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Supreme Court 20 June 2018

R v Musleh

[2018] NSWSC 1222

Public order & justice offences
PRACTICE AND PROCEDURE NON ORDERS NOT OPPOSED ORDERS MADE AS SOUGHT

Citation: R v Musleh [2018] NSWSC 1222
Court: Supreme Court of New South Wales
Date: 20 June 2018
Judge(s): Adamson J

Background

The Commissioner of the Australian Federal Police applied by notice of motion for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) in the course of a criminal prosecution. The application sought to protect the identity of an informant who had provided assistance to the AFP, including in relation to counter-terrorism investigations. The application was supported by a confidential affidavit from a Deputy Commissioner of the AFP.

Neither the accused nor the Crown opposed the orders sought. The court received the supporting affidavit and written submissions in advance and, after delivery of reasons, returned those documents to the AFP's legal representative for secure storage.

Legal Issues

  • Whether suppression and non-publication orders should be made to protect the identity of an AFP informant and information about that person's assistance to authorities
  • Whether the orders were necessary under sections 8(1)(a), (b) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), specifically to prevent prejudice to the administration of justice, to protect national and international security, and to protect the safety of persons
  • Whether the court should be closed for the taking of the informant's evidence and any other disclosure of sensitive information during the proceedings
  • What duration the suppression orders should operate for

Decision

Issue 1: Grounds for suppression and non-publication orders

Adamson J was satisfied that disclosing the sensitive information (defined to include the informant's identity, appearance, address, and the nature of any assistance provided to authorities) would prejudice counter-terrorism investigations and prosecutions and thereby prejudice Australia's national and international security (at [5]). The court was also satisfied that disclosure would place the informant and the informant's family at risk of being harmed or killed (at [5]).

On that basis, the court found the orders necessary under each of sections 8(1)(a), (b) and (c) of the Act: to prevent prejudice to the proper administration of justice, to protect national and international security, and to protect the safety of the informant and family members (at [5]). The court emphasised that protecting persons who provide information to investigating and prosecuting authorities is fundamental not only to individual cases but to the investigation of crime and the administration of justice generally (at [3]).

Issue 2: Natural justice and access to sensitive information

The Commissioner did not seek to restrict disclosure of the sensitive information as between the parties and the court. Accordingly, the accused and legal representatives retained access to the information for the purposes of the defence at trial, preserving natural justice (at [6]).

Issue 3: Closure of the court

Adamson J ordered that the court be closed for the taking of the informant's evidence and at any time when the sensitive information was referenced (at [10]-[11]). The court acknowledged that closing a court is a rare step, but found that allowing the informant to give evidence in open court would substantially increase the danger to that person, since any member of the public could enter, observe, and potentially recognise the informant (at [11]). The court held that the principles of open justice, while fundamental, are not inviolable and must give way in certain circumstances to protect the administration of justice and national security (at [11]). The judge, jury, accused, legal representatives, and other authorised persons would remain present throughout that evidence (at [11]).

Issue 4: Duration and form of orders

Because it was not presently feasible to predict how long protection would be required, the court determined the suppression orders would operate until further order (at [9]). The accessible court file copy of the orders was to be redacted so that only a pseudonym appeared, and an un-redacted copy was to be placed in a sealed envelope openable only by judicial order (at [8]). Suppression orders were also made over the Deputy Commissioner's affidavit and the Commissioner's written submissions (at [7]).

Orders Made

  • Until further order, no disclosure (by publication or otherwise) of any information that reveals or tends to reveal the identity of the informant, including name, address, or appearance, or regarding the fact or nature of any assistance the informant has provided or may provide to authorities ("Sensitive Information")
  • The suppression order does not prevent disclosure among authorised persons, including the presiding judge, necessary court staff, the jury, the Crown, the accused and legal representatives, relevant Joint Counter Terrorism Team members, NSW Corrective Services staff, and courts hearing appeals
  • The Crown may disclose the Sensitive Information in other criminal proceedings, subject to orders in those proceedings
  • The court be closed during the taking of the informant's evidence and at any time the Sensitive Information is mentioned in proceedings
  • The accessible copy of the orders on the court file to be redacted, replacing the informant's name with a pseudonym
  • An un-redacted copy of the orders to be placed in a sealed envelope, openable only by order of the court or another judge
  • Suppression orders made over the Deputy Commissioner's affidavit and the Commissioner's written submissions
  • Media organisations wishing to seek variation of the orders must apply to the court, with the AFP Commissioner to receive notice and an opportunity to be heard

Key Takeaways

  • Under sections 8(1)(a), (b) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Supreme Court confirmed that suppression orders protecting an informant's identity may be warranted simultaneously on three grounds: preventing prejudice to the administration of justice, protecting national and international security, and protecting the physical safety of persons (at [5]).

  • A finding that disclosure of an informant's identity would create a real risk of harm or death to that person and family members, combined with demonstrated prejudice to counter-terrorism operations, can satisfy the necessity threshold for suppression orders under the Act (at [5]).

  • Court closure for the taking of a witness's evidence, though a rare measure, may be ordered where the danger identified by open evidence-taking would substantially increase the risk to a witness who has assisted law enforcement and where that risk cannot be adequately addressed by less drastic means (at [10]-[11]).

  • The principles of open justice are not inviolable: the Supreme Court held they must yield in circumstances where the administration of justice, national security, and the safety of informants and their families would otherwise be compromised (at [11]).

  • Suppression orders protecting an informant's identity are consistent with preserving the accused's right to a fair trial where, as here, the sensitive information remains fully accessible to the accused and legal representatives for the purposes of the defence (at [6]).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases
- Not stated