Attorney-General v Khan (Suppression Order)

[2022] VSC 627

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S ECI 2022 03216

ATTORNEY-GENERAL (CTH)	Plaintiff
v
HADASHAH SA'ADAT KHAN	Defendant

---

JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2022
DATE OF JUDGMENT:	13 October 2022 (revised 19 October 2022)
CASE MAY BE CITED AS:	Attorney-General v Khan (suppression order)
MEDIUM NEUTRAL CITATION:	[2022] VSC 627

---

PRACTICE AND PROCEDURE – Suppression and non-publication orders – Power to make Interim Supervision Orders – Whether necessary to redact details identifying appointed case manager – Terrorism – Protection of safety of persons – Prejudice to the proper administration of justice – Prejudice to the interests of the Commonwealth in relation to national security – Open Courts Act2013, ss 14, 17, 18 – Criminal Code 1995 (Cth) div 105A.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Ginsbourg with Dr L Hilly	Australian Government Solicitor
For the Defendant	Mr R Nathwani with Ms L Thies	Massi Ahmadzay & Associates

HIS HONOUR:

1. The plaintiff applied for an order that the name of the defendant's case manager, currently identified in interim supervision orders (ISO), be suppressed under ss 17 and 18 of the Open Courts Act2013. The basis for suppression is that it is necessary to protect the safety of the case manager and their family, to prevent any substantial risk of prejudice to the proper administration of justice by undermining the efficacy of any order made under Division 105A of the Criminal Code 1995 (Cth) by reason of the publication of the case manager's name or the prospect of that occurring, and to prevent prejudice to the interests of the Commonwealth in relation to national security. I must be satisfied that it is necessary to make a proceeding suppression order based upon the identified grounds.

1. The plaintiff relied on three affidavits: the affidavit of Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division of the Attorney-General's Department, affirmed 7 October 2022; the affidavit of Detective Superintendent Simone O'Mahony, affirmed 21 August 2022; and the affidavit of Frank Dumic, affirmed 19 August 2022. The plaintiff accepts that the starting point for the court is a commitment to open justice, particularly through recognition of the open justice principle by s 4 of the Act.[1]

   [1]Russell v Russell (1976) 134 CLR 495, 520–1 (Gibbs J), 532 (Stephen J), applying Scott v Scott [1913] AC 417, 437, 441; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, 352 [17] (Spigelman CJ); News Digital Media v Mokbel (2010) 30 VR 248, 258–9 [35] (Warren CJ and Byrne AJA) (News Digital Media); PQR v Secretary, Department of Justice and Regulation (No 1) (2017) 53 VR 45, 56–7 [34], 58–9 [38] (Bell J) (PQR).

1. I accept that, while open justice is a fundamental principle, it is not an absolute right and may on a balancing exercise accommodate competing interests.[2] The effect of the order will be to preclude the media from publishing information derived from an open court hearing that plainly derogates from the presumption of open justice. It is, I think, significant to note in relation to this application that the degree of derogation from the open justice principle that is required by the orders sought by the plaintiff is relatively small.

   [2]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 622 [63] (Elliott J).

1. The plaintiff bears the onus, on the balance of probabilities, to persuade me that the order is necessary on the basis of one or more of the grounds specified in s 18. I am so satisfied.

1. Necessary, in this context, describes the connection between the proposed order and an identified purpose.[3] An order is necessary if, absent the order, particular unacceptable consequences will flow that ought be prevented to preserve the proper function of the court.[4] I bear in mind that, in this context, the possibility of an irrational or illogical response by members of the public who oppose the work of law enforcement agencies and those who assist such agencies ought to be recognised.

   [3]Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 65 [46] (Basten JA) (Fairfax Digital).

   [4]Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [31]–[32] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (Hogan); News Digital Media (n 1) 258–9 [35] (Warren CJ and Byrne AJA); Fairfax Digital (n 3) 348 [9] (Bathurst CJ); PQR (n 1) 67–8 [59] (Bell J).

1. The plaintiff submits that three specific purposes were relevant. First, in the context of suppression orders, the administration of justice is not confined to the determination of the particular case; it is a broad concept that directs attention to the consequences not just for the present case but for future cases.[5] Relevantly, the protection sought over the case manager's name and identifying information protects the administration of justice by facilitating the efficacy of those orders.[6]

   [5]Fairfax Digital (n 3) 358 [48] (Basten JA); see also P v D1 (No 3) (2010) 202 A Crim R 40, 48 [20] (Slattery J); Collard v Western Australia (No 3) [2013] WASC 70, [10] (Pritchard J).

   [6]Cf Attorney-General for NSW v Nationwide News Pty Ltd (2007) 73 NSWLR 635, 642 [38] (Hodgson JA).

1. Secondly, there are the interests of the Commonwealth in relation to national security. A special importance attaches to the protection of national security as a category of public interest, which has a particular recognition in the context of counterterrorism.[7] The work necessary to deradicalise or prevent recidivism of individuals who are at risk of committing terrorism offences, such as the functions performed by a case manager, is part of those counter-terrorism operations.

   [7]Alister v The Queen (1984) 154 CLR 404, 436 (Wilson and Dawson JJ); see also Church of Scientology Inc v Woodward (1982) 154 CLR 25, 58 (Mason J); R v Khazaal [2006] NSWSC 1061, [32] (Whealy J).

