NSW Police Force v Alameddine (No. 2)

[2023] NSWSC 633

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Police Force v Alameddine (No. 2) [2023] NSWSC 633

Hearing dates:

9 June 2023

Date of orders:

9 June 2023

Decision date:

09 June 2023

Jurisdiction:

Common Law - Criminal

Before:

Chen J

Decision:

(1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

(a)   there be a non-publication order prohibiting the publication of the Police Intelligence Reports tendered in these proceedings, including any references to those reports (or opinions based on them) by Detective Superintendent Cadden in his affidavits or any references in submissions of either party, by each of the parties and Nationwide News Pty Ltd, and any other news media organisation or any other person; and,

(b) the decision in NSW Police Force v Alameddine [2023] NSWSC 577 be suppressed in the manner proposed in Annexure “A” to the confidential affidavit of Michael Ayache sworn 6 June 2023 and,

(c)   that paragraph 3 of the affidavit of Michael Ayache sworn 2 June 2023 is suppressed.

(2)   That the NSW Police and all law enforcement agencies be exempt from the operation of Order 1.

(3)   That these orders apply throughout the Commonwealth.

(4)   That these orders operate for a period of 30 years.

(5)   Note that the confidential affidavit of Michael Ayache sworn 6 June 2023 is returned.

(6)   I grant access to Nationwide News Pty Ltd to the file subject to the above orders.

Catchwords:

CIVIL PROCEDURE – suppression and non-publication orders – whether publication of police intelligence reports would threaten the administration of justice – whether publication of police intelligence reports would expose the defendant and his family to significant risk of retributive action – non-publication and suppression orders made

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes (Serious Crime Prevention Orders) Act 2016 (NSW)

Cases Cited:

AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Attorney General for NSW v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307

Commissioner of Police NSWPF v Amoun [2020] NSWSC 1810

Darren Brown (a pseudonym) v The Queen (No 2) [2019] NSWCCA 69

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324

Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774

Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97

NSW Police Force v Alameddine [2023] NSWSC 577

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; [2019] HCA 38

Category:

Consequential orders

Parties:

NSW Police Force (plaintiff)
Mohamad Alameddine (defendant)
Nationwide News Pty Ltd (interested party)

Representation:

Counsel:
N Regener (plaintiff)
M Ayache (defendant)
MJ Lewis (interested party)

Solicitors:
Makinson d’Apice Lawyers (plaintiff)
One Group Legal (defendant)

File Number(s):

2022/76907

Publication restriction:

Nil

JUDGMENT EX TEMPORE

Introduction

1. On 31 May 2023 I delivered my reasons for judgment and, relevantly, made an order that, pursuant to s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (‘the SCPO Act’), the defendant be subject to a serious crime prevention order on the terms set out in Annexure A (to that judgment), for a period of 12 months.

2. In that judgment I made findings that the various steps required to make an order had been satisfied, and that there were no discretionary reasons that told against that course. In doing so, I relied upon evidence contained in, or exhibited to, two affidavits from Detective Superintendent Stuart Cadden. Those affidavits exhibited a considerable number of Police Intelligence Reports. In order for me to be satisfied that an order should be made under the SCPO Act, I made a number of factual findings about what those intelligence reports, and other material, revealed in connection with the defendant.

3. Shortly after handing down judgment, my Chambers received an email from the solicitor for the defendant foreshadowing his intention to file an application to have aspects of the judgment redacted and requesting that the judgment not be published to Case Law for a period of at least seven days. Given that the communication indicated that there were concerns for the safety of individuals (and based upon my familiarity with the content of the Police Intelligence Reports), I subsequently made an order in Chambers that, pursuant to ss 8 and 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (‘the Act’), there be no publication of the judgment for seven days, and ordered that any application for orders under s 7 of the Act be filed by 7 June 2023 failing which the order would be revoked.

4. Pursuant to that order, the defendant filed a notice of motion on 1 June 2023, seeking the following orders:

1 Pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010:

a. there be a non-publication order prohibiting the publication of the Police Intelligence Reports tendered in these proceedings and

b. The decision in NSW Police Force v Alameddine [2023] NSWSC 577 be redacted in the manner proposed in Annexure “A” to the confidential affidavit of Michael Ayache sworn 2 June 2023.

2 That the NSW Police be exempt from the operation of Order 1.

3 That these orders apply throughout the Commonwealth.

4 That these orders operate for a period of 50 years.

5. Thus, the defendant seeks a non-publication order in respect of the Police Intelligence Reports (order 1(a)); otherwise, the defendant seeks an order that there be “redactions” to a number of paragraphs in the judgment delivered (order 1(b)) – which I take to be an application for a suppression order.

