Shane Anthony Scott v Benjamin Joseph Aulich
[2022] ACTMC 4
•15 March 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Shane Anthony Scott v Benjamin Joseph Aulich | ||
Citation: | [2022] ACTMC 4 | ||
Hearing Date(s): | 7 February 2022 | ||
DecisionDate: | 15 March 2022 | ||
Before: | Special Magistrate Crompton | ||
Decision: | Application to set aside the subpoena dated 4 June 2021 issued to the Chief Police Officer is granted. The subpoena is set aside completely. | ||
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoena – subpoena issued by defendant – application to set aside subpoena – whether legitimate forensic purpose – whether fishing expedition – whether apparently relevant – Major Controlled Operation authority – whether warrant principles apply – collateral challenge to warrant or MCO authority | ||
Legislation Cited: | Crimes Act 1914 (Cth) Evidence Act 2011 (ACT) | ||
| Cases Cited: | Alister v The Queen (1984) 154 CLR 404 | ||
Parties: | Australian Federal Police (Applicant) Benjamin Joseph Aulich (Respondent) | ||
Representation: | Counsel A Berger QC with W Randles (Applicant) D Campbell SC with S Whybrow (Respondent) | ||
| Solicitors Australian Government Solicitor (Applicant) Aulich Criminal Law (Respondent) | |||
File Number(s): | CC2020/14613 CC2020/14614 |
SPECIAL MAGISTRATE CROMPTON:
INTRODUCTION
This is an application by the Chief Police Officer of the Australian Capital Territory seeking orders to set aside a subpoena on the basis that it lacks a legitimate forensic purpose or, alternatively, not permitting the defendant Benjamin Joseph Aulich or any other party to inspect parts of a Major Controlled Operation (MCO) application which are sensitive and do not relate to him, and upholding claims of public interest immunity and statutory objections to production in respect of parts of the balance of the MCO application.
BACKGROUND
The defendant has been charged with conspiring to engage in money laundering (an offence against s.48 of the Criminal Code 2002 (ACT) and 114B of the Crimes Act 1900 (ACT)), and recruiting people to assist in criminal activity (an offence against s.655(1) of the Criminal Code 2002 (ACT)). He has entered pleas of not guilty to those charges.
A subpoena was served on the Chief Police Officer, Australian Federal Police, on 4 June 2021. The subpoena seeks the production of documents listed in the Schedule as below:
All material, including documents, affidavit(s), photographs, surveillance running sheets or logs (whether in manuscript, typed or electronic form) used in support of the application for the Major Controlled Operation (MCO 19-20/58) granted by Deputy Commissioner Ian McCartney on or about 24 April 2020, into the activities of Benjamin Joseph Aulich (DOB 20/01/1973).
The MCO authority was granted by Deputy Commissioner Ian McCartney on 24 April 2020 under Part 1AB of the Crimes Act 1914 (Cth). The MCO authority commenced a controlled operation as against three targets, including the defendant Mr Aulich. The only document that is potentially responsive to the subpoena is the formal application document – the MCO application.
This application to set aside the subpoena is made by way of Regulation 6604 of the Court Procedures Rules 2006 which provides:
COURT PROCEDURES RULES 2006 – REG 6604
Setting aside subpoena or other relief
(1) On the application of a party or someone else having sufficient interest, the court may set aside a subpoena completely or partly, or grant other relief in relation to it.
In support of the application the applicant relies on two affidavits of the Chief Police Officer, Deputy Commissioner Neil Gaughan, sworn on 27 October 2021. The open affidavit is Exhibit 1 and the confidential affidavit is Exhibit 2.
APPLICANT’S SUBMISSIONS
It is submitted that a legitimate forensic purpose exists in a criminal case if it is ‘on the cards’ the documents sought ‘will materially assist [the issuing party’s] case: Attorney-General(NSW) v Chidgey (2008) 182 A Crim R 536 at [5] and that even if the more liberal test of ‘apparent relevance’ recently adopted by the New South Wales Court of Appeal in civil cases is applied, there must be a ‘reasonable basis beyond speculation’ to conclude that the documents ‘will materially assist on an identified issue’: Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] (Bell P, McCallum JA agreeing at [98]).
Queen’s Counsel submitted that a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam (1989) 16 NSWLR at 17. Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the subpoena: Saleam at 18; Blacktown City Council at [71] (Bell P; [88] (Brereton JA); [98] (McCallum JA).
