R v Cranston (No 3)

1. [1]

   PAYNE J: On 20 September 2019, in the Local Court Adam Cranston, Lauren Cranston, Jason Onley and Dev Menon were committed for trial in this Court. On 6 December 2019, the accused pleaded not guilty before Fullerton J to the following two counts in an indictment presented on that day:

2. [2]

   On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. For reasons related to the COVID-19 pandemic that trial date has been vacated.

3. [3]

   The matter came before me for pre-trial directions on 7 February 2020 and 9 April 2020. On 12 May 2020, there was a further pre-trial directions hearing. Relevantly, I made the following orders:

4. [4]

   A notice of motion was filed on 4 June 2020 on behalf of Messrs Menon and Onley. Mr Adam Cranston, who is at present self-represented, supported the making of orders sought in the notice of motion. Ms Lauren Cranston did not actively participate in the debate but if orders were made in favour of the applicants she sought to enjoy the benefit of those orders. That notice of motion sought the following relief:

5. [5]

   Without obtaining the leave sought in the motion (about which I make no criticism), on 7 July 2020 Messrs Onley and Menon caused a subpoena to be issued to the Commonwealth Director of Public Prosecutions (CDPP) and the Commissioner of the Australian Federal Police (AFP) in the terms of the draft subpoena referred to in the motion. There was an obvious overlap between the issues relevant to the subpoena and issues relevant to the scope of prosecution disclosure and the warrants. I have dealt with the issues relevant to disclosure in a separate judgment which should be understood and read together with this judgment: [2020] NSWSC 1102 (the disclosure judgment). The subpoena applicants relied upon the same evidence as was before me for the purposes of the disclosure judgment. Without repeating them here, I make the same findings of primary fact in this application as in the disclosure judgment. Without repeating them, I draw (and refuse to draw) the same inferences from those primary facts for the purposes of this application as in the disclosure judgment.

6. [6]

   The subpoenas sought production of categories of documents identical to the categories contained in the request for further disclosure. There were typographical errors in the original subpoena issued, which were subsequently corrected by the applicants:

7. [7]

   On 13 July 2020, the CDPP informed the Court that her office had no documents to produce in answer to the subpoena. No challenge was advanced by the subpoena applicants to that statement. That subpoena needs no longer to be considered.

8. [8]

   On 15 July 2020, I made the following orders:

9. [9]

   On 29 July 2020, the AFP filed a notice of motion and submissions. The motion sought the following order:

10. [10]

    In written submissions, the AFP objected to the subpoena on the ground that there was no legitimate forensic purpose shown for production of any of the categories of documents caught by the subpoena. It was submitted that the purpose for which the accused sought the documents was improper in the sense outlined in Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49, Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142 and related authorities. Secondly, it was submitted that even if Ousley and the cases which came after Ousley did not have that effect, the subpoena lacks a legitimate forensic purpose in the sense explained in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536. Finally, it was submitted that the accused are on a “fishing expedition” to see if they have a case at all, and to “check” compliance with the legislation pursuant to which the various warrants were issued.

11. [11]

    On 31 July 2020, the applicants filed written submissions in reply which incorporated submissions earlier made on the notice of motion described at [4]-[5] above.

12. [12]

    On 4 August 2020, the Court heard oral argument on the AFP’s motion. I have decided that the subpoena to produce to the AFP must be set aside. The following are my reasons.

Consideration

1. [13]

   The subpoena seeks documents that relate to either the issue or execution of various telecommunications interception warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth) (TI Act), surveillance device warrants under the Surveillance Devices Act 2004 (Cth) (SD Act) and search warrants under s 3E of the Crimes Act 1914 (Cth) issued during the investigation of this matter.

2. [14]

   In Alister v The Queen (1984) 154 CLR 404 at 414-415; [1984] HCA 85, Gibbs CJ explained:

3. [15]

   It has never subsequently been doubted in this country that the test for production and inspection of documents sought by subpoena in a criminal case is that:

   1. (1)

      a mere “fishing expedition” can never be allowed. A legitimate forensic purpose for production and inspection must be identified;

   2. (2)

      it may be enough that it appears to be “on the cards” that the documents will materially assist the defence case.

