Regina (C'Wealth) v Baladjam [No 28]

[2008] NSWSC 1449

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 28] [2008] NSWSC 1449
HEARING DATE(S):	16/06/08
JUDGMENT DATE :	24 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order that the subpoena dated 14 March 2008 be set aside.
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Applications to set aside subpoena - Fishing expedition - Collateral challenge to warrants - Attempt to obtain materials in support of warrants
LEGISLATION CITED:	Australian Crime Commission Act 2002 (Cth) Criminal Code Act Listening Devices Act 1984 (NSW) Telecommunications (Interception) Act (1979) (Cth)
CASES CITED:	Alister v The Queen 1983 HCA 45; 1984 154 CLR 404 at 414 Attorney General v Chidgey [2008] NSWCCA 65 Australian Crime Commission v Magistrates Court (Vic) [2007] 173 A Crim R 572 Burmah Oil Company Limited v Bank of England (1980) AC 1090 at 1129 per Lord Edmunds Davies Carroll v The Attorney General (1974) 70 A Crim R 162 DPP v Webb [2001] 52 NSWLR 341, 346-7 at (20)-(26) per Mason P Coco v The Queen (1994) 179 CLR 427 at 435 Commissioner of Railways v Small (1938) 38 SR NSW 564 at 575 Lipohar v The Queen (1999) 200 CLR 485 Murphy v The Queen (1989) 167 CLR 94 at 104-106 per Mason CJ and Toohey J NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 Ousley v The Queen (1997) 192 CLR 69 at 79 Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 R v Saleam (1989) 16 NSWLR 14 at 18 A-F per Hunt J The Queen v Saleam (1999) NSWCCA 86 at para 11
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 28] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	W Abraham QC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown P Singleton - State Crown (By Leave) M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma
SOLICITORS:	Commonwealth DPP State Crown Solicitors Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: TUESDAY 24 June 2008

2007/2397001 - Regina v Omar BALADJAM [No 28]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application to set aside subpoena issued on behalf of Khaled Cheikho - Search warrant material collateral challenge to warrants

1 HIS HONOUR: Khaled Cheikho is one of nine men accused of conspiring with each other to do acts in preparation for a terrorist act or acts. Pre-trial applications have been heard by the Court over the last four months. The stage has now been reached where there are a significant number of issues relating to subpoenas issued on behalf of various of the accused. This application relates to one of those issues.

2 Khaled Cheikho's lawyers caused to be issued a subpoena addressed to the New South Wales Crime Commission. The subpoena was issued by the Registrar, Mr P. G. Ryan. It is dated 14 March 2008. The paragraphs of the subpoena that are especially relevant for the present application are paragraphs 1 to 4 inclusive. They are in the following terms:

“1. Copies of any and all applications pursuant to s 39 Telecommunications (Interception) Act 1979 on behalf of the Crime Commission for warrants in respect of the accused.
2. Any and all authorisations issued pursuant to s 55 Telecommunications (Interception) Act 1979 permitting the authority conferred upon the Crime Commission by the warrants issued as a result of the applications set out in paragraph 1 to be exercised by officers and/or staff members of the Commission.
3. Any and all documents which set out the names of those persons who, in fact, exercised the authority conferred upon the Crime Commission by the warrants issued as a result of the applications set out in paragraph 1;
4. The affidavits which, pursuant to s 42(1) Telecommunications (Interception) Act 1979 accompanied the applications for warrants and that resulted in the issuing of the following warrants:
(a) EO1352-00-00
(b) EO3167-00-00
(c) EO3169-00-00
(d) EO3361-00-00 and
(e) EO3754-00-00.”

3 (The documents sought not only relate to interceptions on Khaled Cheiko’s service but also to services in the name or names of other of the accused).

4 On 16 June 2008, Mr Singleton of counsel announced his appearance for the New South Wales Crime Commission. Mr Singleton was given leave to file a notice of motion which sought an order that the subpoena I have identified be set aside. Mr Waterstreet appeared for Khaled Cheikho and sought to persuade the Court that a legitimate forensic purpose had been established. The principal argument focused on the four paragraphs of the subpoena I have set out above. It is agreed, however, that if the motion is successful, the whole of the subpoena should be struck out.

