R v Khazaal

[2006] NSWSC 1061

CITATION:	Regina v Khazaal [2006] NSWSC 1061 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22/09/06
JUDGMENT DATE :	25 October 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	I dismiss the motion and reseve the question of costs to the hearing of the principal application brought on behalf of the Commonwealth.
LEGISLATION CITED:	Criminal Code Australian Security Intelligence Organisation Act 1979 Crimes (Administration of Sentences) Regulation 2001 Evidence Act 1995 National Security Information (Criminal and Civil Proceedings) Act 2004
CASES CITED:	Alister v R (1984) 154 CLR 404 at 469 R v H; R v C [2004] 2 AC 134 at 155 (para 35) Kioa v West (1985) 159 CLR 550 at 582, 584-5 per Mason J. Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 at 620 Seymour v Price; Fitzgerald & Anor v Price BC 9805031 Regina v Lodhi [2006] NSWSC 596 Church of Scientology v Woodward (1982) 43 ALR 587 at 615 R v Mallah (unreported 11 February 2005 at para 23 per Wood CJ at CL) Carbotech-Australia v Yates [2006] NSWSC 269 per Campbell J at para 13 Traljesic v Attorney General for teh Commonwealth [2006] FCA 125 per Rares J at paras 22-23 Jackson v Wells (1985) 5 FCR 296 at 307-308 D & J Constructions Pty Ltd v Head (1987) NSWLR 118 per Bryson J at 122-123 Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 Regina v Lodhi [2006] NSWSC 586 Regina (Roberts) v Parole Board [2005] 3 WLR 152
PARTIES:	Regina v Belal Saadallah Khazaal
FILE NUMBER(S):	SC 2005/1095
COUNSEL:	Mr J. Kirk - Applicants Mr P. Willie QC; Mr T. Begbie - Commonwealth Attorney-General Mr D, Fagan SC - Commonwealth DPP
SOLICITORS:	Gilbert + Tobin - Applicants Australian Government Solicitor - Commonwealth Attorney-General Commonwealth DPP

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

WHEALY J

WEDNESDAY 25 October 2006

2005/1095 - REGINA v Belal Saadallah KHAZAAL

JUDGMENT - On Motion for access to documents (Applicants - Messrs Houda and Lange: Respondent – Commonwealth of Australia)

1 HIS HONOUR: The present application arises as a preliminary to proceedings in which the Commonwealth, through the Australian Government Solicitor, seeks to obtain a permanent injunction to restrain Adam Houda and Peter Lange from continuing to act for Belal Saadallah Khazaal (“the accused”) in relation to his trial on two charges alleging the commission of terrorist offences.

2 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.

3 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. I shall refer to these gentlemen as “the applicants”.

4 In 2003, 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 and certain documents and material were seized.

5 The Warrant Affidavit was retained in a sealed envelope bearing, as I understand it, official AFP document seals. Initially, it was held 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 of New South Wales a copy of the Warrant Affidavit in its possession. 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 applicants 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.

6 As I understand it, the Warrant Affidavit was then inspected in the Supreme Court’s Registry by Mr Lange at a time when he was accompanied by Mr Houda. There is no need for me 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, will comprise the basis of the substantive application that has been made on behalf of the Commonwealth seeking to exclude the applicants as legal representatives of the accused at his trial.

7 I should add that Mr Leeming now of senior counsel and Mr Brown solicitor, have indicated their intention to seek leave at the substantive hearing to appear for the respective interests of the New South Wales Bar Association and the Law Society.

8 As I said at the outset, the present application is a preliminary to the substantive matter. On 22 September 2006, I gave leave to the applicants to file the present application in Court returnable immediately. The motion seeks the following orders: -

“2. Access to:
(a) The affidavit referred to in paragraph 2.1 of the Notice of Motion filed by the Commonwealth of Australia in this proceeding (the Notice of Motion) on 31 May 2006; and
(b) the confidential affidavits filed by the Commonwealth of Australia in support of the Notice of Motion,
(the confidential material) be granted to Stephen Gageler SC, Jeremy Kirk, Steven Glass and Amanda Kempton or such of them as the Court thinks appropriate, on condition that they give an undertaking to the Court not to disclose the confidential material to any person, including Mr Houda and Mr Lange, or to use the confidential material for any purpose other than the purpose of representing Mr Houda and Mr Lange in relation to the Notice of Motion.
3. In the alternative to 2, that access to the confidential material be granted to a person to be appointed by the Court to act as Special Counsel for Mr Houda and Mr Lange in connection with the Notice of Motion on such terms as the Court thinks appropriate”.

