R v Abdaly; R v Hosseinishoja (No 1)

1. [1]

   By notice of motion filed 12 October 2022, the accused Seyed Hosseinishoja sought an order that a subpoena issued at the request of the Director of Public Prosecutions (DPP or the Director) and directed to the Department of Home Affairs be set aside. The issue was debated on Friday, 28 October 2022 at the end of the fourth day of a chaotic pre-trial hearing in a trial of three men charged with murder. [1] On the second day of the pre-trial hearing, one of those men (Mr Abuzar Sultani) pleaded guilty to murder and his case was adjourned until 21 November 2022 for mention or sentencing hearing, depending on the state of the trial proceedings. At the conclusion of the oral arguments, I dismissed the notice of motion and refused to set aside the subpoena. The matter was adjourned until today (Monday, 31 October 2022) for argument over whether access will be granted to the material produced.

2. [2]

   I gave very brief ex tempore reasons for dismissing the notice of motion on Friday afternoon and, immediately after the Court adjourned, my Associate wrote to the parties indicating that, in deference to the submissions made on the issue and the brevity of the reasons, I proposed to provide more comprehensive reasons unless either party objected on the basis that the time for providing reasons was spent. Neither party has indicated an objection and I now publish my reasons for refusing the relief sought by Mr Hosseinishoja.

3. [3]

   The notice of motion was supported by an affidavit of Mr Hosseinishoja’s solicitor and written submissions were filed by Senior Counsel who is briefed on the trial but who has not been available for most of the pre-trial hearing and did not appear on the oral hearing of the present application. The solicitor with carriage of the matter for the DPP also provided an affidavit. Both of those affidavits were read and a heavily redacted document from the NSW Crime Commission (the Crime Commission) was tendered as Ex VD 6.

4. [4]

   The subpoena issued by the DPP sought the following:

Standing

1. [5]

   Counsel for the DPP questioned Mr Hosseinishoja’s “standing” to bring the notice of motion. [2] He was then “remind[ed]” [3] (by counsel for the Commissioner of Police) that the accused has standing to argue against access being granted and that both issues concerned whether the Director had “a legitimate forensic purpose” in issuing the subpoena. On that basis, the Prosecutor submitted that both issues could be dealt with together. I doubt the latter proposition is correct; if the subpoena should be set aside, the party to whom it is directed is not required to produce the document and the Court is not called upon to consider the material to determine whether, if objection is taken, access should be granted, and to whom and on what terms.

2. [6]

   Counsel for the accused submitted the accused “clearly has standing” and relied on r 33.1(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which is in the following terms:

3. [7]

   The Prosecutor then said “we can move on”. [4] When asked whether this meant that the Director conceded the issue of standing, he replied:

4. [8]

   Despite the inscrutable nature of this response, I proceeded on the basis that Mr Hosseinishoja had standing to seek to have the subpoena set aside. There is no doubt that he does so. Part 75, r 3(g) of the Supreme Court Rules 1970 (NSW), provides that the provisions of Part 33 of the UCPR apply to criminal proceedings (that is, proceedings under Schedule 3 of the Supreme Court Act 1970 (NSW)). The accused here has standing on two bases under rule 33.1(a) of the UCPR. First, he is a party to the proceedings in which the subpoena was issued. Secondly, the information sought by the subpoena relates to a download of data and information from his telephone. That makes him a person “with sufficient interest” to make the application. The question concerning Mr Hosseinishoja’s standing was without substance.

The submissions on the issue of forensic purpose

1. [9]

   In written submissions on behalf of Mr Hosseinishoja, Mr Brady SC relied on authorities such as Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 and submitted there was a “two stage test” requiring the DPP (1) to identify the legitimate forensic purpose “expressly and precisely” [6] and (2) to establish that it is “on the cards” that the documents will materially assist their case. Borrowing from the language of Chidgey, it was submitted that “mere relevance” was not enough and that there was no legitimate forensic purpose if “all the party is doing is trying to get hold of documents to see whether they may assist”. In oral submissions, that which was inferred in the written submissions was squarely put: the accused asserted the Prosecutor was on a “fishing expedition.”

2. [10]

   By reference to the affidavit evidence, counsel for the Director explained the way the information had come to his instructing solicitor’s attention and argued the information sought was likely to assist one or both of the parties to the criminal proceedings in establishing the use that had been made of the telephone at a relevant period of time. While the download occurred in 2016, which is some years after the alleged offence, it is likely the information on the device may go back to the time of the alleged murder. In any event, one dispute between the parties concerns the relationship and criminal association between Mr Hosseinishoja and other members of the Rebels Motor Cycle Gang (MCG), Mr Sultani and his criminal group. The Prosecutor is seeking to establish that the association continues well after the murder.

