R v Alqudsi

[2016] NSWSC 1168

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Alqudsi [2016] NSWSC 1168
Hearing dates:	4 July 2016
Decision date:	04 July 2016
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	See paragraph 6
Catchwords:	PRACTICE AND PROCEDURE - suppression and non-publication orders
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 10 Surveillance Devices Act 2004 (Cth)
Category:	Procedural rulings
Parties:	Regina Hamdi Alqudsi
Representation:	Counsel: D Staehli SC/R Glover (Crown) S Corish (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Zali Burrows Lawyers (Accused)
File Number(s):	2013/363649

Judgment

1. By notice of motion filed on 1 July 2013, the Commissioner of the Australian Federal Police seeks orders pursuant to the Court Suppression Non-publication Orders Act 2010 (NSW) and the Surveillance Devices Act 2004 (Cth). The application is supported by an affidavit of Michael Phelan, the Deputy Commissioner of the Australian Federal Police, who is presently also Deputy Commissioner National Security, sworn on 3 July 2016. I was provided with an unredacted copy of Mr Phelan’s affidavit, with passages highlighted in yellow on which the Commissioner relies in support of the application. I have since returned that unredacted copy to the representative of the Commissioner for safekeeping. The Court file will retain the redacted copy which has been provided to the parties.

2. I am satisfied, on the basis of that affidavit, that it is necessary to make these orders by reason of s 8(1)(a) (necessary to prevent prejudice to the proper administration of justice); and s 8(1)(b) (necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security) of the Court Suppression and Non-publication Orders Act.

3. With the exception of the orders in prayers 3, 4 and 5 of the notice of motion, no time limitation is expressed. The orders in prayers 3, 4 and 5 are sought “until further order” with a view to their being made as interim orders pursuant to s 10 of the Court Suppression and Non-publication Orders Act.

4. In deciding the period for which an order is to operate I am obliged to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. I am satisfied, on the basis of the material in Mr Phelan’s affidavit that it is not presently feasible to predict how long the orders need to be in place, although one can envisage a time in the future when the matters referred to might become part of common knowledge in which case these orders will no longer be required. However, on the basis of current information, I do not propose to specify a period for which the orders are to operate with the exception of orders 3, 4 and 5.

5. Accordingly, I propose, pursuant to the Court Suppression and Non-publication Orders Act, to make the orders set out in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the notice of motion with the following amendments:

1. Paragraph 2.1 is amended to read:

“The fact of the existence of the technical means to obtain those protected images";

2. To paragraph 6 I shall add the words:

“or any photograph contained within the protected image".

6. I will read the orders on to the record because I note that there are persons in the courtroom who will be bound by the orders and who, accordingly, need to be made aware of the terms of the orders.

Orders

Pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) and the Surveillance Devices Act 2004 (Cth):

1   There be no publication of the images:

1.1.   Annexed to the statement of Nadine Hallak dated 4 September 2015;

1.2.    Annexed to the statement of Rita Nehme dated 4 September 2015;

1.3.   Annexed to the statement of Anton Sabella dated 4 September 2015;

1.4.   Obtained pursuant to warrant SD-3673 issued under the Surveillance Devices Act 2004 (Cth).

Those images are together referred to as “the protected images”.

2.   There be no publication of the following information about the technical means by which the protected images were obtained.

2.1.   The fact of the existence of the technical means to obtain those protected images;

2.2.   The nature of the technical means;

2.3   The functions that can be performed using the technical means.

3.   Until further order, there be no publication of the transcript of the hearing of this proceeding on 20 June 2016.

4.   Until further order, there be no publication of the exhibits tendered on the voir dire held in this proceeding on 20 June 2016.

5. Until further order there be no publication of the judgment of Adamson J delivered in the proceedings on 20 June 2016. I note that orders 3, 4, and 5 were made pursuant to s 10.

6.   These orders do not prevent the disclosure or publication of the contents of communications which the protected images are said to represent or any photograph contained within the protected image.

7.   These orders do not prevent disclosures of any information to and between the following people for the purpose of this proceeding:

7.1.   The Court and court staff;

7.2.   The jury empaneled in this proceeding;

7.3.   The Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in these proceedings;

7.4.   The defendant and legal representatives of the defendant instructed in this proceeding;

7.5.   The Commissioner of the Australian Federal Police, Australian Federal Police officers, and legal representatives of the Commissioner instructed in this pleading.

8.   These orders are to apply throughout the Commonwealth of Australia.

9. These orders are made on the grounds referred to in s 8(1)(a) and (b) of the Court Suppression and Non-Publication Orders Act 2010.

10.   I direct the Commissioner to forward to my chambers and to the legal representatives for the Crown and the accused a redacted version of the documents referred to in paragraphs 3, 4 and 5 of the orders I have just made with a view to the order being reviewed to ensure that the non-publication is as limited as is necessary to protect the interests concerned.

11.   I note that all images sought to be tendered by the Crown fall within paragraph 1. And, accordingly, are protected images.

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Amendments

17 May 2023 - Publication restriction removed – judgment republished

Decision last updated: 17 May 2023