The defendant’s legal representatives sent a letter on 7 July 2021 to the Australian Government Solicitor which contained their contentions regarding the legitimate forensic purpose of the subpoena. That letter is annexed to the Affidavit of Peter William Woodhouse which is Exhibit 3 (Exhibit PWW 26). The exhibited letter is 37 pages in length and it is submitted, speculates at length about a number of matters: what may or may not have been before the authorising officer for the purposes of the application for the authority; alleged improper motivations of unidentified AFP officers who are supposed to have put, or not put, such material forward in the application; and various ways in which the authorising officer ought not to have been reasonably satisfied of the conditions for the making of the MCO authority.
The applicant submits that to the extent that the subpoena seeks the MCO application to support an attack on the validity of the MCO authority, that this does not disclose a legitimate forensic purpose.
10.It is submitted that in criminal proceedings the permissible scope of a collateral challenge to the validity of a warrant or other authority is limited by settled authority. Such a challenge can be brought by reference to what is disclosed on the face of the instrument: Ousley v The Queen (1997) 192 CLR 69 at 80; von Arnim v Ellison (2006) 150 FCR 282 at [41]. However, it cannot be brought on the basis of alleged insufficiency grounds for granting the instrument, or of the material before the issuing authority: Murphy v The Queen (1989) 167 CLR 94 at 105; Gould at [33], [42] (Basten JA, Johnson and Adamson JJ agreeing). Nor can such a challenge be brought by reference to whether the issuing authority was satisfied as to any statutory requirements for its issue: Ousley at 80.
11.As Mason CJ and Toohey J explained in Murphy (at 106), a court considering the admissibility of material obtained ‘purportedly under the authority of a warrant…must determine merely whether the warrant was regularly granted’ and there is no occasion for the court to ‘investigate the basis on which’ it was granted.
12.These principles have been described as limiting collateral challenges in a criminal trial to ‘jurisdictional errors appearing on the face of the warrant’ (Australian Crime Commission v Marrapodi (2012) 42 WAR 351 at [46]) or ‘something akin to “facial” or “patent” invalidity’: Director of Housing v Saudi [2011] VSCA 266 at [261].
13.It is submitted that in Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, which case concerned an application for a stay pending disclosure of material provided in support of an application for an interception warrant, Basten JA (with their Honours Johnson J and Adamson J agreeing) concluded, after a detailed survey of the authorities, that ‘the trial court had no power to examine the affidavits and other material placed before the authority which issued the warrants in order to challenge the validity of the warrants’ (at [52]).
14.Queen’s Counsel submits that although these principles were expounded in cases relating to listening device warrants (as in Murphy and Ousley), interception warrants (as in Gould and Baladjam) and arrest warrants (as in von Arnim and McArthur v Williams (1936) 55 CLR 324), they are equally applicable to Major Controlled Operation authorities made under Part 1AB of the Crimes Act.
RESPONDENT’S SUBMISSIONS
15.The respondent asserts that it has an arguable case for demonstrating that the authority to conduct a Major Controlled Operation involving the defendant was, from inception, unlawful.
16.The respondent submits that in the event the MCO authority was unlawful two questions arise: firstly the appropriateness of the continuation of the proceedings and/or secondly the admissibility of any evidence secured in consequence of the MCO authority.
17.Senior Counsel for the respondent submits that based on the brief of evidence and the accused’s solicitor’s information and belief as to his client being of good character and reputation and a qualified practicing solicitor, that there was nothing police could have had as at April 2020 (when the MCO authority was issued) which could find the requisite state of mind necessary for an application of its kind, and that there must be some incredible or unreliable or untruthful material found. It was submitted therefore that the issuing of the subpoena was not a fishing expedition, but rather based on instructions, information and belief, reputation of the individual concerned and a complete absence of any material in the brief.
18.It was submitted that a real question will fall for consideration in the proceedings, being the application of s.138 of the Evidence Act, as to whether the respondent (defendant) can demonstrate a relevant unlawfulness or impropriety, which then shifts the onus to the prosecution to prove that the material is nonetheless admissible in evidence.
19.Senior Counsel submitted that there is material information that is factually relevant to the case that the defendant needs to present, and that irrespective of whether the application for the MCO authority itself can, in another court, be set aside by way of declaration or other order, the respondent/defendant is nonetheless entitled to the material.
20.It was submitted that there is no mandate that the court is required by reason of the ‘warrant cases’ to prevent the defendant from having access to the material sought in the subpoena. It was submitted that this proceeding is not a warrant case, it is a case that concerns a discrete statutory instrument, issued under a particular statutory provision, there being a separate division and a separate statutory framework in the same Act of Parliament that regulates matters concerning warrants.
