R v Azari (No 6)

[2018] NSWSC 910

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Azari (No 6) [2018] NSWSC 910
Hearing dates:	1 June 2018
Date of orders:	01 June 2018
Decision date:	01 June 2018
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	See paragraph [18]
Catchwords:	CRIMINAL LAW – Terrorism trial – Application for suppression orders and pseudonym orders – Orders necessary to prevent prejudice to the proper administration of justice and to the interests of the Commonwealth in relation to national or international security and to protect the safety of a witness – Application granted
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 12 Criminal Code (Cth), s 101.6
Cases Cited:	Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 Cain v Glass (No 2) (1985) 3 NSWLR 230 Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366 DPP v Smith (1996) 86 A Crim R 308 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Category:	Procedural and other rulings
Parties:	Regina (Crown) Omarjan Azari (Accused) Commissioner of Australian Federal Police (Applicant)
Representation:	Counsel: A Powell (Crown) P Ryan (Solicitor for the Accused) P Melican (Applicant)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Specialists (Accused) Australian Government Solicitor (Applicant)
File Number(s):	2014/274649

Judgment (REVISED FROM EX TEMPORE)

1. The accused, Omarjan Azari, has pleaded not guilty 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 Act1995 (Cth) (“the Criminal Code (Cth)”). He is due to stand trial on that charge on 2 October 2018. I have already made a number of suppression orders in this matter under s 7(b) of the Court Suppression and Non-Publication Orders Act2010 (NSW) (“the Act”) since this matter first came before me in April 2017.

2. On 25 May 2018, a solicitor from the Australian Government Solicitor, who appears for the Commissioner of the Australian Federal Police (“the Commissioner”), wrote to my associate to advise that the Commissioner seeks further orders under the Act in this matter. I listed the matter for hearing today. Due to the sensitive nature of the information described in the application, it was agreed that the notice of motion, supporting affidavit and submissions be provided to my chambers and not filed in the Registry.

3. The material relied upon by the Commissioner was delivered to my chambers prior to the hearing of this motion. It comprises the notice of motion, a confidential affidavit of Leanne Close sworn 11 May 2018 and confidential written submissions. Although that affidavit and the submissions are described as confidential, copies have been made available to both Mr Powell, who appears for the Commonwealth DPP today, and Mr Ryan, who appears for Mr Azari.

4. Mr Powell has indicated that the orders are not opposed by the Commonwealth DPP and Mr Ryan indicated he is not in a position to oppose the orders at this stage, but it may be that, after further consultation with Senior Counsel briefed in this matter, an approach will be made to the Court to seek a variation of some of those orders.

5. I should note that Ms Close, who is the deponent of the affidavit relied upon by the Commissioner, is a Deputy Commissioner of the Australian Federal Police (“AFP”) and is the Deputy Commissioner of National Security. She is the most senior AFP officer with direct responsibility for all AFP counter-terrorism operations and investigations for the AFP national security matters. In particular, she has experience in the protection of confidential sources.

6. For obvious reasons, I do not propose to refer to the contents of the confidential affidavit in these reasons. Suffice it to say that it pertains to the need to protect the identity of a witness in this trial and that there is detailed information in that affidavit that persuades me of the necessity to make these orders.

7. Section 7 of the Act provides that a court may, by making a suppression order or non-publication order on grounds permitted by the Act, prohibit or restrict the publication or other disclosure of information that comprises evidence or information about evidence given in proceedings before the Court.

8. The grounds upon which a suppression order or non-publication order may be made are set out in section 8(1) of the Act. In this particular matter, the Commissioner relies upon subsections (a), (b) and (c) which are in the following terms:

“(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

…”

9. A suppression order is defined in s 3 of the Act as an order that prohibits or restricts the disclosure of information by publication or otherwise. In deciding whether to make a suppression order, a Court must take into account the primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 of the Act.

10. As is clear from the Act, each of the grounds set out in s 8 of the Act import a test of necessity. I have had regard to what the Court observed in relation to that test in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, and in particular, to the comments of Bathurst CJ at [8] and Basten JA at [46].

11. In addition to the powers available under the Act, it is well-established that the Court has inherent jurisdiction to make appropriate orders whenever it is necessary to do so to secure the proper administration of justice: see Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366.

12. It is well accepted that the position of certain police witnesses is such that care needs to be taken to protect their identity: see DPP v Smith (1996) 86 A Crim R 308; Cain v Glass (No 2) (1985) 3 NSWLR 230 and Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156. Having regard to the principles in those cases, the terms of the Act and the material contained in the confidential affidavit before me, I am satisfied that it is appropriate to make the orders sought.

13. During the hearing of this application today, a question arose as to the extent to which it is appropriate to have a redacted version of the orders published such that any person who had access to those orders through the Supreme Court Media Officer would not in fact know the identity of the witness whose identity is being suppressed. After further discussion with Mr Melican of counsel, who appears for the Commissioner on this application, it was accepted that a number of variations should be made to the proposed orders that are attached to the notice of motion in this matter.

14. In order to avoid a situation where the parties have to return to Court for those finalised orders to be made, I consider it appropriate at this stage that I make the orders 1 to 12 in that notice of motion and note the other matters contained therein. I propose to vary those orders in chambers once I have received the finalised proposed orders from the Commissioner.

