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

1. 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.

2. 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

3. 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 yellow have been made available to the parties to the proceedings. Redacted versions of the affidavits, which omit the yellow and green highlighted portions, will be provided by the Commissioner to be kept on the Court file. In order to protect from disclosure the highlighted portions, which I shall refer to collectively as “the sensitive information”, I propose, following the delivery of these reasons, to return copies of those documents to Mr Glover, who appears on behalf of the Commissioner, for safe-keeping by the Australian Government Solicitor.

4. I note that Mr Pontello, who appears on behalf of Khaled Khayat, and Mr Walmsley QC, who appears on behalf of Mahmoud Khayat, have indicated that their respective clients do not oppose the orders sought in the notice of motion. Nor does the Crown oppose the orders sought.

The evidence in support of the application

5. The information sought to be suppressed relates, in general terms, to techniques which it is alleged were used by the accused to make weapons, including an explosive device, and the qualities and potential efficacy of such weapons.

6. Mr McCartney deposed in his affidavit as to his concern that prospective terrorists might be inspired to plan and commit attacks similar to that which it is alleged the accused planned to commit. He opined that most, if not all, potential Islamic terrorists in Australia would be aware of the plot with which the Crown alleges the two accused were involved and would be likely to take a strong interest in any reporting of the trial. Mr McCartney deposed that the intricacies of the plot and its precise methodology could not be classified as a “simple attack” such as would not warrant suppression. He described the combination of factors in the present case as amounting to “extraordinary circumstances”. He emphasised the risk posed by the accuseds’ alleged conduct, the intent and ultimate effect of which was not discovered until 11 days after their alleged attempt to smuggle the explosive device onto a plane.

7. I am satisfied that it is necessary to protect information relevant to the manufacture and use of such weapons, particularly where, as here, the evidence might fill in gaps in the knowledge or expertise of prospective terrorists.

8. I accept that there would be a very real and substantial risk to public safety if the sensitive information were obtained by prospective terrorists. I also accept Mr McCartney’s evidence that the AFP has been assisted by the Federal Bureau of Investigation (FBI), which has expressed an interest in the AFP’s obtaining orders to prevent the publication of the sensitive information.

The ambit of the orders

The proposed suppression orders

9. Proposed order 1 seeks suppression orders under the Act in respect of three categories of information: the first relates to information about the method for making the weapons; the second relates to information that tends to reveal specific details of the alleged method for using the weapons; and the third relates to information that tends to reveal specific details of the testing of the weapons which has been undertaken by the authorities.

10. Proposed order 2 is ancillary to proposed order 1 and seeks to exempt from the operation of draft order 1 categories of persons necessarily involved in the trial, including the court, the jury, the parties and their legal representatives. This exemption will have the effect that order 1 will not interfere with the conduct of the trial.

The proposed orders to close the court

11. Proposed order 3, which is sought under s 93.2 of the Criminal Code, seeks that the court to be closed for three identified witnesses: Mr Cabot, a forensic chemist; Ms Logan, a crime scene investigator with expertise in the testing and analysis of the weapons; and Mr Knapp, a supervisory special agent with the FBI in the Explosives Unit who is a bomb technician. Mr McCartney deposed to his appreciation that to close the court for the entire proceedings would be inimical to the interests of open justice. He opined that such an extreme step was not necessary because the sensitive information was likely to be concentrated within the evidence of these three witnesses. He deposes that it was sufficient to close the court for their evidence. As referred to above, Ms Cook agrees with Mr McCartney’s analysis.

Proposed orders to defer access to transcripts of oral evidence and other evidence pending consideration by the AFP

12. Proposed orders 4-7 provide for release of transcripts of oral evidence and other materials, including documentary exhibits, to be deferred pending consideration by the AFP as to whether they ought be redacted to prevent disclosure of the sensitive information. The draft orders contemplate eventual release to the public of such material in a redacted form.

Proposed orders restricting access to the court file

13. Proposed orders 8-12 are designed to prevent access to the court file in so far as it contains, or may contain, the sensitive information.

Publication of orders

14. Proposed orders 13 and 14 concern publication of the orders, if made, to ensure that they are brought to the attention of the media and the public.

The power to grant the application for suppression orders

15. A court is to take into account, when deciding whether to make an order under the Act, that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6. The court’s power to make orders, which is conferred by s 7 of the Act, entitles the court to make orders prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party to, or witness in, court proceedings and of information that comprises evidence, or information about evidence, given in proceedings before the court.

16. The grounds for making an order are set out in s 8 of the Act, which relevantly provides:

8   Grounds for making an order

(1)     A court may make a suppression order or non-publication order on one or more of the following grounds:

…

(b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)  the order is necessary to protect the safety of any person,

…

(e)  it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)  A suppression order or non-publication order must specify the ground or grounds on which the order is made.

