R v Azari (No 8) - [2018] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation: R v Azari (No 8) [2018] NSWSC 1674
Hearing dates: 9 October 2018
Date of orders: 11 October 2018
Decision date: 02 November 2018
Jurisdiction: Common Law - Criminal
Before: N Adams J
Decision:
See paragraph [26]

Catchwords: CRIMINAL LAW – Terrorism trial – Application for suppression, pseudonym and closed-court orders relating to a particular witness – Whether 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 – Whether orders necessary 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
Crimes (Administration of Sentences) Act 1999 (NSW), s 77
Criminal Code Act, Sch, s 101.6
Cases Cited: Commissioner of Police v Nationwide News (2007) 70 NSWLR 643; [2007] NSWCA 366
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101
Category: Procedural and other rulings
Parties: Regina (Crown)
Omarjan Azari (Accused)
Commissioner of Australian Federal Police (Applicant)
Representation:
Counsel:
Mr L Crowley with Mr B Power (Crown)
Mr B Hughes SC with Ms M Curry (Accused)
P Melican (Applicant)
R Wilson (Witness)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Specialists (Accused)
Australian Government Solicitor (Applicant)

File Number(s): 2014/274649
Publication restriction: Nil

Judgment

On 11 October 2018, I made certain orders under s 7(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Court Suppression Act”). I indicated at that time that I would provide my reasons for doing so at a later date. These are those reasons.
The accused, Omarjan Azari, has pleaded not guilty to one count of doing an act in preparation of, or planning, a terrorist act contrary to s 101.6(1) of the Schedule to the Criminal Code Act 1995 (Cth). His trial was due to start on Tuesday, 9 October 2018 but because of this application and other pre-trial matters it was not able to commence until 11 October 2018.
Since this trial was first listed before me in April 2017, I have made a number of suppression orders under s 7(b) of the Court Suppression Act. Some of those orders have pertained to the identity of one of the witnesses to be called in the Crown case.
On the morning of 9 October 2018, Mr Melican of counsel appeared before me instructed by the Australian Government Solicitor (“AGS”) on behalf of the Commissioner of the Australian Federal Police (”the Commissioner”) and sought to consolidate and add to the suppression orders made in relation to the identified Crown witness. Mr Melican also foreshadowed that Richard Wilson of counsel, who had appeared for the witness in his sentencing proceedings,…

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 8)

Details

AGLC: R v Azari (No 8) [2018] NSWSC 1674
Case: [2018] NSWSC 1674
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of R v Azari (No 8) involved the application for suppression, pseudonym, and closed-court orders in relation to a particular witness in a terrorism trial. The respondent sought these orders to prevent prejudice to the proper administration of justice and the interests of the Commonwealth concerning national or international security, as well as to protect the safety of the witness. The application was heard in a relevant court.

The central legal issue before the court was whether the proposed orders were necessary under the applicable legislation to prevent prejudice to the administration of justice and national security interests, and to safeguard the witness. The court was required to balance the right to a fair trial with the need to protect sensitive information and ensure the safety of the witness.

The court found that the orders were necessary to protect the witness from potential harm and to prevent any prejudice that could arise from the disclosure of sensitive information. The court was satisfied that the proposed measures were proportionate and necessary to achieve these objectives. Consequently, the application was granted, and the court issued the requested orders to ensure the safety of the witness and to maintain the integrity of the trial process.

Orders