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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: [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) relating to preparation for terrorist acts, including collecting maps of the electricity supply system, seeking information on explosive materials, photographing defence establishments, and possessing documents concerning the manufacture of poisons and explosives. A trial in the Supreme Court was pending before Whealy J.

Before trial, the Commonwealth Attorney-General applied for protective orders to prevent disclosure of sensitive information connected to the Australian Security Intelligence Organisation (ASIO). Whealy J made a series of orders, including requiring the court to be closed whenever evidence was given about ASIO's dealings with its sources or with foreign intelligence agencies, and whenever ASIO witnesses gave evidence generally.

The accused sought leave to appeal against the orders requiring court closure, arguing that Whealy J had not properly balanced the competing principles of open justice and the right to a fair trial against the national security interests invoked by the Commonwealth.

Legal Issues

  • Whether Whealy J applied the correct legal test when making orders to close the court in the interests of national security during a terrorism trial
  • Whether the principles of open justice and the accused's right to a fair trial were given adequate weight in the balancing exercise
  • Whether the statutory power in s 93.2 of the Criminal Code 1995 (Cth) and s 85B of the Crimes Act 1914 (Cth) required court closure to be shown as "necessary" rather than merely "expedient"
  • Whether non-publication orders alone, rather than court closure, would have sufficed to protect the identified national security interests
  • Whether the cumulative effect of repeated court closures created a real risk of unfair prejudice to the accused, by leading the jury to draw adverse inferences

Decision

Issue 1: Correct approach to the balancing exercise

McClellan CJ at CL (with whom Spigelman CJ and Sully J agreed) held that Whealy J correctly identified and applied the relevant principles. The trial judge was required to weigh the protection of national security against the principles of open justice and the objective of a fair trial, and his Honour expressly recognised and carried out that exercise. The Court rejected the submission that Whealy J confined himself to asking only whether a security or defence interest existed, without weighing it against the competing considerations.

Issue 2: The statutory threshold ("expedient" versus "necessary")

The Court noted that the operative power under s 93.2 of the Criminal Code 1995 (Cth) authorises closure where the court is satisfied that doing so is "in the interest of the security or defence of the Commonwealth." The statutes use the word "may," conferring a discretion. That discretion requires the court to consider open justice and fair trial principles before making any order, even if the statutory language does not expressly require the court to find that closure is strictly "necessary." The Court did not accept that the absence of a necessity standard rendered the orders invalid.

Issue 3: Adequacy of non-publication orders as an alternative

The Court rejected the submission that non-publication orders would have been a sufficient, less restrictive alternative. Keeping the court open would have allowed any person present, including those the Commonwealth specifically sought to exclude, to receive the sensitive information in real time. A non-publication order would offer no effective protection against such a person.

Issue 4: Risk of unfair prejudice from repeated closures

The Court accepted that interruptions to the hearing would be necessary but held that Whealy J had carefully considered this risk and was satisfied that appropriate jury directions could adequately address it. The Court shared that assessment. It also noted that provision for the timely release of edited transcripts of closed proceedings would significantly reduce any adverse impact on open justice, provided the edited transcripts were released as promptly as possible after the relevant evidence was given.

Issue 5: ASIO dealings with non-ASIO witnesses and foreign agencies

The Court upheld the protective orders relating to ASIO's dealings with third-party individuals and with foreign intelligence agencies. Even though those individuals were not registered informers in the conventional sense, protecting ASIO's sources and liaison relationships was plainly within the scope of the national security interests the legislation was designed to protect. Disclosure of those sources and relationships could seriously compromise ASIO's future operational capacity and deter others from cooperating with it.

Orders Made

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The protective orders made by Whealy J remained in force, including:

  • The court to be closed whenever evidence was given disclosing ASIO's dealings with its sources or its relationships with foreign agencies
  • The court to be closed whenever ASIO witnesses gave evidence
  • No disclosure or publication of information about ASIO's dealings with sources, its foreign agency relationships, or the identity of ASIO witnesses
  • ASIO officers to be referred to by pseudonym
  • ASIO witnesses to be screened from all persons except the judge, associate, jury, and legal representatives
  • Edited transcripts of closed-court proceedings to be made publicly available within 48 hours of the day to which the transcript related

Key Takeaways

  • The Court of Criminal Appeal confirmed that orders closing a court in terrorism proceedings require a genuine balancing exercise between national security interests, the principle of open justice, and the accused's right to a fair trial, not merely a finding that a security interest exists.
  • Under s 93.2 of the Criminal Code 1995 (Cth) and s 85B of the Crimes Act 1914 (Cth), the court retains a discretion and must weigh all competing considerations, even though neither provision expressly requires that closure be "necessary" in the strict sense.
  • Non-publication orders are not automatically an adequate substitute for court closure where the concern is that persons present in court may misuse sensitive information in real time, in ways a publication ban cannot prevent.
  • Repeated interruptions to close a court do not necessarily render a trial unfair; appropriately framed jury directions can address the risk that jurors will draw adverse inferences against an accused from the closures.
  • Provision for the timely public release of edited transcripts of closed proceedings was identified by the Court as a significant mechanism for reducing the derogation from the principle of open justice caused by protective orders of this kind.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated