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R v Elmir

R v Elmir

Case [2018] NSWSC 308 14 March 2018

Admissibility of Evidence

Legal Privilege

Suppression and Non-publication Orders

Criminal Law

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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.…

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 Elmir

Details

AGLC: R v Elmir [2018] NSWSC 308
Case: [2018] NSWSC 308
Decision Date: 14 March 2018

CaseChat Overview and Summary

In the matter of R v Elmir, the accused was charged with various offences under Australian criminal law. The dispute centred on the handling of sensitive evidence, particularly images that disclosed surveillance technologies and methods. The court was tasked with determining whether suppression and non-publication orders were necessary under the Court Suppression and Non-publication Orders Act 2010 (NSW) and whether these orders should be made in light of national security interests. The court had to weigh the potential prejudice to the proper administration of justice and the interests of the Commonwealth in relation to national security against the public interest in open justice. These decisions were made on evidence that was not available to the parties, although a summary of the relevant content of the images was provided. Importantly, the accused did not oppose the proposed orders.

The court examined whether it was necessary to protect the identities and online personas of witnesses, who were operatives from the Australian Federal Police and the Federal Bureau of Investigation. Under the Crimes Act 1914 (Cth), the court had to consider whether it was necessary or desirable to make orders to protect the identity of these witnesses. The court also deliberated on whether the facial features of a witness giving evidence via audio-visual link should be screened from the accused and whether such screening would have a substantial adverse effect on the accused's right to a fair hearing. Additionally, the court had to decide whether to inform the jury that the accused could not face the accuser due to the screening of the witness's facial features. The accused did not oppose these orders.

The court concluded that suppression and non-publication orders were necessary to protect sensitive information related to surveillance technologies and methods, which were critical to national security interests. It determined that the potential prejudice to the proper administration of justice and the Commonwealth's interests outweighed the public interest in open justice. The court also found that orders protecting the identities of the witnesses and screening the facial features of one witness were necessary or desirable. The court determined that screening the witness's facial features would not have a substantial adverse effect on the accused's right to a fair hearing and that the jury should not be informed of this fact. The final orders included suppression and non-publication orders, as well as orders to protect the identities of the witnesses and screen the facial features of one witness.

Orders