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Supreme Court 14 March 2018

R v Elmir

[2018] NSWSC 308

Public order & justice offences
EVIDENCE NON DISCLOSURE OF EVIDENCE WHETHER SUPPRESSION AND NON PUBLICATION ORDERS ARE NECESSARY MEANING OF “NECESSARY”

Citation: R v Elmir [2018] NSWSC 308
Court: Supreme Court of New South Wales
Date: 14 March 2018
Judge: Davies J

Background

The accused faced a charge under s 119.4(1) of the Criminal Code (Cth) of committing acts in preparation for an incursion into a foreign country (Syria) with the intention of engaging in hostile activities, while being an Australian citizen. The Crown case alleged that after separating from his parents in the Middle East, the accused travelled to Turkey in April 2016 and took active steps to cross into Syria to join and fight for Islamic State.

Those steps included staying in a safe house, obtaining military equipment, and communicating through an intermediary in Sydney (referred to as EB) who was in contact, unknowingly, with undercover operatives from the Australian Federal Police (AFP) and the Federal Bureau of Investigation (FBI). The accused returned to Australia on 1 July 2016 when his parents travelled to Turkey to bring him home.

The Commissioner of the AFP applied to the Supreme Court for a suite of suppression, non-publication, and protected witness orders before the trial. Those orders were sought to protect sensitive surveillance methods and the identities of the undercover operatives who were to give evidence.

  • Whether suppression and non-publication orders were "necessary" under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) to prevent prejudice to the proper administration of justice, national security interests, and the safety of persons.
  • Whether the court could properly make orders based on highly sensitive material (the "green highlighted" content) that was withheld even from the parties, in a manner analogous to a public interest immunity claim.
  • Whether orders could be made protecting the identities and online personas of the AFP and FBI undercover witnesses, including closing the court during their evidence and permitting remote testimony via encrypted audio-visual link.
  • Whether screening the facial features of a witness from the accused would have a substantial adverse effect on the accused's right to a fair trial, particularly where the jury would not be aware of the restriction.

Decision

Davies J granted all orders sought by the Commissioner. The court was satisfied that the grounds in s 8(1)(a), (b), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) were established. The protected images obtained under a surveillance device warrant, the identity of the messaging application used by the intermediary, and the identity and online personas of the undercover FBI operative were each the subject of suppression and non-disclosure orders. The court accepted that disclosure of the most sensitive material (the "green highlighted" portions of the AFP Assistant Commissioner's affidavit) could undermine AFP capabilities, prejudice the AFP's relationship with the FBI, compromise ongoing investigations, and endanger a person's safety.

On the question of making orders based on material withheld from the parties, the court applied the principle established in cases such as Attorney General v Kaddour and Turkmani, DPP v Smith, and National Crime Authority v Gould, recognising that a court may decide such questions on confidential material not available to the parties where the circumstances warrant it, consistent with public interest immunity principles. A summary of the relevant content was made available to the parties in a redacted "party version" of the affidavit.

Regarding the undercover witnesses, the court ordered that the court be closed during their testimony, that one witness give evidence via an encrypted audio-visual link from a remote location, and that their identities not be published. The court also addressed the concern raised by defence counsel about the accused being screened from one witness. Counsel indicated no objection to an arrangement equivalent to that used in R v Khaja (No. 1) [2017] NSWSC 1578, where a blank monitor is placed in front of the accused so that the jury remains unaware that the accused cannot see the witness. Davies J accepted that arrangement as consistent with the accused's fair trial rights in the circumstances.

Importantly, the accused did not oppose any of the orders. The court's reasoning nonetheless engaged independently with the statutory grounds and the balance between open justice and the legitimate interests in protecting surveillance methods, national security, and witness safety.

Orders Made

  • No disclosure of protected images obtained under the Surveillance Devices Act 2004 (Cth) warrant, the identity of the messaging application used by the intermediary, or the identity and online personas of the undercover FBI operative.
  • The court to be closed during the evidence of the AFP undercover officer (FP OCE 595654) and the FBI operative (Jamal Ibrahim).
  • Jamal Ibrahim to give evidence via an encrypted audio-visual link from a remote location.
  • The identities of both undercover witnesses not to be published.
  • The AFP Commissioner to be given a two-day window after undercover witness evidence to apply for a redacted transcript before publication of the transcript.
  • No disclosure of the yellow-highlighted portions of the AFP Assistant Commissioner's affidavit or the Commissioner's written submissions.
  • The documents subject to restriction to be returned to the AFP Commissioner within 14 days of the motion hearing.
  • Orders to apply throughout the Commonwealth until further order.
  • Orders made on the grounds in s 8(1)(a), (b), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW).

Key Takeaways

  • The Supreme Court confirmed that suppression and non-publication orders may be made on the basis of material withheld entirely from the parties, where that material is analogous to the kind of sensitive information advanced in a public interest immunity claim and where the court independently reviews the confidential material.
  • Under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), "necessary" carries real weight: the court must be satisfied that the order is genuinely required to prevent prejudice to the administration of justice, national security interests, or the safety of persons, not merely that it would be convenient or desirable.
  • A tiered approach to sensitive affidavit material is available: different versions can be provided to the court, to the parties, and to the public, with only the court seeing the most sensitive content while the parties receive a meaningful summary sufficient for the purposes of the proceedings.
  • Screening an accused from viewing a witness giving evidence does not necessarily constitute a substantial adverse effect on fair trial rights where an appropriate arrangement (such as a blank monitor) prevents the jury from becoming aware of the restriction, and where the accused does not oppose the measure.
  • Orders protecting the identity and online personas of undercover AFP and FBI operatives, and permitting evidence by encrypted remote link, were available under a combination of Commonwealth and NSW legislation including the Crimes Act 1914 (Cth), the Surveillance Devices Act 2004 (Cth), and the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
- Surveillance Devices Act 2004 (Cth), s 47
- Crimes Act 1914 (Cth), Pt 1ACA, s 15YV
- Criminal Code (Cth), ss 93.2, 119.1, 119.4
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
- Australian Federal Police Act 1979 (Cth)

Cases
- Attorney General v Kaddour and Turkmani [2001] NSWCCA 456
- Attorney-General for NSW v Nationwide News Pty Limited (2008) 73 NSWLR 635
- BUSB v R [2011] NSWCCA 39
- DPP v Smith (1996) 86 A Crim R 308
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52
- John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344
- National Crime Authority v Gould (1989) 90 ALR 489
- R v Davis [2008] 1 AC 1128
- R v Khaja (No. 1) [2017] NSWSC 1578
- R v Murphy and Anor [1990] NI 306
- R v Ngo (2003) 57 NSWLR 55