Regina (C'Wealth) v Baladjam [No 31]

[2008] NSWSC 1453

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 31] [2008] NSWSC 1453
HEARING DATE(S):	25/06/08; 26/06/08
JUDGMENT DATE :	10 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order that ASIO and the Australian Ferderal Police be excused from any obligation to produce to the Court the documents Exhibits "B(a)" and "B(b).
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Subpoenas - Legitimate forensic purpose - Public interest immunity claimed by ASIO and AFP
LEGISLATION CITED:	ASIO Act 1979 State Drug Crime Commission Act 1985
CASES CITED:	Alister v The Queen (1984) 154 CLR 404 at 453 per Brennan J Attorney General v Chidgey [2008] NSWCCA 65 at (64), (68 and 81 to 86) Attorney General v Stuart (1994) 34 NSWLR 667 at 679G Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J Cain v Glass [No 2] (1985) 3 NSWLR 230 at 233-234 Carroll v The Attorney General (1994) 70 A Crim R 162 at 181-182 Conway v Rimmer (1968) AC 910 at 971 D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 230 Jacobson v Rogers (1995) 182 CLR 572 at 588-589 Marinovich v DPP & Anor (1987) 14 ALD per Foster J at 315 Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504 R v Baladjam & Ors [28] 24 June 2008 at paras 41 and 60 R v Darwiche & Ors [2006] NSWSC 929 R v Gillard & Preston (1999) 76 SASR 76 at 86-88 per Duggan J and at 93 per Bleby J R v Harris (unreported) 3 June 1985 at 343-344 R v Smith (1996) 86 A Crim R 308 at 311-312 R v Saleam [No 1] (1989) 16 NSWLR 14 at 18C R v Saleam [No 2] (1999) NSWCCA 86 at (11) R v Smith (1996) 86 A Crim R 308 at 311-312 R v Taylor [2007] 169 A Crim R at 543 Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ State Drug Crime Commission v Chapman (1987) 12 NSWLR 447 Young v Quinn (1985) 4 FCR 483 at 494 and 495
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 31] 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 N Williams SC - ASIO and AFP (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 Australian Government 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: THURSDAY 10 July 2008

2007/2397001 - Regina v Omar BALADJAM [No 31]
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 - Subpoenas issued by accused Hasan and Jamal - Applications for public interest immunity on behalf of ASIO, AFP and New South Wales Police Service

1 HIS HONOUR: The Commonwealth of Australia has made a contested claim for public interest immunity. The claim is made on behalf of the intelligence agency ASIO, and on behalf of the Australian Federal Police. The claim is supported by the New South Wales Police Service. The claim relates to a document in the possession of ASIO. It extends to a copy, or a virtual copy, of this document in the possession of the Australian Federal Police. The claim itself is expressed in highly confidential terms. Mr Williams SC, who appeared with Ms Jacqui Gleeson for the Commonwealth, indicated that to reveal the nature of the claim in this open judgment would be likely to compromise national security and important aspects of police methodology and investigation. At a lower level, it may also be said to pose a risk to the identification of persons or bodies who have provided confidential assistance to authorities.

2 The claim arises out of a series of subpoenas. Four of them were issued on behalf of the accused Hasan. Two were issued on behalf of the accused Jamal. I shall detail these separately.

The Hasan subpoenas

3 Two subpoenas were issued by the lawyers for Mr Hasan on 11 March 2005. The first of these was addressed to ASIO. The second was issued to the AFP on 11 March 2005. Each of these subpoenas sought material which was initially identified as being relevant to the present application. The two paragraphs were in the following terms:

“(a) the movements of Abdul Rakib Hasan on the following dates: 23 February 2005; 2, 14, 15, 26 and 27 June 2005; 21 and 26 July 2005; 27 and 28 September 2005; 22 October 2005; and 29 December 2005;
(d) the movements of Khaled Vetter on 26 July 2005.”

4 (For reasons I will identify later the material identified in para (d) ultimately was agreed to be no longer in contest).

5 The second pair of affidavits were issued on 17 April 2005, and were addressed to ASIO and the AFP respectively. Each sought:

“1. Statements, running sheets and notes in respect of surveillance by ASIO or any other investigative agency, concerning:
(a) the movements of Abdul Rakib Hasan on the following dates: 29 December 2004, 18 October 2005, 31 July 2005 and 1 August 2005.”

Jamal

6 Two subpoenas were issued on behalf of Mohammed Omar Jamal. The first was dated 1 April 2008. It was directed to ASIO. Relevantly, it sought the following documents in paras 1 and 15:

“All surveillance logs records and/or running sheets where the accused's name is recorded for the period 8 July 2004-21 December 2005.
15. All surveillance logs, records and/or running sheets where any of the following names are recorded: Abdul Nacer Benbrika, Fadal Sayadi, Ahmad Raad, Aimen Joud, Abdullah Merhi, Amer Haddara, Shane Kent, Majed Raad, Hany Taha, Shoue Hammoud, Bassam Raad, Ezzit Raad, Khaled Abdullah Vetter, Abdul Karim Dannaoui, Nidal Haddara, Izzydeen Atik and Talal Hamdan for the period 1 July 2005-31 October 2005.”

7 The second subpoena was dated 1 April 2008 and addressed to the AFP. In paragraphs 8 and 12 of the subpoena it sought the same documents as had been itemised in the first document.

8 The six subpoenas have been exhibited before me as Exhibit “H”.

The charge against the accused

9 There are nine accused. Each has been charged upon an indictment as follows:

“Between about 8 July 2004 and 8 November 2005 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to do acts in preparation for a terrorist act or acts.”

10 The Crown case is that each accused was party to an agreement to do an act or acts in preparation for a terrorist act or acts. It will be necessary to say something briefly about the nature of the Crown case in relation to the conspiracy. This has been set out in earlier decisions, but it will be convenient to repeat it for the purposes of the present ruling.

11 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).

12 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.

13 In accordance with the holding of those common beliefs, the accused entered into an agreement to obtain the capacity or capability to do acts in preparation 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.

14 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.

15 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.

Pre-trial applications

16 The Court is presently dealing with an extensive series of pre-trial applications. These commenced as long ago as February 2008. It has been necessary for the Court to deliver over thirty decisions up to the present time. The stage has now been reached where the applications have focused on the legitimacy or otherwise of a range of subpoenas that have been issued on behalf of the accused for the purposes of the trial. In turn, this has led in some cases to a claim or claims for public interest immunity. This is the first of such claims made on behalf of ASIO and the Australian Federal Police. Earlier today I have given decisions regarding claims for public interest immunity made on behalf of the New South Wales Crime Commission and the New South Wales Police Service. Since this is the first of the Commonwealth claims for public interest immunity, I shall take the opportunity of setting out in some detail the material in support of the claim and, under a separate heading, the principles to be applied where such a claim is made prior to trial.

