R v Elmir - [2018] NSWSC 308

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Elmir [2018] NSWSC 308
Hearing dates: 9 March 2018
Date of orders: 14 March 2018
Decision date: 14 March 2018
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
The Protected Images

1.   There is to be no disclosure of information that reveals, or tends to reveal:

1.1   the images annexed to the statement of Federal Agent Michael Wellings dated 15 March 2017 (the Protected Images);
1.2 images obtained pursuant to the warrant issued under s 16 of the Surveillance Devices Act 2004 (Cth) on 23 February 2016 by Gina Lazanas;
1.3 the evidentiary certificate issued under s 62(1) of the Surveillance Devices Act 2004 (Cth) signed by Commander Sue Thomas on 8 February 2017, and the information contained therein;
1.4   the whereabouts of the surveillance device used to obtain the Protected Images, at the time it was operational; and
1.5   the methods and means by which the Protected Images were obtained.

1A.   Within 3 days of the date of this order, the AFP Commissioner, through his legal representatives, is to indicate to the Crown and the Accused which images in the brief of evidence fall within order 1.2 but do not fall within order 1.1.

1B. Within 2 business days of providing any images that fall within order 1.2 but do not fall within order 1.1 to the Court or the parties, the AFP Commissioner, through his legal representatives, is to indicate to the recipients of those images that they fall within order 1.2.

2.   The Defendant and his legal representatives, and any expert retained by the Commonwealth DPP, shall, at the conclusion of these proceedings, including any appeals, return to the Commissioner of the Australian Federal Police (the AFP Commissioner), through the Australian Government Solicitor, any documents in their custody or control which fall within order 1.

The Messaging Application

3.   There is to be no disclosure of information that reveals, or tends to reveal, the name of the messaging application that any person connected with this proceeding used to communicate with undercover officers of the Australian Federal Police.

The FBI persona

4.   There is to be no disclosure of information that reveals, or tends to reveal:

4.1.   the names (or 'usernames') by which a Federal Bureau of Investigation employee acting in an undercover capacity was known to any person connected to this proceeding (the FBI Usernames), and
4.2.   the 'profile pictures' associated with the FBI Usernames (the FBI Profile Pictures).

5.   In this proceeding, the FBI Usernames shall be referred to as 'Person 1'.

6.   Any reference to the FBI Usernames shall be redacted in the documents in the brief of evidence and any document tendered in these proceedings and replaced with 'Person 1’.

7.   Any FBI Profile Picture shall be redacted in the documents in the brief of evidence and tendered in these proceedings.

The Protected Witnesses

8.   The Court shall be closed when the following witnesses give evidence:

8.1.   Jamal Ibrahim, and
8.2.   AFP OCE 595654

(collectively, the Protected Witnesses).

9.   Only the following people are permitted to be present when the Court is closed pursuant to order 8:

9.1.   the presiding Judge;
9.2.   necessary Court staff (including transcription service providers);
9.3.   the jury empanelled in the proceedings;
9.4.   the Commonwealth Director of Public Prosecutions, her officers, and her legal representatives;
9.5.   the Defendant;
9.6.   the legal representatives of the Defendant instructed in this proceeding;
9.7. the AFP Commissioner, AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the AFP Commissioner's legal representatives; and
9.8.   officers and employees of the Federal Bureau of Investigation.

10.   The witness mentioned in order 8.1 is to give evidence via encrypted audio visual link from a remote location.

11.   There is to be no disclosure of the remote location from which the witness mentioned in order 8.1 is to give evidence in accordance with order 10.

12.   ...

13.   ...

14.   There is to be no disclosure of information that reveals, or tends to reveal the identity of any Protected Witness, including:

14.1.   any image of any Protected Witness;
14.2.   any description of the physical appearance of any Protected Witness;
14.3.   any recording of the voice of any Protected Witness.

15.   Order 14.3 does not prevent:

15.1.   [not used]
15.2.   necessary Court staff (including transcription service providers) from transmitting, playing or listening to a recording of the voice of any Protected Witness for the purpose of preparing a transcript of the proceedings.

16.   The transcript of any hearing that occurs in closed court in respect of the witness mentioned in order 8.1 (the closed court transcript) shall, in the first instance, not be provided other than to the persons listed in order 9.

17.   Within 2 business days of receiving the closed court transcript (or such other period as permitted by the Court), the AFP Commissioner shall:

17.1.   if the AFP Commissioner does not seek any redactions to the closed court transcript, advise the Court and the parties;
17.2.   if the AFP Commissioner seeks redactions of any sensitive information contained within the closed court transcript — produce to the Court and the parties a redacted copy of that transcript (the redacted closed court transcript) and this production shall be treated as an application for a non-publication order (extending throughout the Commonwealth and until further order) as regards those passages in the transcript which are so redacted;

18.   As regards:

18.1.   any closed court transcript about which the AFP Commissioner gives the advice identified in order 17.1,
18.2.   any redacted closed court transcript produced as identified in order 17.2, and
18.3.   any closed court transcript in respect of which the AFP Commissioner does not take either of the steps described in order 17 within the period allowed,

that transcript may be made available to members of the public, but no closed court transcript shall otherwise be provided to any person other than the persons identified in order 9 until any application by the AFP Commissioner as described in order 17.2 has been determined by the Court;

19.   The Court shall consider any application by the AFP Commissioner as described in order 17.2 in chambers, unless any person seeks to be heard in respect of the application, and the AFP Commissioner and any person disputing a redaction shall be permitted to rely on evidence and submissions on the application.

