R v Khazaal - [2006] NSWSC 1353

Reported Decision:
167 A Crim R 565

New South Wales

Supreme Court

CITATION: Regina v Khazaal [2006] NSWSC 1353

HEARING DATE(S): 23/11/06, 24/11/06, 28/11/06, 29/11/06, 30/11/06,

JUDGMENT DATE :
13 December 2006

JUDGMENT OF: Whealy J at 1

DECISION: 1. Order that the Notice of Motion herein be dismissed. I publish my reasons. 2. In relation to the Closed Court hearing, I publish a Confidential judgment. It may be distributed to the parties, other than to the NSW Bar Association and Law Society. It is not to be further disclosed or published without an order by me or another Supreme Court Judge. 3. Stand over the balance of proceedings so that undertakings, in terms agreed between the parties, be given to the Court. 4. I direct that Short Minutes be prepared for this purpose. 5. The proceedings be listed for further mention at 9.30am on Thursday 1 Februaury 2007. 6. Costs of this and the previous motion be reserved for argument. 7. Confidential Exhibits "E", "G", "M" and 8 are to be returned to the tendering parties.

CATCHWORDS: Injunction to restrain lawyers from acting - preserving integrity of judicial process - equitable principles - undertakings to protect confidential information - duty of practitioners in relation to national security information - criminal trial - right of accused to legal representation of his choice

LEGISLATION CITED: ASIO Act 1979
National Security Information (Criminal & Civil Proceedings) Act 2004
International Covenant on Civil and Political Rights
Criminal Code

CASES CITED: Alister v R (1984) 154 CLR 404 at 436
Sankey v Whitlam (1978) 142 CLR 1 at 57
R v Khazaal [2006] NSWSC 1061 25 October 2006
Barwick v The Law Society NSW [2000] 74 ALJR 419 at 11 to 13 and 32 to 64
Smyrnis v Legal Practitioners Board [2003] NSWCA 64 at [16]
Australian Consolidated Press Limited v Morgan & Anor (1965) 112 CLR 483 at 496 per Windeyer J
Selly v Jago (1717) 1 P Wms 389 [24 ER 438
Scarel Ptry Limited v City Loan & Credit Pty Limited (1998) 17 FCR 344 at 348 (Gummow J)
Forest View Nominees Pty Limited v Perpetual Trustees Pty Limited (1998) 193 CLR 154 at [16]
Lest We Forget Pty Limited v Westpac Banking Corporation [2005] 565 ACSR 126 ar [20] per Barrett J
Rondell v Worsley (1969) 1 AC 191 at 274
D'Orta-Ekenaike v Victoria Legal Aid [2005] 79 ALJR 755 at [27]
Dietrich v The Queen (1992) 177 CLR 292 at 317
Emanuele v Emanuele Investmenst (1996) 21 ACSR 83 at 107
Franklin River Oliver Company Limited v Charters Securities Pty Limited [2004] WASC 88 at [25-26]
Grimwade v Meagher, & Ors (1995) 1 VR 446 at 450 and 455
United States v Gonzalez-Lopez No 05-352 [26 June 2006]
Black v Taylor (1993) 3 NZLR 403
Kallinicos & Anor v Hunt & Ors [2005] 64 NSWLR 561
Spincode v Look Software Pty Limited [2001] 4 VR 501 at [58]
T.R. Flanagan Smash Repairs Pty Limited v Jones (1999) FCA 1391 at (16-18) per Hely J

PARTIES: Regina v Belal Saadallah Khazaal

FILE NUMBER(S): SC 2005/1095

COUNSEL: Mr P. Willee QC, Mr T. Begbie - Commonwealth Crown
Mr G. Bellew SC - Commonwealth DPP
Mr Boulten SC, Mr A. Martin - Respondent Peter Lange
Mr S. J. Gageler SC, Mr J. K. Kirk - Responent Adam Houda
Mr M. Leeming SC, Ms A. Mitchelmore - NSW Bar Association & NSW Law Society
Mr P. Lange - Accused

SOLICITORS: Australian Government Solicitors - Commonwealth Crown
Commonwealth DPP Solicitors
Greg Walsh & Co Solicitors - Respopndent Peter Lange
Gilbert & Tobin Solicitors - Respondent Adam Houda
Adam Houda Solicitor - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

WEDNESDAY 13 December 2006

2005/1095 - REGINA v Belal Saadallah KHAZAAL

JUDGMENT - Application to restrain counsel and solicitor
(Applicant – Commonwealth of Australia: Respondents – Messrs Lange & Houda)

1 HIS HONOUR: This is the hearing of a Motion brought on behalf of the Commonwealth of Australia. The applicant has sought the following orders: -

“1. Peter Lange and Adam Houda be restrained from further representing or acting for the accused Belal Khazaal in these proceedings;

2. Peter Lange and Adam Houda be prohibited from:

2.1 disclosing any information contained in the document entitled Affidavit for a warrant to search premises produced by the NSW Local Court pursuant to a subpoena issued on 20 April 2006 in these Proceedings (“the Affidavit”) to any person whatsoever, including to other legal representatives for Mr Khazaal or to any persons assisting those representatives;

2.2 using the information contained in the Affidavit for any purpose whatsoever, including using it either expressly or implicitly in the preparation of argument or the drafting of submissions; and

2.3 copying, recording or reproducing the information contained in the Affidavit in any form whatsoever.

3. Any other orders that the Court thinks appropriate.”

2 For convenience, I will refer in this judgment to the applicant as “the Commonwealth”. I shall refer to Messrs Lange and Houda as “the Respondents” where I am mentioning them jointly. I shall, however, refer to them by name when discussing them in an individual capacity.

3 On the hearing of the motion, the Commonwealth was represented by Mr Willee QC and Mr Begbie of junior counsel. The accused was represented by Mr Lange instructed by Mr Houda. The Crown was represented by Mr G. Bellew SC. The respondents were each represented by separate counsel. Mr Boulten SC appeared for Peter Lange. Mr Gageler SC and Mr Kirk appeared for Adam Houda.

4 I granted leave to Mr Leeming SC to appear on a provisional basis for the New South Wales Bar Association and the Law Society of New South Wales.

The general background

5 It may be helpful if I say something as to the general background to explain the way in which the present application arises. On 2 September 2005, Mr Khazaal pleaded not guilty to two charges: the first was a charge that he made a document between 20 and 23 September 2003, namely, a book, connected with preparation for, the engagement of a person in, or assistance in a terrorist act, knowing of that connection. The second charge was that between 22 September 2003 and May 2004, the accused incited the commission by others of an offence, namely an offence of engaging in a terrorist act, contrary to s 101 of the Criminal Code.

6 Adam Houda is the solicitor for Mr Khazaal in the trial. Mr Peter Lange is junior counsel briefed to appear on behalf of Mr Khazaal at his trial.

7 In 2004, the Australian Federal Police (“AFP”) took part in an investigation into the activities of the accused. It was this investigation that resulted in the accused being charged with the two offences for which he is to stand trial. On 5 May 2004, an affidavit for a warrant to search premises was sworn by Federal Agent Benjamin Bynon of the AFP. The Warrant Affidavit, as I shall call it, sought the issue of a search warrant to enable a search of premises at 17 Wangee Road, Lakemba. It extended also to the search of a motor vehicle YBL-609. The Warrant Affidavit was provided to the Downing Centre Local Court of New South Wales and a search warrant was issued. As I understand it, the search warrant was executed by the police and certain documents and material were seized.

8 According to Deputy Commissioner Lawler, the Warrant Affidavit was originally retained in a sealed envelope bearing, as I understand it, official AFP document seals. Initially, it was retained by the Downing Centre Local Court. On 20 April 2006, however, a subpoena was issued out of the Supreme Court of New South Wales on behalf of the accused. It was as a result of this subpoena that the Downing Centre Local Court produced to the Registry of the Supreme Court a copy of the Warrant Affidavit. (There is no explanation as to why a copy was produced or as to where the original may now be found). The document seems to have been produced in an unmarked envelope. On 3 May 2006 Kirby J, who had been designated as the trial Judge in the matter, made an order permitting inspection of the Warrant Affidavit by the respondents. They did so in their capacity as junior counsel and instructing solicitor respectively for the accused. His Honour no doubt assumed, as is commonly the case, that the access sought was general and unopposed. It appears that no one brought to the Judge’s attention that the material to be inspected might contain confidential matters.

9 As I understand it, the Warrant Affidavit was then inspected in the Supreme Court Registry by Mr Lange at a time when he was accompanied by Mr Houda. There is no need for me, at this point, to go to the details of the circumstances surrounding the inspection. It is sufficient to say that those facts and circumstances, whatever be their content, comprise the basis of the present application that has been made on behalf of the Commonwealth seeking to exclude the respondents as legal representatives of the accused at his trial.

An overview of the arguments advanced on behalf of the Commonwealth

10 Let me, at the outset, put the arguments of the Commonwealth in very general terms. I do this so that the nature of the proceedings will be properly revealed.

11 The platform for the Commonwealth’s application is the proposition that the material in the Warrant Affidavit is requiring of protection. That this is so arises from the confidential affidavits of the Director-General of Security and the Deputy Commissioner of the AFP. These are exhibits in these proceedings, as they were in an earlier motion brought by the present respondents seeking access for their legal representatives to the Warrant Affidavit and the confidential affidavits. There is no doubt that, in general terms, this aspect of the Commonwealth’s argument in the present application is well founded. There is no need for me to repeat the detailed reasons I gave in my decision of 25 October 2006. In that decision, I made an assessment of the National Security sensitivity of the information in the Warrant Affidavit and, as a consequence, refused access to the legal representatives. Not all the information in the Warrant Affidavit, however, is security sensitive to an equal degree. Obviously, some matters are much more significantly related to national security than others. As will later appear, I shall have to make some value judgments in this regard. For the moment however, I am content to say that, in general terms, the material in the Warrant Affidavit demands protection to a substantial degree. Indeed, although the legal representatives for the respondents were not given access to the material, they accepted for the purposes of the present application that this was likely to be so.

12 I should mention for completeness that Mr Burbidge QC and Mr Sheller appeared at the outset of the application for Mr Lange, although they later withdrew from the proceedings. They informed me that an appeal had been lodged against my previous decision of 25 October 2006. Whether there is an intention to proceed with the appeal is not known to me. It was my view that the present application should proceed and I declined to grant Mr Burbidge QC an adjournment. It was at that stage that he and Mr Sheller withdrew from the proceedings. Mr Lange was fortunate that, shortly afterwards, experienced counsel, Mr Boulten SC, accepted a brief to appear on his behalf and subsequently appeared throughout the hearing of the motion. Mr Boulten SC did not renew any application for an adjournment or seek a stay of the present application.

