R (Cth) v Alqudsi [2021] NSWSC 1650

R (Cth) v Alqudsi [2021] NSWSC 1650

Given the seriousness of the terrorism charge and the joint AFP and NSW Police investigation, a liberal approach to adjectival relevance was required. Many requested documents connected to surveillance, warrants, persons of interest, investigator notes, and communications already disclosed or conceded as relevant had a legitimate forensic purpose and were not oppressive merely because of volume; parts of such documents could not be redacted solely for lack of forensic purpose. However, some broad or insufficiently connected requests, including all Eaglei entries, notification procedures for security threats, an insufficiently identified AFP interview, and documents explaining why daily...

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Criminal Procedure Subpoena Motions in Criminal Proceedings / Applications by Subpoena Addressees to Set Aside Subpoenas Under Uniform Civil Procedure Rules 2005 (nsw) R 33.4
Outcome
Subpoena not set aside, but several paragraphs were limited or rejected as set out in the judgment; public interest immunity issues reserved.
Legal Topics
['legitimate Forensic Purpose' 'oppression' 'adjectival Relevance' 'public Interest Immunity Reserved' 'disclosure in Criminal Proceedings' 'telephone Intercept and Surveillance Material']
['criminal Procedure' 'evidence' 'subpoenas'] ['legitimate Forensic Purpose' 'oppression' 'adjectival Relevance' 'public Interest Immunity Reserved' 'disclosure in Criminal Proceedings' 'telephone Intercept and Surveillance Material']

Case Brief

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Procedural Posture

Criminal Procedure Subpoena Motions in Criminal Proceedings / Applications by Subpoena Addressees to Set Aside Subpoenas Under Uniform Civil Procedure Rules 2005 (nsw) R 33.4

Legal Issues

  1. 1 ['Whether subpoenas served on the Commissioner of the Australian Federal Police and the Commissioner of NSW Police should be set aside for oppression, lack of legitimate forensic purpose or abuse of process.' "Whether particular subpoena paragraphs or categories of documents had adjectival relevance or a legitimate forensic purpose in the accused's defence to terrorism charges." 'Whether documents already accepted or disclosed as relevant could be redacted on the basis that parts of the document lacked a legitimate forensic purpose.' 'Whether broad categories such as all Eaglei entries, security threat notification procedures, and explanations for the absence of daily summaries were oppressive or lacked a legitimate forensic purpose.' 'Whether claims of public interest immunity should affect the present rulings on legitimate forensic purpose.']

Ratio Decidendi

Given the seriousness of the terrorism charge and the joint AFP and NSW Police investigation, a liberal approach to adjectival relevance was required. Many requested documents connected to surveillance, warrants, persons of interest, investigator notes, and communications already disclosed or conceded as relevant had a legitimate forensic purpose and were not oppressive merely because of volume; parts of such documents could not be redacted solely for lack of forensic purpose. However, some broad or insufficiently connected requests, including all Eaglei entries, notification procedures for security threats, an insufficiently identified AFP interview, and documents explaining why daily...

Court Disposition

Subpoena not set aside, but several paragraphs were limited or rejected as set out in the judgment; public interest immunity issues reserved.

Orders

  • ['Objections based on lack of legitimate forensic purpose were rejected for paragraph 1(1), paragraph 1(2), paragraph 1(23), paragraph 1(25), paragraph 1(40) and the listed related subparagraphs, subject to public interest immunity.' 'Paragraph 1(10) and paragraph 1(24), concerning applications for extension of time...