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Supreme Court 26 May 2015

R v Rogerson; R v McNamara (No 2)

[2015] NSWSC 619

HomicidePublic order & justice offences
PRACTICE AND PROCEDURE APPLICATION TO SET ASIDE SUBPOENA STATUTORY IMMUNITY FROM PRODUCTION SUBPOENA SET ASIDE WORDS AND PHRASES “NECESSARY” “PROSECUTION”

Citation: R v Rogerson; R v McNamara (No 2) [2015] NSWSC 619
Court: Supreme Court of New South Wales
Date: 26 May 2015
Judge(s): Bellew J

Background

Two accused, McNamara and Rogerson, were charged with (among other offences) the murder of Jamie Gao on 20 May 2014. The proceedings were before the Supreme Court ahead of trial. The solicitor for the accused McNamara caused a subpoena to be issued to the Proper Officer of the Australian Crime Commission (ACC) on 24 April 2015.

The subpoena sought a broad range of documents relating to several named individuals, including intelligence reports, examination transcripts, telephone intercept warrants and intercept transcripts, records of interview, and communications between the ACC and various law enforcement agencies. The period covered was 1 January 2013 to the date of the subpoena.

The ACC moved by notice of motion to have the subpoena set aside, relying on the statutory immunity from production contained in s 51(3) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). The accused opposed that application and sought to cross-examine the ACC's deponent.

  • Whether the accused McNamara was entitled to cross-examine the deponent of the ACC's affidavit filed in support of the application to set aside the subpoena.
  • Whether the subpoena should be set aside on the basis of the statutory immunity from production in s 51(3) of the ACC Act.
  • Specifically, whether the exception in s 51(3)(b) of the ACC Act was engaged, which requires production to be necessary for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions.
  • What meaning should be given to the words "necessary" and "prosecution" in s 51(3)(b).

Decision

Bellew J declined to permit cross-examination of the ACC's deponent, Warren Gray. The parties ultimately agreed that submissions on the cross-examination question and the broader question of whether the subpoena should be set aside could be addressed together. The court proceeded directly to the substantive question once it determined cross-examination was not appropriate.

On the central issue, the court examined s 51(3)(b) of the ACC Act, which provides an exception to the general statutory immunity only where production is necessary for a prosecution that was instituted as a result of an operation or investigation carried out by the ACC. The ACC's affidavit evidence, from its Acting Executive Director of Operations, stated clearly that the ACC had conducted no relevant investigation or operation involving the accused or Jamie Gao, and that the ACC had no involvement in instituting the present prosecutions.

The accused sought to rely on internet articles suggesting that Gao had been called to give evidence before the ACC prior to his death, arguing this indicated some ACC involvement and that the word "prosecution" in s 51(3)(b) could extend to encompass related proceedings involving co-offenders (the Lam brothers). Bellew J rejected both arguments. His Honour held that the statutory language was unambiguous, the exception in s 51(3)(b) was not established on the evidence, and the Lam prosecutions in any event had already concluded, meaning production could not be said to be necessary for the purposes of those proceedings.

The court relied on authority holding that s 51 gives the ACC immunity against production in all proceedings except as specifically provided, and that no additional exceptions could be implied. On the evidence before it, the court was satisfied that the prosecution of the accused was not instituted as a result of any ACC operation or investigation.

Orders Made

  • The subpoena issued on 24 April 2015 on behalf of the accused McNamara to the Australian Crime Commission was set aside.
  • The ACC was directed to provide any costs submissions in writing to the Associate by 1 June 2015 (not exceeding two pages).
  • The accused was directed to provide any submissions in reply in writing to the Associate by 5 June 2015 (not exceeding two pages).

Key Takeaways

  • Section 51(3) of the ACC Act provides a broad statutory immunity protecting ACC documents from production in court proceedings, subject only to the narrow exceptions set out in the provision itself.
  • Under s 51(3)(b), the exception to that immunity requires two conditions to be satisfied: the prosecution must have been instituted as a result of an ACC operation or investigation, and production must be necessary for the purposes of that prosecution. Both conditions must be established.
  • Unverified internet articles asserting ACC involvement were insufficient to displace sworn affidavit evidence from a senior ACC officer that no relevant investigation had been conducted and that the ACC had no involvement in instituting the prosecution.
  • Where a prosecution relied upon as engaging the s 51(3)(b) exception has already concluded, production cannot be characterised as necessary for the purposes of that prosecution.
  • The Supreme Court affirmed the principle, derived from earlier authority, that s 51 creates a comprehensive immunity and courts have no power to imply additional exceptions beyond those the legislature has expressly provided.

Legislation and Cases Referenced

Legislation:
- Australian Crime Commission Act 2002 (Cth), s 51(3), s 51(3)(a), s 51(3)(b), s 51(4)
- National Crime Authority Act 1984 (Cth)

Cases:
- Lam v R; Lam v R [2015] NSWCCA 87
- National Crime Authority v Gould and anor (1989) 23 FCR 191
- R v Micalizzi (NSWSC, 13 November 1987, unreported)
- R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592
- Young v Quin (1985) 4 FCR 483