4. [16]

   The suggested legitimate forensic purpose must be identified expressly and with precision. As Hunt CJ at CL said in R v Saleam (1989) 16 NSWLR 14 at 18C:

5. [17]

   The forensic purpose put forward by the party who issued the subpoena must be legitimate in the sense that there is a rational, relevant connection between the material sought and the case that the party seeks to make out based on that material. Mere relevance alone is not sufficient. Speculation is insufficient. The documents sought must be relevant in the sense that they will assist the case of the party seeking the documents: R v Tastan (1994) 75 A Crim R 498 at 505-506 per Barr AJ; Chidgey at [59]-[63] per Beazley JA (with whom James J and Kirby J agreed).

6. [18]

   In Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 181-182, Mahoney AP said:

7. [19]

   The authorities establish that whatever purpose is advanced as supporting the subpoena, there must be a reasonable basis for believing that the material sought would materially assist the party at whose request the subpoena was issued: Chidgey at [58]-[59] and [66]; Hunt v Russell (1995) 63 SASR 402 at 409; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 681-684; Commissioner for Railways v Small at 575.

8. [20]

   A suspicion that the subpoenaed documents will or may assist the subpoenaed party will not be enough. A bare unsupported assertion that something may be found which is helpful to the party seeking access to the documents will not be sufficient to establish the existence of a legitimate forensic purpose: Attorney-General (NSW) v Stuart at 676.

9. [21]

   It is not a legitimate forensic purpose to obtain documents simply to “check” compliance with legislation: Chidgey at [84]-[85].

10. [22]

    There are a number of authorities which arise in the context of warrants where the general principles I have explained have been developed. Those authorities have each concluded that a challenge to the validity of a warrant by reference to the material before the decision-maker is not to be permitted.

11. [23]

    Whilst it is open to a party in a criminal trial to seek collateral review of the validity of a warrant, the nature of such review is limited. A warrant or order may be challenged on the ground that it is invalid on its face. However, it is not open in a collateral review to challenge the validity of a warrant or order by reference to the sufficiency of the grounds that were relied upon by the person who issued it, or to enquire as to the state of satisfaction of the issuing officer by reference to the materials before that officer.

12. [24]

    In Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28, a case about a challenge to a listening device warrant issued under the Listening Devices Act 1984 (NSW), Mason CJ and Toohey J (with whom Brennan, Dawson and Deane JJ agreed) held at 106:

13. [25]

    In Ousley, the approach in Murphy was confirmed, in that case in the context of a warrant issued under the Listening Devices Act 1969 (Vic). Toohey J, at 79, followed Murphy in holding that a collateral challenge to the validity of a warrant on the ground of insufficiency of material must be rejected, whereas there is no bar to collateral review by a trial judge of the validity of the warrant on its face. Gaudron J, at 87, noted that since the decision in Murphy the High Court had ruled that a warrant was an administrative rather than a judicial order (in Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4). However, Gaudron J confirmed that this did not change the scope of review that is available in collateral proceedings:

14. [26]

    At 126, Gummow J said:

15. [27]

    McHugh J may have favoured a wider test but his Honour did not command a majority of the Court. Kirby J dissented, but not on this issue.

16. [28]

    Whilst both Murphy and Ousley were concerned with collateral attacks on the validity of warrants issued in respect of listening devices, there is nothing to suggest that the principles developed in those cases were intended to apply only to collateral review of listening device warrants. The reasoning in those cases has been understood in subsequent cases to be expressed in terms of general principles relevant to collateral review of statutory warrants generally: see, for example, Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; [2000] SASC 51 at [27], [94] and [151] (concerning a collateral challenge to the validity of a search warrant issued under s 52 of the Controlled Substances Act 1984 (SA)); Miller v Sweeney [2000] NSWSC 585; (2000) 157 FLR 1 at [13] (concerning a search warrant issued under the Royal Commission Act 1902 (Cth)); R v Baladjam [No 28] [2008] NSWSC 1449 at [40] (concerning telecommunications interception warrants); and Amagwula v R [2019] NSWCCA 156 at [387] per Button J (concerning a search warrant).

