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Supreme Court 10 May 2017

R v Azari (No 3)

[2017] NSWSC 553

Public order & justice offences
CRIMINAL LAW TERRORISM TRIAL APPLICATION FOR SUPPRESSION ORDERS APPLICATION GRANTED

Citation: R v Azari (No 3) [2017] NSWSC 553
Court: Supreme Court of New South Wales
Date: 10 May 2017
Judge: N Adams J

Background

The accused stood charged with one count of doing an act in preparation or planning for a terrorist act, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth). The trial began on 10 April 2017, with a jury empanelled on 24 April 2017. The jury was subsequently discharged on 3 May 2017 following prejudicial media coverage of separate proceedings, and a retrial was ordered for later in the year.

On the first day of the original trial, the Commissioner of the Australian Federal Police applied by notice of motion for suppression orders over certain evidence. The application was supported by an affidavit from Deputy Commissioner Michael Phelan and detailed written submissions. Neither the Commonwealth Director of Public Prosecutions nor the accused opposed the application.

Adams J made the suppression orders on 10 April 2017 and reserved reasons for a later date. This judgment provides those reasons.

  • Whether the court had power to make suppression and non-publication orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) and the Surveillance Devices Act 2004 (Cth) over evidence relating to an AFP investigative methodology.
  • Whether the grounds in s 8(1)(a), (b) and (e) of the Court Suppression Act were established, specifically: preventing prejudice to the administration of justice, protecting national or international security interests, and the public interest significantly outweighing the interest in open justice.
  • Whether the Phelan affidavit should be returned to the AFP Commissioner rather than retained by the court.

Decision

Adams J was satisfied, on the basis of the Phelan affidavit, that suppression orders were necessary on multiple grounds. The material in question concerned, or was the product of, a particular investigative methodology used by the AFP. Disclosure beyond the limits set by the orders could reasonably be expected to cause grave harm to counter-terrorism and serious organised crime investigations, and to prejudice national security more broadly.

The court acknowledged the fundamental principle, expressed in s 6 of the Court Suppression Act, that open justice is a primary objective of the administration of justice. Nonetheless, Adams J was satisfied that the harm to the public interest from disclosure outweighed that principle in the circumstances, including noting that some limited prior disclosure of the relevant methodology had already occurred.

The orders were described as anticipatory, made before the evidence was formally adduced at trial. The court noted that Adamson J had made substantially identical orders in two recent terrorism matters, R v Alqudsi and R v Yousif, Elomar and Elomar. After the accused notified extensive objections to the Crown Case Statement, the Crown withdrew a significant number of paragraphs. All of the material subject to the suppression orders fell within those withdrawn paragraphs, meaning none of the suppressed material was ultimately pressed at trial.

On the question of the Phelan affidavit, the court ordered that the original be returned to the AFP Commissioner, with a redacted version provided to the court within seven days. The affidavit contained two categories of information: material highlighted in yellow (sensitive but available to the parties) and material highlighted in green (more sensitive material not made available to the parties, as it did not directly concern the accused or the trial issues).

Orders Made

  • No disclosure, by publication or otherwise, of the following material:
  • All images and documents exhibited to the statement of Nadine Hallak dated 7 January 2016
  • The statement of Anton Sabella dated 11 January 2016, including all exhibited images and documents
  • The statement of Federal Agent Robert Crane dated 14 January 2016, including all exhibited images and documents
  • Images obtained pursuant to a surveillance device warrant, and any other images from a surveillance device identified in the proceedings
  • Two evidentiary certificates issued under s 62(1) of the Surveillance Devices Act 2004 (Cth)
  • Crown Case Statements tendered at committal (February 2016) and filed in the Supreme Court (8 February 2017)
  • The committal chronology of telecommunications and surveillance device evidence
  • The whereabouts and methods of the surveillance device used to obtain the relevant images
  • Yellow-highlighted information in the Phelan affidavit
  • The AFP Commissioner's written submissions in support of the motion
  • The suppression orders do not prevent disclosure to: the court and court staff, the empanelled jury, the CDPP and its representatives, the accused and his legal representatives, the AFP Commissioner and AFP officers, and Commonwealth officers.
  • At the conclusion of proceedings (including appeals), the accused and his legal representatives must return to the AFP Commissioner all documents within the scope of the orders.
  • Orders apply throughout the Commonwealth of Australia until further order.
  • The Phelan affidavit is to be returned to the AFP Commissioner, with a redacted version provided to the court within seven days.

Key Takeaways

  • Suppression orders over AFP investigative methodologies in terrorism proceedings can be granted on multiple grounds under the Court Suppression Act, including prejudice to the administration of justice (s 8(1)(a)), national security interests (s 8(1)(b)), and the broader public interest (s 8(1)(e)).
  • The existence of some prior, limited disclosure of a particular investigative methodology does not automatically preclude suppression orders from being made where the potential harm to ongoing investigations remains serious.
  • Anticipatory suppression orders, made before evidence is formally adduced at trial, fall within the court's power under s 7(1)(b) of the Court Suppression Act, which covers evidence or information about evidence expected to be given in proceedings.
  • Where an affidavit in support of a suppression application contains material too sensitive to be retained on the court file, the Supreme Court may order the affidavit returned to the applicant and a redacted version substituted.
  • Consistent practice across the NSW Supreme Court is apparent: Adams J noted that Adamson J had made substantially identical orders in R v Alqudsi and R v Yousif, Elomar and Elomar, reflecting an established approach to protecting AFP surveillance methods in terrorism trials.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
- Criminal Code Act 1995 (Cth), s 101.6(1)
- Surveillance Devices Act 2004 (Cth), ss 14, 47, 62
- Crimes Act 1914 (Cth), s 3

Cases:
- R v Alqudsi [2016] NSWSC 1168
- R v Azari (No 2) [2017] NSWSC 515
- R v Lodhi (2006) 163 A Crim R 508; [2006] NSWSC 596
- R v Yousif, Elomar and Elomar (unreported, 22 March 2017, NSWSC, Adamson J)