AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 13 October 2017

R v Khaja (No 2)

[2017] NSWSC 1853

Public order & justice offences

Citation: R v Khaja (No 2) [2017] NSWSC 1853
Court: Supreme Court of New South Wales
Date: 13 October 2017
Judge(s): Fagan J

Background

This decision arose from pre-trial proceedings in the matter of R v Khaja, a criminal trial listed to commence on 30 October 2017. The New South Wales Commissioner of Police applied by notice of motion for orders to protect the identity of a fourth Crown witness, an undercover officer of the NSW Police who had held two face-to-face meetings with the accused totalling approximately two and a half hours.

The application was supported by an open affidavit from an Acting Assistant Commissioner, a confidential affidavit from the witness himself, and a further confidential affidavit from a senior officer of another government agency. The companion judgment, R v Khaja (No 1) [2017] NSWSC 1578, had already dealt with identity protection orders for three AFP witnesses sought by the AFP Commissioner.

The accused opposed the orders, arguing they would serve no practical purpose given the length and nature of his prior face-to-face contact with the witness.

Legal Issues

  • Whether orders protecting the identity of an undercover NSW Police officer should be made, having regard to personal safety and law enforcement interests
  • Whether the potential inutility of such orders, given the accused's prior face-to-face contact with the witness, was a sufficient reason to refuse them
  • Whether jurisdiction existed to make the orders, including under s 34 of the Law Enforcement and National Security Assumed Identities Act 2010 (NSW)

Decision

Issue 1: Whether the protective orders should be made

Fagan J was satisfied that the same reasoning applied here as in R v Khaja (No 1): the orders were justified to protect the witness's personal safety and to avoid harming, incapacitating, or impeding the investigatory work of NSW Police and other law enforcement agencies (at [3]). The witness had performed duties under an assumed name, and the court considered a pseudonym (neither the real name nor the assumed name) the preferable mechanism to protect his identity throughout the trial (at [9]).

Issue 2: The utility objection

The defence argued solely on grounds of utility, contending that the accused had already had sufficient opportunity to observe and memorise the witness's features across two lengthy meetings (at [6]). Fagan J declined to accept this argument at the pre-trial stage, noting that the question of utility could not be resolved without cross-examination and testing of witnesses (at [7]). The court held that speculative or possible inutility, where futility could not be confirmed, did not constitute a substantial reason to withhold orders in circumstances where the countervailing risks were grave (at [7]-[8]).

Issue 3: Jurisdiction

The court identified jurisdiction on the same grounds as in R v Khaja (No 1), with additional power to make all orders sought under s 34 of the Law Enforcement and National Security Assumed Identities Act 2010 (NSW) (at [8]).

Orders Made

Orders were made at [9], including:

  • The witness to give evidence throughout the trial under the pseudonym "AB"
  • No disclosure of the witness's real or assumed identity, or any material facilitating identification
  • No publication of the witness's real or assumed identity or appearance
  • The court to be closed for the duration of the witness's evidence, with specified persons permitted to remain present
  • Evidence to be given via encrypted audio visual link from an undisclosed remote location, viewable only by permitted persons
  • Suppression of the closed-court transcript, placed on the court file in a sealed envelope, on the ground of necessity to prevent prejudice to national security interests of the Commonwealth and NSW
  • Prohibition on publication of the terms of order (9), on the ground of necessity for the administration of justice (this order was subsequently discharged on 30 April 2018)

Key Takeaways

  • Speculative inutility of identity-protection orders does not constitute a sufficient basis to refuse them where the risks to a witness's personal safety and to law enforcement capabilities are grave, and where futility cannot be confirmed without hearing evidence tested in cross-examination (at [7]-[8]).
  • Under s 34 of the Law Enforcement and National Security Assumed Identities Act 2010 (NSW), courts have express power to make comprehensive identity-protection orders for undercover officers working under assumed identities (at [8]).
  • Where an undercover witness operates under an assumed name, a court may assign a further pseudonym for trial proceedings, distinct from both the real and assumed identities, to achieve the protective objectives sought (at [9]).
  • The Supreme Court balanced the gravity of risks to the witness and to investigative capabilities against the defence's utility argument, finding the balance clearly favoured making the orders (at [8]).
  • Closed-court orders can extend to specified categories of permitted persons, including defence legal representatives, prosecution lawyers, law enforcement officers not required to give subsequent evidence, and corrective services staff, while excluding the general public (at [9]).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Law Enforcement and National Security Assumed Identities Act 2010 (NSW)

Cases
- Not stated