21.It was submitted that there are some fundamental differences to the application in question and a warrant procedure, and that there is a distinction between the prohibition on inspecting material founding a warrant to that founding a Controlled Operation or a Major Controlled Operation. It was submitted that the main difference is that warrants are almost always issued by an independent authority, usually a judicial officer, who carries out an administrative function separate from, and independent of, the investigators applying for the warrant. Such warrants are issued based on affidavit evidence. By contrast, a Controlled Operation or Major Controlled Operation may be granted by a senior AFP officer and does not require the material to be sworn or affirmed. The application must be in writing and signed by the applicant.
22.It was submitted that there are significantly relevant distinctions between a warrant and a Controlled Operation or Major Controlled Operation which provide force that the rules in relation to warrants, if they apply at all, should be significantly relaxed in favour of granting access to documents in a subpoena relevant to an issue in a criminal proceeding, which are not merely a fishing expedition.
23.Senior Counsel submitted that for the MCO authority in question, there is a statutory requirement for satisfaction on reasonable grounds that a serious Commonwealth offence or a serious state offence that has a federal aspect has been, is being or is likely to be committed, which is much more onerous than warrant sections. It was submitted that very stringent conditions are stated in the statute to be a prerequisite to the power of an authorising officer to grant an authority. It was submitted that a defendant properly preparing himself for trial will want to know what was said in order to, firstly, justify the conduct of a Controlled Operation, and secondly, to see whether or not the conduct is effective in terms of a Controlled Operation.
24.Senior Counsel noted the terms of s.15GI of the Crimes Act 1914, especially s.15GI(2) which provides that an authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds that either a serious offence of the relevant kind has been, is being or is likely to be committed.
25.It was submitted that there is no identification anywhere in the MCO authority of the information or the basis of the satisfaction and more fundamentally, probative of demonstrating that the authority is bad on its face. It is submitted that there is a very material deficiency in relation to the expression of requisite satisfaction.
26.Senior Counsel emphasised that the defendant has a very serious argument available to him as to the admissibility of any evidence obtained in consequence of the authority in any criminal proceedings before the court, and pointed to the case of Jin Wu v The Queen; Tu Phan v The Queen [2020] VSCA 94. In that case the Court of Appeal of Victoria (Forrest and Everton JJA and Croucher AJA) observed [at 38]:
An operation becomes a controlled or major controlled operation through the making of an application under s.15GH(4)(a) of the Crimes Act to an appropriate authorising officer. That officer must not grant an authority unless the officer is satisfied on reasonable grounds of a number of stringent preconditions, including that ‘a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed’.
27.After setting out the list of mandatory considerations which are contained in s.15GI(2), the court went on to observe:
[81] These are stringent conditions. The language employed, including the phrase ‘must not grant an authority’ in the absence of satisfaction on reasonable grounds, makes this plain.
[82] Senior Counsel for the applicants, both before the trial judge and before us orally, emphasised that this comprehensive legislative regime, making legal otherwise illegal conduct, required strict compliance and any breach of controlled conduct was to be taken very seriously. This proposition only needs to be stated to be accepted. Indeed, in our view, there can be no doubt that her Honour reached the same conclusion. In reference to part 1AB the judge said this:Defence referred to the second reading speech given when this legislation was first introduced in 1996. They argue the intention of the legislation was to create a restrictive regime for the authorisation, conduct and monitoring of controlled operations. It is essential that such operations are conducted in conformity with established procedures, and that defence are able to test the process of authorisation and the admissibility of the evidence.
Part 1AB creates a comprehensive legislative regime which permits certain persons to commit criminal offences, including serious criminal offences, without being liable at law for their conduct. I agree that as a matter of public policy, it is essential that this regime is taken seriously by those implementing it. It is not simply an internal document creating guidelines or a protocol. It is legislated in the Commonwealth Crimes Act, and a failure to implement the regime carefully may result in evidence being inadmissible. Part 1AB itself recognises this.
Defence argue the ends should not be allowed to justify the means. Strict compliance and close management of a major controlled operation is particularly important given the authorisation process occurs internally, and is not granted by a court or tribunal. I accept this submission.
28.Senior Counsel submitted that if it is essential that such operations are to be conducted in conformity with established procedures and that defence are able to test the process of authorisation and the admissibility of evidence, how could it be done with their “hands tied behind the back”, without being able to see the application and the material that was put before the authorising officer. It was submitted therefore that it could not be said that there is not a legitimate forensic purpose in the defence having the material so that they can test the process of authorisation and the admissibility of evidence.
