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

Copyright in the High Court of Australia

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, at paragraph [22] in his Honour’s judgment, he drew attention to the fact as it was that non‑publication orders had been made below, first in the Trial Division of the Supreme Court of New South Wales and, secondly, on appeal to the New South Wales Court of Criminal Appeal and his Honour proceeded on the basis that - as I understand paragraph [22] of his judgment; and I will read that to your Honour in a moment - should the orders not be made in the High Court that would have the effect of, for want of a better expression, undermining the effect of the orders that had been made in the Supreme Court of New South Wales. Perhaps I should read that to your Honour. Paragraph [22] reads, and I quote:

For this Court to publish, or permit the publication of, information which would tend to undermine the efficacy of those existing non‑publication orders would have had the potential to prejudice the proper course of the administration of justice in accordance with the procedure which had been adopted by the Supreme Court and which had not been challenged in this Court.  It was on that basis that I considered that the making of an appropriately tailored order by this Court was necessary to prevent the prejudice to the proper administration of justice.

Just pausing there, his Honour has there picked up the language in terms of 77RF(1)(a) and it goes on to read:

It nevertheless remained to ensure that the precise order to be made was reasonably certain in its operation and did not overreach in its scope and duration.

So, without taking your Honour to the authorities, unless your Honour wants me to, we have two bases for seeking – or relying upon the grounds set out within 77RF(1)(a), namely the proper administration of justice goes beyond this particular case to cases more generally and, secondly, it would have the effect of undermining the efficacy of the orders which have been made below.

HIS HONOUR:   Thank you.  Secondly, why do we need reliance upon the Listening Devices Act?

MR HOLDENSON:    The Surveillance Devices Act – well ‑ ‑ ‑

HIS HONOUR:   Surveillance Devices Act, yes.

MR HOLDENSON:   It used to be the Listening Devices Act in Victoria as your Honour would recall. We deal with this in paragraphs 29 and 30 of our outline of submissions – that is the outline which is both dated and was filed on 21 August.

HIS HONOUR:   Yes.

MR HOLDENSON:   Could I just, first of all, identify the evidentiary material. It is identified in paragraph 30 of that outline, the evidentiary material upon which it is based. We say in paragraph 29 – if I could translate that into more ordinary language – it is a “belts and braces” approach. We do not want to be caught out. I say that in circumstances where it may be – and I am not making any concession in this regard – but if your Honour were to have regard to paragraphs 3.5 and 3.6 on our application, it may be that they have some work to do as in someone might debate with us the scope of 3.5 and 3.6.

HIS HONOUR:   It is convenient that you mention that because my next question is directed to the breadth of those orders.  As 3.1 and 3.2 stand, and 3.5 and 3.6 are predicated on 3.1 and 3.2, they appear to me to be extremely broad and considerably uncertain.  I have looked at the confidential material, all of it.  I do not know which images are there being referred to.  Even less, I think, would a registrar, should the need arise to do something about it.

MR HOLDENSON:   Well, now is not the time to have an argument about vagueness or uncertainty or ambiguity. If your Honour determines that there is some uncertainty or ambiguity in the scope of 3.5 and 3.6, then just looking back at 3.1 and 3.2, that would tend to suggest that there is a real need to have an order under paragraph 2, that is the order under 47(5) of the Surveillance Devices Act, because the Surveillance Devices Act order, as set out in paragraph 2 of the application, goes to methods of installation, which is obviously about – includes location and that is what paragraphs 3.5 and 3.6 deal with, location. So if there were some uncertainty, to use your Honour’s expression, in 3.5 or 3.6, then that supports or reinforces the need for the orders sought in paragraph 2.

HIS HONOUR:   …..if an order were to be made in terms of paragraph 2, would it then be possible to delete paragraphs 3.1, 3.2, 3.5 and 3.6?

MR HOLDENSON:   No – well, maybe 3.5 and 3.6, but certainly not 3.1 and 3.2.

HIS HONOUR:   Well, if you want 3.1 and 3.2 you are going to have to be more precise as to which images you are referring to, because I do not know what they are.

MR HOLDENSON:   That is a matter upon which I would need instructions because it goes on to speak about “whether relied on by the Appellant or otherwise at trial”.  But there is a description as to the – more precise description in the concluding words of 3.1 which were “obtained pursuant to the surveillance device warrant issued” and there is a date in 3.1 and there is another date – or really two dates in 3.2, one being the date of issue and one being the date of extension.