Public interest immunity claim made on behalf of ASIO and the AFP

17 Mr Paul O'Sullivan is the Director-General of Security. He has held this position since July 2005 and has the control of the Australian Security Intelligence Organisation. In an open affidavit sworn 18 June 2008 (Exhibit “A”), Mr O'Sullivan sets out the functions of ASIO as contained in s 17(1) of the ASIO Act 1979. These functions include the obtaining and evaluation of intelligence relevant to security and, for purposes relevant to security, the communication of such intelligence to such persons as are appropriate for those purposes.

18 Mr O'Sullivan has authorised an ASIO officer, Brian Dowell, to make affidavits in support of the subject public interest immunity claim on behalf of the Commonwealth of Australia. He has read two of the confidential affidavits by Brian Dowell, both sworn 16 June 2008. The Director-General agrees with Mr Dowell that the revelation of the material in respect of which the public interest immunity claim is made would seriously jeopardise ASIO in its ability to perform its statutory functions, especially in relation to the collection of intelligence relevant to security. The Director-General also agrees with other reasons detailed by Mr Dowell in his confidential affidavit, those reasons being said to provide additional support for the non-disclosure of the relevant information. This extends to the real likelihood that certain persons may come to harm if it were known they assisted ASIO in performing its statutory functions. It includes the likelihood that those persons and others would cease to provide further assistance to ASIO or would, at the very least, have their capacity to provide assistance severely diminished. This in turn would have "grave consequences for ASIO being able to properly perform its statutory functions" (para 9).

19 Exhibit “B” is the confidential affidavit of Brian Dowell of 16 June 2008. Mr Dowell holds a senior position within ASIO. The precise nature of the principal public interest immunity claim is stated in paragraphs 6 and 7 of Exhibit “B”. The documents over which the claim is made are identified in paragraph 8. The claim extends over the whole of these documents. They are two in number and they have been exhibited before me as Exhibits “B(a)” and “B(b)”.

20 (In view of the anticipated nature of the public interest immunity argument, Mr Williams SC had provided the Court, through the exhibits process, with the documents in respect of which production is sought to be avoided. In some cases of public interest immunity, the very nature of the claim may make it undesirable that the judge see the documents. There are, however, cases such as the present where it is expedient for the Court to be supplied with the documents in an informal manner, falling short of formal production, before the legal arguments are presented.)

21 Mr Dowell's affidavit contains a number of paragraphs that detail his experience in counter-terrorism activities and counter-terrorism operations. Within these paragraphs (14 to 21) there is an explanation, in a general sense, for the support of both the AFP and the New South Wales Police Service to the subject public interest immunity claim. A more detailed examination of this situation emerges from paras 25, 28, 29 and 35. The core claim for immunity is to be found, in considerable detail, between paragraphs 28 to 35. The purpose for the creation of the documents appears in paragraphs 36 and 37.

22 Although the documents fall within the description in the relevant paragraphs of the subpoenas and are captured by those relevant paragraphs, it is clear that the documents stand quite separately from the actual collection of surveillance material by police and Crown witnesses whose surveillance will be presented at the trial. It is also quite clear that the documents stand separate and apart from the surveillance notes and statements which have been disclosed through the disclosure process or made available as part of the Crown brief. As I have said, the documents, by their very nature, are unlikely to be of any assistance to any aspect of the defence case because they were brought into existence for a distinct and primarily separate purpose. As might be anticipated, the normal procedure for Crown witnesses preparing to give evidence of surveillance is that they will rely on their own observations and contemporaneous notes, and not on any other document or documents. I infer that in this trial no reliance has been placed by any surveillance witness on Exhibits “B(a)” and “B(b)”. The confidential material supports this inference.

23 Exhibit “C” goes to the very heart of the confidentiality and secrecy underlying the material in Exhibits “B” and “C”. Mr Williams SC asked me to examine this material only if it were necessary to a fuller understanding of the matters relied upon in Exhibit “B”. I have taken the opportunity of examining Exhibit “C”. Examination reveals that the information contained in it is of the utmost confidentiality and importance in the interests of national security. This information underpins the claims for confidentiality made in Exhibit “B” for the documents Exhibits “B(a)” and “B(c)”.

24 There is no need for me to detail the additional affidavits made in support of the claim for public interest immunity. It will be sufficient simply to identify those documents. There is, first, the open affidavit of Deputy Commissioner John Lawler on behalf of the AFP. Mr Lawler agrees with the conclusions reached in the ASIO affidavits. He makes a claim for specific public interest immunity on behalf of the AFP in respect of the same documents, especially those parts of the documents that relate to activities of the Australian Federal Police. The confidential affidavit Exhibit “E” (and its confidential Exhibit JAL-1) encapsulate similar detailed considerations to those expressed in Mr Dowell's affidavit. Finally, there is the open affidavit of Acting Deputy Commissioner David Hudson. Insofar as the documents capture or refer to activities of the New South Wales Police, Mr Hudson makes the same claim as those I have earlier identified. This aspect of the claim is supported in more detail in the confidential affidavit of Mr Hudson sworn 23 June 2008 (Exhibit “G”).

Principles to be applied

25 The claim for public interest immunity is to be determined by reference to well established common law principles. Those principles may be succinctly stated. Production will not be required of documents, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose them: Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ. Put another way, the relevant question is:

“...would the public interest be best served and least injured...by compelling or by refusing to compel disclosure to the Court of the information and of the documents sought by the subpoena?"

26 (Alister v The Queen (1984) 154 CLR 404 at 453 per Brennan J.)

27 In both of these cases it was recognised that, when such an issue arises, the Court is required to consider two conflicting aspects of public interest, those being harm done by the production of the documents as against a consideration of the fair and efficient administration of justice: See Alister (at 412) per Gibbs CJ.

28 Public interest immunity is but one form of valid objection to production of documents pursuant to subpoena (Attorney-General v Stuart (1994) 34 NSWLR 667 at 672E; Alister v The Queen 404.) In an appropriate case the Court may take an informal "peek" at the documents without their being formally produced. (Conway v Rimmer (1968) AC 910 at 971, 979, 995; Attorney-General v Stuart at 672D. Indeed, in Alister's case, the High Court examined the documents for itself prior to deciding that they should not be produced.)

