Citation: R v Musleh (No 2) [2018] NSWSC 1221
Court: Supreme Court of New South Wales
Date: 6 August 2018
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 criminal proceedings against the defendant. The application sought to shield from public disclosure a range of sensitive material, including surveillance device warrant images, evidentiary certificates, agent statements, and supporting AFP affidavit material.
The application was supported by an affidavit from an AFP Assistant Commissioner and National Manager Counter-Terrorism. That affidavit was produced in two tiers: portions highlighted yellow were available to the parties; portions highlighted green were available to the Court only. The defendant did not oppose the orders sought.
The Commissioner sought suppression under the Court Suppression and Non-publication Orders Act 2010 (NSW), s 47 of the Surveillance Devices Act 2004 (Cth), and the Court's inherent jurisdiction. The central concern was that disclosure of the techniques described in the material would damage ongoing counter-terrorism operations.
Legal Issues
- Whether suppression orders were necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security under s 8(1)(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW)
- Whether the orders could also be justified under s 8(1)(a) of the Act, on the basis that the administration of justice extends to the investigation and detection of crime
- Whether the public interest in making the orders significantly outweighs the public interest in open justice under s 8(1)(e) of the Act
- Whether the principle of fair trial operated as a countervailing consideration against making the orders
- What duration should be specified for the orders
Decision
National security ground (s 8(1)(b)): Adamson J was satisfied that suppression was necessary to prevent prejudice to Commonwealth interests in national and international security. Disclosure of the sensitive information could compromise the AFP's capacity to detect, investigate and prove serious crimes, including terrorist offences, and could put national security at risk (at [6]).
Administration of justice ground (s 8(1)(a)): The Court accepted, following Attorney-General for New South Wales v Nationwide News Pty Ltd [2007] NSWCCA 307, that the administration of justice extends beyond curial proceedings to include the investigation and detection of crime and the obtaining of evidence. On that basis, the orders were also necessary under s 8(1)(a) (at [7]).
Public interest ground (s 8(1)(e)): The Court found a substantial public interest in the investigation and prosecution of crime and in protecting sensitive police technologies and procedures. Because the Commissioner proposed that a summary of the suppressed material would be available in open court, the derogation from open justice was characterised as minimal. The public interest in making the orders was found to significantly outweigh the public interest in open justice (at [8]-[10]).
Fair trial and duration: The principle of fair trial did not arise as a countervailing factor because the Commissioner was not seeking to deny the parties access to the sensitive information relevant to the proceedings (at [11]). As to duration, Adamson J declined to specify a fixed period, finding it was not presently feasible to predict how long the orders would need to remain in place, though acknowledging they would no longer be required if the matters became common knowledge (at [13]).
Orders Made
- No disclosure, by publication or otherwise, of surveillance device warrant images, associated evidentiary certificates, AFP agent statements, or any information tending to reveal the whereabouts or methods of the surveillance devices
- No disclosure of the yellow-highlighted portions of the AFP Assistant Commissioner's affidavit or the Commissioner's written submissions in support of the motion
- No disclosure of the green-highlighted portions of the affidavit (with that material restricted to the Court and AFP only)
- Exceptions permitting disclosure within the proceedings to the Court, the CDPP, the defendant and their legal representatives, AFP members and appointees, and Commonwealth officers (for orders 1 and 2 only)
- Orders to operate throughout Australia until further order, with no fixed end date specified
- The defendant and defence legal representatives to return forthwith any documents falling within order 2, and to return all other suppressed material at the conclusion of proceedings including any appeals
- Copies of the unredacted affidavit to be returned to the Commissioner's representatives for safekeeping by the Australian Government Solicitor
Key Takeaways
- Under s 8(1)(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW), suppression orders may be made where disclosure of material would prejudice Commonwealth interests in national or international security, including by impairing the AFP's capacity to conduct counter-terrorism investigations (at [6]).
- "Administration of justice" within s 8(1)(a) of the Act extends to the investigation and detection of crime and the obtaining of evidence against suspects, not merely to curial proceedings themselves (at [7]).
- Where a suppressor proposes that an open-court summary of suppressed material will be available, a court may treat the resulting derogation from open justice as minimal and weigh it accordingly against the public interest in making the order (at [9]-[10]).
- The principle of fair trial does not operate as a bar to suppression orders where the applicant does not seek to deprive the parties of access to the sensitive information in the conduct of the proceedings (at [11]).
- A court may decline to fix a duration for suppression orders under s 12(2) of the Act where the evidence does not permit a prediction of when the protective purpose will cease to apply, provided the orders remain open to variation (at [13]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8 and 12
- Surveillance Devices Act 2004 (Cth), s 47
Cases
- Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307
- Lodhi v Regina (2006) 65 NSWLR 573; [2006] NSWCA 101