R v Moti[2009] QSC 293

SUPREME COURT OF QUEENSLAND

1. Julian Ronald Moti is the subject of an indictment in which he is charged with seven counts of engaging in sexual intercourse with a person who was under the age of 16.  It is alleged that these offences took place outside Australia between 1 May and 13 October 1997.  His trial is set down to commence on 2 November this year.  But, before that, there will be a hearing of an application brought by him for a permanent stay of the proceedings.  
2. Mr Moti has caused subpoenas for documents to issue to Justine Braithwaite of the Department of Foreign Affairs and Trade (“the DFAT subpoena”) and the Commissioner of the Australian Federal Police (“the AFP subpoena”).  He has also brought an application in which he seeks a direction under section 590AJ of the Criminal Code 1899 that the “prosecution” disclose certain documents. That application was directed to both the Commonwealth Director of Public Prosecution and to the Australian Federal Police.  All the documents sought are for the purposes of the stay application.  
3. The recipients of the subpoenas seek to have them set aside. The respondents to the application oppose the direction being sought.

 The subpoenas

4. In order to determine the validity of these subpoenas it is necessary to consider them in light of the grounds relied on in the stay application. The basis of that application is the allegation that the prosecution of the charges is an abuse of process as it brings the administration of justice into disrepute and because it is vexatious and oppressive to the accused.  
5. The grounds which are said to support this central allegation on the application for a stay are:

• Double jeopardy arising from a previous prosecution of the accused in Vanuatu;
• Misuse of the “Child Sex Tourism” Legislation, namely Part IIIA of the Crimes Act 1914 (Commonwealth);
• The investigation of the alleged offences only occurred because of political pressure exerted by the Australian High Commissioner to the Solomon Islands;
• The delay in investigation and prosecution which has its roots in the highly unusual genesis of the prosecution;
• The illegal removal of the accused from the Solomon Island with the facilitation of the Commonwealth;
• The unlawful arrest of the accused in Brisbane; and
• Payments to witnesses by entities associated with the prosecution.

6. The accused has caused subpoenas to issue to DFAT and AFP and other parties on an earlier occasion.  All of those subpoenas were set aside by Daubney J on 12 June 2009.
7. The accused submits that the DFAT subpoena and the AFP subpoena have been redrawn in light of that decision and are now consistent with the tests to be applied.
8. The principles to be applied in determining applications to set aside subpoenas have been the subject of recent consideration.  Mr Doyle (for the accused) referred me to a number of single Judge decisions – Ragg v Magistrates Court of Victoria [2008] VSC 1, Felice v County Court of Victoria [2006] VSC 12, DPP v Selway (2007) 16 VR 508 and Shipley v Masu Financial Management (2008) 68 ACSR 4000.  Those cases considered, or reconsidered, the test set down in Alister v R (1983) 154 CLR 404.  I am, of course, bound by the decision in Alister so far as it is relevant to these circumstances. 
9. Of considerable assistance in this matter is the decision of the Court of Criminal Appeal of New South Wales in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536.  The correct test is set out in the reasons of Beazley JA:

“[64] The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:

“The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.”

10. Her Honour went onto to explain the meaning of the term “on the cards”.  

“[65] The genesis of the expression ‘on the cards’ is to be found in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414. In Alister, the High Court was concerned with a subpoena issued to the Australian Security Intelligence Organisation (ASIO) in the course of a criminal trial for conspiracy to murder and attempt to murder. The police (acting upon information provided by an informant) had been able to foil the conspiracy, which involved an intention to murder by exploding a bomb near the intended victim’s home. The case was notorious – the accused members of Ananda Marga had been suspected of placing a bomb outside the Hilton Hotel in Sydney, in an attempt to kill the Prime Minister of India. The subpoena had required ASIO to produce all files and documents relating to the informant in respect of ASIO’s investigation of Ananda Marga. The Attorney General for the Commonwealth objected to the production on security-based public interest grounds. 

[66]Gibbs CJ, at 414, noted that the applicants who had sought the production of the documents were not able to state whether or not the documents existed, or if they did, whether they were likely to assist the applicant’s case. His Honour observed, however, that it was not unreasonable to believe that documents were in existence and that ‘one would guess that any reports ... would be adverse to the applicants’. His Honour referred to the conflicting position in England as to the circumstances in which a court would inspect documents in a case where public interest immunity was claimed. It is necessary to set out that passage in full, in order to understand the context in which his Honour introduced the terms ‘on the cards’. He said:

‘Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.’ (Emphasis added) (Citations omitted)

[67]It is both important and instructive to understand the manner in which Gibbs CJ saw this test operating at a practical level. He said, as a continuation of the passage just quoted:

‘If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.’ 

