Director of Public Prosecutions (Cth) v Khan (No 2)
[2021] VSC 239
•6 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0046
| IN THE MATTER of s 18A of the Bail Act 1977 |
| and |
| IN THE MATTTER of an appeal by the Commonwealth Director of Public Prosecutions against an order granting bail to HADASHAH SA'ADAT KHAN |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 May 2021 |
DATE OF JUDGMENT: | 6 May 2021 |
CASE MAY BE CITED AS: | DPP (Cth) v Khan (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 239 |
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CRIMINAL LAW – Successful appeal by Commonwealth Director of Public Prosecutions against a grant of bail in the Magistrates’ Court – Terrorism charges - Suppression order made by magistrate prohibiting publication of evidence showing connection between the respondent and a prisoner convicted of a terrorism offence – Whether suppression order should be varied or revoked – Trial expected to proceed in latter half of 2022 - No realistic prospect that publication would interfere with fair trial of respondent – Order revoked – Open Courts Act 2013 ss 1, 4, 15, 17, 18, 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Ginsbourg | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr R Nathwani | Massi Ahmadzay & Associates |
HIS HONOUR:
Introduction
The Commonwealth Director of Public Prosecutions (‘the Director’) appealed against an order made in the Melbourne Magistrates’ Court on 1 March 2021 granting bail to Hadashah Sa’adat Khan (‘the respondent’) in respect of three charges she faces, including two of terrorist offending.
Having heard the appeal, I made a decision allowing the appeal, setting aside the order granting bail below, and revoking the grant of bail.[1] Having considered the fresh application for bail contemplated by s 18A(6) of the Bail Act 1977, I refused bail.
[1]DPP (Cth) v Sa’adat Khan [2021] VSC 224.
Following the provision of the written judgment of the Court to the parties on 3 May 2021, it was pointed out by Mr Nathwani, for the respondent, that the publication of the judgment would in a number of respects infringe two suppression orders made by the learned magistrate in the court below. As a result of the concerns expressed by Mr Nathwani, the matter was brought on for mention before the Court.
The suppression orders
Two suppression orders were made by the learned magistrate in the course of the application for bail on 1 March 2021. The first of these was a proceeding suppression order pursuant to s 17 of the Open Courts Act 2013 (‘the Act’). The second was a broad suppression order pursuant to s 26 of the Act.
The proceeding suppression order prohibited publication of the name and identity of an expert witness who gave evidence before his Honour, having been called by the respondent. The witness was a registered psychologist who had had a number of consultations with the respondent. It was proposed that she would provide ongoing treatment to the respondent in the future aimed at deradicalising her. The witness made an application to his Honour for the suppression of her name, essentially as I understand it, in order to protect the confidentiality of those with whom she had contact in the Muslim community. His Honour made the order under ss 17 and 18(1)(c) of the Act on the basis that the order was necessary to protect the safety of any person.
I can indicate that I see no reason to review the proceeding suppression order. I will comply with the order by modifying the appeal judgment to anonymise the name of the relevant witness.
The broad suppression order prohibited publication of:
a)The existence or contents of the prison letters and correspondence between Hadhashah (sic) Sa’adat Khan and Momena Shoma, or any document or information from which that may be inferred.
b)The existence or contents of any communication between Hadhashah Sa’adat Khan and Momena Shoma, or any documents or information from which that may be inferred.
c)The contents of the Affidavits or the evidence of Acting Sergeant Timeka Kennedy, which refer to any material relating to Momena Shoma.
d)The contents of the evidence of Senior Constable Jan-Paul Antemes which refers to Momena Shoma.
e)The contents of the Affidavit or the evidence of Jennifer Hosking in its entirety.
f)The contents of the written submissions filed on behalf of both parties; and
g)Any other part of the proceedings, including preliminary discussion or legal argument, or information derived from the proceedings, which refers to or may disclose the existence or contents of the relationship between the Applicant and Momena Shoma.
By way of brief background, one of the important matters relied upon in the bail application by the appellant was the fact that from a time early in the respondent’s period on remand, she had become friends with another prisoner at Dame Phyllis Frost Centre named Momena Shoma (‘Shoma’). Shoma was sentenced to a long term of imprisonment on 5 June 2019 for an offence of intentionally engaging in a terrorist act, constituted by stabbing her selected victim in the neck. Evidence in the bail application indicated that the respondent and Shoma had exchanged handwritten letters which were subsequently seized by authorities from their cells. The content of the letters showed an increasingly warm relationship between the two, showed that the respondent supported and shared the extremist ideology of Shoma, and raised the prospect that the respondent may be willing to follow Shoma on the path to martyrdom in the name of Islam. This material was relied on by the appellant in the bail application, along with other evidence, to show that the respondent maintained a continuing, if not escalating, commitment to the extremist ideology of violent jihad. This was said to be relevant to the high risk she posed of endangering the community should she be released on bail.
