IMO an Application for a Preventative Detention Order in respect of CAUSEVIC

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2015 0062

IN THE MATTER of the Terrorism (Community Protection) Act 2003 (Vic)

and

IN THE MATTER of an Application for a Preventative Detention Order in respect of
Harun CAUSEVIC by Adam SHOESMITH, Detective Senior Sergeant of Victoria Police

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17, 21 APRIL, 8 MAY 2015
DATE OF JUDGMENT:	3 JUNE 2015
CASE MAY BE CITED AS:	IMO an Application for a Preventative Detention Order in respect of CAUSEVIC
MEDIUM NEUTRAL CITATION:	[2015] VSC 248

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APPLICATION FOR INTERIM PREVENTATIVE DETENTION ORDER – Whether evidence in support of application under the Terrorism (Community Protection) Act 2003 (Vic) should be restricted – Material disclosing confidential police methodologies, informants and ongoing investigations – Conflict between public interest in open justice and public interest in fair trial – Relevant considerations in balancing the conflict – Prohibition on dealing with intercepted information under Telecommunications (Interception and Access) Act 1979 (Cth) – Exception for publication by the media of a fair and accurate report of evidence – Partially redacted application made available.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr S Donaghue QC Mr C Tran	Legal Services Department, Victoria Police
For Mr Causevic	Ms C Boston Mr R Stary	Stary Norton Halphen
For the Australian Federal Police	Dr S Donaghue QC Mr C Tran	Australian Government Solicitor
For the Public Interest Monitor	Mr B Murphy QC Ms J Smith Ms J Gleeson	Office of the Public Interest Monitor
For the Herald and Weekly Times Pty Limited, Nationwide News Pty Limited, Australian Broadcasting Corporation, Nine Network Australia Pty Limited, and Seven Network (Operations) Limited	Ms V Keller	M+K Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Jurisdiction.......................................................................................................................................... 4

Application by the applicant and the AFP for redaction of the application........................... 5

Application by Mr Causevic and the Public Interest Monitor for restricting access to the court file 7

The law............................................................................................................................................... 10

Decision regarding restricting access to the court file............................................................... 18

Statutory prohibition under the Telecommunications (Interception and Access) Act.......... 21

Orders................................................................................................................................................. 24

HIS HONOUR:

Introduction

By a Notice of Intention to make Application for a Preventative Detention Order dated 17 April 2015 (‘the application’), Detective Senior Sergeant Adam Shoesmith of Victoria Police (‘the applicant’) applied for a Preventative Detention Order (‘PDO’) in relation to Mr Harun Causevic pursuant to s 13C of the Terrorism (Community Protection) Act 2003 (‘TCPA’). The applicant also applied pursuant to s 30(2) of the Open Courts Act 2013 for the hearing to be in a closed court.

On 17 April 2015, the hearing of the application proceeded in closed court without notice to Mr Causevic. Dr S Donaghue QC appeared for the applicant and Mr B Murphy QC appeared as the Public Interest Monitor with Ms J Gleeson as the Deputy Public Interest Monitor. Dr Donaghue QC relied upon the facts and other grounds set out in the application, in accordance with s 13D(1)(b) of the TCPA, which was sworn by the applicant as required by s 13D(5) of the TCPA. The making of the interim PDO was not opposed by the Public Interest Monitor.

At 6.45 pm on 17 April 2015, the Court made an interim Preventative Detention Order (‘the interim PDO’) and ordered that the hearing of the application be resumed at 9.30 am on 21 April 2015. In accordance with s 13F(4)(h) of the TCPA, the interim PDO set out a summary of grounds (‘the summary of grounds’) on which the order was made.

On 21 April 2015, the applicant made an application under s 13O of the TCPA to revoke the interim PDO.

On resumption of the hearing, the following persons appeared:

Dr S Donaghue QC and Mr C Tran of counsel for the applicant;
Mr R Stary, solicitor for Mr Causevic;
Mr B Murphy QC, Public Interest Monitor with Ms J Gleeson and Ms J Smith, Deputy Public Interest Monitors.

At the commencement of the hearing, no party contended that the hearing should continue in a closed court and, accordingly, the court was opened and the following applications were made:

(a)In addition to the application referred to in [4] above, the applicant applied for an order that access to the court file be restricted.
(b)Mr Causevic applied to restrict access to the summary of grounds for the making of the interim PDO.
(c)Ms V Keller, who appeared as solicitor for the Herald and Weekly Times Pty Ltd, Nationwide News Pty Ltd, Australian Broadcasting Corporation, Nine Network Australia Pty Ltd and Seven Network (Operations) Limited (together, ‘the media organisations’) opposed the orders restricting access to the court file.

On the making of certain undertakings by the legal representatives of the media organisations and the legal representative of Mr Causevic, the Court ordered as follows:

Revocation
1.The interim preventative detention order made on 17 April 2015 be revoked pursuant to s 13O(3) of the Terrorism (Community Protection) Act 2003 (Vic).