29 Public interest immunity is a doctrine of substantive law and represents a fundamental immunity (Jacobson v Rogers (1995) 182 CLR 572 at 588-589). It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. As indicated above, the balancing process requires that the public interest in confidentiality must be weighed against the public interest in disclosure.

30 There are a number of well-recognised categories of public interest immunity. However, the categories of public interest immunity are not closed and must alter from time to time, whether by restriction or by extension as social conditions and social legislation develop. (D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 230); see also Sankey v Whitlam at 39). Categories of public interest immunity include Cabinet documents and other State papers; documents the production of which would hinder or affect proper policing (Young v Quinn (1985) 4 FCR 483 at 494 and 495); documents the production of which would hinder ongoing police investigations (Young v Quinn; Marinovich v DPP & Anor (1987) 14 ALD per Foster J at 315; Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J; Attorney-General v Stuart per Hunt CJ at CL at 680-681; and per Smart J at 690E); and, finally, there may be mentioned as a common category the protection of police informers (Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233-234; Attorney-General v Stuart at 679G; R v Smith (1996) 86 A Crim R 308 at 311-312).

31 The term "legitimate forensic purpose", in relation to subpoenas, has two aspects, as Simpson J said in R v Saleam (No 2) (1999) NSWCCA 86 at (11)):

“Before access is granted, or an order to produce made, the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case."

32 See also R v Saleam (No 1) (1989) 16 NSWLR 14 at 18(C); Principal Registrar of the Supreme Court v Tastan (1995) 75 A Crim R 498 at 504; Carroll v The Attorney-General (1994) 70 A Crim R 162 at 181-182; Attorney-General v Chidgey (2008) NSWCCA 65 at (64) (68 and 81 to 86).

33 As these authorities show, the onus falls on the subpoenaing party to establish that the subpoena has a legitimate forensic purpose. It is not sufficient to show that the material caught will simply include relevant documents. A statement of the legitimate forensic purpose must be precise and a fishing expedition can "never be allowed" (Alister at 414). A fishing expedition will include an endeavour to ascertain whether or not there is an issue that the subpoenaing party may be able to exploit, or to check whether or not some fact or facts exist (Attorney-General v Chidgey at (81 to 86)). In particular, it is not legitimate simply to subpoena documents if all the party is doing is trying to get hold of documents to see whether they may assist him in his case or to see whether he or she has a defence. (See my earlier decision R v Baladjam & Ors [No 28] at paras 41 and 60).

34 As to the second aspect of the identification of a legitimate forensic purpose, it is then necessary for the subpoenaing party to persuade the Court that the documents sought will assist in the achievement of that purpose. The expression "on the cards" comes from Gibbs CJ in Alister's case. In Attorney-General v Chidgey, the Court disapproved of a number of more recent statements of the test as expounded by individual judges both in New South Wales and elsewhere. The "on the cards" test is a relaxation of the test applicable in civil cases. It is a more appropriate test in criminal proceedings because it recognises that an accused person may be on trial for his or her liberty (Alister at 456; R v Saleam (No 1) at 17-18). Normally, where a subpoenaing party cannot establish that a subpoena under challenge was issued for a legitimate forensic purpose and, in criminal proceedings, that it is on the cards the documentation sought will materially assist his or her case, then the subpoena will not be regarded as valid and may be set aside (Principal Registrar of the Supreme Court v Tastan at 508).

Development of the claim - a degree of agreement is reached

35 Once the general nature of the public interest immunity claim in the present matter had been demonstrated, the argument took an unusual course. It became clear, for example, that the documents in issue were relatively few in number and that they covered a period between 8 October 2005 to 8 November 2005. In other words, the documents themselves had no further “life” after the arrest and charge of eight of the nine accused. This is not to say that the real substance of the concerns represented by the creation of the documents did not continue to exist, but, as I understand it, no further documentation answering the description in the paragraphs of the subpoenas had been created since, in a general sense, the investigation came to an end. This happened once the arrests were made in November 2005.

36 The practical consequences of the short term life of the subject documentation were two-fold: First, the period of times in respect of which documents were captured by the subpoenas (Exhibit “H”) was significantly curtailed. It will be recalled, for example, that Mr Jamal sought documents of a particular kind between July 2004 and 21 December 2005. As I have said, the documents captured by the subpoena had a life span only between 8 October and 8 November 2005. This meant, in Jamal's case, that so far as paragraph 15 of the ASIO subpoena, and paragraph 8 of the AFP subpoena were concerned, the time limit could be extended, by agreement, from 31 October 2005 to 8 November 2005. On the other hand, the same paragraphs were to be curtailed so that the call was confined to a period commencing on 8 October 2005 rather than on 1 July 2005. So far as the wider calls represented by paragraphs 1 and 12 of the respective Jamal subpoenas, once again the time period was relevantly curtailed to a single period of one month from 8 October through to 8 November 2005.

37 In relation to the Hasan subpoenas, the practical consequence was that only two dates became relevant. They were 18 and 22 October 2005. (Paragraph 1(d) of these subpoenas - relating to the movements of Khaled Vetter on 26 July 2005 - accordingly became otiose. In any event, as I understand it, disclosure and production had already been made in relation to this individual and his movements on a number of dates. More precisely, the subpoena to each of ASIO and the AFP had been answered in relation to Mr Vetter and the 26 July 2005.. The answer was, in relation to the particular date: nothing to produce.)

Legitimate forensic purpose

38 Once the focus had been narrowed in this way, counsel for Hasan and Jamal were invited to specify the legitimate forensic purpose underlying the paragraphs of the subpoena. However, because of the narrowing of focus, the exposition of the purpose for the various calls fell, in the main, on certain specific dates. This enabled both Ms Yehia, who appeared for Mr Hasan, and Mr Scragg, who appeared for Jamal, to specify precisely what it is they were seeking and why. In turn, this led to a suggestion from the Court that Mr Williams SC might care to approach the resolution of the issue concerning legitimate forensic purpose in a shorthand fashion. This suggestion was helpfully taken up by Mr Williams, and by the legal team on behalf of the Commonwealth, notwithstanding that the resultant analysis entailed a considerable degree of preparation and work for them.

