Citation: Regina (C'Wealth) v Baladjam & Ors [No 28] [2008] NSWSC 1449
Court: Supreme Court of New South Wales
Date: 24 June 2008
Judge(s): Whealy J
Background
Nine men faced charges of conspiring to do acts in preparation for a terrorist act or acts. The prosecution alleged the accused shared extremist beliefs and worked together to acquire chemicals, weapons, and instructional material in furtherance of their agreement. Pre-trial applications had been running for several months by the time this issue came before the Court.
One of the accused caused a subpoena to be issued to the New South Wales Crime Commission, dated 14 March 2008. The subpoena sought, among other things, copies of warrant applications made under the Telecommunications (Interception) Act 1979 (Cth), supporting affidavits, authorisations permitting Commission officers to exercise powers under those warrants, and documents identifying who had actually exercised those powers.
The NSW Crime Commission applied to have the subpoena set aside. The accused's counsel argued a legitimate forensic purpose had been established. Whealy J heard argument on 16 June 2008 and delivered judgment on 24 June 2008.
Legal Issues
- Whether the subpoena disclosed a legitimate forensic purpose, as required before a subpoena can be maintained
- Whether the subpoena amounted to an impermissible fishing expedition for materials that might assist a collateral challenge to the validity of the warrants
- Whether the accused could use the subpoena process to obtain the supporting affidavits and applications that underpinned telecommunications interception warrants
Decision
Whealy J set the subpoena aside in its entirety. His Honour concluded that the accused had not established a legitimate forensic purpose for the documents sought. The subpoena was, in substance, a speculative attempt to obtain warrant-support materials in the hope that something useful might emerge, which is precisely what the "fishing expedition" principle prohibits.
The Court examined the body of New South Wales authority on setting aside subpoenas where no legitimate forensic purpose has been demonstrated, including cases such as Carroll v The Attorney General of New South Wales and R v Saleam. Whealy J noted that the warrant itself remained open to challenge through proper processes, but the sufficiency of the materials supporting the warrant was a different matter entirely and could not be pursued through this route.
His Honour also addressed an earlier Victorian decision involving the Australian Crime Commission that had taken a different approach. He observed that Smith J in that case did not appear to have been referred to the substantial body of NSW jurisprudence on this point, and declined to follow it, without being critical of the conclusion reached in the different statutory and factual context of that case.
On the relevance of Alister v The Queen, the Court distinguished the situation before it from the public interest immunity balancing exercise considered by the High Court in that case. Because the accused was engaged in a speculative fishing expedition and no public interest immunity claim had been raised, that balancing process did not arise.
Orders Made
- The subpoena dated 14 March 2008 was set aside.
Key Takeaways
- A subpoena will be set aside where no legitimate forensic purpose is demonstrated; speculative attempts to locate material that might assist a challenge to warrants will not satisfy that requirement.
- Whealy J confirmed that a warrant may be open to challenge through appropriate means, but that does not extend to using the subpoena process to scrutinise the sufficiency of the materials upon which the warrant was granted.
- The NSW Supreme Court declined to follow a Victorian decision permitting similar document access, on the basis that the Victorian court had not been referred to the established body of NSW authority on legitimate forensic purpose.
- Where no public interest immunity claim has been raised, the balancing exercise described in Alister v The Queen does not come into play, and a court need not inspect documents before setting aside a subpoena it is satisfied amounts to a fishing expedition.
- Carroll v The Attorney General of New South Wales and the Saleam line of cases remain significant reference points in NSW for the principle that a subpoena must be grounded in a legitimate and identified forensic purpose, not speculation.
Legislation and Cases Referenced
Legislation:
- Australian Crime Commission Act 2002 (Cth)
- Criminal Code Act
- Listening Devices Act 1984 (NSW)
- Telecommunications (Interception) Act 1979 (Cth)
Cases:
- Alister v The Queen (1983) HCA 45; (1984) 154 CLR 404
- Attorney General v Chidgey [2008] NSWCCA 65
- Australian Crime Commission v Magistrates Court (Vic) [2007] 173 A Crim R 572
- Burmah Oil Company Limited v Bank of England [1980] AC 1090
- Carroll v The Attorney General (1974) 70 A Crim R 162
- Coco v The Queen (1994) 179 CLR 427
- Commissioner of Railways v Small (1938) 38 SR NSW 564
- DPP v Webb (2001) 52 NSWLR 341
- Lipohar v The Queen (1999) 200 CLR 485
- Murphy v The Queen (1989) 167 CLR 94
- NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139
- Ousley v The Queen (1997) 192 CLR 69
- Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498
- R v Saleam (1989) 16 NSWLR 14
- The Queen v Saleam [1999] NSWCCA 86