9 In support of the motion there was received without objection an affidavit of Steven Glass dated 21 September 2006. Mr Glass annexes correspondence which has passed between his firm and Mr Trent Glover, the senior lawyer in the Australian Government Solicitor, in which particulars are supplied relating to the likely conduct of the substantive motion. It is not necessary for me to detail the correspondence. I do note however, the following matters: -

(i) In the letter of 6 June 2006, Mr Glover gave particulars of the details upon which the Commonwealth would rely in alleging that the applicants had made an ex-parte application for access to the Warrant Affidavit. Mr Glover explained that the Commonwealth would allege that the applicants had approached the Court and obtained access to the Warrant Affidavit in the absence of the Crown or any interested parties. Further, the applicants proceeded to inspect the documents in circumstances where it was, or should have been clear to them, that such inspection was, or was likely to be, opposed. Detailed particulars of these matters were supplied.

(ii) Mr Glover further explained in the same letter that there were two central features which made it appropriate that the applicants be restrained from further acting in the proceedings. These were, first, that the applicants had each had access to a substantial amount of highly sensitive and confidential information to which they should not have had access. Secondly, that the applicants had examined the Warrant Affidavit in circumstances which revealed ‘such a degree of impropriety and or lack of understanding of their obligations that they ought not be permitted to continue to act in the proceedings’.

(iii) In amplifying these matters, Mr Glover also foreshadowed that the high degree of confidentiality of the information in the Warrant Affidavit would be addressed by subsequent confidential affidavits to be sworn by the Deputy Commissioner for the Australian Federal Police and the Director General of Security. It was asserted that these would show that the information inspected included highly sensitive information relating to mattes of national security. In particular, Mr Glover pointed to the Commonwealth’s assertion that access to the information by the applicants have made it untenable for them to continue to represent Mr Khazaal, in particular because of the conflict between their duties to the accused on the one hand and their obligations to the Court and the Commonwealth on the other.

(iv) Again, in amplification of this last point, Mr Glover pointed out that the applicants would have an ongoing obligation to make available to the accused all the knowledge and information which they had gleaned from the inspection which might assist in the accused’s case.

(v) In a latter letter of 22 August 2006, Mr Glover further clarified the position of the Commonwealth. For example, the letter contained the following statements: -

“For more abundant clarity we would express the Commonwealth’s position in this way:
(a) Certain information in the Warrant Affidavit is highly confidential;
(b) Access to that information by Mr Lange and Mr Houda was contrary to the public interest on national security grounds;
© Further disclosure of the information would, similarly, be contrary to the public interest on national security grounds;
(d) In view of the matters referred to in (a) – (c), your clients ought not to continue to act for Mr Khazaal; and
(e) As such the confidentiality of the information will be a central basis for the Commonwealth’s Notice of Motion.”

10 The hearing of the access application continued before me throughout the entirety of 22 September 2006. Mr P. Willie QC and Mr T. Begbie appeared for the Commonwealth. Mr Jeremy Kirk appeared for the applicants. The Commonwealth Director for Public Prosecutions was represented by Mr D. Fagan SC. Mr Houda represented the interests of the accused, although he was not required to make any submissions in relation to the motion.

11 At the outset, Mr Willie QC on behalf of the Commonwealth, tendered a series of confidential affidavits. The first two (Exhibits “A” and “B”) were sworn by Mr Paul Thomas O’Sullivan, Director General of Security who held that office under the Australian Security Intelligence Organisation Act 1979 (the “ASIO” Act). Mr O’Sullivan had earlier sworn an “open” affidavit on 31 May 2006. This asserted, without detail, that the inspection of the Warrant Affidavit by the applicants was prejudicial to the public interest on national security grounds; that any disclosure of that information by either of the applicants to other persons would be contrary to the public interest on national security grounds; and further, that inspection of that information by the legal representatives for the applicants would be contrary to the public interest on national security grounds. The purpose of the confidential affidavits Exhibits “A” and “B” was to provide significant detail to explain and justify the claims made in the earlier open affidavit. Similarly, a confidential affidavit (Exhibit “C”) was sworn by John Adrian Lawler, the Deputy Commissioner of the AFP. He too had sworn an open affidavit at an earlier time in which similar claims to those made by Mr O’Sullivan had been made. The purposes of the confidential affidavit Exhibit “C”, sought to give detail, content and justification for the claims made in the earlier open affidavit.