Mr Nathwani, who was counsel for the respondent at the court below, applied to the magistrate for an order suppressing publication of any information which would show the connection between the respondent and Shoma. No transcript of the part of the hearing which led to the making of the broad suppression order has been prepared, but judging from the brief ruling of the learned magistrate, it seems the basis of the application was that publication of the material in question may prejudice the fair trial of the respondent. The order on its face purported to be made on the basis that it was ‘necessary in order not to prejudice the administration of justice’. That was undoubtedly a reference to s 26(1)(a) of the Act.
The law
Section 1 of the Act provides, in part, as follows:
The main purposes of this Act are to—
(aa)recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system which—
(i)maintains the integrity and impartiality of courts and tribunals; and
(ii) strengthens public confidence in the system of justice;
Section 4 of the Act provides:
Principle of open justice prevails unless circumstances require displacement
(1)A court or tribunal is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.
(2)A court or tribunal is only to make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information.
Section 15 of the Act governs the review of suppression orders. It provides, in part, as follows:
(1)The court or tribunal that made a suppression order may review the order—
(a) on the court's or tribunal's own motion; or
(b) on the application of—
(i) the applicant for the order;
(ii)a party to the proceeding in connection with which the order was made, including in any criminal proceeding involving a sexual offence or a family violence offence, a victim or an alleged victim of that offence;
(iii) the Attorney-General;
(iv)the Attorney-General of another State or a Territory or of the Commonwealth;
(v) a news media organisation;
(vi)any other person who, in the opinion of the court or tribunal, has a sufficient interest in the question of whether the order should be confirmed, varied or revoked.
(1A)A court or tribunal hearing an appeal from a proceeding in which a suppression order has been made which has continued to operate pursuant to section 12(3A) may review the order—
(a) on the court's or tribunal's own motion; or
(b) on the application of—
(i)the person who was the applicant for the order in the proceeding which is the subject of the appeal;
(ii)any other party to the proceeding which is the subject of the appeal in connection with which the order was made;
(iii)in any criminal proceeding involving a sexual offence or a family violence offence, a victim or an alleged victim of that offence;
(iv) the Attorney-General;
(v)the Attorney-General of another State or a Territory or of the Commonwealth;
(vi) a news media organisation;
vii)any other person who, in the opinion of the court or tribunal, has a sufficient interest in the question of whether the order should be confirmed, varied or revoked.
…
(2)Each of the persons specified in subsection (1)(b) or (1A)(b) is entitled to appear and be heard by the court or tribunal on the review of a suppression order.
(3) On a review under subsection (1) or (1A), the court or tribunal—
(a) may confirm, vary or revoke the suppression order; and
(b)in addition, may make any other order that the court or tribunal may make under this Act including, in the case of a review under subsection (1A), any order that the court or tribunal which made the suppression order could have made.
Section 26(1) of the Act sets out the circumstances in which a broad suppression order may be made. It provides:
Magistrates' Court may make order prohibiting publication of specified material
(1)The Magistrates' Court may make an order prohibiting the publication of any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the Court if the Court is satisfied that—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means; or
(b)the order is necessary in order to protect the safety of any person.
The hearing before me
The initial position of Mr Nathwani before me was that the Court would not have the power to amend or vary the broad suppression order made below, unless the matter came before the Court by way of judicial review. When s 15(1A) of the Act was drawn to his attention by Mr Ginsbourg, who appeared for the Director, Mr Nathwani withdrew that contention. He maintained, however, that the order should remain in effect to preserve the fair trial of the respondent.
Mr Nathwani submitted that in circumstances where the connection between the respondent and Shoma would not be part of the prosecution case in the future trial of the respondent, publication as to the fact of a link between the respondent and Shoma, whom he described as a notorious female terrorist, may prejudice the fair trial of the accused. This would be so notwithstanding the long delay between now and the commencement of the trial of the respondent. This was because of the notable and memorable nature of Shoma and her crime. Mr Nathwani submitted that it would not be too much of a stretch for it to be considered that a juror in the future trial might suddenly be struck with the memory that the respondent was alleged to have had a connection to a convicted female terrorist who had received a long term of imprisonment for trying to kill a person in a terrorist act. He further submitted that any reporting of the link between the respondent and Shoma would continue to be readily accessible upon an internet search being done of the respondent’s name.