HIS HONOUR:   Presumably, and this is a broader question, all of this material that it is proposed to make the subject of this order, must be put before the Full Court on the appeal.  Is that so?

MR HOLDENSON:   I do not know whether or not all of it is going to be placed before the Court.  Your Honour will see that in paragraphs 3.9 and 3.10 we refer to some of the material that concerns us, and it is within the appellant’s book of further material volume 1, and 3.10 makes reference to the respondent’s book of further material, volume 1.  We have been very selective from within those two volumes, very precise indeed as to that which we seek to catch by this order.  There is a lot there that is not referred to.  Clearly, the material there referred to is separate from the material to which your Honour has drawn my attention at 3.1 and 3.2.

HIS HONOUR:   I assume so.  I understand why you seek the orders in 3.9 and 3.10 and they are well drafted to the point that one can readily see what it is that is being subjected to the order.  But at the moment I cannot see with any certainty at all and I would not know how to go about ascertaining which are the documents referred to in 3.1 and 3.2 and thus, 3.5 and 3.6.

MR HOLDENSON:   All right.  Well, now, can I just pause for a moment and deal with an item of housekeeping, if I might.  It is in the context of 3.9 and 3.10.  In recent days we have become aware of a document which was filed by the appellant back on 3 April in this Court in this proceeding.  On 3 April there was filed the exhibit list from the trial.  It is a document which is five or six pages long – six pages in length – and that has been filed – I am told it was filed together with, as I understand it, the notice of appeal and, as I say, filed by the appellant Director.

Within that exhibit list there is not only the list of exhibits, but their description as given at trial.  One of those items, exhibit P-34, very much falls within the material.  When I say “exhibit P-34” I mean the description given to P-34.  So what I would seek to do, just while we are at 3.10 and 3.11, is to seek leave if leave be necessary to add a paragraph 3.11 which would read:  “The description of exhibit P-34 as set out within the second column of the table within the exhibit list” – and it is called the exhibit list, but perhaps one should go on and say “before Justice Peek, which was filed by the appellant in this Court on 3 April 2020” – so that is the first thing.

The second matter is – and I am just checking my notes – it might be appropriate to facilitate resolution of the issue which your Honour has drawn to my attention if we just have the matter stood down for a couple of minutes so that I could get some instructions concerning paragraphs 3.1 and 3.2.

HIS HONOUR:   Yes, certainly.  Before we go with that, can I come back to the question of how much of this material needs to go before the Full Court, because obviously if it does not need to be brought before the Full Court I do not want to have to make orders in respect of it suppressing its publication.  That is covered already by what the Supreme Court has done.

MR HOLDENSON:   Yes.

HIS HONOUR:   Nor does the Court nor Registrar really want to be troubled – I do not mean that flippantly – by the responsibility of keeping this material as confidential as it must be kept.

MR HOLDENSON:   Yes, your Honour, I understand.  So perhaps if I might seek instructions.  Ordinarily, I might not need to ask that it be stood down but in this virtual world in which we now practice ‑ ‑ ‑

HIS HONOUR:   Yes.  Will five minutes be enough, or do you need some more time?

MR HOLDENSON:   Hopefully, five minutes is enough, but I will keep Ms Musolino informed.

HIS HONOUR:   Mr Doyle or Mr Caldicott, are you embarrassed by any delay of that kind?  Do you have something else to go to, or can you come back in five- or 10-minutes’ time?

MR DOYLE:   I can come back, your Honour.

HIS HONOUR:   Thank you, Mr Doyle.  Mr Caldicott?

MR CALDICOTT:   Thank you.

HIS HONOUR:   I will stand down.

AT 9.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.07 AM:

HIS HONOUR:   Mr Holdenson, how are we going?

MR HOLDENSON:   I am indebted for that time, your Honour, and as I apologised to the Deputy Registrar, it is very difficult to obtain instructions in this virtual world in which we are now required to practice.  Can I indicate this, that with respect to the application – and if I might take your Honour to the actual application document itself, I am instructed that we need not press, and therefore do not press, paragraphs 3.1 and 3.2.  Having said that, however, your Honour will recall that your Honour asked some questions of me concerning paragraphs 3.5 and 3.6.

HIS HONOUR:   Yes.