29.Senior Counsel also highlighted the recent decision of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, in which the Court found that it was enough for the party issuing a subpoena to show that the documents sought would add in some way to the relevant evidence in the case more generally, rather than having to show it is ‘on the cards’ that it will materially assist. The Court held that “apparent relevance” will be established if it can be shown that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist.
30.It was submitted that this approach has been adopted in recent Supreme Court decisions in the Australian Capital Territory, see Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd (No.3) [2021] ACTSC 178, and in a criminal decision of Ovini Sellapperuma v Cameron Anthony Lever (Magistrates Court of the Australian Capital Territory, Campbell SM, 10 September 2021) in which her Honour said:
The approach the court takes in determining whether documents sought under subpoena have apparent relevance which is broad rather than narrow, the court should not too readily exclude the possibility that a document or class of documents might, at the end of the day, be relevant to a fact in issue in litigation.
CONSIDERATION – LEGITIMATE FORENSIC PURPOSE
31.The application seeks relief on alternative grounds, the first ground being that the defendant has not established that there is a legitimate forensic purpose for the subpoena.
32.It is a well established legal principle that the party at whose request the subpoena was issued must identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought: R v Saleam (1989) 16 NSWLR 14 at 18; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [22].
33.It is the issuing party who bears the onus of establishing a legitimate forensic purpose: Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [5].
34.A legitimate forensic purpose exists in a criminal case if it is ‘on the cards’ the documents sought ‘will materially assist [the issuing party’s] case’: Chidgey at [59], [64]; Saleam at 18.
35.A ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted: Alister v TheQueen (1984) 154 CLR 404 at 414; Saleam at 17.
36.Where a party fails to demonstrate a legitimate forensic purpose the court should refuse access to the documents and set aside the subpoena: Saleam at 18; Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [71] (Bell P); [88] (Brereton JA); [98] (McCallum JA); Portal Software v Bodsworth [2005] NSWSC 1115 at [22].
37.Relevantly to this application, a party is only entitled to use a subpoena to obtain evidence to support its case rather than to discover whether it has a case at all: Commissioner for Railways v Small (1938) 38 SR (NSW) 546 at 575. This extends to cases alleging impropriety or illegality on the part of the police: Commissioner of Police (NSW) v Taleb (2019) 276 A Crim R 192 at [19], [50].
CONCLUSION
38.The subpoena seeks all material including documents, affidavits, photographs, surveillance running sheets or logs used in support of the application for the Major Controlled Operation granted by the Deputy Commissioner of police on 24 April 2020, into the activities of the defendant.
39.As Gummow J explained in Ousley, “[a] warrant is a document which is issued by a person or body…and authorises the doing of an act which would otherwise be illegal” (at 118). That is also the essential feature of a Major Controlled Operation authority, which exempts participants in controlled operations from criminal and civil liability for otherwise unlawful conduct in the course of, and for the purposes of, the operation – see Crimes Act ss.15HA AND 15HB.
40.The reasoning in Ousley was treated by the High Court in Gedeon v Commissioner, NSW Crime Commission (2008) 236 CLR 120 at [22] as relevant to whether a collateral challenge could be made to an authority issued under the Law Enforcement (Controlled Operations) Act 1997 (NSW).
41.The fact that MCO authorities can be issued by a Deputy Commissioner or the Commissioner of the AFP (by way of ss 15GF(1)(a), s15GI(1)) is not a relevant point of distinction. It is not unusual for warrants to be issued by members of the executive government rather than judicial officers, for example see Telecommunications (Interception and Access) Act 1979 (Cth), Australian Security Intelligence Organisation Act 1979 (Cth).
42.Some warrants can be issued by either a judicial or non-judicial officer – see Surveillance Devices Act 2004 (Cth), Telecommunications (Interception and Access) Act 1979 (Cth). Similarly, warrants provided for by ss. 3E and 3ZA of the Crimes Act can be issued by either a magistrate, a justice of the peace, or other authorised court officer (see s.3C definition of ‘issuing officer’). Even where a warrant is issued by a judicial officer, this is an administrate act carried out by them as a designated person rather than an exercise of judicial power by a court: Love v Attorney-General (NSW)(1990) 169 CLR 307 at 320-1; Grollo v Palmer (1995) 184 CLR 348 at 359-62; Gould at [35].