17. [29]

    In the Kizon v Palmer litigation which has a resonance in the present case, it was conclusively determined that there was no legitimate forensic purpose shown for production of interception warrant information, including the affidavits that were before the issuing officer. Following the decision in Kizon v Palmer (1997) 72 FCR 409 (Jenkinson, Lindgren and Kiefel JJ) in which the Full Federal Court upheld the constitutional validity of s 63(2) of the TI Act Mr Kizon issued a subpoena for interception warrant information, including the affidavits that were before the issuing officer. The trial judge found there was no legitimate forensic purpose for production of those materials: (1997) 75 FCR 261. On appeal, the Full Federal Court confirmed there was no legitimate forensic purpose: Kizon v Palmer (No 2) (1998) 82 FCR 310 (Northrop, French and Branson JJ). Because the information could not be used in the proceeding there was no legitimate forensic purpose for its production.

18. [30]

    In Von Armin v Ellison (2006) 150 FCR 282; [2006] FCAFC 49, in the context of a warrant issued under the Extradition Act 1988 (Cth), Young J (with whom Madgwick and Siopis JJ agreed) explained at [40]:

19. [31]

    The reference in this passage to compliance with “the statutory conditions governing [the] issue” of a warrant refer to the statutory conditions relating to facial invalidity. A collateral challenge which involves an investigation into statutory procedures leading up to the issue of a warrant is not permissible. This is because the “character or sufficiency” of the evidence placed before the issuing authority is not the proper subject of a collateral challenge.

20. [32]

    In Gould (which concerned TI Act warrants), Basten JA with whom Johnson and Adamson JJ agreed, after considering, in particular, Murphy and Ousley, held at [42] that:

21. [33]

    Basten JA in Gould concluded at [52] that:

22. [34]

    Counsel for Mr Menon made submissions about possible “excessive execution” in relation to the broader issue of disclosure, which are also relevant to the subpoena issue. The crux of the argument was that execution of the SD Act warrants in the conference rooms of Clamenz Lawyers was “excessive”, and did not pay proper regard to legal professional privilege. Counsel for Mr Menon acknowledged that:

23. [35]

    I do not accept that there is any basis in the authorities to conclude that the installation of a surveillance device in a lawyer’s office, permitted by the terms of a SD Act warrant, where that lawyer is alleged to be a central participant in ongoing criminal conduct, amounts to “excessive execution” of the warrant. The applicants’ submission failed adequately to grapple with the decision of the Full Federal Court in Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839 (Black CJ, Lindgren and Sackville JJ) which determined that legal professional privilege is excluded, by implication, from the operation of the warrant provisions in the TI Act (as it was at that time) and the surveillance device warrant provisions in the Customs Act 1901 (Cth). The same reasoning applies to warrants issued pursuant to the SD Act, which by their operation exclude client legal privilege in so far as conversations may be recorded. At least where a lawyer is alleged to be a central participant in ongoing criminal conduct, there is no reason to think that the installation of an SD Act warrant in the conference rooms of that lawyer’s firm amounts, for that reason alone, to excessive execution of a warrant.

24. [36]

    Counsel for Mr Menon referred to a number of decisions said to support his proposition:

    1. (1)

       Crowley v Murphy [1981] FCA 26; (1981) 34 ALR 496. This case was said to be relevant because it was said to proceed on the premise that unnecessary intrusions into client legal privilege by way of collateral damage should be avoided even if a warrant prima facie authorises it. Counsel for Mr Menon candidly drew the Court’s attention to the acknowledgement in Crowley at 525 that a solicitor implicated in an alleged offence “plainly … is in no different position to any other citizen”. Crowley v Murphy provides little assistance in determining the present issues;

    2. (2)

       Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39, which counsel for Mr Menon accepted provided assistance “in a very limited way”. This concession was correctly made. The only passage relied upon in the judgment of Gibbs CJ was part of his Honour’s dissent and, at best, tangentially relevant to any issue in this case;

    3. (3)

       Arno v Forsyth (1986) 9 FCR 576, where it was said (at 580) that the execution of a search warrant should be carried out “reasonably” including taking “full account of the factors concerning the possibility of documents being the subject of legal professional privilege.” In the present case, as described in another judgment delivered today, [2020] NSWSC 1105, there is no claim by any person or entity over any communication captured by the devices installed under any relevant warrant. The context of Arno v Forsyth makes that case of little, if any, assistance here.