MR HOLDENSON:   We do press 3.5 and 3.6, albeit in saying that, there is clearly some redrafting to be done because 3.5 and 3.6 make reference to, in terms, 3.1 and 3.2 which have just been deleted.  So I would read into, or draft into, if that is the right expression, 3.5 where reference is made to “3.1”, the words from 3.1, save and except the phrase “whether relied on by the Appellant or otherwise at the trial”.  I would do the same with 3.2, deleting those words and then cutting and pasting in, or inserting into the end of 3.5 and 3.6.

Now, your Honour may well say to me what work do they have to do.  Well, if your Honour were to say that to me I would say, first of all, the wording of 3.5 and 3.6 would, in those circumstances, be sufficiently clear and, secondly, the work it would do is anything in the material which would have the effect of – I will use a new word – giving the location or describing the method and means as set out in 3.6 with respect to the devices.  It may well be that there is about to be further material sought to be relied upon by one of the parties to the proceeding which would have within it some items which would be very much caught by 3.5 and 3.6 as just drafted then.

So, in other words, if I could assist your Honour further, 3.5 would read:  “the whereabouts, and information which would tend to reveal the whereabouts, of the surveillance devices used to obtain the images which were obtained pursuant to the surveillance device warrant issued under section 16 of the Act on 18 July 2016 and any images which were obtained to the surveillance device warrant issued under section 16 of the Act on 22 December 2016 and which was extended on 20 March 2017” and the same would apply in 3.6.  Your Honour will…..the passages in the affidavit material which went to the foundation of 3.5 and 3.6.

HIS HONOUR:   I do understand the problem, but the difficulty is that even as redrafted it requires a cerebral effort of no mean proportions to work out which information it might be.  At times you would be guessing.  If you want to come back after you have had time to reflect and identify some images specifically and ask for an order that there be a prohibition on the whereabouts of the devices used to obtain those images, I would be prepared to entertain the application.

MR HOLDENSON:   Yes, your Honour.

HIS HONOUR:   At the breadth of this at the moment, I am not.

MR HOLDENSON:   All right, I understand, your Honour. I cannot put it any higher. But I do also seek what is set out in paragraph 2 by reference to section 47(5) of the Surveillance Devices Act which picks up the language of 47(5), the language used by the legislature.

HIS HONOUR:   Yes, it would be acceptable on the basis that the order 3, to which it refers, would be sans 3.1, 3.2, 3.5 and 3.6.

MR HOLDENSON:   Yes, your Honour.

HIS HONOUR:   Just to revert to the more general question, did you get anywhere further in ascertaining whether all of the documents to be made the subject of this order need to be put before the Full Court?

MR HOLDENSON:   No, that will require some discussion with the parties, and I am not able to advance that at this stage.  Part of the reason why I am not able to advance that at this stage is that I am told that this morning one of the parties communicated to the effect that they seek to rely on some further material, sourced of course to the trial, in response to what I understand to be some further material sought to be relied upon by the appellant which was, as I recall, the content of exhibit P‑44 of the trial.  I have referred earlier to P-34, I am now referring to P‑44.  As I understand it, the appellant on the appeal seeks to produce and rely on exhibit P‑44, which I think is 110 pages long and the respondent, I think, wants to respond to that. 

So it may be that a further application will be required to be brought in the event that there is something – there is nothing in exhibit P‑44 – do not let me mislead your Honour on that – there is nothing in exhibit P‑44 of any consequence for present purposes but there may be in what is sought to be relied on in response and any further material either of the parties seeks to place before the Court.

HIS HONOUR:   All right.  Well, unattractive as the prospect is, it is better that we deal with it piecemeal in a specific fashion than try to legislate it in advance on a general basis.

MR HOLDENSON:   Yes, your Honour.  There are some other matters within the application to which I draw your Honour’s attention.  I have sought leave, if leave be required, to add a 3.11 after 3.10.  That would necessitate an amendment to paragraph 8 because your Honour will see in paragraph 8 we refer to “3.8-3.10”.  That will have to be 3.8 to 3.11, but also, as a consequence of your Honour determining what you have determined about 3.5 and 3.6 and my indication not to press 3.1 and 3.2, there will need to be a consequential amendment in paragraph 8 where we refer to all those orders within 3.

Now, there is a matter to which I am duty bound to draw your Honour’s attention.  Your Honour will recall in the case of AB v CD your Honour was required to consider and, indeed, did consider and determine the question of the duration of the orders.  That is again a matter which arises because the statute requires that your Honour deal with it.  It is dealt with in the Judiciary Act in section 77RI and we have dealt with that in the affidavit – toward the end of the affidavit – and it was determined that it would be a 10‑year period.  So what we have done in paragraph 9 of the application is set out “Subject to any further order” and then the period of “10 years”. 

