Commissioner of Police, NSW v Taleb (No 3)

[2019] NSWSC 273

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of Police, NSW v Taleb (No 3) [2019] NSWSC 273
Hearing dates:	20 and 25 February 2019
Date of orders:	25 February 2019
Decision date:	25 February 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	See paragraph [8]. (1) In respect of the Notice of Motion brought by the Commissioner of Police, NSW I make orders in accordance with the orders set out in MFI VD13 entitled “Short Minutes of Order”. (2) In respect of the Notice of Motion brought by the Australian Federal Police I make orders in accordance with MFI VD14 entitled “Short Minutes of Order”.
Catchwords:	CRIMINAL LAW – identity of witnesses – applications to protect identities – undercover police officer – informant witness – pseudonyms and other orders – open justice – confidential affidavit – no opposition to orders sought
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW), s 6 Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) Law Enforcement (Controlled Operations) Act 1997 (NSW)
Category:	Procedural and other rulings
Parties:	Moudasser Taleb Commissioner of Police, NSW Commissioner of Australian Federal Police
Representation:	Counsel: M Finnane QC (Mr Taleb) T Glover (Commissioner of Police, NSW) P Melican (Commissioner of Australian Federal Police)   Solicitors: Zali Burrows at Law (Mr Taleb) Crown Solicitor’s Office (Commissioner of Police, NSW) Australian Government Solicitor (Commissioner of Australian Federal Police)
File Number(s):	2017/00179287
Publication restriction:	No publication until the conclusion of the trial.

Ex tempore Judgment (revised)

1. HIS HONOUR: Moudasser Taleb is presently to stand trial for an alleged offence which I will describe in short as doing acts preparatory to fighting with a terrorist organisation in Syria. The first week of the trial will be taken up with evidentiary arguments and other pre-trial issues. A jury is scheduled to be empanelled next Monday. Before the pre-trial arguments and voir dire, there are two applications brought respectively by the Australian Federal Police and the NSW Police for orders calculated to protect the identity and safety of two witnesses to be called by the prosecution at the trial.

2. The orders are sought pursuant to the Court’s inherent powers and three pieces of legislation, namely the Law Enforcement (Controlled Operations) Act 1997, the Law Enforcement and National Security (Assumed Identities) Act 2010 and the Court Suppression and Non-Publications Orders Act 2010. Neither the accused Mr Taleb nor the Commonwealth Director of Public Prosecutions opposes the making of the orders. Nevertheless, to a greater or lesser degree, the orders sought infringe the principles of open justice and to put it in blunt and general terms, such orders ought not to be made unless they are necessary to protect the integrity of the process, or to ensure the safety of the witnesses, or to protect the public interest in the investigation of crime.

3. The orders sought include closing the Court at times, employing the use of pseudonyms or assumed identities under relevant legislation and making orders for the suppression or non-publication of material that might disclose the witnesses actual identities. In respect of both applications, I have received confidential affidavits setting out the basis upon which the orders are sought and the reasons it is necessary to make such orders. There was also in one case an open affidavit. Queens Counsel for the Accused and Senior Counsel for the prosecution, each of whom is very experienced, accept that it is necessary that the orders be made.

4. The witness in relation to whom the Australian Federal Police seek orders is a police or prison informant. There are many authorities concerning the need to protect the identity of such a witness, this is to ensure his or her safety not so much from the accused who is already aware of his or her identity but from others who may have some motive to do him or her harm. Not only is it proper to protect the safety and security of the individual witness, there is also the need to ensure that information from informants more generally does not dry up in the future. If people who might otherwise provide information to police and other law enforcement agencies realise that their identities may be revealed, there may well be a reluctance to assist the police.

5. The witness in relation to whom the NSW police seek orders is an undercover agent. Somewhat similar considerations apply to that witness and based on the material in the confidential affidavit there is a need, and I use the term in its true sense, that their actual identity be protected and their assumed name be used throughout the proceedings for obvious reasons explained in many earlier cases. I cannot articulate those reasons here but they are clear or would be clear to anybody who reads the confidential material.

6. I can see no real prejudice to the accused in making any of the orders sought. Queen’s Counsel did not suggest that there is any such prejudice. Insofar as a jury may become aware that the Court is being closed at times, if necessary, directions can be fashioned to ensure there is no prejudice to the accused as a result of that process.

