R v Rogerson; R v McNamara (No 2)

Glen Patrick McNamara and Roger Caleb Rogerson have each pleaded not guilty to (inter alia) the murder of Jamie Gao on 20 May 2014. It is not necessary for present purposes to set out the Crown case against the two accused. It is summarised in a previous judgment: R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [7].

On 24 April 2015 the solicitor for the accused McNamara caused a subpoena to be issued to the Proper Officer of the Australian Crime Commission (“ACC”) seeking production of (inter alia) the following:

By notice of motion filed on 5 May 2015 the ACC seeks orders that:

In support of the notice of motion the ACC read an affidavit of Warren Gray, the Acting Executive Director of Operations, sworn 8 May 2015. Although there was no objection to that affidavit, counsel for the accused indicated that he wished to cross-examine Mr Gray. That course was objected to by the solicitor for the ACC and I heard submissions from both parties in respect of that issue.

As events transpired, the submissions made by the parties went substantially beyond the issue of whether cross-examination of Mr Gray should be permitted, and extended to the broader, and more fundamental, question of whether the subpoena should be set aside having regard to the provisions of s. 51(3)(b) of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”). The parties agreed that they would rely upon their respective submissions in respect of both issues, such that if I conclude that the cross-examination of Mr Gray should not be permitted, I can then proceed directly to the question of whether the subpoena ought be set aside.

The salient parts of Mr Gray’s affidavit are in the following terms (commencing at paragraph (10)):

The accused relied upon an affidavit of his solicitor, Hudson Lu, of 11 May 2015. Although the solicitor for the ACC objected to that affidavit on the grounds of relevance, he accepted that it would be necessary for me to read it for the purposes of determining that question.

In paragraph 2 of his affidavit, Mr Lu stated the following:

The affidavit of Mr Lu annexes a number of documents including articles downloaded from the internet. The contents of those documents may be summarised as follows.

On 2 June 2014 an article under the heading “Murder victim Jamie Gao had been called to give evidence at the Australian Crime Commission” was published in the Daily Mail on line. The article (which is annexure A to Mr Lu’s affidavit) contained the following:

On 2 June 2014 another article appeared on the www.news.com.au website. That article is annexure B to Mr Lu’s affidavit and is headed “Jamie Gao ‘was in secret talks with police’: Claim that murdered Sydney student had been called to give evidence at Australian Crime Commission before he was shot to death over drug deal”. The article goes on to state (inter alia) the following:

Annexure C to the affidavit of Mr Lu is an extract from a statement obtained by police from Mathew Lo, paragraph (12) of which is in the following terms:

Annexure D to the affidavit of Mr Lu is an extract from a NSW Police “COPS” event dated 19 May 2012. The narrative of that event relates to two persons, Chun Lok Lam and Chun Kit Lam (to whom I shall refer for convenience as “the Lams”). The document reads (in part) as follows:

In April 2014, the Lams were each sentenced to terms of imprisonment in respect of a charge of supplying a large commercial quantity of a prohibited drug. Appeals brought by each of them to the Court of Criminal Appeal in respect of their respective sentences were unsuccessful: Lam v R; Lam v R [2015] NSWCCA 87.

Counsel for the accused also tendered a copy of a statement of agreed facts pertaining to the prosecution of the Lams. Counsel relied, in particular, on the contents of paragraph (12) of that document which is in the following terms:

Annexure F to the affidavit of Mr Lu is an extract of a statement of Katherine Gao, the mother of the deceased Jamie Gao. Paragraph (11) of that statement is in the following terms:

The significance of this extract is said to be that the criminal history of the deceased (Annexure E to Mr Lu’s affidavit) contains no reference to the charge referred to by Ms Gao in her statement.

Section 7A of the ACC Act is in the following terms:

Section 51 of the ACC Act, which is the pivotal section in the present case, is in the following terms:

The submissions of counsel for the accused concentrated upon that part of the subpoena that sought production of material relating to the Lams. It was submitted that:

In these circumstances, it was submitted that it was legitimate to allow cross-examination of Mr Gray in order to suggest to him that the operation leading to the arrest of the Lams and others was instituted by the ACC.

Inextricably linked to these submissions, and part of the reason for which cross-examination of Mr Gray was said to be both legitimate and necessary, was the proposition that the words “for the purposes of a prosecution” as they appear in s. 51(3)(b) of the ACC Act should be read as referring (in this case) to the prosecution of the Lams as opposed to the prosecution of the accused.

On behalf of the ACC, it was submitted that s. 51(3) afforded an immunity, to those persons to whom the section applied, from disclosure of documents or other information. It was submitted that the scheme of the legislation was such that the general immunity for which provision was made was subject to particular exclusions and that in this case the relevant exclusion relied upon by the accused was that contained in s. 51(3)(b).

It was submitted that the provisions of s. 51(3)(b) required that the Court come to a view that production of the material sought was necessary for the purposes of a prosecution which had been brought in the circumstances contemplated by the section. It was submitted that in the context of the present case, and before production was ordered:

It was submitted that in these circumstances, given that the prosecution relied upon by the accused was some other proceeding, part of the fundamental basis on which it was sought to cross-examine Mr Gray, and on which the order setting aside the subpoena was resisted, could not be made out.