Affidavit and written submissions

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

20.1.   text highlighted in yellow in the affidavit of Ian McCartney made in support of the motion filed by the AFP Commissioner on 16 February 2018, and
20.2.   the written submissions relied upon by the AFP Commissioner in support of that motion.

20A. The documents referred to in order 20 are to be returned to the AFP Commissioner, through his legal representatives, within 14 days of the hearing of the motion for these orders.

Exceptions

21.   Orders 1, 3, 4, and 20 do not prevent disclosure of any information to and between the following people until the final determination of these proceedings and for the purposes of these proceedings:

21.1.   the presiding Judge,
21.2.   necessary Court staff (including transcription service providers);
21.3.   the jury empanelled in the proceedings;
21.4.   the Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in this proceeding and any expert retained by the Commonwealth Director of Public Prosecutions;
21.5.   the Defendant;
21.6.   legal representatives of the Defendant instructed in this proceeding;
21.7. the AFP Commissioner, AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the AFP Commissioner's legal representatives;
21.8.   the Commissioner of the New South Wales Police Force, officers and employees of the New South Wales Police Force, and the legal representatives of the Commissioner of the New South Wales Police Force;
21.9.   officers and employees of the Federal Bureau of Investigation,
21.10. Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)); and
21.11.   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.

Application and grounds

22.   These orders apply throughout the Commonwealth of Australia.

23.   These orders apply until further order.
24. Insofar as these orders are made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), they are made on the grounds referred to in s 8(1 )(a), (b), (c) and (e) of that Act.
Catchwords:
EVIDENCE – non-disclosure of evidence – where evidence comprises images that reveal surveillance technologies and methods – whether suppression and non-publication orders are necessary – meaning of “necessary” – Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 – whether prejudice to proper administration of justice and interests of Cth in relation to national security outweigh public interest in open justice – where decision as to orders is made on evidence not available to parties – where summary of relevant content of images is available to parties – where accused not opposed to orders
CRIMINAL LAW – procedure – witnesses – where witnesses are AFP and FBI operatives – whether orders protecting identity and online personas of witnesses are necessary or desirable – Crimes Act 1914 (Cth) s 15MK – whether facial features of witness giving evidence by AVL should be screened from accused – whether screening would have substantial adverse effect on right of accused to a fair hearing – where jury is not apprised of fact that accused cannot face accuser – where accused not opposed to orders
Legislation Cited: Australian Federal Police Act 1979 (Cth)
Court Suppression and Non-publication Orders Act 2010 (NSW) s 8
Crimes Act 1914 (Cth) Pt 1ACA, s 15YV
Criminal Code (Cth) ss 93.2, 119.1, 119.4
Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B
Surveillance Devices Act 2004 (Cth) s 47
Cases Cited: Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
Attorney-General for NSW v Nationwide News Pty Limited (2008) 73 NSWLR 635; [2007] NSWCCA 307
BUSB v R [2011] NSWCCA 39
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
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
National Crime Authority v Gould (1989) 90 ALR 489
R v Davis [2008] 1 AC 1128; [2008] UKHL 36
R v Khaja (No. 1) [2017] NSWSC 1578
R v Murphy & Anor [1990] NI 306
R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Crown
Amin Elmir (Accused)
Commissioner of the Australian Federal Police (Applicant)
Representation:
Counsel:
P McDonald SC (Crown)
G Scragg (Accused)
T Glover (Applicant)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Lawyers Corp. Pty Limited (Accused)
The Australian Government Solicitor (Applicant)