Mr Nathwani urged me not to vary the broad suppression order, but rather, to edit my appeal judgment so as not to infringe the order, or indeed, to restrict publication of the judgment.
Mr Ginsbourg confirmed that the Shoma connection, at this time at least, is not part of the prosecution case. He did note that there would be some circumstances which may arise in the running of the trial in which the connection would become relevant. In respect of the suppression order, he adopted the Director’s position at the initial application for the order of neither supporting nor resisting the making of the order. He did draw to the Court’s attention the fact that the trial of the respondent would be some time in the future, and submitted that I would be entitled to consider that the prospect of a potential juror being prejudiced by the publication now of the material would be low.
When I asked Mr Ginsbourg whether, from his perspective as the future prosecutor of the trial, he had any concerns that the publication of my decision may interfere with the fair trial of the respondent, he answered in the negative.
Analysis
The question of the necessity for the continued existence of the broad suppression order made by his Honour, or a modified form of it, must be assessed in the context of the stage in proceedings which the case has currently reached, and the fact that the trial of the respondent will not proceed for a considerable period of time. The committal hearing of the applicant is due to recommence on 23 June 2021. As for the trial, sadly, that will be a long time in the future. The learned magistrate in the bail application acted on the basis of the trial not commencing until late-2022. I will act on the same basis.
If the suppression order remains in place as it currently stands, the publication of the judgment of the Court in a form which would be intelligible to the reader would not be possible. The connection between the respondent and Shoma was a critical part of the reasoning of the Court to a conclusion that the respondent would present a danger to the community if released on bail, and that the learned magistrate did not attach due weight to that fact. Modification of the judgment to redact all matters which would infringe the suppression order would lead to a version of the judgment which would not reveal the important evidence behind my thinking in making the decision. The ability of any media outlet which may choose to publish information about the decision to meaningfully and usefully report the reasoning behind the decision would be materially impaired.
What was relied upon before me and in the court below to justify the making of the suppression order was the potential for the public revelation of the connection between the respondent and Shoma to interfere with the fair trial of the respondent. As noted above, this was on the basis of the risk that a prospective or serving juror would recall having heard of or read about the connection, and would thereby be prejudiced in his or her performance of duty.
In my view, there is no realistic prospect of that occurring, in light of the very long gap between the present time and the likely time of the trial. Furthermore, that concern does not pay due regard to the robust nature of the system of trial by jury, or the measures which would be taken to ensure that the jury empanelled to hear the trial of the respondent is a fair and appropriate one. In the unlikely event that any prospective juror remembered the reported connection between the respondent and Shoma, it is highly likely that such a person would apply to be excused when given the opportunity to do so. Even were that not the case, jurors sitting in the trial would all, shortly after being selected as jurors, have sworn an oath or made an affirmation to give a true verdict according to the evidence, and would be repeatedly reminded of that requirement.
The making or preservation of this suppression order would constitute a significant interference with the important principle of open justice. This could only be justified if there would be a proper and clear basis under s 26(1) of the Act to justify its making. The analysis of that question would be required to be carried out with the primacy of the principle of open justice firmly in mind. A suppression order could not be properly made unless the judicial officer contemplating that step is satisfied that the specific circumstances of the case make it necessary to override or displace that principle.
In making the order he did, the learned magistrate was responding to the needs of the situation as he perceived them to be in the course of the busy proceedings of the Magistrates’ Court during an important bail application. An application was made by counsel for the respondent for a suppression order to protect the integrity of the trial seemingly to follow. The prosecution did not speak against the appropriateness of making the order sought. The order was apparently made in the aftermath and context of some unfortunately sensationalised reporting of the connection between the respondent and Shoma. To my mind, it is entirely understandable that his Honour saw fit to make the order.
For my part, however, I can see no reason to conclude that this order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice, as would be required before an order could be made under s 26 of the Act.
Conclusion
For the reasons I have stated, on a review of the broad suppression order conducted on the Court’s own motion, I have concluded that it is not appropriate that the broad suppression order made by the learned magistrate continue to operate.
The broad suppression order is therefore revoked pursuant to s 15(3)(a) of the Act.
I note that an important reason why I have seen fit to take this course is the fact that the trial of the respondent is still quite distant. To my mind, fair publication of the decision I made on the appeal, including the details surrounding the contact between the respondent and Shoma, would not in any realistic way prejudice the fair trial of the respondent. Things may be entirely different if the trial was closer at hand. Media outlets would do well to remember that any ongoing publication of the connection between the respondent and Shoma as the trial approaches may well have the potential to interfere with the trial, and expose the media outlets to punishment for contempt of court.
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