3. [11]

   The following exchanged occurred at the conclusion of the Prosecutor’s submissions:

4. [12]

   That submission led to the following response by Mr Lange (who appeared in the absence of senior counsel for Mr Hosseinishoja):

Decision and reasons

1. [13]

   At the conclusion of the argument, I said:

2. [14]

   In a recent decision of the Court of Appeal, Bell P (as the Chief Justice then was) emphasised that a decision to set aside a subpoena involves a determination that the subpoena “can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [60]. In the same paragraph his Honour “eschewed” the language of “tests” employed in some of the earlier authorities. His Honour urged caution in the application of some of the language employed, for example, in Chidgey:

3. [15]

   His Honour said at [80]:

4. [16]

   The then President observed (also at [80]) that, “at least in civil cases”, the converse is not necessarily true. That is:

5. [17]

   Some circumspection must be employed in applying these observations to a criminal case and Brereton JA noted at [91] that it was “unnecessary to resolve whether the same rule applies in criminal cases”. His Honour went on to say:

6. [18]

   The President had earlier identified and discussed relevant distinctions between civil and criminal proceeding in some detail: see, for example, at [33], [72], [74]-[79].

7. [19]

   It was not necessary to decide the extent to which the judgments in Blacktown City Council may impact on the present dispute and I did not raise the issue with counsel. I need say no more about the matter, or dwell further on the distinctions between civil and criminal proceedings and the impact those distinctions may have when a party seeks to have a subpoena set aside. Single Judges of this Court have considered the matter but found it unnecessary to reach any firm conclusion: see Waters v Secretary of the Attorney-General’s Department (Cth) [2021] NSWCCA 193 at [26]-[27] (Davies J) and Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94 at [37]-[47] (N Adams J).

8. [20]

   Whatever approach be taken, the subpoena issued in the present case did not amount to an abuse of the Court’s process and the Director had a legitimate forensic purpose in compelling production of the documents.

9. [21]

   The Director became aware of the existence of the download or extraction from the telephone when a disclosure was made by the Crime Commission on or around 7 September 2022. Why that disclosure was not made earlier is not known. The updated disclosure certificate was served on the accuseds’ lawyers on 13 September 2022.

10. [22]

    Part of the dispute between the parties at the trial is the nature and extent of the associations between Mr Hosseinishoja, the co-accused Mr Sultani (who has now pleaded guilty), and a number of other men connected with the Rebels MCG and Mr Sultani’s criminal syndicate. There is a dispute, of which the Court was not made aware until the last few days, concerning the admissibility of some of the evidence upon which the prosecution intends to rely. That evidence relates to “criminal associations” at the time and some years after the killing to which the present trial relates.

11. [23]

    Data and information extracted from a number of telephones forms part of the evidence relevant to these associations. It is possible that the information extracted from Mr Hosseinishoja’s telephone will provide evidence relevant to the associations he had with Mr Sultani and with other members of the group. That evidence may only be proximate to the time of the extraction (2016) but that appears to fall within the time period that the prosecution seeks to establish relevant associations (although the admissibility of that evidence is still to be determined). Further, it is not speculation (or “fishing”) to proceed on the basis that the extraction may contain communications or other evidence going back to the time of the killing.

12. [24]

    The fact that the DPP does not know the precise contents of the extraction does not deny its attempt to obtain the evidence of its legitimate forensic purpose. If such an approach were taken to the issue, most subpoenas issued by an accused person for the details of a material witness’s criminal record might be held to lack a legitimate forensic purpose. [9]

13. [25]

    I also considered, but gave very little weight to, the appropriately diffident assessment made by the Crime Commission that the evidence “may be relevant for the prosecution and/or defence [in the criminal trial proceedings]”. I did not accept the suggestion (by the Prosecutor) that this somehow established a legitimate forensic purpose. Nor did I accept the suggestion by counsel for the accused that the diffidence shown by the Crime Commission, which was based on its incomplete knowledge of the prosecution case, denied the subpoena of a legitimate forensic purpose. It was not for the Crime Commission to decide the relevance of the material. Rather, it was concerned to make disclosure so that the DPP could comply with its own obligations of disclosure to the accused men. The Crime Commission was neither seized of all of the issues between the parties to the criminal proceedings nor subject to the Prosecutor’s disclosure obligations.

14. [26]

    It was for the DPP to establish that there was a legitimate forensic purpose in its issue of the subpoena. I was satisfied it had done so despite the peculiar and unusually formulated submission reproduced above at [11]. I was in no doubt that it was on the cards that the evidence of the extraction of the data on Mr Hosseinishoja’s telephone in 2016 might contain material relevant to the issues in the trial and capable of assisting the prosecution (or the defence) case on those issues. Whether the evidence is, or would be held to be, admissible is another issue, but that does not impact on the forensic purpose for which the material is sought.

15. [27]

    Those are the somewhat more complete reasons that I dismissed the motion to set aside the subpoena.