12 It is necessary to note another matter in relation to the confidential material. On 22 August 2006, the Australian Government Solicitor had written to Gilbert & Tobin, solicitors for the applicants, enclosing a redacted version of the Warrant Affidavit. Acting Commission Lawler indicated, in his subsequent affidavit, that he had now given further consideration to the question as to which portions of the confidential affidavit (and which portions of the confidential Warrant Affidavit information) could be disclosed to the legal representatives for the applicants without prejudice to national security. As a consequence of this consideration, the confidential affidavit had certain portions highlighted in green. Similarly, a further copy of the redacted version of the Warrant Affidavit was annexed to the confidential affidavit with certain portions of that document being highlighted in green. The green areas were intended to be areas which represented disclosure to the legal representatives of the applicants. At the same time, Acting Commission Lawler sought orders that there be no disclosure of the material highlighted in green other than to the Court and the nominated legal representatives for the applicants. Ancillary orders were sought that any disclosure of the “green areas” be made only in closed court and that the material be otherwise securely handled by the Court until the conclusion of proceedings, following which the affidavit be returned to the AFP. There were other orders sought and made regarding other parts of the affidavit. The effect of these was to limit disclosure of certain of the material in the confidential affidavit (coloured yellow) to the Court and to no other person. As to the balance of the affidavit (that is other than those areas highlighted in green or yellow) disclosure was limited to the Court, the legal representatives for applicants, the accused together with his junior and senior counsel; and the Office of the Commonwealth Director of Public Prosecutions, together with junior and senior counsel for the Crown.

13 So far as Mr O’Sullivan’s confidential affidavit (Exhibit “A”) was concerned this contained virtually all confidential information and no disclosure of anything other the formal parts of the affidavit has been made to the applicants. The second of Mr O’Sullivan’s affidavit, namely Exhibit “C”, was entirely confidential. That affidavit, because of its extreme sensitivity, was returned immediately after my inspection into the custody of the Australian Government Solicitor, although I have had careful regard to its contents.

Submissions of the parties

14 Mr Kirk, on behalf of the applicants, outlined the arguments, as he understood them, that are likely to be relied on by the Commonwealth at the hearing of the principal motion. In that motion, the Commonwealth will argue that Mr Lange and Mr Houda should not continue to act because of the fact that public interest immunity of a high order attaches to the bulk of the material in the Warrant Affidavit. They, having seen that material, are compromised and conflicted from further appearing in the trial. There is likely to be a second argument to suggest that the applicants’ actions in accessing the warrant material reveal, to one degree or another, a reprehensible level of behaviour that may impact, for example, on their ability to comply with undertakings and the like.

15 Mr Kirk pointed out that although the applicants have themselves had access to the Warrant Affidavit material, their present legal representatives have not. This leads to Mr Kirk’s first principal submission.

16 Counsel submits that, without access to the material, the legal representatives will be hampered significantly in putting the submission that public interest immunity does not apply. Alternatively, they will be significantly hindered in being able to assess, and hence make submissions about, the gradation of the public interest immunity likely to be involved in the varying classes of material revealed in the Warrant Affidavit. The applicants argue that to refuse access will deny them procedural fairness. It is suggested that this is particularly important in the context where the principal application brought on behalf of the Commonwealth may result in the applicants being unable to represent their client in the present trial but where, in addition, an adverse finding could have more significant consequences for their professional futures generally.

17 The second submission made by Mr Kirk focuses upon that part of the Commonwealth case that will suggest that there is likely to be a conflict between the applicants’ duties to the accused Mr Khazaal, and their obligations to the Court and to the Commonwealth. This argument gives rise to a suggestion that there is likely to be material in the Warrant Affidavit that will or is likely to assist Mr Khazaal’s case. Again, while the applicant’s may have some knowledge of this (based on their perusal of the material), their legal representatives are completely ignorant as to what this might be. Again, the argument is that access is desirable as a matter of procedural fairness, given the nature of the argument to be relied on by the Commonwealth.