39 The argument was adjourned to enable Mr Williams to prepare both a confidential and open folder which, accepting for the sake of the argument the identified legitimate forensic purpose, would demonstrate the following: First, whether the confidential documents (Exhibits “B(a)” and “B(b)”) provided any support whatsoever for the defence case in relation to the matter identified, having regard to its nature and date of occurrence. Secondly, whether, in any event, disclosure had already been made, in one form or another of all material directly relating to the event and its time of occurrence. Ultimately, Mr Williams SC produced to the Court a confidential folder (Exhibit “J”) containing authorities in support of the public interest immunity claims. More significantly, he produced a further confidential folder (Exhibit “K”). This included, first, a confidential “commentary” in relation to Exhibits “B(a)” and “B(b)”. Secondly, it included an index and a detailed but confidential analysis of the captured documents, focusing on each of the specific days identified by Ms Yehia and Mr Scragg. Thirdly, it contained “open” material identifying documents already provided to the defence. Finally, Mr Williams produced a third open folder (Exhibit “L”). This omitted the confidential material but provided certain details of the same summary in open form, together with copies of the material which had been produced either as part of the Crown brief on evidence or pursuant to the Crown obligation of disclosure.

40 So far as Senior Counsel was able to ascertain (and it appeared considerable effort had gone into the enquiry), there was no other documentation which would assist the defence in relation to the specifically identified issues. In other words, Mr Williams maintained his claim for confidentiality in relation to the documents captured by the subpoena. However, he sought to provide both confidential and open information to satisfy the Court, and those representing the accused, that the captured documents contained no material that would support the defence case, and that, in any event, the material already supplied to the accused represented the whole of the material in the possession of ASIO that was directly relevant to the surveillance activities to be relied on by the Crown at trial. Mr Williams also identified surveillance material which had been produced by other agencies and the Crown. This included a number of witness statements.

A practical examination of the issues identified on behalf of Hasan and Jamal

41 I will first examine the two relevant references to the alleged activities of Mr Hasan.

(a) The Crown case statement (para 141) asserts that at an earlier point of time, on 26 July 2005, Hasan and Khaled Vetter had attended the "New Directions" store in Marrickville. The assertion is that Hasan on this occasion bought approximately $900 worth of laboratory equipment. Relevantly, it is also asserted that on 18 October 2005, Hasan and Vetter returned to the store, although, on this occasion, no purchase was made. (The Crown case suggests that the two men were recognised by the employee at New Directions because he was a regular customer at the halal butchery where Hasan worked.) Exhibits “K” and “L” demonstrate that there is no material in the confidential documents that is relevant to the proof or disproof of the Crown allegations. Further, Mr Williams was able to state that, so far as his enquiries were concerned, there was no AFP surveillance, PIC surveillance or New South Wales Police surveillance that related to the alleged connection between Mr Hasan and New Directions for the 18 October 2005 occurrence. Secondly, that such surveillance as is available from those three agencies has already been produced in December 2006 and April 2008.

(b) The Crown case statement (para 256) alleges that Hasan attended Peter's Hardware store at Greenacre and collected acetone which had been ordered on 28 September 2005. (The Crown case statement relies upon a witness statement and circumstantial evidence for this assertion.)

42 There was no AFP surveillance located of Hasan in relation to this event. There was no PIC or NSWP surveillance of Hasan for the date. There was an AFP surveillance running sheet for 22 October 2005 and this was produced under subpoena dated 18 December 2006. An AFP surveillance log for 20 to 23 October 2005 was produced under a subpoena dated 17 April 2008. An ASIO report of 22 October 2005 was provided by ASIO in response to a subpoena issued by the Local Court on 18 December 2006. There is no additional material in Exhibits “B(a)” and “B(b)” relating to the event of 22 October 2005.

43 I turn now to Jamal.

(c) Period 8 to 16 October 2005. Para 236 of Crown case statement (CCS) asserts that "a couple of weeks" after 28 September 2005, Jamal, using the name George, attended Peter's Hardware Greenacre and produced the receipt which had been given to Hasan on 28 September 2005.

44 There was no material in the confidential documents relating to this event. There is no surveillance material from any of the agencies relating to this event. (The Crown case does not rely on positive identification in relation to Jamal's attendance at the shop, but rather relies upon a series of circumstantial matters to suggest that he was the customer.)

(d) Para 237 of CCS asserts that on 9 October 2005 at about 2.20pm a number of the accused (including Jamal), and another person, travelled in Hasan's vehicle to Sutton Forest, New South Wales, had a conversation there, and returned back to Sydney.

45 There is a body of surveillance material that has been identified and provided as part of core disclosure in October/November 2007. In addition, witness statements have been provided. There is no additional matter in Exhibits “B(a)” and “B(b)”.

(e) Para 243 of CCS asserts that Jamal and another male attended Auto King on 13 October 2005 to pick up distilled water and sulphuric acid which had been ordered on 28 September 2005. Jamal collected the distilled water and he and another person loaded the distilled water into a white station wagon.

46 There was no material in Exhibits “B(a)” and “B(b)” relating to this event. There is no material in the captured documents inconsistent with the Crown case statement of events in relation to Jamal's whereabouts on 13 October 2005. There is no surveillance from other agencies for Jamal on this date.

(f) On 17 October 2005, according to CCS (para 249) Hasan, Jamal and Khaled Cheikho attended Jaycar Electronics at Bankstown. This happened at about 2.30pm. An enquiry was made about purchasing CCTV security cameras with night vision capabilities. The Crown relies on statements by witnesses Bulfoni and Sedillo. There is an AFP surveillance running sheet for vehicle UOZ 851 served in the brief of evidence. There is no PIC or NSWP surveillance located of Jamal for this date. There is no additional material in Exhibits “B(a)” and “B(b)”.

(g) Para 285 states that the cleric Benbrika travelled from Melbourne to Sydney on 31 October 2005. Hasan arranged for Moustafa Cheikho to collect Benbrika from the airport and to take him to Hasan's house. Sharrouf and Moustafa Cheikho met Benbrika and collected him from the airport.

47 There is no suggestion in the Crown case statement that Jamal met Benbrika that day. There is, however, a mention that his car was observed being driven into the car park at the rear of the Lakemba Arcade at about 6.16pm on 1 November 2005. Jamal and another man left in a second vehicle travelling to Mulahalilovic's residence and arriving at 6.38pm. They left shortly after 7pm and returned to the car park at Lakemba. At 1.08am the next morning Mulahalilovic and Baladjam drove in a motor vehicle from Mulahalilovic's premises to the car park at the rear of the Lakemba Arcade. This vehicle was still parked there at 7.33am the next morning. The suggestion is that Jamal's vehicle was also left in the car park overnight. The CCS (footnote 553) “suggests it is open to infer that Jamal, Mulahalilovic and Baladjam spent the remainder of the night at the ASJA Prayer Hall in the Lakemba Arcade”.

