Commissioner of Police, NSW v Taleb

1. [1]

   Moudasser Taleb, who is due to stand trial in February 2019 in relation to what I will loosely describe as a terrorism offence, issued two subpoenas directed to the Commissioner of Police, NSW (“the Commissioner”) and one directed to the Commissioner of the Australian Federal Police. There was significant correspondence about these subpoenas and some agitation in front of the criminal list Judge before the matter was listed for trial and allocated to me. In accordance with directions made by the list Judge, both Commissioners filed notices of motion seeking to have the subpoenas set aside and the matter was listed before me on 21 November 2018 with an estimate of two days. Affidavits were sworn or affirmed and read on the application.

2. [2]

   At the conclusion of the first day of argument, the lawyers indicated a willingness to speak to one another in an attempt to resolve the issues that were crystallised in the course of submissions that day.

3. [3]

   The next day, Queens Counsel for the accused indicated that Mr Taleb no longer pressed the subpoena directed to the Australian Federal Police (“AFP”). It also appeared that the arguments surrounding the subpoenas directed to the NSW Police would be resolved by agreement and, on that understanding, the matter was adjourned until Monday 3 December 2018. However, while some issues were resolved, a number of significant issues remained in dispute. There was also a potential claim for public interest immunity.

4. [4]

   On 3 December 2018, I was told there had been “some progression” but, as it turned out and in terms of the fundamental issues between the parties, there wasn’t really much progress at all. The argument continued but not much was achieved beyond clarifying which paragraphs of the subpoenas were still pressed, which were not, and the issues that did, and did not, need to be resolved. The matter was adjourned until 5 December 2018 when there was further explanation of what needed to be decided and Queens Counsel for Mr Taleb and counsel for the Commissioner advanced their final arguments on the outstanding items in the subpoena.

5. [5]

   Annexed to this judgment is a table setting out in column 1 the items sought by each paragraph of the two subpoenas (“the table”). Column 1 adopts the exact terms of the subpoenas themselves. Column 2 of the table sets out the final position of the parties after weeks of correspondence and parts of four days arguing in court. This includes (i) whether the item is pressed or not pressed, (ii) items where there is nothing to produce, (iii) items where the scope of the subpoena has been narrowed or clarified (iv) items that have been, or will be produced, and (v) where there remains dispute between the parties, a brief explanation of the nature of the dispute or objection. Column 3 identifies the reference to the transcript where this position was clarified or expressed.

6. [6]

   By simply reading the schedules to the subpoenas, by reference to the subpoenas themselves or column 1 of the table, it can be seen that a number of the paragraphs were poorly drafted. The complaints made about some of the items sought by the subpoena, in terms of their breadth, potential to operate oppressively, and the opacity of any legitimate forensic purpose, were well-founded. Some of the paragraphs (in the subpoena directed to the AFP) did not seek documents but information. There was also, in the period the matter was before the list Judge and even after the argument was listed before me, a failure on the part of Mr Taleb’s solicitor to respond to various requests made by the Crown Solicitors Office (“CSO”) representing the Commissioner of Police, NSW. Not unreasonably, the CSO sought clarification as to precisely what documents were sought by the subpoena and how it was contended to be on the cards that those documents would assist Mr Taleb in his defence. Until the hearing, there appeared to be an intransigent failure to respond to correspondence containing the CSO’s legitimate inquiries. These inquiries were calculated to narrow the issues between the parties and to streamline the conduct of the pre-trial hearing.

7. [7]

   Under force of argument, by the time the decision on the notice of motion was reserved, a number of the more obviously defective paragraphs of the schedules to the subpoena were abandoned and the parties had negotiated a resolution to the production of certain documents pursuant to some of the other paragraphs. There remained a number of outstanding issues. The most controversial issue was whether Mr Taleb had a legitimate forensic purpose in seeking access to documents that were used in the application for two controlled operations authorities issued under the Law Enforcement (Controlled Operations) Act 1997 (NSW) (“LECO Act”).