File Number(s): 2016/384538

Judgment

The Commissioner of the Australian Federal Police seeks a number of orders which, broadly speaking, may be described as suppression and non-publication orders, and orders concerning protected witnesses. The orders sought arise out of the nature of the investigation into the present offence and the evidence that will be given at the trial of the accused.
The accused is charged that between about 23 April and 19 June 2016 at Istanbul and elsewhere in the Republic of Turkey he did contrary to s 119.4(1) of the Criminal Code (Cth), being an Australian citizen, commit acts in preparation for incursions into a foreign country, being the Syrian Arab Republic, for the purpose of engaging in hostile activities, being reckless as to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Code. Section 119.1 makes it an offence to enter a foreign country with the intention of engaging in hostile activities, and an offence if the person actually engages in hostile activities in a foreign country.
The facts may be briefly stated. On 7 April 2016 the accused and his parents departed Sydney on board a flight bound for Saudi Arabia. The accused’s parents returned to Australia on 24 April on a flight from Doha, Qatar, but without the accused. The accused left his parents and travelled to Turkey, arriving in Istanbul after 24 April 2016. The Crown case is that he travelled to Turkey and remained there for some time in order to cross the border into Syria to join and fight for Islamic State and to promote their agenda. He remained in Turkey and took steps to facilitate his travel into Syria, such as staying in a safe house, obtaining military equipment, and contacting others to help him cross the border.
One such person with whom he was in contact was the person known as EB who was in Sydney. The accused and EB had a number of conversations where EB was endeavouring to obtain a contact for the accused in order to facilitate the accused’s crossing into Syria. EB spoke, unknowingly, to two undercover operatives, one an officer of the AFP and the other an employee of the FBI, to try to assist the accused in that regard.
On 5 June 2016 in a conversation between the two persons, EB informed the accused that there was a person in Turkey the accused could speak to. However, the accused said that he had already spoken to someone in Turkey, and was waiting to be given the way to enter Syria.
The accused returned to Australia on 1 July 2016 in the company of his parents who travelled to Turkey to bring him home.
The orders sought by the Commissioner seek that there be no disclosure in relation to three particular areas of evidence. The first area relates to protected images which were obtained pursuant to a warrant issued under s 16 of the Surveillance Devices Act 2004 (Cth). The second area concerns the Messaging Application that was used by EB in particular, to communicate with the undercover officers of the Australian Federal Police. The third area concerns the identity of the undercover FBI agent known as Jamal Ibriahim, the FBI Usernames, and the profile pictures associated with the FBI Usernames.
Orders are sought in relation to the evidence to be given by Jamal Ibrahim and an Australian Federal Police undercover officer known as FP OCE 595654. The orders seek that the Court be closed for their evidence, that Jamal Ibrahim give evidence via an encrypted audio visual link from a remote location, that the identity of those witnesses not be published, and that the Commissioner of the AFP be given a two day period before the transcript of their evidence is published to apply to the Court for a redacted transcript to be published.
The legal bases for the applications is to be found in the Court Suppression and Non-publication Orders Act 2010 (NSW), s 47 of the Surveillance Devices Act 2009 (Cth), s 93.2 of the Criminal Code (Cth), s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), Pt 1ACA and s 15YV of the Crimes Act 1914 (Cth).
The Commissioner relies on an affidavit of Ian McCartney sworn 1 March 2018. Mr McCartney is an Assistant Commissioner of the Australian Federal Police and is the Acting Deputy Commissioner National Security. Mr McCartney’s affidavit is sworn in three forms. The form that is before me and only me, is a form with both yellow and green highlighting (the Court version). A second form is before the parties to the trial and contains yellow highlighting but not the portion in green highlighting (the Party version). A third form is a public version of the affidavit which does not contain the portions with yellow or green highlighting (the Public version).
The material highlighted in both yellow and green is sensitive material. The material highlighted in yellow is such that it can be disclosed to the parties and the Court, but the Commissioner seeks a suppression order over that information so that it is not more widely disseminated. The material that is highlighted in green is said to be highly sensitive and is such that it should not be made available even to the parties because:

(a) it may reveal sensitive details regarding AFP capabilities which, if disclosed, could undermine the AFP’s ability to deploy effectively the capabilities in the future;

(b) it may prejudice the AFP’s relationship with the FBI;

(d) it may prejudice the safety of a person.

The provision of the information highlighted in green in the affidavit is said to be analogous to the provision of the sort of information that is put forward where public interest immunity is claimed. It is well accepted in such cases that it is necessary for the Court to make a decision on confidential information not available to the parties: Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 at [20]; DPP v Smith (1996) 86 A Crim R 308 at 310; and National Crime Authority v Gould (1989) 90 ALR 489 at 497.
At the hearing of the motion the Crown sought, without objection from either the accused or the Commissioner, that the list of persons in order 21 be extended to the expert that the Crown intends to call at the trial. That amendment necessitated an amendment also to order 2.
Counsel for the accused did not oppose any of the orders being made. However, he drew particular attention to order 12 which provided that the accused was not to be amongst the persons who would be able to observe the evidence given by Jamal Ibrahim. Counsel said that if the arrangement made was similar to that which had been ordered in other cases such as R v Khaja (No. 1) [2017] NSWSC 1578, where a blank monitor was placed in front of the accused in the courtroom, he would have no objection to the order being made. That arrangement was to avoid the position where the jury became aware that the accused was prevented from seeing the witness give his evidence.
I indicated to the parties at the conclusion of the hearing that I was prepared to make all of the orders sought and that reasons would be provided at a later date. These are my reasons for making those orders.

Non-disclosure

Section 8 of the Court Suppression and Non-publication Orders Act provides:

8 Grounds for making an order
(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,
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

It may be noted that the Commissioner relies on paragraphs (a), (b), (c) and (e).