It was further submitted that the affidavit of Mr Gray established that the prosecution of the accused was not instituted in the circumstances to which s. 51(3)(b) was directed. It was submitted that in these circumstances, the ACC should not be required to produce any material, and the subpoena should be set aside.

Although not directly a party to the notice of motion filed by the ACC, the Crown explained that there was evidence that the deceased had contact, and had dealt, with the Lams. However, the Crown took issue with the suggestion that the prosecution of the Lams formed any part of the prosecution of the two accused.

The relevance of the affidavit of Mr Lu was said to lie in the fact that its contents supported the proposition that the prosecution of the Lams formed part of the Crown case against the accused.

Some of the material annexed to Mr Lu’s affidavit was in the nature of media articles downloaded from the internet. There is an obvious difficulty in relying upon the content of such articles to establish the truth of what is asserted in them. Even if I were to accept the truth and accuracy of the content of the articles annexed to Mr Lu’s affidavit, the entirety of his affidavit tends to establish little more than the fact that the deceased had spoken to, and was perhaps under investigation by, the ACC in the period leading up to his death. I am not satisfied that this is relevant to any issue before me, be it in terms of the notice of motion or the trial as a whole.

In my view, there is nothing in the affidavit of Mr Lu which even suggests, let alone tends to establish, that the prosecution of the Lams forms any part of the Crown case against the accused involving the death of the deceased. In particular, the COPS event of 19 May 2012 establishes nothing more than the fact that the Lams were arrested following an investigation by the ACC. That document makes no mention of the deceased at all.

For all of these reasons I am not satisfied that the affidavit of Mr Lu is in any way relevant to the issues I am required to determine.

I have set out (in [20] above) my understanding of how the proposed cross-examination of Mr Gray is said to be relevant. As to the first matter relied upon, I accept that Wang was a co-accused of the Lams. Indeed, the basis of the application for leave to appeal brought by each of the Lams was an asserted disparity between the sentence imposed on each of them and that imposed on Wang: see Lam (supra) at [3]. Further, although not mentioned in the Crown case statement, the Crown did not take issue with the suggestion that Wang is to be called as a witness at the trial of the accused.

However for the reasons already expressed, there is no evidence upon which I can conclude that the investigation of the Lams (or the investigation of anyone else who is named in the subpoena) also involved the investigation of the deceased. I am satisfied in these circumstances that the investigation and prosecution of the Lams forms no part of the Crown case against the accused.

In these circumstances, and leaving aside the danger that if cross-examination were permitted it may lead to the disclosure of the very material in respect of which the immunity is claimed (as to which see Young v Quin (1985) 4 FCR 483 at 487 per Bowen CJ) I am not satisfied that there is any legitimate purpose to be served in cross-examining Mr Gray on his affidavit.

Leaving aside the fact that the prosecution of the Lams does not form part of the Crown case against the accused, the accused’s resistance to the orders sought in the motion is based upon an interpretation of s. 51(3)(b) of the ACC Act which, in my view, is not reasonably open.

Counsel for the accused submitted that in the circumstances of the present case, the term “a prosecution” as it appears in s. 51(3)(b) should be read as referring to the prosecution of the Lams. Acceptance of that interpretation would mean that it would be open to an accused person to issue a subpoena in his own proceedings and, providing that he could demonstrate the necessity to produce documents for the purposes of some other prosecution instituted as the result of an operation or investigation carried out by the ACC, the statutory immunity in respect of production would not apply. That would be an absurd result and could not possibly have been one which the legislature intended. In my view, the word “prosecution” as it is used in s. 51(3)(b) must mean the prosecution of the accused, not someone else.

Further, whilst I accept that the word “necessary” should not be given a restrictive interpretation, I am satisfied that for the purposes of s. 51(3)(b) of the ACC Act production of the material sought could only be regarded as necessary if such material appeared sufficiently relevant to the issues to be raised in the prosecution of the accused, not the prosecution of some other person: National Crime Authority v Gould and anor. (1989) 23 FCR 191 at 195.

I am fortified in these views by the observations of Slattery J in R v Micalizzi (NSWSC, 13 November 1987, unreported) where, in the context of a similar provision contained in the then National Crime Authority Act 1984 (Cth) his Honour said:

Even if I were prepared to accept the submission advanced by counsel for the accused as to the interpretation of the word “prosecution”, as I have previously noted the exception to the statutory immunity provided for by s. 51(3)(b) requires that production be necessary for the purposes of such a prosecution. The prosecution of the Lams has ended. It could not, in those circumstances, be said that production of any of the material sought is necessary for the purposes of that prosecution.

Bearing in mind my interpretation of s. 51(3)(b) of the ACC Act, and having regard to the contents of paragraph 11.4 of the affidavit of Mr Gray, I am satisfied that the exception to the immunity contained in s. 51(3)(b) has not been made out. It follows that the ACC shall not be required to produce the material sought in the subpoena and in those circumstances the subpoena should be set aside.

In the event that the first of the orders sought in the notice of motion was made, the solicitor for the ACC foreshadowed an application for costs. Orders (2) and (3) below facilitate both parties having the opportunity to make submissions in respect of that question.

For the reasons set out I make the following orders: