R v Abdirahman-Khalif

[2020] HCATrans 123

[2020] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 2020

B e t w e e n -

THE QUEEN

Appellant

and

ZAINAB ABDIRAHMAN‑KHALIF

Respondent

Application for suppression orders

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 AUGUST 2020, AT 9.29 AM

(Continued from 25/8/20)

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC:   May it please the Court, I appear in this matter on behalf of the applicant Commissioner of the Australian Federal Police with my junior, MR P.H. D’ASSUMPCAO.  (instructed by Australian Government Solicitor)

MR P.J. DOYLE:   May it please the Court, I appear for the appellant.  (instructed by Commonwealth Director of Public Prosecutions)

MR J.D. CALDICOTT:   May it please your Honour, I appear for the respondent, Ms Abdirahman‑Khalif.  (instructed by Caldicott Lawyers)

HIS HONOUR:   Mr Holdenson, thank you for sending up the draft order.  I see you managed to resolve the deletions that we discussed last time.

MR HOLDENSON:   Yes.

HIS HONOUR:   Which is to say paragraphs 3.1 and 3.2 and 3.5 and 3.6.

MR HOLDENSON:   Yes, they have gone.  With respect to, if I could just speak of the interim order made on 25 August, we have added an extra item within what was 3.5.

HIS HONOUR:   Yes, I saw that, thank you, and I understand why you have done so.

MR HOLDENSON:   Yes.

HIS HONOUR:   You will see in the further revised version that I have had shortly sent to you - which I hope you have, have you?

MR HOLDENSON:   Yes, we received it a few minutes ago, your Honour.

HIS HONOUR:   Thank you.  You will see that I deleted reference to 77RF(1)(a) and also to the Surveillance Devices Act.  I have done so because, for reasons which I will publish this afternoon, I do not think it is necessary to make such an order in view of the fact that I am proposing to make one under 77RF(1)(b), which will fully secure the confidential information in a way which makes it unnecessary to further secure it by either of those two orders.  The only other thing I wish to ask you about, if I may, is in the exceptions to disclosure, in paragraph 3 of the orders ‑ ‑ ‑ 

MR HOLDENSON:   At paragraph 3 as was sent out this morning, your Honour?

HIS HONOUR: Paragraph 4 as was sent out this morning, or 3 as in I sent to you, so paragraph 3.7. “Commonwealth officers” as defined by section 3(1) of the Crimes Act - I suppose it is a matter for you, if I may say so with respect, although looking at the definition it appears to be extraordinarily broad.  It would include, presumably, someone who sweeps the floor in a Commonwealth department.

MR HOLDENSON:   Well, we did not intend to catch that type of person.

HIS HONOUR:   If you are satisfied with it then no doubt those who instruct you are best placed to make their decision.

MR HOLDENSON:   It has been drafted on instructions and so unless some instructions come through in the next few minutes I would ask that paragraph 3.7, as circulated by the Deputy Registrar this morning, remain in its present form.  There are some further matters that need to be dealt with, if I might.  I noticed in the draft that was furnished this morning by the Deputy Registrar there is no paragraph - what we had as 10, being liberty to apply ‑ ‑ ‑ 

HIS HONOUR:   Yes, that was omitted because it is a final order, but that is not to say that if the need arises you cannot make application for variation of the final order.

MR HOLDENSON:   Yes, indeed, I understand that.  There are just two further matters.  The first matter is this, if I might, your Honour.  Your Honour will recall that in this matter - indeed, you have it before you - the applicant has relied upon an affidavit sworn by the Deputy Commissioner, Deputy Commissioner McCartney, on 11 August and, indeed, reference is made to that affidavit in paragraph 2.1 in the orders which were provided a short while ago by the Deputy Registrar.  There is, of course, also, and you have it in your hand, your Honour, the confidential version for the Court of that affidavit, and your Honour’s affidavit, I am instructed, does read on the front page, “Confidential version for Court”.

HIS HONOUR:   Yes.

MR HOLDENSON:   A copy of that affidavit has not been filed, nor has it been served on either the appellant or the respondent and so we ask, or have asked, at least within the affidavit sworn by Deputy Commissioner McCartney, that the affidavit be returned.  That was dealt with, for example, as I read, at paragraph 15 of that affidavit, and then some reasons for that were provided toward the end of the affidavit at paragraphs 112 to 114, a portion of 112 being redacted. 

If the Court is not inclined to return that affidavit but proposes that that affidavit be returned by the Court, then we would ask that there be an order in terms similar to that which we have, for want of a better word, drafted within footnote 1 of the outline of submissions which we filed and served on 21 August.  Footnote 1 reads, and I quote:

If the Court is inclined to retain a copy of the confidential affidavit, the Commissioner respectfully asks that it be sealed in an envelope marked ‘Not to be opened without leave of a judge’ and placed in a Class B safe when not in use.