8. [8]

   In relation to the first subpoena, there remained a dispute in relation to paragraphs 6, 7, 10, 13 and 24. Paragraphs 8-9 of the first subpoena are covered by the items sought in the second subpoena. In relation to the second subpoena, there remained a dispute in relation to all six paragraphs except for 1(d), 4, 5(c) and the material sought in relation to CB CO 17/097 in paragraphs 2 and 6, which was provided to Mr Taleb’s lawyers in the course of the pre-trial hearing. [1]

The facts and issues in the trial

1. [9]

   Before turning to the specific paragraphs of the subpoenas which remain in dispute, it is necessary to relay briefly the charges against Mr Taleb and the case the prosecution seeks to present against him and, insofar as it can be known at this point, the nature of the case Mr Taleb intends to present.

2. [10]

   The accused is charged with an offence under s 119.4 of the Criminal Code (Cth) 1995. This is an offence referred to in the heading of the section as “preparations for incursions into foreign countries for the purpose of engaging in hostile activities”. It is an offence that carries a maximum penalty of life imprisonment. The “Crown Case Statement” was tendered on the application. [2] The prosecution alleged that the accused intended and prepared to travel to Syria to fight for a terrorist organisation known as the Islamic State in Syria (ISIS). The prosecution will rely on recorded telephone calls between Mr Taleb and an associate (Mr Ghazzaoui). These occurred between 8 and 23 February 2017. The calls recorded a number of comments that might be seen or interpreted to convey extreme views on matters religious and political. It is unnecessary to set out those comments here. In some calls, gunfire could be heard in the background. When questioned by Mr Ghazzaoui, Mr Taleb said he was practicing and that it was “nothing man compared to the real, it’s just a stupid game.”

3. [11]

   On 24 March 2017 an “operational plan” was created by NSW Police. [3] This plan was created under the LECO Act for the purpose of establishing controlled operation CB CO 17/097. An authority to conduct a cross border operation (CB CO 17/097) was granted the same day. [4] The authority was granted by a delegate of the Commissioner.

4. [12]

   A report concerning controlled operation CB CO 17/097 was signed on 21 December 2017. [5] The report refers to a previous controlled operation (CB CO 17/023) that was “issued” on 25 January 2017 and varied on 16 February 2017 and 24 February 2017.

5. [13]

   On 5 April 2017, Mr Taleb met with an undercover operative (“UCO”). Reading between the lines, this meeting was arranged by police pursuant to the controlled operations authorities then in existence. There were further meetings on 7 and 13 April, 3 May and 5 June 2017. In these meetings the accused showed the UCO items he had purchased and expressed his intention to fight on the front line in Syria. He was observed walking for many hours in his new boots while carrying a backpack. On 12 April 2017, he purchased various items from a Kathmandu camping equipment store.

6. [14]

   On 20 April 2017, a controlled operation authority was issued by the AFP. It nominated the same NSW Police UCO as being authorised to participate in the controlled operation. The Deputy Commissioner of the AFP who signed this Authority dated it erroneously, in handwriting, “20/7/17” but it is clear from the substance of the Authority that it was granted on 20 April 2017.

7. [15]

   Between 24 April 2017 and 15 June 2017, in the company of the UCO and otherwise, the accused did a number of things said to be in preparation to travel overseas and fight with ISIS in Syria. The prosecution will submit that conversations Mr Taleb had with the UCO confirm that this was his intention. On 15 June 2017 Mr Taleb travelled to Sydney Airport and was arrested. He was in possession of a number of items consistent with the intention asserted by the prosecution, many of which had been discussed with the UCO and were purchased over the preceding months.

8. [16]

   Queens Counsel was appropriately circumspect in relation to the case that the accused intends to run at trial. He complained that the Crown Case Statement failed adequately to summarise the interaction between the UCO and Mr Taleb. I understand it to be alleged that Mr Taleb was reluctant to be involved in any overseas incursions but was importuned or placed under pressure to express the desire to fight with ISIS. No evidence was tendered to establish this, but I am prepared to give some weight to Mr Ramage’s assertions from the bar table, at least for the purpose of determining the preliminary issues around the subpoena (that is, whether there is a legitimate forensic purpose in seeking the documents itemised in the subpoena).

9. [17]

   Reference was made to psychiatric reports although it is unclear what is to be made of these at trial. It may be that there will be evidence concerning Mr Taleb’s fitness to stand trial, or supporting a defence of mental illness, or to establish that he was susceptible to influence or importuning undertaken by the UCO. The precise use to be made of these reports, or any details of their contents, was not made clear and there was no suggestion that they were relevant to the issues to be determined on the notice of motion concerning the subpoena.