Section 47 of the Surveillance Devices Act 2004 (Cth) provides:

47 Protection of surveillance device technologies and methods
(1) In a proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices.

(2) If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, he or she may order that the person who has the information not be required to disclose it in the proceeding.
(3) In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information:
(a) is necessary for the fair trial of the defendant; or
(b) is in the public interest.

(4) Subsection (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information.
(5) If the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices, the person must make any orders prohibiting or restricting publication of the information that he or she considers necessary to ensure that those details are not revealed.
(6) Subsection (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.
(7) In this section:
proceeding includes a proceeding before a court, tribunal or Royal Commission.

The test in s 8 of the Court Suppression Act is one of whether the order “is necessary”. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, Bathurst CJ (with whom Whealy JA agreed) said:

[8] … I agree that the word "necessary" should not be given a narrow construction. What was said by Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13] adopting the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 are equally applicable to the legislation in question.
"However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed v. Local Court (NSW) (at 161B):
This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based."

As regards paragraph (a) of s 8(1), I note that the Court of Criminal Appeal in Attorney-General for NSW v Nationwide News Pty Limited (2008) 73 NSWLR 635; [2007] NSWCCA 307 at [38] held that the expression “administration of justice” can extend to the investigation and detection of crime, and the obtaining of evidence against suspects. His Honour said that the protection of this aspect of the administration of justice is one main reasons for the protection of the identity of informers.
Earlier in that judgment his Honour had expressed doubt (at [31]) about the protection from disclosure of what were said to be confidential police methods. However, that decision pre-dated the enactment of the Court Suppression Act. In John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324, Spigelman CJ (Handley JA an M Campbell A-JA agreeing) said at [19] that it is well established that courts will not add to the list of exceptions to the principle of open justice, but that Parliament can do so. In respect of the matter there under consideration his Honour suggested (at [65]) that legislative intervention was desirable. Subsequently, the Court Suppression Act was enacted, widening somewhat the grounds on which suppression or non-publication orders can be made. Of relevance to the present matter (if the administration of justice is not wide enough for present purposes) are paragraphs (b), (c) and (e).
It is not possible in reaching a view about the orders sought, to detail some or all of the evidence relied upon to reach that view. To do so would be to defeat the purpose of making the orders. What follows, therefore, is a bare outline of the matters in respect of which the orders are sought.
Mr McCartney’s affidavit demonstrates the increasing use of the internet by violent extremists and the dissemination of extremist materials by that means.
I am entirely satisfied from Mr McCartney’s affidavit that there are powerful reasons that the non-disclosure in relation to the protected images and the methods used to obtain those images are necessary both to prevent prejudice to the proper administration of justice and to prevent prejudice to the interests of the Commonwealth in relation to national and international security. Mr McCartney’s evidence also demonstrates that the non-disclosure is necessary in the public interest, and the public interest here significantly outweighs the public interest in open justice.
Section 47 of the Surveillance Devices Act enables the court to restrict the publication of evidence that might reveal details of surveillance device technology including the use of surveillance devices. I do not consider, in terms of subsection (6) that the interests of justice require otherwise. That is particularly so when Mr McCartney’s affidavit makes clear that a summary of the substantive content of the protected images has been made, and is available as an annexure to the statement of FA Wellings dated 14 February 2017.
The Messaging Application was the method used by EB to communicate with AFP OCE 595654. I am satisfied also from Mr McCartney’s affidavit that withholding the identity of the Messaging Application is necessary to prevent prejudice to the proper administration of justice, to prevent prejudice to the interests of the Commonwealth in relation to national security, and that it is necessary in the public interest. Not identifying the Application cannot possibly make the trial unfair, and there is scarcely any legitimate public interest in its disclosure.

Protected witnesses

Witness protection certificates have been given in respect of Jamal Ibrahim and AFP OCE 595654.
Section 15MK of the Crimes Act 1914 relevantly provides:

15MK Orders to protect operative’s identity etc.
(1) The court in which a witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the operative for whom the certificate is given or to prevent the disclosure of where the operative lives.
(4) The court must make an order suppressing the publication of anything said when an order is made as mentioned in subsection (1).
(5) To avoid doubt, subsection (4) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.
…

The test under this section is that the order is necessary or desirable to protect the identity of the witness. I accept the submission of the Commissioner that this is a lower threshold than the test of necessity. However, in the light of the material in Mr McCartney’s affidavit I would have considered that the need to protect the identity of the witnesses would have satisfied the test of necessity under s 8 of the Court Suppression Act and the test at common law as discussed in BUSB v R [2011] NSWCCA 39. In that case, Spigelman CJ (with whom Hodgson JA, McClellan CJ at CL and Johnson J agreed) said:

[30] In Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, the High Court applied the Grassby test to the District Court of New South Wales. The majority joint judgment of Gaudron, Gummow and Callinan JJ said at [51]:
"The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'."