25. [37]

    The subpoena applicants also relied upon UK, Jersey and European cases, and the principle of “proportionality” described in those cases, as somehow relevant to determining the issues here. I do not agree that those cases are of any meaningful assistance:

    1. (1)

       R v Grant [2006] QB 60; [2005] EWCA Crim 1089 involved the installation of covert devices in the exercise yard of a police station, following the arrest of a suspect. Communications with the suspect’s lawyer (who was not a participant in any offending) were recorded. The context is completely different to the present where the communications recorded were between parties to the alleged crimes in the course of committing those offences;

    2. (2)

       In Warren v Attorney-General for Jersey [2012] 1 AC 22; [2011] UKPC 10 the Privy Council identified the balance between the misconduct of the investigating officers in Grant, and the crime with which the accused was charged. It was said to be crucial that the misconduct caused no prejudice to the accused. The decision is of no assistance here;

    3. (3)

       In McE v Prison Service of Northern Ireland [2009] 1 AC 908; [2009] UKHL 15, the Court indicated that the standard applying to intrusive surveillance (under a particular statute) should apply where the object of what is being listened to is a communication between lawyer and client. The context is completely different to the present where the communications recorded were between parties to the alleged crimes in the course of committing those offences; and

    4. (4)

       RE v United Kingdom [2015] ECHR 947 where the European Court of Human Rights opined at length about the importance of protecting legally privileged communications. The decision is from such a different context that it is of no assistance here.

26. [38]

    There is some authority which is relevant to the present question. In Gould, after the decision of the Court of Criminal Appeal, a subpoena was issued for the same material. Norrish QC DCJ in an admirably brief judgment held that the subpoena must be set aside for the same reasons as Basten JA had explained precluded further disclosure: R v Gould (District Court (NSW), 3 August 2018, unrep). In my respectful opinion his Honour was correct to so conclude.

27. [39]

    I am bound by the considerable weight of authority I have described above to reach the same conclusion in relation to the suggested legitimate forensic purpose of the subpoena here. That is, the material sought could not be relevant to the issues which might be addressed in the trial, and there is thus no legitimate forensic purpose for the production of that material. Relevance is, at least, a prerequisite to the existence of a legitimate forensic purpose.

28. [40]

    Lest it be thought I have overlooked the submission that some of the material sought is also relevant to an allegation of possible “excessive execution” amounting to “impropriety” in the means by which the evidence was obtained, including the “excessive execution” of one or more of the warrants, I have independently considered whether a legitimate forensic purpose for production has been shown and have concluded that one has not been shown.

29. [41]

    In Gould, in addition to challenging the validity of the warrants, the appellant also sought to allege “‘impropriety’ in the means by which the evidence was obtained”: at [53]. Basten JA accepted (at [54]) that:

30. [42]

    And, at [56]:

31. [43]

    Basten JA nevertheless warned (at [59]) that:

32. [44]

    In this passage, by the reference to “the constraints on the issue of a subpoena”, Basten JA was drawing attention to the principles I have described above. The application of those principles here provides a clear answer. No legitimate forensic purpose has been shown for production. The subpoena must be set aside in whole.

33. [45]

    Despite extensive written and oral submissions, the suggested “legitimate forensic purpose” is, at its highest, simply to check whether there is anything that might create sufficient doubt about the validity of the issue or execution of the various warrants so as to form the basis of a challenge under s 138 of the Evidence Act to the admissibility of the evidence obtained under the warrants. That is the very definition of a prohibited fishing expedition.

34. [46]

    Senior Counsel for Mr Onley, with admirable frankness, submitted (in relation to the closely-related issue of disclosure) that “we are flying blind on this because we don’t know what material was before the decision-maker”. A substantial part of the applicants’ argument was based upon the undoubtedly correct proposition that all powers have jurisdictional limits. It does not follow, however, that the suggested identification of those limits in the abstract is equivalent to an identification of a legitimate forensic purpose for the production of documents under a subpoena. I am not satisfied that it is “on the cards” that any of the documents sought will materially assist the defence case.

35. [47]

    A familiar refrain in relation to documents concerning each of the warrants was “we don’t know what we don’t know”. Senior Counsel for the applicants repeatedly stressed (again, in the context of the related issue of disclosure):

    1. (1)

       “SEIDEN: I think it is fair to say the 3(E) argument is that we don’t know what we don’t know, your Honour.”