10. [18]

    It seems there will be a pre-trial argument under s 138 of the Evidence Act 1995 (NSW) as to the lawfulness of the controlled operation and the admissibility of evidence gathered during that operation. In particular, it was submitted:

11. [19]

    The accused will argue that some (or all) of the evidence obtained in the course of the police investigation was unlawfully obtained. In particular, it will be argued that the NSW controlled operation authority could not authorise either AFP Officers or NSW Police Officers to investigate a Commonwealth offence. If this argument is correct, the activities up until the grant of the Commonwealth authority may be unlawful and the evidence obtained under the NSW authorities subject to exclusion (or, to correctly state the onus under s 138, admission) under s 138 of the Evidence Act. There may also be questions around whether the arguably belated obtainment of the Commonwealth controlled operation authority legitimised the operation prospectively or retrospectively.

12. [20]

    The operational plan for CB CO 17/097 set out the objectives or aims of the operation as follows: [7]

13. [21]

    The NSW controlled operation authority related to a “cross border operation”. Section 20C of the LECO Act provides:

14. [22]

    Section 20B defines "relevant offence" as:

15. [23]

    Section 3 provides that "this jurisdiction" means New South Wales.

16. [24]

    Counsel for the Commissioner very properly acknowledged that these provisions may suggest there is some substance to an argument that the controlled operation authority went beyond the power granted to the Commissioner’s delegate by Part 3A of the LECO Act.

Relevant principles relating to subpoenas

1. [25]

   For the most part, the legal principles upon which the notice of motion is to be determined are well established. There is one matter of the law which, on the submissions of the parties, is controversial and another where the parties take different approaches to the application of settled principle to the facts of the case.

2. [26]

   A subpoena must identify with clarity and particularity the document or documents sought to be produced. The party compelled by the subpoena to produce the documents must be placed in a position where it is able readily to identify the material to be produced. The categories of documents that might be caught by the terms of the subpoena must not be so broad as to require the recipient to troll through many hundreds of records in order to determine what documents are actually caught by the subpoena. A subpoena must not be used as a substitute for discovery. If the terms of the subpoena are too wide or lacking in particularity, the subpoena may be set aside as oppressive on the basis that it represents an abuse of the Court’s process. See generally, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-574, South Pacific Hotels Services Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 at 718 and Rinehart v Rinehart [2018] NSWSC 1102 at [50]-[51].

3. [27]

   As noted in the last paragraph, a subpoena cannot be used as a substitute for discovery. Many of the decided cases, including cases of the highest authority, adopt metaphors about fishing and fishing trips to explain the prohibition. The issuing party must identify the legitimate forensic purpose for which the documents are sought. A failure to do so will mean that the subpoena will be set aside or relevant parts struck out. Establishing that the documents may be relevant to an issue in the case is not sufficient. Rather, it must be established that the documents may materially assist the party’s case. A party is not permitted to use a subpoena in order to embark on a “fishing expedition” in the hope that documents might assist their case. The “net cast” by the subpoena must not be too wide. While a party may use the Court’s subpoena power to obtain documents that will materially assist its case, it is not permissible to use that power to determine whether it has a case at all. See, for example, Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 414, R v Saleam (1989) 16 NSWLR 14 at 17-18, Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [5], [62]-[64] and Commissioner for Railways v Small at 575.

4. [28]

   While the propositions stated in the last two paragraphs apply to criminal proceedings, “a more liberal approach” is taken when a defendant in criminal proceedings seeks documents to assist or support their defence. A “lower standard” may apply. However, even in such cases, “fishing expeditions ought [not] to be encouraged”. However, while “a mere ‘fishing’ expedition” is not to be countenanced, it may be enough that it appears to be “on the cards that the documents will materially assist the defence” in a criminal case. See, for example, Alister v The Queen at 455-456 and Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 42, 61-62.