1. The third identified purpose is protecting the safety of any person. An order can be made if it is necessary to protect the safety of any person, which is a term that encompasses not just the safety of the particular person but those who are immediately associated with them; it is also a term that includes protection in the sense of psychological safety.[8] Nettle J described the test of necessity in the context of safety in AB (a pseudonym) v CD (a pseudonym) and said:

It has been suggested that 'necessary' in this context permits of two possible constructions: either that it must be established on the balance of probabilities that, absent the order sought, the person would suffer harm; or alternatively, satisfaction on the balance of probabilities that the order is necessary to protect the person's safety, the latter being a conclusion informed by the nature, imminence and degree of likelihood of apprehended harm. As it appears to me, the latter construction is to be preferred.[9]

[8]AB (a Pseudonym) v R (No 3) (2019) 97 NSWLR 1046, 1059 [59] (Hoeben CJ at CL, Price and Adamson JJ); DPP v QPX [2014] VSC 211, [15] (Bongiorno JA).

[9](2019) 364 ALR 202, 205 [14].

1. I agree with His Honour's observations and, in applying the test, I must undertake an assessment of the risk of harm to the safety of the relevant person. That is, in this case, the case manager.

1. I stated that I was satisfied by the affidavits that I earlier identified of the necessity for the order sought. I note that under s 14 of the Open Courts Act, the court must be satisfied on the basis of evidence or sufficient, credible information that the grounds for making the order under s 18 of the Open Courts Act are established.

1. In part, the evidence being relied on by the plaintiff is hearsay, as it is Ms Hartigan's affidavit, rather than an affidavit from the case manager, that is the basis for submissions about their concerns for personal safety and their possible response to being openly identified. I am satisfied, however, that it is appropriate to proceed on the basis of Ms Hartigan's affidavit. I note that the case manager will be involved in the oversight and coordination of the therapeutic conditions of the ISO, including the defendant's participation in a tailored violent extremism disengagement and rehabilitation program, and psychological assessment and treatment.

1. In that context, I accept that the publication of their name exposes them to the following safety risks:

(a)   Publication of the name and identifying information of the case manager risks bringing the case manager's identity and role in facilitating the defendant's disengagement from extremist ideology to the attention of individuals with violent or extremist ideologies.

(b)  Those individuals include persons identified in the O'Mahony affidavit who have been convicted of serious criminal offences and have previously made threatening comments about officials who are facilitating disengagement. One of those individuals has been released into the community.

(c)   The prospects of having the case manager’s name published has caused them significant stress in respect of their safety and the safety of family members who share the same name.

(d)  The case manager is also concerned about significant psychological stress which is likely to result from public scrutiny placed on the case manager, if the case manager's name is publicly associated with their duties in the event that the defendant commits a further offence while in the community on an ISO, or on an extended supervision order (ESO). The case manager's personal attachment to this role would not otherwise be publicly known, save in limited circumstances, or otherwise accessible in the public domain.

1. I am fortified in the view that publication of that information in connection with these proceedings does not hold any obvious public utility, and by the absence of a response from the media, who are on notice of this application by the statutory process.

1. The suppression orders are also sought to prevent a real and substantial risk to the proper administration of justice which cannot be prevented by other reasonably available means. This is the factor that is most compelling, in my view, for these reasons:

(a)   The role of the case manager is essential to the effective implementation and management of ISOs and ESOs. The case manager performs a critical role in monitoring compliance with therapeutic conditions in an ISO or ESO, and by assisting the defendant to comply with requirements connected to those conditions.

(b)  The current case manager has advised Ms Hartigan that publication of the case manager's name would cause the case manager to cease employment in that role. Ms Hartigan has identified that there is a limited pool of persons who have the requisite training needed to perform the duties of a case manager. Depleting that pool would not only have an adverse impact on the administration of the current ISO in this case, it is likely to narrow the field of willing and available persons with requisite skill sets, experience, and expertise willing to undertake this work for the Commonwealth.

1. This is likely to compromise the capacity of the Commonwealth to offer and manage effective ISO and ESO conditions in the future. There are no other reasonably available means, other than suppressing the name of the case manager, to avoid this risk to the effective administration of ISOs and ESOs, and consequently, to the proper administration of the legislation and thus to the proper administration of justice.

1. Turning then to the prejudice to the interests of the Commonwealth. The plaintiff has also submitted that the effective management of ISOs and ESOs is an important tool in protecting the community from serious terrorism offences. I accept this submission. ISOs and ESOs have conditions imposed on those who pose an unacceptable risk of committing such offences. Degrading the capacity of the Commonwealth to attract and retain suitably qualified case managers will weaken the effectiveness of that protection.

1. Case managers address the therapeutic needs of those convicted of serious terrorism offences in a manner designed to protect the community and reduce the risk of recidivism. If the Commonwealth cannot secure appropriately qualified and experienced case managers, it will negatively impact on community safety and national security, as the Commonwealth will not have the capacity to manage the therapeutic conditions of an ISO or ESO in respect of an offender.

1. The order sought by the plaintiff is limited in both scope and duration, and the order that I make will also follow what the plaintiff has proposed. Bearing specifically in mind my obligations under s 4 of the Open Courts Act, I am satisfied that the order is framed to effect as minimal an intrusion as possible into the public interest in open justice, while achieving the protective purposes for which it is sought. The order is clear on its terms and goes no further than is reasonably necessary to achieve its protective purpose. Accordingly, I will make the order in the terms already discussed.