Citation: R (Cth) v Alqudsi (No 6) [2023] NSWSC 353
Court: Supreme Court of New South Wales
Date: 3 February 2023
Judge(s): Rothman J
Background
This decision concerns a motion brought by the Commissioner of Police seeking an extension of existing non-publication and suppression orders made during the course of a criminal trial. The orders related to material touching on the methodology and technology used by Commonwealth and State law enforcement agencies during their investigations.
The underlying material included affidavits read in preliminary proceedings and references made during the trial itself. Some of the information that had originally been the subject of concern was not ultimately led in evidence, but had nonetheless been mentioned during the proceedings and was therefore captured by the suppression regime.
The Commissioner sought to extend the suppression orders for a further 20 years. The court consulted with media interests before determining the motion, and no party opposed the extension.
Legal Issues
- Whether the existing non-publication and suppression orders relating to law enforcement methodology and technology should be extended, and if so, for how long
- Whether the extension could be justified against the prima facie principle of open justice, which requires court proceedings and records to be publicly accessible
- Whether any party with an interest in opposing the extension had been given the opportunity to do so
Decision
Rothman J began by affirming the fundamental principle that court proceedings should be open to the public and that the record of proceedings should be publicly available. His Honour characterised this openness as essential both to the administration of justice and to democratic accountability, particularly in serious criminal matters. Any suppression or non-publication order must be assessed against that baseline.
His Honour was satisfied that the methodology and technology identified in the original orders remained sufficiently sensitive to justify continued suppression. Two grounds supported this conclusion: first, that publication could prejudice the proper administration of justice; and second, that publication could compromise the ongoing capacity of law enforcement agencies to use techniques that are effective precisely because they are not publicly known.
Rothman J acknowledged the 20-year extension was a lengthy period, noting that by expiry the technology may well have become public knowledge, may no longer be novel, or may no longer be in use at all. His Honour also noted that the court retains a capacity to review the orders before they expire.
The court took comfort from the fact that no media or other interested party opposed the extension, though it noted the decision remained one for the court to make independently on the merits.
Orders Made
- The orders sought in the motion were made, extending the existing non-publication and suppression orders as sought by the Commissioner of Police.
(Note: The precise terms of the orders are not reproduced in the judgment text provided. Any person relying on this material should consult the Registry for the full terms of the orders, particularly given the suppression context.)
Key Takeaways
- The Supreme Court reaffirmed that the starting point for any suppression or non-publication application is the strong prima facie position in favour of open justice, which must be weighed against the specific grounds for suppression.
- Suppression of law enforcement methodology can be justified where publication would prejudice the proper administration of justice or undermine the operational effectiveness of investigative techniques that depend on not being publicly known.
- A 20-year extension of suppression orders is available in appropriate circumstances, though the court noted it is a significant duration and acknowledged the possibility that the underlying technology may become obsolete or enter the public domain before the orders expire.
- The court's jurisdiction to review suppression orders before their expiry remains available, meaning a lengthy term does not foreclose future reconsideration.
- Absence of opposition from notified media interests was a relevant consideration, but Rothman J made clear the court must independently satisfy itself that an order is warranted rather than simply granting it by consent.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text provided or in the decision metadata.
Practitioners should note the disclaimer attached to this judgment: any person using material from the decision bears responsibility for ensuring their use does not breach any applicable suppression order or statutory publication restriction. Enquiries may be directed to the Supreme Court Registry.