Attorney-General v Hadashah Sa'adat Khan (No 5)
[2024] VSC 92
•7 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2023 05158
| ATTORNEY-GENERAL OF THE COMMONWEALTH | Plaintiff |
| v | |
| HADASHAH SA’ADAT KHAN | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15 February and 29 February 2024 |
DATE OF JUDGMENT: | 7 March 2024 |
CASE MAY BE CITED AS: | Attorney-General v Hadashah Sa’adat Khan (No 5) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 92 |
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PRACTICE AND PROCEDURE – Judgments and orders – Suppression orders – Application to suppress various materials – Certain documents to be made confidential – Plaintiff granted leave to file redacted versions of certain documents – Plaintiff granted leave to uplift documents filed but not relied upon.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Yuile | Australian Government Solicitor |
| For the Defendant | Mr Nathwani SC and Ms Thies with Ms Hart | Massi Ahmadzay & Associates |
| For the Chief Commissioner of Victoria Police | Mr Forsaith | Counter Terrorism Legal Unit, Victoria Police |
HIS HONOUR:
On 26 February 2024, the Court made orders under the Criminal Code Act 1995 (Cth) (the Code) varying and otherwise affirming an extended supervision order made in respect of the defendant on 8 November 2022.[1]
[1]See Attorney-General v Hadashah Sa’adat Khan (No 3) [2024] VSC 58 (the previous reasons for judgment). These reasons for judgment should be read with the previous reasons for judgment; terms defined in those reasons carry the same meaning in these reasons for judgment.
On 29 February 2024, the Court also made the following orders:
1.Each of the documents identified in Annexure A to these orders, in their unredacted form, be placed in a confidential part of the Court file.
2.Access to the confidential part of the Court file, referred to in paragraph 1 above, shall be limited to:
a. the Court (including the presiding Judge and Court staff);
b. the parties, their experts and legal representatives;
c.the Commissioner of the Australian Federal Police, employees of the Australian Federal Police and their legal representatives; and
d.the Chief Commissioner of Victoria Police and members of Victoria Police and their legal representatives.
3.The Attorney-General have leave to file redacted versions of the documents listed in Annexure A, in accordance with the rulings of the Court at the hearing of this application on 29 February 2024, that shall be accessible by the public in accordance with rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
4.The Attorney-General have leave to uplift the documents listed in Annexure B from the Court file.
The documents listed in Annexure A to the above orders comprise all of the affidavits tendered into evidence in this proceeding, a statement of agreed facts signed by the parties, and the parties’ final submissions. Annexure B lists 34 documents, all except one of which is an affidavit, which were filed in the proceeding, but not read into evidence.
The effect of the orders made on 29 February 2024 was to establish arrangements directed at balancing the interests of open justice with legitimate concerns to protect against the non-disclosure of confidential information. These interests were addressed by providing for, in substance, the following arrangements:
(a) the uplifting from the Court file of the numerous documents which had been filed by the Attorney-General in the proceeding, but which ultimately were not relied upon in the proceeding;
(b) the retention, in a confidential part of the Court file, of all of the evidence tendered in the proceeding in unredacted form, together with the parties’ submissions; and
(c) a grant of leave to the Attorney-General to file the same evidentiary documents and submissions, in redacted form as approved by the Court, with those documents to be available for inspection in the ordinary way pursuant to rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015.
The orders establishing these arrangements were made in the exercise of the Court’s power to control proceedings before it for the reasons set out below.
At the commencement of the hearing of the proceeding on 31 January 2024, the Attorney-General sought suppression orders in respect of the entirety of nine affidavits which had been filed, a statement of agreed facts entered into by the parties, and the parties’ written submissions. Counsel for the Chief Commissioner of Victoria Police (the Chief Commissioner) also sought a suppression order in respect of an affidavit filed in the proceeding.
I informed the parties that, having regard to the importance of principles of open justice, I had serious reservations about making suppression orders as expansive as had been proposed. It was not apparent to me that legitimate concerns in respect of the protection of confidential information justified the suppression of the entire contents of all of the documents identified. Instead, mindful of the need for the proceeding to be heard expeditiously, I proposed that broad suppression orders of the type sought be made on an interim basis to enable the hearing of the review to proceed in a timely way, and on the basis that consideration would in due course be given to redacting only specific information contained in the documents to be relied upon to protect legitimate confidentiality concerns, as distinct from suppressing the disclosure of the documents in their entirety. The parties agreed to this course.
Consistent with this approach, after the hearing of the proceeding, the parties identified with particularity the specific parts of the materials relied upon which they proposed be redacted, and the specific reasons said to justify each proposed redaction.