13 As I have said, the Commonwealth’s case rests upon the premise that there is a clear need to protect the information in the Warrant Affidavit. The Commonwealth, in that context, put two major arguments: first, the need to protect the national security information is at such a high level that the undertakings which have been given by the respondents (and other undertakings they have proffered to the Court) will not be sufficient to protect the situation. This first argument, in turn, raises the spectre of inadvertent disclosure. It focuses also upon the question whether the respondents have sufficient appreciation of their obligations to the Court, the Commonwealth and the public in relation to national security information so that the undertakings may be considered to be of sufficient integrity. Secondly, the Commonwealth argues that there is a need to protect the integrity of the judicial process. It submitted that the respondents have seriously failed to exercise the necessary caution and vigilance in relation to the access they obtained to the Warrant Affidavit; and that this was so to such an extent that a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that each be restrained from further acting in the trial of the accused.

Undertakings given and orders made by the Court to protect confidentiality of sensitive material

14 Immediately after the Warrant Affidavit material had been inspected in the Supreme Court Registry, undertakings were sought from the respondents to protect the information from further disclosure. On 4 May 2006 written undertakings were given in the following terms: -

“Until further order of the Court you will not -

(a) disclose any information contained in the Affidavit to any person whatsoever, including to Mr Khazaal or to other legal representatives for Mr Khazaal, or to any persons assisting those representatives;

(b) use the information either directly or indirectly for any purpose whatsoever, including using it either expressly or implicitly in the preparation of argument or the drafting of submissions; and

15 The matter was then listed before Kirby J on Friday, 5 May 2006 at 9.30am. This brief hearing resulted in the Court making a number of orders. There was no opposition, in general terms, to the orders that were made. Those orders were as follows: -

“I make the following orders:

1. Until further order Peter Lange and Adam Houda be prohibited from:

(a) disclosing any information contained in the document entitled Affidavit for a warrant to search premises produced by the NSW Local Court pursuant to a subpoena issued on 20 April 2006 in these Proceedings (“the Affidavit”) to any person whatsoever, including to other legal representatives for Mr Khazaal or to any persons assisting those representatives;

(b) using the information contained in the Affidavit for any purpose whatsoever, including using it either expressly or implicitly in the preparation of argument or the drafting of submissions; and

2. The pre-trial application listed on 11 May 2006 is vacated.

3. Matter to be listed for mention before Kirby J at 9.30am on Friday 26 May 2006.

4. The Affidavit subpoenaed from the NSW Local Court be:

(a) placed in a sealed envelope marked “Not to be opened except by Order of Justice Kirby”

(b) stored in a B-class safe; and

16 The undertakings given inter-partes, and the orders made by Justice Kirby, have been in force since May 2006. There is no suggestion that there has been any breach of or departure from the terms of those undertakings and orders. For completeness sake, I should mention that each respondent has, through his counsel, proffered undertakings to this Court, in addition to the undertakings given to the Commonwealth.

Principles of law applicable to the issues

17 The principles of law applicable to the resolution of the issue in the present matter are not in issue. It will be sufficient if I state those principles briefly:-

The protection of national security information

18 There is no doubt that national security forms a category of public interest of special importance (Alister v R (1984) 154 CLR 404 at 436). Documents concerning defence secrets (and diplomatic relationships with foreign governments) are regarded as archetypes of public interest immunity claims (Sankey v Whitlam (1978) 142 CLR 1 at 57). See also my decision in R v Khazaal [2006] NSWSC 1061 25 October 2006 at [paras 29 to 32] as to the general importance of protecting national security information.

Undertakings

19 The undertakings which have been given, and those which have been proffered by each of the respondents before me, are important in the assessment of the issue as to whether the relief claimed by the Commonwealth in these proceedings is necessary. It will be recalled that these proceedings relate to the Court’s inherent power and jurisdiction to protect confidential information and to ensure the integrity of the judicial process. It is no part of this application that the Court is, in any way, exercising the Supreme Court’s inherent disciplinary jurisdiction and powers. Indeed, although issues of professional integrity arise indirectly, this is not a matter where, strictly speaking, there is any need to ascertain whether there has been professional misconduct or unsatisfactory professional conduct. There is a statutory scheme for investigating and disciplining legal practitioners. There is as well a specialist tribunal and well-defined roles for the Legal Services Commissioner and professional bodies (Barwick v The Law Society NSW [2000] 74 ALJR 419 at 11 to 13 and 32 to 64). Secondly, the inherent disciplinary power of the Court is allocated to the Court of Appeal: Part 65A Rule 2(1); Smyrnis v Legal Practitioners Board [2003] NSWCA 64 at [16].

20 An undertaking given to the Court is equivalent to an injunction. Observance of it may be enforced in the same way as an injunction is enforced. In New South Wales, a motion for attachment has for long been the process adopted against an individual who disobeys an injunction or breaks his undertaking (Australian Consolidated Press Limited v Morgan & Anor (1965) 112 CLR 483 at 496 per Windeyer J).

21 In circumstances where it is necessary to consider the effect of formal undertakings having been given, it is also appropriate to note that Equity will not grant relief which is lacking in utility. Cowper LC said in Selly v Jago (1717) 1 P Wms 389 [24 ER 438] that: -

“Equity like nature, will do nothing in vain”.

22 For modern instances, see Scarel Pty Limited v City Loan & Credit Pty Limited (1998) 17 FCR 344 at 348 (Gummow J); Forest View Nominees Pty Limited v Perpetual Trustees Pty Limited (1998) 193 CLR 154 at [16]; Lest We Forget Pty Limited v Westpac Banking Corporation [2005] 565 ACSR 126 at [20] per Barrett J.

The accused’s right to legal representation of his choice

23 As Mr Leeming SC submitted, the right to representation of one’s choice, in the case of a barrister, may be seen as a complement of the “cab rank” rule, whose importance is undoubted: see Rondell v Worsley (1969) 1 AC 191 at 274; D’Orta-Ekenaike v Victoria Legal Aid [2005] 79 ALJR 755 at [27]; Dietrich v The Queen (1992) 177 CLR 292 at 317.

24 In Emanuele v Emanuele Investments (1996) 21 ACSR 83 at 107, Debelle J said: -

“It is a very serious step to deprive a party of the counsel of his choice”.

25 More recently, in Franklin River Olive Company Limited v Charters Securities Pty Limited [2004] WASC 88 at [25-26], Pullin J said: -

“It is undoubtedly a serious step to deprive a party of counsel or solicitors of that party’s choice…While it is a serious step to deprive a party of counsel and solicitor of choice, the Court will do so, if necessary.”

26 These two authorities were concerned with civil litigation. See also the decision of Mandie J in Grimwade v Meagher, & Ors (1995) 1 VR 446 at 450 and 455. In the rather unusual circumstances of that case, the application for an injunction was allowed. The Judge however, emphasised the “unique, extraordinary and highly exceptional circumstances” of the case.

27 The right to selection of legal representation of one’s choice in criminal proceedings is equally fundamental and important. The right is reflected, for example, in Art 14(3)(d) of the International Covenant on Civil and Political Rights. The importance to the process of the administration of justice of the right of an accused person to retain his or her own counsel was emphasised earlier this year by the United States Supreme Court. This involved a decision on the Sixth Amendment right “to have the assistance of counsel for his defence”. United States v Gonzalez-Lopez No 05-352 [26 June 2006].

Protection of the integrity of the judicial process

28 There is ample authority to support the proposition that the Court has an inherent jurisdiction to protect the integrity of the judicial process. The principle has often been called in aid in circumstances where a solicitor has acted for two parties on a previous occasion, and is then called upon to act for one of those parties against the other. More often than not, it will arise because of the fact that the solicitor possesses confidential information which may be used adversely to the interests of the former client. Other instances have turned, not so much on the protection of confidential information, but on the Court’s concern to ensure that justice and appearance of justice be done (Black v Taylor (1993) 3 NZLR 403). In Kallinicos & Anor v Hunt & Ors [2005] 64 NSWLR 561, the Court ordered that a solicitor cease to act for the defendants in a civil suit. This was because the solicitor was likely to be a material witness on a controversial issue of substance; and his evidence and the propriety of his conduct would come under scrutiny, such that he would be in a position in which his interests, the interests of his former client and his obligations to the Court might well be in conflict.

29 In that case, Brereton J made a thorough review of the authorities on the point. After examining differences between authorities in New South Wales, Victoria and the United Kingdom, his Honour summarised the current position in New South Wales at para 76 (citations omitted).

· However, the Court always had inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice.

· The testimony to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

· The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

· Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.

· The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

30 See also Spincode v Look Software Pty Limited [2001] 4 VR 501 at [58]. The categories may overlap because in some cases the possession of confidential information may give the lawyer an unfair or improper advantage such that it would compromise the integrity of the judicial process for him to continue to act.

31 A case which may be more useful in the context of the present motion is Grimwade. The first defendant had been retained as senior counsel to prosecute the plaintiff in relation to certain alleged criminal offences involving commercial dishonesty. The prosecutor appeared in the committal proceedings, during an aborted first trial and in a second trial of exceptional and unusual length. The plaintiff was convicted at the conclusion of this trial but successfully appealed to the Court of Criminal Appeal where it was decided that a third trial should not be ordered. In handing down its judgment, the Court of Criminal Appeal was critical of the conduct of the prosecutor at the second trial. The first defendant was retained as senior counsel for the plaintiffs in civil proceedings involving related issues. Sir Andrew Grimwade sought an order restraining the first defendant from appearing for those other persons in the civil proceedings.

32 After collecting and discussing the principles in a number of earlier authorities, Mandie J said at 452: -

“I would respectfully adopt all of the above quoted statements of principle. In my view it cannot be doubted that this Court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.”

33 Mandie J came to the conclusion that a fair-minded and informed observer would apprehend a real risk that the former prosecutor would, albeit unintentionally, lack the objectivity required of counsel in order to perform his duty to his client and to the Court. His Honour held that, “in the unique, extraordinary and highly exceptional circumstances”, the former prosecutor should be restrained from appearing.

34 It is agreed between the parties that the Grimwade test should be applied to the circumstances of this matter.

Factual evaluation: the events of 2 and 3 May 2006

35 The parties, especially the Commonwealth, have placed before me extensive submissions in relation to the factual situation concerning the events of 2 and 3 May 2006. I do not propose to descend into the minute details involved in an examination of those written submissions. Rather, I think that it will be sufficient if I examine the factual situation in a relatively broad manner, bearing in mind, however, the detailed submissions that have been made.