5. [29]

   In R v Mokbel (Ruling No 1) [2005] VSC 410 at [71], Gillard J made the following observations with which I have previously expressly agreed: [8]

6. [30]

   Even allowing for the more liberal approach taken when a subpoena is pressed by a defendant in criminal proceedings, the principles articulated in cases such as Alister, Saleam and Chidgey remain central to the question of the enforceability of a subpoena. In Alister, the observations of Lord Edmund-Davies in Burmah Oil Co Ltd v Bank of England were cited with approval: [9]

7. [31]

   Wilson and Dawson JJ doubted “whether a satisfactory criterion can be found which falls between the requirement that a likelihood be shown and mere hopeful anticipation.” [10]

8. [32]

   A party cannot “go behind” a warrant (such as a search warrant, a surveillance device warrant or telephone intercept warrant) in an attempt to obtain the material that was used to procure the warrant. The validity of the warrant is determined by considering whether it is valid “on its face”. An accused in a criminal trial may not mount a “collateral attack” on the validity of the warrant by seeking to examine the sufficiency of the material upon which the relevant authorised person or authority issued the warrant. This has been made clear in a number of well-known cases decided in the High Court, intermediate appellate courts and single judges of this Court: see, for example, Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 94 at 105, Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26 at 359, Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 at 80 (Toohey J), 87 (Gaudron J), 130-131 (Gummow J), Gould v DPP (Cth) [2018] NSWCCA 109; (2018) 333 FLR 352 at [42], [52], [55]-[59] and Regina (C'Wealth) v Baladjam & Ors [No 28] [2008] NSWSC 1449 at [38]-[40].

9. [33]

   It seems that the prohibition on obtaining the material is not an absolute one. The observations of Basten JA in Gould v DPP (Cth) are important. His Honour noted at [57] that “the accused expressly eschewed the issue of a subpoena, counsel submitting that he might well not be able to satisfy the test of a legitimate forensic purpose.” The case came before the Court on an appeal from a decision of the primary Judge refusing to order a temporary stay of criminal proceedings until the prosecution complied with its duty of disclosure. This was described at [60] as “procedurally” “unsound”. Basten JA referred to my judgments in R v Simmons; R v Moore (No 3) [2015] NSWSC 189 at [75]-[76] and Allen v Ewing [2017] NSWSC 1696 at [30]-[47], saying at [54]-[56]:

10. [34]

    One of the critical points made by Basten JA in Gould v DPP (Cth) was that “access to ‘affidavits, statements or other documents’ provided by the Australian Federal Police to the issuing authority could only rationally support a challenge to the issue of the warrants based on the insufficiency of the information supporting the applications.” [12] That was not the issue in Allen v Ewing. The accused in that case did not seek to establish that there was insufficient material to justify the issuing officer’s decision to issue the warrant. Rather, he attempted to establish that the police conduct was unlawful and that the unlawfulness or impropriety extended to the (belated) application for the warrant.

11. [35]

    Basten JA did not suggest, at least explicitly, that Allen v Ewing was wrongly decided and counsel for the Commissioner in the present case accepted that, in the circumstances of Allen v Ewing, the decision was correct. [13] Allen v Ewing was a somewhat unusual case in that counsel then appearing for the Commissioner (not counsel who appeared in this case) submitted that the Local Court, before which it was contended that the investigating police acted unlawfully, had the power to go behind the warrant in the proceedings at first instance while counsel for the accused submitted that there was no such power and that it was necessary to bring proceedings for declaratory relief in this Court. [14] The case came before the Supreme Court on an application by the accused for declarations that a search warrant was invalid. The Commissioner contended that declaratory relief was inappropriate and should be dismissed in the exercise of discretion because the validity of the warrant, and the lawfulness of the search, could be determined in the lower court and the administrative law proceedings were calculated to fragment the criminal process. As to the decision in Ousley, counsel for the Commissioner (in Allen v Ewing) contended that there was no clear majority in the High Court for the proposition that “no collateral attack could be made on the search warrant in the absence of proceedings of the kind brought by his summons”. [15]

12. [36]

    The facts of Allen v Ewing were that police officers entered land without a warrant and there was a respectable argument that they conducted an illegal search. Part way through the search the officers made an application for a search warrant to the Local Court. The warrant was granted, the search continued and the accused was charged with cultivating cannabis. In those circumstances, I held that it was open to the Local Court to “go behind” the warrant in order to determine both the validity of the warrant and whether the police officers acted unlawfully. There was no suggestion that the collateral attack on the warrant was to be based on the sufficiency of the material before the issuing authority. Rather, the argument was that the police were acting unlawfully when they applied for the warrant and there was a legitimate purpose in going behind the warrant because it was applied for, and granted, part way through an (arguably) illegal search.