[68]The approach of Gibbs CJ in Alister has been consistently adopted and applied in this State. An early, useful example is Principal Registrar of the Supreme Court v Tastan. Barr AJ (as his Honour then was) said, at 499, that there will be no legitimate forensic purpose if, ‘all the party is doing is trying to get hold of the documents to see whether they may assist him in his case’: see The Commissioner for Railways v Small. His Honour noted that there was nothing in the case before him that made it appear to be “on the cards” that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents ‘to see whether he had a [defence]’. 

[69]Hunt J (Carruthers and Grove JJ agreeing) applied the ‘on the cards’ test in an earlier Saleam case: R v Saleam (1989) 16 NSWLR 14, and permitted access to documents in circumstances that were redolent of the example given by Gibbs J in Alister. The subpoena in this case had been issued during the appeal process. It was argued that there was material in the subpoenaed material that would indicate that there had been a miscarriage of justice at trial. The accused had been told by a police officer seconded to the Ombudsman’s office that ‘that there were discrepancies in the police case’ at the trial. It was not disputed that such a statement had been made. The accused claimed that the subpoenaed material would be relevant to impugn the credit of the principal Crown witness at trial. The Court allowed access to the documents on the basis that it was ‘at least ‘on the cards’ that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents’.”

11. The principles that govern the test of legitimate forensic purpose were also considered in Chidgey.  Justice Beazley set out the following:

“[59] It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181:

‘...the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.’ (Emphasis added)

[60]His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, ‘mere relevance is not enough’. His Honour continued:

‘In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing ‘that there are reasonable grounds for’ the ‘suspicion or belief’ referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say ‘the document is relevant because, if it does anything, it establishes the case against me’. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: ‘I wish to see the document to see if it may assist my case.’ That, in my opinion, is not sufficient.’

[61]Senior counsel for the respondent submitted that the judgment of Mahoney AP did not represent a majority statement on this issue, nor had it been endorsed or applied in later decisions. 

[62]Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to ‘mere relevance’. However, each applied a test of ‘forensic purpose’ and the need for it to be ‘on the cards’ that the documents would ‘materially assist the accused’. Accordingly, the second element of the ‘test’, that is, that it must be ‘on the cards’ that documents would materially assist the case, subsumes in it the notion that ‘mere relevance’ is insufficient. Documents may be relevant even if they do not assist a party’s case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court.

[63]But in any event (and contrary to the respondent’s submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6].”

12. Mr O'Gorman SC (who appeared with Mr Del Villar for the DFAT and AFP interests) summarised the grounds upon which they sought to set aside the subpoenas as:

1. the accused has not identified any legitimate forensic purpose to support the subpoenas,
2. the accused has not indicated what prejudice he might suffer should the trial continue,
3. the accused has not disclosed why it is “on the cards” that there may be documents which would materially assist his case for a stay,
4. the subpoenas are oppressive on their face.

The DFAT subpoena 

13. The documents sought in this subpoena are set out in Schedule A to these reasons. 
14. The purpose identified by Mr Doyle as the “legitimate forensic purpose” for each of the classes of documents sought in that subpoena is to establish that the prosecution is politically motivated or otherwise an abuse of process. The basis for this submission is that one can draw from the documents already disclosed that the purpose of the prosecution was to prevent Mr Moti becoming Attorney-General of Solomon Islands.
15. I turn to the classes of documents referred to in the DFAT subpoena. In one class, the accused seeks documents created before January 2004 in the form of diplomatic cables or emails from the Australian High Commission in either Vanuatu or Solomon Islands concerning the prosecution of the accused in Vanuatu in 1999. 
16. I accept that it is a reasonable inference to draw that any such documents, if they exist, would be relevant to the issues sought to be agitated in the stay application, but that is not enough. The accused has not demonstrated that it is “on the cards” that the class of documents requested would provide evidence of the political nature of the prosecution alleged by the accused.
17. Another class of document is sought on the basis of information contained within a document which has already been disclosed to the accused. For example, in one memorandum the following appears:

“In November 2004 the Australian High Commissioner to the Solomon Islands made representations through AFP Honiara to have the AFP investigate Julian Ronald Moti AKA Motis born 2 June 1965 for possible child sex tourism offences (Moti was born in Fiji but became an Australian citizen on 17 June 1996). The Head of Mission (HOM) wanted to be able to use these allegations “as the premis (sic) for preventing Moti becoming the new Attorney-General within the Solomon Islands government. Such was the pressure that an inter-departmental committee meeting was held at DFAT on 10 December 2004 between representatives of AFP Pacific Desk, AFP Legal, AFP TSETT, AGDs and Solomon Islands Desk DFAT. As a result a decision was taken that a cable would be sent to the HOM Solomon Islands advising the HOM that any assessment of Moti’s previous alleged sexual offences with foreign minors was confidential and any potential investigation would be subject to MAR with Vanuatu and such allegations could not be used to influence political appointments.” 