36 Indeed, the factual situation is, in many respects, a comparatively simple one. There is a complexity of evidence, however, which is explicable on the basis that those involved in the circumstances of the two days in May have had to do their best to recollect and reconstruct those circumstances, sometimes at a distance from the events themselves.

37 A convenient starting point is the Notice of Motion filed on behalf of the accused. This was dealt with by way of directions in the preparation for the hearing of pre-trial issues arising in the trial. Kirby J had been designated as the trial judge and the motion came before him for directions during March and April 2006. Relevantly, the motion sought an order in the following terms: -

“5. An order that the book entitled “Provision in the Rules of Jihad – Short Wise Rules and Organisational Structures that Concern every Fighter and Mujahid Fighting against the Infidels” as well as any statements made by the accused during the execution of a search warrant at his premises on 6 May 2004 be excluded in exercise of the Court’s discretion to exclude evidence improperly obtained, or alternatively upon the ground that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.”

38 The motion was first returnable on 31 March 2006. There were four mentions dealing with preliminary directions in relation to the motion (and other matters) on 10 March, 31 March, 12 April and 19 April 2006. It is immediately apparent from an examination of the transcript of those mentions that the evidence to be adduced by the Crown at trial was likely to be within a very short compass. The Crown proposed to prove that the accused had published the book the subject of the charge. That involved proving his connection with Internet transmissions by which the text of the book was placed on a publicly accessible site. Apart from proving that matter, and some oral statements, which he made in the course of the execution of the search warrant at his home, the thrust of the Crown case would be to ask the jury simply to look at the book itself and its contents. The Crown case was that an examination of the book would plainly satisfy the jury that it was connected with preparation for a terrorist act. It can be seen immediately that, were the book and the oral statements to be excluded in pre-trial decision, the Crown case would simply fall to the ground.

39 Initially, the hearing of the motion was listed to take place on 24 April 2006, although the date was later changed. It was ultimately listed for hearing on 11 May 2006. Kirby J gave directions that the accused’s submissions in support of the motion should be filed by 4pm on 5 May 2006. The Crown was to respond by 10 May 2006. These orders were made on 19 April 2006.

40 The subpoena that is central to the present motion was issued on 20 April 2006. It was addressed to “Magistrate P. Morgan LCM, Downing Centre Local Court, 143-147 Liverpool Street, Sydney”. It was issued at the request of the accused’s lawyers and it required the production of documents to the Sydney Registry of the Supreme Court of New South Wales. The return date of the subpoena was Friday, 28 April 2006 at 9.30am. The documents required to be produced were: -

“1. All original and copy, record, materials and all other documents prepared in support of and relied on in issuing search warrant 616/2004 at the Downing Centre Local Court by Registrar P. Morgan LCM on 5 May 2004”.

41 It is necessary to return to the mention on 19 April 2006. On that day, Mr Ian Barker QC had appeared before Kirby J. Mr Fagan SC had appeared for the Crown. There were a number of important issues dealt with at the directions hearing. There is no need for me to detail all of these. One matter arose, however, in the context of the subpoena which was to be issued, as it happened, on the next day. It is clear from a reading of the transcript that Kirby J was anxious to ensure that written submissions in support of the motion be finalised without delay. Mr Barker QC discussed this aspect of the matter with Kirby J. In the course of that discussion, he made it plain what the nature of the legal argument on the exclusion issue would be. Senior counsel said: -

“The argument is, as I understand it, that the compulsory interrogation of Mr Khazaal by ASIO led to a disclosure of evidence now used against him which is contrary to the Act.”

42 The matter then under discussion was somewhat complicated by the fact that there had been an earlier subpoena issued by the defence. This was a subpoena issued to ASIO. It had been issued on 3 April and returnable on 12 April 2006. A complex of documents was sought in this subpoena. These documents related to intelligence obtained in relation to the suspected terrorist activities of the accused. In particular, it sought “any authorities or approvals given by the Director-General of ASIO to persons other than officers of the Australian Security Intelligence Organisation to enable those other persons to exercise authorities or powers under the ASIO Act 1979”. It is clear that there was a potential for confusion in relation to the subpoena issued on the earlier date and the subpoena which was to be issued to the Local Court on 20 April. There were extensive and complicated national security issues in relation to the earlier subpoena. For that reason, ASIO had sought to come to an agreement with the accused’s legal team as to the width and extent of the subpoena, and in relation to the protection of sensitive material that might be involved in the production of documents under that earlier subpoena.

43 By contrast, as will have been noted, the critical subpoena, the one issued to the Local Court, was not, on its face, a complicated document. It simply required the production of documents “prepared in support of and relied on in issuing” the search warrant.

44 A young solicitor, Justin Le Blond, had caused the subpoena to be issued to the Local Court. He was employed by Mr Houda. Although Mr Houda had overall conduct of the litigation, it appears that he left it to Mr Le Blond to speak to his junior barrister, Peter Lange, about the detail of the process of obtaining the information necessary to support the contemplated written submissions. It was Mr Lange, for example, who apparently gave instructions to Mr Le Blond to issue the subpoena.

45 From Mr Le Blond’s perspective, the first problem that arose was this: the subpoena had been made returnable for Friday 28 April 2006. Mr Le Blond became aware however, that the Supreme Court Subpoena List operated only between Monday to Thursday. It did not function on a Friday. I should add that it seems that Mr Le Blond was on something of a learning curve, as he had been admitted as a solicitor only a brief time before, on 7 October 2005. In any event, he wrote to the Supreme Court Registry on 28 April requesting that the return of subpoena be listed for Tuesday 2 May 2006. Mr Le Blond said that he did not notify the Department of Public Prosecutions, the Australian Federal Police or any other Commonwealth Agency as to the issue of the subpoena. He did not understand it to be normal practice in criminal proceedings to do so. His experience, limited though it may have been, was that, whenever the DPP has an interest, it would appear on a return of subpoena, presumably because it has been informed by the recipient of the subpoena that it had been required to produce documents that might be the subject of an immunity claim. During his evidence, Mr Le Blond gave evidence of this situation arising in other matters, although he conceded he had not previously issued a subpoena to a Court.

46 As I have said, the Local Court arranged for the production of documents in answer to the subpoena. These documents, it seems, arrived at the Supreme Court Registry on 1 May 2006. The subpoena was listed before Registrar Durkin on 2 May 2006 at 9am. Mr Le Blond said he attended the Court on that morning. His purpose was to call on the subpoena and seek access to any documents produced. There was no appearance by the DPP at this return of subpoena. The Registrar informed Mr Le Blond that no documents had been produced. This was clearly an error.

47 Both Mr Houda and Mr Le Blond gave evidence that their experience had been, in the absence of opposition from any other person, that access would have been made available by the Registrar in the Court at the return of the of the subpoena. It did not happen on this occasion because of a mistaken belief on the Registrar’s part that no documents had in fact been produced.

48 An officer from the Registry rang Mr Houda shortly after Mr Le Blond had left the Court on 2 May 2006. This person said to Mr Houda: -

“Documents have been produced in answer to the Local Court subpoena but the Registrar at the return of the subpoena hearing did not know this as the documents were not delivered to the Court from the Registry”.

49 An officer of the Supreme Court who worked in the Registry gave evidence. This was Mr Richard Stride. He gave evidence on a number of topics. One of those related to the situation where an error of the kind that obviously happened here had occurred on other occasions. In such a situation, Mr Stride indicated that it was a possibility that he would ring the solicitor and let him know that the documents had in fact been produced. He did not, however, recall ringing Mr Houda.

50 Mr Houda rang Mr Le Blond on his mobile phone. The latter was still in the precincts of the Court at the time. Mr Houda asked him to go back to the Court and ask for access to the documents. He told Mr Le Blond that he had had a call from the Registry and that the caller had indicated that the documents had in fact been produced.

51 Mr Le Blond hurried back to Court 7E. But by the time he arrived there, the Court was closed, as its work for the morning had concluded. He spoke to a court officer and was told to go to the office of the Duty Registrar. Mr Le Blond told the Duty Registrar that he needed to get access to the documents which had in fact been produced. The Duty Registrar told him that she could not grant access because access must be granted in “open court”. According to Mr Le Blond’s affidavit, the Duty Registrar said:-

“You will have to get the written consent of the DPP before I can grant you access. If you get a letter from the DPP stating that they consent then I will grant you access”.

52 This was understood to be a reference to access being given in the Registry, rather than in open court.

53 Mr Le Blond said he informed both Peter Lange and Adam Houda of these events. Here, two points need to be made. First, Mr Le Blond appeared to be uncertain as to whether the Duty Registrar had said to him, as he deposed in his affidavit, “You will have to get written consent of the DPP before I can grant access” or whether she may have said “I can grant access if I have a letter or some form of written document from the other side or the other party”. In the ultimate, Mr Le Blond thought it “highly probable” that rather than using the term “the DPP”, when he told Mr Lange of the discussion with the Duty Registrar, he had said that he needed the consent of “the other side or the other party”. Secondly, Mr Houda said he had no recollection of being told by Mr Le Blond of the precise conversation that had taken place with the Duty Registrar. He conceded that it was possible that Mr Le Blond may have told him something about it. But he thought it rather more likely that the information had come to him from Mr Lange on the following day.

54 Mr Le Blond was now faced with something of a dilemma. He was in a difficult position. Through no fault of his own, he had not obtained access to the documents in open court that morning. He had complied with his employer’s direction and attempted to obtain access through the Duty Registrar. This too had been unsuccessful. He may have spoken to his counsel about the problem. Mr Lange said that his recollection was that Mr Le Blond had stated that he had been told by the Duty Registrar that he could not make an access order without the consent of the other party. Mr Lange thought it was he who had advised Mr Le Blond to contact Mr Abdul-Karim of the DPP’s office and explain that the defence team wanted the Director’s consent as a matter of urgency. Mr Le Blond’s evidence was that this may have been his own decision,

55 It may be convenient if I interrupt the narrative flow to record that, by the next day, Mr Lange said he became uncertain as to what the Duty Registrar may have meant by the expression “the other party”. As a result of that uncertainty, he advised Mr Le Blond to contact the Registrar of the Downing Centre Local Court with a view to obtaining information that the Local Court had no objection to access being given to the documents. This enquiry was, in fact, made but the result was unsatisfactory. Mr Le Blond was told “The document is now with the Supreme Court. What they do with it is up to them”. According to Mr Lange, Mr Le Blond also reported to him that, on the day previous he had, in fact, spoken to Mr Abdul-Karim. According to Mr Le Blond, the latter stated that the Australian Federal Police may object to inspection, although he had no instructions in the matter.