18 It is obvious enough, I suppose, that if there is nothing in the Warrant Affidavit that supports Mr Khazaal’s case, this point relied upon by the Commonwealth may lack substance. Equally, Mr Kirk’s argument will be somewhat diminished, although his point is that, without access, the legal representatives are simply left in the dark.

19 A substantial plank in Mr Kirk’s argument is his reference to material appearing in the final letter from the Australian Government Solicitor to Gilbert & Tobin to which I have already made reference. It bears repetition: -

“Confidentially in the information in the Warrant application will be an essential basis for the Commonwealth’s Notice of Motion”.

20 Mr Kirk argued that, if it be correct, that the information in the Warrant application is “an essential basis” for the Commonwealth’s application, his side should have access to it. Equally, he argued, it is necessary for the applicants to have access to the confidential affidavits supplied by Mr O’Sullivan and Acting Superintendent Lawler. Without this material, the applicants’ legal representatives cannot comprehend why it is said that the material in the Warrant Affidavit, if disclosed, would pose a significant threat to national security. Mr Kirk sought to distinguish the usual type of public interest immunity case from the position here. In a criminal trial, for example, he said, the accused may wish to get access to material for the purpose of considering whether it is relevant to his defence. Here, the Commonwealth asserts that the Warrant Affidavit material is, in fact, central to the determination of the issues in the principal motion. As a consequence, the applicants must be irrevocably hindered by not having access to that material, or to the reasons which underlie the claim for national security protection.

21 Finally, Mr Kirk submitted that access should be granted to at least one of the legal representatives on the applicant’s side; alternatively, that special counsel be appointed to have access to the material, such counsel to be a person of undisputed integrity, satisfactory to the parties and in possession of a National Security Clearance.

22 In relation to the submissions on behalf of the Commonwealth, the Court had the advantage of receiving written submissions from Mr Paul Willie QC and Mr Tim Begbie, counsel for the Commonwealth. In addition, Mr Willie QC provided oral submissions to the Court. Essentially, the Commonwealth argue that it is clear from the information contained in the confidential affidavits (Exhibits “A”, “B” and “C”) that there is a strong prima facie case for refusing access to the national security information contained in the Warrant Affidavit. For the same reason, access should be refused to the confidential affidavits themselves.

23 Mr Willie argued that disclosure of any of this material to the legal representatives for the applicants would unacceptably prejudice the important public interest involved in keeping this material confidential.

24 Secondly, Mr Willie argued that established authority made it clear that, in any event, material of this kind should not be disclosed prior to the ultimate determination by the Court as to whether public interest immunity had been established. This was so, it was submitted, even though the inevitable result would be that applicants’ legal representative would, or might be, hampered in the ambit of the submissions they could make on the principal application. (Alister v R (1984) 154 CLR 404 at 469 per Gibbs CJ, Wilson, Brennan and Dawson JJ).

25 In his oral submissions to the Court, Mr Willie QC was at pains to avoid disclosing material of a sensitive and confidential nature. He made the point, however, that the Warrant Affidavit information plainly included information relating to confidential sources and on going counter terrorist activities. This much, at least, appeared from the open affidavits filed by Mr O’Sullivan and Acting Superintendent Lawler. Mr Willie argued that it was plainly the situation that the disclosure of the detail of such information would itself be likely to prejudice national security. Senior Counsel submitted that full weight and proper respect should be given to the reasons advanced in each of the confidential affidavits. These reasons supported not only the claim for public interest immunity but also the claim that access should be denied to the applicants’ legal representatives.

26 Finally, Mr Willie QC addressed the issue of the appointment of special counsel. In short, his submission was that, although he did not dispute that special counsel might be appointed in an appropriate case, this was not such a case. He said that any such appointment should not occur before close inspection of the confidential material by the trial Judge. Secondly, any such appointment should only occur once the trial Judge is satisfied that the material in question can be characterised as a “truly borderline case…on disclosability” R v H; R v C [2004] 2 AC 134 at 155 (para 35).