It may be that we have drafted that footnote in a manner not in accordance with the security of the Court, in which case that would need to be amended in some way, but the first question is as to whether or not the Court is inclined to return the affidavit or to retain that affidavit, which, as I say, was marked “Confidential version for Court.”

HIS HONOUR:   Well, I am disinclined to return it, Mr Holdenson, but of course am inclined to keep it confidential in the way which I took paragraph 5 of the order to provide for.

MR HOLDENSON:   The question is whether or not information - well, that would probably be sufficient because “information” is defined to catch the entirety of paragraph 2 and the subparagraphs thereunder, including 2.1, albeit 2.1 is not loosely drafted, but it would also catch the version that has been made available, as I understand it, to both the appellant and the respondent.

HIS HONOUR:   That document will be kept by the Registrar in the manner provided for in order 5 securely, as are other such documents on applications of this kind.

MR HOLDENSON:   That is more than satisfactory, your Honour, so I do not need to take that matter further.  The other matter is this, and it relates to the hearing of the appeal in this matter, and I understand that is set down for Thursday of next week, Thursday, 3 September, and I understand the hearing will take, it is anticipated, less than a day. 

We made reference to the hearing of the appeal in paragraph 20.8 of the affidavit sworn by Deputy Commissioner McCartney. What we attempted to do in paragraph 20.8 was to alert the Court to the possibility that the applicant Commissioner might, depending upon what happens at the hearing of the appeal, have to make a further or a subsequent application for orders under either the provisions of the Judiciary Act or alternatively, section 47 of the Surveillance Devices Act and over the last few days in particular, in the event that an application of that nature does need to be made by the Commissioner, consideration has been given to just how that might best be done. 

Although, as is trite, one cannot undo what is said orally in open court, one can at least redact an extract from the transcript of what is said orally in open court.  So, with respect to next Thursday’s hearing of the appeal, I can inform your Honour that my instructing solicitors will be present, in a virtual sense, in Court, and therefore and thereby obviously monitoring what is said in Court, but we do seek that if required, that is, if sought, that the provision of the transcript of the hearing, and when I say provision I mean the making available of the transcript of the hearing in draft form to the applicant be facilitated and, again, if required, there be a short stay, a short delay might be a better expression, but a short stay on the publication of the transcript of the hearing to enable an application to be made by the applicant Commissioner for those orders if the need arises.

HIS HONOUR:   I understand the problem.  I rather think that the way in which to approach the matter would be to make an application to the presiding Judge on the hearing of the appeal, Mr Holdenson.

MR HOLDENSON:   I understand that, and so my instructors will therefore, I understand, communicate with the Registrar in order to determine how best that application might be made to the learned presiding Justice.

HIS HONOUR:   You have signalled your indication to make that application.  I do not think anything more need be done to bring it to the attention of those who will sit on the appeal.  That can be handled internally by the Court, so that they will be, as it were, alerted in advance to the possibility of you making an application of that kind on the hearing of the appeal.

MR HOLDENSON:   Yes, your Honour.

HIS HONOUR:   Anything further, Mr Holdenson?

MR HOLDENSON:   No, your Honour.

HIS HONOUR:   Mr Doyle?

MR DOYLE:   No, your Honour.

HIS HONOUR:   Mr Caldicott?

MR CALDICOTT:   No, your Honour.

HIS HONOUR:   That being the case, I shall make orders as follows:

1.Subject to order 3, pursuant to ss 77RE(1)(b)(i) and (iv), 77RE(2) and 77RG(4) of the Judiciary Act 1913 (Cth), and on the ground in s 77RF(1)(b) that the orders are necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security, any information referred to in order 2 be prohibited from disclosure (by publication or otherwise).

2.For the purposes of order 1, this information is:

2.1The confidential affidavit of Ian Robert Samuel McCartney sworn on 11 August 2020 in support of the application made by the Commissioner of the Australian Federal Police filed on 12 August 2020 in this proceeding;

2.2The following paragraphs of the full, unredacted reasons for judgment of the Full Court of the Supreme Court of South Australia in Abdirahman-Khalif v The Queen [2019] SASCFC 133, namely: [45](21), [45](22), [45](23), [46](30), [46](31), [46](37), [126], [127], [128], [135], [136], [142] and [215];

2.3The following page references in the appellant’s book of further material, volume 1, filed on 8 May 2020:

2.3.1page 354, lines 34‑38;

2.3.2page 355, lines 1‑2 and 14‑17;

2.3.3page 357, line 17;