Nature of the Crown case

5 I shall now briefly refer to the nature of the Crown case.

6 The accused are nine men who are said by the prosecution to be parties to the conspiracy involved in the charge contained in the indictment. The prosecution case is that each of the conspirators considers himself to be a devout Muslim; each held certain beliefs in common relating to their interpretation of the Muslim faith. These common beliefs included the following: -

(a) Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims;

(b) “Jihad” was the primary means by which this religious obligation should be fulfilled;

(c) a significant and legitimate aspect of the fulfilment of this obligation was violent Jihad, which involved the application of force and violence, including in certain circumstances the killing of “infidels” or “kuffir” (that is, persons who do not have the same fundamentalist beliefs).

7 These views are evidenced by, amongst other things, the finding of a large volume of material supporting such views (“extremist material”) at the premises of each accused upon the execution of search warrants. That extremist material was found in the form of electronic media including videos, DVDs, CD’s and material from websites downloaded and saved on each of the accused’s computer or computers.

8 In accordance with the holding of those common beliefs, the accused entered into an agreement to obtain the capacity or capability to prepare for a terrorist act (or terrorist acts). This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act (or terrorist acts). In furtherance of the agreement the accused amongst other things:

(a) obtained or attempted to obtain chemicals and other relevant materials which could be used (directly and/or indirectly) in the construction of an explosive device;


(b) obtained or attempted to obtain weaponry and ammunition;

(c) possessed large amounts of extremist and instructional material.

9 In undertaking their activities the accused became aware that they were being monitored by the authorities. This investigative activity by the authorities included physical and electronic surveillance, interviews and search warrants conducted on the premises relating to various accused before they were arrested. Despite this awareness, each of the accused continued with their activities in relation to the offence. In undertaking these activities, the accused displayed a high level of planning to avoid detection. For example, some of the covert means which the accused utilised included the following:

(a) acquiring and using mobile telephones in false names (these telephones were used, for example, to make enquiries and purchases relevant to the conspiracy and to organise meetings);

(b) using coded SMS messages (with mobile telephones in false names) to arrange covert meetings and to pass messages to each other;

(c) using false names when making enquiries about purchases and purchasing items;

(d) using false names to book camping trips;

(e) using techniques to avoid physical monitoring (“anti-surveillance”) and/or techniques to detect physical monitoring (“counter-surveillance”);

(f) using public telephones (in circumstances where the accused were known to be in possession of mobile telephones);

(g) using electronic equipment to check whether they were the subject of electronic monitoring.

10 In particular, the accused used techniques to avoid and/or detect monitoring by the authorities during the weeks leading up to the arrests in early November 2005. During this period, certain of the accused arranged covert meetings in public places using coded text messages from mobile telephones subscribed in false names. These arrangements included meetings to be held during the early hours of the morning. The accused engaged in anti-surveillance and/or counter-surveillance before these meetings took place. On a number of occasions, these meetings were cancelled by the accused when they discovered that they were under surveillance.

11 This brief statement of the Crown case does not, of course, do justice to the complexity and detail of the factual circumstances to be relied upon by the Crown at trial. It indicates, however, that an important part of the Crown case will include listening device and telephone interception material.

12 In relation to the latter product, this was on occasions obtained by interceptions secured at the behest of the New South Wales Crime Commission. The subpoena in question seeks documents surrounding the circumstances in which warrants were issued to enable various interceptions to take place.

Interception Warrants

13 There is no need for me to detail the number and nature of warrants to be relied upon at trial. It is clear that there are a considerable number. The warrants relevant to the present application were obtained, so I was told, pursuant to the provisions of the Telecommunications (Interception) Act (1979) (Cth). It will be necessary, in order to understand the arguments advanced on the present application, to refer to a number of sections of this legislation. I shall now turn to these.