    2. (2)

       “SEIDEN: I think it is fair to say we don’t know what we don’t know which is a unique aspect, we say, of disclosure …”

    3. (3)

       “SEIDEN: At the moment we don’t know what we don’t know and, ultimately, there may be no challenge other than in relation to the parts we have already identified in the written submissions. … So we say we don’t know what we don’t know, we are entitled to material that could assist our case.”

36. [48]

    I will address each of the separate paragraphs of the subpoena in turn.

37. [49]

    Subpoena paragraphs [1] and [2] seek material before the issuing officer when deciding on 6 October 2016 to issue SD6116 and on 20 December 2016 to extend SD6116. I have concluded that the applicants’ suggested legitimate forensic purpose rises no higher than a desire to check whether there has been compliance with statutory requirements. The applicants seek to discover whether the affidavits before the issuing officer disclosed a reasonable suspicion that the use of the surveillance device was “necessary” within the meaning of s 14(1)(c) of the SD Act.

38. [50]

    Under issue 3 in the disclosure judgment, I have explained that other than an appeal to the principle that all powers have jurisdictional limits, the sole basis supporting this submission is that no devices were installed pursuant to SD6116 when it was first granted or when it was first extended. The fact that no devices were installed for 90 days does not make it “on the cards” that any of the documents sought will materially assist the defence case. In truth, the information is sought for the sole purpose of checking compliance by an issuing officer with a statutory requirement. Paragraphs [1] and [2] of the subpoena must be set aside.

39. [51]

    Subpoena paragraphs [3] and [4] seek documents identifying the authority of the applicant for the warrant and information about whether each applicant for an extension of various named surveillance device warrants did so on behalf of the original applicant for the warrant. I have concluded that these requests for documents rise no higher than checking compliance with statutory requirements. Checking compliance is not a basis to conclude that it is “on the cards” that any of the documents sought will materially assist the defence case. Paragraphs [3] and [4] of the subpoena must be set aside.

40. [52]

    Subpoena paragraphs [5] to [10] seek documents which relate to the installation on 23 January 2017 of four devices at the premises of Clamenz Lawyers. The suggestion made by the applicants is that there is reason to think it is on the cards that this installation exceeded the authority of one or both warrants or otherwise comprised excessive execution of the warrant. I have concluded that these requests for documents rise no higher than a desire to check compliance with statutory requirements. There is no reason shown to think it is on the cards that the installation of the devices exceeded the authority of the warrants or otherwise comprised excessive execution of the warrant. The terms of each of paragraphs [5], [6], [8], [9] and [10] of the subpoena, which seek documents “evidencing” compliance with aspects of the statutory regime, are a cogent demonstration of the fishing nature of the requests. I am not persuaded that there is a basis to conclude that it is “on the cards” that any of the documents sought will materially assist the defence case. The material before the decision-maker in relation to SD6116 and SD6400 is not relevant to whether or not the installation of four devices pursuant to SD6116 was within the authorisation of that warrant. Paragraphs [5] to [10] are set aside.

41. [53]

    Paragraph [7] of the subpoena must also be set aside. Paragraph [7] of the subpoena seeks material before the issuing officer on the application for SD6400 issued on 26 January 2017. I have concluded that the applicants seek this information simply to check whether there was “proper” regard paid to the matters addressed in s 16(2) of the SD Act in authorising SD6400. That purpose is fishing. Specifically, I reject there being any legitimate forensic purpose to be drawn from the condition in SD6400 that there be only four devices. I also reject the submission that there is a legitimate forensic purpose in checking whether it was “necessary” to install a tracking device in the law firm.

42. [54]

    Subpoena paragraphs [11] to [13] seek documents evidencing whether the installation of the surveillance devices involved breaking into or other interference with property. The request for these documents raised an issue of construction about s 18 of the SD Act. In the disclosure judgment, I held that I was not satisfied that this issue of construction requires determination now. The same conclusion is appropriate here. The information is sought for the sole purpose of checking compliance with the legislation. If the applicants’ construction is correct they have the information they need to make a claim for the exclusion of evidence under s 138 of the Evidence Act. I am not satisfied that it is “on the cards” that any of the documents sought will materially assist the defence case. That is, I am of the same view about the absence of a legitimate forensic purpose even on the contingent hypothesis that the correct interpretation of s 18 is the one advanced by the applicants. Paragraphs [11] to [13] of the subpoena must be set aside.