13. [37]

    Similar considerations applied in R v Simmons; R v Moore (No 3). [16] In that case, objection was taken to a conversation recorded by a surveillance device while a suspect was in a psychiatric hospital. The police obtained a warrant under the Surveillance Devices Act 2007 (NSW). The issuing Supreme Court Justice was not aware that the target of the warrant was in a mental health facility. The police officers were cross-examined about the contents of the affidavits sworn in support of the application for the warrant and their failure to disclose that the accused was (or might have been) mentally ill and that the warrant was to be executed inside a psychiatric hospital. Both officers denied that they knew the precise location of the accused when they applied for the warrant, let alone that he was a psychiatric patient at the time. The accused argued that the failure to disclose that fact to the Judge issuing the warrant meant that the warrant was invalid. The accused bore the onus of proof on the issue and I was not satisfied that the evidence established that the officers were aware that the accused was in the psychiatric hospital when they applied for the warrant. The fact that evidence later emerged that may have impacted on the administrative decision to issue the warrant did not invalidate the warrant, and it was valid on its face. However, in obiter remarks, I rejected the more extreme submission put by the Prosecutor that, if it were established that the police perjured themselves in applying for the warrant, the trial Judge could not determine that the evidence was improperly obtained because the warrant itself was valid on its face. [17] I relied on Flanagan v Australian Federal Police [1996] FCA 16; 134 ALR 495 at 545.

14. [38]

    R v Simmons; R v Moore (No 3) was not a case about obtaining documents under subpoena. It seemed the affidavits used in the application for the warrant were disclosed to the accused without dispute or controversy and no objection was taken to the cross-examination of the police officers as to their state of mind, or what they disclosed to the judge who issued warrant. My observations were necessarily obiter and, as Basten JA pointed out in Gould v DPP at [55]:

15. [39]

    Again, R v Simmons; R v Moore (No 3) was not a case in which the accused sought to establish the insufficiency of the material upon which the surveillance device warrant was issued. Rather, an attempt was made to establish that the police acted improperly by failing to disclose important information – that the target of the electronic surveillance was in a psychiatric hospital – to the Judge who issued the warrant.

16. [40]

    In the present case, and at this point in the proceedings, the question is whether Mr Taleb has established a legitimate forensic purpose to obtain (by subpoena) the material used in support of the applications for various warrants (“search warrants, listening devices warrants and telephone intercept warrants”) [18] and/or the authorities to conduct a cross-border controlled operation. Subject to what appears below concerning the possible distinction between a warrant and a controlled operation authority, the starting point for that determination is that (i) ordinarily the Court will not order production of the material upon which a warrant or authority was issued and (ii) there is no power in a trial Court to consider the question of whether that material was sufficient to justify the grant of the warrant or authority.

17. [41]

    The area of controversy to which I referred in paragraph [25] concerns whether the prohibition on the court inspecting the material founding a warrant applies equally to a controlled operation authority. Queens Counsel for Mr Taleb submitted that there were important distinctions that meant that the rules, if they were applicable at all, were at least relaxed.

18. [42]

    The most critical point of distinction is that warrants are generally issued by an independent authority, usually a judicial officer, who exercises an administrative function separate from, and independent of, the investigators applying for the warrant. For example, in the case of a surveillance device warrant, the issuing authority is generally a Supreme Court judge. Telephone intercept warrants are issued by authorised officers of the Administrative Appeals Tribunal and search warrants are issued by the Local Court or, in the case of covert search warrants, the Supreme Court.

19. [43]

    A second point of distinction is that such warrants are issued upon the issuing authority, authorised officer or judicial officer being satisfied, usually based on affidavit evidence, of various statutory requirements or pre-conditions. By contrast, a controlled operation authority may be granted by a senior officer of the same investigating body (in this case, the NSW Police). Section 5 of the LECO Act does not require the material to be sworn or affirmed. All that is required is that the application be in writing and signed by the applicant.

20. [44]

    Counsel for the Commissioner submitted that there was no relevant distinction although he acknowledged that there was no direct authority in which the point had been determined. He noted, correctly, that a judge or magistrate issuing a warrant was not undertaking a judicial function but rather an administrative one. In this regard, the documents sought by the second subpoena (and parts of the first) are indistinguishable from those that might be sought by a party seeking to go behind a warrant.

