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Supreme Court 1 June 2018

R v Azari (No 6)

[2018] NSWSC 910

Public order & justice offences
CRIMINAL LAW TERRORISM TRIAL APPLICATION GRANTED

Citation: R v Azari (No 6) [2018] NSWSC 910
Court: Supreme Court of New South Wales
Date: 1 June 2018
Judge: N Adams J

Background

The accused stood charged with one count of doing an act in preparation or planning for a terrorist act under s 101.6(1) of the Criminal Code Act 1995 (Cth), with trial listed for October 2018. The matter had been before Adams J since April 2017, and a number of suppression orders had already been made in the proceedings.

The Commissioner of the Australian Federal Police applied for additional suppression and pseudonym orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW). The application was supported by a confidential affidavit from the AFP's Deputy Commissioner of National Security, the most senior AFP officer with direct responsibility for counter-terrorism operations. Given the sensitivity of the material, the notice of motion, affidavit, and submissions were delivered to chambers rather than filed in the Registry.

Neither the Commonwealth DPP nor the accused's legal representative opposed the orders at the hearing, though the accused's counsel reserved the right to seek variations after consulting with briefed senior counsel.

  • Whether suppression orders were necessary under s 8(1)(a), (b) and (c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to prevent prejudice to the administration of justice, protect national and international security interests, and protect the safety of a witness
  • Whether a pseudonym order should be made to conceal the identity of a witness in the terrorism trial
  • Whether the confidential affidavit and submissions relied upon by the Commissioner should be returned rather than retained on the Court file, and on what basis
  • How the orders should be framed so that any publicly accessible version did not inadvertently reveal the identity of the protected witness

Decision

Adams J was satisfied that the suppression and pseudonym orders should be made. Although the contents of the confidential affidavit were not disclosed in the judgment, the Court noted that it contained detailed information establishing the necessity of protecting the identity of a witness. The Court applied the test of necessity required by each ground in s 8(1) of the Act, drawing on the Court of Criminal Appeal's analysis in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012), and on established authority recognising the need to protect the identity of certain police witnesses.

The Court also noted its inherent jurisdiction to make orders necessary to secure the proper administration of justice, independent of the statutory power. This reinforced the basis for granting the orders alongside the Act's provisions.

On the question of returning the confidential affidavit and submissions, the Court acknowledged the ordinary practice of retaining material on the Court file to preserve the integrity of the record. However, it drew a distinction between ordinary proceedings and those involving national security information. Adams J was prepared to return the documents to the Commissioner on the undertaking that they would be kept safely and made available to the Court if required in the future.

The Court also noted the tension between the need for suppression and the principle of open justice under s 6 of the Act. It resolved this by directing that a redacted version of the orders be made publicly available, with the witness's identity concealed, rather than publishing the orders in full. The orders were made until further order, given the ongoing uncertainty about when the relevant information would cease to be sensitive.

Orders Made

  • Suppression order (Order 1): No disclosure of any information revealing, or tending to reveal, the identity of a named (redacted) witness in connection with the proceedings, including name, address, appearance, or the nature of any assistance provided or to be provided to authorities.
  • Exceptions: The suppression order does not prevent disclosure to persons already holding, or entitled to receive, the sensitive information, nor in the circumstances described in Order 6.
  • Subpoena provisions (Orders 5 to 8): The suppression order does not prevent the issue or service of a subpoena naming the protected witness. Any party issuing such a subpoena must provide the recipient with a copy of the orders (with Order 1.2 redacted), and must serve the AFP Commissioner with a copy of the subpoena no later than the time of service. Documents produced in response to any such subpoena are to be held by the Registry as confidential, accessible only to the parties and the AFP Commissioner.
  • Pseudonym order (Order 9): The protected witness is to be referred to in Court only by the pseudonym "Max Marid".
  • Confidential documents (Order 10): No disclosure of the AFP Deputy Commissioner's affidavit or the written submissions to any person other than the parties.
  • Return of documents (Order 11): The affidavit and submissions to be returned to the AFP Commissioner through legal representatives at the conclusion of the hearing.
  • Territorial scope and duration (Order 12): Orders apply throughout the Commonwealth of Australia and until further order.

Key Takeaways

  • Under the Court Suppression and Non-Publication Orders Act 2010 (NSW), each ground in s 8(1) imports a test of necessity, and the court must weigh that necessity against the primary objective of open justice under s 6.
  • Established authority recognises that the identity of certain police witnesses, particularly those involved in counter-terrorism operations, may warrant suppression on grounds of personal safety and the proper administration of justice.
  • A distinction exists between ordinary proceedings and those involving national security: the Supreme Court was prepared to return confidential affidavit material to the applicant rather than retain it on the Court file, provided a formal undertaking was given to make the material available if later required.
  • Where the duration of sensitivity cannot be determined at the time of making suppression orders, it is appropriate to frame the orders as operating "until further order" rather than fixing a specific end date.
  • The court's inherent jurisdiction to protect the administration of justice operates alongside, and independently of, the statutory suppression order regime.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 12
- Criminal Code Act 1995 (Cth), Schedule, s 101.6(1)

Cases
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366
- Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
- DPP v Smith (1996) 86 A Crim R 308
- Cain v Glass (No 2) (1985) 3 NSWLR 230