Provision of materials
2.By 4 pm on 21 April 2015, the Applicant will arrange for media organisations to be provided with a copy of the interim preventative detention order made on 17 April 2015 with the summary of grounds for making the order redacted.
3.By 4 pm on 21 April 2015, the Applicant provide to the legal representatives of the media organisations a copy of the interim preventative detention order made on 17 April 2015 including the summary of grounds, redacted to a limited extent to protect the public interest.
4.By 4 pm on 22 April 2015, the Applicant provide to the legal representative of Mr Causevic and the legal representatives of the media organisations a copy of the Application for a Preventative Detention Order made in respect of Harun Causevic on 17 April 2015 by Adam Shoesmith, Detective Senior Sergeant of Victoria Police…, which may if necessary be redacted to protect the public interest.

Timetable
5. The hearing of:
(a)the Applicant’s oral application to restrict access to the Application; and
(b)Mr Causevic’s oral application to restrict access to the summary of grounds contained in the interim preventative detention order;

be adjourned to a date to be fixed.
6.On or before 4 pm on Monday 27 April 2015, the Applicant file and serve submissions and any supporting materials (which may if necessary be redacted to protect the public interest) in relation to the applications referred to in Order 5.
7.On or before 4 pm on Monday 27 April 2015, Mr Causevic file and serve submissions and any supporting materials in relation to the applications referred to in Order 5.
8.On or before 4 pm on 1 May 2015, the media organisations file and serve submissions and any supporting materials in relation to the applications referred to in Order 5.
9.On or before 4 pm on 1 May 2015, the Public Interest Monitor file and serve submissions and any supporting materials in relation to the applications referred to in Order 5.

Other matters
10. Liberty to apply

Pursuant to liberty to apply, Fairfax Media and The Age Company Limited made application by email dated 23 April 2015 for similar access to the materials for the purpose of making submissions. On 23 April 2015, on the basis of similar undertakings being made by the solicitor for Fairfax Media and The Age Company Limited, the Court ordered as follows:

Provision of materials
1.As soon as reasonably practicable, the Applicant will arrange for the legal representatives of Fairfax Media and The Age Company Limited to be provided with a copy of the interim preventative detention order made on 17 April 2015 with the summary of grounds for making the order redacted.
2.As soon as reasonably practicable, the Applicant provide to the legal representatives of Fairfax Media and The Age Company Limited a copy of the interim preventative detention order made on 17 April 2015 including the summary of grounds, redacted to a limited extent to protect the public interest.
3.As soon as reasonably practicable, the Applicant provide to the legal representatives of Fairfax Media and The Age Company Limited a copy of the Application for a Preventative Detention Order made in respect of Harun Causevic on 17 April 2015 by Adam Shoesmith, Detective Senior Sergeant of Victoria Police…, which may if necessary be redacted to protect the public interest.

In accordance with the orders made on 21 and 23 April 2015, the applicant provided to the relevant legal representatives a copy of the interim PDO made on 17 April 2015 including the summary of grounds and a copy of the application both redacted to protect the public interest. Further submissions and affidavits in support were filed on behalf of the parties as follows:

(a)Submissions of the Australian Federal Police (‘AFP’) dated 27 April 2015 in support of the application for limited access to the court file, together with an affidavit of Neil Gaughan sworn 30 April 2015.
(b)Submissions of the Public Interest Monitor dated 1 May 2015.
(c)Submissions for Mr Causevic dated 27 April 2015; and Further Written Submissions were filed on behalf of Mr Causevic on 12 May 2015.[1]
(d)Submissions of the applicant dated 27 April 2015 in support of the application for limited access to the court file, together with an affidavit of Michael Hughes sworn 27 April 2015.
(e)Submissions filed on behalf of the media organisations dated 1 May 2015.
[1]Pursuant to leave granted on 8 May 2015.

Jurisdiction

There was no dispute between the submitting parties that the Court has inherent jurisdiction to make an order restricting access to certain evidence, which in this case is the application, being an affidavit filed and relied upon in court. The submissions referred to the tests that are applied in considering various cognate applications including:

(a) claims for public interest immunity;
(b)applications to close the court pursuant to the Open Courts Act 2013;
(c)applications for a suppression order prohibiting the publication or other disclosure of information revealed in court;
(d)the practice of the Court with respect to the release of various documents where a person is charged with a criminal offence.[2]

[2]See Supreme Court of Victoria, Media Policies and Practices (2004), 11-13.

In substance, I consider that the submissions of each party correctly proposed that in determining whether access should be restricted with respect to each piece of information in issue, the Court should balance:

(a)the public interest in ensuring that the processes of the Court are open and that the public is provided with such information to enable it to properly scrutinise such processes; and
(b)the public interest in maintaining the secrecy of the information for one or more of the purposes relied upon being:
(i)maintaining the effectiveness of police surveillance methods;
(ii)maintaining the confidentiality of confidential sources;
(iii)avoiding prejudice to ongoing investigations; and
(iv)the proper administration of justice.