The last internal quotation is from State Drug Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452.
[31] The dictum of Pollock CB approved in Pelechowski is:
"The word 'necessary' does not mean absolutely necessary, but reasonably necessary with reference to the circumstances of the case." (Attorney General v Walker (1849) 3 Ex 242 at 255; 154 ER 833 at 838.)

[32] However, a test of necessity cannot be stretched to encompass what is merely desirable or useful. Accordingly, in Pelechowski the High Court held that the order made by the District Court was more extensive than was warranted by a test of necessity. Similarly, an "advance ruling" on a hypothetical issue was not "necessary for the effective exercise of jurisdiction". (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [44], [101], [114]. See also John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at [42]-[46]; Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565 at [15]-[16]; Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522 at [61]-[66], [100]-[105], [125], [133]-[139], [145]-[151]; Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 esp at [51], [55].)
[33] A test of necessity can be applied with varying degrees of strictness. Where, as is the case here, the power said to be implied impinges upon a fundamental principle of the administration of criminal justice - the right to confront accusers - the test must be applied with a higher level of strictness than may be applicable in other circumstances. (See John Fairfax v District Court at [51]) The extent of the power in such circumstances may be "minimalist". (See Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [144].)

The Court has the power under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to order that a witness give evidence by video link unless the Court is satisfied that the making of such an order would have a substantial adverse effect on the right of a defendant in the proceeding to receive a fair hearing. In the present case that section must be seen in the light of, and be considered with, the witness protection orders that have been made, and s 15MK of the Crimes Act 1914. Moreover, the inherent jurisdiction of the Court, as discussed in BUSB, enables the Court to make orders that would entitle the evidence of the witness to be given by AVL and in way that protects the identity of that witness.
I note that there is no opposition by the accused that the identities of the protected witnesses be suppressed nor to the making of the order that Jamal Ibrahim give evidence by audio visual link and that his face be screened from the accused. Notwithstanding that lack of opposition, I am nevertheless satisfied in terms of s 5B(2)(c) that it would not be unfair to the accused for that to occur. Moreover, I am satisfied that it is in the interests of the administration of justice for the Court to make such orders.
I have had regard also to what was said in R v Davis [2008] 1 AC 1128; [2008] UKHL 36 and R v Murphy [1990] NI 306. In R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82, the Court of Criminal Appeal said at [119] that the right to confront an accuser is by no means an absolute one.
In the present case, the evidence of Jamal Ibrahim concerns his communications with EB and not the accused, and that communication was over the internet and not face-to-face. Even in R v Kahja (No. 1) [2017] NSWSC 1578 where the accused had met with one of the witnesses face to face, Fagan J considered, at [18]-[20], that the accused should not see the witness although his counsel was able to do so when he cross-examined the witness.
In my opinion, the witness Jamal Ibrahim should be entitled to give evidence by AVL and be screened from view of the accused. I note that the arrangement in that regard will be that the accused will have a monitor in front of him in the same way that the jury, counsel and the Court will, but the jury will not be apprised of the fact that the monitor in front of accused does not transmit the image of the witnesses to the accused. In that way, any unfairness to the accused is minimised or eliminated as far as the jury is concerned.
The Commissioner seeks, and the parties agree, that there should be no publication of the order providing for this screening arrangement.
The ancillary orders concerning delay in publishing the transcript of the evidence of the protected witnesses arise from the nature of the evidence they will give. The effect of these orders is simply to prevent publication of the evidence for no more than two business days. Whether, thereafter, there will be any further suppression of the evidence or any part of it, will be decided if any application is made by the Commissioner. While paragraphs (a), (b) or (c) of s 8(1) of the Court Suppression Act may provide the basis of such a temporary order, even if the balancing test in s 8(1)(e) is engaged, the public interest justifying such an order significantly outweighs the two day delay in the evidence being publicly available.

Conclusion

Accordingly, the orders that I made, subject to what appears at [34] above, are these:

The Protected Images
1.   There is to be no disclosure of information that reveals, or tends to reveal:
1.1   the images annexed to the statement of Federal Agent Michael Wellings dated 15 March 2017 (the Protected Images);
1.2 images obtained pursuant to the warrant issued under s 16 of the Surveillance Devices Act 2004 (Cth) on 23 February 2016 by Gina Lazanas;
1.3 the evidentiary certificate issued under s 62(1) of the Surveillance Devices Act 2004 (Cth) signed by Commander Sue Thomas on 8 February 2017, and the information contained therein;
1.4   the whereabouts of the surveillance device used to obtain the Protected Images, at the time it was operational; and
1.5   the methods and means by which the Protected Images were obtained.