14 Section 7, relevantly, provides:

“ 7 TELECOMMUNICATIONS NOT TO BE INTERCEPTED
(1) a person shall not:
(a) intercept;
(b) authorise, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or her or another person to intercept;
a communication passing over a telecommunication system.
(2) Subsection (1) does not apply to or in relation to:
(a) an act or thing done by an employee of a carrier in the course of his or her duties for or in connection with;
(i) the installation of any line, or the installation of any equipment used or intended for use in connection with a telecommunications service; or
(ii) the operation or maintenance of a telecommunication system; or
(iii) the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of part 10.6 of the Criminal Code ;
where it is reasonably necessary for the employee to do that act or thing in order to perform those duties effectively; or
(aa) the interception of a communication by another person lawfully engaged in duties relating to the installation, connection or maintenance of equipment or a line, where it is reasonably necessary for the person to intercept the communication in order to perform those duties effectively; or
(ab) the interception of a communication by a person lawfully engaged in duties relating to the installation, connection, or maintenance of equipment used, or to be used, for the interception of communications under warrants; or
(ac) the interception of a communication where the interception results from, or is incidental to, action taken by the Organisation in the lawful performance or his or her duties, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(b) the interception of a communication under a warrant
...”

15 Sections 45 and 49 are as follows: -

“ 45 Issue of telecommunications service warrant in relation to class 1 offence

Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and
(e) having regard to:
(i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;
(ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and
(iii) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason;
some or all of that information cannot appropriately be obtained by such methods;
the Judge or nominated AAT member may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service.
49 Form and content of warrant
(1) A warrant shall be in accordance with the prescribed form and shall be signed by the Judge or nominated AAT member who issues it.
(2) A warrant may specify conditions or restrictions relating to interceptions under the warrant.
(2A) Without limiting subsection (2), a named person warrant may state that the warrant does not authorise the interception of communications made to or from a specified telecommunications service.
(3) A warrant shall specify, as the period for which it is to be in force, a period of up to 90 days.
(4) A Judge or nominated AAT member shall not vary a warrant by extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further warrant in respect of a service, or a person, in respect of which a warrant has, or warrants have, previously been issued.
(6) In subsection (5), warrant means a warrant issued under this Act.
(7) A warrant shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied, on the application for the warrant, as mentioned in:
(a) in the case of a warrant issued under section 48—paragraph 45(d) or 46(1)(d), as the case requires; or
(b) otherwise—paragraph 45(d), 45A(d), 46(1)(d) or 46A(1)(d), as the case requires.

16 Section 63 is in the following terms:

17

“ 63 NO DEALING IN INTERCEPTED INFORMATION OR INTERCEPTION WARRANT INFORMATION
(1) Subject to this part, a person shall not, after the commencement of this part:
(a) communicate to another person, make use of, or make a record of; or
(b) give in evidence in a proceeding,
lawfully intercepted information or information obtained by intercepting a communication in contravention of s 7(1)
...”

18 There are other sections relevant to the present argument. I will not set these out in full. I will simply refer to their content.

19 An agency may apply to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunication service or a person (the New South Wales Crime Commission is an agency for the purposes of the legislation).

20 Save in cases of urgency, an application for a warrant is to be in writing (s 40(1)). A written application by an agency for a warrant is to be accompanied by an affidavit which is required to comply with the matters stated in s 42.

21 Section 43 deals with the information to be given where an application is made urgently by telephone.

22 Section 61 enables the issue of a written certificate signed by the Managing Director of a carrier, the Secretary of a carrier or an employee of a carrier authorised to furnish the certificate. The certificate may set out facts considered relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed. Such a certificate is to be received in evidence in an exempt proceeding without further proof and is conclusive evidence of the matters stated in the document (the present proceedings answer the description of "an exempt proceeding").

23 Section 61(4) and (5) enable the issue of a written certificate which provides prima facie evidence of certain matters.

24 Section 61A enables the tender in evidence of a document certified in writing as a true copy of a warrant. It is to be received in evidence as if it were the original warrant.

Legitimate forensic purpose - Submissions of counsel

25 Mr Waterstreet accepted the general principles underlying the rule that a subpoena is liable to be set aside if it does not exhibit a legitimate forensic purpose. Counsel identified the legitimate forensic purpose in the present matter as a need to obtain documents to ascertain whether the various warrants affecting his client and others had been validly issued. For example, the issuing officer must be satisfied that Division 3 has been complied with in relation to the application and the application must itself provide the sole basis upon which satisfaction by the issuing officer of the various matters set out in s 45(b)-(e) can be obtained.