21. [45]

    The most potent recent authority in the area is the decision of Basten JA in Gould v DPP (Cth) to which I have already referred. However, the present issue did not arise in that case because it involved an attempt to force disclosure of “affidavits, statements or other documents” used to support an application for a telephone intercept warrant under the Telecommunications (Interceptions and Access) Act 1979 (Cth).

22. [46]

    In Chidgey, the Court of Criminal Appeal considered a matter where a subpoena was calculated to obtain documents that formed the basis of an application for a controlled operation authority under the LECO Act. The present issue does not appear to have been raised by either party. The Court did not make reference to the line of High Court authorities including Murphy, Ousley and Grollo. Rather, the Court held that the Magistrate erred in determining that the accused had a legitimate forensic purpose “so that they can check that there has been compliance with form in order for the Chief Executive Officer to be … satisfied that [a controlled operations authority should be granted]” [19] (emphasis in the original). The Court described the exercise as a fishing expedition and held that no legitimate forensic purpose was established. There was nothing in the evidence to suggest that there was any relevant non-compliance with form and no evidence to suggest any impropriety or unlawfulness in the obtaining of the authority. The documents were not sought to establish a case of impropriety but, rather, to see whether there was such a case.

23. [47]

    Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 was a case in which the High Court held that a controlled operation authority issued under the LECO Act was invalid. The invalidity arose as a result of the terms of s 15M of the Crimes Act 1914 (Cth) which required the Commissioner granting the certificate to be “reasonably satisfied” that “any illicit goods involved in the operation will be under the control of an Australian law enforcement officer” [20] and the operation would not “seriously endanger the health or safety of any person” [21] . The present issue was not determined because of the course that the litigation took. The Commissioner resisted a subpoena during committal proceedings and, as a result, the applicant sought declaratory relief in the Supreme Court. As to this, the High Court made the following observations at 132-133:

24. [48]

    I have emboldened the paragraphs that have the most significance to the present issue. The decision in Gedeon neither supports nor refutes the argument made by Queens Counsel for Mr Taleb. It recognises the power of a trial court to consider the lawfulness of conduct authorised by a controlled operations authority and to determine, on a collateral attack, the validity of the authority itself (at least where it is submitted that the issue or the warrant was ultra vires). However, the decision does not support the proposition that a trial judge can entertain an argument that the authority is invalid because of the insufficiency of the material upon which it was granted. In Gedeon, the invalidity arose because “the issue of the authorities was an administrative act beyond the statutory power” [22] of the Commissioner. That is, the authorities purported to authorise conduct that was effectively proscribed by the LECO Act and the “grant of the authority was beyond power”. [23]

25. [49]

    The final thing to say about Gedeon is that the administrative law case at first instance was determined by reference to agreed facts. [24] There appears to have been no issue arising from any attempt to obtain the material upon which the controlled operation authorities was issued. When the matter was returned to the trial court, after the High Court declared the authorities to be invalid, there was extensive examination on the voir dire of that material and the states of mind of the investigators, and the Commissioner who issued the authorities. [25] That examination was not calculated to determine the sufficiency of the material to support the authorities. Rather, it related to the facts relevant to the question of whether the illegally obtained evidence should be admitted pursuant to the discretion in s 138 of the Evidence Act.

26. [50]

    Whether or not there is any real distinction between the principles applying to warrants and those applying to a controlled operation authority, the fundamental issue remains whether the accused has established a legitimate forensic purpose in seeking production of the material. There is no such purpose in an attempt to discover material that will support an argument that there was insufficient material upon which to grant the authority. There may be a legitimate forensic purpose in uncovering material that is relevant to the validity of the certificate (beyond the sufficiency of the material upon which it was granted) and the lawfulness of the operation including the propriety of the application for the authority. However, there must be some basis or foundation upon which the material is sought. A party is not entitled to seek such material to discover whether there is any material that might support a case of impropriety or illegality.

Paragraphs of the subpoenas where the disputes between the parties were resolved and paragraphs where there remains a dispute

1. [51]

   In relation to the first subpoena, the parties reached agreement in relation to a number of the paragraphs in the schedule. Those paragraphs, and the basis of the resolution relating to them, is set out in the table and is as follows:

2. [52]

   There remained a dispute in relation to paragraphs 6, 7, 8, 9, 10 and 13 of the schedule to the first subpoena.

