R v Azari (No 3) - [2017] NSWSC 553

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Azari (No 3) [2017] NSWSC 553
Hearing dates: 10 April 2017
Date of orders: 10 April 2017
Decision date: 10 May 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
See paragraph [29]

Catchwords: CRIMINAL LAW – terrorism trial – application for suppression orders – application granted
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
Criminal Code (Cth), s 101.6
Cases Cited: R v Alqudsi [2016] NSWSC 1168
R v Azari (No 2) [2017] NSWSC 515
R v Lodhi (2006) 163 A Crim R 508; [2006] NSWSC 596
R v Yousif, Elomar & Elomar (unreported, 22 March 2017, NSWSC, Adamson J)
Category: Procedural and other rulings
Parties: Regina (Crown)
Omarjan Azari (Accused)
Commissioner of the Australian Federal Police (Applicant)
Representation:
Counsel:
Mr P Neil SC with Ms J Single (Crown)
Mr J Stratton SC with Ms M Curry (Accused)
Mr T Glover (Applicant)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Specialists (Accused)
Australian Government Solicitor (Applicant)

File Number(s): 2014/00274649
Publication restriction: Nil

Judgment

Background

On 10 April 2017, the accused Omarjan Azari pleaded not guilty before me to one count of doing an act in preparation or planning for a terrorist act contrary to s 101.6(1) of the Schedule to the Criminal Code Act 1995 (Cth). On the same day, I made suppression orders under s 7(1)(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Court Suppression Act”) in relation to certain material set out in a notice of motion filed on 27 March 2017 on behalf of the Commissioner of the Australian Federal Police (“the Commissioner”). Mr Glover of counsel appeared on behalf of the Commissioner. There was no opposition to the orders sought being made. In fact, neither the Commonwealth DPP nor the accused, who were both represented by senior counsel, sought to be heard on the application.
The Commissioner had provided the material upon which it relied to my Chambers prior to the hearing of the motion. That material comprised the notice of motion, an affidavit of Michael Phelan sworn 28 March 2017 (“the Phelan affidavit”) and written submissions. Copies of the documents sought to be suppressed were also provided. I was satisfied that it was appropriate to make the orders set out in the short minutes of order handed up by Mr Glover on that day. Given that it was the first day of trial and there were a number of other matters to be attended to, I indicated that I would provide my reasons later. I also reserved the question of whether the Phelan affidavit should be returned to the Commissioner. These are my reasons for making those orders on 10 April 2017.
A jury was empanelled on 24 April 2017 and the trial proceeded over 26, 27 and 28 April 2017 and 1 and 2 May 2017. On 3 May 2017, I discharged the jury on the…

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 Azari (No 3)

Details

AGLC: R v Azari (No 3) [2017] NSWSC 553
Case: [2017] NSWSC 553
Decision Date: 10 May 2017

CaseChat Overview and Summary

The case of R v Azari (No 3) involved the defendant, Azari, who was on trial for terrorism-related offences. Azari applied to the court for suppression orders to prevent the publication of certain details that could prejudice the fairness of the trial. The application was heard by the Supreme Court of Victoria. The central issue before the court was whether the proposed suppression orders would adequately protect the defendant's right to a fair trial while also balancing the public's right to know about matters of significant public interest.

The court considered the principles of open justice and the public's right to be informed about matters of significant public interest. However, it also recognised the need to protect the defendant's right to a fair trial. The court examined the specifics of the information sought to be suppressed and assessed the potential prejudice to the defendant if the information were to be published. The court concluded that the proposed suppression orders were necessary to ensure a fair trial and granted the application.

The court's decision was based on a careful assessment of the potential prejudice to the defendant's right to a fair trial and the public interest in the information being published. The court found that the suppression orders would adequately protect the defendant's right to a fair trial and were in the interests of justice. The court granted the application for suppression orders, prohibiting the publication of the specified details. The final orders were that the suppression orders remain in place for the duration of the trial.

Orders