26 Mr Waterstreet argued that, unless the accused could access the applications, the affidavits and authorisations mentioned in paragraphs 1 to 4 of the subpoena, it would be simply impossible for his client to satisfy himself that the warrants had been validly issued (see by way of further example, s 55(1) of the legislation relating to the authorisation of an officer or staff member of an agency).

27 Secondly, Mr Waterstreet argued that support for the legitimacy of the defence proposition was to be found in the decision of the New South Wales Court of Criminal Appeal in DPP v Webb (2001) 52 NSWLR 341, 346-47 at (20)-(26) per Mason P.

28 Thirdly, Mr Waterstreet pre-emptively sought to distinguish the recent decision of the Court of Criminal Appeal in Attorney-General v Chidgey (2008) NSWCCA 65. This was on the basis that the controlled operation authority in Chidgey was not a prerequisite to the admissibility of the evidence sought to be led in that trial. For that reason, counsel argued, the present case was governed by the decision in Webb.

29 Fourthly, support was sought to be obtained from a decision of Smith J in the Victorian Supreme Court. This decision was the Australian Crime Commission v Magistrates Court (Vic) (2007) 173 A Crim R 572. Although this decision is not binding on the Court in the present matter, Mr Waterstreet suggested that it should be considered of considerable persuasive value, both because of the general principles of judicial comity and because of the desirability of a common approach between State courts in Federal matters (Lipohar v The Queen (1999) 200 CLR 485).

30 Finally, Mr Waterstreet drew particular attention to the documents sought in paragraph 4 of the subpoena. The legitimate forensic purpose identified here was stated more specifically. It arose from the fact that material tendered before the Court on the subject application suggested that the relevant warrants were executed in some joint fashion by two carriers, and not by one.

31 Exhibit 2, for example, shows that there is an evidentiary certificate from Louise Sexton, the company secretary of Hutchison Telecommunications Limited (TRADING AS ORANGE). The certificate shows that Hutchison Telecommunications received the warrant and that the relevant telecommunications service, in the name of Jamal, was one provided by Hutchison Telecommunications. There is, in addition, a second certificate from the company secretary of Telstra Corporation referring to the fact that Jamal's telephone service was provided by Telstra Corporation.

32 The position may be further exemplified from material in Exhibit 1. There, Phillip Bradley, the Commissioner of the New South Wales Crime Commission (referring to interceptions on Jamal's telephone in relation to the same warrant) states:

“During the relevant period communications made to and from the telecommunications service passed over a telecommunication system operated by Hutchison Telecoms ("Hutchison"). During the relevant period communications made to and from the telecommunications service operated by Hutchison also passed over a telecommunication system operated by Telstra Corporation Limited.”

33 Mr Waterstreet argued that there was no apparent explanation given for the fact that communications were being intercepted as a result of actions by two different carriers. He foreshadowed an argument that this would be prohibited by the legislation. The anticipated argument would raise the suggestion that interception communications passing over a telecommunication system, other than the one which enables the relevant telecommunication service, would be unlawful. The prospect of this argument, Mr Waterstreet argued, made legitimate the subpoena seeking the warrant affidavits in paragraph 4 of the subpoena.

34 Mr Singleton, on the other hand, argued that no legitimate forensic purpose had been established or demonstrated. Mr Singleton accepted that the Crown, at trial, could be put to strict proof of the existence of the relevant warrants. It was his understanding that those warrants were already in the possession of the accused as a consequence of the Crown's duty of disclosure. If there were legitimate arguments to enable those warrants to be challenged, then Mr Singleton accepted that forensic attacks could be mounted on the use of the interceptions as evidence at trial. Mr Singleton accepted that this was the position underlying decision in Director of Public Prosecutions v Webb.

35 Mr Singleton took issue with the proposition, however, that a legitimate forensic purpose had been established in relation to the suggested production of the applications, the affidavits and the authorisations underlying the issue of the warrants. Counsel argued that the defence were simply seeking to engage in a fishing expedition to see whether there was material in existence that might help it identify a point or points of attack on the warrants. That course was directly prohibited by the decision of the Court of Appeal in Carroll v The Attorney-General (1994) 70 A Crim R 162, especially at 181-182 per Mahoney AP. Mr Singleton submitted that the import of this decision had recently been reaffirmed by the Court of Criminal Appeal in Chidgey's case.

36 In relation to the fourth paragraph of the subpoena, Mr Singleton argued that, even if there were some problem with the manner in which the warrants had been executed, there could be no suggestion that any explanation for this was likely to be apparent in the affidavits in support of the application. Again, it was argued that Khaled Cheikho had not shown a legitimate forensic purpose for this material.

37 Finally, Mr Singleton suggested that the decision of Smith J in Australian Crime Commission v Magistrates Court was clearly distinguishable from the present case. Secondly, if it were suggested that the decision was persuasive in a way that was inconsistent with the principles in Carroll's case, it should be regarded as simply wrong and should not be used for any guidance in the present matter. Mr Singleton noted, with emphasis, that Carroll's case had not been cited before Smith J.

Resolution of the issues

38 There is no doubt that the accused would be entitled to raise a challenge to the interception warrants. They are, after all, the basis on which damaging intercepts were obtained and they will be relied on by the prosecution at trial. It was for that reason that the Court of Appeal in DPP v Webb held that the obligations of the prosecution were to produce the warrants and evidentiary certificates in fulfilment of its obligation to make disclosure. There is no suggestion in the decision, however, that in that case the disclosure obligation extended beyond the warrants and evidentiary certificates.

39 If, in the present trial, an attack were to be launched on any of the warrants, it would be necessary at that time to determine the permissible scope and ambit of the attack. This would no doubt depend upon the resolution of competing submissions between the Crown and those seeking to attack the warrants. At this stage, those matters have neither been identified nor argued.

40 On a preliminary basis, however, the law appears to be reasonably clear. In general, any such attack is to be confined to defects appearing on the face of the warrant or to some other plainly apparent jurisdictional matter. An attack on the sufficiency of the material used in procurement of the warrants is not, in general terms, permissible (Ousley v The Queen (1997) 192 CLR 69 at 79, 81 per Toohey J; at 101-103 per McHugh J; at 125-126 per Gummow J; Murphy v The Queen (1989) 167 CLR 94 at 104-106 per Mason CJ and Toohey J; Coco v The Queen (1994) 179 CLR 427 at 435). Mr Waterstreet was at pains to point that the anticipated collateral challenge would not be concerned with the sufficiency of the material in support of the warrants. Rather it would be concerned with the fulfilment of conditions precedent and the like. Such a distinction, it might be observed, may be more apparent than real. Again, the true position cannot be determined at this stage, but may be examined more closely when any such attack is mounted.

41 Against the background of these introductory remarks, I turn now to consider the principles that are applicable to the resolution of the present matter. The general position relating to an application to set aside a subpoena where a party has sought to have documents produced following the issue of a subpoena is that stated by Sir Frederick Jordan in Commissioner of Railways v Small (1938) 38 SR NSW 564 at 575. The Chief Justice said:

“A party is no more entitled to use a subpoena than he is a summons for interrogatories for the purpose of fishing, ie endeavouring not to obtain evidence to support his case but to discover whether he has a case at all.”

42 This statement was mentioned with approval by Mahoney AP in Carroll's case; that is, Carroll v the Attorney General of New South Wales (1993) 78 A Crim R 162.

43 A clear statement of the correct test to be applied in the present circumstances, and one which is often referred to, is the statement of Simpson J in The Queen v Saleam (1999) NSWCCA 86, at paragraph 11, where her Honour said:

“The applicant must identify a legitimate forensic purpose for which access is sought and must establish that it is 'on the cards' that the document will materially assist the case.”

44 The Chief Justice and Studdert J agreed with her Honour in relation to this statement of the law. (See also the earlier decision of the Court of Criminal Appeal: R v Saleam (1989) 16 NSWLR 14 at 18 A-F per Hunt J).

45 The expression "on the cards" is one that has been approved in a number of cases in the New South Wales Court of Criminal Appeal. It appears to have derived from the judgment of Gibbs CJ in Alister v The Queen (1983) HCA 45; (1984) 154 CLR 404 at 414. There the Chief Justice had said:

“Although a mere fishing expedition can never be allowed, it may be enough that it appears to be on the cards that the documents will materially assist the defence.”