Resolution of the issues

27 I have taken some little trouble to set out the background and submissions made in this matter. The principal issue, however, is a very simple one: will the granting of access to the confidential material, under any circumstances, be likely to endanger national security? If it will, is there any further scope, according to the dictates of procedural fairness, for disclosure of some kind or in some manner?

28 These questions pose a tension between two well-known concepts in the law: fairness in litigation and the protection of national security interests. The principles involving these concepts are well established and are not in issue in this motion. .

29 As to the rights of a person to know the case against him: see Kioa v West (1985) 159 CLR 550 at 582, 584-5 per Mason J. As to limitations on disclosure of documents under claim of public interest immunity: see Alister v The Queen at 469; Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 at 620; Seymour v Price; Fitzgerald & Anor v Price BC 9805031 and Regina v Lodhi [2006] NSWSC 596

30 In my view, the resolution of the principal issue commands only one answer. Overwhelmingly, the need for the protection of confidential and highly sensitive national security material compel the result that access, in the present matter, must be denied. I shall briefly state my reasons.

31 The starting point is the clear recognition that the confidential affidavits makes it quite clear that much of the material in the Warrant Affidavit relates to national security information that is highly sensitive. The open affidavits disclose that the material relates to sensitive sources of intelligence and to counter terrorism strategies and activities. Secondly, the material in the confidential affidavits themselves is of the same general nature but it is sensitive to an even higher degree. The protection of sensitive sources, the suppression of details relating to the police and the security agency’s ongoing strategy to defeat and frustrate terrorist activities in this country must be of paramount importance to national security. As Brennan J stated in Church of Scientology v Woodward (1982) 43 ALR 587 at 615: -

”Discovery would not be given against the Director General save in a most exceptional case. The secrecy of the work of an intelligence organisation which is to counter espionage, sabotage, etc is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice (R v Lewes Justices; Ex Parte Home Secretary (1973) AC 388 at 407)”.

32 These statements, made nearly 25 years ago, have a more emphatic content in the present world climate. The interests of national security and the need for effective counter-terrorism operations today are plainly of very great importance (see Wood CJ at CL in R v Mallah (unreported) 11 February 2005 at para 23).

33 Thirdly, the confidential material, in general terms, is so significant in terms of national security sensitivity, that the better view is that it should not be disclosed to the legal representatives of the applicants, even though undertakings have been proffered on behalf of those persons in an endeavour to protect the material from any form of public dissemination. In relation to this point, I need to address a number of subsidiary remarks.

34 The first is that there is no suggestion that experienced junior and senior counsel involved in the principal motion will, or would be likely, to disclose the material in degradation of their undertakings. Although none of the legal representatives has a Security Clearance in relation to national security legislation, that is not to the point here. The second subsidiary matter is this: although I have absolute confidence in the individual legal representatives who will be appearing on the principal motion, there are three matters of qualification that need to be mentioned. First, there is the possibility of inadvertent disclosure. This has been commented on in a wide range of cases. For example, in Carbotech-Australia v Yates [2006] NSWSC 269 Campbell J stated at para [13]: -

“Even if documents are only shown to nominated officers of the litigant, and even if those officers are informed of the restrictions on use of the information…those officers are subject to the same risk of inadvertent disclosure as a solicitor to whom access is restricted is subject. As well, even if the officers are being punctiliously careful, the workings of the human mind are such that, once something is known, sometimes it cannot be completely obliterated. Use can sometimes be made unconsciously of information one has learned. Those considerations need to be balanced against the importance of the issues in the proceedings”.

35 See also Traljesic v Attorney General for the Commonwealth [2006] FCA 125 per Rares J at para 22-23; Jackson v Wells (1985) 5 FCR 296 at 307-308; D & J Constructions Pty Limited v Head (1987) NSWLR 118 per Bryson J at 122-123.

36 Mr Kirk argued that this aspect of inadvertent disclosure is of limited relevance in the present matter because the applicants had themselves, to one degree or another, read the Warrant information. Mr Kirk, however, acknowledged that the same point could not be made concerning the confidential affidavits sworn by Mr O’Sullivan and Acting Superintendent Lawler. The question as to the information actually gleaned by either Mr Lange or Mr Houda will undoubtedly be an issue in the principal motion. It cannot necessarily be assumed that either of those gentleman absorbed, during the relatively brief inspection of the Warrant Affidavit, the entirety of the material that I have had to examine with considerable care and circumspection. There is a world of difference between a hurried inspection in the Registry office for the purposes of preparing an urgent written submission required by senior counsel (as I understand the circumstances to have been) and the detailed analysis I have undertaken of the same material. The consequence is that there may be many aspects of the Warrant Affidavit that are not known to Mr Lange or Mr Houda or which, certainly, would not have been retained in their respective memories. Mr Kirk’s concession, however, regarding the confidential affidavits exhibits “A”, “B” and “C” is properly made.