48 Mr Scragg argued that it was important from the point of view of his client's defence to establish that Jamal was not one of the people who met Benbrika at the airport. There is no suggestion in the Crown case, however, that he did so, and there is no material in Exhibits “B(a)” and “B(b)” bearing on this issue. There are a number of surveillance documents and statements available in support of the inference suggested by the Crown as to whether Jamal spent the remainder of the night at the Prayer Hall. There are no agency surveillance documents suggesting that Jamal met Benbrika at the airport. All relevant material appears to have been disclosed or otherwise made available.

49 This brief summary does, perhaps, less than justice to the considerable effort involved in the preparation of Exhibits “K” and “L”. The arguments in relation to the public interest immunity claim were adjourned on 24 June 2008 to enable the preparation of the relevant material after the making of appropriate enquiries. The arguments resumed on Thursday, 3 July 2008, when final submissions were made. Subject to the Court being satisfied as to the existence of a valid public interest immunity claim, Ms Yehia made no further submissions beyond repeating those that had been made on the opening day of the argument. Mr Scragg, however, was less satisfied with the position revealed by Exhibit “L”. Notwithstanding the detail which had been provided to him, Mr Scragg maintained that the confidential documents should be produced to enable scrutiny of several areas of unsatisfied legitimate forensic purpose. Mr Scragg produced a folder (Exhibit 2) which contained a number of authorities on which he placed reliance. It included as well a small bundle called "Disclosure Material" from the Australian Federal Police. Thirdly, there was a document called "Surveillance Summary" for the period from 8 October to 8 November 2005. Finally, there were surveillance observations specifically related to Mr Jamal in the relevant period. (The latter had been served on Mr Jamal's lawyers in late May 2008).

50 As I understand it, the third document I have referred to was part of a more extensive document known as a “master surveillance summary”. This had been prepared by the Crown to draw together all the surveillance relevant to all of the accused. It was intended to form the basis of either facts to be agreed, or material to be led at the trial of surveillance observations.

51 In his additional submissions, Mr Scragg took the Court firstly to the AFP case notes. Mr Scragg's first focus was on three individuals, Dannaoui, Khaled Vetter and Talal Hamdan. These persons were not named as conspirators but were suggested as being associated with the conspiracy, perhaps helping the conspirators in some way, particularly in the latter period of the alleged conspiracy. Mr Scragg said that he was seeking surveillance records for the one month period in relation to these persons. They were all persons, Mr Scragg argued, who were being targeted and investigated in relation to the allegations involving his client. Their premises were searched, but in the end they were not charged.

52 Secondly, Mr Scragg made submissions concerning one particular AFP case note dated 9 December 2005. I will set out the whole of the first two paragraphs of this case note. It was authored by Federal Agent Byron Morley.

“BACKGROUND
On 8 November 2005, the resolution of Operation Pendennis/Eden occurred resulting in the arrest and charging of numerous persons in both New South Wales and Victoria for terrorist related offences. On 8 November 2005 Jamal was arrested and interviewed but was subsequently released, due to insufficient evidence.
Jamal is known to be associated with those arrested on 8 November 2005 and also remains under investigation for suspected support to Saleh Jamal (Operation Huntley/Fenders).
Since that time, further investigations have taken place. These investigations have established that Jamal was one of the persons who attended a commercial premises, namely Auto King, at Punchbowl, NSW, with Abdul Rakib Hasan and ordered 200 litres of sulphuric acid. Hasan is currently in custody charged with conspiracy to commit acts in preparation for a terrorist act. This order of sulphuric acid forms part of that conspiracy. It will be alleged that Hasan met with other members of the group while a terrorist act was being planned.”

53 The case note then details certain items that were found at Jamal's place during a search on 9 December 2005 and indicates that “the AFP intend to locate, arrest and charge Jamal”.

54 Mr Scragg argued that this case note provides the basis for a legitimate forensic purpose in his client's favour. It is clearly on the cards, he argued, that, in relation to all material that was in the possession of the investigating agencies at that time, it would include material that could assist the accused in his defence at trial. Mr Scragg submitted that his client should have access to all surveillance material, as it is relevant to the decision taken by the investigating agencies to release his client without charge on 8 November. Mr Scragg argued that the mention of "insufficient evidence" was enough to make it “on the cards” that there would be exculpatory material in the hands of ASIO and the AFP. Mr Scragg submitted that if there were insufficient inculpatory material to charge him with an offence on 8 November, it must follow, as a matter of logic, that it would be on the cards that there was likely to be exculpatory material.

55 Mr Scragg, as I have mentioned, placed reliance on three authorities. They were State Drug Crime Commission of New South Wales v Chapman (1987) 12 NSWLR 447 at 451 per Allen J (this case was cited with approval by the New South Wales Court of Criminal Appeal in R v Taylor (2007) 169 A Crim R at 543.). Secondly, there was the decision of the South Australian Court of Criminal Appeal in R v Gillard and Preston (1999) 76 SASR 76 at 86-88 per Duggan J; and at 93 per Bleby J. The third decision was that of Ormiston J in R v Harris, an unreported decision of 3 June 1985 (especially at 343-344). These were all cases relating to telecommunication intercepts. By analogy, Mr Scragg argued, they should be applied to the surveillance material presently under discussion.

56 In general terms, Mr Williams had not raised any argument during the initial hearing to suggest that there was any absence of legitimate forensic purpose. Indeed, the approach taken by the Commonwealth, sensible and helpful as plainly it was, had been to assume the legitimacy of the claim represented by the paragraphs in the subpoenas, and to demonstrate against that background that there was no material in the captured documents that materially assisted the defence case. Secondly, the Commonwealth maintained that, so far as diligent research could ascertain, all relevant surveillance material had in fact been given to the accused. In relation to Mr Scragg's reply argument, however, Mr Williams took issue with the existence of the asserted legitimate forensic purpose. This was particularly so in relation to the AFP case note that mentioned that, at one point of time, there had been “insufficient evidence” against Jamal. In relation to the arguments concerning Mr Dannaoui, Hamdan and Vetter, senior counsel for the Commonwealth identified a considerable amount of surveillance material that had already been either disclosed, or provided as part of the brief. Mr Williams conceded, however, that there may be some other material available in relation to these three men. Since no precision has been shown to identify anything that might be described as a legitimate forensic purpose, however, the lengthy analysis which has thus far been undertaken had not necessarily captured that material.

