Citation: R v Alqudsi [2016] NSWSC 1168
Court: Supreme Court of New South Wales
Date: 4 July 2016
Judge(s): Adamson J
Background
The Commissioner of the Australian Federal Police applied by notice of motion for suppression and non-publication orders in the course of an ongoing criminal proceeding. The application was supported by an affidavit from the Deputy Commissioner of the Australian Federal Police, who also held the role of Deputy Commissioner National Security. Adamson J reviewed an unredacted version of the affidavit (which was then returned to the Commissioner's representative), while a redacted version was retained on the court file and provided to the parties.
The orders sought related to images obtained pursuant to a surveillance warrant, information about the technical means used to obtain those images, and certain materials from a hearing held on 20 June 2016, including the transcript, exhibits tendered on a voir dire, and a judgment delivered that day.
Legal Issues
- Whether the grounds in ss 8(1)(a) and 8(1)(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) were satisfied, namely: whether publication would prejudice the proper administration of justice, and whether it would prejudice the interests of the Commonwealth in relation to national or international security.
- What duration the suppression orders should operate for, having regard to the obligation under the Act to ensure orders last no longer than reasonably necessary.
- Whether certain orders should be made on an interim basis pursuant to s 10 of the Act.
Decision
Issue 1: Grounds for suppression
Adamson J was satisfied, on the basis of the Deputy Commissioner's affidavit, that both statutory grounds were established (at [2]). The court accepted that publication would risk prejudice to the proper administration of justice under s 8(1)(a), and would risk prejudice to national or international security interests under s 8(1)(b) (at [2]).
Issue 2: Duration of the orders
The court acknowledged its obligation to limit orders to no longer than reasonably necessary (at [4]). However, Adamson J found that it was not presently feasible to predict how long the orders needed to remain in force, noting that the relevant matters could one day become common knowledge, at which point the orders would no longer be required (at [4]). Accordingly, no fixed time limit was imposed on most orders. Orders relating to the 20 June 2016 hearing materials (prayers 3, 4 and 5) were made on an interim basis "until further order" under s 10 of the Act (at [3]-[4]).
Issue 3: Scope and review
To ensure the non-publication regime remained as limited as necessary, the court directed the Commissioner to provide redacted versions of the materials covered by orders 3, 4 and 5 to the court and to both parties' legal representatives, with a view to reviewing whether the scope of suppression could be narrowed (at of the orders section). The orders expressly preserved the ability of authorised parties, including the court, the jury, and legal representatives on both sides, to communicate and use the information for the purposes of the proceedings.
Orders Made
- No publication of specified images (including those annexed to three witness statements and those obtained under surveillance warrant SD-3673), collectively referred to as "the protected images."
- No publication of information about the technical means by which the protected images were obtained, including the existence, nature, and functions of that technical means.
- Until further order: no publication of the transcript of the hearing on 20 June 2016; no publication of exhibits tendered on the voir dire held on 20 June 2016; no publication of the judgment delivered on 20 June 2016.
- The orders do not prevent disclosure of the content of communications that the protected images are said to represent, or any photograph contained within a protected image.
- The orders do not prevent disclosure between the court, court staff, the jury, the CDPP and its representatives, the defendant and defence representatives, or the AFP Commissioner and AFP officers and their representatives, for the purposes of the proceedings.
- Orders apply throughout the Commonwealth of Australia.
- The Commissioner directed to forward redacted versions of the materials in orders 3, 4, and 5 to chambers and legal representatives for review.
Key Takeaways
- The Supreme Court confirmed that suppression orders under ss 8(1)(a) and (b) of the Court Suppression and Non-publication Orders Act 2010 can be granted where evidence establishes a real risk of prejudice to both the administration of justice and national or international security interests (at [2]).
- Under s 10 of the Act, interim suppression orders may be made "until further order" where the matters at issue are sufficiently sensitive and the appropriate final duration cannot yet be determined (at [3]).
- The obligation to limit orders to no longer than reasonably necessary does not require a fixed end date in every case; where the duration cannot be predicted on current information, an indefinite order may be appropriate, provided the court acknowledges circumstances under which it could be revisited (at [4]).
- Suppression orders of this kind can be crafted with carve-outs that permit necessary disclosure to parties, legal representatives, and the jury, so that the proceedings themselves are not impeded.
- A direction to provide redacted versions of suppressed materials for later review reflects the court's ongoing obligation to ensure that non-publication orders remain no broader than necessary to achieve their protective purpose.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 10 Surveillance Devices Act 2004 (Cth)
Cases
- Not stated