46 (Gibbs CJ had used the phrase in a different context, namely in a discussion concerning whether, in a public interest immunity argument, the Court should itself inspect the documents and whether disclosure should be made to the applicant). See also Burmah Oil Company Limited v Bank of England (1980) AC 1090 at 1129 per Lord Edmund Davies).

47 In Attorney General for New South Wales v Dillon Chidgey at 71 to 80, Beazley JA, with whom James and Kirby JJ agreed, held, according to the headnote (which appears to accurately record the findings of the Court):

“The test of determining whether a party is required to produce documents pursuant to a subpoena is a two step process before access is granted. The applicant must (1) identify a legitimate forensic purpose for which access is sought and (2) establish that it is 'on the cards' that the documents will materially assist his or her case. Mere relevance is not sufficient to establish a legitimate forensic purpose ( Carroll v The Attorney General for New South Wales (1993) 78 A Crim R 162, paragraphs 59 to 63).”

48 In that particular case, the Court of Criminal Appeal held that the legitimate forensic purpose which had been identified by the Magistrate amounted to no more than a proposition that the respondent was entitled to engage in a fishing expedition to ascertain whether there had been compliance with sub-s 5 (2A) and "to discover whether he had a case at all".

49 I should also mention the earlier decision in the New South Wales Court of Appeal of New South Wales Commissioner of Police v Tuxford & Ors (2002) NSWCA 139, in particular the decision of Brownie JA with whom Spigelman CJ and Ipp JA agreed. See also the decision of Barr AJ in Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498. This too is an authority often cited with approval in cases of the present kind.

50 Having stated these general principles, it will be necessary for me to say something more in amplification of two of the decisions to which I have been referred. The first is Carroll's case and I turn to discuss it now.

51 In that case, the plaintiff had sought a review of warrants issued under the Listening Devices Act 1984 (NSW). He contended that there had been no proper supporting material before the Judges who issued them. In that context, the plaintiff sought access to affidavits by police officers which had been relied upon when the warrants had been sought. The defendant argued that such access should be refused by the Court.

52 The proceedings were referred to the Court of Appeal. Mahoney AP and Hunt AJA, Kirby AJA dissenting, held that the affidavits should not be made available for inspection by the plaintiff. At page 70, the Acting President said:

“But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the Court must, in general, be satisfied that the documents are relevant to an issue for decision by the Court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.”

53 At page 182, his Honour said:

“To have access to the subpoenaed document, the party must show or it must appear that the document is relevant to the issue for decision. But mere relevance is not enough: Thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say 'the documents are relevant in a sense that prima facie they establish the case against me: Therefore I am entitled to see them and tender them'
In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion’ or ‘belief' referred to in s 16(1). Accordingly, prima facie, the documents are relevant to the issue to be decided, namely whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case that could not be claimed. Nor was it shown. At best, the claim was 'I wish to see the document to see if it may assist my case'. That, in my opinion, is not sufficient.”

54 Hunt AJA also did not accept that the material put forward by the plaintiff established that it was "on the cards" that the affidavits before the Judges would assist him in his application. His Honour said that it was by reason of such absence of any legitimate forensic purpose that he agreed in the majority decision of the Court to deny the plaintiff access to the affidavits which were before the various Judges who issued the warrants under challenge.

55 The views of the majority in Carroll's case are binding on me and are sufficient to dispose of the present application.

56 In Chidgey's case (which was decided on 28 March 2008) the Court of Criminal Appeal affirmed the remarks of Mahoney AP which I have set out above. Beazley JA (with whom the other members of the Court agreed) accepted, upon analysis, that the judgment of Mahoney AP represented a majority statement on the issue. Moreover, her Honour said that the statement of Mahoney AP had been applied in a number of subsequent decisions both in New South Wales and Victoria. Those decisions are set out in paragraph 63 of her Honour's judgment. I will not repeat them here. Further, her Honour endorsed the traditional approach represented by such authorities as R v Saleam and R v Ali Tastan.

