The State of Western Australia v Burke [No 2]

[2010] WASC 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 2] [2010] WASC 74

CORAM:   MURRAY J

HEARD:   12 APRIL 2010

DELIVERED          :   12 APRIL 2010

PUBLISHED           :  16 APRIL 2010

FILE NO/S:   INS 121 of 2009

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecutor

CORRUPTION AND CRIME COMMISSION
Applicant

AND

BRIAN THOMAS BURKE
Accused Burke

JULIAN FLETCHER GRILL
Accused Grill

NATHAN JOHN HONDROS
Accused Hondros

Catchwords:

Criminal law and procedure - Application to cancel witness summons - Tests to be applied - Matter turns on own facts

Legislation:

Nil

Result:

Application allowed
Witness summons cancelled

Category:    B

Representation:

Counsel:

Prosecutor:     Mr B Fiannaca SC & Ms L Christian

Applicant:     Mr A Eyers

Accused Burke             :     Mr G R Donaldson SC

Accused Grill                :     Mr T F Percy QC & Mr A Golem

Accused Hondros          :     Mr M Ritter SC & Ms C H Meighan

Solicitors:

Prosecutor:     Director of Public Prosecutions (WA)

Applicant:     Corruption and Crime Commission

Accused Burke             :     Fairweather & Lemonis

Accused Grill                :     Freehills

Accused Hondros          :     Talbot Olivier

Case(s) referred to in judgment(s):

Alister v The Queen (1984) 154 CLR 404

Connell v The Queen [No 6] (1994) 12 WAR 133

RAN v The Queen (1996) 16 WAR 447

1. MURRAY J:  The Corruption and Crime Commission made an application under the Criminal Procedure Act 2004 (WA) (CPA), s 166, for an order cancelling a witness summons issued on behalf of Mr Grill to a Mr Silverstone, the Executive Director of the Corruption and Crime Commission (CCC). It appears that the witness summons sought the production of documents submitted by the CCC to the Administrative Appeals Tribunal (AAT) in order to obtain warrants under the Telecommunications (Interception and Access) Act 1979 (Cth). After hearing argument, I granted the application and cancelled the summons. These are my reasons for so doing.

The background

1. Mr Grill is charged on indictment with counselling or procuring the disclosure of official information and an offence of corruption allegedly committed by Mr Hondros.  It is said that the case against him relies, to some extent at least, upon intercepted telephone conversations and emails.  This interception was by surveillance under the authorisation of warrants issued under the Telecommunications (Interception and Access) Act.

2. The application for the witness summons was supported by an affidavit sworn on 29 March 2010 by Mr Grill's solicitor.  It annexes the relevant warrants.  The evidence is that, on 27 January 2006, an application was made for a warrant to permit telephone interception.  On 8 May 2006, an application was made for a warrant to intercept an internet service.  Those applications were by officers of the CCC.  They were made under the Act, s 46, to a member of the AAT.  The warrants issued and they were, from time to time, extended.  The warrants were issued when the CCC was able to satisfy the member of the AAT that the interceptions would be likely to assist with the investigation by the CCC of the offence of counselling or procuring corruption, contrary to s 83(c) of the Criminal Code.  I have perused the warrants.  They appear to be valid on their face and it is not submitted to me that that is not so.

3. The application for the witness summons served on Mr Silverstone was grounded upon the statement in the affidavit of Mr Grill's solicitor that Mr Grill had told him that on or about 27 December 2007, he had received, 'an undated handwritten letter in relation to the warrants obtained by the CCC'.  If it is accepted that the letter was received on 27 December 2007, it is, of course, well after the issue of the warrants in question and, as will be seen, the letter does not, in fact, refer specifically to the issue of those warrants or indeed any specific warrants.

4. The solicitor redacted a copy of the letter.  He did so by removing the names of two officers of the CCC referred to in the letter.  One officer was referred to by a first name and a surname, the second was referred to by a first name only.  It is possible that those officers are the same persons as two people who may be called to give evidence before me at the trial of the offences with which Mr Grill and his alleged co‑offenders are charged.  In place of the name of the officer identified by a first name and a surname, the solicitor inserted the letter 'X'.  In place of the name of the officer identified only by a first name, the solicitor inserted 'Y'. 

5. I should set out the letter in its entirety:

   Dear Julian

   I write to you because I think you, Mr Burke, Mr  Da Razio and others investigated by the CCC have been done an injustice.

   I have recently heard an investigator of the CCC, X, whilst in the company of X's work colleague, Y, say that the CCC manipulates its powers to get telephone intercept warrants.  This is how X said it works (and Y nodded).

   The legislation that gives interception warrants (I don't know its name, sorry) does so only for serious offences.  X said for offences of 7 years imprisonment.  But for most of the offences the CCC investigates against public servants the actual offence that is suspected is not that serious.  X said that if they put on their warrant application the offence that they actually had evidence for, they would never get the warrant. 

   So what they do is put on the warrant application that they suspect the offence of 'Corruption' so that they can get their warrant.  Then, when they get their evidence from the telephone intercepts, the charge of 'Corruption' is either dropped by the DPP at the last minute, or they 'run with' the Corruption charge (along with the more minor charges) at trial, but don't mind losing the 'Corruption' charge because the other ones usually win.

   X said that lawyers or the courts have not worked this out yet.  X said that if they lost the power to get telephone intercepts, they couldn't do much at all.

