Citation: R (Cth) v Alqudsi (No 4) [2022] NSWSC 932
Court: Supreme Court of New South Wales
Date: 11 July 2022
Judge(s): Rothman J
Background
The accused faced serious Commonwealth criminal charges alleging that he directed a terrorist organisation and knew of domestic terrorist activity that the organisation planned or prepared. The proceedings raised significant national security considerations, and a suite of suppression and non-publication orders had been proposed and circulated to the parties on multiple occasions.
The principal contested issue in this interlocutory ruling concerned a specific witness, referred to throughout as "MM," who was said to have had peripheral involvement in the alleged organisation. The Australian Federal Police (AFP) sought an order physically screening MM from the accused's line of sight during MM's testimony. The AFP also sought equivalent screening for an ASIO witness, which the accused did not contest.
The dispute centred on whether the safety risk to MM was sufficient to justify departing from the usual position that an accused person may observe witnesses giving evidence against them. The AFP relied on affidavit evidence from a Deputy AFP Commissioner and another senior officer, including a confidential affidavit withheld from the accused.
Legal Issues
- Whether the risk to MM's safety constituted sufficient justification to screen MM from the accused during his evidence, notwithstanding the principle of open justice.
- How to weigh the accused's interest in observing witnesses against the potential harm to the witness if his identity or appearance became known to persons affiliated with international terrorist organisations.
- Whether MM should be informed of the screening order before, during, or after giving his evidence.
Decision
Rothman J began by affirming that open justice is a primary consideration in any application for suppression or non-publication relief. Justice must not only be done but be seen to be done, and exceptions to that principle are confined. His Honour also acknowledged the legitimate interest of the accused in observing a witness who would likely be challenged as untruthful, noting that knowing one is being watched can affect how a witness presents.
On the safety question, his Honour applied what he described as an "unacceptable risk" matrix drawn from other areas of the Court's jurisdiction. That matrix requires consideration of both the probability that harm will eventuate and the severity of the consequences if it does. His Honour was careful to note that he made no finding that the accused would actually convey MM's appearance to anyone, nor that any such person would seek to cause harm. The question was whether the risk, assessed across both dimensions, was real rather than merely theoretical.
His Honour found that the particular context elevated the risk beyond the ordinary witness protection scenario. The potential reach of persons affiliated with organisations such as ISIS was significant, and the consequences of any breach could include the witness's death. His Honour also noted the modern capacity to use widely available software to reconstruct or modify an image from a description, meaning even a general description of MM's changed appearance could be translated into a usable photograph. Taken together, these factors produced a risk his Honour characterised as unacceptable in the traditional sense.
On the question of notification, his Honour accepted the AFP's pragmatic suggestion, to which the accused's counsel did not object, that MM should not be told about the screening arrangement until after his evidence was complete. This avoided any risk that knowledge of the order might affect MM's demeanour or the integrity of his testimony, while still permitting him to be informed afterwards if reassurance was required.
Orders Made
- Witness MM and the ASIO witness are to be screened from the view of the accused during their evidence.
- The jury is not to be informed that the accused cannot see the witnesses.
- Counsel for the accused retains the ability to see the witnesses.
- The screening order is not to be notified to witness MM until after his evidence is complete, at which point he may be told if necessary.
Key Takeaways
- The Supreme Court confirmed that the "unacceptable risk" framework requires courts to weigh both the probability of harm and its potential severity, without needing to find that harmful conduct is likely on the balance of probabilities.
- Screening a witness from an accused is a serious departure from the open justice principle, but the court found it justified where the reach of internationally affiliated terrorist networks creates a real, rather than merely speculative, risk to a witness's safety.
- The severity of the potential consequence, up to and including death, can render a risk "unacceptable" even where the probability of that consequence is not established as probable.
- Modern image-manipulation technology was treated as a relevant factor: a description of a changed identity could be converted into a photographic representation and circulated, meaning the physical screening of a witness serves a protective function beyond simply concealing a face in the courtroom.
- Practical management of the order's disclosure to the protected witness was resolved by deferring notification until after the witness completed his evidence, preserving the integrity of the testimony while permitting subsequent reassurance.
Legislation and Cases Referenced
The judgment does not expressly cite specific legislation or prior cases. The court applied general principles of open justice, the administration of justice, and an "unacceptable risk" framework drawn from other areas of judicial practice. Practitioners seeking the statutory basis for suppression orders in NSW proceedings of this kind should refer to the applicable Commonwealth and State legislation governing suppression orders and national security proceedings.