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Court of Criminal Appeal 4 April 2006

LODHI v REGINA

[2006] NSWCCA 101

Also reported as (2006) 65 NSWLR 573
Public order & justice offences
CRIMINAL LAW APPEAL ARISING FROM ORDERS MADE NATIONAL SECURITY OPERATIONAL CAPACITY OF ASIO DEALINGS WITH WITNESSES PROTECTIVE ORDERS

Citation: Lodhi v Regina [2006] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 4 April 2006
Judge(s): Spigelman CJ; McClellan CJ at CL; Sully J

Background

The accused faced four charges under the Criminal Code 1995 (Cth) arising from conduct in late 2003 alleged to constitute preparation for terrorist acts. The charges included collecting maps of the Australian electricity supply system, seeking information about materials for manufacturing explosives, compiling aerial photographs of defence establishments, and possessing documents about poisons and explosive devices.

Before the trial commenced, the Commonwealth Attorney-General applied to the Supreme Court for orders protecting sensitive national security information from public disclosure. Whealy J granted a suite of protective orders designed to safeguard ASIO's operational capacity, including provisions for closing the court when ASIO-related evidence was given and restricting publication of certain categories of information.

The accused sought leave to appeal against the orders requiring the court to be closed (Order 1 in its entirety) and the prohibition on disclosure in Order 3(a) and (b), arguing that these measures infringed the right to a fair trial and the principle of open justice.

  • Whether the trial judge correctly balanced the competing interests of national security and open justice when making the protective orders
  • Whether closing the court during ASIO-related evidence was necessary, or whether non-publication orders alone would have been sufficient
  • Whether the risk of prejudice to the accused arising from repeated interruptions to close the court was adequately addressed
  • Whether the orders, taken together, were proportionate to the identified national security need

Decision

The Court of Criminal Appeal dismissed the appeal, with all three judges agreeing. McClellan CJ at CL, who delivered the primary judgment, found that Whealy J had correctly identified and applied the appropriate principles when making the challenged orders.

The Court accepted that both the Crimes Act 1914 (Cth) and the Criminal Code 1995 (Cth) expressly authorise a court to exclude the public and prohibit publication of proceedings where the interests of national security so require. The protective orders fell squarely within those statutory powers and were directed at preventing the compromise of ASIO's operational capacity, including its source relationships and dealings with foreign agencies.

On the question of whether non-publication orders alone would have sufficed, the Court rejected that submission. Keeping the court open would have permitted any person present, including those whose access to the information the Commonwealth specifically sought to prevent, to obtain and misuse sensitive material. A non-publication order would offer no meaningful protection against such a person.

The Court acknowledged that interruptions to close the court could potentially create prejudice for the accused, but accepted that this concern was manageable. Appropriate jury directions could minimise any adverse effect. The Court also noted that the provision for releasing an edited transcript of closed-court proceedings within 48 hours would significantly ameliorate the impact on open justice, provided the transcript was released as promptly as practically possible.

Orders Made

The protective orders upheld by the Court of Criminal Appeal were as follows:

  • Order 1: The court to be closed whenever evidence or information is disclosed concerning ASIO's dealings with its sources or its relationship with any foreign agency.
  • Order 2: The court to be closed at all times when ASIO witnesses give evidence.
  • Order 3: No disclosure or publication of information revealing ASIO's source dealings, its foreign agency relationships, or any details identifying ASIO witnesses (including physical appearance).
  • Order 4: ASIO officers and employees to be referred to by pseudonym throughout the proceedings.
  • Order 5: Specified ASIO witnesses to be screened from all persons except the judge, the judge's associate, the jury, and the legal representatives for each party.
  • Order 6: Closed-court transcripts (other than those arising from National Security Information Act hearings) to be provided promptly in electronic form to legal representatives; the Attorney-General to notify the court of any proposed edits; media interests may be heard on proposed edits at the court's discretion; the edited transcript to be made publicly available within 48 hours of the day to which it relates, or such further time as the court allows.

Key Takeaways

  • The Court of Criminal Appeal confirmed that both the Crimes Act 1914 (Cth) and the Criminal Code 1995 (Cth) provide express statutory authority for a court to exclude the public and restrict publication of proceedings where national security interests are engaged.

  • In dismissing the appeal, the Court held that Whealy J conducted the appropriate balancing exercise between the principle of open justice and the need to protect ASIO's operational capacity, including its intelligence sources and foreign agency relationships.

  • Non-publication orders are not necessarily a sufficient substitute for closing the court where the concern is that persons present in an open court could themselves obtain and misuse sensitive security information; the adequacy of any protective measure depends on the specific threat identified.

  • Prejudice to an accused arising from repeated court closures during a terrorism trial is not automatically fatal to the protective orders regime; jury directions and the timely release of edited transcripts can together sufficiently mitigate that prejudice.

  • The Court noted, without finally deciding, that the power to screen witnesses from public view derives from a superior court's inherent jurisdiction rather than from the Crimes Act or the Criminal Code, leaving open the question of whether a court of purely statutory jurisdiction (such as the District Court) would hold the same power.

Legislation and Cases Referenced

Legislation:
- Australian Security Intelligence Organisation Act 1979 (Cth)
- Criminal Code Act 1995 (Cth), including s 93.2
- Crimes Act 1914 (Cth), including s 85B
- National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), including ss 28 and 29

Cases:
- Jarvie & Anor v Magistrates Court of Victoria at Brunswick & Ors [1995] 1 VR 84
- John Fairfax Group Pty Ltd & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131
- John Fairfax Publications Pty Limited & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344