…

17. The Commissioner relies on the grounds in s 8(1)(b), (c) and (e).

18. The course proposed on behalf of the Commissioner is that the sensitive information will be protected from disclosure but that the trial, apart from the evidence of the three identified witnesses, will otherwise continue in open court. Thus, although there will be some derogation of the principles of open justice, I am satisfied that it will be kept to a minimum in the manner proposed.

Section 8(1)(b) of the Act: that the order is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security

19. I am satisfied, on the basis of Mr McCartney’s and Ms Cook’s affidavits, that it is necessary to make orders 1 and 2 by reason of s 8(1)(b) of the Act: namely, that it is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security. National security could be compromised if the sensitive information were disclosed. The safe travel of airlines between Australia and elsewhere and within Australia is a crucial part of Australia’s national and international security.

Section 8(1)(c) of the Act: that the order is necessary to protect the safety of any person

20. On the basis of Mr McCartney’s and Ms Cook’s evidence, I am also satisfied that, if the sensitive information were available to potential terrorists, there is a risk that it will be used to endanger the safety of, and potentially kill, members of the public. The calculus of risk approach requires the court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person or persons. If the prospective harm is very severe, as in the present case, it may more readily be concluded that the order is necessary even if the risk does not rise beyond a mere possibility. The calculus of risk approach has been endorsed in AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 at [14] (Nettle J); AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 at [56]-[58] (Hoeben CJ at CL, Price and Adamson JJ); Hamzy v R [2013] NSWCCA 156 at [60] (Harrison J) and Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17] (Besanko J).

21. Because of the substantial harm that could be occasioned by use of the sensitive information to kill or maim individuals or groups, I am satisfied that orders 1 and 2 are necessary on the ground in s 8(1)(c) of the Act.

Section 8(1)(e) of the Act: that it is otherwise necessary in the public interest for an order to be made and that the public interest significantly outweighs the public interest in open justice

22. As referred to above, the Commissioner also relied on the ground in s 8(1)(e) of the Act. I do not consider it to be necessary to consider this ground as the grounds in s 8(1)(b) and (c) are ample to support the orders sought.

Whether the orders ought be made

23. Once I am satisfied that the order is necessary, I consider that it ought be made since there is, relevantly, no discretion: Hogan v Australian Crime Commission  (2010) 240 CLR 651; [2010] HCA 21 at [33]; Rinehart v Welker (2016) 93 NSWLR 311; [2011] NSWCA 403 at [48] (Bathurst CJ and McColl JA).

The duration of the orders under the Act

24. The notice of motion seeks an order that proposed orders 1 and 2 apply throughout Australia and “until further order”. In deciding the period for which an order is to operate, I am obliged to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 12(2) of the Act. I am satisfied, on the basis of the material in Mr McCartney’s affidavit, that it is not presently feasible to predict how long the orders need to be in place.

The application to close the court for particular witnesses

25. Section 93.2 of the Criminal Code provides:

93.2   Hearing in camera etc.

(1)     This section applies to a hearing of an application or other proceedings before . . . a court exercising federal jurisdiction . . .

(2)     At any time before or during the hearing, the judge . . . may, if satisfied that it is in the interests of Australia's national security:

(a)     order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

(b)    order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

(c)     make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

(3)     A person commits an offence if the person contravenes an order made or direction given under this section.

Penalty:  Imprisonment for 5 years.

26. The closure of a court is a very serious step which compromises the principle of open justice to a marked degree. As is plain from the wording of s 93.2(2) of the Criminal Code, such a step may only be taken if I am “satisfied that it is in the interests of Australia’s national security” to do so. The foreseeable danger is that someone will piece together the evidence of the three witnesses referred to above to obtain reliable information about bomb-making and seek to use that information to make a bomb to harm particular individuals or members of the general public. While it may be assumed that there is a plethora of recipes on the internet for making bombs, it is in the nature of the internet that accurate, authoritative information cannot readily be distinguished from inaccurate, unreliable dross. Thus potential terrorists may encounter difficulties identifying accurate information on the internet. By contrast, the evidence to be given by experts in a criminal trial is generally (subject to concessions during cross-examination and matters of weight) likely to be reliable and detailed. In the particular circumstances of the present case, I am satisfied that it is in the interests of Australia’s national security that members of the public be excluded from the court while evidence from Mr Cabot, Ms Logan and Mr Knapp is adduced. For these reasons, I am satisfied that it is in the interests of Australia’s national security to make an order in terms of draft order 3.

27. I regard draft orders 4-7 and 8-12 as ancillary to orders 1, 2 and 3. Draft orders 13-14 are designed to assist in the enforcement of the other orders. The orders which permit the transcript and exhibits to be redacted mitigate the derogation from the principles of open justice occasioned by orders 1, 2 and 3. The inherent jurisdiction of the Court includes powers to make orders ancillary to orders under the Act.

Orders

28. I make orders 1-19 in accordance with the short minutes of order which I have initialled and dated. I note the matters set out below orders 12, 14 and 19.

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Decision last updated: 30 September 2019