6. The Commissioner neither consents to, nor opposes, the orders sought.

7. Nationwide News Pty Ltd (‘Nationwide’) who has appeared – as it is entitled (s 9(2)(d)) – opposes the orders.

Suppression and non-publication orders

The legislative provisions

8. Section 7 of the Act confers a broad power on a court to make a suppression or non-publication order when one or more of the grounds in s 8(1) of the Act are engaged. Section 6 requires a court, in determining whether to make an order under s 7, to take into account the public interest in open justice as a primary objective of the administration of justice. These provisions have been described as “interrelated” and identifying “the circumstances in which a court may make an order to suppress or prohibit publication of court proceedings”: Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97 at [17] (the Court) (‘Qaumi’).

9. Section 7 provides that a court may, by suppression or non-publication order, prohibit or restrict the publication or other disclosure of information of two types: first, information “tending to reveal the identity of … any party to or witness in proceedings before the court”: s 7(a) of the Act; and, secondly, information “that comprises evidence … given in proceedings before the court”: s 7(b) of the Act.

10. Section 8(1) requires that the order under s 7 be “necessary” to achieve one of the objectives in ss 8(1)(a)-(e) of the Act. The defendant here relies upon two of those provisions – namely:

1. that the “order is necessary to prevent prejudice to the proper administration of justice” (s 8(1)(a)); and,

2. that the “order is necessary…particularly given that the [Police Intelligence Reports] … ha[ve] the potential to endanger the lives of several members of the community” (s 8(1)(c)).

11. Section 3 of the Act defines ‘non-publication order’ to mean “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”. That same section defines ‘suppression order’ to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”.

General principles

12. The relevant principles are not in doubt. They may be summarised as follows.

13. It is a “fundamental rule of the common law … that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule”: John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476 (McHugh JA) (‘Police Tribunal’).

14. The “underpinning principle” is contained in s 6 of the Act – viz., “… that a primary objective of the administration of justice is to safeguard the public interest in open justice”: Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774 at [13] (Basten AJ).

15. The public interest “in open justice is served by reporting of court proceedings and their outcomes. Open justice normally requires the identity of the offender to be revealed”: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [101] (the Court) (‘AB’).

16. The “entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings”: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20] (Spigelman CJ); Police Tribunal at 476-477 (McHugh JA); AB at [102].

17. The operative condition for the making of a suppression order is a requirement for it to be ‘necessary’– a requirement that “reinforces the legislative intention that … [suppression] orders should only be made in exceptional circumstances”: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27] (Bathurst CJ and McColl JA) (‘Rinehart'). It is not sufficient that suppression or non-publication of the information “would be ‘convenient, reasonable or sensible, or that it serves the public interest, or even on balance serves the public interest’”: Attorney General for NSW v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [34]; Rinehart at [31]; Qaumi at [22]-[26]. Further, mere “belief that the order is necessary is insufficient”: Police Tribunal at 477 (McHugh JA).

18. These propositions are reinforced by the requirement for the Court to take into account “that a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 6 of the Act; Rinehart at [32].

19. Where the order is considered to be necessary, it ought to be made irrespective of its utility: the “decision to make a non-publication order … is not a discretionary one”: AB at [117]-[118]; Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [33]; Rinehart at [48].

Consideration and disposition

20. The defendant advanced two broad submissions in support of the orders.

21. The first submission was that the orders were necessary so as to prevent prejudice to the proper administration of justice. The point sought to be made was that the disclosure of the intelligence reports would have the effect of compromising the administration of justice.

22. In aid of this submission the defendant relied upon what was said in Attorney General for NSW v Nationwide News Pty Ltd at [38]. In that case the Court was “prepared to hold that the ‘administration of justice’ can extend to the investigation and detection of crime, and the obtaining of evidence against suspects”.

23. That broad proposition may be accepted. Nevertheless, in the present case, it is difficult to accept, particularly given the position of the Commissioner, that this is a realistic concern or that the disclosure would compromise the administration of justice in the way suggested. I am not prepared, on the present evidence, to so find.

24. The second submission was that the orders were necessary in order to protect the safety of persons – notably those who, if the information were disclosed, might be the subject of “retributive action”. There was evidence directed to establishing the apprehension and concerns of the defendant, which extended to his family.

25. In order to assess whether an order under s 8(1)(c) is necessary, the courts have adopted a ‘calculus of risk approach’: AB at [58]; Darren Brown (a pseudonym) v The Queen (No 2) [2019] NSWCCA 69 at [36]-[37].