Application by the applicant and the AFP for redaction of the application

The applicant and the AFP did not oppose the public release of the unredacted interim PDO including the summary of grounds. However, they applied for the application to be released with certain redactions on the basis that the material to be redacted, if disclosed, would:

(a)disclose confidential police methodologies (‘Methodologies disclosure’);
(b)disclose a police informant or human source (‘Informant disclosure’); and/or

(c) risk of prejudice to ongoing investigations (‘Investigations disclosure’).

In particular, the following parts of the application were sought to be redacted on the following grounds:

(a)       paragraph 31 (except the third bullet point) – Informant disclosure;
(b)      paragraphs 33 to 35 – Investigations disclosure;
(c)       paragraphs 41 and 42 – Methodologies disclosure;
(d)paragraph 45 (the entire first line except the word ’BESIM’) – Methodologies disclosure;
(e)paragraph 46 (the description of exhibit AS-2) – Methodologies disclosure;

(f) paragraphs 49 to 51 – Methodologies disclosure;
(g)paragraph 61, including the description of exhibit AS-3 – Methodologies disclosure;

(h) paragraph 67 – Methodologies disclosure;
(i) Exhibits AS-2 and AS-3 – Methodologies disclosure.

In the support of this application, the Court was provided with a confidential affidavit of Neil Gaughan, Assistant Commissioner of the AFP.

It was submitted that the public interest in maintaining the secrecy and confidentiality of the following categories has been, at least with respect to claims for public interest immunity, recognised by the courts:

(a)       confidential police methodologies;[3]
(b)      disclosure of a police informant or human source;[4] and
(c)       risk of prejudice to ongoing investigations.[5]

[3]Woodroffe v National Crime Authority (1999) 107 A Crim R 384 [19]-[25] (Mansfield J); Sands v Channel 7 Adelaide (2009) 104 SASR 452, 556-557 [467]-[474] (Bleby J); Skrijel v Mengler and Ors [2003] VSC 137 [4]-[5] (Nettle J).

[4]ASIC v P Dawson Nominees (2008) 169 FCR 227, 237 [51]-[52] (Heerey, Moore and Tracey JJ).

[5]Attorney-General NSW v Stuart (1994) 34 NSWLR 667, 675 (Hunt CJ at Common Law).

These propositions were not contested by the media organisations or other parties and it was accepted that it was incumbent upon the Court to read the confidential affidavit and consider whether disclosure of the parts of the application, which were sought to be redacted, would create a real risk of prejudice to the public interest in one or more of the three ways identified.

I have read the affidavit and considered the parts of the application referred to in [13] which were sought to be redacted and I consider that the public interest is better served by the maintenance of the confidentiality and secrecy of those parts at this time. In making that determination, I also take into account that the redaction of those parts from the application do not substantially impair the reader’s ability to appreciate the grounds upon which the Court was moved to make the interim PDO.

Application by Mr Causevic and the Public Interest Monitor for restricting access to the court file

Ms C Boston, who appeared as counsel for Causevic upon resumption of the hearing on 8 May 2015, submitted that the media should not be granted access to:

(a)the application at all or, alternatively, not to paragraphs 29-91 inclusive of the application; nor

(b) the summary of grounds in the interim PDO.

In substance, counsel for Mr Causevic submitted that the public interest in the disclosure of the material in the application and the interim PDO was outweighed by the risk that the disclosure of the information would prejudice the criminal trial of Mr Causevic. In particular, it was submitted that the following evidence may be inadmissible at the criminal trial:

(a)The evidence of contact between Mr Causevic and Mr Besim (and other persons whom the prosecution alleges were involved in terrorism-related activities) outside the period of the alleged conspiracy.
(b)The communication from the authorities in the United Kingdom about the investigation and the recent arrest of an individual based in the United Kingdom; and a telegram with a person named ‘Illyas’.
(c)The conversation between Mr Besim and Mr Sulejmani referring to Mr Causevic in Mr Causevic’s absence.
(d)The allegation that Mr Causevic drove past the Shrine of Remembrance.

Further, it was contended that the public interest in the dissemination of the relevant information in this case was diminished by the nature of these proceedings and, in particular, the following:

(a)The application for the interim PDO was heard in a closed court ex parte and, as a consequence, Mr Causevic did not have the opportunity to test or contradict the allegations.
(b)The Court was only required to be satisfied on the balance of probabilities.
(c)The allegations are very serious and the publication of the information could have serious adverse effects on Mr Causevic, especially in light of his youth.
(d)The proceeding under the TCPA had now concluded and Mr Causevic has been charged, although the trial is unlikely to be for about 12 months. Accordingly, it would be premature to release the information.