   X also said that there is a section that defines what a 'reasonable suspicion' is in order to get the telephone intercept warrants.  It is in the CCC Act itself.  X said that this section wouldn't ever be 'satisfied' for their warrant applications because they knew that they could not prove the offence of 'Corruption' on the evidence they have at the time of making their warrant applications.

   X finally said that this is how the CCC has had so much success.  Y then said that [redacted], and that if this was ever tested at court the warrant would be 'knocked out'.  If that happened, Y said all the intercept evidence would also be 'knocked out'.

   Mr Grill, I think that this is so wrong.  In fact, I am disgusted.  I hope by writing to you that I help you and others who have been affected by the shameful practices of the CCC.

The ground to set aside a witness summons

1. The question of the cancellation of the witness summons in the circumstances of this case depends upon whether there is a discernible forensic purpose for the applicant for the witness summons to have access to the documents sought.  They are sought because it is thought that they may show that the process by which, under the relevant Act, the issue of the warrants by the AAT miscarried, because the issuing authority was misled as to the existence of a legitimate ground for the issue of the warrants.

2. The warrants are, as I have said, valid on their face and they disclose the adoption of the process grounding their issue which s 46 of the Act provides.  So the argument for Mr Grill must be, and is, put on the basis that there is reason to believe that access to the documents sought will show that the applications for the warrants were not properly supported, with the consequence that they should be held not have been validly issued, and the telephone and email intercepts made under their authority can therefore provide no admissible evidence against Mr Grill.

3. The question then becomes whether Mr Grill may establish that there is a legitimate forensic purpose in having access to the documents in question, upon that ground.  The witness summons having been challenged, the onus is upon the applicant for the witness summons to satisfy the court that access to the documents does have a legitimate forensic purpose which may materially assist the accused.

4. There are many authorities for that proposition and I need only refer to one:  the decision of the Full Court in RAN v The Queen (1996) 16 WAR 447. At 453 ‑ 454, Franklyn J, Wallwork J agreeing, relied particularly upon the leading decision of the High Court, Alister v The Queen (1984) 154 CLR 404, 414, and the previous decision of the Court of Criminal Appeal in Connell v The Queen [No 6] (1994) 12 WAR 133, 203, in adopting the proposition that the onus rested upon the party seeking access to the documents to persuade the court that it was likely that the documents would or might contain material which would materially assist the defence, that the documents 'may, for an identifiable reason be said to carry at least the probability of materially assisting the defence'. It was not enough to raise only the speculative possibility that that might be so. It must at least be 'on the cards' that the documents can or are likely to materially assist the defence.

5. In my opinion, Scott J was saying the same thing when, in separately delivered reasons, at 456, his Honour said:

   The basis upon which access to material obtained by subpoena is allowed is that the defence has disclosed to the Court material which indicates that there is a likelihood that such a file will contain material which can be used for a legitimate forensic purpose:  see R v Saleam (1989) 16 NSWLR 14 at 18, per Hunt J. The test is sometimes expressed as being that there must be evidence to suggest that it is 'on the cards' that the documents can, or are likely to, materially assist the defence: see Alister v The Queen.  In my opinion, the better test is that there should be evidence that the documents concerned are likely to be relevant for some legitimate forensic purpose before access to the documents is permitted.

6. It is sometimes said that where the ground for obtaining access to the documents is lacking in accordance with that test, the exercise of seeking access is a mere 'fishing expedition', where there is a bare assertion that there is reason to believe that something might turn up which would assist the defence.

The application of the law to this case

1. For Mr Grill, it is frankly said that the establishment of the likelihood of a legitimate forensic purpose to show that the warrants which produced material to be adduced in evidence by the prosecution were improperly grounded and invalid, depends on the anonymous letter which it is said that Mr Grill received on 27 December 2007, after the warrants in question had been obtained, but nearly a year before this prosecution was instituted by the issue of prosecution notices. 

2. In my opinion, the document could not be regarded as providing any reliable reason to question the process by which the warrants in this case were issued.  In the first place, of course, it is anonymous and the identity of its author has not been established.  The genuineness of the document can therefore not be tested.  It is addressed to, 'Dear Julian', but there is no evidence to suggest that it was written by a person who might be known to Mr Grill and who might address him familiarly in that way.

3. The letter refers to a conversation said to have been 'recently heard'.  And so the conversation was apparently said to have taken place well after these warrants were obtained.  The persons who were conversing were identified as CCC investigators.  But otherwise the circumstances in which the conversation is said to have occurred and be overheard are unidentified.  As Mr Eyers put it, there is really nothing to show that this letter was not a concoction. 

4. In any event, the letter would suggest that the investigators had less than a clear understanding of the process by which, under the Act, the warrants might be obtained.  Whatever motive investigators might have in their choice of material advanced to the AAT to support the application for the issue of a warrant, it would not be issued except by the independent assessment of the sufficiency of that material by the nominated AAT member.  Even taking the allegations in the document at their face value, there is nothing to link them to the process by which the issue of these warrants was obtained.

5. For those reasons, after hearing argument, I granted the application and cancelled the witness summons served on Mr Silverstone.  Mr Eyers also advanced arguments concerned with questions of public interest immunity and res judicata or issue estoppel.  As can be seen, I have found it unnecessary to consider those matters.