7. It is unavoidable that there will be some violence done to the principle of open justice. In particular, it is generally most undesirable that our courts not be open to the public. The fact that anybody can walk into the back of a courtroom in Australia and observe the processes of justice is one of the features that distinguishes our system from many others around the world. It is therefore undesirable that the courts be closed or that other orders be made restricting the dissemination of information about what happens in our courtrooms. According to s 6 of the Court Suppression and Non-Publication Orders Act:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

8. The same applies at least at common law to the use of assumed names, pseudonyms and the closing of the court. Even so, considering the matters at stake which I repeat I cannot fully articulate in these reasons, it is clear that the orders sought are necessary.

1. Accordingly, in respect of the Notice of Motion brought by the New South Wales Police Commissioner I make orders in accordance with the orders set out in MFI VD13 entitled “Short Minutes of Order”:

(1) Pursuant to s. 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and s. 28 of the Law Enforcement (Controlled Operations) Act 1997 (NSW) and until further order, a police officer, who has provided statements under the assumed identity [REDACTED] (the witness):

a. be allowed to appear before the Court and give evidence at the hearing of these proceedings under their assumed name;

b. be allowed to given their evidence by audio-visual link;

c. be referred to by their assumed name during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings, in any published judgments of the Court and for all other purposes of these proceedings;

(2) Pursuant to s. 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and s. 28 of the Law Enforcement (Controlled Operations) Act 1997 (NSW) and until further order, there be no disclosure of the real identity of the witness or of any document or evidence that identifies, or might facilitate the identification of, the real identity of the witness, except as is necessary for the proper conduct of the proceedings.

(3) Pursuant to s. 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and s. 28 of the Law Enforcement (Controlled Operations) Act 1997 (NSW) and until further order, there be no publication of the assumed identity of the witness or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness, except as is necessary for the property conduct of the proceedings.

(4) Without limiting the generality of Orders (2) and (3), there be no disclosure of any visual or other description or depiction of the physical appearance or any other identifying features of the witness, except as is necessary for the proper conduct of the proceedings.

(5) The Court be closed for the duration of the evidence given by the witness in these proceedings, subject to the following being permitted to be present in the Court while the witness gives evidence:

a. the presiding judge;

b. court staff;

c. the jury;

d. the accused and his legal representatives;

e. the legal representatives for the prosecution;

f. the legal representatives for the Commissioner;

g. officers of the NSW Sherriff;

h. Corrective Services officers; and

i. officers of the NSW Police Force involved in investigating the offences before the Court and officers of the NSW Police Force attached to the NSW Police Force Undercover Program, so long as they are not required to give evidence after the witness.

2. In respect of the motion brought by the Australian Federal Police I make orders in accordance with MFI VD15 entitled “Short Minutes of Order”:

1. The Court is to be closed when the witness known as ‘Max Marid’ gives evidence.

2. The Court is to be closed when there is to be disclosure of information which reveals, or tends to reveal, the true identity of ‘Max Marid’.

3. The Court is to be closed when there is to be disclosure of the fact or nature of any assistance Max Marid has provided, or may in future provide, to authorities.

4. The only persons who are permitted to be in Court when it is closed pursuant to orders 1 to 3 are:

4.1. the presiding Judge;

4.2. necessary Court staff (including transcription service providers);

4.3. the Crown and legal representatives of the Crown instructed in these proceedings;

4.4. the Accused and legal representatives of the Accused instructed in these proceedings;

4.5. the jury empanelled in these proceedings;

4.6. officers and employees of agencies that are members of the New South Wales Joint Counter Terrorism Team, and legal representatives of those agencies; and

4.7. necessary staff of Corrective Services NSW.

5. There is to be no disclosure of, or of the contents of:

5.1 the affidavits of Ian McCartney, including their annexures, relied upon by the AFP Commissioner in support of this notice of motion; and

5.2 the written submissions relied upon by the AFP Commissioner in support of this notice of motion,

other than to the parties.

6. The documents referred to in order 5 are to be returned to the AFP Commissioner, through his legal representatives, at the conclusion of the hearing of the motion for these orders.

7. Order 5 applies throughout the Commonwealth of Australia and until further order.

8. Order 5 is made on the grounds identified in s 8(1)(a),(b) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW).

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Decision last updated: 05 April 2019