43. [55]

    Subpoena paragraphs [14] to [15] seek all documents including communications, draft communications, reports, file notes and memoranda “evidencing” consideration of whether to apply for a surveillance device warrant for the Clamenz offices, whether the authority given by SD6116 was sufficient to authorise installation of devices at Clamenz, and drafts of the material before the issuing officer when applying for SD6400. In their terms, these paragraphs are classic fishing. The applicants seek to ascertain whether the documents evidence a reckless or a deliberate cutting of corners in the installation on 23 January 2017 of the listening devices in conference rooms at Clamenz under the authority of SD6116. There is no reason to conclude it is on the cards that there was any recklessness or a deliberate cutting of corners in the installation of those devices. It is not on the cards that a specified person warrant was sought instead of a specified premises warrant for some improper purpose or out of recklessness or cutting of corners. There was simply no evidence which would permit such an inference to be drawn. There is also no evidence that SD6400 was an attempt to gain authority for what had already been installed under SD6116. Paragraphs [14] to [15] of the subpoena must be set aside.

44. [56]

    Subpoena paragraph [16] seeks all drafts of the material before the issuing officer when applying for the surveillance device warrant SD6400. I am bound by Gould to set aside paragraph 16. The request is, in any event, classic fishing and must be set aside for that additional reason.

45. [57]

    Subpoena paragraph [17] seeks all documents including communications, reports, file notes and memoranda evidencing consideration of which surveillance devices installed between 23 and 25 January 2017 would be removed on or about 2 February 2017 and which devices would be left in place. The applicants submitted that an available inference is that it was regarded as appropriate to remove the devices installed under SD6116 as those devices had been installed unlawfully, yet police left in place the device in the Opera Room because they considered they were obtaining useful information. I do not agree. It is not on the cards that the documents sought will materially assist the defence. The suggested inference is, on the evidence, highly improbable speculation. It is not an inference I regard as available. Paragraph [17] of the subpoena must be set aside.

46. [58]

    Subpoena paragraph [18] seeks all documents from 24 and 25 January 2017 referring to what was recorded on 24 January 2017 or adverting to whether such material might assist the investigation to which SD6400 related. The applicants seek to ascertain whether there may have been derivative use of material impermissibly obtained from use of SD6116. No legitimate forensic purpose has been identified for production of documents in accordance with this paragraph. There was no basis shown to think that SD6116 might be invalid or that the devices installed pursuant to it might not be authorised. Paragraph [18] of the subpoena must be set aside.

47. [59]

    Subpoena paragraph [18A] seeks all documents from 24 January to 2 February 2017 referring to what was recorded on 24 January 2017 or adverting to whether such material might assist the investigation to which SD6400 related. The applicants seek to ascertain whether the installation of more than one listening device was regarded as being “necessary” because of impermissible use of material obtained by use of SD6116. This is classic fishing. There is no reason to think that material obtained pursuant to SD6116 might have been unlawfully obtained, that anybody was aware of any suggested unlawful conduct or that anybody took steps to remedy any suggested unlawful conduct. The allegation of possible improper conduct is no more than speculation. It is fishing. Paragraph [18A] of the subpoena must be set aside.

48. [60]

    Subpoena paragraphs [19] to [21] seek documents “evidencing” the necessity to give effect to SD6400 to install surveillance devices between 1 and 2 February 2017, documents evidencing the belief of any person who contributed to that decision that it was “necessary” and documents evidencing what was taken into account as to the decision to install the number of devices that were installed under SD6400, and/or between 1 and 2 February 2017. In substance these paragraphs seek to discover whether the installation on 1 February 2017 of two additional devices at Clamenz exceeded the authority of SD6400. The request is classic fishing. Warrant SD6400 authorised the installation of up to four devices. What is sought is expressly sought on the basis that compliance with legislation needs to be checked. There is no basis for any inference of possible impropriety or excessive execution. There was also a submission that it may assist the accused to learn whether any understanding that particular conversations were occurring in particular rooms was derived from the use of devices installed under SD6116. I reject the submission that there is a legitimate forensic purpose simply to check compliance with the legislation for a possible “derivative use” argument. Subpoena paragraphs [19] to [21] must be set aside.