Mr Murphy QC, who appeared in his capacity as the Public Interest Monitor, supported the submissions made on behalf of Mr Causevic and further submitted that the prospect of interference with the administration of justice was enhanced by the fact that the information, if disclosed, was likely to be made available on the internet and therefore would be more accessible by potential jurors at the time of the criminal trial of Mr Causevic.

In response, Ms Keller, who appeared on behalf of the media organisations, emphasised the public interest in the disclosure of the relevant information on the basis that the granting of the interim PDO was an extraordinary exercise of power by the Court. With respect to the potential effect on the administration of justice, it was submitted as follows:

(a)There had already been substantial reporting in the press of the charges against Mr Causevic and Mr Besim, and of the related case in the United Kingdom. It was highly likely that all of the details contained in the application and the interim PDO will be raised in the criminal proceeding, whether at bail applications, or at trial. Accordingly, there was little utility in restricting access to the information on which the interim PDO was based.
(b)The Court should not restrict access to the relevant information unless there was a real risk that its disclosure would cause serious interference with the administration of justice. In making this determination, the Court should have regard to the following facts:
(i)It is presumed that juries are robust and will adopt a responsible approach in acting to give a true verdict according to the evidence before them in court.
(ii)It was unlikely that the trial in this matter would be listed for the next 12 months and certainly not within 6 months’ time.

The law

The high public policy of the processes of the courts being open to the public including the media is well established. It was elegantly expressed by Kaye J in Director of Public Prosecutions (Commonwealth) v Corcoris (No 2) as follows:

… from time immemorial it has been recognised by all the courts in the common law world, and in particular in this country, that it is of utmost importance that the processes of this court be open to public scrutiny. It is also an obvious fact of modern life that members of the general public rarely have the opportunity to come and see the courts at first hand, and thus their opportunity to learn of what happens in court, and to scrutinise and comment in an informed way on it, is provided to them by the services of institutions such as The Sunday Age in providing information to them about the processes of the courts. It is unnecessary for me to dwell further on the strength of the public policy which has been long recognised and time and again protected by decisions of this court.[6]

[6][2005] VSC 142 [6].

The balancing of this public interest with the public interest in a fair trial was referred to by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd where his Honour said:

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.[7]

[7](1937) 37 SR (NSW) 242, 249-250, approved by Brennan J in R v Glennon (1992) 173 CLR 592, 612 and Lord Reid in Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273, 296 where he said: ’I know of no better statement of the law than that contained in the judgment of Jordan CJ.’

In my opinion, this consideration is only enhanced by the extreme power exercised by this Court in granting the interim PDO under the TCPA, which resulted in a person being incarcerated without charge and without the opportunity to be heard. There are strong reasons why the public should be informed to the greatest extent possible about the grounds upon which the Court relied in making such an order. However, there is no doubt that the inherent jurisdiction of the Court includes a power to restrict access to the court file and, in particular, the evidence relied upon by the Court if it is ‘really necessary to procure the proper administration of justice in proceedings before it’.[8]
[8]John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 477 (McHugh JA); IMO an Application by ‘The Age’ and Ors re: R v Carl Anthony Williams [2004] VSC 413 [12] (Kellam J).

The importance of the right to a fair trial is similarly fundamental. As was said by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales:

The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as ’the central thesis of the administration of criminal justice’; as ’the central prescript of our criminal law’; as a ’fundamental element’ or a ’fundamental prescript’; and as an ’overriding requirement’. It is not a new principle. As Isaacs J put it in 1923 with reference to ‘’the elementary right of every accused person to a fair and impartial trial’: ’Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle.’[9]

[9](2004) 61 NSWLR 344, 353 [22] (citations omitted).

In the above case Spigelman CJ commented, ’As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances.’[10]
[10]Ibid [17].

The same conflict arises in this case to resolve the competing considerations as it has on numerous occasions in the past. Although the resolution of the conflicting principles must be determined by reference to the facts of this case, I have had regard to the approaches of the courts in previous cases including the following.

In National Safety Council Victoria Division; Re Friedrich,[11] the Herald and Weekly Times Ltd appealed a decision of a Master that prohibited publication of any report of the examination of Mr Friedrich by the liquidator of the National Safety Council of Australia. Mr Friedrich had been charged with 91 counts of obtaining property by deception involving $244 million and argued that the reporting of his public examination under s 541 of the Companies Code may risk or prejudice his fair trial. Cummins J recognised the powerful competing considerations of dissemination of information in the public domain and the citizen’s right to a fair trial. His Honour considered that the real question was ‘whether a future jury, if Mr Friedrich’s charges do come to trial, is at risk of being tainted or prejudiced by the dissemination of information from the s 541 examination’.[12] Cummins J allowed the appeal on the basis that:

(a)the jury trial would not occur within 6 months of the examination and probably not for some 12 months; and
(b)jurors are intelligent and robust and are subject to the directions by the trial judge to act only on the evidence adduced in court.

Accordingly, his Honour did not consider a jury would be likely to be prejudiced or adversely affected by dissemination of the information.