18. The subpoena seeks any minutes and related documents of the meeting referred to as having occurred on 10 December 2004. This raises an issue which permeates the case advanced by the accused. The broad allegation is that the investigation by Australian authorities of the allegations of a breach of the Crimes Act was politically motivated and was undertaken in order to attempt to prevent the accused from becoming Attorney-General of Solomon Islands. (As things turned out, he did become Attorney-General of Solomon Islands for a short period, he was then removed from that office and, later, he was brought to Australia.)  The accused has not been able, to my satisfaction, to link the continuing prosecution of the accused with the alleged political purpose behind the original investigation. This class of document and the other classes of documents relating to the investigation of the accused by Australian authorities fall into a category in which it has not been established by the accused that it is “on the cards” that they will assist him to demonstrate political motivation for the prosecution as opposed to the investigation.
19. There are other grounds upon which the accused has failed so far as requests for general classes of documents are concerned. For example, “all diplomatic cables sent between 2004 and 2007 concerning the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997” are sought. The accused was unable to show that each such diplomatic cable, assuming they exist, would materially assist his case. The broad categories of documents which he seeks, such as that to which I have just referred and others, such as “all other documents enabling the return of the applicant to the jurisdiction and enabling the entry into Australia of those accompanying him”, are redolent of fishing. They are objectionable on that basis alone. I will not allow the subpoena to proceed so far as the categories which seek “all documents etc”. I will now turn to the categories which consist of identified or identifiable documents. 
20. The email from Patrick Cole to Peter Bond referred to in an Overseas Liaison Communication note dated 3 May 2005 is sought. Exhibit 1 was tendered on behalf of the accused. It is a bundle of documents which have come into the possession of the accused and which relate to investigations and other activities concerning him. The bundle was not paginated nor was I taken to each document in order to explain its relevance. I am assuming that the Overseas Liaison Communication note referred to in the subpoena is the one contained in the bundle, Exhibit 1. That document has within it the following reference:

“HOM has made the following comment in an email to SLO Honiara. ‘This looks very much as if no formal action with regard to the Vanuatu authorities was taken until several weeks ago leaving a long gap from our pre-Christmas briefing until now.’ ”

21. I do not doubt that such an email could be relevant to the issues sought to be agitated by the accused in the stay application, but it is not enough and does not establish that the email referred to would, on the cards, materially assist the accused’s case. 
22. The next individual document is an email from Patrick Cole to Chris Elstoff. It is referred to in an Overseas Liaison Communication of 2 March 2005. It falls into the same category as the previous document. 
23. The balance of the documents sought fall into the category of either documents of which it cannot be said that it is on the cards that they could materially assist the accused or they are groups of documents which are nothing more than fishing. The breadth of documents sought and the failure to demonstrate that it was “on the cards” that any of them would materially assist the accused means that I should set the subpoena aside and I do that. 

The AFP subpoena

24. This subpoena suffers from the same infelicity of expression, breadth and lack of focus as the DFAT subpoena. The documents sought are set out in Schedule “B”.  This subpoena is one in which the fishing aspect is even more obvious. Some of the categories sought are also oppressive. The request, for example, for “all emails from Patrick Cole to the AFP which refer to the accused” or “all emails from the AFP to Patrick Cole” of a similar nature or “all documents evidencing communications with the prosecution witnesses receiving payments” or “all police notes from any officers involved in the investigation of the applicant” demonstrate that this is nothing more than a fishing expedition which, if allowed to proceed, would subject the recipient of the subpoena to a burden which would be oppressive. 
25. One of the objections taken to a number of categories was that the breadth was such that the recipient could not know what was sought. The response was that it should be obvious that only relevant documents should be disclosed. The difficulty with that approach, in this case, is that the issue of relevance is extremely problematical. The accused will seek, as I understand it, to have inferences drawn to establish his case. When inferences are sought to be drawn, the relevance of the foundational documents can, on occasions, be difficult to establish. 
26. There is nothing in the AFP subpoena which complies with the requirements for a valid subpoena as I have outlined above. This subpoena is also set aside.

Application under section 590AJ

27. The accused makes an application for the following direction:

That under section 590AJ Queensland Criminal Code 1899, the prosecution disclosed to the applicant the documents set out in the attached schedule marked “A”.

28. The documents sought are contained in Schedule “C” to these reasons.
29. Section 590AJ is contained in division 3 of chapter 62 of the Criminal Code.  Division 3 was inserted by the Evidence (Protection of Children) Amendment Act 2003.  It commences with section 590AB which provides:

“590AB Disclosure obligation

(1)This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth.

