R v Khaja (No 2) - [2017] NSWSC 1853

Supreme Court

New South Wales

Medium Neutral Citation: R v Khaja (No 2) [2017] NSWSC 1853
Hearing dates: 13 October 2017
Date of orders: 13 October 2017
Decision date: 13 October 2017
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
Orders made at [9].

Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Law Enforcement and National Security Assumed Identities Act 2010 (NSW)
Category: Procedural and other rulings
Parties: Regina (Crown)
Tamim Khaja (accused)
New South Wales Commissioner of Police (applicant)
Representation:
Counsel:
Ms Trish McDonald/Mr William Fitzsimmons (Crown)
Mr Gregory Scragg (accused)
Mr Robin Bhalla (applicant)
Solicitors:
Mr Carmelo Ragusa, Commonwealth Director of Public Prosecutions (Crown)
Mr Moustafa Kheir, Birchgrove Legal (accused)
Crown Solicitors Office (applicant)

File Number(s): 2016/151874

Judgment

These reasons should be read together with the judgment of the Court of today’s date, in these proceedings, R v Khaja (No 1) [2017] NSWSC 1578in which I have given reasons for making certain orders on the application of the Commissioner of the Australian Federal Police (“AFP”) designed to protect and maintain confidential the identity of three witnesses whom the Crown intends to call in the trial of Tamim Khaja listed to commence on 30 October 2017.
The New South Wales Commissioner of Police has applied by notice of motion filed 6 October 2017 for similar orders to protect the identity of a fourth witness who is an officer of the New South Wales Police who works in an undercover capacity. This application is supported by an open affidavit of Acting Assistant Commissioner Gregory Rolph sworn 6 October 2017. That affidavit has annexed to it the statement of the witness according to which his evidence-in-chief is intended to be led by the Crown in the trial. That affidavit and its annexures have been provided to the defence. The application is also supported by a confidential affidavit of the same witness also sworn 6 October 2017, and a further confidential affidavit of a senior officer of another government agency.
I have had regard to all of that material which satisfies me that for the same reasons as those which I gave in relation to the three witnesses who are the subject of the AFP Commissioner’s application, orders should be made to protect and maintain confidentiality for the identity of this witness. That is in the interests of protecting his personal safety and also in the interests of not harming, incapacitating or impeding the investigatory work of the New South Wales Police and other law enforcement agencies.
The relevant witness had two meetings face-to-face with the accused, according to the Crown case. One of those meetings involved sitting on a park bench and sitting in a car. It lasted over an hour and a half. The second meeting two days later lasted no more than an hour.
The accused opposes the orders sought which are for the taking of the evidence of this witness in closed court and by audio visual link and without the accused having the…

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 2)

Details

AGLC: R v Khaja (No 2) [2017] NSWSC 1853
Case: [2017] NSWSC 1853
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Khaja (No 2) involved the application of the New South Wales Commissioner of Police to protect the identity of a fourth undercover witness in the trial of Tamim Khaja, who is charged with various offences. The application sought similar orders to those made previously concerning three witnesses protected by the Australian Federal Police, to safeguard the witness's safety and to avoid hindering ongoing investigations. The court had to determine whether the orders should be made, given the potential risk to the witness and the significant detriment to law enforcement if the witness's identity was disclosed.

The legal issues before the court included the jurisdiction to make such orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) and the Law Enforcement and National Security Assumed Identities Act 2010 (NSW). The court also had to consider the balance between the necessity to protect the witness and the potential inutility of the orders if the accused could already recognise the witness. The court concluded that the potential risk to the witness and the impact on law enforcement capabilities outweighed the speculative inutility, and therefore, the court had the authority to make the orders sought.

The court granted the application and made several orders to protect the identity of the witness, including permitting the witness to give evidence under a pseudonym, prohibiting the disclosure of the witness's real identity, and requiring the evidence to be given via an encrypted audiovisual link from a remote location. The court also made orders to suppress the transcript of the proceedings and to prohibit publication of certain terms of the orders. The court's decision was based on the necessity to protect the witness and to prevent harm to national security interests.

Orders