26. In AB, the calculus of risk approach was expressed in the following terms (at [56]-[57]):

The calculus of risk approach requires the court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility.

…

Under the calculus of risk approach the nature of the harm (death) would carry weight in the calculus of risk which would have the effect that it would not be necessary for the court to be satisfied that it was probable that the threats would be carried out. The fact that the possible harm was so serious would lead to the court’s being satisfied under s 8(1)(c) that an order was necessary in circumstances where it could not be said to be probable that the threats would be carried out.

27. It is useful to set out, and start with, some background.

28. The proceedings in this Court sought a ‘civil preventative order’ under s 5 of the SCPO Act. The preconditions to making an order under that Act are set out in ss 5 and 6 and, relevantly, hinge on a finding that the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting or disrupting the person’s involvement in serious crime related activities: s 5(1)(c); Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; [2019] HCA 38 at [43]. This requirement has been described as the “third step”, and is directed to whether there is a real likelihood – being a real or significant risk – that the defendant will be involved in serious crime related activity: Vella at [43]. Further, in Commissioner of Police NSWPF v Amoun [2020] NSWSC 1810, Garling J emphasised at [41] that this “encompasses not just the actual commission of a serious offence directly by an individual, but also conduct which facilitates another person engaging in serious crime related activity or conduct”.

29. As to this step, the defendant’s convictions of serious criminal offences and his involvement in other serious crime related activities sought to be proved are relevant, but not determinative. Consistent with this, the Commissioner relied upon, amongst other material, the content of the Police Intelligence Reports (as well as some opinion evidence based upon what was contained in those reports) in order to demonstrate that the defendant was a person who associates with others that may be involved in serious crime related activity and, more directly, to demonstrate the existence of the real and significant risk of involvement by the defendant in serious crime related activity. Put simply, I accepted the Commissioner’s submission and found that the material amply demonstrates the existence of the real and significant risk of involvement by the defendant in serious crime related activity.

30. The specific concern of the defendant is that the intelligence reports seek to implicate the defendant across a range of serious crime related activities – particularly where they relate to other individuals including those with whom the defendant might be seen to be in conflict – giving rise to the distinct prospect of reprisals against him and his family. Having regard to the nature of, basis for, the defendant’s application, there are obvious constraints in what can be disclosed: it is not possible to be more descriptive of the specific events that give rise to the concerns expressed. I am, however, satisfied that the defendant holds the concerns, and that they are soundly and reasonably based.

31. In my view, applying the calculus of risk approach I am well satisfied that there is a high likelihood of harm occurring, and the prospect of harm arising I would assess as severe and, potentially, grave. (I am not placed to make any predictive finding about “imminence”, but obviously that remains a possibility). To be clear it goes well beyond mere apprehension and mere unsupported belief, in my view. I am therefore satisfied that there is a significant and unacceptable risk of harm to the defendant, and his family, and the order is necessary to protect those persons.

32. I am mindful of, and have given consideration to, safeguarding the public interest in open justice (s 6). Nevertheless, given what I have found to be the demonstrated risk to the safety of the defendant, and his family, I do not consider that the public interest tells against the order. That is particularly where, as here, the media is free to report any other aspects of the proceedings, including the orders made: AB at [101]. I am, therefore, satisfied, as the defendant essentially submitted, that any derogation to the principle of open justice will be kept to a minimum.

33. The orders are required to indicate its duration: s 12(1). No submissions were made against the duration sought by the defendant. I am satisfied that it is no longer than is reasonably necessary to achieve its purpose: s 12(2).

Orders

34. For the above reasons are, I make the following orders:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

1. there be a non-publication order prohibiting the publication of the Police Intelligence Reports tendered in these proceedings, including any references to those reports (or opinions based on them) by Detective Superintendent Cadden in his affidavits or any references in submissions of either party, by each of the parties and Nationwide News Pty Ltd, and any other news media organisation or any other person; and,

2. the decision in NSW Police Force v Alameddine [2023] NSWSC 577 be suppressed in the manner proposed in Annexure “A” to the confidential affidavit of Michael Ayache sworn 6 June 2023 and,

3. that paragraph 3 of the affidavit of Michael Ayache sworn 2 June 2023 is suppressed.

2. That the NSW Police and all law enforcement agencies be exempt from the operation of Order 1.

3. That these orders apply throughout the Commonwealth.

4. That these orders operate for a period of 30 years.

5. Note that the confidential affidavit of Michael Ayache sworn 6 June 2023 is returned.

6. I grant access to Nationwide News Pty Ltd to the file subject to the above orders.

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Decision last updated: 13 June 2023