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)

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.
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.
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.
Mr Powell has indicated that…

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.

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Details

Case: [2018] NSWSC 910
Decision Date: 01 June 2018

CaseChat Overview and Summary

The respondents, Azari and others, were on trial for terrorism offences. The applicants, represented by the Commonwealth Director of Public Prosecutions, sought suppression and pseudonym orders to prevent prejudice to the proper administration of justice, to protect national security interests, and to safeguard a witness. The suppression orders sought to prevent the publication of any material that could prejudice the trial or the safety of a witness, while the pseudonym orders aimed to protect the identity of the witness and other individuals. The application was heard by the Supreme Court of Victoria.

The legal issues before the court were whether the orders were necessary to prevent prejudice to the proper administration of justice, to protect national or international security interests, and to safeguard the safety of a witness. The court had to consider whether the evidence presented by the applicants met the threshold for granting such orders, which required a compelling need to balance the right to a fair trial and the public interest in open justice. The court also had to determine whether the orders would be proportionate to the risk of prejudice and whether there were any alternatives to the orders that could achieve the same objectives.

The court found that the orders were necessary to prevent prejudice to the proper administration of justice, to protect the interests of the Commonwealth in relation to national or international security, and to protect the safety of a witness. The evidence presented by the applicants demonstrated a significant risk of prejudice to the trial and the safety of the witness if the orders were not granted. The court also found that the orders were proportionate to the risk of prejudice and that there were no alternatives that could achieve the same objectives. The court granted the orders, finding that they were necessary to balance the competing interests and to ensure a fair trial.

The court made suppression orders and pseudonym orders in relation to the trial of the respondents. The suppression orders prohibited the publication of any material that could prejudice the trial or the safety of a witness. The pseudonym orders protected the identity of the witness and other individuals. The orders were intended to prevent prejudice to the proper administration of justice and to protect the interests of the Commonwealth in relation to national or international security and the safety of a witness.

Orders