56 I now return to the detail of the events of Tuesday 2 May and to Mr Le Blond’s part in those events. As I have said, Mr Le Blond rang Mr Abdul-Karim. There are a number of differences between these two gentlemen about the content of the conversations between them. The essential differences are these: first, Mr Le Blond thinks that when he rang Mr Abdul-Karim at 4.45pm on the Tuesday, the response was that the DPP’s solicitor said that he would get back to Mr Le Blond about consent no later than the next afternoon. He asked for a copy of the subpoena to be faxed to him and said that he would get instructions. In fact, about 5.30pm on Tuesday afternoon, Mr Le Blond sent a copy of the subpoena, with a covering letter, to Mr Abdul-Karim. He informed Mr Lange that he had done so.

57 Despite the fact that Mr Le Blond’s letter enclosing the copy subpoena referred to the “urgency” of the situation, Mr Abdul-Karim maintained he had gained the impression that there was no particular urgency. He denied that he promised to get instructions by the following afternoon. He maintained that he had made it clear to Mr Le Blond that he did not consent to access but that he would pass the matter on for the instructions of the relevant agencies.

58 There is a further difference of opinion about the conversations the two men had on the next day. About 1.30pm on the Wednesday, Mr Le Blond says he rang Mr Abdul-Karim who, shortly thereafter, returned his call. Mr Abdul-Karim was asked whether he was able to give consent to access. According to Mr Le Blond, he replied: -

“I’m still not in a position to give you consent and I am still waiting on instructions

59 Mr Le Blond insists that Mr Abdul-Karim did not tell him that the DPP opposed access. On the other hand, Mr Abdul-Karim, during his evidence, maintained that he had made a categorical statement to Mr Le Blond that the DPP’s office did not consent to the defence being granted access to the documents.

60 As might be expected, it is not easy to reconcile these differences between the two lawyers. I am satisfied they were each doing their best to recall the conversations that occurred. Each had the benefit of some written material to support his recollections. My overall view is this: Mr Le Blond was a young, rather inexperienced solicitor who was doing his best to comply with instructions from a relatively demanding employer and a barrister who was becoming frustrated by the delays in obtaining access to material which was needed to finalise written submissions urgently. I consider it likely that Mr Le Blond impressed on Mr Abdul-Karim that the matter was urgent and I do not accept that any lesser impression would have been conveyed. Secondly, whatever precise words were used in the various conversations, I accept that Mr Le Blond came away from those conversations believing that it was simply a matter of waiting for consent to be given by Mr Abdul-Karim. I do not accept that Mr Abdul-Karim conveyed effectively the notion that the DPP were, in any event, opposed to the granting of access. Thirdly, I think it is more likely than not that Mr Le Blond conveyed the impression to Mr Lange, and possibly to Mr Houda if he spoke to him on the topic, that, so far as the DPP was concerned, the question of access was still an open one, and that consent might well be forthcoming by the afternoon of Wednesday, 3 May 2006.

61 One thing, I think, is clear. I do not believe that Mr Le Blond communicated the detail of the conversation with Mr Abdul-Karim on the Wednesday afternoon to Mr Houda. Whether he conveyed it to Mr Lange is not as clear, but, on balance, I regard it as unlikely he did. Mr Lange was very preoccupied on Wednesday afternoon, 3 May with the Lodhi trial in which he was then appearing as junior counsel. Mr Le Blond made no mention of any such conversation with Mr Lange in his carefully prepared affidavit of 7 September 2006 (Exhibit 4).

62 Mr Lange, by lunchtime on 3 May, was clearly becoming concerned that he would not be able to meet the deadline in relation to the preparation of written submissions. During the luncheon adjournment of the Lodhi trial, he went to the Registry of the Supreme Court to speak to the Duty Registrar about the problems which had arisen. The Registrar, however, did not become available before Mr Lange had to return to Court. For this reason, Mr Lange was unable to clarify the matter as he had hoped he might do. On his way back to the Court he ran into Robert Wood of the Australian Government Solicitor’s office. The two men were well known to one another and had a good working relationship. Mr Lange asked Mr Wood whether he was acting for the AFP in the Khazaal matter (he already knew that Mr Wood was acting for ASIO). Mr Wood said that he acted only on behalf of ASIO. But he offered to pass on a message to the AFP, if Mr Lange wished him to do so. Mr Lange said: -

“Fine. Can you please tell the AFP that, as they know, I have subpoenaed a document, and need access right away because submissions are due on Friday. I cannot wait any longer, and need to know what they propose to do”.

63 Mr Wood promised that he would pass on the message to the AFP after Court. In fact, about 4.45pm on that afternoon, Mr Wood, true to his word, rang Sheree Harrison, a solicitor working with the Federal Police. He told her of the discussion he had with Mr Lange and the request that had been made. As it turned out, Sheree Harrison had earlier that day seen a copy of the e-mail Mr Abdul-Karim had sent to Federal Agent Dale Redfern the previous evening. This had been sent presumably as a consequence of the conversation and correspondence Mr Abdul-Karim had with Mr Le Blond on 2 May 2006. Mr Redfern was the AFP case officer who had responsibility for the proceedings involving the accused. Ms Harrison had spent some time earlier on the Wednesday endeavouring to find out the situation from the Downing Centre Local Court. In fact, she had sent a letter by facsimile to Registrar Morgan at 1.30pm on that day. These calls, and the fax letter, demonstrate that the probable situation was that neither Mr Redfern or Ms Harrison had understood from Mr Abdul-Karim that the documents had already been produced by the Local Court at the Supreme Court Registry. They had, of course, been there since 1 May 2006. It also seems that Mr Abdul-Karim had not made reference to the urgency of the situation, at least so far as the legal representatives of the accused were concerned.

64 In any event, when Ms Harrison spoke to Mr Wood late on Wednesday afternoon, she made it clear to Mr Wood that the AFP did object to access being allowed to the affidavit. She also told him that the AFP intended to make an application for public interest immunity over the affidavit or parts of it. Mr Wood promised to let Mr Lange know. Unfortunately, although Mr Wood rang Mr Lange’s chambers shortly thereafter, he was unable to contact him. Mr Lange was probably inspecting the affidavit at or shortly before the time the telephone call was made.

65 At approximately 4 o’clock that afternoon, Mr Lange had left the court building where he had been appearing in the Lodhi trial. This trial was in No 3 Court King Street. He conferred briefly with Mr Houda and decided to go to the Registry by himself to make one more attempt to speak to the Duty Registrar. The system there is that persons wishing to interview the Duty Registrar take a ticket but must wait their turn to be called. Mr Lange did this promptly. But it became clear to him that he would not be able to speak to the Registrar that day, given the number of other people waiting ahead of him. It was then that he decided the only way to break what seemed to him to be a deadlock was to have the case listed before Kirby J. Consequently, he telephoned the chambers of the Crown Prosecutor, Mr Des Fagan SC. It was his intention to let Mr Fagan know that he was going to ask the Judge to list the matter urgently for discussion about the situation. Unfortunately, he was once again frustrated. Mr Fagan was in conference and unable to speak to Mr Lange. A message was left with the barrister’s clerk for Mr Fagan to call Mr Lange back as a matter of urgency.

66 Mr Lange says that he then called the chambers of Kirby J and spoke to his Associate. I should immediately say that there is a good deal of difference between the recollection of Mr Lange as to what he said to the Associate and the evidence of Miss Garrett as to her recollection of the conversation. In his affidavit, Mr Lange recalls the conversation in the following terms: -

“ PL: ‘Hello this is Peter Lange. You might remember that I am the defence junior in the case of Khazaal.’

PG: ‘Yes, of course. What can I do for you?’

PL: ‘We have issued a subpoena to the Downing Centre Local Court in this case. The documents were produced to the Court on Monday, but because of an administrative oversight, they were not entered on the register in Court. As a result, we were obviously not granted access on Tuesday. I have had my instructing solicitor speak to the Downing Centre, and they have said that the matter has nothing to do with them. It seems as if we would have had access to the documents on Tuesday, had they been entered on the register. My instructing solicitor has now been told by the Duty Registrar that we cannot have access without the other party being present. However, the DPP has not given consent, and I have not been able to talk to the Duty Registrar to see whether their consent is really necessary. So, I would like to get this matter listed before the judge. How soon would we be able to get this matter on again? I have already called Mr Fagan, who is in conference at the moment, and asked him to call me back.’

PG: ‘One moment, please.’

After approximately half a minute or a minute, the Associate came back on the phone and the conversation continued to the following effect:

PG: ‘Who are you with at the moment?’

PL: ‘I am with my instructing Solicitor, Adam Houda.’

PG: ‘No, I mean who are you with in the registry?’

PL: ‘I am not with anyone at the moment’.

PG: ‘Find someone behind one of the counters and let me talk to the person. You can have access’.”

67 Miss Garrett’s affidavit Exhibit “J” has been very carefully drawn. It does not purport to set out the conversation verbatim. Rather, it is a commentary on the evidence of Mr Lange indicating agreement with certain matters, probability in relation to others, lack of recollection in some matters and absolute disagreement in relation to a number of matters. Miss Garrett prepared a diary note on Thursday, 4 May 2006. Now, it is true that by this time she had had some contact with both Sheree Harrison and Mr Vorrieter who is with the Australian Government Solicitor’s office. The diary note is a lengthy one and I will not set it out in full. The first portion, however, bears repetition: -

“At approximately 4.30pm on Wednesday 3 May, Mr Lange of counsel phoned me from the Exhibits Registry on level 5. He advised that he wished to gain access to documents from the Downing Centre which he was aware had been received in the Registry as a result of a subpoena issued on behalf of his client. He needed access to the documents in order to complete submissions which were due this coming Friday 5 May. His solicitor had missed the return of subpoenas in the Registrar’s court. I am unsure as to whether his instructing solicitor was with him when he spoke to me on the phone. I spoke to Kirby J who advised that it would be in order for Mr Lange to inspect the documents.

I then asked Mr Lange to ascertain the name of Exhibit’s clerk who was assisting him. He advised that it was “Tanya”. He passed the phone to Tanya and I advised her that it was in order for Mr Lange to inspect the documents. I then relayed this to Mr Lange.”

68 The diary note also records that very shortly after this conversation, the Associate spoke to Richard Stride in the Criminal Registry. She confirmed to Mr Stride that the Judge had given leave for Mr Lange to inspect the envelope. Shortly after this conversation, Miss Garrett received a telephone call from Sheree Harrison who expressed strong disagreement with the fact that the envelope was being inspected. After a discussion with Kirby J, the matter was listed at 9am the next morning for argument re access to the material. Miss Garrett went down to the Criminal Registry and saw Mr Stride there. It was apparent that the inspection had already taken place. Mr Lange had left and the documents had been returned in the envelope to Mr Stride. Ultimately, the matter was listed for mention at 9.30am on the Friday morning, 5 May 2006, instead of the Thursday morning as first had been contemplated.

