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Supreme Court 1 June 2021

R v Uweinat

[2021] NSWSC 626

Public order & justice offences
CRIMINAL PROCEDURE SUPPRESSION AND NON PUBLICATION ORDERS ORDERS MADE

Citation: R v Uweinat [2021] NSWSC 626
Court: Supreme Court of New South Wales
Date: 1 June 2021
Judge(s): R A Hulme J

Background

The defendant pleaded guilty in the Local Court to two offences under the Criminal Code (Cth): knowingly being a member of a terrorist organisation, and advocating a terrorist act or the commission of a terrorism offence. The matter was committed to the Supreme Court for sentencing and was listed in the Arraignments List on 4 June 2021 to fix a hearing date.

Before that listing, the Commissioner of the Australian Federal Police (AFP) filed a Notice of Motion seeking suppression and ancillary orders over evidence the AFP proposed to serve. That evidence related to the capabilities and methods of surveillance devices used in the investigation. The Local Court had already made suppression orders over earlier AFP evidence of the same type.

Both the Commonwealth Director of Public Prosecutions and the defendant's legal representatives consented to the application. The matter was dealt with in chambers on the basis of an open affidavit and a confidential affidavit, both sworn by the AFP's Assistant Commissioner for National Manager Crime Command.

  • Whether suppression orders over surveillance device material should be made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (CS&NPO Act) on the ground that they are necessary to prevent prejudice to the Commonwealth's national security interests (s 8(1)(b)).
  • Whether orders prohibiting publication of surveillance device details were also mandated under s 47(5) of the Surveillance Devices Act 2004 (Cth) (SD Act).
  • Whether the derogation from the principle of open justice was justified in the circumstances.
  • What geographic scope and duration the orders should have.

Decision

Hulme J was satisfied that the AFP Commissioner's reliance on s 8(1)(b) of the CS&NPO Act was soundly based. The confidential affidavit material supported the conclusion that disclosure of the surveillance device details would prejudice the Commonwealth's national security interests.

The court noted the distinction between the two statutory bases for the orders. A suppression order under the CS&NPO Act is broader than a non-publication order under s 47(5) of the SD Act because it extends to any form of disclosure, not just publication. Under s 47(5) of the SD Act, the court is mandated to make an order where it is satisfied that details pertaining to a surveillance device should not be revealed.

On the open justice question, s 6 of the CS&NPO Act requires the court to treat open justice as a primary objective of the administration of justice. Hulme J accepted the Commissioner's submission that the derogation from open justice in this case was quite confined, because the suppression applied only to the public and did not prevent disclosure between the parties and the court. His Honour was satisfied the national interest substantially outweighed that confined derogation.

The court accepted that orders limited to New South Wales would be ineffective and made them apply throughout the Commonwealth of Australia under s 11 of the CS&NPO Act. Relying on the affidavit material, Hulme J was satisfied that a duration of 10 years was appropriate to achieve the orders' purpose, consistent with s 12 of the CS&NPO Act.

Orders Made

Suppression orders:
- No disclosure (by publication or otherwise) of any information that reveals, or tends to reveal: the two statements of Federal Agent Xuereb (dated 19 October 2020 and 21 May 2021) including their annexures; the whereabouts of the surveillance devices at the time they were operational; or the methods and means by which the information was obtained (collectively, "sensitive information").

Exceptions:
- The suppression orders do not prevent disclosure between the presiding judge, the CDPP and its legal representatives, the defendant and his legal representatives (including on appeal), AFP officers and the Commissioner's legal representatives, and judicial officers and staff on any appeal.
- AFP officers may disclose sensitive information to other persons in accordance with their powers, functions, or duties under the AFP Act or other legislation, and recipients of such disclosure may use or further disclose it (subject to applicable legislative limitations).

Ancillary orders:
- No disclosure of the confidential affidavit of Assistant Commissioner Ryan.
- The confidential affidavit to be returned to the AFP Commissioner's legal representatives at the conclusion of the motion.
- The defendant and his legal representatives to return all documents containing sensitive information to the AFP Commissioner's legal representatives within 28 days of the conclusion of the proceeding (including any appeal).

Scope and basis:
- Orders apply throughout the Commonwealth of Australia for 10 years.
- Orders made under s 8(1)(b) of the CS&NPO Act and s 47(5) of the SD Act.

Key Takeaways

  • Suppression orders covering surveillance device capabilities and methods in terrorism proceedings are not novel. The Supreme Court confirmed that such orders have been made consistently in comparable cases, including R v Alqudsi, R v Azari (No 3), R v Elmir, and R v Musleh (No 2).

  • Under s 47(5) of the Surveillance Devices Act 2004 (Cth), a court is mandated to prohibit or restrict publication where it considers it necessary that surveillance device details not be revealed. This operates separately from, and alongside, the discretionary regime under the CS&NPO Act.

  • A suppression order under the CS&NPO Act is broader in scope than a non-publication order under the SD Act, because it catches all forms of disclosure, not only publication to the public.

  • The open justice principle does not operate as an absolute bar to suppression in national security matters. Where the derogation is confined (here, restricted to public disclosure only, with the parties and court retaining full access), the national interest can substantially outweigh the derogation.

  • Orders of nationwide effect and 10-year duration were warranted where state-limited orders would be ineffective and the affidavit material supported that timeframe as reasonably necessary to achieve the orders' purpose.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 8(1)(b), 11, 12
- Surveillance Devices Act 2004 (Cth), s 47(5)
- Criminal Code (Cth)
- Australian Federal Police Act 1979 (Cth), s 6(1)

Cases:
- Alister v R (1984) 154 CLR 404
- R v Alqudsi [2016] NSWSC 1168
- R v Yousif, Elomar & Elomar (Supreme Court (NSW), Adamson J, 22 March 2017, unreported)
- R v Azari (No 3) [2017] NSWSC 553
- R v Elmir [2018] NSWSC 308
- R v Musleh (No 2) [2018] NSWSC 1221
- R v Mallah (Supreme Court (NSW), 11 February 2005, unreported)
- R v Khazaal [2006] NSWSC 1061