R v Khaja (No 1) - [2017] NSWSC 1578

Supreme Court

New South Wales

Medium Neutral Citation: R v Khaja (No 1) [2017] NSWSC 1578
Date of orders: 13 October 2017
Decision date: 13 October 2017
Jurisdiction: Common Law
Before: Fagan J
Decision:
Orders made at [33].

Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Cases Cited: BUSB v R [2011] NSWCCA 39
R v Murphy [1990] NI 3I6
Category: Procedural and other rulings
Parties: Regina (Crown)
Tamim Khaja (accused)
Representation:
Counsel:
Ms Trish McDonald/Mr William Fitzsimmons (Crown)
Mr Gregory Scragg (accused)
Ms Kristina Stern SC/Ms Sophie Callan (applicant)
Solicitors:
Mr Carmelo Ragusa, Commonwealth Director of Public Prosecutions (Crown)
Mr Moustafa Kheir, Birchgrove Legal (accused)
Mr Matthew Varley, Australian Government Solicitors Office (applicant)

File Number(s): 2016/151874

Judgment

In connection with an impending criminal trial the Court has before it an application of the Commissioner of the Australian Federal Police and an application of the Commissioner of the New South Wales Police for orders to protect the identities of certain Crown witnesses. The proposed orders would include the taking of their evidence on audio visual link and in closed court.

The charges on the indictment

The accused has been indicted on two counts of offences contrary to provisions of Pt 5.3 of the Criminal Code (Cth). The first count is that between 11 and 18 May 2016 he did acts in preparation for or planning of a terrorist act. In broad terms the Crown’s allegation is that the accused undertook planning and/or preparation for a violent attack to be made upon either a Commonwealth Defence Forces facility in Western Sydney or on the Parramatta Court Complex, in which he would kill many people by gunfire or by detonating an explosive device or both. It is alleged all of this would be in furtherance of the ideological or religious cause of achieving Muslim domination of Australia.
The second charge is that between 20 January 2016 and 28 February 2016 the accused engaged in conduct preparatory to entering a foreign country with the intention of engaging in hostile conduct there. On this count the Crown’s case is that the accused made preparations to travel to Syria to join the organisation known as Islamic State of Iraq and Sham (“ISIS” or “IS”) and to engage in combat as part of that organisation. It is alleged that he was stopped at Sydney Airport.
On the first count the core of the Crown’s evidence will be records of online conversations in which it is alleged the accused expressly described his plans, sought to procure weapons and sought assistance in equipping himself with an explosive suicide belt. There will be evidence of face-to-face meetings at which the subject of the accused carrying out a lethal attack was discussed.

Confidential evidence supporting suppression of witness identity

The Commissioner of the Australian Federal Police seeks to protect the identities of three of the counterparties to these conversations and meetings, who…

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 Khaja (No 1)

Details

AGLC: R v Khaja (No 1) [2017] NSWSC 1578
Case: [2017] NSWSC 1578
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Khaja (No 1) was heard and decided on 13 October 2017. The accused, Tamim Khaja, was facing two charges: one for planning and preparation of a terrorist act and another for engaging in conduct preparatory to entering a foreign country with the intention of engaging in hostile conduct there. The Crown sought orders to protect the identities of certain witnesses, which included taking their evidence via audio-visual link and in a closed court setting.

The legal issues in this case involved determining whether the orders sought by the Crown to protect the identities of the witnesses were appropriate, necessary and balanced against the principles of open justice. The court had to consider the potential risks to the witnesses' safety and the integrity of the investigation if their identities were disclosed.

Justice Fagan, in his decision, found that there was a high risk of the witnesses being recognised by the accused or the public if their identities were not protected. The court considered that the evidence of the three witnesses was critical to the Crown's case and that their safety and the preservation of the police's investigative capabilities were paramount. The court was satisfied that the proposed measures, including taking the witnesses' evidence via audio-visual link and in a closed court, were necessary and proportionate to the risks involved. The court also considered the potential impact on the accused's right to a fair trial and found that appropriate directions to the jury could mitigate any adverse inferences.

The final orders made by the court included taking the evidence of the protected witnesses via audio-visual link in a closed court, restricting the viewing of the screens displaying the witnesses' images to certain authorised personnel, and imposing non-publication orders to protect the witnesses' identities. The court also made orders for the suppression of certain information and the limited disclosure of other sensitive material. The court emphasised the importance of balancing the need for secrecy with the principles of open justice and the rights of the accused.

Orders