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Supreme Court 15 December 2021

R (Cth) v Alqudsi

[2021] NSWSC 1650

Public order & justice offences
CRIMINAL PROCEDURE SUBPOENAS LEGITIMATE FORENSIC PURPOSE OPPRESSION CRIMINAL PROCEEDINGS

Citation: R (Cth) v Alqudsi [2021] NSWSC 1650
Court: Supreme Court of NSW
Date: 15 December 2021
Judge(s): Rothman J

Background

The accused faced charges under the Criminal Code Act 1995 (Cth) of intentionally directing the activities of a terrorist organisation, carrying a maximum penalty of 25 years' imprisonment. The prosecution alleged that the accused directed a group known as "the Shura" (an Arabic term meaning Consultative Council), which was said to have planned to send individuals to Syria to fight and, when that failed, turned its attention to a range of domestic targets in Sydney.

The investigation was conducted jointly by NSW Police and the Australian Federal Police through a Joint Counter Terrorism Team. As a result, a substantial body of material, including telephone intercepts, surveillance records, and listening device recordings, was held across both agencies.

The accused served subpoenas on both the AFP Commissioner and the NSW Police Commissioner in October 2021, seeking documents relevant to his defence. Both agencies moved to have their respective subpoenas set aside, arguing the subpoenas were oppressive, lacked a legitimate forensic purpose, or constituted an abuse of process.

  • Whether the subpoenas served on the AFP and NSW Police Commissioners should be set aside under UCPR r 33.4 on grounds of oppression or lack of legitimate forensic purpose
  • What standard of "adjectival relevance" applies to subpoenas issued in criminal proceedings, as distinct from civil proceedings
  • Whether the volume of material potentially caught by the subpoenas rendered them oppressive
  • Whether specific paragraphs of the subpoenas, including requests for unredacted documents, should stand or be set aside

Decision

Rothman J confirmed that a more liberal approach to adjectival relevance applies to subpoenas issued in criminal proceedings than to those in civil proceedings. This approach is consistent with the prosecution's own duty of disclosure, which extends to material that might open useful lines of inquiry for the defence, without any narrow view of relevance being taken. Where an investigation was conducted jointly by two agencies, material held by one agency may never have been reviewed by the other for disclosure purposes, making the broader approach to subpoenas particularly important.

The court applied the well-established "legitimate forensic purpose" test and assessed each category of documents sought in the subpoenas. Where documents had a discernible connection to the issues in the case, the court upheld the subpoena paragraphs. The court rejected the argument that sheer volume alone rendered a subpoena oppressive, noting that the initial claim of 275,000 hours of telephone intercepts had been corrected to approximately 2,521 hours of calls across 275,000 interceptions.

However, the court set aside certain paragraphs that it characterised as oppressive or as fishing exercises. In particular, requests for documents across an unlimited time period, or documents only tenuously connected to the charged conduct, did not satisfy the legitimate forensic purpose requirement. The court drew a distinction between requests that were genuinely directed at the defence case and those that amounted to a broad trawl through the agencies' records.

On the question of unredacted documents, the court held that where redacted versions of call logs and file notes had already been produced, a request for the unredacted counterparts was neither oppressive nor lacking in legitimate forensic purpose, and that objection was rejected.

Orders Made

• The subpoena in paragraph 20 is allowed to stand, confined to unredacted investigator notes already provided
• The objection to paragraph 22 is upheld and those documents need not be provided
• The objection to paragraph 26 is rejected and the paragraph stands
• Directions and/or rulings are made consistent with the foregoing comments in relation to the paragraphs considered

Key Takeaways

  • In criminal proceedings, courts apply a more liberal approach to the adjectival relevance of documents sought by subpoena than in civil proceedings, reflecting the accused's right to a fair trial and the prosecution's broad duty of disclosure.
  • Where a joint investigation is conducted by multiple law enforcement agencies, material held by one agency may not have been reviewed by the other for disclosure purposes, which reinforces the legitimacy of subpoenas directed to both agencies.
  • A subpoena in criminal proceedings satisfies the "legitimate forensic purpose" test where, on a sensible appraisal, the documents sought are relevant or possibly relevant to an issue in the case, raise a new issue, or hold out a real prospect of providing a lead on relevant evidence.
  • Volume of documents does not automatically make a subpoena oppressive; the court assesses each category of documents individually against the legitimate forensic purpose standard.
  • Requests without any temporal limitation, or that lack a discernible connection to the charged conduct, risk being characterised as oppressive or as fishing exercises and may be set aside.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 102.2(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Cases
- Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
- Carmody v MacKellar (1997) 76 FCR 115; [1997] FCA 839
- Carroll v Attorney-General for NSW (1993) 70 A Crim R 162
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Cornwell v R [2010] NSWCCA 59
- Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142; [2018] NSWCCA 109
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
- NSW Commissioner of Police v Tuxford [2002] NSWCA 139
- R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Saleam (1999) 16 NSWLR 14; [1999] NSWCCA 86
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
- Spencer Motors Pty Ltd v LNC Industries [1982] NSWLR 921
- X7 v Australian Crime Commission [2013] HCA 29