Resolution of the issues

1. Legitimate forensic purpose

57 The sensible approach adopted by the parties has removed the need for the Court to spend a great deal of time in examining this oft-vexed question. In particular, the Commonwealth approach, in identifying a number of specific incidents through October and early November 2005, obviates the need for the Court to examine the legitimacy of the forensic purpose in relation to these incidents. The only one that gave me pause or reason for concern, however, was that related to the 31 October/1 November 2005 issue identified by Mr Scragg in relation to the relationship between his client and the cleric Benbrika. The approach taken by the parties, however, has allowed me to assume that a legitimate forensic purpose has been demonstrated. I will approach the balancing exercise required by the authorities on the basis that this is so.

58 I am less certain about some of the matters relied upon by Mr Scragg in his final submissions. The first of those related to case note 032, paragraphs of which I have set out above. This was Federal Agent Morley's reference to "insufficient evidence" being available as at 8 November to warrant a charge being laid against Jamal. There are a number of points to be made about this case note. First, it is but one officer's statement of opinion. I do not know what level of seniority Federal Agent Morley had as at December 2005. Secondly, the statement, when read in context, is merely an explanation for the fact that between 8 November and 9 December 2005 evidence had emerged, or had been identified, which warranted a charge being laid against Jamal. The expression that the accused "was subsequently released due to insufficient evidence" does not carry with it any implication that the police were in possession of a body of exculpatory material. Rather, the two paragraphs simply mean what they say. At the earlier point of time there was "insufficient evidence" to warrant a charge. Further investigations then revealed that it was Jamal who had ordered a considerable volume of sulphuric acid from Auto King in September 2005. This plainly changed the character of the police assessment of Mr Jamal’s role.

59 Mr Scragg appeared to be suggesting that his client would be entitled to see the whole of the Crown surveillance case as it existed at 8 November 2005 so that he could identify for himself both the insufficient evidence that was then available and the exculpatory evidence, if any existed. Of course, for present purposes, the sole issue is about ASIO and the AFP producing Exhibits “B(a)” and “B(c)” against the background of the public interest immunity claim. Those documents, however, had a life span, as has been observed, that covered only the period from early October to early November 2005. Even so, I have serious doubts as to whether Mr Scragg's submissions establish a legitimate forensic purpose for the documents on the basis he has identified.

60 The second area of doubt arises in connection with the Dannaoui/Hamdan/Vetter surveillance. It may well be my fault, and I may not have understood clearly what it is that Mr Scragg is seeking to identify in this aspect of his argument. None of the three gentlemen is said to have been a party to the conspiracy. None has been charged with any offence related to or arising out of the conspiracy. It is clear enough that there is a certain amount of surveillance evidence generally that may pick up incidental activities of these men. Indeed, it seems clear enough that a substantial body of such surveillance evidence, perhaps all of it, has already been disclosed to the accused in one form or another. It should not fall to the Court, however, to have to scrutinise the whole of the material placed in evidence on this application to ascertain either the scope of the asserted legitimate forensic purpose or the extent of the material that might possibly advance such a purpose, especially when that purpose is by no means clear and has not been precisely identified.

61 The first of the three cases relied upon by Mr Scragg was the decision of Allen J in State Drug Crime Commission v Chapman. This involved a narrow question of construction in relation to s 29 of the State Drug Crime Commission Act 1985. Although a public interest immunity claim was in the wind in that matter, the particular decision did not require the Court to undertake the balancing exercise necessary when such a claim is made. The narrow point to be decided, as I have indicated, was whether the relevant documents were "necessary...for the purposes of a prosecution instituted as a result of an investigation conducted by the Commission". The argument before Allen J was whether the phrase "for the purposes of prosecution" was to be confined and construed as meaning for the purposes of the obtaining of a conviction against a defendant. Allen J rejected this argument. He held that the purposes of a prosecution were to enable due investigation, within the proper safeguards of the law, of a criminal charge. The result may be a conviction or it may be an acquittal. At page 451, after referring to the observations of Brennan J in Alister v The Queen at 451, Allen J said:

“In the present case it is manifest that there may be in the possession of the Commission records of telephone intercepts which would be of critical importance to the defendants to establish that conversations put in evidence by the prosecution had in fact innocent explanations. Indeed, in respect generally of phone tap records, it is common experience that frequently it is necessary to go beyond the particular telephone conversations being immediately considered in order to get to their true flavour.”

62 In R v Gillard and Preston, the appellants were jointly charged and convicted of the murders of two men and the attempted murder of a third. The prosecution alleged that Mr Preston had been paid to kill the first victim and that Mr Gillard had agreed to take part in the offence. Preston, through his lawyers, had requested at trial that he be provided with tape recordings of all telephone calls intercepted, pursuant to the investigations, against himself and against the first victim. The Director of Prosecutions had refused. Preston dismissed his lawyers during the trial but maintained his request for the documentation. The prosecution had, however, during the course of the trial provided Preston with the logs of all the calls intercepted. They did not give him the tape recordings of the conversations. Thus it will be seen that the situation was complicated somewhat by the fact that neither the appellant nor his solicitors had issued subpoenas for the production of the material.

63 The Court of Criminal Appeal held that Preston had been deprived of an opportunity to gain access to material which might have been favourable to his case. One aspect of the overall consideration of fairness that particularly impressed the Court was its concern that “the prosecution ought not to have significantly greater access than the accused to recorded conversations”. The major part of the Court's decision is taken up with the question as to whether the appellant's failure to issue a subpoena, before or at trial, weakened his complaint that he had been unfairly treated. Unusually, the appellant was seeking to obtain the material on the hearing of the appeal in order to determine whether he might place fresh evidence before the appeal court. In relation to the subpoena point, the Court held that he should not be disadvantaged in this way. The Court was particularly concerned by the overall history of the proceedings, the fact that the appellant was unrepresented throughout most of the trial, and that he had never abandoned his complaint that he had not been given the opportunity to inspect relevant material.

64 The Appeal Court then moved to examine whether it was "on the cards" that the material would assist the appellant. In this regard, it seems that the appeal court had not itself seen the material and that, in any event, no claim for public interest immunity was involved.