69 It is clear, as Miss Garrett mentioned in Exhibit “J”, that there was an undoubted error in her recollection of the discussion with Mr Lange as evidenced by the diary note. Miss Garrett readily conceded that she had not been told that Mr Lange’s solicitor “had missed the return of subpoenas in the Registrar’s court”. Rather, she was inclined to agree with Mr Lange’s affidavit that he may have said that the documents had been produced to the Court on Monday, but because of an administrative oversight, they were not entered on the register in the court. Miss Garrett said that she had a very clear recollection that, at no time in the conversation, did Mr Lange refer to the DPP or mention the issue of consent. She said it was also clear in her mind that Mr Lange had not asked for the matter to be listed before the Judge. She thought that Mr Lange wanted urgent access to the subpoenaed document and that she was being requested to ask the Judge about access.

70 It is very clear to me that both Mr Lange and Miss Garrett are honest witnesses each doing their best to recall, in somewhat difficult circumstances, the precise content of a hurried telephone call made in a somewhat urgent situation. It also seems clear to me that some degree of misunderstanding occurred between Mr Lange and Miss Garrett. While the misunderstanding was plainly mutual, I have no doubt that the major responsibility fell on Mr Lange. It was his obligation to make it clear to the Associate what it was he was asking and why. I am satisfied that he failed to achieve this with necessary clarity. But, at the same time, I am satisfied that Mr Lange was not attempting to deceive or mislead either the Associate or the Judge. No criticism can be made of Miss Garrett who was clearly doing her best to assist Mr Lange.

71 I am also satisfied that at the conclusion of the conversation, Mr Lange understood that it would be no longer necessary for him to have the matter listed, as he had first set out to achieve. Rather, he understood that had been given immediate access to the material. On the other hand, Miss Garrett had formed the view, mistakenly I think, that Mr Lange was asking for access and that coloured the matters she reported to the Judge. I rather take it from the transcript of the mention on 5 May 2006 that there was a possible additional area of confusion, namely whether the conversation related to the subpoena to ASIO which had been the subject of prolonged discussion on previous mentions. This, however, is no more than an impression I have from listening to the evidence and looking at all the material before me. I have formed no concluded view about that aspect.

72 As it happened, Mr Houda met up with Mr Lange in the Registry at about the time the latter was concluding his conversation with the Judge’s Associate. It seems that Mr Houda may have been present when “Tanya”, told the two men that they could go to the 4th floor Registry where they could inspect the documents. It was in that location that Mr Stride produced the envelope. There is a difference of recollection between Mr Lange and Mr Houda at this point, although I do not think it is of any real moment. The envelope which was produced by Mr Stride was not remarkable in any way. It was not marked, for example, “confidential” or “top secret”. Mr Lange said, had the material been contained in a sealed envelope marked in that way (as he had experienced in other matters), he might have been alerted to the fact that he was about to examine material which could have national security sensitivity. In fact, Mr Lange said the envelope was of a type ordinarily seen when a document is subpoenaed. There was no indication that the document inside the envelope was to be treated confidentially or that it was the subject of any form of court order, undertaking of confidentiality or similar. The pages were marked “highly protected” but that particular marking was well known to both men in litigation of this kind and they did not consider it equated with “secret”. In addition, it seems the material in the envelope was a copy of the original Warrant Affidavit, although that was not known to or noticed by the respondents.

73 Mr Lange’s recollection is that when the material was first being read, Mr Stride came over and said: -

“I have had a telephone call from the AFP. They object to your inspecting the document.”

74 In response, Mr Houda sought to return the document to Mr Stride. Mr Stride then replied: -

“No. You have been granted access by the Judge. He has said you can have access.”

75 Mr Houda’s recollection was that this conversation occurred before the inspection had begun. As I have said, I do not think that anything turns materially upon this difference in recollection. Both men understood, from the remarks of Mr Stride, that the Judge had made an order permitting access to the documents produced in answer to the subpoena after being aware of the objection of the AFP.

76 During his evidence, Mr Lange acknowledged that some of the material he looked at was sensitive material. He qualified this by saying that its sensitivity was something which was apparent to him in retrospect. There was other material that was probably sensitive, although he was not aware of the reasons which might make it so. There were also matters that he said were public knowledge. He agreed that, with the benefit of hindsight, alarm bells should have gone off even though they did not at the time. At transcript 110 he said: -

“With the benefit of hindsight, I see it as a very unfortunate incident from which I think everyone has learnt. I am not going to say otherwise. But that does not affect my ultimate belief that I am capable of obeying my undertakings, which I have done in other cases, and which have been accepted.”

77 Returning to the inspection, Mr Lange said that, in scanning the document, he was looking for two particular terms. It was only this material that would be relevant to the submissions he was preparing. Moreover, he was in a hurry, as he had a conference scheduled in chambers with senior counsel at about the time he received the document in the Registry. He said that he spent no more than approximately two minutes scanning the document. Once he had found the passage that he was looking for, he pointed this out to Mr Houda. He then placed the document back in its envelope. It was then returned to Mr Stride. He made no note about what he had read. All he wanted to see was whether the AFP had relied upon material obtained in a certain way and that was sufficient for him to be able to make the submission he wished to make in support of the Notice of Motion to exclude evidence. He did not see anything else in the document that, in his view, was relevant to the charge that had been laid against Mr Khazaal. There was some material that could potentially be relevant to other charges but, those charges had not been brought against the accused.

78 Events moved quickly after the inspection had concluded. Mr Lange and Mr Houda went into conference with senior counsel on another matter. Mr Robert Wood rang through and spoke to Mr Lange. He explained the Commonwealth’s concern related to the inspection. He asked them to give undertakings and they agreed that they would. On the next day, 4 May 2006, Mr Wood delivered to each of Mr Lange and Mr Houda a letter from AGS dated 4 May 2006. He witnessed the documents they signed. The undertakings were, it will be recalled, contained in these signed letters.

79 The matter was mentioned before Kirby J on 5 May 2006. It was indicated to his Honour that orders would be sought, supplementing the undertakings which had been given, to ensure that there would be no inadvertent or other disclosure of any of the material that had been seen by Mr Lange during the inspection and which may have been seen by Mr Houda. I have already set out, earlier in this decision, the orders which his Honour made. These orders were made by consent and it is clear that there has been no suggestion of any breach of their terms.

80 On 26 May 2006, the Commonwealth indicated its intention to commence proceedings to seek injunctive relief restraining Mr Houda and Mr Lange from acting further in the proceedings. Consequently, the motion was filed on 1 June 2006 and directions were given for the conduct of the proceedings relating to the motion.

81 There is one final factual matter that needs to be mentioned and evaluated. Mr Houda has maintained that, during the inspection by Mr Lange, he did not read the material himself. He also maintained that he told Mr Lange this when they were discussing the issue of giving undertakings, as requested by the Commonwealth. Mr Lange confirms that a discussion in those terms probably took place. Mr Houda also maintains that he told Mr Robert Wood that he had not read the document. Mr Wood said he had no recollection of that having been said in conversation, although he conceded that he did not keep a file note at the time.

82 Mr Houda maintained during his cross-examination that he did not in fact read any of the material inspected by Mr Lange during the brief two-minute inspection. He may have looked at the page to which Mr Lange drew his attention. But he did not read it. I accept Mr Houda’s evidence in this regard. Mr Houda impressed me as a passionate, busy and efficient solicitor. He is, however, a solicitor who is more interested in the overall picture than the detail. He employs solicitors to attend to the detail and instructs counsel to advise him as to the strategy and procedures to be adopted. Mr Houda conceded that, with the exception of Mr Wood, he had not mentioned to anybody from the Commonwealth side of the case that he had not read the document until he made this claim in his sworn affidavit. It is also true that in the undertaking letter signed by Mr Houda, he made no claim that he had not seen the material in respect of which the undertakings were given. I do not see either of those matters as of any particular significance. As I have said, Mr Houda was quite firm in his continued assertion that he had not read the material and I accept him on that point. He maintained that he had told Mr Wood this shortly after the matter “blew up” and that he had told Mr Wood this in the presence of Mr Lange. I accept that this was so.

Preliminary issue – closed court hearing - Confidential judgment

83 During the hearing, two issues arose in closed court session. The court was closed for brief periods of time to enable confidential evidence to be considered and for the making of confidential submissions. The first issue related indirectly to that part of the Warrant Affidavit inspected by Mr Lange which dealt specifically with the factual matters he and Mr Barker QC needed to underpin the legal argument relating to the exclusion from evidence of the book said to the subject of the first charge in the indictment. There had been a Certificate issued by the Attorney-General on 26 July 2006. This Certificate related to the trial of the accused and had been issued under the provisions of the National Security (Criminal & Civil Proceedings) Act 2004 (“the NSI Act”). One effect of the issue of the Certificate was that the material mentioned in the Certificate could not, while the Certificate was in force, be disclosed by the prosecutor and the accused. The Certificate allowed for certain exceptions. But these exceptions themselves were subject to security protection measures. They picked up, as I understand it, matters referred to in orders made by Justice Kirby on 12 April 2006. These orders not only dealt with disclosure but included protective orders to ensure that exempted documents were used only for the purpose of the proceedings. They also required that the court should be closed during any part of the proceedings concerning those documents. There is no need for me to detail the wide range of other protective measures that were reflected in the orders.

84 After the filing of the present motion on behalf of the Commonwealth, Mr Barker QC, who still held the senior brief for the accused, sought access on behalf of his client to material in the Warrant Affidavit. As might be expected, this was a contentious issue and was originally listed as a contested hearing before Bell J in August 2006. Mr Barker QC and Mr Willee QC, however, reached agreement as to a methodology to avoid the necessity for a contested hearing. The agreement is reflected in a confidential letter exchanged between senior counsel on or about 3 August 2006. The nature of the agreement was the disclosure of certain matters to Mr Barker QC which had the effect of meeting the forensic purpose for which the Local Court subpoena had been issued. At the same rime, it obviated the need for Mr Barker to continue his application for access to the Warrant Affidavit. The Commonwealth took the view that the disclosure which it made to Mr Barker QC should remain secret. That position was, for the time being at least, agreed between the Crown and the defence. It will be recalled that Mr Lange had access to this aspect of the Warrant Affidavit but that he had given undertakings not to disclose the material he had seen.