[11](1989) 1 ACSR 164.

[12]Ibid 166.

The appeal by Mr Friedrich to the Court of Appeal[13] was dismissed. In making its decision, the Court comprising of Kaye, Fullagar and Ormiston JJ recognised there was a real possibility of the evidence of Mr Friedrich being reported and the reports being repeated; and identified the issue as ‘whether there is a real or substantial risk that such publication will cause an interference with the administration of justice of a kind which might cause serious injustice’.[14] The Court determined that there was no proved relevant risk of injustice and made the following observations:

(a)Most of the material from other witnesses was likely to be repeated at the committal hearing as would many of the facts solicited from Mr Friedrich.
(b)It would be at least 6 months and almost certainly a year before the trial would come on for hearing. If there was a prospect of continuing prejudice, further adjournment of the trial would be possible.
(c)It was necessary to distinguish between information gained from a fair and accurate report and that gained from a colourful or inaccurate report for which a separate remedy was available.
(d)It was easy but wrong to underestimate the intelligence of a jury in a trial.[15]

[13]Friedrich v Herald and Weekly Times Ltd [1990] VR 995.

[14]Ibid 1005.

[15]Ibid 1005-1006.

In Director of Public Prosecutions v Williams,[16] Cummins J considered an application by the Director of Public Prosecutions for an order that the media not publish any material with respect to the involvement of Mr Carl Williams, Mr George Williams or Ms Roberta Williams in drug trafficking and associated criminal activity. The circumstances were that Mr Carl Williams and Mr George Williams were both charged with drug trafficking offences, which were the subject of extensive media reporting. The trials of the charges were listed to commence within five weeks and separate charges of drug trafficking against Mr Carl Williams and his wife, Ms Roberta Williams, were listed to commence within two months. Cummins J identified the relevant principles as follows:

First, that the court has power to protect its own processes, primarily that of a fair trial and to ensure that accused persons are given a fair trial and that they are seen to be given a fair trial. That is, as I have said, in the interests of accused persons, in the interests of the prosecution, and in the interests of the court process and in the interests of the public at large. That is a fundamental and powerful function of court process, which will be activated if there is a real risk of serious interference with the administration of justice.
Secondly, the court will not interfere with matters of legitimate public concern or legitimate public discussion, and the court will not stifle that public discussion, and will not muzzle the media in the fulfilment of that public discussion, subject to the avoidance of the risk of serious interference with the administration of justice.
Thirdly, long experience in the law, … confirms that juries are robust and are responsible. Of course, one must not ask psychological impossibilities of juries, and one must always be astute to prevent prejudice creeping into the jury trial from extraneous sources. But juries, time and again, come to court in cases of great notoriety and publicity and demonstrate by their evident application of mind that they act according to their oath or affirmation to give a true verdict according to the evidence led before them in court. Juries also see the effort which all counsel put into cases, they see the attention to evidence, they see the testing of evidence and often the destruction of apparently persuasive evidence by cross-examination, they hear the directions of the trial judge and they are in law bound by them. Juries by direction, observation and osmosis assume a proper and responsible role as the judges of the facts, judging the case solely on the evidence led in court.[17]

Although the trials were imminent, Cummins J found that he was ‘entirely unsatisfied that a real risk of serious interference with the administration of justice, namely the fair trial of the two trials about to be heard, [had] been made out’.[18] He concluded that he had ‘full confidence in the responsibility and capacity of Australian juries to judge cases solely on the evidence led before them in court’.[19]

[16](2004) 10 VR 348.

[17]Ibid 352, [18]-[20].

[18]Ibid 353, [24].

[19]Ibid 354, [28].

In IMO an Application by ‘The Age’ & Ors re: R v Carl Anthony Williams,[20] Kellam J considered an application by The Age Company Limited and other media organisations to set aside an order prohibiting publication of the fact that Mr Carl Williams had been convicted and sentenced in relation to serious drug trafficking charges earlier in 2004. The application was opposed on behalf of Mr Williams on the basis that during the period of the suppression order, Mr Williams had been charged with a number of murders.
[20][2004] VSC 413.

Kellam J considered the submission that there was a close connection between the conviction and sentencing on the drug trafficking charges, and the allegation of murder; and the extent of the pre-trial publicity or the publicity already generated. However, his Honour did not consider that the publication of the plea and sentence in the drug trafficking matters justified ‘the extraordinary course of suppressing the publication of such matters, for the period of time until the likely trial of the accused, which on any view will not take place before June of next year [a period of 8 months] and in all probability will take place considerably later’.[21] Accordingly, his Honour did not conclude that there was ‘a high level of risk of prejudice to the trial, or that there is a real risk that serious prejudice will occur to the accused’.[22]
[21]Ibid [32].
[22]Ibid.

In John Fairfax Group Pty Ltd (rec and mgrs apptd) v Local Court of New South Wales, Kirby P said:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms.
A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.[23]

[23](1991) 26 NSWLR 131, 142-143 (citations omitted).

