R v Khayat (No 2) - [2019] NSWSC 1315

Supreme Court

New South Wales

Medium Neutral Citation: R v Khayat (No 2) [2019] NSWSC 1315
Hearing dates: 11 March 2019
Decision date: 11 March 2019
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Orders made in accordance with short minutes of order

Catchwords:
SUPPRESSION AND NON-PUBLICATION ORDER – suppression orders necessary to protect the sensitive information in the interests of national security – orders necessary to protect the safety of members of the public – calculus of risk approach – orders made
CLOSED COURT ORDERS – orders in the interests of Australia’s national security – orders made
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 12
Criminal Code Act 1995 (Cth), ss 11.5, 93.2, 101.6
Cases Cited: AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
Hamzy v R [2013] NSWCCA 156
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403
Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36
Category: Procedural and other rulings
Parties: Regina
Mahmoud Khayat (Accused)
Khaled Khayat (Accused)
Representation:
Counsel:
L Crowley QC/Y Shariff (Crown)
R C Pontello (Accused Khaled Khayat)
B Walmsley QC (Accused Mahmoud Khayat)
T Glover (Australian Federal Police)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Birchgrove Legal (Accused Mahmoud Khayat)
Matouk Joyner Lawyers (Accused Khaled Khayat)

File Number(s): 2017/236820; 2017/236835

Judgment

Introduction

By notice of motion filed on 4 March 2019 the Commissioner of the Australian Federal Police (the Commissioner) seeks suppression orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) or in the exercise of this Court’s inherent jurisdiction as well as closed court orders pursuant to s 93.2 of the Criminal Code Act 1995 (Cth) and ancillary protective orders. The application is supported by an affidavit sworn on 6 March 2019 by Ian McCartney who is an Assistant Commissioner of the Australian Federal Police (AFP) and an affidavit of sworn on 7 March 2019 by Heather Cook, a Deputy Director-General of the Australian Security Intelligence Organisation (ASIO). Ms Cook had deposed to her agreement with Mr McCartney’s affidavit, including his reasons for seeking the orders.
These orders are sought in the context of criminal proceedings against Khaled Khayat and Mahmoud Khayat who stand charged on indictment with conspiracy to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code. The relevant acts are alleged to involve the use of an “improvised explosive device” or an “improvised chemical dispersal device”.

The application

In advance of the hearing of the notice of motion, I was provided with the notice of motion; written submissions made on behalf of the Commissioner; and two copies of Mr McCartney's affidavit and Ms Cook’s affidavit. The copies of the affidavit were unredacted. Passages highlighted in green were made available only to this Court. The passages highlighted in…

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 Khayat (No 2)

Details

AGLC: R v Khayat (No 2) [2019] NSWSC 1315
Case: [2019] NSWSC 1315
Decision Date: 11 March 2019

CaseChat Overview and Summary

The case of R v Khayat (No 2) involved the accused, Mr Khayat, who was on trial for terrorism offences. The matter was heard in the Supreme Court of Victoria. The central issue was whether suppression and non-publication orders should be made to protect sensitive information in the interests of national security and the safety of the public. The prosecution argued that the orders were necessary to prevent the disclosure of information that could compromise national security and endanger the public. The court was tasked with determining whether such orders were warranted under the relevant provisions of the law.

In examining the legal issues, the court considered the potential impact of publishing the information on national security and the safety of the public. It adopted the calculus of risk approach, weighing the risks associated with disclosure against the public interest in open justice. The court found that the sensitive information at issue was highly classified and that the risk of disclosure was significant. Given the potential consequences, the court determined that the suppression and non-publication orders were necessary to safeguard national security and the public's safety.

Following this analysis, the court granted the suppression and non-publication orders. It concluded that the sensitive information was of such a nature that its disclosure could cause serious harm, and that the orders were essential to prevent such harm. The court also found that the closed court orders were necessary in the interests of Australia’s national security. The orders effectively prevented the publication of details that could have compromised sensitive operations and endangered the public.

Orders