(2)     Without limiting the scope of the obligation, in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of—

(a)all evidence the prosecution proposes to rely on in the proceeding; and

(b)   all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.”

30. The same Act also amended section 590AA so that, so far as is relevant, that section reads:

“590AA Pre-trial directions and rulings

(1)If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.

(2)Without limiting subsection (1) a direction or ruling may be given in relation to—

(a) the quashing or staying of the indictment; or
…

(ba) the disclosure of a thing under chapter division 3; 
…”

31. Section 590AJ provides, so far as it is relevant:

“590AJ Disclosure that must be made on request

1. This section applies—

(a)without limiting the prosecution’s obligation mentioned in section 590AB(1); and

(b)subject to section 590AC(1)(a) and chapter subdivision D.

(2) For a relevant proceeding, the prosecution must, on request, give the accused person—

(a)particulars if a proposed witness for the prosecution is, or may be, an affected child; and

(b)a copy of the criminal history of a proposed witness for the prosecution in the possession of the prosecution; and

(c)a copy or notice of any thing in the possession of the prosecution that may reasonably be considered to be adverse to the reliability or credibility of a proposed witness for the prosecution; and

(d)notice of any thing in the possession of the prosecution that may tend to raise an issue about the competence of a proposed witness for the prosecution to give evidence in the proceeding; and

(e)a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding; and

(f)a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.”

32. The term “possession of the prosecution” is defined in s 590AE as follows:

“590AE Meaning of possession of the prosecution

1. For a relevant proceeding, a thing is in the possession of the prosecution only if the thing is in the possession of the prosecution under subsection (2) or (3).
2. A thing is in the possession of the prosecution if it is in the possession of the arresting officer or a person appearing for the prosecution.
3. A thing is also in the possession of the prosecution if—

(a) the thing is in the possession of—

(i)for a prosecution conducted by the director of public prosecutions—the director; or

(ii)for a prosecution conducted by the police service—the police service; and

(b) the arresting officer or a person appearing for the prosecution—

    (i)  is aware of the existence of the thing; and

(ii)is, or would be, able to locate the thing without unreasonable effort.”

33. The term “relevant proceeding” is defined in s 590AD to mean:

(a) a committal proceeding;

(b) a prescribed summary trial; or

(c) a trial on indictment.

34. Section 590AJ applies where a request is made by an accused person.  Section 590AK requires that the prosecution, subject to some other provisions which are not presently relevant, must give the accused person the copies of documents as soon as practicable after the request is made.  The obligation to disclose continues under section 590AL.  Section 590AM prescribes how copies of documents must or may be given to the accused and sections 590AN, 590AO, 590AOA, 590AP and 590AQ provide instances in which disclosure may be limited because of the nature of the evidence or some other matter set out in those sections.
35. Section 590AV provides for the making of disclosure directions but those are directions of a limited nature and refer to a direction which might be given, where, for example, there should be a limit on disclosure because of public interest considerations.  
36. Section 590AW provides that any issue about compliance with this division must, if possible, be resolved before evidence starts to be heard at the relevant proceeding.  
37. Mr Agius QC who, with Mr Chowdhury, appeared for the Director of Public Prosecution submitted that the pre-trial application by the accused was not a “relevant proceeding” within the meaning of the definition of that term as used in section 590AJ.  It was argued that, because of that, the DPP can not be required to make the requested disclosure.  While that argument has initial attraction, it does not, upon further consideration, have strength.  Section 590AA is specifically designed for the making of pre-trial applications so that, among other things, time might be saved at the trial on indictment of an accused and, thus, provide for more efficient trials in general.  As I noted above, section 590AA(2)(ba) specifically refers to the disclosure of a thing under chapter division 3 and the application by the accused comes within that section.   Although a trial on indictment does not commence until the accused is called upon, I do not regard the definition of “relevant proceeding” as meaning that an application under chapter division 3 can only be brought once the trial has commenced.  
38. The purpose of chapter division 3 was considered in the Court of Appeal in R v Rollason and Jenkins Ex Parte Attorney-General [2008] 1 Qd R 85.  In that case, the applicants for disclosure had been charged on indictment with offences under the Drugs Misuse Act 1986.  The evidence against them included evidence gathered pursuant to telephone intercept warrants which, in turn, had been issued in reliance upon the affidavits of a member of the Australian Federal Police Service, a Mr Mellor.  Mr Mellor was to be a witness at the trial.  The applicant sought disclosure of the affidavits by Mr Mellor, which were used in order to obtain the warrants.  
39. Section 590AJ was considered in Rollason’s case and the court said the following:

