Citation: R v Khayat (No 2) [2019] NSWSC 1315
Court: Supreme Court of New South Wales
Date: 11 March 2019
Judge(s): Adamson J
Background
Two accused persons stood charged on indictment with conspiracy to do acts in preparation for a terrorist act, contrary to the Criminal Code Act 1995 (Cth). The alleged conduct involved the use of an improvised explosive device and an improvised chemical dispersal device. The prosecution alleged that the accused had attempted to smuggle an explosive device onto an aircraft, with the plot going undiscovered for eleven days after the alleged attempt.
The Commissioner of the Australian Federal Police applied, by notice of motion, for suppression and non-publication orders, closed-court orders, and ancillary protective orders in advance of the trial. The application was supported by affidavits from an Assistant Commissioner of the AFP and a Deputy Director-General of ASIO. All parties to the criminal proceedings, including both accused, consented to the orders sought.
The AFP was also assisted by the FBI, which had expressed an interest in the orders being made to prevent publication of the sensitive information. The central concern driving the application was that detailed expert evidence to be given at trial would reveal specific information about weapon manufacture and testing that could be exploited by prospective terrorists.
Legal Issues
- Whether suppression and non-publication orders should be made under the Court Suppression and Non-publication Orders Act 2010 (NSW) on the grounds of national security and public safety
- Whether the calculus of risk approach permitted the making of orders even where the relevant risk did not rise above a mere possibility, given the severity of the potential harm
- Whether the court should be closed for the evidence of three identified expert witnesses under s 93.2 of the Criminal Code Act 1995 (Cth)
- Whether ancillary orders relating to transcripts, exhibits, court file access, and publication of orders should be made
Decision
Suppression Orders: National Security Ground (s 8(1)(b))
The court was satisfied that national security could be compromised if the sensitive information were disclosed (at [19]). It accepted that the safe travel of airlines within and beyond Australia forms a crucial part of Australia's national and international security. The information sought to be suppressed covered three categories: the method for making the weapons, specific details about how they were used, and details of testing conducted by the authorities (at [9]).
Suppression Orders: Public Safety Ground (s 8(1)(c))
Applying the calculus of risk approach, the court held that where prospective harm is very severe, an order may be necessary even if the risk does not rise above a mere possibility (at [20]). The court was satisfied that a very real and substantial risk to public safety existed and that the sensitive information could be used to endanger or kill members of the public (at [8], [21]). It noted the particular danger that expert evidence in criminal trials, unlike much internet content, is likely to be reliable and detailed, making it especially useful to prospective bad actors (at [26]). The court did not find it necessary to consider the third ground relied upon, s 8(1)(e), given that ss 8(1)(b) and (c) were sufficient to support the orders (at [22]).
Discretion Once the Necessity Threshold Is Met
Once the court was satisfied that a suppression order was necessary, it held that there was no relevant discretion to refuse it, following the High Court's reasoning in Hogan v Australian Crime Commission and the Court of Appeal's reasoning in Rinehart v Welker (at [23]).
Closed-Court Orders (s 93.2 Criminal Code)
Closure of the court was ordered for the evidence of three expert witnesses: a forensic chemist, a crime scene investigator with weapons analysis expertise, and an FBI explosives specialist (at [11], [26]). The court acknowledged that closing an entire proceeding would be inimical to open justice, but accepted that the sensitive information would be concentrated in those three witnesses' evidence, making full closure unnecessary (at [11]). It was satisfied that exclusion of the public during that evidence was in the interests of Australia's national security under s 93.2 (at [26]).
Ancillary Orders and Open Justice
The court found that the proposed approach kept derogation from the principles of open justice to a minimum (at [18]). Ancillary orders providing for deferred release of redacted transcripts and exhibits, and restricting access to the court file, were made under the court's inherent jurisdiction (at [27]). Orders were also made to ensure the suppression and closure orders were brought to the attention of the media and the public (at [27]).
Orders Made
- Orders 1 to 19 made in accordance with the short minutes of order initialled and dated by Adamson J
Key Takeaways
- The calculus of risk approach, endorsed by the High Court in AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 and applied here, permits suppression orders to be made even where the risk of harm does not exceed a mere possibility, provided the prospective harm is sufficiently severe (at [20]).
- Under the Court Suppression and Non-publication Orders Act 2010 (NSW), once a court is satisfied that an order is "necessary" within the meaning of s 8(1), authority holds that there is no residual discretion to refuse the order (at [23]).
- Expert evidence adduced in criminal proceedings carries particular weight as a suppression concern because, unlike much online content, it is generally reliable and detailed, making it more accessible and useful to persons seeking to cause harm (at [26]).
- Closure of a court under s 93.2 of the Criminal Code Act 1995 (Cth) is confined to circumstances where the court is satisfied it is in the interests of Australia's national security; the threshold is high and the step is described as a very serious one (at [26]).
- A targeted approach, combining suppression of specific categories of information with court closure for identified witnesses only, can satisfy the necessity requirement while keeping the overall departure from open justice to a minimum (at [18], [26]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 12
- Criminal Code Act 1995 (Cth), ss 11.5, 93.2, 101.6
Cases
- AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
- AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
- Hamzy v R [2013] NSWCCA 156
- Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
- Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403
- Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36