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Supreme Court 2 November 2018

R v Azari (No 8)

[2018] NSWSC 1674

Public order & justice offences
CRIMINAL LAW TERRORISM TRIAL APPLICATION GRANTED

Citation: R v Azari (No 8) [2018] NSWSC 1674
Court: Supreme Court of New South Wales
Date: 2 November 2018
Judge: N Adams J

Background

The accused faced trial on a single charge of doing an act in preparation of, or planning, a terrorist act under s 101.6(1) of the Criminal Code Act 1995 (Cth). The trial was due to commence on 9 October 2018 but was delayed by pre-trial applications, including this one.

The Crown intended to call a witness who had previously been convicted and sentenced for a terrorism-related offence. That witness's entire sentencing proceedings had already been suppressed on national security grounds and to protect his personal safety and that of his family.

On 9 October 2018, the Commissioner of the Australian Federal Police (through counsel instructed by the Australian Government Solicitor) applied to consolidate and expand existing suppression orders relating to the witness. The witness's own counsel separately applied for a pseudonym order and for the witness's evidence to be taken in a closed court.

  • Whether suppression and non-publication orders were necessary under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to prevent prejudice to the proper administration of justice.
  • Whether such orders were necessary under s 8(1)(b) to protect the interests of the Commonwealth in relation to national or international security.
  • Whether a pseudonym order was necessary to protect the safety of the witness and his family.
  • Whether the witness's evidence should be taken in a closed court.
  • How the statutory "necessity" test under s 8 of the Court Suppression Act applies in these circumstances.

Decision

Adams J granted all the orders sought, having reserved judgment after reading the confidential affidavit of Assistant Commissioner Ian McCartney and confidential written submissions filed by the Commissioner. The court emphasised that in making any suppression order it must weigh the public interest in open justice, which the Act designates as a primary objective of the administration of justice (s 6).

On the necessity test, the court applied the reasoning of the Court of Criminal Appeal in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52. That case established that "necessary" is a contextually flexible standard: the connection between the proposed order and its purpose will vary depending on whether the prejudice is certain or merely possible, and whether the order fully obviates or merely diminishes the risk. The court also noted that the administration of justice encompasses future cases, including the willingness of witnesses to come forward, not only the proceedings at hand.

Because the confidential affidavit and submissions went to national security matters and the personal safety of the witness and his family, the court declined to summarise them in its reasons. The orders were not opposed by the Crown and were neither consented to nor opposed by senior counsel for the accused. Adams J was satisfied that the grounds in ss 8(1)(a), (b) and (c) were made out and that the orders were necessary to prevent prejudice to both the administration of justice and to national or international security interests.

Orders Made

The court made a comprehensive set of consolidated suppression, pseudonym and procedural orders, the key elements of which were:

  • The true identity of the Crown witness was suppressed; he was to be referred to throughout proceedings by the pseudonym "Ahmed Hussain."
  • The witness's evidence was to be given in a closed court.
  • Publication or disclosure of information capable of identifying the witness was prohibited.
  • Disclosure was permitted only to specified persons, including the jury, counsel for the parties, relevant counter-terrorism agency personnel, NSW Corrective Services staff, and the witness and his legal representatives.
  • Subpoenas could name the witness's true identity, but the party issuing the subpoena was required to provide a copy of the orders (with certain orders redacted) to the recipient at the time of service, and to notify the Commissioner of the AFP of the subpoena's issue.
  • Documents produced in response to any such subpoena were to be held by the Registry as confidential, with access limited to the parties and the Commissioner.
  • Access to the confidential McCartney affidavit and the Commissioner's written submissions was limited to the court and legal representatives of the parties.
  • All submissions and material filed on behalf of the witness, and any related transcripts, were restricted to a defined class of persons.
  • The orders applied throughout the Commonwealth of Australia until further order.
  • Liberty to apply to vary the orders at short notice was granted.
  • Orders were made under ss 8(1)(a), (b) and (c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

Key Takeaways

  • The "necessity" test under s 8 of the Court Suppression Act is not a fixed standard. As confirmed by the Court of Criminal Appeal in Fairfax Digital v Ibrahim, it operates on a variable scale calibrated to the nature and degree of the risk of prejudice and the extent to which the proposed order would address that risk.
  • A witness's prior assistance to authorities and a history of suppressed sentencing proceedings on national security grounds can together support findings of necessity across multiple statutory grounds, including ss 8(1)(a), (b) and (c).
  • Suppression orders in terrorism proceedings can properly extend to pseudonym and closed-court arrangements where both national security interests and the personal safety of a witness and family members are implicated.
  • The administration of justice, for the purposes of the suppression order necessity test, encompasses the broader public interest in witnesses being willing to give evidence in future cases, not merely the integrity of the current proceedings.
  • Where a court declines to summarise confidential material in its published reasons, it may still satisfy its obligation to provide reasons by identifying the statutory grounds and the legal framework applied, without disclosing the sensitive content that underlies its conclusion.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
- Criminal Code Act 1995 (Cth), Schedule, s 101.6(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77

Cases:
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
- Commissioner of Police v Nationwide News (2007) 70 NSWLR 643; [2007] NSWCA 366
- R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101