“[26] Section 590AJ(2)(e) and (f) of the Criminal Code serves to ensure that a person who is prosecuted as a result of the obtaining of evidence pursuant to proceedings of which he or she has been unaware will be informed, on request, of the basis upon which he or she has been subjected to the governmental surveillance which has led to the prosecution. It is hardly a radical innovation in the law that such a person is afforded an opportunity, albeit belatedly and subject to ‘public interest’ limitations, to understand, and possibly dispute in the appropriate forum, the legality of the basis on which he or she has been put in jeopardy. (See Murphy v The Queen (1989) 167 CLR 94; Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162; Ousley v The Queen (1997) 192 CLR 69 at 79, 102-105, 127128, 144-146.)  As Steyn LJ (as his Lordship then was) speaking in the Court of appeal in R v Brown ([2995] 1 Cr App R 1991 at 198) of the position under the common law, said: ‘[I]n our adversarial system, in which the police and prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.’

[27]In our respectful opinion, the fundamental problem with the submission for the Attorney-General on this point is that it looks at the question of relevance from the perspective of the prosecutor seeking to prove a case. No narrow, technical or ‘prosecutioncentric’ view should be taken of the language which the legislature has used in s. 590AJ(2)(e) and (f), bearing in mind the clearly stated overarching legislative intention to ensure that an accused person be provided with ‘all things in the possession of the prosecution … that would tend to help the case for the accused person’. This broad statement of legislative intent confirms that material, which may serve no purpose other than to provide an accused with as full an appreciation of the provenance of the charge which he or she is required to meet as is consistent with the public interest, must be disclosed upon request by the accused.

[28]In our view, a statement will be relevant to the proceeding for the purpose of s 590AJ(2)(e) and (f) if it is material which has led to the obtaining of the evidence on which the prosecution is based. In such a case, the prosecution must provide the accused with such a statement upon request by the accused. We are, therefore, of the view that the learned primary judge’s approach to this issue was correct.” (emphasis added)

40. The statement of the court that “no narrow, technical or ‘prosecution-centric’ view should be taken of the language which the legislature has used in s 590AJ(2)(e) and (f)” is particularly relevant in this application. The test under this part of the Criminal Code is much less stringent than the “on the cards” test applied with respect to the subpoenas.
41. Before I turn to the documents sought in the application, I need to consider another argument raised on behalf of the DPP and that was the construction of s 590AE. The argument for the DPP was that s 590AE(3) requires, as on an initial reading it appears to require, that for a thing to be in the possession of the prosecution it must satisfy both (a) and (b) of s 590AE(3). Mr Doyle argued that the word “and” which appears at the end of s 590AE(3)(a)(ii) should be read as “or”. In support of that contention, I was referred to the decision of Fryberg J in R v Hargraves, Hargraves and Stoten [2008] QSC 267.
42. In that case His Honour said:

“The question that is in issue between the parties is whether a thing is within the possession of the prosecution when either paragraph (a) or paragraph (b) is satisfied or only when both of those paragraphs are satisfied.

Putting it in the more traditional, if somewhat inaccurate way of expressing the matter, does "and" at the end of subparagraph (a) mean "or"?

In support of the proposition that it did, Mr Walker SC and Mr Byrne QC for the applicants submitted that the word did mean "or". They pointed to the disclosure obligation set out in section 590AB(1) as governing the approach which should be taken to the case and to the decision of the Court of Appeal in The Queen v. Rollason [2008] 1 QdR 85 as supporting an interpretation of chapter division 3 generous to the accused.

They also referred to the point that it would make no sense to construe subsection (3) otherwise because to do so would mean that paragraph 3(a)(1) would cover virtually the same ground as part of subsection (2) and to the fact that the adding of a requirement to satisfy paragraph (b) to the requirement for the director to be in possession of the thing under paragraph (a) would serve little purpose and would leave the provisions open to abuse.

In response, Mr MacSporran SC for the Crown submitted that the word "and" should be given its ordinary conjunctive meaning. He submitted that the examples of duplication relied on by the applicants were marginal cases and that in most cases the interpretation for which he contended would be a practical interpretation.

In support of his submission it can also be said that the Parliament has used the word "or" within subparagraph (a) when it plainly meant "or", and within subparagraph (b) it has used the word "and" when it plainly meant "and".

I accept the attractiveness of the semantic reasoning and the argument put forward by Mr MacSporran. It is a large thing for the Court to do to find that words in an Act of Parliament do not bear their ordinary meaning; but the fact is that for a long time, probably hundreds of years, Courts have been reading "and" to mean "or" where the context plainly requires that to be done.

