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Supreme Court 11 June 2008

Regina (C'Wealth) v Baladjam & Ors [No 24]

[2008] NSWSC 1447

Public order & justice offences
CRIMINAL LAW APPLICATION FOR STAY OF PROCEEDINGS ABUSE OF PROCESS ASIO ACT 1979 CONSTRUCTION OF S 18(2) AUTHORITY OR APPROVAL TO GIVE EVIDENCE

Citation: Regina (C'Wealth) v Baladjam & Ors [No 24] [2008] NSWSC 1447
Court: Supreme Court of New South Wales
Date: 11 June 2008
Judge(s): Whealy J

Background

Nine accused men faced charges of conspiring with each other to do acts in preparation for a terrorist act or acts. The Crown case was largely circumstantial and was expected to rely on intercepted telephone conversations, listening device recordings, and surveillance evidence gathered over approximately fourteen months. The Crown proposed to call approximately 48 officers from the Australian Security and Intelligence Organisation (ASIO) to give surveillance evidence at trial.

One of the accused sought a stay of the proceedings on the basis that calling ASIO officers as witnesses would constitute an abuse of process. The argument was that ASIO officers are either absolutely prohibited from disclosing intelligence information in court, or are prohibited from doing so without the proper authorisation under the Australian Security and Intelligence Organisation Act 1979 (Cth) (the ASIO Act). The submission went further, contending that any such testimony would itself constitute a serious criminal offence, in which the prosecution would be complicit.

  • Whether s 18(2) of the ASIO Act imposes an absolute prohibition on ASIO officers giving evidence in criminal proceedings, or whether that prohibition is subject to exceptions.
  • Whether, if such evidence can be given with appropriate approval, the Director-General of ASIO had in fact granted sufficient approval for the witnesses to testify in this trial.
  • Whether, absent proper authorisation, the proposed course would amount to an abuse of process warranting a stay of the entire proceedings.

Decision

Whealy J rejected the primary submission that the ASIO Act absolutely prohibited ASIO officers from giving evidence in criminal proceedings. The court construed s 18(2) of the ASIO Act as creating a criminal offence for the unauthorised communication of intelligence, not an absolute bar on all communication. The section itself expressly carves out exceptions, including communications made with the approval of the Director-General or an officer of the Organisation holding delegated authority to give such approval.

The court also dismissed the secondary submission that, even if the prohibition was not absolute, there were insufficient controls to prevent ASIO witnesses inadvertently disclosing sensitive national security information beyond the proper scope of their evidence. Whealy J identified several layers of protection already in place: the relevant authorisations themselves, the obligations on counsel not to ask improper questions, the court's own power to control proceedings, the ongoing involvement of Commonwealth solicitors and counsel, and the protections afforded by the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), including the requirement for a national security hearing before certain questions touching on national security information could be answered.

On the critical factual question, the court was satisfied that the Director-General had given approval for each of the proposed ASIO witnesses to give the evidence the Crown intended to rely upon. That approval was established by reference to Exhibit "B", described in the judgment but not reproduced. With the factual foundation of the stay application therefore absent, the court found no abuse of process had been demonstrated.

Orders Made

  • The application for a stay of proceedings was dismissed.

Key Takeaways

  • Section 18(2) of the ASIO Act does not impose an absolute prohibition on ASIO officers communicating intelligence in court proceedings. The prohibition is subject to defined exceptions, including communication made with the approval of the Director-General.
  • Where the Director-General has granted approval for ASIO officers to give evidence, the giving of that evidence does not constitute a criminal offence under the ASIO Act.
  • A stay of proceedings based on alleged abuse of process requires a demonstrated foundation. In this case, once proper Director-General approval was established, the basis for the stay application fell away entirely.
  • Multiple control mechanisms, including court oversight, counsel obligations, Commonwealth legal representation, and the National Security Information (Criminal and Civil Proceedings) Act 2004, operate together to guard against inadvertent disclosure of sensitive national security information during witness examination.
  • The decision confirms that ASIO officers can lawfully give surveillance evidence in criminal proceedings, provided the requisite authorisation under the ASIO Act has been obtained.

Legislation and Cases Referenced

Legislation:
- Australian Security and Intelligence Organisation Act 1979 (Cth), particularly ss 8, 17, 18(1), 18(2), 18(3), and 20
- Criminal Code Act 1995 (Cth)
- National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), including s 25

Cases:
- Church of Scientology v Woodward (1982) 154 CLR 25