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)

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).
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.
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.
In respect of the accused HG, there are…

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 1746
Decision Date: 20 July 2018

CaseChat Overview and Summary

In the case of R v HG; R v WE (No 11), the appellants, HG and WE, were facing charges related to the commission of acts in preparation for a terrorist act or acts. The nature of the dispute involved public interest immunity claims regarding the disclosure of certain evidence, specifically whether the evidence should be excluded due to its potential impact on matters of state. The matter was heard in the High Court of Australia. The central legal issues revolved around the balancing exercise required to determine whether the public interest in maintaining the confidentiality of certain information outweighed the forensic value of the evidence to the accused.

The court was tasked with considering the extent to which the disclosure of the evidence would be of little forensic value to the accused, and whether the balancing exercise should result in the exclusion of the evidence. The court emphasised the importance of protecting sensitive information that could potentially impact national security or state interests. In this case, the court found that the disclosure of the evidence would be of little forensic value to the accused, and the balancing exercise tended against disclosure. Consequently, the claims for public interest immunity were upheld, leading to the exclusion of the evidence.

The reasoning of the court was grounded in the principle that certain information, particularly that related to matters of state, should be protected to safeguard national security interests. The court acknowledged the gravity of the charges against the appellants but determined that the public interest in maintaining the confidentiality of the evidence outweighed the need for disclosure. The court's decision reflected a careful consideration of the potential impact of the disclosure on national security and the limited forensic value to the accused. As a result, the claims for public interest immunity were upheld, and the evidence in question was excluded from the trial.

No specific final orders were noted in the text provided, but typically, the court would outline the next steps in the legal process following its decision to uphold the public interest immunity claims and exclude the evidence.

Orders