I subsequently reviewed each of the proposed redactions and, on 29 February 2024, I heard oral submissions in support of the proposed redactions. In the course of the hearing, the parties abandoned a number of the redactions which had originally been proposed, and I otherwise ruled upon each of the proposed redactions.
The proposed redactions which I upheld and which are to be reflected in the redacted documents to be filed with the Court in accordance with paragraph 3 of the orders made on 29 February 2024, fall into one or more of the following eight categories considered below.
First, information which, directly or indirectly, may reveal the identity of branch managers who work with Ms Sa’adat Khan. The evidence establishes that those working with terrorist offenders such as branch managers are exposed to a level of personal risk. The integrity of the statutory scheme and the ESO made pursuant to it (in which the branch manager has a critical function) would be undermined if the persons undertaking such work choose not to do so because of the risks to which they would be exposed in the event of their identities being disclosed. The evidence establishes that there is a real prospect that those currently working as branch managers may cease to do so if their identities are disclosed.
Secondly, information recording interactions between Ms Sa’adat Khan and the branch managers, and information derived from those interactions. The relationship between Ms Sa’adat Khan and the branch managers is central to the practical operation of the ESO and its efficacy, which in turn is materially affected by the extent to which the engagement between Ms Sa’adat Khan and the branch managers is genuine, forthcoming and candid. This requires the development and maintenance of a trusting and genuinely communicative relationship. Those goals will be undermined and jeopardised if information derived from the relationship is available for public scrutiny.
Thirdly, information arising from, or about, the relationship between Ms Sa’adat Khan and her treating psychologist, including information recording interactions between them, observations about their relationship, and information derived from their interactions. This information is private and sensitive and includes medical information concerning Ms Sa’adat Khan’s mental health. Her engagement with a psychologist, which is contemplated by the ESO, is self-evidently consistent with the therapeutic purposes of the order; disclosure of information about and obtained from that relationship is likely to undermine the effectiveness of this therapeutic purpose.
Fourthly, information derived from interviews conducted by Dr Dewson with Ms Sa’adat Khan which is not otherwise caught by the above categories. As Dr Dewson is a consultant forensic psychologist, the same considerations described in the previous paragraph also arise in relation to this category.
Another important consideration arises when considering the protection of information derived from interviews conducted by Dr Dewson with Ms Sa’adat Khan. The effectiveness of the statutory scheme in relation to the periodic review of extended supervision orders is critically dependent upon the person the subject of an order being frank and forthcoming when interviewed by an expert for the purposes of preparing a report to be considered by the Court in the periodic review. The Court is required to have regard such reports,[2] including those prepared by psychologists, when considering whether a person is an unacceptable risk of committing a terrorist offence. There is a real prospect that disclosure of information communicated by Ms Sa’adat Khan to Dr Dewson, which necessarily includes private and sensitive information, and disclosure of Dr Dewson’s consideration of that information, would undermine the operation of the statutory scheme by discouraging candour and genuine engagement by Ms Sa’adat Khan and others when communicating with experts tasked with providing reports to assist the Court when undertaking its statutory function.
[2]Section 105A.6B(1)(b)-(c) of the Code.
Fifthly, personal and sensitive information concerning Ms Sa’adat Khan. Disclosure of information of this type is likely to cause unnecessary distress to Ms Sa’adat Khan and would have the potential to undermine the statutory scheme by jeopardising her engagement with the ESO and the realisation of its therapeutic purposes.
Sixthly, information relevant to, or which may affect, Ms Sa’adat Khan’s efforts at rehabilitation. This category is substantially the same as those referred to above relating to Ms Sa’adat Khan’s interactions with branch managers and psychologists. Information derived from those interactions should remain confidential for the reasons already outlined. This category is also concerned with preventing disclosure of information which might lead to the Ms Sa’adat Khan’s place of residence being identified. There is evidence of previous attempts by extremists to contact Ms Sa’adat Khan; any such contact would not aid her rehabilitation into the community.
Seventhly, information which is the subject of suppression orders made in other proceedings.
Eighthly, information about the substance of Ms Sa’adat Khan’s participation in the CISP, including about her interactions with persons involved in the program. CISP is directed at the re-integration into the community of persons who are at risk of committing terrorism offences. Some information in this category includes operational aspects of CISP which should properly remain confidential in the interests of national security and in order to protect the integrity of policing methodologies. It also includes information provided by Ms Sa’adat Khan as part of her engagement in various activities as part of CISP. She may reasonably be presumed to have provided such information on a confidential basis. If the substance of her participation in CISP was disclosed, it is less likely that she and others in the program would participate in the program in a meaningful way. The protection of this category of information from disclosure is therefore important to encourage Ms Sa’adat Khan’s, and others, genuine and ongoing participation and engagement in CISP, an outcome which is consistent with the overall purpose of the ESO.
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