1A.   Within 3 days of the date of this order, the AFP Commissioner, through his legal representatives, is to indicate to the Crown and the Accused which images in the brief of evidence fall within order 1.2 but do not fall within order 1.1.
1B. Within 2 business days of providing any images that fall within order 1.2 but do not fall within order 1.1 to the Court or the parties, the AFP Commissioner, through his legal representatives, is to indicate to the recipients of those images that they fall within order 1.2.
2.   The Defendant and his legal representatives, and any expert retained by the Commonwealth DPP, shall, at the conclusion of these proceedings, including any appeals, return to the Commissioner of the Australian Federal Police (the AFP Commissioner), through the Australian Government Solicitor, any documents in their custody or control which fall within order 1.
The Messaging Application
3.   There is to be no disclosure of information that reveals, or tends to reveal, the name of the messaging application that any person connected with this proceeding used to communicate with undercover officers of the Australian Federal Police.
The FBI persona
4.   There is to be no disclosure of information that reveals, or tends to reveal:
4.1.   the names (or 'usernames') by which a Federal Bureau of Investigation employee acting in an undercover capacity was known to any person connected to this proceeding (the FBI Usernames), and
4.2.   the 'profile pictures' associated with the FBI Usernames (the FBI Profile Pictures).

5.   In this proceeding, the FBI Usernames shall be referred to as 'Person 1'.
6.   Any reference to the FBI Usernames shall be redacted in the documents in the brief of evidence and any document tendered in these proceedings and replaced with 'Person 1’.
7.   Any FBI Profile Picture shall be redacted in the documents in the brief of evidence and tendered in these proceedings.
The Protected Witnesses
8.   The Court shall be closed when the following witnesses give evidence:
8.1.   Jamal Ibrahim, and
8.2.   AFP OCE 595654

(collectively, the Protected Witnesses).
9.   Only the following people are permitted to be present when the Court is closed pursuant to order 8:
9.1.   the presiding Judge;
9.2.   necessary Court staff (including transcription service providers);
9.3.   the jury empanelled in the proceedings;
9.4.   the Commonwealth Director of Public Prosecutions, her officers, and her legal representatives;
9.5.   the Defendant;
9.6.   the legal representatives of the Defendant instructed in this proceeding;
9.7.   the AFP Commissioner, AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the AFP Commissioner's legal representatives; and
9.8.   officers and employees of the Federal Bureau of Investigation.

10.   The witness mentioned in order 8.1 is to give evidence via encrypted audio visual link from a remote location.
11.   There is to be no disclosure of the remote location from which the witness mentioned in order 8.1 is to give evidence in accordance with order 10.
12.   ...
13.   ...
14.   There is to be no disclosure of information that reveals, or tends to reveal the identity of any Protected Witness, including:
14.1.   any image of any Protected Witness;
14.2.   any description of the physical appearance of any Protected Witness;
14.3.   any recording of the voice of any Protected Witness.

15.   Order 14.3 does not prevent:
15.1.   [not used]
15.2.   necessary Court staff (including transcription service providers) from transmitting, playing or listening to a recording of the voice of any Protected Witness for the purpose of preparing a transcript of the proceedings.

16.   The transcript of any hearing that occurs in closed court in respect of the witness mentioned in order 8.1 (the closed court transcript) shall, in the first instance, not be provided other than to the persons listed in order 9.
17.   Within 2 business days of receiving the closed court transcript (or such other period as permitted by the Court), the AFP Commissioner shall:
17.1.   if the AFP Commissioner does not seek any redactions to the closed court transcript, advise the Court and the parties;
17.2.   if the AFP Commissioner seeks redactions of any sensitive information contained within the closed court transcript - produce to the Court and the parties a redacted copy of that transcript (the redacted closed court transcript) and this production shall be treated as an application for a non-publication order (extending throughout the Commonwealth and until further order) as regards those passages in the transcript which are so redacted;

18.   As regards:
18.1.   any closed court transcript about which the AFP Commissioner gives the advice identified in order 17.1,
18.2.   any redacted closed court transcript produced as identified in order 17.2, and
18.3.   any closed court transcript in respect of which the AFP Commissioner does not take either of the steps described in order 17 within the period allowed,

that transcript may be made available to members of the public, but no closed court transcript shall otherwise be provided to any person other than the persons identified in order 9 until any application by the AFP Commissioner as described in order 17.2 has been determined by the Court;
19.   The Court shall consider any application by the AFP Commissioner as described in order 17.2 in chambers, unless any person seeks to be heard in respect of the application, and the AFP Commissioner and any person disputing a redaction shall be permitted to rely on evidence and submissions on the application.
Affidavit and written submissions
20.   There is to be no disclosure of, or of the contents of:
20.1.   text highlighted in yellow in the affidavit of Ian McCartney made in support of the motion filed by the AFP Commissioner on 16 February 2018, and
20.2.   the written submissions relied upon by the AFP Commissioner in support of that motion.