85 The machinery adopted before Bell J to record the agreement reached between the trial parties was to include new material in “the specified documents” referred to in Order 1 made by Kirby J on 12 April 2006. The letter from the Australian Government Solicitor to Mr Ian Barker QC dated 3 August 2006 was one of the matter so included. As well, there was correspondence proceeding the letter which related to the disclosure of the information set forth in it. The result was that the letter of 3 August 2006 was “disclosed” to the legal representatives, but its use was limited to the trial and was subject to the raft of protection orders applicable to all specified documents referred to in the orders made by Kirby J on 12 April 2006. Both the orders made by Kirby J and Bell J reflected agreements between the prosecutor and the accused, sanctioned no doubt by the Commonwealth, pursuant to s 22 of the NSI Act. Agreements of that kind, as I understand the legislation, avoid the need for the Court to undertake the more cumbersome proceedings necessary where agreement has not been reached in relation to the disclosure and protection of national security information.

86 In the event, it became necessary for me to respond to an argument advanced on behalf of Mr Houda by Mr Gageler SC. The argument was conducted in closed court because it related to Mr Gageler’s suggestion that the material matters in the letter to Mr Barker QC dated 3 August 2006, were in fact matters in the public domain. Mr Gageler argued that these were the only matters that Mr Houda gleaned from the inspection process conducted by Mr Lange. Although Mr Houda was content to abide by the undertakings he had given, and indeed offered similar undertakings to this Court, Mr Gageler argued that any analysis of suggested impropriety on his part ought take into account the fact that this aspect of the inspected material was, in truth, in the public domain. The court was closed to enable this argument to be fleshed out. It became apparent to me that the argument should be addressed in a confidential and separate decision.

87 The second issue was a more limited one. Mr Boulten SC tendered a chapter of a book which had been published at an earlier period of time but which now had been withdrawn from publication. A chapter and footnotes from this book were tendered. There was vigorous debate in closed court as to whether it should be admitted. Ultimately, Mr Boulten accepted that the tender itself should be confidential, having in mind the protection of the accused’s interests in the forthcoming trial. Again, I agreed to make a ruling on the tender in a confidential judgment. The decision I reached is that the tender material lacks relevance. Consequently, I reject the tender. The reasons are contained in the confidential judgment.

Resolution of the issues

88 The principles which I have set out much earlier in this decision must now be applied to the facts as I have found them. What is to be the outcome? The starting point is the fundamental proposition that Belal Khazaal, the accused in this matter, is entitled to counsel of his choice. This is an important right. It is, of course, not an absolute right but it is plainly a serious matter to prevent a party from retaining counsel and solicitor of his choice, particularly where the possibility arises upon the application of an opposite or adverse party. The Commonwealth is not, strictly speaking, a party to the trial process. But as a consequence of the National Security Information (Criminal & Civil Proceedings) Act 2004, it has the potential, indeed a realistic potential, to be treated as if it were a party to the criminal proceedings (s 30(2) of the NSI Act).

89 In relation to this fundamental and important right, I should say that it is not merely a matter of testing whether there might be other counsel available or other solicitors available. It is not merely a matter of testing whether, for example, there might be counsel and solicitors who are as well or better experienced to handle the trial for the accused. Nor is it simply a matter of determining the point at which the litigation may stand, or of determining other matters of mere convenience. Each of those matters may be relevant, but they are by no means determinative.

90 The principles of law applicable to this motion establish quite clearly that, the right of choice of counsel and solicitor is so fundamental, especially in criminal proceedings, that it should not be disturbed except in the most unusual and exceptional circumstances and where no other remedy is otherwise available. The test, it will be recalled, is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the respondents be prevented from appearing in the trial.

91 Before examining this broad test, it is appropriate, however, to consider the fact that there are inter-party undertakings in force; and that there are orders of the Court in force, As well, it is proposed that appropriate undertakings be given to this Court. The purpose of all those procedures, enshrined as they are in historical well-understood precedent, is to give protection to the sensitive national security information which, in the case of Mr Lange has been observed by him; and in the case of Mr Houda has been in part communicated to him.

92 What is the force of undertakings and orders of this kind? In my view, it is clear that the high value placed by the Courts on compliance with orders and undertakings of this kind leads, unless there are exceptional circumstances, to a situation where the Court can and must be confident that the utmost protection will be afforded to the confidential material involved. Save in those exceptional circumstances I have mentioned, the Court is able to place the utmost reliance on an undertaking given by a solicitor or barrister. A failure to honour an undertaking is a serious breach of professional conduct which has the capacity to result in significant disciplinary action.

93 It is my view that, subject to the resolution of the Commonwealth’s second major argument, the issue of an injunction to prevent the respondents from acting in the accused’s trial, in light of the orders and undertakings both in existence and proffered, would be completely lacking in utility and, for that reason, unnecessary. (T. R. Flanagan Smash Repairs Pty Limited v Jones (1999) FCA 1391 at (16-18) per Hely J). Moreover, the existence of those orders and undertakings obviate the need to make the orders sought in para 2 of the Notice of Motion. I shall state my reasons.

94 First, in my earlier decision of 25 October 2006, I said (para 37) that some of the material in the Warrant Affidavit was material that simply should not be disclosed at all, if it were at all possible to avoid that situation. The qualification inherent in this statement may arise in any number of ways. For example, a particular piece of sensitive national security information may require disclosure to enable the accused to have a fair trial and where, were it were otherwise, the administration of justice would, or might be, imperilled. That is not the case here, at least for the purpose of the present application. Another situation which may arise is where inadvertent disclosure has occurred. As I understand it, that type of situation has previously arisen in terrorist trials in New South Wales. Where it has occurred, it has been met by orders and undertakings. A third situation is that which has developed here. In this matter, Mr Lange read the warrant information and communicated part of it to his instructing solicitor, Mr Houda. In such a situation, provided the Court can legitimately expect adherence to its orders and to undertakings, there is every reason to suppose that the information will be protected from further disclosure.

95 Secondly, while there is a need to guard against inadvertent disclosure, this risk can, in the rather unusual circumstances of this matter, be satisfactorily reduced, if not eliminated, by the giving of undertakings. As I said in my earlier judgment, absolute non-disclosure is an ideal that cannot always be achieved (para 38). Both the Australian Federal Police and ASIO have, in the present matter, disclosed information for the purpose of obtaining a search warrant. The disclosure, of course, was limited to the Magistrate issuing the search warrant. This very process however, raises the potential for inadvertent disclosure beyond the issuing Magistrate. In addition, there has been the limited disclosure represented by the agreement reached between the Commonwealth and Mr Barker QC, a confidential matter in itself. This is referred to in Mr O’Sullivan’s confidential affidavit. It is not appropriate at this stage to say anything about this agreement that reveals more publicly its nature. But the process of disclosure may go even further as the pre-trial procedures and the trial progresses. The National Security Information Act recognises that this is so or, at least, that it may be so. In all this area of incremental disclosure, the potential for inadvertent disclosure is, once again, widened.

96 Thirdly, it is necessary to recognise another consequence of the manner in which Mr Lange read the Warrant Affidavit material. Of course, it seems highly likely that, although he is well seized of the principal matter that he was seeking to discover when he examined the affidavit, it is also the likely situation that he has very little recall of the other material in the affidavit. The greater degree of sensitivity in relation to national security information, in my view, attaches to the material which Mr Lange did not examine in detail and which he plainly does not remember except in one specific area (see para 26 of Mr Lange’s affidavit - Exhibit 1). Even in this area of partial recall, it is clear that Mr Lange did not absorb, and does not remember much, if any, of the details. He skimmed the document, it will be recalled, in about two minutes and was looking for a particular subject matter. (By contrast, I might add, it took me nearly forty minutes to read and absorb the contents of Exhibit “E” on the access argument, now Exhibit “M” in the present motion. Once Mr Lange located that subject matter, he ceased the inspection. He took no notes. So far as Mr Houda is concerned, I have accepted that he did not read the material at all. As a consequence, he has no idea of the nature of the sensitive material contained in the affidavit with the exception of the one matter that was communicated to him by Mr Lange.

97 Fourthly, I am unable to see how the removal of either of the respondents from the accused’s trial would further the situation beyond the protection likely to be gained from the orders and undertakings to which I have made reference. Let it be assumed, contrary to the findings I have made, that either of the two gentlemen has in his mind a significant degree of sensitive national security information gleaned from the brief inspection. If there be a danger of disclosure, inadvertent or otherwise, it would exist whether or not they were acting for the accused in his trial. It is necessary for me to emphasise that the Commonwealth has acknowledged that there is nothing in the Warrant Affidavit which, if it were known to and recalled by the respondents, would create a situation of conflict between their duty to adhere to undertakings, on the one hand, and their duty to their client on the other. I have myself carefully assessed the confidential material in the Warrant Affidavit. I agree that there is nothing there that assists the defence case in relation to the merits of the substantive criminal charges.

98 Fifthly, the evidence unequivocally shows that Mr Lange has a significant history of acting in a manner, which demonstrates his reliability to comply with obligations undertaken in connection with national security matters. He has been involved in a number of cases involving terrorism charges. In these cases, he has frequently been asked to provide and has provided confidentiality undertakings. He has fully complied with those undertakings in each instance. I am satisfied that he has displayed a firm professional attitude of integrity towards the protection of sensitive information.

99 There have been occasions where Mr Lange has been inadvertently provided with material, which unintentionally disclosed to him national security information. One such instance was in the matter of R v Ul-Haque. The Commonwealth took issue with Mr Lange over this matter and suggested that he may have displayed an attitude that was less than satisfactory in relation to the handing back of the inadvertent material he had received. I do not accept this assertion. Mr Lange had been provided with a brief of material comprising some 1200 pages. The Commonwealth later demanded that the material be handed back because, included in it, was a small amount of national security information. There was a debate between the parties about the form of the orders necessary to resolve the situation. For example, there was disagreement, on the part of the defence, that they should simply hand back the 1200 page brief. Mr Barker QC had a role in this debate. Senior counsel advised, correctly in my opinion, that the material could not simply be handed back “holus-bolus”.

100 It is clear that the brief had acquired a privileged status by the time the Commonwealth asked for it to be returned. There were, by then, notes and instructions written on it. It became necessary for the Federal Court to intervene but, in my view, Mr Lange behaved properly and responsibly at all times until the matter was sensibly resolved by the making of interim orders and the giving of voluntary undertakings. The effect of these was to compel the Commonwealth to identify the sensitive material contained in the brief and to isolate it so it could be returned in proper form. The undertakings by Mr Lange were given, as I have said, on a voluntary basis. They were undertakings not to disclose the material that has been inadvertently supplied. It is clear that the Commonwealth accepts that Mr Lange has at all times honoured this undertaking.