57 The decision of the Court of Criminal Appeal in Chidgey's case confirms the proposition that there will be no legitimate forensic purpose if all the party is trying to do is to get hold of documents to see whether they may assist him or her in the case.

58 Beazley JA suggested that the relevant authorities showed that the formulation of Simpson J in R v Saleam represented the commencement of a line of authority in which the test for the production of, or access to, documents was specifically stated as comprising two steps: A legitimate forensic purpose, and that it was "on the cards" that the document would materially assist the case. However, in stating the test in this specific "two step way", Simpson J did not, the Court said, state any new principle.

59 Finally, the Court rejected as inappropriate other recent statements of the test by individual Judges, both in New South Wales and Victoria (Beazley JA at 72-80).

60 In the light of these statements of principle, I am satisfied that paragraphs 1 to 4 of the subpoena sought to be set aside constitute what is commonly called a "fishing expedition". No matter how it is dressed up in argument, the plain position is that the lawyers for Khaled Cheikho are attempting to have access to the materials used as a basis for the issue of the warrants (and other materials relevant to the execution of the warrants) in the hope that something will emerge from the material which will allow or provide a possible basis for attack on the warrants themselves. This is simply not permissible.

61 In the letter of 15 April 2008, Mr Cheikho's solicitors said:

“As you will no doubt be aware, a significant aspect of the Crown case against all of the accused in this impending trial is evidence of conversations intercepted under the Telecommunications (Interception) Act 1979. Director of Public Prosecutions v Webb (reference supplied) makes clear that in such circumstances the defence is entitled to insist on strict proof and require that it be demonstrated that any such conversations were lawfully intercepted pursuant to a warrant validly applied for and executed as per the regime set up by the Act. The provision of the material we are seeking then is an essential precondition to the admissibility of the substantive evidence sought to be led by the Crown in this case and indeed falls within Crown disclosure obligations.”

62 First, it will be seen that Webb's case does not support the allegation made in the last sentence at all. Secondly, the overall thrust of the paragraph I have quoted demonstrates beyond doubt that this is a fishing expedition. The accuseds’ lawyers hope to have produced material which, when examined, may show some flaw in the way the warrant was issued or in which it was executed. They cannot point to any such flaw, but hope, no doubt, that it will emerge once the material has been scrutinised.

63 In relation to the paragraph 4 documents, I accept Mr Singleton's submission that, despite the feature that two telecommunication carriers may have been involved in the interception of communications, no justification has been established on the evidence for the production of the material anterior to the issue of the warrant. It is not “on the cards” that the affidavits will address this situation at all.

64 This is not to say that the accused cannot otherwise assert that there is an invalidity arising from the execution of the warrant. What he cannot do, however, is to maintain a subpoena which is not supported by the existence of a legitimate forensic purpose.

65 This leaves me only to consider the decision of Smith J in Australian Crime Commission v Magistrates Court. This is the second authority I identified as requiring discussion.

66 The issues in the case arose in markedly different circumstances from those involved in the present application. The second defendant in those proceedings, Michael Brereton, was charged with the offence of refusing to be sworn in response to an examination summons issued by the Australian Crime Commission. The summons required him to attend before an Examiner appointed under the Australian Crime Commission Act 2002 (Cth). Mr Brereton apparently refused to be sworn in the proceedings involving the proposed examination. This led to the charge against him. At his committal, he issued a number of subpoenas. One of those sought a document recording the examiner’s reasons for the issue of the summons. Section 28 of the Australian Crime Commission Act 2002 (Cth) required the Examiner to be satisfied that it was reasonable to issue the summons and, importantly, to record his reasons in writing. The subpoena that was the critical focus of Smith J’s decision sought, as I have said, the production of the document recording the Examiner’s reasons for issue of the summons. Mr Brereton argued before Smith J that this document was a condition precedent to the valid exercise of the power to issue the examination summons itself.

67 At the hearing before Smith J, the ACC sought orders in the nature of certioraria to have the subpoena quashed. It was the plaintiff’s argument that the subpoena could serve no legitimate forensic purpose. However, in the course of argument, counsel for the ACC conceded that the existence of a document recording the reasons of the examiner for issuing the examination summons was a condition precedent to the valid exercise of the power to issue the examination summons.

68 Smith J dismissed the plaintiff’s motion. In so doing, his Honour held that the concession made by counsel for the plaintiff necessarily revealed the existence of a legitimate forensic purpose. As to the “on the cards” test, Smith J said: -

“I was referred to a number of cases in which the test to be applied, including the often quoted so called “on the cards” test is considered. In my view, that phrase and other phrases used by Judges are attempts to state ways in which the ultimate question might be approached in a particular case. The ultimate question, however, is whether there is a legitimate forensic purpose which the subpoena will serve. It is necessary to consider, among other things, the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue.”

69 In addition, his Honour made reference to a number of remarks made by members of the High Court in Alister v The Queen. These included the observations of Gibbs CJ at 414-415, and those of Brennan J at 451 and 456. After a thorough analysis, Smith J determined that the plaintiff’s argument could not be sustained. It ignored the rights of Mr Brereton to test the validity of the summons. Smith J held that an accused in criminal proceedings is afforded compulsory process to allow an accused to conduct his or her defence. His Honour advocated “a more liberal approach to inspection of documents so that the secrecy appropriate to some Government activities was not misused in a criminal process”.

70 I have given careful consideration to his Honour’s analysis and to the conclusions he drew. I do not, however, find the decision particularly persuasive or helpful in the resolution of the present matter. First, his Honour was dealing with an application for relief in the nature of prerogative relief which sought to attack the issue of the subpoena. That seems to me to be rather a different exercise than the one I am engaged in, namely, an application to set aside a subpoena returnable before me on the basis that the person causing the issue of the subpoena has not demonstrated a legitimate forensic purpose. Secondly, it must be conceded that the legislation his Honour was examining was unusual in a number of respects. Importantly, the very offence with which Mr Brereton was charged with was his failure to allow himself to be sworn before the Examiner who had issued the summons.

71 In the present matter, the applicant for the subpoena is an accused person charged with an offence under the terrorism provisions of the Criminal Code Act. The evidence to be led against him will include evidence of intercepted telecommunications. The warrant or warrants enabling those interceptions may be attacked if there are legitimate grounds to do so. But that has nothing to say about the question of the appropriateness or otherwise of the subpoena. In addition, there was a concession before his Honour that the existence or otherwise of reasons for the issue of the summons was a condition precedent to the valid exercise of the power to issue the examination summons. This concession may be contrasted with the present situation where the warrant in the present matter is available for challenge, whereas the sufficiency of the materials supporting the warrant is not.

72 I should make it clear that I am not intending to be critical in any way of Smith J’s conclusion. It is not my province, nor is it my function, to sit on appeal, as it were, from his Honour’s decision. I would, however, respectfully point out that Smith J does not appear to have been referred to the considerable body of New South Wales jurisprudence relating to the issue of setting aside a subpoena in circumstances where no legitimate forensic purpose has been demonstrated. His Honour, of course, made reference to the earlier of the two Saleam cases. But it seems clear that he was not referred to, for example, Carroll v The Attorney General of New South Wales. Whether his Honour may have arrived at a different conclusion had his attention been drawn to these authorities, I am unable to say. Nor is it necessary for me to do so.

73 Finally, I would note that the passages in Alister’s case referred to by Smith J in his decision are not directly relevant to the application before me. As those passages make clear, their Honours were referring to the particular issue which arose on the appeal. At issue was a public interest immunity question of considerable dimension. This was whether Lee J should have, as trial Judge, inspected the documents produced under the subpoena to ASIO to determine whether they demonstrated a matter that would have been critical or important to the defendant’s position. The secondary issue was, in the event that those documents had demonstrated such a degree of critical importance, whether they should have been produced to the accused. As it happened, the High Court Justices decided to inspect the documents for themselves and, having done so, determined that they would not order production to the accused. In the present matter I do not need to see the documents because I am satisfied that the accused is merely engaged in a speculative fishing expedition. This, as I have said, is not permissible. Secondly, unlike the situation in Alister’s case, this is not a case where any claim for public interest immunity has been raised so that it is unnecessary to go to the balancing process that needs to be undertaken when such a situation arises.

74 Accordingly, I order that the subpoena dated 14 March 2008 be set aside.

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