15. I have been asked by the Commissioner to return the affidavit and submissions rather than have them kept on the Court file. It is the usual practice of this Court that a copy of any material upon which the Court has been asked to make a ruling be retained on the Court file. Retaining evidence and other material on the Court file assists in maintaining the integrity of the file and ensures that if there is later any controversy about any orders made, there is no disagreement as to what evidence was before the Court. Despite this, I am satisfied that there is a distinction between the ordinary run of cases and those which concern national security information.

16. In those circumstances, given the sensitive nature of the material contained in Ms Close's affidavit, I am prepared to return the affidavit and the submissions to the Commissioner on the basis that the Commissioner undertakes that those documents will be kept safely and be made available to the Court should the issue arise at some future time.

17. Under s 12 of the Act, it is necessary to specify the length of time over which suppression orders made under the Act are kept in place. In the present matter, the trial is not until October 2018 and on material provided to me, it is not currently known when the material will no longer be considered sensitive such that it would be appropriate that the orders be lifted. In those circumstances, I consider it appropriate that the orders be made until such further order by me.

Orders

18. In accordance with the above, I make the following orders:

Suppression orders

Subject to orders 2 to 5, there be no disclosure, by publication or otherwise, of any information (including in documentary form) connected to these proceedings:

1.1. that reveals, or tends to reveal, the identity of [redacted] in connection with these proceedings, including:

1.1.1. the name or address of [redacted]; and

1.1.2. any image or description of the appearance of [redacted]; or

1.2. regarding the fact or nature of any assistance [redacted] has provided, or may in future provide, to authorities,

(together, the Sensitive Information).

Note: The Court notes that these orders are made in addition to suppression orders already made in these proceedings in relation to other witnesses.

Exceptions to suppression orders

Order 1 does not prevent disclosure of these orders:

2.1. to persons who have received the Sensitive Information;

2.2. to persons who are entitled, in accordance with these orders, to receive the Sensitive Information; or

2.3. in the circumstances described in order 6 below.

Note: The Court notes that order 2 reflects the extent to which order 1 may be disclosed in its terms. The Court further notes that the Commissioner of the Australian Federal Police will cause a version of these orders to be prepared from which the name of the individual referred to in order 1 is redacted and that the redacted order may be published.

Note: The Court notes that should it be necessary for disclosure of these orders to be made to a journalist or media organisation, leave is granted to approach the Court to vary these orders.

Order 1 does not prevent disclosures to and between the following people:

3.1. the presiding Judge;

3.2. necessary Court staff and the Court’s media officers (including transcription service providers);

3.3. the Crown and legal representatives of the Crown instructed in these proceedings;

3.4. the Defendant and legal representatives of the Defendant instructed in these proceedings;

3.5. officers and employees of agencies that are members of the New South Wales Joint Counter Terrorism Team, and legal representatives of those agencies;

3.6. necessary staff of Corrective Services NSW; and

3.7. judicial officers and necessary staff of any court hearing an appeal or review of any decision, verdict or sentence delivered in the course of these proceedings.

Order 1 does not prevent:

4.1. the Crown from disclosing the Sensitive Information for the purposes of other criminal proceedings brought by the Crown (Other Proceedings); and

4.2. the parties to the Other Proceedings in which such disclosure occurs from thereafter using or disclosing the Sensitive Information for the purposes of the Other Proceedings.

Note: The Court notes that the use and disclosure of the Sensitive Information in the Other Proceedings shall be regulated by the Court hearing those proceedings, and that the Crown or the Commissioner of the Australian Federal Police may bring applications for suppression and/or non-publication orders in respect of the Sensitive Information in the Other Proceedings.

Order 1 does not prevent:

5.1. the issuing or service of any subpoena which includes the name of the person referred to in order 1; or

5.2. the recipient of such a subpoena (the recipient), and persons on their behalf, from complying, and taking reasonable steps to comply, with the subpoena.

Any party on whose request a subpoena referred to in order 5 above has been issued shall provide the recipient with a copy of these orders, with the exclusion of order 1.2, at the same time as the subpoena is served on the recipient. For the avoidance of doubt, order 1.2 must be redacted or removed from the copy of the orders provided to the recipient of the subpoena.

Any party on whose request a subpoena referred to in order 5 above has been issued shall serve the Commissioner of the Australian Federal Police with a copy of the subpoena and such service:

7.1. shall be via email addressed to [email protected]; and

7.2. shall occur no later than at the time the subpoena is served on the recipient.

All documents produced pursuant to a subpoena referred to in order 5 above shall be held by the Registry as confidential documents and access to them will be restricted to the parties and the Commissioner of the Australian Federal Police.

Pseudonym order

The person described in Order 1 is to be referred to in Court only by the pseudonym “Max Marid”.

Miscellaneous orders

There is to be no disclosure of, or of the contents of:

10.1. the affidavit of Leanne Close sworn on 11 May 2018, and

10.2. the written submissions relied upon by the AFP Commissioner in support of this notice of motion,

other than to the parties.

The documents referred to in order 10 are to be returned to the AFP Commissioner, through his legal representatives, at the conclusion of the hearing of the motion for these orders.

These orders apply throughout the Commonwealth of Australia and until further order.

Note: The Court notes that, to the extent that these orders are made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), these orders are made on the grounds identified in s 8(1)(a),(b) and (c) of that Act.

**********

Amendments

05 November 2018 - Publishing restriction removed

Decision last updated: 05 November 2018