65 At page 88 (49-50) Duggan J said:

“Apart from the considerations which arise by reason of the fact that the appellant was tried on serious criminal charges, the circumstances of the present case give rise to important considerations of fairness. The recorded conversations obtained through the interceptions and the listening devices formed an important part of the prosecution case. Legislation of the type under consideration in this case provides an important aid in the detection and proof of crime. However, this method of investigation is capable of providing both inculpatory and exculpatory evidence. In my view the legislation should not be used in a manner which leads to a lopsided approach whereby the prosecution has significantly greater access than an accused person to the recorded conversations. Generally speaking, inconvenience and the administrative difficulties involved in providing an accused person with access to this type of information should not stand in the way of disclosure to the defence.”

66 Duggan J added:

“I am also of the view that a request for access to information of the type under consideration in the present case should not be rejected on the ground that it is in the nature of a 'fishing expedition'. The listening and interception devices were used to investigate and obtain evidence in relation to the offences with which the appellant was eventually charged. The prosecution was able to obtain a considerable body of relevant evidence from this source concerning the appellant's alleged involvement. The potential for the appellant to uncover evidence from the same source which is relevant to his case cannot be denied. I think it is at least 'on the cards' that the material will assist the appellant.”

67 At page 93 Bleby J said:

“Fairness to the appellant in this case requires that just as the prosecution has gained valuable evidence from such surveillance, so should the appellant be able, if he wishes to scrutinise the same material or parts of it which he thinks might possibly be of assistance, in order to raise a reasonable doubt on the case against him. Just as the prosecution found valuable information against the appellant, so it is 'on the cards' that the appellant may find material to assist him."

68 During the course of its deliberations, the Court of Criminal Appeal made reference to Ormiston J's decision in R v Harris. That was a case where virtually the whole of the Crown case depended on inferences to be drawn from recorded telephone conversations. Ormiston J said at 343:

“The conversations are the actual words of the co-conspirators, both on the 472 tapes and on all the other tapes which have been made of these telephone conversations. There are numerous reasons why they should in fairness know what has been recorded of those conversations. I do not accept that they can remember what they said or did in detail two to three years ago, especially when the Court knows that there are 472 relevant conversations, on the view that the Crown takes, and that some 14,000 conversations have been taped from those telephone numbers in all.
If the activities of the accused were innocent, then the taped conversations may well provide real evidence of their innocent activities."

69 It might be observed that this was not a case where Ormiston J himself had examined the intercepted telephone calls. Nor was it a case in which there was any claim for public interest immunity.

70 The final case I should mention is R v Taylor. In that case, the applicant had been charged with offences relating to the manufacture of ecstasy. Taylor's case, I should say immediately, appears to involve a very different situation from that which exists in the present proceedings. In that case, there was a precise issue identified, namely whether the telephone was being used by Mr Taylor solely for the purposes of the criminal enterprise. Secondly, there was the issue whether the reference to a code being used could be borne out or substantiated by the telephone calls not produced. Here there is no precise identification of what the accused will say about his own actions. The defence case, as I understand it, will simply put the Crown to proof of the charge in the indictment.

71 All of the cases relied upon by Mr Scragg provide, no doubt, a useful benchmark by which to approach the issue of legitimate forensic purpose in the present matter. They may be distinguished in a number of aspects however, and this reduces their significance for present purposes. Chapman's case was truly a “one-off” where the question of statutory construction revealed a thoroughly unreasonable approach being taken by the Crime Commission to the production of documents legitimately required by the defence. Secondly, it involved telephone intercepts. Allen J’s remarks correctly identify that in “phone-tap” cases it will “frequently” be necessary to go beyond the calls relied on by the prosecution. But that will not always be the case. Much will depend on the issues at trial. Telephone intercepts for obvious reasons, may have their own particular problems in a criminal case, especially where the prosecution has been selective as to which calls it will use at trial. The concept of getting "the true flavour" of intercepts is not necessarily identical to the defence situation in a trial where there is a body of surveillance evidence to be relied upon.

72 Let me give an example: Assume a man had been charged with preparing for a terrorist act. Assume the Crown case was that, on four days of a particular month, he had been observed purchasing bomb making materials from various suppliers. Assume further that there was surveillance material showing him returning to his home on those days carrying what appeared to be the bomb making material. Upon a search of his premises, there was found a good deal of extremist material and written instructions for the making of bombs. What would flow from the situation, if it were the fact, that on other days of that month, he had not been observed purchasing bomb-making equipment? What if he were observed going to a sporting event on one of those days? Would these observations give the “true flavour” to his activities on the days when bomb-making equipment was purchased? I allow that, in a particular case, there might be issues that would suggest a positive answer to this question. For example, if the defence case were that the bomb making material had been purchased by a relative of the accused who had been impersonating him, and who was similar to him in appearance. It is possible to think of other examples where a legitimate defence issue might arise. But a bland assertion that the accused was not the person who had purchased the bomb making material, or that it was not done with a terrorist intent, and nothing more, might well mean that no legitimate forensic purpose had been established. At least, it would be difficult to perceive that the “innocuous” surveillance would assist the defendant’s case, unless a more precise issue were to be identified and stated.

73 In R v Gillard and Preston, the circumstances were highly unusual. First, the issue there was the appellant's attempt to obtain documents for the purposes of showing fresh evidence on appeal. Secondly, the appellant had been generally unrepresented throughout his trial. Thirdly, neither he nor his former solicitors had issued a subpoena to obtain the documentation he said might assist. Fourthly, the material sought related not only to interceptions made of his conversations, but those of the victim. It could be clearly seen that there may have been an issue as to whether there were other persons who had a motive or opportunity to kill the first victim in the shooting endeavour. Fifthly, the issue of fairness fell to be determined with particular reference to the fact that the prosecution had been able to choose from the intercept material those calls which assisted its case, whereas the defence had not been entitled to access this material to see whether there were other calls that were exculpatory. By contrast, in the present matter, neither the Crown nor the defence have had access to the captured documents Sixthly, the case involved no claim for public interest immunity. (This last matter is not a determinative distinction, since a legitimate forensic purpose has to be established in either situation. It is fair to say, however, that where a public interest immunity claim is raised, there may be a need to state more precisely the issue giving rise to the asserted purpose. This is so because the document or documents in question will, generally speaking, not be known to the defendant or the prosecution.

74 By comparison, here the defence case has been defined in the most general of terms. The accused Jamal simply says he is not guilty of the charge, and that the circumstantial case against him can be explained on the basis that any actions he may be found to have committed are capable of an innocent explanation. His case will be that the Crown has not discharged the onus of proof beyond reasonable doubt. This tells me very little about his actual defence or about any issue that might justify those aspects of the subpoena argument that are still outstanding.