20A. The documents referred to in order 20 are to be returned to the AFP Commissioner, through his legal representatives, within 14 days of the hearing of the motion for these orders.
Exceptions
21.   Orders 1, 3, 4, and 20 do not prevent disclosure of any information to and between the following people until the final determination of these proceedings and for the purposes of these proceedings:
21.1.   the presiding Judge,
21.2.   necessary Court staff (including transcription service providers);
21.3.   the jury empanelled in the proceedings;
21.4.   the Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in this proceeding and any expert retained by the Commonwealth Director of Public Prosecutions;
21.5.   the Defendant;
21.6.   legal representatives of the Defendant instructed in this proceeding;
21.7.   the AFP Commissioner, AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the AFP Commissioner's legal representatives;
21.8.   the Commissioner of the New South Wales Police Force, officers and employees of the New South Wales Police Force, and the legal representatives of the Commissioner of the New South Wales Police Force;
21.9.   officers and employees of the Federal Bureau of Investigation,
21.10. Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)); and
21.11.   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.

Application and grounds
22.   These orders apply throughout the Commonwealth of Australia.
23.   These orders apply until further order.
24.   Insofar as these orders are made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), they are made on the grounds referred to in s 8(1 )(a), (b), (c) and (e) of that Act.

**********

Amendments

16 August 2019 - Publication restriction removed.

Decision last updated: 16 August 2019

Medium Neutral Citation:	R v Elmir [2018] NSWSC 308
Hearing dates:	9 March 2018
Date of orders:	14 March 2018
Decision date:	14 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Davies J
Decision:	The Protected Images 1. There is to be no disclosure of information that reveals, or tends to reveal: 1.1 the images annexed to the statement of Federal Agent Michael Wellings dated 15 March 2017 (the Protected Images); 1.2 images obtained pursuant to the warrant issued under s 16 of the Surveillance Devices Act 2004 (Cth) on 23 February 2016 by Gina Lazanas; 1.3 the evidentiary certificate issued under s 62(1) of the Surveillance Devices Act 2004 (Cth) signed by Commander Sue Thomas on 8 February 2017, and the information contained therein; 1.4 the whereabouts of the surveillance device used to obtain the Protected Images, at the time it was operational; and 1.5 the methods and means by which the Protected Images were obtained. 1A. Within 3 days of the date of this order, the AFP Commissioner, through his legal representatives, is to indicate to the Crown and the Accused which images in the brief of evidence fall within order 1.2 but do not fall within order 1.1. 1B. Within 2 business days of providing any images that fall within order 1.2 but do not fall within order 1.1 to the Court or the parties, the AFP Commissioner, through his legal representatives, is to indicate to the recipients of those images that they fall within order 1.2. 2. The Defendant and his legal representatives, and any expert retained by the Commonwealth DPP, shall, at the conclusion of these proceedings, including any appeals, return to the Commissioner of the Australian Federal Police (the AFP Commissioner), through the Australian Government Solicitor, any documents in their custody or control which fall within order 1. The Messaging Application 3. There is to be no disclosure of information that reveals, or tends to reveal, the name of the messaging application that any person connected with this proceeding used to communicate with undercover officers of the Australian Federal Police. The FBI persona 4. There is to be no disclosure of information that reveals, or tends to reveal: 4.1. the names (or 'usernames') by which a Federal Bureau of Investigation employee acting in an undercover capacity was known to any person connected to this proceeding (the FBI Usernames), and 4.2. the 'profile pictures' associated with the FBI Usernames (the FBI Profile Pictures). 5. In this proceeding, the FBI Usernames shall be referred to as 'Person 1'. 6. Any reference to the FBI Usernames shall be redacted in the documents in the brief of evidence and any document tendered in these proceedings and replaced with 'Person 1’. 7. Any FBI Profile Picture shall be redacted in the documents in the brief of evidence and tendered in these proceedings. The Protected Witnesses 8. The Court shall be closed when the following witnesses give evidence: 8.1. Jamal Ibrahim, and 8.2. AFP OCE 595654 (collectively, the Protected Witnesses). 9. Only the following people are permitted to be present when the Court is closed pursuant to order 8: 9.1. the presiding Judge; 9.2. necessary Court staff (including transcription service providers); 9.3. the jury empanelled in the proceedings; 9.4. the Commonwealth Director of Public Prosecutions, her officers, and her legal representatives; 9.5. the Defendant; 9.6. the legal representatives of the Defendant instructed in this proceeding; 9.7. the AFP Commissioner, AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the AFP Commissioner's legal representatives; and 9.8. officers and employees of the Federal Bureau of Investigation. 10. The witness mentioned in order 8.1 is to give evidence via encrypted audio visual link from a remote location. 11. There is to be no disclosure of the remote location from which the witness mentioned in order 8.1 is to give evidence in accordance with order 10. 12. ... 13. ... 14. There is to be no disclosure of information that reveals, or tends to reveal the identity of any Protected Witness, including: 14.1. any image of any Protected Witness; 14.2. any description of the physical appearance of any Protected Witness; 14.3. any recording of the voice of any Protected Witness. 15. Order 14.3 does not prevent: 15.1. [not used] 15.2. necessary Court staff (including transcription service providers) from transmitting, playing or listening to a recording of the voice of any Protected Witness for the purpose of preparing a transcript of the proceedings. 