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Supreme Court 13 October 2017

R v Khaja (No 1)

[2017] NSWSC 1578

Public order & justice offences

Citation: R v Khaja (No 1) [2017] NSWSC 1578
Court: Supreme Court of New South Wales
Date: 13 October 2017
Judge: Fagan J

Background

The accused faced two counts under the terrorism provisions of the Criminal Code (Cth). The first alleged that he undertook planning and preparation for a violent attack on either a Commonwealth Defence Forces facility in Western Sydney or the Parramatta Court Complex during May 2016. The second alleged that he made preparations to travel to Syria to join ISIS and engage in combat, and was stopped at Sydney Airport.

The Commissioners of the Australian Federal Police and New South Wales Police applied for orders to protect the identities of three Crown witnesses: individuals who had communicated with the accused during the alleged offending. Two communicated with the accused only in written electronic form; the third had face-to-face meetings with him.

The proposed protective regime had three elements: evidence given by audio visual link (AVL), evidence given in closed court, and restriction of the AVL screens so the accused could not view the witnesses as they testified.

Legal Issues

  • Whether the court had power to order that the three witnesses give their evidence by AVL, and whether doing so would adversely affect the accused's right to a fair hearing.
  • Whether the court could close the proceedings to the public during those witnesses' evidence, having regard to Commonwealth security interests and the principles of open justice.
  • Whether the accused should be prevented from viewing the AVL screens on which the witnesses appeared, given his prior contact (however brief) with the third witness.
  • Whether there was any utility in making the screen restriction order in respect of the third witness, given the accused may already have been able to identify him from their prior meetings.

Decision

Issue 1: Audio Visual Link

Fagan J held that ordering evidence by AVL would not adversely affect the accused's right to a fair hearing (at [13]). Two sources of power supported the order: section 15YV of the Crimes Act 1914 (Cth) (applied on the Crown's support for the application) and section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (at [12], [16]-[17]). The court found that the uniformity of taking all four relevant witnesses' evidence in the same way avoided any adverse inference, and proposed a jury direction explaining that taking evidence by AVL is commonplace for witnesses cooperating with police (at [14]).

Issue 2: Closed Court

The court was satisfied that closing the court during these witnesses' evidence was justified under section 93.2 of the Criminal Code (Cth), which permits closure where it is in the interests of security or the defence of the Commonwealth (at [21]). The allegations of planning attacks on Commonwealth Defence Force facilities and the courts fell squarely within that provision. There was also a risk that others holding similar ideological beliefs might carry out like attacks, reinforcing the need to preserve the witnesses' identities and the AFP's investigative capacity (at [23]). Suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) were separately justified on grounds of Commonwealth and State security and witness safety (at [25]-[26]).

The court found that the principles of open justice would be only limitedly infringed. The substance of the Crown's case, namely the electronic records of the accused's alleged communications, would be given openly. The closed portions would relate only to the witnesses confirming those exchanges, which the court characterised as a partial and bounded restriction (at [27]-[28]).

Issue 3: Screen Restriction and the Third Witness

The defence objected only to the screen restriction in respect of the third witness, arguing that, because the accused had already met him, the order served no practical purpose. Fagan J rejected that argument, noting that the accused's two brief encounters with the third witness left it genuinely uncertain whether he could make a reliable visual identification (at [19]-[20]). Additionally, the face-to-face meetings were substantially sound recorded, with some video and photographs, making that witness's oral evidence of comparatively limited forensic significance (at [31]). Drawing on R v Murphy [1990] NI 316, the court held that it was not critical to the fairness of the proceeding that the accused be able to see that witness testify (at [32]).

Orders Made

The court made orders including:

  • The court to be closed during the hearing of the motion and during the evidence of the three protected witnesses (named in the orders as Sidiq al-Hasan, UCO 772241, and OCE 595294).
  • Attendance during closed sittings limited to the judge, necessary court staff, the jury, prosecution representatives, the defendant, defence legal representatives, AFP and NSW Police representatives, FBI officers, and Corrective Services officers.
  • The protected witnesses to give evidence via encrypted AVL from an undisclosed remote location.
  • Only specified participants (excluding the accused) permitted to view the AVL monitors.
  • Non-publication orders prohibiting disclosure of any information tending to reveal the identity of the protected witnesses, including images, physical descriptions, or voice recordings, until further order.
  • Transcript of closed court hearings to be provided initially only to listed participants, with a process for the AFP to seek redactions within 48 hours.

Key Takeaways

  • Under section 93.2 of the Criminal Code (Cth), a court may close proceedings where it is satisfied that closure is in the interests of security or the defence of the Commonwealth. Terrorism charges alleging planned attacks on Commonwealth Defence Force facilities and court buildings can satisfy that threshold.

  • A finding of uncertain utility does not defeat an identity-protection order. Where it remained genuinely unclear whether the accused could identify a witness from brief prior contact, the Supreme Court declined to refuse the order on grounds of inutility, particularly where no significant prejudice to the accused's case had been demonstrated.

  • Orders requiring AVL evidence do not automatically create an adverse inference against an accused. Appropriate jury directions, and the adoption of a uniform procedure for all witnesses of the same category, can address the risk that jurors might read adverse significance into the arrangement (at [13]-[14]).

  • The principles of open justice are engaged but not necessarily overridden when a court sits in closed session for identity-protection purposes. Closure of the portion of a trial in which witnesses confirm electronically recorded communications is a bounded intrusion, especially where the substance of the Crown's case is presented openly (at [27]-[28]).

  • Where face-to-face meetings between an accused and a Crown witness are substantially captured in sound recordings, video, and photographs, the witness's oral evidence may be of limited forensic significance, a factor relevant to the assessment of fairness when unusual measures govern how that evidence is delivered (at [31]-[32]).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code (Cth)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Cases
- BUSB v R [2011] NSWCCA 39
- R v Murphy [1990] NI 3I6