R v Abdaly; R v Hosseinishoja (No 1) [2022] NSWSC 1482 (28 October 2022)

Last Updated: 9 November 2022

Supreme Court New South Wales

Case Name:	R v Abdaly; R v Hosseinishoja (No 1)
Medium Neutral Citation:	[2022] NSWSC 1482
Hearing Date(s):	28 October 2022
Date of Orders:	28 October 2022
Decision Date:	28 October 2022
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Notice of motion dismissed. Refuse the application to set aside the subpoena directed to the Department of Home Affairs.
Catchwords:	CRIMINAL LAW – subpoena issued by Prosecutor – attempt to obtain extraction of telephone records of accused – application to set aside subpoena – whether accused has standing – he obviously does – legitimate forensic purpose – “fishing” – caution in application of language employed in earlier cases – where issue between parties as to associations between accused and criminal group – not speculative that telephone may contain relevant evidence – legitimate forensic purpose established
Legislation Cited:	Supreme Court Act 1970 (NSW), Sch 3 Supreme Court Rules 1970 (NSW), Pt 75, r 3(g) Uniform Civil Procedure Rules 2005 (NSW), r 33.1(a), Pt 33
Cases Cited:	Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94 Mann v Commissioner of Police [2020] NSWSC 369 Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 R v Jenkin (No 2) [2018] NSWSC 697 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Waters v Secretary of the Attorney-General’s Department (Cth) [2021] NSWCCA 193
Category:	Procedural rulings
Parties:	Rex (Plaintiff) Sayed Anoush Abdaly (Defendant) Seyed Amirmohammad Hosseinishoja (Defendant)
Representation:	Counsel: D Patch (Rex) M Cunneen SC (Abdaly) G Brady SC with P Lange and M Ayache (Hosseinishoja) Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Tohi Lawyers (Abdaly) OneGroup Legal (Hosseinishoja)
File Number(s):	2020/306132; 2020/306616
Publication Restriction:	Unique personal identifiers have been anonymised. Except for publication on legal websites, there is an interim non-publication order over the names of the two accused and Abuzar Sultani.
Decision under appeal:

JUDGMENT

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. 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. 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. The subpoena issued by the DPP sought the following:

“Extraction of Sayed Amirmohammad Hosseinishoja’s (DOB xx/xx/xxxx) (CNI xxxxxxxxx) mobile phone handset as he departed Australia in 2016.”

Standing

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.
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:

The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

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:

“I want to focus on the main point which is legitimate forensic purpose. I don't think your Honour should be worried about that. Either way, that has to be determined.”^[5]

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

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

“HIS HONOUR: [Is there] any evidence [that in 2016] he had the same hand set from 2013 and through ... ––

PATCH: I can't answer that question quickly on my feet, your Honour.

HIS HONOUR: Essentially you are saying it is on the cards, it might establish ongoing connection of the kind that would support the argument that you [are] going to attempt to make because they were close, had a close criminal association after the event, therefore they were more likely to have that [close] association at the time of the murder, therefore more likely to follow his directions.

PATCH: Yes, it may be people have phones for years, and your Honour can take judicial notice of that fact, it is on the cards that that phone was his phone in 2013 or shortly after 2013 and there might be material relevant to these proceedings. It is on the cards, it is reasonable to have a look and see. Another way one might put it, and that is what we want to do, have a look and see. That is the forensic purpose, to speak somewhat colloquially but accurately.”^[7]

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

“LANGE: In my submission if my learned friend puts his argument on that basis, then clearly it is what is called a fishing expedition is the expression taken from the Commissioner of Railways v Small where it was used. And I say that because that is precisely what happened in the [Chidgey’s] case when, I can forward that to your Honour unless your Honour is ruling today. I should give your Honour the citation at least, [2008] NSWCCA 65, (2008) 182 A Crim R 536.”

Decision and reasons

13. At the conclusion of the argument, I said:

“I am satisfied based on the material that I have seen and the issues as I understand them to be in the trial, that the subpoena issued by the Director of Public Prosecutions seeking production of what I will call a “download” of the accused’s telephone, that it is on the card[s] that it will be relevant to issues in the trial. It may help one or help the other but one of the issues in the trial is the association. I do not think this is properly described as a fishing expedition, quite to the contrary. I think this is material that is quite likely to have some relevance to the material and I propose to [dismiss] the notice of motion, [and decline to make] the orders sought to [set aside] the Director's subpoena.”^[8]

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:

“69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is ‘not sufficient’, and a similar statement in Carroll at 182 that ‘mere relevance is not enough’ may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena:

‘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.’

There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a ‘bearing on the issues in the case and may well have evidentiary value’, a subpoena seeking such a document or documents will not amount to fishing.”

15. His Honour said at [80]:

“a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J ... in Saleam at [11], it can:

‘(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’.

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

“an inability to demonstrate that it is ‘on the cards’ that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.”

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:

“While the argument that if anything a more generous approach should apply in criminal cases at first sight has much attraction, the observation on which it is founded was made in the context of a claim for public interest immunity, and does not establish a general rule concerning subpoenas. The approach which has been adopted in the criminal context has been much influenced by that applicable to public interest immunity claims, and, as the President explains, in times when a much narrower view was taken of an accused person’s entitlement to disclosure than now prevails. The changes which have taken place in that respect may support the extension to criminal cases of the test applicable to subpoenas in civil cases. On the other hand, as I have mentioned, police and prosecutors in criminal cases have extra-curial investigatory powers not available to parties in civil cases, which may explain a distinction.” (citations omitted.)

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

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^[1] The circumstances of the chaos will be described in a subsequent judgment concerning a contested application by the accused for a trial by Judge alone.
^[2] Tcpt, 28 October 2022, p 89.
^[3] Ibid, p 89(29).
^[4] Ibid, p 95(34).
^[5] Ibid, p 95(38-40).
^[6] Reliance was placed on Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 at 504.
^[7] Tcpt, 28 October 2022, pp 99(44)-100(11).
^[8] Ibid, pp 100(48)-101(7).
^[9] Cf R v Jenkin (No 2) [2018] NSWSC 697 and the discussion of this issue, and the application of Chidgey, by Adamson J in Mann v Commissioner of Police [2020] NSWSC 369.