2.3.4page 366, lines 22‑32;

2.3.5page 367, lines 5‑7;

2.3.6page 371, lines 12‑15 and 19‑21;

2.3.7page 380, lines 3‑5;

2.3.8page 383, lines 10‑15; 24‑25 and 33‑38;

2.3.9pages 384 to 388;

2.3.10page 389, lines 6‑9 and 16‑18;

2.3.11page 463, lines 8‑24 and 27‑37;

2.3.12page 464, lines 5‑10;

2.3.13page 471, paragraph 27, including subparagraphs;

2.3.14page 738, rows 317‑322;

2.3.15page 740, row 413;

2.3.16page 741, rows 427‑432; 434‑441; 443‑444; 450; 452‑458; 462‑465, 467‑470, 474‑476;

2.3.17page 742, rows 479; 483‑485; 489‑493; 500; 503‑504; 507‑509; 519‑522; and

2.3.18page 743, rows 536‑537; 539; 541‑547; and 553‑562.

2.4.The following page references in the respondent’s book of further material, volume 1, filed on 5 June 2020:

2.4.1page 109, lines 32‑34;

2.4.2.page 254, lines 5‑6; 15‑16; 32‑34;

2.4.3page 266, lines 3‑6; and

2.5The description of exhibit P‑34 as set out within the second column of the table within the exhibit list filed by the appellant on 3 April 2020, collectively,

hereinafter, called “the Information”.

3.Pursuant to s 77RG(4) of the Judiciary Act 1903 (Cth), order 1 does not prevent the Court, any Justice of the Court, or any of the following bodies, persons, parties or agencies from disclosing the Information as between themselves and so far as is necessary to conduct, regulate or otherwise participate in this proceeding, as the case may be:

3.1the Registrar of the Court, and such Court staff as the Court or a Justice of the Court considers appropriate for this order to apply;

3.2the Commonwealth Director of Public Prosecutions and legal representatives of the Director involved in this proceeding;

3.3.the respondent and her legal representatives;

3.4the Commissioner of the Australian Federal Police and officers of the Australian Federal Police, and any other person to whom the Commissioner of the Australian Federal Police considers it appropriate to have access to the information;

3.5AGS lawyers within the meaning of s 55I of the Judiciary Act 1903 (Cth);

3.6barristers engaged by AGS on behalf of the Commissioner of the Australian Federal Police for the purposes of this proceeding; and

3.7Commonwealth officers, as defined by s 3(1) of the Crimes Act 1914 (Cth).

4.Order 1 does not prevent the Court, any Justice of the Court, or any of the bodies, persons, parties or agencies listed in orders 3.1-3.7 from disclosing the Information as between themselves and so far as is necessary to conduct or otherwise participate in this proceeding, as the case may be.

5.Any Information held by the Registry in hard copy be placed in a sealed envelope by the Registrar and marked “Not to be Opened Without the Leave of a Justice of the Court”.

6.Any Information held by the Registry in electronic format be stored in the Court’s electronic document management system in such a way that it is accessible only with the leave of a Justice of the Court.

7..The respondent and any of her legal representatives, from time to time, who have had access to information referred to in orders 2.2 to 2.5 must, at the conclusion of this proceeding, return all such information, by hand delivery, to the Australian Government Solicitor, addressed to The Director, AGS Adelaide, Level 5, 101 Pirie Street, Adelaide SA 5000.

8.Subject to any further order, the period for which these orders will operate is that specified for the purposes of s 77RI of the Judiciary Act 1903 (Cth) being 10 years from the date of this order.

Thank you, gentlemen.

MR HOLDENSON:   Before your Honour leaves the bench, there are just two matters that I noticed as your Honour was reading them out.  It may be that I have misheard, but paragraph 5 - I noticed in paragraph 5 after the phrase “in hard copy” and before the phrase “be placed” your Honour said the word “shall”, which perhaps should be there in any event.  It is not on the written document I have.

HIS HONOUR:   I think it should not be there.  I did say it, but it is a superfluous term.

MR HOLDENSON:   The only other matter, and I am embarrassed to say it, is that there was a slip in the first paragraph where the Judiciary Act - and it was a slip, of course - it was said to be 1913 but it is 1903, as your Honour said about five other times.

HIS HONOUR:   Thank you, Mr Holdenson.

MR HOLDENSON:   Sorry about that.

HIS HONOUR:   I will publish later today my reasons for the making of these orders.

MR HOLDENSON:   If your Honour pleases.

MR DOYLE:   Thank you, your Honour.

MR CALDICOTT:   Thank you.

HIS HONOUR:   …..counsel, thank you.  I will adjourn now.

AT 9.48 AM THE MATTER WAS ADJOURNED