37 But there is a more important point to be made, beyond simply trying to isolate those aspects of the Warrant Affidavit that may have been seen and remembered by the applicants. Disclosure of the material to the legal representatives of the applicants for the purposes of the principal motion poses a wider risk of inadvertent disclosure than simply disclosure to the applicants themselves. Some of the material in the Warrant Affidavit (and almost all of the material in the confidential affidavits) is material that simply should not be disclosed at all, if it is at all possible to avoid that situation. The risk to national security flowing from inadvertent disclosure in any area of the public forum is simply too high. It may be thought by some that the insistence on non-disclosure by ASIO and the Australian Federal Police is some type of over reaction on their part. In my view, however, it is not overly dramatic to say that the protection of this type of information is, or at least may be, in general terms, a matter of life and death for the citizens of this country. It is all too easy to dismiss the risk of a terrorist attack in Australia as unlikely. The reality is that, in the present political and ideological climate, Australia may face real prospects of being subject to a serious terrorist attack or attacks within the confines of its shores. One protection from such a danger (and I do not suggest that it is the only protection) is the promotion of the efficient and ongoing work of our police enforcement agencies and, in particular, our national security intelligence agency. It is for this reason that I consider that, wherever it is at all possible, there should be a restriction on disclosure of this kind of material so as to prevent inadvertent disclosure not merely to the parties themselves but to the world at large.

38 In making this assessment, I am conscious of the fact that it is not possible to prevent disclosure of some kind. Absolute non-disclosure is an ideal that cannot be achieved. For example, the Judge who is required to form an opinion about aspects of national security and confidentiality in documents knows, in detail, the nature of the sensitive material. The lawyers for the Commonwealth, to one degree or another, are in possession of this information. The material itself is stored in brief cases and safes to prevent inadvertent disclosure. But in all these circumstances, there still arises the risk of inadvertent disclosure. Even though it is not commonly thought so, judges are human too, just as barristers and solicitors are. There is always the risk of “loose talk” in a social setting where something which is otherwise confidential may be disclosed and then inadvertently passed on to a wider audience. The recognition of this possibility does not make it any less important to restrict disclosure as much as possible and wherever it is, consistently with fairness, possible.

39 The final aspect on disclosure is the need to recognise the reality that, quite apart from inadvertent disclosure, there are, in the international sphere and perhaps in this country, intelligence gathering operations designed to block counter-terrorism strategies. Those operations are likely to seek out, often in a sophisticated way, information which would be likely to weaken those counter-terrorism strategies and methods. The reality of this situation reinforces the need to prevent, or at least, limit disclosure of sensitive information wherever that is possible.

40 I realise that I have digressed somewhat from my principal statement of reasons to make these subsidiary points about disclosure. May I now return to those reasons and address the evaluation of perhaps the most important point for the purposes of this decision. This is the evaluation of the question as to whether procedural fairness will be denied to the applicants if access be denied to their legal representatives. It is obvious enough, as Mr Kirk’s submissions made clear, that the legal representatives for the applicants must be in a better position to make submissions on behalf of their clients were they to be given access to the material. That, as I have also said earlier, is not the criterion where national security risks are concerned. I have come to the conclusion, however, on this fourth point, that the position of the applicants is by no means as dire as Mr Kirk has submitted. There are a number of matters to be mentioned in this regard.

