R (Cth) v Alqudsi (No 4)

[2022] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation:

R (Cth) v Alqudsi (No 4) [2022] NSWSC 932

Hearing dates:

11 July 2022

Decision date:

11 July 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)    The witness MM and the ASIO witness to be screened from the view of the accused.

(2)   The witness MM not be notified of the screening order until after the conclusion of his evidence.

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – national security – administration of justice – ASIO witnesses – shielding of identity – witness safety – unacceptable risk

Category:

Procedural rulings

Parties:

Regina (Crown)
Hamdi Alqudsi (Accused)
Commissioner of the Australian Federal Police (Prosecuting Party)

Representation:

Counsel:
N Roucek (Crown)
M Finnane RFD QC (Accused)
P Melican (Prosecuting Party)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Pinnacle Legal Group (Accused)
Australian Government Solicitor (Prosecuting Party)

File Number(s):

2019/354277

ex tempore Judgment

1. HIS HONOUR: The Court has before it proposed suppression and non-publication orders which have been circulated to the parties on a number of occasions. The particular issue between the Commissioner of the Australian Federal Police (hereinafter “the AFP”), and the accused, is an order, the effect of which is to screen a particular witness in these orders known as MM (and, indeed, in the proceedings known as MM) and an ASIO witness from the sight of the accused.

2. The effect of the order is that counsel for the accused, and each of the other counsel, will be able to see the witnesses, as will the jury and, of course, as will I, but the accused will not.

3. I bear in mind, first of all, a public interest associated with open justice. It is an important aspect of the judicial system in which we act that justice must be done and must be seen to be done. That means that the conduct of a trial, unlike in some jurisdictions about which I have read, are available to the public; may be reported upon by the media; and, the public, subject to certain restrictions, may be admitted to watch and, subject to the laws of contempt, criticise what is going on in the courtroom.

4. It ensures, amongst other things, that judicial officers and counsel are cognisant of the effect on the public of the administration of justice and on what they are doing in the administration of justice.

5. There are confined exceptions to that rule, but in making orders under those confined exceptions, the Court is required to bear in mind the principle of open justice as being a primary consideration with which the Court is concerned. I bear that in mind.

6. The subject matter of these proceedings is well-known to the parties and probably to some extent to the public. It alleges that the accused directed an organisation that was a terrorist organisation. The organisation seems to be a rather loose one, but whatever be its constitution, for want of a better term, it is said that it was involved in preparing or planning a domestic terrorist activity and that the defendant intentionally directed the organisation and knew of the terrorist activity that was planned or prepared.

7. As a consequence, there are issues associated with national security and other matters. Most of the suppression and non-publication orders deal with those aspects. One matter, that is the screening of witness MM from the accused, is not a matter that, in a strict sense, deals with national security. There is no objection taken to the screening of the ASIO witness. There is objection taken to the screening of MM, who is said to have had a peripheral involvement in the organisation; which it is said the accused directed, in relation to these matters; that is the domestic terrorism aspect.

8. I have received two affidavits and three versions of another affidavit. There is a filed affidavit of a Deputy Commissioner of the AFP, Mr Ian McCartney, which is on the record. There is a partially confidential affidavit of Mr McCartney that is available to the parties. When I say “partially confidential”, it contains more material than the filed copy. Then there is a confidential affidavit of Mr McCartney which has material that has been redacted from the copy available to the parties, in particular, the accused.

9. There is also a confidential affidavit of Mr Mark Laing which has been read and marked. Fundamentally, the issue is not about national security. It is about the risk of the safety of the witness MM.

10. The context of this application requires the Court to assume, without in any way making any findings, that the allegations made by the Crown against the accused are arguable. One of those allegations is the swearing of an allegiance to, and an affiliation with, an international terrorist organisation. I make absolutely no finding in relation to that, nor, I hasten to add, do I make a finding that an affiliation of that kind necessarily involves support for or acceptance of some or all of the conduct that might be undertaken by such an organisation. Nevertheless, that is an aspect of this issue.

11. There are, it is stated in the affidavits, and known to the Court, some people throughout the world who have like affiliations (or there are organisations said to be affiliated) to that organisation to which it is the alleged the accused has an affiliation. As a consequence, the reach of persons who might want to do harm to the witness is significant.

12. I accept what is said by Mr Finnane on behalf of the accused that many witnesses require protection, but I think the distinction in this case is the potential reach of people affiliated to, for example, ISIS. In those circumstances there is a slightly different issue.

13. I also bear in mind that in today’s world, with the capacity to photoshop photographs by a generically available computer application, a description of the changed identity of the witness may be translated into a photoshopped version of the witness’s appearance and, in those circumstances, the witness or a photoshopped version of the witness’s face might be able to be circulated by those meaning him harm.

14. The difficulty I have is that I accept the validity of the argument that it is important in a trial for a witness — of whom the accused is likely to say, at least in relation to that which is in, in this case, his statement, that it is untrue or otherwise incorrect — to realise that people who know the truth will be watching him and able to discern not only what he says but how he says it and how he reacts to particular questions.

15. Ultimately, the issue is one of the safety of the witness. The Court is not of the view that every time safety is raised it is a matter that will override the need for public justice or the desirability of the accused viewing the evidence as it is given.

16. In other areas over which the Court presides, the Court is often required to deal with what is said to be an “unacceptable risk”. In so doing, the Court deals with a matrix of factors.

17. Two particularly obvious factors are the likelihood that in this case the safety will be put at risk and the consequence of any conduct should it occur. One does not have to come to the view (and I do not come to the view) that it is likely the accused would either convey the appearance of the witness to someone, or even more so someone likely to want to do the witness harm.

18. However, I do not consider that the likelihood of that conveyance, or the likelihood of harm being done, ends the issue. As I earlier said, the issue depends upon a matrix which includes the probability of problematic conduct — that is, as long as it is a real likelihood and not just a mere possibility — together with the harm that would be done if the possibility or probability were manifest.

19. The damage that could be done, if damage was sought to be done, would be significant, and includes the death of the witness. In those circumstances, it seems to me that it is a risk that is, in the traditional sense, unacceptable. In those circumstances, and given that which I have read in the affidavits, I make the orders in proposed order 15 to screen the witness. I do so bearing in mind that the jury will not be informed that the accused is unable to see the witness, and bearing in mind that the accused counsel will be able to see the witness.

20. As a consequence, the witness MM and the ASIO witness will be screened from the view of the accused.

21. As to whether the witness should know the accused cannot see him, I can see arguments each way. Counsel for the accused has submitted that the witness MM should not be told that the accused cannot see him; that he should merely be told that he is coming to give evidence. The Crown did not express a position.

22. Counsel for the AFP have indicated that they do not have a position of whether MM should be advised of the terms of the screening order; only that, should the witness not be told, any such order lapse at the conclusion of his evidence so that he could be told after the fact if it were necessary to give him some assurances.

23. On the basis of these submissions, I think the suggestion of the AFP — to which the counsel for the accused has no objection — is a very sensible approach. As a consequence, I make the order that the screening order on the accused not be notified to the witness until the witness’s evidence is complete.

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Decision last updated: 13 April 2023