In my judgment, Mr Walker's submissions were correct. The Act, it seems to me, clearly requires that paragraph (a) or paragraph (b) be satisfied in order for a thing to be in the possession of the prosecution but does not require both to be satisfied.

The submissions about impracticability if the opposite meaning is adopted are, in my view, powerful and the approach which should be taken is indicated by section 590AB(1) and by the decision in Rollason.”

43. In order to understand the operation of s 590AE one needs to refer to the definition of “prosecution”. Section 590AD provides that it means “the person in charge of the prosecution or a person appearing for the prosecution.” Thus, a distinction is drawn between the person who appears in court and the person who is in charge. Of course, that can be the same person. The person who is ultimately in charge of prosecutions for Commonwealth offences is the Director of Public Prosecutions – see Director of Public Prosecutions Act 1983 (Cth) ss 6 and 9. 
44. One must also consider the definition of “possession” in s 1 of the Criminal Code. It provides that:

“possession includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.”

That definition, being inclusive, allows for the ordinary meanings of possession to be used; such as to be in actual, physical possession of something.

45. Thus, s 590AE can be seen to deal with possession by the “prosecution” in two ways. First, in s 590AE(2) it deals with possession by the person appearing for the prosecution. Secondly, it deals, in s 590AE(3), with possession by the Director, namely someone who would fall within the description of the “person in charge of the prosecution”.   
46. Given that a distinction is drawn between the two types of person who can be in possession it is open to conclude that different types of possession can also be intended, that is, actual possession and possession where the object is under the control of, but not in the actual possession of, a person.
47. The construction advanced by the accused is that there are three ways in which the prosecution can be in possession. This must follow from the submission that at the end of s 590AE(3)(a)(ii) the word “and” should be read as “or”. In other words, the categories would be:
    1. Where the object is in the possession of the person appearing for the prosecution.
    2. Where the object is in the possession of the director.
    3. Where the person appearing for the prosecution is aware of the object and could locate it without unreasonable effort.
48. The last of those creates a new type of possession and creates a curious result. While the person appearing for the prosecution might know about the object and where it is, it does not follow that such an object could be obtained. If one divorces s 590AE(3)(a) from s 590AE(3)(b) then it is, necessarily, the case that the object of which the prosecutor is aware need not be in the possession of the director. In other words, the person appearing for the prosecution might not be able to “possess” the object in any of the usual senses. Thus, while a prosecutor might know about an object and be able to locate it, the prosecutor might not be able to obtain it for the purposes of providing it to the accused. Such a result militates against the construction advanced by the accused.
49. That construction is also inconsistent with the description of the operation of s 590AE in the Explanatory Note issued with the Evidence (Protection of Children) Amendment Bill 2003. Relevantly, it provided:

“New section 590AE (Meaning of “possession of the prosecution”) sets out when a thing is in the possession of the prosecution.

A thing will be in the possession of the prosecution in two circumstances. Firstly, a thing is in the possession of the prosecution when it is in the possession of the arresting officer or a person appearing for the prosecution (a police prosecutor or a crown prosecutor). Secondly, a thing will be in the possession of the prosecution when it is in the possession of the Director of Public Prosecutions (or if the Queensland Police Service is conducting the prosecution, the Commissioner of Police) and the arresting officer or a person appearing for the prosecution is aware of the thing and is able, or would be able, to locate the thing without unreasonable effort.” (emphasis added)

50. That explanation makes clear the intention that there be only two relevant circumstances of possession and that “and” should be read as “and”. I intend to proceed on that basis. 
51. I return to the documents sought in the application. There are a number of documents sought from both the DPP and the AFP. To order that each of them be produced, without proof that each of them is in the possession of the respondents to the application, would be inconsistent with the intent of this part of the Code. It is, I think, preferable to proceed on the basis that an order for disclosure be made and that it be made on the bases elucidated in Rollason. Thus, when considering their duties pursuant to both disclosure under s 590AH and a direction for disclosure the DPP and the AFP will be controlled by the following:
    1. The “proceeding” includes the application for a stay.
    2. The disclosure is to be of material which would “tend to help the case for the accused person”.
    3. The task for the prosecution in performing its obligations of disclosure under s. 590AH(2)(c)(i)(A) is not the mechanical comparison of the statements of witnesses with the elements of the charge or of a potential defence, but the, admittedly more onerous, assessment of whether the prosecution is in the possession of statements which may undermine the case against the accused or assist his or her defence.
    4. The obligation cast upon the prosecution by these provisions is to be performed in light of the guiding principles stated in s. 590AB.
    5. Section 590AJ(2)(e) speaks of a “statement of any person relevant to the proceeding”, rather than a “statement of any person directly relevant to the issues in the proceeding”. Language of the latter kind might well be apt to confine the prosecution's obligation of disclosure to statements which tended directly to prove or disprove elements of the offence charged (or an available defence); but the language which has been used by the legislature requires only that the statement in question be “relevant to the proceeding”.
    6. Section 590AJ(2)(e) and (f) of the Criminal Code serves to ensure that a person who is prosecuted as a result of the obtaining of evidence pursuant to proceedings of which he or she has been unaware will be informed, on request, of the basis upon which he or she has been subjected to the governmental surveillance which has led to the prosecution. This will include documents which served to alert (directly or indirectly) the AFP to the alleged activities.
    7. A statement will be relevant to the proceeding for the purpose of s. 590AJ(2)(e) and (f) if it is material which has led to the obtaining of the evidence on which the prosecution is based. In such a case, the prosecution must provide the accused with such a statement upon request by the accused. In this case, the obligation to disclose is not confined to statements. It will extend to all those documents which come within the category of “material which has led to the obtaining of the evidence on which the prosecution is based”.