101 The final argument advanced under this heading by the Commonwealth suggested that the respondents do not have the level of appreciation of their obligations to the Court, the Commonwealth and the public in relation to national security information which would be necessary for the Court to repose continuing trust in them in relation to the sensitive information in the Warrant Affidavit. This is said to arise from the circumstances in which they examined the Warrant Affidavit, and the circumstances of their conduct in the defence of the present application. It will be seen that this submission overlaps with the second major argument presented by the Commonwealth, namely the need to protect the integrity of the judicial process. I shall turn to that issue now.

Need to protect the integrity of the judicial process

The position of Mr Lange

102 The Commonwealth has submitted that Mr Lange acted in a deliberate or reckless endeavour to gain improper access to sensitive and confidential material. I am not satisfied that the Commonwealth has sustained this allegation against Mr Lange and I reject it. The position as I see it is this: Mr Lange was in a difficult position. He was anxious, indeed extremely anxious, to comply with a timetable set by the Court to file written submissions. From his perspective, he needed to access the material produced on subpoena to satisfy himself that the factual basis of the legal argument foreshadowed by Mr Barker QC existed. It is clear that he consulted Mr Wood on the afternoon of the 3 May 2006. He did so in an endeavour to draw the AFP’s attention to the issue at hand. While he was in the Registry office later that afternoon, he endeavoured to speak to Mr Fagan SC and spoke to his clerk stressing the urgency of the matter. He did this before speaking to the Judge’s Associate.

103 It is, to my mind, very clear that if Mr Lange had been attempting to seek access to the material in an improper manner, he would not have made these approaches or attempted approaches. They were consistent with an attitude of mind that contemplated, at that stage, accessing the material after consent had been given.

104 Moreover, it is clear that a number of the problems that presented themselves on the afternoon of 3 May did not directly relate to Mr Lange at all. First, there is the ironic fact that authorised access may have occurred on Tuesday 2 May 2006, had Mr Le Blond been given access to the documents produced in Court. It was an error within the Court system that inadvertently prevented this happening. Moreover, the failure to notify the DPP or other agencies of the issue of the subpoena was not a matter that can, or ought to be, sheeted home to Mr Lange. In a perfect world, he might have reminded himself to caution Mr Le Blond to let other people know about the issue of the subpoena. But Mr Lange had no role in the actual issue of the subpoena, other than to direct his solicitor that it should be issued.

105 There were other extrinsic matters that played a part in the ultimate situation which developed. First, there was the not insignificant fact that the Warrant Affidavit was contained in a plain envelope. There is no explanation for this because, as Deputy Commissioner Lawler indicated, the material had originally been in a sealed envelope bearing the note “Official AFP Documents”. It is true that the Warrant Affidavit is marked “Highly Protected” on each page. In this regard, I accept Mr Lange’s evidence that, in his experience, many documents, if not the majority, received during the course of preparation for terrorist trials are marked in this way, even though they are not, by any means, necessarily dealing with national security information. Moreover, Mr Lange said that where there is sensitive material, in either redacted or un-redacted form, from ASIO, it is usually marked “Secret”. No such markings appear on the Warrant Affidavit, although it is conceded that this material issued directly from the AFP rather than from ASIO. I might add, although there was no argument about it that the confidential affidavit of Deputy Commission Lawler suggests (para 5) the possibility – I put it no higher – of an erroneous classification on the part of the AFP. There is also the fact that a copy of the Warrant Affidavit was produced by the Local Court. This may explain the presence of an “Unmarked” envelope. Further more, the Warrant Affidavit contained the following instructions in paras 9 and 10: -

“9. An affidavit filed in support of an application for a Search Warrant may include material which is operationally sensitive or is subject to a secrecy provision. It may also include details of police methodology or information which could be used to identify a confidential source of information. Accordingly, I ask that the affidavit be returned to me for safe keeping when the application has been dealt with or that, if it is not returned, that the affidavit be kept in a secure place and that appropriate arrangements are made to protect it from theft or unauthorised access.

10. If the affidavit is returned to me, I undertake to keep it in a secure place and to make it available to the issuing officer, on request, if he or she has a need to see it. If the affidavit is not returned to me, I ask that it not be released to any person, or made available to any person, without prior consultation with me and that I be notified before the affidavit is released if it is required to be produced under a court order or other compulsory process.”

106 It appears that these instructions were not noted at the Local Court and the request went unheeded.

107 Against the background of these matters, I conclude that, immediately prior to speaking to Kirby J’s Associate, Mr Lange had been making a number of attempts, in the end ultimately unsuccessfully, to contact the Commonwealth officers and senior counsel to place them on notice that he was endeavouring to resolve the access problem which had arisen. His immediate intention, when he spoke to the Judge’s Associate, was to try and list the matter the next day so that the problem could be resolved to enable him to comply with the timetable for filing written submissions. I also accept that Mr Lange was genuinely uncertain about whether the Duty Registrar required consent to be obtained from “the other party” and I reject the suggestion Mr Lange has, in any sense, fabricated or made up this matter.

108 Mr Lange’s general state of mind is well exposed by his instruction to Mr Le Blond to send a copy of the subpoena to Mr Abdul-Karim as a matter of urgency on 2 May 2006. If, as appears to be the case, the AFP were not aware of the subpoena prior to this point, they were well aware of it once a copy had been sent to the solicitor. Mr Abdul-Karim did not inform Mr Redfern that the documents had already been produced to the Registry. Nor did he indicate the degree of urgency involved in the situation. In saying this, I am not intending to be critical of Mr Abdul-Karim but merely noting that this was one of the many circumstances that contributed to the complex of facts and misunderstandings that, in part, resulted in the unfortunate inspection in the Registry.

109 So it was that Mr Lange found himself in the Registry office, once again, shortly after 4pm on 3 May 2006. Again, I accept that his purpose in being there related to his attempts to clarify the manner in which he could gain access to the documents. I accept that his actions in this regard, that is his endeavours to see the Registrar, related to the issue, which had been troubling him during that day. This was the question as to which party was required to give consent for access. Once again, Mr Lange was frustrated in this endeavour to clarify the situation because he was simply unable to speak to the Duty Registrar before the anticipated close of business. As soon as that became clear to him, he endeavoured to inform his opponent of his intention to have the matter listed. He then rang the Judge’s Associate to try and arrange the listing.

110 The difference in the respective recollections of Mr Lange and Miss Garrett simply reinforce in my mind, as I have earlier analysed, that there was a significant misunderstanding between the two during the telephone conversation. The informality of the approach, together with the urgency of the application, make the emergence of this misunderstanding perfectly explicable. The blame for the misunderstanding, if I may call it that, must however fall, in the main, on Mr Lange’s shoulders. It was his obligation as counsel to make it absolutely clear to Miss Garrett what it was that he was seeking to do. He did not succeed in that endeavour and the Associate went to the Judge genuinely thinking there was an uncontested application for access to documents in circumstances where the solicitor had missed the return of the subpoena. On the other hand, that last misconception on the part of the Associate does not appear to be attributable to anything Mr Lange actually said to her. But it is a good indication of the misunderstanding that arose between the two people during the brief telephone discussion. I accept that Mr Lange believed that access had been given to him in circumstances where the preliminary conversation occurred as he recollects it. At the very least, something quite close to that conversation occurred between he and the Associate. I also accept that, when the actual inspection was being made, the conversation with Mr Stride was understood by Mr Lange as reinforcing that he had been given permission to look at the contents of the envelope, even though there had been objection by the Australia Federal Police.

111 All these matters bring me to the comfortable conclusion that this was not a deliberate or reckless attempt to improperly gain access to sensitive material. It involved, essentially, a series of misunderstandings over the two-day period, and these, coupled with other factual matters I have identified, led Mr Lange to believe he was not doing the wrong thing when he made his brief inspection.

112 This conclusion does not mean that Mr Lange’s actions were beyond criticism. There are a number of criticisms that can and should be made about his behaviour on those days. But these criticisms must be seen in the context that here was a young, enthusiastic barrister attempting to do the right thing by his client, his instructing solicitor and his leader. Mr Lange was obviously pressed for time throughout this two-day period because of his other commitments. He was making decisions on the run and, perhaps, without adequate or appropriate time for reflection on the wisdom or appropriateness of his actions.

113 My criticisms of Mr Lange are these: first, I think he should have taken more care to ensure that Mr Le Blond turned his mind to the question as to whether notice should be given to other people concerning the issue of the subpoena. Secondly, he should have been less impatient and more circumspect when, as he saw it, there was delay in consent coming from the Australian Federal Police for the inspection process. Thirdly, when he made his telephone call to Miss Garrett and was told that he could have access, he should have immediately reflected upon this situation and adhered to his initial plan namely, to have the matter mentioned in the Court the next morning prior to inspection. He should have realised that there may have been a misunderstanding. This would have enabled him to speak to Mr Fagan and Mr Wood and ensure that all those who had an interest in the issue, if it were to be an issue, would be present at the mention and able to put their position. Mr Lange has conceded that, after he was told he had been given access, he was acting on an assumption which he now realises was a false assumption. I consider that mature reflection would have, or at least may have, brought this home to him. Fourthly, he should have been more careful in relation to the matter he asked Miss Garrett to convey to the Judge. I do not accept however, that he intended to mislead the Associate or Kirby J in this regard. Fifthly, Mr Lange should have appreciated more quickly than he did, when he inspected the document, that the material was much more national security sensitive than he had imagined it would be. It is fair to say that Mr Lange has now acknowledged that this was so, albeit with the benefit of hindsight. He said that “alarm bells should have rung” but regrettably they did not at the time. Mr stride’s remarks to him should have rung the same alarm bells. These matters of criticism, important though they be, do not, in my view, amount to professional impropriety warranting the grant of the Commonwealth’s application. I am confident that Mr Lange is now aware of the shortcomings of his own judgments and actions on 3 May 2006, and that he will benefit, in a professional sense, from the bitter lesson emerging from the rigours of the present application.

114 It is of course, easy to be wise after the event. I am sure that most responsible members of the Bar find it necessary to reflect regularly on their own professional shortcomings from time to time. Mistakes can happen. Errors of judgment can occur. In essence, that is I think what happened in the present matter.

115 I do not accept the submissions of Mr Willee QC which suggested that, in the conduct of this application, Mr Lange, or Mr Houda for that matter, has been guilty of any misconduct or lack of propriety so as to cast doubt upon the efficacy of the undertakings that have been given or proffered.