49. [61]

    Subpoena paragraphs [22] and [23] seek all communications from 6 October 2016 to 17 May 2017 by persons who listened to material under purported authority of the warrants issued under the TI Act or the SD Act in respect of Operation Elbrus referring to, adverting to or indicating that such material may be relevant to Operation Elbrus. The paragraphs further seek all communications from that time between officers of the AFP associated with Operation Elbrus referring to or adverting to material that was listened to pursuant to the purported authority of the warrants. The applicants seek to ascertain the period when monitored information deemed relevant to the investigation was disseminated. The applicants submitted that the process is relevant to the derivative use argument that they seek to mount (which, they submit, is here not solely based on SD6116 but the derivative use of any material which may be found to have been obtained unlawfully). There was no real attempt by the applicants to demonstrate that it was on the cards that production of these documents would materially assist the defence case, save at a level of hypothetical and unhelpful generality based on speculation, not available inference. These paragraphs are classic fishing. Subpoena paragraphs [22] and [23] must be set aside.

50. [62]

    Subpoena paragraph [24] seeks material before the issuing officer on the application to extend SD6400, which was extended on 20 April 2017. The applicants seek this material on the basis of the amendment to the condition concerning the maximum number of devices. There is no reason to think that an issuing officer cannot unilaterally impose a condition on a warrant issued pursuant to the SD Act. Section 17(1)(b)(xi) of the SD Act provides that a warrant must set out any conditions subject to which premises may be entered or a device used pursuant to the warrant. No sensible reason was advanced to conclude that it was on the cards that production of these documents would materially assist the defence case. Subpoena paragraph [24] must be set aside.

51. [63]

    Subpoena paragraphs [25] and [26] seek documents evidencing when it was proposed to intercept communications under listed specified person warrants, a certified copy of the warrant that was transmitted to each carrier and referring to or adverting to reasons for the period of time between when it was proposed to intercept communications and when the certified warrant was given to the respective carrier. The paragraphs further seek material before the issuing officer on the applications for all warrants issued or extended under the TI Act or SD Act on or after 26 October 2016 in respect of Operation Elbrus. The purpose for seeking these documents is plainly to check compliance with s 60(1)(d) of the TI Act. The applicants have been unable to explain how any submission or application that they might wish to make about or in consequence of a possible breach of s 60(1)(d) of the TI Act, which is (they say) apparent from the documents they already have, would be assisted by the documents before the issuing officer when the various warrants were granted. In any event, assuming in the applicants’ favour some arguable non–compliance with s 60(1)(d), it could not amount to any more than a bare allegation that the decision to issue the warrants (as opposed to some step required after their issue) was infected with error: Australian Broadcasting Corp v Kane [2019] FCA 1312 per Abraham J at [152]. No basis was shown to conclude that it is on the cards that production of this material would materially assist the defence case. Subpoena paragraphs [25] and [26] must be set aside.

52. [64]

    Finally, subpoena paragraph [27] seeks material before the issuing officer on the application for each search warrant issued under s 3E of the Crimes Act in respect of Operation Elbrus on or about 16 May 2017, 5 June 2017 and 21 September 2017. The applicants submitted that the 3E warrants were excessive in their breadth. The applicants submitted that the Crown should review the supporting material with a keen eye as to whether an argument as to the excessive breadth of the warrant is available. This is classic fishing. I am not satisfied that there was any basis shown to require the Crown to review anything to test whether the argument based on excessive breadth of the warrant was available to the applicants. No basis was shown to conclude that it is on the cards that production of this material would materially assist the defence case. Subpoena paragraph [27] must be set aside.

Conclusion

1. [65]

   The applicants have not established any legitimate forensic purpose to obtain the documents sought by the subpoena. The subpoena must be set aside.

2. [66]

   I make the following order:

   1. (1)

      Set aside the subpoena issued on 7 July 2020 addressed to the Commissioner of the Australian Federal Police.