3. [53]

   The agreements reached in relation to the second subpoena were as follows:

4. [54]

   This left in dispute paragraphs 1(a), (b) and (c), paragraphs 2 and 6 insofar as it related to CB CO 17/023 (and variations v1 and v2), paragraph 3 and paragraph 5(a) and (b) of the second subpoena.

Items sought by paragraphs 6 and 7 of the first subpoena

1. [55]

   Paragraphs 6 and 7 of the subpoena seek:

2. [56]

   Unlike other paragraphs in the first subpoena (for example, 10, 11 and 12), there was no correspondence emanating from Mr Taleb’s solicitor narrowing the scope of the subpoena. No legitimate forensic purpose was identified that would justify compelling production of records not relevant to the present investigation. There is no reason to believe that, nor is it “on the cards” that, documents “in respect of” or “concerning” Mr Taleb not relating to the investigation leading to the current charges would assist Mr Taleb in his defence or have relevance to the pre-trial issues concerning the lawfulness of the police investigation. Further, the breadth of the subpoena has the potential to cause oppression because of the use of the words “in respect of” and “concerning”. On one view this would compel production of any document in which Mr Taleb is mentioned no matter how far removed from the facts of the present case.

3. [57]

   Paragraphs 6 and 7 of the schedule to the first subpoena will be struck out.

Paragraphs 8 and 9 of the first subpoena

1. [58]

   Paragraphs 8 and 9 of the first subpoena seek production of the applications and authorities under controlled operation CB CO 17/023 and the variations numbers 17/023 v1 and 17/023 v2. It will be necessary to return to the fundamental debate between the parties about the capacity of a trial court to compel production of such material. However, the same material is sought under paragraphs 2 and 3 of the second subpoena although those paragraphs are drafted with greater clarity and particularity.

2. [59]

   As a matter of convenience, in view of the repetition between the two subpoenas and the greater clarity in the terms of the second subpoena, I will strike out paragraphs 8 and 9 of the first subpoena.

Documents relating to controlled operation CB CO 17/023, excluding the application and associated documents

1. [60]

   The authority CB CO 17/123 authorised the controlled operation that commenced on 25 January 2017. The authority was renewed twice.

2. [61]

   Initially, the Commissioner took the approach that there was no legitimate forensic purpose in seeking documents relating to this operation because the prosecution brief did not include any material gathered prior to the granting of controlled operation authority CB CO 17/097 (issued on 24 March 2017). However, the report for the latter operation was produced in the course of the argument and it included reference to the earlier controlled operation(s) and said they were “with respect to the same criminal activity/corrupt conduct”. In those circumstances, there is a legitimate forensic purpose in the accused having access to the material. It is not a “fishing expedition” because it is known that there was an investigation into his activities for about two months before controlled operation CB CO 17/097 commenced. It is reasonable to suppose that the earlier investigation may have disclosed evidence going to his activities and motivations. In view of the foreshadowed attack on the lawfulness of the subsequent operation, and the suggestion that Mr Taleb was reluctant and subject to pressure to become involved in an overseas incursion, it is on the cards that this material may assist Mr Taleb in his defence.

3. [62]

   For this reason, and in the course of the two weeks over which the argument intermittently proceeded, the Commissioner decided to produce (to the Court) some of the documents relevant to CB CO 17/023. [26] Redacted versions were also produced. [27] These documents contain material that may be (or will be) subject to claims for public interest immunity. Accordingly, they were returned to counsel for the Commissioner so that their security can be maintained by the CSO.

4. [63]

   In relation to CB CO 17/023, there was some duplication between the material sought by the first subpoena and the documents sought under the second subpoena. Legitimate complaint was made about the vagueness of the terms of the first subpoena. Paragraph 13 of the schedule to the first subpoena seeks:

5. [64]

   It is unclear whether this paragraph purports to be limited to the documents required to be created under the provisions of the LECO Act. If not, its scope is potentially very wide ranging and the terms have a capacity to cause oppression. The schedule to the second subpoena seeks “the plan for the controlled operation [17/023]” and “the report … pursuant to s 15 of the LECO Act.” In context, “the plan” must be a reference to the plan required by s 5(2A)(a) of the LECO Act.

6. [65]

   I propose to strike out paragraph 13 of the first subpoena but to order production of the plan and report relating to CB CO 17/023 (and its variations) pursuant to the terms of paragraphs 1(a) and 6 of the second subpoena.

