R v HG; R v WE (No 11)

[2018] NSWSC 1746

Supreme Court

New South Wales

Medium Neutral Citation:	R v HG; R v WE (No 11) [2018] NSWSC 1746
Hearing dates:	20 July 2018
Date of orders:	20 July 2018
Decision date:	20 July 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [13]
Catchwords:	EVIDENCE – Public interest immunity claims – Issues of disclosure – Exclusion of evidence of matters of state – Accused charged with committing acts in preparation for a terrorist act or acts – Where disclosure would be of little forensic value to the accused – Where balancing exercise tended against disclosure – Claims for public interest immunity upheld.
Legislation Cited:	Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) Criminal Code 1995 (Cth) Evidence Act 1995 (NSW)
Cases Cited:	Cain v Glass (No. 2) (1985) 3 NSWLR 230 Conway v Rimmer [1968] AC 910 National Crime Authority v Gould (1989) 90 ALR 489 R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508 R v Meissner (1994) 76 A Crim R 81 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
Category:	Procedural and other rulings
Parties:	Regina – Crown HG – Accused WE – Accused
Representation:	Counsel: I Bourke SC and R Ranken – Crown B Walmsley QC – Accused HG J Trevallion – Accused WE P Melican - Director General of Security   Solicitors: Director of Public Prosecutions (Cth) – Crown Birchgrove Legal – Accused HG Alexanders Lawyers – Accused WE Australian Government Solicitor – Director General of Security
File Number(s):	2016/3051142016/305103
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The accused in these proceedings, to whom I shall refer as HG and WE, have each pleaded not guilty to an indictment alleging that between about 6 October 2016 and 12 October 2016, at Sydney in the State of New South Wales, they did acts in preparation for, or planning, a terrorist act or acts, contrary to s 101.6(1) of the Criminal Code1995 (Cth).

2. At the commencement of the hearing of pre-trial arguments on 16 July 2018 an issue of disclosure arose in respect of documents apparently held by the Australian Security Intelligence Organisation (“ASIO”), following which documents in a redacted form were disclosed by the Crown and provided to counsel for each of the accused. In each case, those documents made reference to assessments that both accused had “distanced” themselves from adherence to any extremist ideology. That assessment obviously sparked the interest of those acting for each of the accused, particularly in relation to the content of documents which led to such assessments being made.

3. As a consequence, calls were made on behalf of each accused for the production of the unredacted versions of those documents and others which led to those assessments. Upon those calls being made, counsel for ASIO indicated that a claim for public interest immunity would be made in relation to some of the material. It is that claim which I am now asked to resolve.

4. In respect of the accused HG, there are discrete claims for public interest immunity in respect of particular parts of one document which has been referred to as the “HG Section 17 Report”, a redacted copy of which has been provided to the accused’s representatives. In addition, what might be described as a “blanket” claim has been made over the entirety of a number of other documents. That claim extends to disclosure of the number of documents, their content, and any description of their nature. Those documents apparently formed the basis of the assessment, contained in the HG Section 17 Report, that as at 16 June 2016, the accused HG:

1. was appearing to de-radicalise, and disassociate himself from individuals who were of particular security concern;

2. had a deteriorating relationship, and diminishing contact, with his step-father Hamdi Alqudsi (a person convicted and sentenced to a term of imprisonment in respect of offences contrary to the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)); and

3. had a changing, and likely “softening”, ideology, to the extent that he no longer supported Islamic extremist organisations.

5. In respect of WE, two documents referred to in the submissions as the “WE Warrant Documents” have been provided to the accused’s representatives in a redacted form. A similar approach has been taken by WE’s representatives in terms of seeking unredacted copies of those documents. The representatives of WE have also sought production of a number of other documents which have been referred to as the “WE Unspecified Documents”. Production of those documents has been sought on the basis that the assessments in the WE Warrant Documents indicate that as at 16 June 2016, WE’s behaviour was consistent with his having moderated his ideology, to the point where he may no longer be actively supportive of Islamic extremist organisations, and may have disengaged from any associates who were of security concern. The representatives of WE have sought production of the WE unspecified documents in an unredacted form so as to ascertain the basis on which those particular assessments were made. A public interest immunity claim is made over the redacted parts of the WE Warrant Documents, as well as the WE Unspecified Documents.

6. The claim for public interest immunity which have been made is governed by the provisions of s 130 of the Evidence Act 1995 (NSW) (“the Act”) which is in the following terms:

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

(a) prejudice the security, defence or international relations of Australia, or

(b) damage relations between the Commonwealth and a State or between 2 or more States, or

(c) prejudice the prevention, investigation or prosecution of an offence, or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a) the importance of the information or the document in the proceeding,

(b) if the proceeding is a criminal proceeding--whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e) whether the substance of the information or document has already been published,

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant--whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.

7. Generally speaking the terms of s 130 mirror the common law position set out in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 38 and Conway v Rimmer [1968] AC 910 at 940.

8. The Court is given a power under s 133 of the Act to inspect the documents for the purposes of determining the claim. Prior to the proceedings commencing this morning I received a folder of material containing the entirety of the documents in their unredacted form, together with an affidavit in support of the claim for public interest immunity sworn by the Acting Director-General of Security. I have read the entirety of that material and in doing so have exercised the power conferred upon me by s 133 of the Act.

9. I have had particular regard to the affidavit of the Acting Director-General which has been provided to me on a confidential basis for the purpose of determining the claim, but which has not been provided to the parties. The practice of providing such an affidavit to the Court, but not to the other parties, is a well‑accepted one in an application such as the present: R v Meissner (1994) 76 A Crim R 81 at 85; National Crime Authority v Gould (1989) 90 ALR 489.

10. In assessing the confidential affidavit I am bound to give considerable weight to its contents. That is not to suggest that such contents are determinative of the claims which are made. Clearly, that is not so. However, there is a strong body of authority which establishes that it is necessary to give full weight, and proper respect, to the opinions advanced by a person in authority such as the Acting Director-General of Security: R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508 at 32; 37.

11. The terms of s 130 require me to conduct a balancing exercise. Sections 130(4) and 130(5) of the Act set out the matters which are to be taken into account in doing so. In assessing the material the subject of the present application, and in determining where the balance lies, I have had regard to each of those matters to the extent that they are applicable.

12. As general proposition, and without disclosing its contents, the material which is the subject of the claims falls squarely within a category of material, the disclosure of which Courts have consistently recognised may harm the public interest: Cain v Glass (No. 2) (1985) 3 NSWLR 230 at 233 per Kirby P (as his Honour then was) and at 247 per McHugh JA (as his Honour then was).

13. It is also of some significance that the provision of the material in its redacted form allows each of the accused, subject to any issues which might be raised by the Crown, to adduce evidence of the respective assessments which have been made, which are prima facie favourable to each of them. Having read the material over which the claim is made, I have formed the view that the underlying reasons for those assessments would add little in terms of forensic value to the case for either of the accused. In any event, I am satisfied that the balancing exercise which I am required to carry out weighs heavily in favour of the material in question not being disclosed. For obvious reasons it would be inappropriate for me to articulate the basis for coming to that conclusion in any greater detail than I already have. Accordingly, the order that I make is that the claim for public interest immunity made on behalf of ASIO over the material is upheld.

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Decision last updated: 15 April 2020