But the point I would wish to draw to your Honour’s attention is this.  There is no provision in the Surveillance Devices Act with respect to duration to be contrasted obviously with section 77RI of the Judiciary Act.  So it may be that paragraph 9 as at present drafted, with a little bit of tweaking, would make it clear that the duration is for the orders insofar as the source of the power for the making of the orders is the Judiciary Act and section 47(5) of the Surveillance Devices Act.

The way to do that would be to, at the end of the first line of paragraph 9 reverse the order of the words “that is” so that it reads:  “these orders will operate is that specified” and then when it says, in the second line, “is 10 years”, perhaps rather than “is” the word “being”.  In other words, we make it clear that the duration is referable to all orders and not just the order insofar as it is made under the Judiciary Act.

HIS HONOUR:   Very well.  Mr Holdenson, what I am inclined to do is this so that you can make some more inquiries and ascertain just how much of all of this material must go to the Full Court, to make at this stage no more than an interim order, limited in the way that we have just described.  So that before the end of this week we can get completely clear which material is going before the Court and then limit the order accordingly.

MR HOLDENSON:   Yes, your Honour.

HIS HONOUR:   Everyone else can then keep back all the other material and the Court does not see it.  I have to ask Mr Doyle and Mr Caldicott yet about their reactions to that, but I also had in mind, before I make the interim order, I am going to send you away to redraft the several provisions of this application to come up with what we have ascertained to this point and that will be the terms of the interim order.

MR HOLDENSON:   Yes, your Honour.

HIS HONOUR:   Mr Doyle, do you have anything to say?

MR DOYLE:   I could probably be of some assistance now, your Honour.  We do not intend to refer to any of the images. 

HIS HONOUR:   No.

MR DOYLE:   In what was at trial prosecution exhibit 34.

HIS HONOUR:   It occurred to me that was probably likely because the question is really a legal one rather than a factual one, is it not?

MR DOYLE:   Predominantly, your Honour, yes.  I have reviewed the parties’ submissions and I do not think either party refers to that exhibit.  There are some other exhibits referred to, your Honour, containing extremist material and the like.  That is not one of them.

HIS HONOUR:   Thank you.  Mr Caldicott, do you have anything to say?

MR CALDICOTT:   Other than just to agree with my friend that it is most likely – other than checking with senior counsel I cannot see or envision that there would be reference to the photos, particularly from the respondent’s point of view.

HIS HONOUR:   That is a good start, gentlemen.  Could I ask you to work together, please, to cut this material down to the absolute minimum?

MR DOYLE:   Yes, your Honour.

MR CALDICOTT:   Yes, your Honour.

HIS HONOUR:   Mr Holdenson, how long will you need to redraft the interim order?

MR HOLDENSON:   Not long at all, but that is not much of an answer.  It is on a word processor, on a computer not here, so I am seeking some guidance from – 30 to 60 minutes if that is not inconvenient, but if your Honour says less we will do it in less.

HIS HONOUR:   Can you pass it by Mr Caldicott and Mr Doyle, please, and then you can send it up to the Registrar?  If it is all in order I can then make the order later today on an interim basis.

MR HOLDENSON:   Yes, your Honour.

HIS HONOUR:   Would it be convenient to come back on Friday to sort out the final form of the order?

MR HOLDENSON:   It is convenient to me, but that question should first be directed at both Mr Doyle and Mr Caldicott because they are the ones now busily preparing the appeal.

HIS HONOUR:   Mr Doyle?

MR DOYLE:   Yes, your Honour, that is convenient.

HIS HONOUR:   Mr Caldicott?

MR CALDICOTT:   Likewise, your Honour.  Thank you.

HIS HONOUR:   Thank you.  Gentlemen, what I hope is that by Friday – I understand you are busy preparing the appeal, but by Friday we have, by agreement as it were, between you three, the minimalist list which will constitute the contents of the final form of order to be made on Friday.

MR CALDICOTT:   Thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  Mr Holdenson, I shall await, at your convenience, the new interim order and I can make the orders later today.  Otherwise I will adjourn the further hearing of this application until 9.30 next Friday morning.

MR HOLDENSON:   Yes, your Honour.  We will be getting something to your Honour – to Ms Musolino, the Deputy Registrar, soon.  I am indebted to your Honour.

HIS HONOUR:   Thank you very much.  I will adjourn.

AT 10.22 AM THE MATTER WAS ADJOURNED