16. The transcript of any hearing that occurs in closed court in respect of the witness mentioned in order 8.1 (the closed court transcript) shall, in the first instance, not be provided other than to the persons listed in order 9. 17. Within 2 business days of receiving the closed court transcript (or such other period as permitted by the Court), the AFP Commissioner shall: 17.1. if the AFP Commissioner does not seek any redactions to the closed court transcript, advise the Court and the parties; 17.2. if the AFP Commissioner seeks redactions of any sensitive information contained within the closed court transcript — produce to the Court and the parties a redacted copy of that transcript (the redacted closed court transcript) and this production shall be treated as an application for a non-publication order (extending throughout the Commonwealth and until further order) as regards those passages in the transcript which are so redacted; 18. As regards: 18.1. any closed court transcript about which the AFP Commissioner gives the advice identified in order 17.1, 18.2. any redacted closed court transcript produced as identified in order 17.2, and 18.3. any closed court transcript in respect of which the AFP Commissioner does not take either of the steps described in order 17 within the period allowed, that transcript may be made available to members of the public, but no closed court transcript shall otherwise be provided to any person other than the persons identified in order 9 until any application by the AFP Commissioner as described in order 17.2 has been determined by the Court; 19. The Court shall consider any application by the AFP Commissioner as described in order 17.2 in chambers, unless any person seeks to be heard in respect of the application, and the AFP Commissioner and any person disputing a redaction shall be permitted to rely on evidence and submissions on the application. Affidavit and written submissions 20. There is to be no disclosure of, or of the contents of: 20.1. text highlighted in yellow in the affidavit of Ian McCartney made in support of the motion filed by the AFP Commissioner on 16 February 2018, and 20.2. the written submissions relied upon by the AFP Commissioner in support of that motion. 20A. The documents referred to in order 20 are to be returned to the AFP Commissioner, through his legal representatives, within 14 days of the hearing of the motion for these orders. Exceptions 21. Orders 1, 3, 4, and 20 do not prevent disclosure of any information to and between the following people until the final determination of these proceedings and for the purposes of these proceedings: 21.1. the presiding Judge, 21.2. necessary Court staff (including transcription service providers); 21.3. the jury empanelled in the proceedings; 21.4. the Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in this proceeding and any expert retained by the Commonwealth Director of Public Prosecutions; 21.5. the Defendant; 21.6. legal representatives of the Defendant instructed in this proceeding; 21.7. the AFP Commissioner, AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the AFP Commissioner's legal representatives; 21.8. the Commissioner of the New South Wales Police Force, officers and employees of the New South Wales Police Force, and the legal representatives of the Commissioner of the New South Wales Police Force; 21.9. officers and employees of the Federal Bureau of Investigation, 21.10. Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)); and 21.11. 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. Application and grounds 22. These orders apply throughout the Commonwealth of Australia. 23. These orders apply until further order. 24. Insofar as these orders are made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), they are made on the grounds referred to in s 8(1 )(a), (b), (c) and (e) of that Act.
Catchwords:	EVIDENCE – non-disclosure of evidence – where evidence comprises images that reveal surveillance technologies and methods – whether suppression and non-publication orders are necessary – meaning of “necessary” – Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 – whether prejudice to proper administration of justice and interests of Cth in relation to national security outweigh public interest in open justice – where decision as to orders is made on evidence not available to parties – where summary of relevant content of images is available to parties – where accused not opposed to orders CRIMINAL LAW – procedure – witnesses – where witnesses are AFP and FBI operatives – whether orders protecting identity and online personas of witnesses are necessary or desirable – Crimes Act 1914 (Cth) s 15MK – whether facial features of witness giving evidence by AVL should be screened from accused – whether screening would have substantial adverse effect on right of accused to a fair hearing – where jury is not apprised of fact that accused cannot face accuser – where accused not opposed to orders
Legislation Cited:	Australian Federal Police Act 1979 (Cth) Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 Crimes Act 1914 (Cth) Pt 1ACA, s 15YV Criminal Code (Cth) ss 93.2, 119.1, 119.4 Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B Surveillance Devices Act 2004 (Cth) s 47
Cases Cited:	Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 Attorney-General for NSW v Nationwide News Pty Limited (2008) 73 NSWLR 635; [2007] NSWCCA 307 BUSB v R [2011] NSWCCA 39 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 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 National Crime Authority v Gould (1989) 90 ALR 489 R v Davis [2008] 1 AC 1128; [2008] UKHL 36 R v Khaja (No. 1) [2017] NSWSC 1578 R v Murphy & Anor [1990] NI 306 R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Crown Amin Elmir (Accused) Commissioner of the Australian Federal Police (Applicant)
Representation:	Counsel: P McDonald SC (Crown) G Scragg (Accused) T Glover (Applicant) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp. Pty Limited (Accused) The Australian Government Solicitor (Applicant)
File Number(s):	2016/384538