In SG v Director of Public Prosecutions,[24] Grove J considered an application for suppression of the fact that the accused, who was charged with murder, had been subsequently charged with making a false statement to police in circumstances where it was said that the false statement was made to divert the murder investigation away from the accused. It was submitted in support of the application that the special circumstances were that ‘if there were public knowledge of the allegations relating to [the making of a false statement] charge and evidence about it was rejected in the anticipated trial for murder, that trial would thereby be rendered unfair’.[25] There was a real risk that a jury would be aware of a fact which was not otherwise admissible in the trial. Grove J rejected the submission and stated:

If the postulated situation were to arise, I consider that the asserted risk, impliedly that jurors would be untrue to their oaths to try the issues on the evidence before them, would not outweigh the principles of open justice. The limit on derogation from the principle of open administration of justice has been described as most stringent and hence there is available full and open reporting by members of the public in attendance at courts, and by news media on behalf of the public generally.[26]

[24][2003] NSWSC 413.

[25]Ibid [20].

[26]Ibid.

In Director of Public Prosecutions (Commonwealth) v Corcoris (No 2),[27] Kaye J considered an application by The Age Company Limited to inspect the court file which included material relating to penalty orders and forfeiture orders under the Proceeds of Crime Act 2002 (Cth) made through a procedure similar to that in this proceeding. The application was opposed by the Director of Public Prosecutions, the respondent Mr Corcoris and the Official Trustee. It was submitted that in the circumstances of the case the public interest in open justice was outweighed by the need for non-publication for the following reasons:

(a) The proceedings were at a very early stage.
(b)The orders were made pursuant to the unusual provisions of the Proceeds of Crime Act 2002 (Cth), which meant that there had been no adjudication on the merits and the respondent had little, if any, real legal opportunity to vary or set aside the orders.

Accordingly, it was contended that publication of the orders ‘might unduly harm the interests both of the respondent and also of a number of other persons who are mentioned or referred to in the orders’.[28]

[27][2005] VSC 142.

[28]Ibid [5].

Kaye J, after noting the importance of open justice (which is referred to at [23] above), identified what his Honour described as ‘important and indeed unique features’ of the orders in question, being as follows:

(a)The orders under the Proceeds of Crime Act 2002 (Cth) operated in a ‘peremptory’ and ‘quite draconian manner’ in that they were made in the absence of the respondent, and unlike ordinary ex parte orders, one did not have the opportunity to fully set them aside.
(b)The threshold of proof required for such an order was low being the same as for an ordinary ex parte order.
(c)Publication of the order could have significant adverse effects on third parties because their names could be published in conjunction with the publication of the orders. The public could draw adverse inferences about their roles and reputations and their commercial interests could be adversely affected without such persons having the opportunity to make submissions about the orders.
(d)Any application for access is made at a very early stage in proceedings.[29]

[29]Ibid [6]-[9].

Kaye J considered that ‘the interests of the third parties who would be affected by publication are of such gravity that they outweigh the very high public policy in favour of publication to which I have already adverted’.[30] However, his Honour did order that The Age Company Limited could have access to the orders with the deletion of the names of the third parties. Although he was concerned that there might be some speculation ‘as to who else is connected with the order’,[31] his Honour did ‘not consider that that type of possible harm is of sufficient magnitude to outweigh the public interest in knowing of the court processes and in receiving information in general terms about the orders’.[32]
[30]Ibid [10].
[31]Ibid [11].
[32]Ibid [13].

In The Herald and Weekly Times Pty Ltd v [A],[33] Maxwell P and Nettle JA considered an appeal from an order generally prohibiting publication of matters reflecting on the character or credit of the accused. The Court considered that the order was ‘beyond what could reasonably be regarded as necessary to ensure the fairness of [A’s] trial’[34] and therefore varied the order to what their Honours considered was necessary. In the course of judgment, Maxwell P and Nettle JA said:
[33](2005) 160 A Crim R 299.
[34]Ibid 308, [41].

The court’s power to suppress publication is not narrowly circumscribed. As Brooking JA put it in a passage in Re Application by Former Officer of Australian Security Intelligence Organisation, which is cited in the judge’s ruling:
… [I]t is clear that there is inherent power to impinge by order in a given case upon the general principle that the courts shall conduct their proceedings in public. The impingement may be great or small, as the circumstances warrant …

The question, therefore, is what the circumstances warrant. Since the foundation of the inherent power is the need to ensure that justice is done in the proceedings, it follows that the exercise of the power can range no wider than is necessary to secure that object.
A suppression order directed at preventing prejudicial media comment is akin to an anticipatory exercise of the Court’s power to deal with contempt of court. The same objective informs the Court’s power to grant a quia timet injunction to restrain a threatened contempt. That power is, however, to be exercised sparingly, as Lord Donaldson MR pointed out in Pickering v Liverpool Daily Post & Echo Newspapers plc:
There is no doubt that, in general terms, there is jurisdiction to grant an injunction prohibiting specific conduct which would constitute a breach of the common law rules relating to contempt of court ... However ... where the contempt would consist of impeding or prejudicing the course of justice, it will rarely be appropriate for two reasons. The first is that the injunction would have to be very specific and might indirectly mislead by suggesting that conduct of similar, but slightly different, nature would be permissible.
The second is that it is the wise and settled practice of the courts not to grant injunctions restraining the commission of a criminal act – and contempt of court is a criminal or quasi criminal act – unless the penalties available under the law have proved inadequate to deter commission of offences.[35]
35Ibid 306-7, [31]-[33] (citations omitted).

