R v Abdirahman-Khalif - [2020] HCATrans 118

[2020] HCATrans 118

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 TUESDAY, 25 AUGUST 2020, AT 9.28 AM

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR P.H. D’ASSUMPCAO, on behalf of the applicant Commissioner of the Australian Federal Police. (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: If it pleases, your Honour, I appear for the respondent, Ms Abdirahman‑Khalif. (instructed by Caldicott Lawyers)

HIS HONOUR: Mr Holdenson, thank you for the papers and submissions, which I have had the opportunity of reading. Is there more that you need to tell me about the application?

MR HOLDENSON: Probably not, save as to draw to your Honour’s attention, if your Honour seeks any assistance as to the manner in which we have drafted the application and also to seek leave, if leave be required, to add an item into paragraph 3 – it would be paragraph 3.11 in the application – and also to tie up some matters at the end concerning the affidavit material. That is on the assumption that you do not need any assistance from me as to the complementary affidavit material and how it fits within and how we would rely on it in support of the orders we seek under both section 77RE of the Judiciary Act and section 47(5) of the Surveillance Devices Act (Cth).

HIS HONOUR: There were a few questions I wanted to ask you, if I may?

MR HOLDENSON: Yes, your Honour.

HIS HONOUR: First, having read the confidential affidavit, it appears to me that the ground which is engaged is section 77RF(1)(b), prejudice to the Commonwealth in relation to national security, rather than prejudice to the interests of justice. Is the ‑ ‑ ‑

MR HOLDENSON: Well, the reason why – I am sorry, your Honour.

HIS HONOUR: Go ahead, please.

MR HOLDENSON: The reason why we rely upon 77RF(1)(a) as well is because of the authorities concerning the phrase “the proper administration of justice” which extends beyond this particular case to cases more generally. In other words, there are other cases, or will be other cases, at present the subject of investigation, and those cases will be, to put it mildly, frustrated in their prosecution should the material which we seek to have made the subject of the orders not be made.

There is also another reason for relying upon 77RF(1)(a) and that was a matter to which his Honour Justice Gageler drew attention in the case – and we have cited it in the materials – Obeid v The Queen (No 2) (2016) 329 ALR 379 where,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abdirahman-Khalif

Details

AGLC: R v Abdirahman-Khalif [2020] HCATrans 118
Case: [2020] HCATrans 118
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application by the Commissioner of the Australian Federal Police for suppression orders concerning certain material. The application was opposed by the respondent, Ms Abdirahman-Khalif, and the appellant, represented by the Commonwealth Director of Public Prosecutions. The core of the dispute involved the scope and necessity of the proposed suppression orders, particularly in relation to specific images and the location of surveillance devices.

The legal issues before the Court included whether the grounds for seeking suppression orders under section 77RF(1) of the Judiciary Act 1903 (Cth) were sufficiently established, specifically concerning prejudice to the Commonwealth in relation to national security and the proper administration of justice. The Court also had to determine the necessity and appropriate scope of orders sought under section 47(5) of the Surveillance Devices Act 2004 (Cth), and whether the proposed orders were sufficiently precise and not overly broad. A further consideration was the duration of any such orders.

The Court's reasoning focused on the precision required for suppression orders. The Commissioner initially relied on grounds relating to national security and the broader administration of justice, citing precedent that suggested undermining existing non-publication orders could prejudice justice. However, the Court expressed significant reservations about the breadth and uncertainty of several proposed orders, particularly those referring to unspecified images and device locations. The Commissioner subsequently withdrew the application for orders relating to specific images (paragraphs 3.1 and 3.2) but sought to maintain orders concerning the whereabouts of surveillance devices (paragraphs 3.5 and 3.6), albeit with proposed redrafting. The Court indicated a willingness to make interim orders to allow for further clarification and reduction of the material to be suppressed, emphasizing the need for specificity and a "belt and braces" approach to evidentiary support.

Ultimately, the Court indicated it would make an interim order, limited to the clarified and agreed-upon aspects of the application, pending further inquiries into the necessity of all proposed material being placed before the Full Court. The parties were directed to work together to reduce the material to the absolute minimum required for the appeal.

Orders