The position of Mr Houda

116 I turn now to consider the situation of Mr Houda. The criticisms against Mr Houda must, in the face of the findings of fact I have made, fall substantially below those made or charged against Mr Lange. First, there is no suggestion that there is anything in the material conveyed by Mr Lange to Mr Houda that raised a conflict between Mr Houda’s duty to his client and his obligations to the Court. Secondly, I have accepted that he did not read the contents of the envelope but simply watched Mr Lange skim the document for about two-minutes. He looked at the part of the affidavit material when Mr Lange commented that he had found what he was looking for. But he did not read it. I have also found that Mr Houda did tell Mr Wood that he had not read the Warrant Affidavit. This was a matter Mr Houda was much more likely to recall than Mr Wood, given the importance of the issue to Mr Houda personally. Mr Lange supported Mr Houda on this point. Moreover, the matter commented on by Mr Lange to Mr Houda related to the one fact, namely that he had found corroboration of the suggestion that the AFP had relied on certain ASIO information and that this had appeared from the inspection Mr Lange had made. The detail of the corroboration is the matter that will be the subject of the application to exclude evidence which has now lain fallow for many months.

117 In the case of Mr Houda, I consider that it may be comfortably concluded that there was no deliberate or reckless attempt on his part improperly to gain access to sensitive material. Indeed, his appearance with Mr Lange at the Registry was a complete matter of chance. There is no evidence that he knew that an objection had been taken by AFP, at least not until Mr Stride spoke to him in the Registry at the time of the inspection. Mr Houda did not have any personal dealings on 2 or 3 May with any lawyer from the DPP or any agency of the Commonwealth. The evidence suggested, perhaps rather obliquely, that Mr Houda may have overheard the conversation Mr Le Blond had with Mr Abdul-Karim during the lunch break on 3 May 2006. I am satisfied, however, that this was not so. Mr Le Blond, in his evidence, was emphatic that he had not communicated this matter to Mr Houda during the afternoon of 3 May 2006. Mr Houda was not, in a practical sense, privy to the call between Mr Lange and Kirby J’s Associate. He was present towards the end of that conversation, but did not hear the detail of it. Finally, I accept that when Mr Houda had the conversation with Mr Stride in the office, he also understood that Kirby J had granted access to the documents in the envelope, despite the AFP objection.

118 As with Mr Lange, I consider that criticisms of one kind or another may legitimately be levelled at Mr Houda, although they too fall well below the level of professional impropriety. First, I think that Mr Houda should have better instructed Mr Le Blond as to the proper procedure to be adopted in relation to the issue of subpoenas. Both solicitors shied away from the clearly desirable practice of letting other people know when a subpoena had been issued, especially in a matter that might involve national security information. Mr Le Blond relied on his rather limited experience in this regard. Mr Houda, who is considerably more experienced, seemed to think that it was unnecessary because the DPP or the Government Agencies would be likely to turn up, if there were to be a national security issue. I think it is clear that, in matters of this kind, it is desirable that notification be given to potentially interested parties when a subpoena is issued to a Court to produce documents, which may contain sensitive information. Secondly, I consider that Mr Houda should have involved himself more in the controversy that arose over 2 and 3 May 2006. He was, if you will, the master solicitor. He should have taken a more “hands on” role, particularly as his employed solicitor was relatively inexperienced. Moreover, I think Mr Lange would have benefited from more guidance and discussion with Mr Houda about the access problems that were arising. I accept that both men were very busy and that this played a part in a lack of communication between them. Thirdly, I think that when the inspection was taking place and the conversation took place with Mr Stride, Mr Houda might have, upon reflection, taken a different course. As with Mr Lange, I think that alarm bells should have rung at that stage at least. It is regrettable that they did not. But I cannot conclude that Mr Houda acted with any serious lack of professional propriety.

119 Mr Houda has honoured the undertakings he has given and he has complied with the Court orders. He has, in relation to other proceedings involving the Commonwealth, honoured his undertakings and displayed a professional attitude towards the protection of sensitive information. This is not to say that he always agrees with the Commonwealth’s position or with ASIO’s continued demand for secrecy and confidentiality. But, in the main, he has demonstrated that he does not pose an unacceptable risk in relation to the use or disclosure of confidential information. Although Mr Houda has had only very limited access to anything in the Warrant Affidavit, I consider that the offer of an undertaking to the Court should be accepted and that this will be sufficient in the circumstances to protect such confidential information as he has obtained.

120 In the case of both Mr Lange and Mr Houda, the evidence does not satisfy me that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that either of them should be prevented from acting in the trial of the accused. Their behaviour in this matter, although not free from criticism in the relatively limited ways I have indicated, falls well short of suggesting that they should be removed in the interests of the protection of the integrity of the judicial process. In this matter, Mr Khazaal’s fundamental right to the counsel and solicitor of his choice should be respected and the motion brought on behalf of the Commonwealth should be denied.

A final comment

121 During the hearing, I recommended to the parties that they shall endeavour to comprise the present dispute by putting in place an agreed protocol for their future conduct as between each other. Regrettably, that suggestion did not find favour with the parties. It had become quite apparent to me that, were the respondents to remain acting for the present accused and other persons accused of terrorism offences, there would need to be a fresh approach taken by both the Commonwealth and the respondents to both their ongoing relationship and their obligations towards each other. When the dust settles from the present proceedings, I would hope that such a protocol could be established. This is a two-way street. Something of a hostile attitude has emerged between the Commonwealth and the respondents. The respondents consider that the Commonwealth overstates its position on national security matters. The Commonwealth suspects that the respondents do not have a sufficient regard for matters of national security. These attitudes are inimical to the proper and satisfactory discharge of professional obligations. But in practical terms, the parties to this dispute may have to live with one another in this and many other trials.

122 I would renew my recommendation to the parties that, irrespective of the outcome of these proceedings, they ought establish a protocol for their future dealings so that the kind of problems that arose in this matter will not be repeated. In my view, the establishment of such a protocol will go a long way towards healing the rift between the parties. It will also go a long way towards reinstating the courteous and trusting relationship between them which is so important in professional dealings. Importantly, the establishment of such a protocol will be likely to enhance the protection of national security information, while at the same time ensuring that the rights of accused persons are paid due respect.

Orders

123 1. Order that the Notice of Motion herein be dismissed. I publish my reasons.

2. In relation to the closed court hearing, I publish a Confidential judgment. It may be distributed to the parties, other than to the NSW Bar Association and Law Society. It is not to be further disclosed or published without an order by me or another Supreme Court Judge.

3. Stand over the balance of proceedings so that undertakings, in terms agreed between the parties, be given to the Court.

4. I direct that Short Minutes be prepared for this purpose.

5. The proceedings be listed for further mention at 9.30am on Thursday 1 February 2007.

6. Costs of this and the previous motion be reserved for argument.

7. Confidential Exhibits “E”, “G”, “M” and 8 are to be returned to the tendering parties.

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CITATION:	Regina v Khazaal [2006] NSWSC 1353
HEARING DATE(S):	23/11/06, 24/11/06, 28/11/06, 29/11/06, 30/11/06,
JUDGMENT DATE :	13 December 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	1. Order that the Notice of Motion herein be dismissed. I publish my reasons. 2. In relation to the Closed Court hearing, I publish a Confidential judgment. It may be distributed to the parties, other than to the NSW Bar Association and Law Society. It is not to be further disclosed or published without an order by me or another Supreme Court Judge. 3. Stand over the balance of proceedings so that undertakings, in terms agreed between the parties, be given to the Court. 4. I direct that Short Minutes be prepared for this purpose. 5. The proceedings be listed for further mention at 9.30am on Thursday 1 Februaury 2007. 6. Costs of this and the previous motion be reserved for argument. 7. Confidential Exhibits "E", "G", "M" and 8 are to be returned to the tendering parties.
CATCHWORDS:	Injunction to restrain lawyers from acting - preserving integrity of judicial process - equitable principles - undertakings to protect confidential information - duty of practitioners in relation to national security information - criminal trial - right of accused to legal representation of his choice
LEGISLATION CITED:	ASIO Act 1979 National Security Information (Criminal & Civil Proceedings) Act 2004 International Covenant on Civil and Political Rights Criminal Code
CASES CITED:	Alister v R (1984) 154 CLR 404 at 436 Sankey v Whitlam (1978) 142 CLR 1 at 57 R v Khazaal [2006] NSWSC 1061 25 October 2006 Barwick v The Law Society NSW [2000] 74 ALJR 419 at 11 to 13 and 32 to 64 Smyrnis v Legal Practitioners Board [2003] NSWCA 64 at [16] Australian Consolidated Press Limited v Morgan & Anor (1965) 112 CLR 483 at 496 per Windeyer J Selly v Jago (1717) 1 P Wms 389 [24 ER 438 Scarel Ptry Limited v City Loan & Credit Pty Limited (1998) 17 FCR 344 at 348 (Gummow J) Forest View Nominees Pty Limited v Perpetual Trustees Pty Limited (1998) 193 CLR 154 at [16] Lest We Forget Pty Limited v Westpac Banking Corporation [2005] 565 ACSR 126 ar [20] per Barrett J Rondell v Worsley (1969) 1 AC 191 at 274 D'Orta-Ekenaike v Victoria Legal Aid [2005] 79 ALJR 755 at [27] Dietrich v The Queen (1992) 177 CLR 292 at 317 Emanuele v Emanuele Investmenst (1996) 21 ACSR 83 at 107 Franklin River Oliver Company Limited v Charters Securities Pty Limited [2004] WASC 88 at [25-26] Grimwade v Meagher, & Ors (1995) 1 VR 446 at 450 and 455 United States v Gonzalez-Lopez No 05-352 [26 June 2006] Black v Taylor (1993) 3 NZLR 403 Kallinicos & Anor v Hunt & Ors [2005] 64 NSWLR 561 Spincode v Look Software Pty Limited [2001] 4 VR 501 at [58] T.R. Flanagan Smash Repairs Pty Limited v Jones (1999) FCA 1391 at (16-18) per Hely J
PARTIES:	Regina v Belal Saadallah Khazaal
FILE NUMBER(S):	SC 2005/1095
COUNSEL:	Mr P. Willee QC, Mr T. Begbie - Commonwealth Crown Mr G. Bellew SC - Commonwealth DPP Mr Boulten SC, Mr A. Martin - Respondent Peter Lange Mr S. J. Gageler SC, Mr J. K. Kirk - Responent Adam Houda Mr M. Leeming SC, Ms A. Mitchelmore - NSW Bar Association & NSW Law Society Mr P. Lange - Accused
SOLICITORS:	Australian Government Solicitors - Commonwealth Crown Commonwealth DPP Solicitors Greg Walsh & Co Solicitors - Respopndent Peter Lange Gilbert & Tobin Solicitors - Respondent Adam Houda Adam Houda Solicitor - Accused