Decision regarding restricting access to the court file

In my opinion, the circumstances of this case do not justify an order restricting the access by the media organisations to the interim PDO and application redacted as noted in [13] above for the following reasons:

(a)The extreme nature of the interim PDO made by the Court pursuant to s 13E of the TCPA in a closed court accentuates the importance of the public being made aware (to the fullest extent possible) of the material before the Court at the time of the making of the interim PDO. I acknowledge the submissions on behalf of Mr Causevic that the procedure adopted under the TCPA meant that he did not have the opportunity to challenge the material. However, I consider this factor is moderated by the considerations referred to in the next paragraph.

(b)The substance of the significant allegations in the interim PDO and the redacted application have, in substance, already been disclosed through the media and the bail applications in the criminal proceedings against Mr Besim and Mr Causevic, particularly the affidavit of Federal Agent Denis Scott sworn 28 April 2015. Counsel for Mr Causevic submitted that there were various facts contained in the application which were not disclosed in the affidavit of Mr Scott. I have had the opportunity of comparing the application with the affidavit of Mr Scott and there are some further facts disclosed and some further details of other facts contained in the application. However, I do not consider the additional facts and details are significant; and I do not consider that they are likely to be facts that would put the fair trial of the accused at risk. Further, counsel for the applicant and the AFP said that the AFP had carefully considered what had already been disclosed by the media in determining the material over which they sought to maintain confidentiality. Counsel for Mr Causevic was unable to say whether the material in the application, which had not been disclosed in the affidavit of Mr Scott, had or had not already been published in the media.
(c)The criminal trial of Mr Causevic is unlikely to be listed within 12 months. I am unable to conclude that the disclosure of any additional material in the application, even if it is not disclosed at any subsequent committal, will have any effect on the fair trial of Mr Causevic.
(d)It may be, as submitted, that part of the information in the application will not be admissible in the criminal trial against Mr Causevic. However, adopting the same reasoning as Grove J in SG v Director of Public Prosecutions[36] and Kellam J in IMO an Application by ‘The Age’ & Ors re: R v Carl Anthony Williams,[37] I do not consider that in all the circumstances media reporting of this information, at this time, presents a real risk of prejudice to the fair trial of Mr Causevic.
(e)It was submitted that the fact that the criminal proceedings were at an early stage was a reason why it would be ‘premature’ to allow non-parties, being the media organisations, access to the court file. Reliance was placed upon comments by Kaye J in Director of Public Prosecutions (Commonwealth) v Corcoris (No 2),[38] which referred to the decision of Santow J in Eisa Ltd v Brady[39] and a decision of Barrett J in John Fairfax Publications Pty Ltd v Rich.[40] In my opinion, these cases are not of assistance in this application because they considered a New South Wales Practice Note which required that access to ‘other material’ on the court file would only be granted in exceptional circumstances. However, the position under that Practice Note was that access would normally be granted, without leave, to non-parties in respect of documents including material that had been admitted into evidence (as in this case).
(f)It was submitted that the allegations were very serious and publication could have ‘very serious adverse affects’ on Mr Causevic, especially in light of his youth. Undoubtedly, the allegations are very serious. However, I consider that this factor has to be considered in light of the fact that this feature is a normal attendant to publication of serious charges; and I do not consider the additional material in the application being disclosed to the media significantly adds to the seriousness of the allegations already in the public domain.

[36][2003] NSWSC 413.

[37][2004] VSC 413.

[38][2005] VSC 142 [9].

[39][2000] NSWSC 929 [18]-[20].

[40][2002] NSWSC 198 [19].

Counsel for Mr Causevic made a further submission that the final three lines of paragraph 58 be redacted because it would otherwise reveal the address of Mr Causevic’s family. No submission was made in opposition to this application and I will redact those three lines because I discern no public interest in the address of the family being publicly available and I consider there is good reason to protect the interests of third parties.[41] Further, counsel for Mr Causevic submitted that the final three words of paragraph 46 should be redacted. There was no objection by any represented party to this redaction and accordingly I will redact those words.
[41]Director of Public Prosecution (Commonwealth) v Corcoris (No 2) [2005] VSC 142 [37].

