, even though I doubt the merits of the claim, I was satisfied the material was attracted to a legitimate forensic purpose. I came across material that "on the cards" may have offered a legitimate forensic purpose, but for reasons I would give in final judgment I would uphold the claim for public interest immunity.

14. Finally, I came across material that where an edited version of the information contained could be presented so as to protect both the ongoing investigation, foreign law enforcement contacts, the identity of any person of interest, and methodology, I have noted what I regard as an absence of jurisdiction when dealing with the return of subpoena and access to documents to order the AFP to edit documents they have been ordered to produce, so that a party may have access to a document in a form it never subpoenaed.

15. I disagree with the submission of Ms Gleeson that there is no material contained in the documents that is or might be relevant to the questions raised by Ms Basri's defence. Nor, incidentally in my view, is that a proper test. It puts the test of access to documents too high. See Salem ante.

16. Finally, I should say in determining the well-known competing tensions one needs to apply modern community standards. In the 20 or more years since much of jurisprudence was settled, the public had little knowledge or interest in ongoing investigations, intercontinental and intracontinental relationships between law enforcement groups or police or law enforcement methodology. Today, however, the scenario is vastly different. Programmes such as Border Control, CSI and the like, movies and media exposure, both sensational and thoughtful, have brought law enforcement, its methodology and interaction with other groups right into everyone's lounge room.

17. For example, there was material sought to be excluded on public interest immunity relating to law enforcement concerns about the dynamics of the group who dispatched Ms Basri to Australia. Lawyers involved in this case and jurors hearing this case would have little difficulty inferring conclusions identical to the material sought to be excluded. For my part, although I do not express any final opinion and hopefully I will not have to, I wonder whether in those circumstances it makes any sense to uphold a claim for public interest immunity. 18. What I am proposing to the parties now is to invite, particularly the AFP, to consider releasing material already before the jury and I refer particularly to material in respect of which a claim was sought in case note 149145352, and editing material found, particularly I refer to material to be found in document case note 149144969, a document which appears to be sent on Monday 25 February 2008 at 12.15pm, and on the page that I have got, which I will show the parties from here, halfway down the page is an AFP logo with Federal Agent Kelly Mansfield on it. I cannot better describe that document, and case note 149145352. The parties can indicate to me, perhaps by the end of today, what their attitude is to both the editing and whether a final judgment is required.