Regina (C'Wealth) v Baladjam & Ors [No 37] [2008] NSWSC 1457

Regina (C'Wealth) v Baladjam & Ors [No 37] [2008] NSWSC 1457

The call for production was set aside because Khaled Cheikho did not establish a legitimate forensic purpose and did not show that it was on the cards that the requested ASIO documents would materially assist his case. The similarities between the certificates and the revocation and replacement of earlier certificates did not reasonably support an inference that Mr O'Brien failed to turn his mind to the relevant matters; rather, the live certificates were conclusive on their face and the attempt to obtain the documents was a fishing expedition.

Jurisdiction
Australia
Judgment Date
26 August 2008
Procedural Posture
Criminal / Application by ASIO to Set Aside Calls for Production of Material Made on 13 May 2008
Outcome
Application granted; call for production set aside and ASIO excused from producing the documents.
Legal Topics
['subpoenas and Calls for Production' 'legitimate Forensic Purpose' 'evidentiary Certificates' 'telecommunications Interception Warrants' 'conclusive Evidence Under S 18 Telecommunications (interception and Access) Act 1979 (cth)']
['criminal Law' 'evidence' 'telecommunications Interception' 'practice and Procedure'] ['subpoenas and Calls for Production' 'legitimate Forensic Purpose' 'evidentiary Certificates' 'telecommunications Interception Warrants' 'conclusive Evidence Under S 18 Telecommunications (interception and Access) Act 1979 (cth)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal / Application by ASIO to Set Aside Calls for Production of Material Made on 13 May 2008

Legal Issues

  1. 1 ['Whether the call for production of five categories of material made to ASIO on behalf of Khaled Cheikho should be set aside for want of a legitimate forensic purpose.' "Whether it was on the cards that the documents sought would materially assist Khaled Cheikho's case by showing that the secretary of Optus did not turn his mind to matters certified under s 18 Telecommunications (Interception and Access) Act 1979 (Cth)." 'Whether similarities between ASIO and Optus certificates, or the revocation and replacement of earlier certificates, supported an inference that the Optus secretary failed to consider the relevant matters.']

Ratio Decidendi

The call for production was set aside because Khaled Cheikho did not establish a legitimate forensic purpose and did not show that it was on the cards that the requested ASIO documents would materially assist his case. The similarities between the certificates and the revocation and replacement of earlier certificates did not reasonably support an inference that Mr O'Brien failed to turn his mind to the relevant matters; rather, the live certificates were conclusive on their face and the attempt to obtain the documents was a fishing expedition.

Court Disposition

Application granted; call for production set aside and ASIO excused from producing the documents.

Orders

  • ['Order 1 in the Notice of Motion dated 4 June 2008 made.' 'ASIO be excused from producing the documents referred to in each of the five categories set out in the subpoena and call of 13 May 2008.']