Statutory prohibition under the Telecommunications (Interception and Access) Act

Section 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TI Act’) provides as follows:

63No dealing in intercepted information or interception warrant information
(1)Subject to this Part, a person shall not, after the commencement of this Part:
(a)communicate to another person, make use of, or make a record of; or

(b) give in evidence in a proceeding;
lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).
(2)Subject to this Part, a person must not, after the commencement of this subsection:
(a)communicate interception warrant information to another person; or

(b) make use of interception warrant information; or
(c) make a record of interception warrant information; or
(d)give interception warrant information in evidence in a proceeding.

Apart from the paragraphs to which I have already refused access by redaction, the AFP contend that lawfully intercepted information, within the meaning of the TI Act, is contained in paragraphs 54-55, 62-66 and 68-69 of the application.

The AFP submits as follows:

(a)Section 63 does not impose any direct prohibition on the disclosure of information by the Court because the expression a ‘person’ in s 63(1) does not include a court.[42]
(b)However, the prohibition in the section is not limited to the person that makes the interception of the lawfully intercepted information[43] but extends to later recipients.
(c)Accordingly, if the media accesses the lawfully intercepted information, s 63(1) nonetheless prevents them from communicating or using that information unless they can bring themselves within an exception to Part 2-6 of the TI Act.

[42]See Kizon v Palmer (1997) 72 FCR 409, 430-431 (Lindgren J with whom Jenkinson and Kiefel JJ concurred).

[43]John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81.

It is well-established that the publication by the media of a fair and accurate report of evidence given in accordance with s 74 of the TI Act is impliedly authorised and will not constitute a contravention of s 63.[44] Whether the implied authorisation will extend in all circumstances once the information is in the public domain has been the subject of some judicial consideration.[45]
[44]Ibid [87] (Gleeson CJ), [112]-[113] (Kirby P); Wood v Beaves (1997) 137 FLR 436, 440 (Handley JA), 449-50 (Cole JA).
[45]See for example Kizon v Palmer (1997) 72 FCR 409, 434 (Lindgren J with whom Jenkinson and Kiefel JJ concurred); R v Standen (2011) 80 NSWLR 428, 431 [12]-[13] (James J); Commissioner, Australian Federal Police v Simsonidis (2007) 240 ALR 40 (Ryan, Marshall and Jessup JJ).

It was the submission on behalf of the AFP that the above principle would not apply because the application was only relied upon for the purpose of obtaining the interim PDO, which was in a closed court. It was argued that the fact that, on the resumption of the hearing, the court was opened did not bring the application relevantly into the public domain because it was said that ‘the right of the media to report was … tied very much to considerations of open justice and the contemporaneity of the fact that if the media was entitled to be sitting in the court while the evidence is given, but not entitled to report some or other parts of it, that would have a very destructive effect on the capacity of the media to give an account of what has happened in open court.’

I make no comment on the validity of this argument and it appears to me that it is not necessary for me to attempt to resolve the matter.

I do not propose to redact the additional paragraphs on the basis of s 63(1) of the TI Act for the following reasons:

(a)The Court is not prevented from disclosing the lawfully intercepted information by s 63 of the TI Act.
(b)The AFP does not contend that there is any public interest in the additional material being redacted from the application.
(c)Whether or not the publication or other use by the media organisations of the additional material will be a contravention of s 63(1) of the TI Act is a matter about which it will be necessary for those organisations to obtain advice and make a decision. The fact that this Court is not precluded from disclosing the additional material by reason of s 63 of the TI Act should in no way be seen by the media organisations or anybody else as an indication that their publication or any other use of the material by them would be legal.

Orders

I propose to order as follows:

(a)The application for a Preventative Detention Order in respect of Harun Causevic made on 17 April 2015 by Adam Shoesmith, Detective Senior Sergeant of Victoria Police (‘the application’) be kept confidential, and no person be permitted to inspect or obtain a copy of the application.
(b)A copy of the application will be placed on the court file in which the following paragraphs (or parts thereof, where only part of the paragraph is specified) have been redacted (‘the redacted application’):

(i) paragraph 31 (except the third bullet point);

(ii) paragraphs 33 to 35;

(iii) paragraphs 41 and 42;

(iv) paragraph 45 (the entire first line except the word ‘BESIM’);

(v) paragraph 46 (the description of exhibit AS-2 and the final three words of the paragraph);

(vi) paragraphs 49 to 51;

(vii) paragraph 61, including the description of exhibit AS-3;

(viii) paragraph 67;

(ix) exhibits AS-2 and AS-3;

(x) the final three lines of paragraph 58.

(c)The redacted application is to be kept on the court file and is to be available for inspection.

(d) No order as to costs.

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Citations

IMO an Application for a Preventative Detention Order in respect of CAUSEVIC [2015] VSC 248

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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R v Wiliams; In the matter of an application by "The Age" [2004] VSC 413

Whan v McConaghy [1984] HCA 22

[2015] VSC 248

3 JUNE 2015