43.In Ousley, Gummow J explained the ‘presumption of regularity’ is that by which all administrative or official acts – which would include the issue of an MCO authority – are assumed to be valid unless the contrary is shown: Ousley at 130-1, also McLean Brothers and Rigging Ltd v Grace (1906) 4 CLR 835 at 849-51; Minister for Natural Resources v NSWAboriginal Land Council (1987) 9 NSWLR 154 at 164; Hill v Woollahra Municipal Council [2003] NSWCA 106; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [329]-[337].
44.Gummow J also held in Ousley that the statutory indemnity from civil and criminal liability for acts taken ‘under and in accordance with’ a listening device warrant was enlivened, and evidence thereby lawfully gathered, if there was ‘a document purporting to be a warrant’ (at [125], [127-8]). His Honour found the warrant met this threshold because it complied with the relevant statutory requirements as to its form (at [127-8]).
45.In this case the Major Controlled Operation authority complies with the statutory requirements as to form. It clearly states that Deputy Commissioner McCartney was satisfied of the relevant prescribed matters conditioning its issue (see Exhibit NG-3 to the open affidavit of Deputy Commissioner Gaughan).
46.As to whether there is any real distinction between the principles applying to warrants and those applying to a Controlled Operation authority, in the case of Commissioner of Police, NSW v Taleb [2019] NSWSC 21 Hamill J observed [at 50]:
“…the fundamental issue remains whether the accused has established a legitimate forensic purpose in seeking production of the material. There is no such purpose in an attempt to discover material that will support an argument that there was insufficient material upon which to grant the authority. There may be a legitimate forensic purpose in uncovering material that is relevant to the validity of the certificate (beyond the sufficiency of the material upon which it was granted) and the lawfulness of the operation including the propriety of the application for the authority. However, there must be some basis or foundation upon which the material is sought. A party is not entitled to seek such material to discover whether there is any material that might support a case of impropriety or illegality.”
47.It is not possible for the defendant, in these proceedings, to collaterally challenge the Major Controlled Operation authority by attacking the sufficiency of the grounds on which Deputy Commissioner McCartney made it, or of the material placed before him in the MCO application. As Basten JA explained in Gould, material provided ‘to the issuing authority could only rationally support a challenge to the issue of the [MCO Authority] based on the insufficiency of the information supporting the applications’ (at [34]). An administrative act such as the issuing of the MCO authority cannot be challenged on this basis.
48.The defendant remains free, at trial, to challenge the validity of the MCO authority by reference to what it discloses on its face, and to interrogate whether particular conduct was authorised by the MCO authority, but there is no legitimate forensic purpose in seeking, by subpoena, to investigate the basis upon which it was granted.
49.I am not persuaded that the decision in the case of Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 is of such authority to enable a departure from the ‘on the cards’ test as to legitimate forensic purpose, as established by well settled law (Attorney-General v Chidgey; R v Saleam; Alister v The Queen). That case is distinguishable by being one which involved civil proceedings where a different standard of proof applies, and in which pleadings frame the issues. That is to be contrasted with criminal proceedings where the Crown holds disclosure obligations. It is the case that in Blacktown City Council the court expressly confined its conclusions to civil proceedings. However even if the lesser test in BlacktownCityCouncil was applied, the defendant has not identified any ‘reasonable basis beyond speculation’ to conclude that the MCO application will materially assist on that issue by, for example, revealing impropriety of that or any kind: Blacktown City Council at [65].
50.It appears that the respondent, in issuing the subpoena, is seeking to determine whether there is any evidence available to challenge the validity of the MCO authority which was issued by the Deputy Commissioner. As in the case of Taleb, there must be some basis or foundation upon which this material is sought. On the facts before me there is not. A party is not entitled to seek such material merely to try to uncover whether there is material available to support a case of illegality or impropriety, as the defendant alleges.
51.In the final analysis I am unable to classify the subpoena as constituting anything other than a fishing expedition. Its exploratory purpose is redolent in both the defendant’s voluminous material in response to the application to set it aside (particularly in Exhibit PWW 26 to Exhibit 3, the affidavit of the defendant’s solicitor) and in the fulsome submissions made in response to the application by the defendant’s Senior Counsel.
52.I am not satisfied that the defendant has demonstrated a legitimate forensic purpose in issuing the supboena. Having made that determination there is no necessity to consider the alternative bases for relief which were moved by the applicant.
ORDERS
53.I make the following orders:
1. The application to set aside the subpoena dated 4 June 2021 issued to the Chief Police Officer is granted.
2. The subpoena is set aside completely.
| I certify that the preceding [53] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Crompton. Associate: Xiao Lin King Date: 15 March 2022 |
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