R v Khaled Khayat; R v Mahmoud Khayat (No 15)

[2020] NSWSC 1451

Supreme Court

New South Wales

Medium Neutral Citation:

R v Khaled Khayat; R v Mahmoud Khayat (No 15) [2020] NSWSC 1451

Hearing dates:

On the papers

Date of orders:

15 October 2020

Decision date:

20 October 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Order 18 of the Court’s orders dated 11 March 2019 be amended to read:

These orders apply throughout the Commonwealth of Australia for a period of 25 years from the date of these orders.

(2)   Order 17 of the Court’s orders dated 22 March 2019 be amended to read:

These orders apply throughout the Commonwealth of Australia for a period of 50 years from the date of these orders.

Catchwords:

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Variation of earlier orders

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

R v KhaledKhayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817

Category:

Procedural and other rulings

Parties:

Commissioner of Police (First applicant)
Director-General of Security (Second applicant)

Representation:

Solicitors:
Australian Government Solicitor (Applicants)

File Number(s):

2017/236820; 2017/236835

Judgment

Introduction

1. On 11 March 2019, in relation to the trial of Khaled and Mahmoud Khayat, I made orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) to protect against disclosure material which was to be elicited in the trial about the making of a bomb and a poisonous gas (the 11 March 2019 orders). I subsequently made further orders under the Act on 22 March 2019 to prevent disclosure of the identity of persons from whom ASIO obtained information (the 22 March 2019 orders). Both sets of orders were made “until further order” on the basis that it was impossible to determine the necessary duration.

2. Khaled Khayat was convicted on 1 May 2019 after the jury returned its verdict. Mahmoud Khayat was convicted at a further trial on an amended indictment. Both offenders were sentenced on 17 December 2019: R v Khaled Khayat; R v Mahmoud Khayat (No 14) [2019] NSWSC 1817.

3. On 2 September 2020, the Commissioner of Police (the Commissioner) and the Director-General of Security (the Director-General) approached the Court for the 11 March 2019 orders and the 22 March 2019 orders to be varied. They did so for two reasons. First, there has been a change in the legal representation of at least one of the offenders. The effect of one of the proposed variations was to include the new representatives in the category of persons to whom disclosures could be made. Secondly, an application was made by the Commissioner and the Director-General (the applicants) on the basis of a recent decision of the Court of Appeal, DRJ v Commissioner of Victims Rights [2020] NSWCA 136, which was handed down on 8 July 2020, in which the Court questioned the appropriateness of orders under the Act, apart from interim orders, being made “until further order”. I apprehend that this was done as part of the applicants’ responsibilities as model litigants. The applicants informed the offenders of the proposal to vary the orders. The offenders did not wish to be heard against the variation. Although the correspondence between this Court and the applicants has been copied to the offenders’ legal representatives, no submissions have been made by them.

4. The applicants proposed that the 11 March 2019 and 22 March 2019 orders be varied such that they would apply throughout the Commonwealth for a period of 99 years from the date of the order for variation.

5. I was not satisfied that it was necessary that the orders apply for a period of 99 years and invited the applicants to put on written submissions as to why this period was necessary.

6. The Commissioner sought to justify the duration of 99 years on the basis that terrorism would be likely to continue for at least 99 years. It was submitted that, for this reason, information about the making of a bomb that would bring down an aeroplane and the making of poisonous gas ought be suppressed. While I accept that terrorism, as that term is broadly defined to include the use of violence by non-States to achieve political ends, is likely to continue for the foreseeable future, it does not follow that the information ought be suppressed for that period. Experience shows that techniques change with technological advances and a terrorist act which might have had huge impact in 2013 would have little impact in 2040. Further, the information covered by the suppressed material is widely available on the internet: what is sought to be protected is the validation of that information by reliable sources. The evidence covered by the orders made under the Act includes explanations by a Commonwealth chemist as to the manufacture of the poisonous gas and by a bomb technician as to the viability of a bomb constructed in the way in which it was constructed by the offenders.

7. I informed the representatives for the Commissioner that I was satisfied that the orders ought be varied to continue for 25 years from the date of the variation. This duration was acceptable to the Commissioner who did not want to be heard further on the question.

8. The Director-General contended that a term of 99 years was necessary to protect the processes and techniques used by ASIO in Australia’s national interest. It was argued, in written submissions, which were supported by confidential affidavits, that it is central to ASIO’s efficacy that its operations are secret and that, if its methods were made public, ASIO would be weakened and that persons might be the subject of violent reprisal. There could also be an adverse impact on Australia’s international relations. It is evident from political history that alliances change over the years and what was once highly confidential becomes a matter of common knowledge and what was once crucial to Australia’s interest as a nation becomes of solely historical importance. On this basis I indicated that I was persuaded that the orders in relation to the material which the Director-General sought to protect ought have a specified duration of 50 years. My preliminary view was communicated to the Director-General’s legal representatives, who indicated that they did not wish to be heard against my preliminary view.

9. For these reasons, I made the following orders on 15 October 2020:

1. Order 18 of the Court’s orders dated 11 March 2019 be amended to read:

These orders apply throughout the Commonwealth of Australia for a period of 25 years from the date of these orders.

2. Order 17 of the Court’s orders dated 22 March 2019 be amended to read:

These orders apply throughout the Commonwealth of Australia for a period of 50 years from the date of these orders.

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Decision last updated: 20 October 2020