R v Alvarez [No 2][2024] QCA 109

[2024] QCA 109

COURT OF APPEAL

BOND JA

CA No 129 of 2016

SC No 409 of 2014

THE KING

v

ALVAREZ, Juan Pablo Ocampo Applicant

BRISBANE

FRIDAY, 7 JUNE 2024

JUDGMENT

BOND JA:  Following pleas of guilty in the Supreme Court of Queensland, Mr Alvarez, the present applicant, was convicted of one offence of conspiracy to import a commercial quantity of a border-controlled drug contrary to sections 307.1 and 11.5 of the Criminal Code (Cth) and one offence of conspiracy to traffic a commercial quantity of the controlled drug contrary to sections 302.2(1) and 11.5(1) of the Criminal Code (Cth).

He was sentenced to a term of 22 years imprisonment with a fixed non-parole period of 14 years and eight months imprisonment.  A pre-sentence declaration of 1,788 days was made as time served under the sentence.  Mr Alvarez brought an unsuccessful appeal against sentence (see R v Ocampo Alvarez [2018] QCA 162).  The ground of appeal was that his sentence was manifestly excessive.

It is evident from the report of the latter case that the sentencing judge in the Court below had to determine certain disputed questions of fact,  namely in relation to his involvement in the conspiracies:

1. whether he knew the size of the importation;
2. what remuneration he was expecting to receive;
3. whether he was the subject of threats and intimidation to secure and to retain his involvement in the enterprise; and
4. the proper characterisation of his role.

The applicant filed an application in this Court seeking the following order:

“The ex-parte Applicant seeks an Order of this Court to be relieved of any obligations owed to this Court in its exercise of federal jurisdiction, upon all materials (restricted or otherwise) entered into the Queensland Supreme Court record of evidence pertaining to indictment 409/2014 and the Court of Criminal Appeal pertaining to the application CA 129/2016 and any Orders made upon that material (restricted or otherwise) entered into the record of evidence which resulted in the judgment R v Ocampo Alvarez [2018] QCA 162.”

The applicant’s reasons for seeking such an order are expressed in his affidavit before me.  He says that he seeks to be removed of any obligations owed to the courts of Queensland for the purpose of utilising the materials described in the order because he wants to use that material to further matters in the jurisdiction of the Federal Courts, he says, in the interests of the administration of justice.

He complains of what he says was unlawful conduct in relation to the means by which he was investigated for the offences which were eventually dealt with in the Supreme Court.  He says in his affidavit that he believes that there was a reckless disregard of mandatory statutory protection mechanisms, fraud and acting ultra vires which amounted to a grossly unlawful interrogation which was concealed or withheld from the courts by those purporting to uphold the law.  Amongst other agencies said to have been involved in the conduct of which he complains are the Australian Crimes Commission (ACC), now known as the Australian Criminal Intelligence Commission (ACIC) and the Commonwealth Director of Public Prosecutions (CDPP).  Obviously, nothing that I have recorded should be taken as my expressing a view one way or the other as to whether there is any merit in Mr Alvarez’s complaints.

The applicant served the application on the CDPP.  In light of the generality with which it was framed, the Australia Government Solicitor who represented ACIC chose not to seek to intervene but communicated to the court and Mr Alvarez that they were ready so to do in the event that the relief sought was made more particular.  Prior to the hearing today, the Australian Government Solicitor provided to Mr Alvarez an affidavit of Timothy Michael Foley which, amongst other things, identified a particular response made on behalf of the then ACC to a subpoena which was responded to in relation to the sentencing proceeding in the Queensland Supreme Court.  I will come back to what occurred in this court consequent upon Mr Alvarez considering that affidavit.

The applicant bases his application for relief from what he refers to as “the Harman obligation”.  Applications of this nature in the courts of Australia should not proceed by reference to the law stated in the case referred to by that name, namely Harman v Secretary of State for the Home Department [1983] 1 AC 280.  The law in Australia is framed in a slightly different manner.  The law is, as I explained in Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136 at [46] (footnotes in original):

“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party receiving the disclosure is subject to a legal obligation not to use it for a purpose unrelated to the conduct of the proceeding in which it was obtained, unless it is received into evidence: Hearne v Street (2008) 235 CLR 125, per Hayne, Heydon and Crennan JJ.^[1]  It is common to say that the recipient of the documents is subject to “the implied undertaking”.  However, the obligation is better regarded as a substantive legal obligation to the court, which arises by operation of law by virtue of the circumstances under which the material was generated or received.^[2]  The obligation so arising also binds third parties if they know of the origins of the material in legal proceedings.^[3]”

It is evident from the brief recitation of the nature of the proceedings in the Queensland Supreme Court and in the Queensland Court of Appeal that many documents inevitably were dealt with in the sentencing court and in the Court of Appeal which will have made their way into evidence.  They will not be the subject of any implied obligation and mechanisms exist under the Criminal Practice Rules 1999 (Qld) to search for and obtain such documents.  There is no occasion to give any order relieving from the implied obligation in relation to such documents.  Indeed, that is one reason why I would not accede to an order expressed in the general way in which the order was expressed in the application as filed and I conveyed my preliminary view to that effect to the applicant during oral argument today.  That led to the applicant referring to the affidavit which he had obtained from the Australian Government Solicitor on behalf of ACIC and indicating an intention to narrow his application so it referred only to a particular document namely the response of ACIC to a subpoena issued in relation to the sentencing proceeding.  That document is sufficiently described as exhibit TMF-3 to the affidavit of Mr Foley filed by leave today.

His expression of an intention to amend the application led to an application advanced by the Australian Government Solicitor on behalf of ACIC to be heard in relation to the application.  I acceded to that application.  It was not opposed by the present applicant.  I gave the applicant leave to amend his application so that it was expressed in these terms:

“The ex parte applicant seeks an order of this court to be relieved of any implied obligation owed to this court in its exercise of federal jurisdiction in relation to the document which is exhibit TMF-3 to the affidavit of Timothy Michael Foley filed by leave today.”

It is not clear on the evidence that the document which is TMF-3 found its way into evidence in the sentencing court.  Counsel who appeared on behalf of the CDPP informed me that it did not.

Accordingly I propose to act on the basis that the document which is exhibit TMF-3 was the subject of the implied obligation to which I have referred.  In the course of an exchange with Mr Kerr who represented the ACIC it became clear that the ACIC would not resist an order relieving Mr Alvarez of the implied obligation so long as that relief was solely for the purpose of preparing for anticipated proceedings by Mr Alvarez in the Federal Court of Australia and use in such proceedings if they are commenced.  Mr Alvarez was happy with an order so conditioned.  Accordingly, it does seem to me that is appropriate to make such an order.

The order I make is the applicant is relieved from the implied obligation owed to the Supreme Court of Queensland in relation to exhibit TMF-3 to the affidavit of Timothy Michael Foley filed by leave today solely for the purpose of Mr Alvarez’s preparing for anticipated proceedings by him in the Federal Court of Australia and use in such proceedings if they are commenced.