Paragraph 10 of the first subpoena

1. [66]

   Paragraph 10 of the first subpoena calls for production of “a copy of the application to conduct a cross border controlled operation (CB CO 17/097)”. Similar, but more specific, paragraphs were contained in the second subpoena but these were not pressed presumably because certain documents were produced and paragraph 10 of the first subpoena covered any material not produced under the second subpoena.

2. [67]

   The controlled operations certificate is Ex VD B and the plan was produced in the course of the hearing and became Ex VD 3. The plan discloses that the aim or objective of the operation was to gather evidence and information relating to an offence under s 310J of the Crimes Act 1900 (NSW) (Membership of terrorist organisation) and an offence under s 119.4 of the Criminal Code Act (Cth) (my emphasis). A “relevant offence” for the purpose of such a cross-border controlled operation does not encompass the latter offence. Relevant offences are restricted to offences “against the law of this jurisdiction”. [28] This is the foundation of Mr Taleb’s contention that the NSW Police were acting unlawfully. In light of this evidence, I do not accept that Mr Taleb is on a “fishing expedition” when he seeks production of the application that led to the granting of the controlled operations certificate. As I understand it, this consideration is at the heart of the proposed submission that the NSW Police acted unlawfully in investigating a Commonwealth terrorism type offence.

3. [68]

   The Commissioner submitted that, insofar as the asserted unlawfulness rested on the NSW Police investigating a Commonwealth offence, this much was patent on the face of the operational plan (Ex VD-3). Accordingly, the defence did not need further information and had no legitimate purpose in seeking the application for the authority. While that submission is correct insofar as it goes, the bare fact that a Commonwealth offence was being investigated may be insufficient for the accused properly to pursue his argument that the evidence gathered under the controlled operation CB CO 17/097 should be excluded under s 138 of the Evidence Act. It is “on the cards” that the application may contain information relevant to a number of the criteria in s 138(3) including the gravity of any impropriety or contravention of the legislative scheme, whether any such contravention was deliberate or reckless, and the difficulty (if any) of obtaining the evidence without the impropriety or contravention.

4. [69]

   For those reasons, and subject to any claim for public interest immunity, I will order the production of the application for controlled operation certificate CB CO 17/097.

Documents relating to the applications for controlled operation authorities CB CO 17/023, CB CO 17/023 v1 and CB CO 17/023 v2

1. [70]

   Different considerations apply to the documents that led to the grant of the controlled operation authorities that pre-dated controlled operation CB CO 17/097. As I have said, the report in relation to CB CO 17/097 specifically identified an earlier authority as CB CO 17/023. It came into existence on 25 January 2017 and was varied on 16 February 2017 and 24 February 2017. I will order production of the plan and report relating to this earlier controlled operation because it is on the cards that those documents may contain evidence relevant to Mr Taleb’s defence.

2. [71]

   However, I was informed that the prosecution does not intend to adduce any evidence that was gathered as a result of this earlier operation. Accordingly, the legitimate forensic purpose that exists in relation to the application for CB CO 17/097 does not exist in relation to these earlier controlled operations. That is, there can be no suggestion that the application or associated documents will assist the accused in establishing that the evidence gathered should be excluded because it was obtained as a result of impropriety or in contravention of Australian law.

3. [72]

   Accordingly, I will set aside the second subpoena insofar as it seeks the application or associated documents for controlled operations CB CO 17/023, CB CO 17/023 v1 and CB CO 17/013 v2.

4. [73]

   For the foregoing reasons, I make the following orders:

   1. (1)

      Paragraphs 6, 7, 8, 9 and 13 of the schedule to the first subpoena are struck out.

   2. (2)

      Subject to a claim of public interest immunity, order production of the application for controlled operation authority CB CO 17/097.

   3. (3)

      Subject to a claim of public interest immunity, order production of the authorities, operational plans, and reports created pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW) relating to controlled operation CB CO 17/023, CB CO 17/023 v1 and CB CO 17/023 v2.

   4. (4)

      Subject to order (3) requiring production of the authorities, operational plans and reports, set aside the second subpoena insofar as it seeks the application and associated documents relating to controlled operation authorities CB CO 17/023, CB CO 17/023 v1 and CB CO 17/023 v2.