75 An examination of the four authorities rather reinforces my view that in relation to the Dannaoui/Hamdan/Vetter issue, no legitimate forensic purpose has been demonstrated. Moreover, it seems to me that the authorities relied on by Mr Scragg are essentially dealing with telephone intercepts, particularly in a situation where that is the major peg on which the prosecution case hangs. That is to be very much contrasted with the present trial where the surveillance evidence, although important, is but part of the circumstantial case relied on by the Crown.

76 I accept that the analogy of the telephone intercept cases may be an appropriate one to bring to bear in a particular case where surveillance material is involved. But, as with all analogies, there has to be a real connection to make the comparison a useful one. I am not satisfied that these four authorities suggest, by analogy, the necessary degree of connection. There are, in any event, clear points of distinction, as I have endeavoured to show.

77 Despite these serious reservations about the existence of a legitimate forensic purpose in relation to the two areas where the Commonwealth and Mr Scragg are in dispute, I have however decided that I should not dispose of the matter on that basis. This is an approach I took in an earlier decision given today. It is equally appropriate in the present matter. I do so because it is possible, notwithstanding my serious reservations, that there may be a legitimate forensic purpose in relation to some aspects of Mr Scragg's argument. In particular, it may be that I have not fully appreciated why it is that he wishes to obtain surveillance material in relation to the Dannaoui/Hamdan/Vetter axis. In addition, this is the first Commonwealth claim for public interest immunity that has been fully argued. Consequently, I wish to avoid a situation where either Mr Scragg or his client might be left with a sense of grievance were the Court not to undertake an evaluation of the public interest claim and were not to carry out the balancing act that is required as part of that exercise.

78 I have put to one side the precise nature of the documents that have been informally produced to me in examining the issue of legitimate forensic purpose. However, I know precisely the nature of the documents that have been produced. I know, although the defence does not, the nature of the public interest immunity claim in all its detail. Because of the sensible way in which the parties have approached the issues on this application, I consider that it is fairer that I should not leave either Mr Scragg or his client believing that there are documents capable of providing material assistance to the defence case when in fact there may be none. I should not leave either Mr Scragg or his client believing that there are documents that are even relevant to the arguments I have discussed in this judgment. The true position may be that such documents, if they exist, are of minimal or no assistance to the defence case. I will assume, contrary to my reservations, that a legitimate forensic purpose has been established in the limited area under dispute which I have identified. I will also assume that it is "on the cards" that material of the kind Mr Scragg hopes for may be available. In making these assumptions I have put to one side, as I have said, my own knowledge as to the contents of the documents I have inspected.

79 I turn then to evaluate the public interest immunity claim and to balance the competing considerations that need to be examined in accordance with the authorities I have collected together earlier in this decision.

2. Public Interest Immunity/Balancing Exercise

80 The first question to address is the existence and strength of the public interest immunity claim. As I indicated earlier in this decision, the claim is made on behalf of the Commonwealth in the interests of both ASIO and the AFP. The claim is supported, essentially on identical grounds, by the New South Wales Police Service. I am satisfied that the claim for public interest immunity has been fully substantiated and that it relates to a number of well recognised categories of public interest immunity. The principal one is that, if disclosed, the documentation will, by its very nature, be likely to compromise national security at an important level. The subsidiary claims do not involve a risk to national security, but I am satisfied that, if disclosed, the documents would compromise important aspects of police methodology and investigation. Importantly, disclosure would pose a clear and serious risk to the identification and safety of persons who have provided assistance to the intelligence agency and other authorities. Such is the importance of the nature of the claims that I do not consider it desirable that they be revealed even in a confidential judgment. I have, however, sought to identify the areas in the confidential affidavits where the claim is stated in a detailed and reasoned fashion. In the event that this decision needs to be tested on appeal, the appellate Court will be able to scrutinise for itself the relevant paragraphs of the confidential material. Indeed, an appellate Court will be able to scrutinise the confidential documents themselves.

81 I turn then to consider the two aspects relied upon by Mr Scragg in his reply submissions. The first requiring discussion is the issue described as the Dannaoui/Hamdan/Vetter issue. I have examined the confidential documents. I am unable to see that any of the contents of the document, or anything relating to the document itself, is of material assistance in relation to the defence case, as Mr Scragg has explained it. In the earlier part of this decision, however, I noted that it may be possible that there is some documentation, outside of Exhibits “B(a)” or “B(b)”, that might address questions raised by Mr Scragg. I am somewhat hampered in this regard, as was Mr Williams SC, by not fully understanding the way in which Mr Scragg has outlined his client’s position on the issue. I suggest, therefore, that the Commonwealth enter into further informal negotiation with Mr Scragg in an endeavour to perform much the same exercise as has led to the creation of Exhibits “K” and “L”. I am conscious of the extra work this will entail for the Commonwealth, but I suggest a similar exercise be undertaken, if this is reasonably possible. It may be, although I pose it merely as a possibility, that further informal discussion between Mr Scragg and Mr Williams SC may bring to the Commonwealth's attention that there is some material in the confidential documents, which has significant relevance to the defence case. If so, that possibility may be resolved, on an informal basis, by the production of material that does not disclose the nature of the documents in question. Alternatively, if it were to become a matter of critical importance, the Court may be asked to revisit the issue.

82 It should be understood that I am not advocating a situation where arguments of no moment about the production of documents unnecessarily take up the Court's time. I have no doubt that all counsel are conscious of the need to bring the present round of pre-trial applications to a close so that the trial proper can commence without undue delay. That said, however, it remains the situation that subpoena issues may be revisited from time to time even, after the trial has commenced.

83 In relation to the second issue raised by Mr Scragg, namely the comments made by Federal Agent Morley in the December case note, I have examined the confidential documents and I am satisfied that there is no material in there that would assist the defence case. Insofar as Mr Scragg's submissions sought the production of material to demonstrate a possible "negative" situation, I have made allowance for the possibility that this may assist the defence case. I do not think it can assist, but I have made allowance for the possibility I may be wrong in that regard. In my view, however, the balance must still fall unequivocally on the side of not ordering the production of the documents.

84 I have not separately addressed the position from the point of view of Ms Yehia's client. Ms Yehia made no separate submissions in reply. The position so far as her client is concerned is that I am satisfied there is no material in the confidential exhibits that assists the case of her client. In those circumstances, the public interest claims I have identified must prevail.

85 The order I make is that ASIO and the Australian Federal Police be excused from any obligation to produce to the Court the documents Exhibits “B(a)” and “B(b)”.

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