Orders

52. The subpoenas served by the accused on Justine Braithwaite of the Department of Foreign Affairs and Trade and on the Commissioner of the Australian Federal Police are set aside.
53. I direct that the Director of Public Prosecutions and the Commissioner of the Australian Federal Police give to the accused:

1. a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding; and
2. a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.

SCHEDULE A

• All diplomatic cables created prior to January 2004 concerning the prosecution of Julian Ronald Moti (‘the Applicant’) in Vanuatu in 1999.
• All emails sent from the Australian High Commission in Vanuatu and the Australian High Commission in the Solomon Islands prior to January 2004 concerning the prosecution of Julian Ronald Moti (‘the Applicant’) in Vanuatu in 1999.
• All minutes, notes and documents relating to the ‘inter-departmental committee’ meeting held on 10/12/04 in Canberra in relation to the Applicant.
• All minutes, notes and documents relating to the meeting about the Applicant held on 9/02/06, involving representatives of the Australian Federal Police, the Department of Foreign Affairs and Trade and the Attorney-General’s Department.
• All diplomatic cables sent between 2004 and 2007 concerning the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997.
• The e-mail from Patrick Cole to Peter Bond referred to in Overseas Liaison Communication note dated 3/05/05 previously disclosed to the Applicant.
• The email from Patrick Cole to Chris Elstoff (DFAT) referred to in Overseas Liaison Communication note dated 2/03/05 previously disclosed to the Applicant.
• The Department of Foreign Affairs and Trade draft cable referred to in Overseas Liaison Communication note dated 2/03/05 previously disclosed to the Applicant.
• All other emails sent between October 2004 and January 2008 to or from Patrick Cole, Anita Butler or other diplomatic officials at the Australian High Commission in Honiara concerning the Applicant.
• Visa applications and related documents for the travel of the Solomon Islands escorts who accompanied the Applicant from Honiara to Brisbane on 27/12/07.
• The application, related document and receipt of prescribed fee paid for the travel document issued in the name of the Applicant on 27/12/07.
• All other documents enabling the return of the Applicant to the jurisdiction and enabling the entry into Australia of those accompanying him.
• The contents of file numbers “07/503494 POLITICAL-ECONOMIC-DOMESTIC POLITICAL – Solomon Islands, MOTI, Julian SOI” and “07/500427-1 POLITICAL-ECONOMIC – INTERNATIONAL POLITICAL – Papua New Guinea (PNG) Australia Bilateral Relationship, Julian Moti Affair, PNG”.
• All documents relating to the arrangements made to facilitate the travel to Australia on 27/12/07 of the Applicant; and the return travel and accommodation of the officers of the Solomon Islands Police Force and Solomon Islands Immigration officials.
• All documents demonstrating communication between the Department of Foreign Affairs and Trade and any Australian intelligence agency in relation to the return of the Applicant to Australia in December 2007.
• All Ministerial briefs concerning the Applicant created by the Department of Foreign Affairs and Trade between October 2004 and January 2008.

SCHEDULE B

• All documents created by the AFP prior to January 2004 concerning the prosecution of Julian Ronald Moti (‘the Applicant’) in Vanuatu in 1999 including communications between AFP officers in Honiara and Vanuatu in 2003;
• All minutes, notes and documents relating to the ‘inter-departmental committee’ meeting held on 10/12/04 in Canberra in relation to the Applicant and referred to in the case note of Geraldine Morris dated 14/1/05;
• All minutes, notes and documents relating to the meeting about the Applicant held on 9/02/06 in Canberra, involving representatives of the Australian Federal Police, the Department of Foreign Affairs and Trade and the Attorney-General’s Department and referred to by Sally MacDonald in her minute of 12 May 2006;
• All documents in relation to the referral of the allegations involved in this matter by Australian Federal Police to the Commonwealth Director of Public Prosecutions that have not been disclosed to date, including documents provided to Wendy Barber (excluding the brief of evidence already provided to the Applicant);
• All police notes from any officers involved in the investigation of the Applicant that have not been disclosed to date;
• All contents of PROMIS Case ID 3363651 (Moti) and 3286896 (Honiara) that have not been disclosed to date;
• All documents created in relation to ‘Operation Rouge’ relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• All contents of any other PROMIS entries or Case ID’s relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• All ‘Overseas Liaison Communication’ minutes not disclosed to date in relation to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• Any other case notes, minutes and similar documents relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• The e-mail from Patrick Cole to Peter Bond referred to in Overseas Liaison Communication note dated 03/05/05 previously disclosed to the Applicant;
• All emails to Patrick Cole to the AFP which refer to the Applicant;
• All emails from the AFP to Patrick Cole which refer to the Applicant; 
• All other documents relating to the return of the Applicant to the jurisdiction and enabling the entry into Australia of those accompanying him;
• All documents held relating to the use of a helicopter controlled by the Participating Police Force of the Regional Assistance Mission to Solomon Islands on 27/12/07 to observe the movements of the applicant in the Solomon Islands;
• All documents evidencing communications with the prosecution witnesses receiving payments;
• All communications with the complainant, including communications by SMS;
• Any documents created by the AFP, including internal memoranda, advices, etc concerning the decision to make witness payments and the decision as to the amount to be paid;
• Copies of any agreements, memoranda of understanding or similar things, entered into with any prosecution witnesses in this matter by the Australian Federal Police;
• All briefs, minutes or documents of that nature prepared for the Australian Federal Police executive or the Office of the Minister responsible for the Australian Federal Police or any other Government Minister relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997; and
• All communications between the Australian Federal Police and Australian intelligence agencies concerning the Applicant’s return to Australia in December 2007.

SCHEDULE C

• All documents created by the Australian Federal Police ‘AFP’ prior to January 2004 concerning the prosecution of Julian Ronald Moti (“the Applicant”) in Vanuatu in 1999 including communications between AFP officers in Honiara and Vanuatu in 2003;
• All minutes, notes and documents relating to the ‘inter-departmental committee’ meeting held on 10/12/04 in Canberra in relating to the Applicant and referred to in the case note of Geraldine Morris dated 14/1/05;
• All minutes, notes and documents relating to the meeting about the Applicant held on 9/02/06 in Canberra, involving representatives of the Attorney-General’s Department and referred to by Sally MacDonald in her minute of 12 May 2006;
• All documents in relation to the referral of the allegations involved in this matter by Australian Federal Police to the Commonwealth Director of Public Prosecutions that have not been disclosed to date, including documents provided to Wendy Barber (excluding the brief of evidence already provided to the Applicant);
• All police notes from any officers involved in the investigation of the Applicant that have not been disclosed to date;
• All contents of PROMIS Case ID 3363651 (Moti) and 3286896 (Honiara) they have not been disclosed to date;
• All documents created in relation to ‘Operation Rouge’ relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• All contents of any other PROMIS entries or Case ID’s relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• All ‘Overseas Liaison Communication’ minutes not disclosed to date in relation to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 2997;
• Any other case notes, minutes and similar documents relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997;
• The e-mail from Patrick Cole to Peter Bond referred to in Overseas Liaison Communication note dated 03/05/05 previously disclosed to the Applicant;
• All emails from Patrick Cole to the AFP which refer to the Applicant;
• All emails from the AFP to Patrick Cole which refer to the Applicant;
• All other documents relating to the return of the Applicant to the jurisdiction and enabling the entry into Australia of those accompanying him;
• All documents held relating to the use of a helicopter controlled by the Participating Police Force of the Regional Assistance Mission to Solomon Islands on 27/12/07 to observe the movements of the applicant in the Solomon Islands;
• All documents evidencing communications with the prosecution witnesses receiving payments;
• All communications with the complainant, including communications by SMS;
• Any documents created by the AFP, including internal memoranda, advices, etc concerning the decision to make witness payments and the decision as to the amount to be paid;
• Copies of any agreements, memoranda of understanding or similar things, entered into with any prosecution witnesses in this matter by the Australian Federal Police;
• All briefs, minutes or documents of that nature prepared for the Australia Federal Police executive or the Office of the Minister responsible for the Australian Federal Police or any other Government Minister relating to the investigation of the Applicant in respect of alleged offences in Vanuatu and New Caledonia in 1997; and
• All communications between the Australian Federal Police and the Australian intelligence agencies concerning the Applicant’s return to Australia in December 2007.