41 The first matter is that the applicant’s legal representatives have been given a limited amount of information in the form of the redacted material I have earlier identified. There are also the open affidavits to which I have made reference. True it is that this material will provide the legal representatives little in the way of detail. But they will know the general nature of the claims for public interest immunity and the structure of those claims. The second matter is the point made in argument by Mr Fagan SC who advanced submissions on behalf of the Commonwealth Director of Public Prosecutions. This was to the effect that the principal matter at issue in the Commonwealth’s application will be the question as to whether the applicants, or either of them, were guilty of, at one end of the scale, professional wrong doing or, at the other, a mere error of judgment. Senior counsel submitted that an analysis of the professional level of behaviour of Mr Lange and Mr Houda does not, except in a general sense, involve a detailed consideration of the confidential material. The risk to national security arising out of disclosure of the Warrant Affidavit material to the applicants arises only in the context of the Commonwealth’s second argument, namely whether the applicants are in a position of conflict with their client’s interests; or might otherwise be prohibited from continuing to appear.

42 The third matter is this: although the applicant’s legal representatives will not have access to the confidential material, the Court will have examined it in considerable detail. If I may say so, the documentary material is of no great magnitude; its nature is easily and clearly understood; and the reasons for non-disclosure are articulated comprehensively and succinctly in the confidential affidavits. In particular, the affidavit of Acting Superintendent Lawler broaches a considerable number of topics in a plain and ambiguous manner. This is not a case in which I consider that the Court needs any further assistance in the form of submissions from opposing counsel.

43 The final matter is that this is a case, perhaps unlike some others, where the applicants can take considerable comfort in the fact that the presiding judge will know and understand the nature of the confidential information. Moreover, unlike the situation that can sometimes arise in a criminal trial, the Court will know precisely those matters that are important to the position of the applicants when the principal motion is heard. In particular, the Court will have been able to assess for itself the gradation of the confidential material. Clearly enough, there are some topics that are more sensitive than others in the confidential Warrant Affidavit material. Equally, the Court will be able to know whether there are any matters that are likely to arise as raising questions of conflict between the applicants and their client in the trial. It may be that some more information will be necessary to be placed before the Court as to the nature of the charges and the defence position likely to arise. This is, however, unlikely to be a complicated aspect of the principal motion.

44 The Crown placed particular reliance on a decision of Acting Justice Smart in Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562. This is a case in which the plaintiff was a solicitor practicing mainly in the criminal law area. The defendant had given directions under clause 105 of the Crimes (Administration of Sentences) Regulation 2001 that the plaintiff and certain of his staff be prevented from entering any Correctional Centre on the basis that any visit to an inmate at such centre would prejudice the good order and security of a Correctional Centre. This decision followed a prison visit by the plaintiff during which an inmate/client directly handed notes to the plaintiff’s paralegal in contravention of the regulations. The decision was also based on confidential intelligence information concerning certain other alleged misconduct by the solicitor. The plaintiff however was not told what the misconduct was nor was he given access to the confidential intelligence information. The plaintiff claimed a denial of procedural fairness and, at the hearing, the Commissioner sought to have three confidential affidavits admitted without disclosing their content to the plaintiff. The case turned upon consideration of the matters contained in s 130 of the Evidence Act 1995.

45 At the hearing, the Commissioner submitted that s 130(1) created a discretion allowing, but not mandating, the Court to refuse to admit evidence where the public interest in confidentiality outweighed disclosure. The defendant asked the Court to admit the evidence but to preclude the plaintiff having access to it.

46 Smart AJ admitted the evidence but came to the view that it would be against the public interest and the ongoing protection of crime and the maintenance of security and order in prisons if the information admitted into evidence were revealed to the plaintiff. Secondly, his Honour held that the rules of procedural fairness were not breached in respect of the non-disclosure of the intelligence information. His Honour held that the situation was one where the content of the rules of procedural fairness were “elided to nothing” due to the fact that to do otherwise would frustrate the Commissioner’s need to protect confidentiality and secrecy (Paras 103 and 104).

47 It will be seen that Nicopoulos’s case is very different in a number of respects from the situation I am dealing with here. The parties are agreed, for example, that s 130 of the Evidence Act 1995 is not relevant to my determination of the notice of motion for access to confidential documents. Moreover, it is difficult to know with any precision the nature of the confidential information placed before Smart AJ in Nicopoulos’s case. One can make an educated guess at the nature of the public interest involved (for example, there is a reference in para 99 to the detection and prevent of crimes and breaches of prison regulations and rules) but the position is not clear.

48 Another difference is this: the point at issue there was that it was the conduct of Mr Nicopoulos (or at least material about his former conduct) that was itself the confidential material in issue. In that respect, Nicopoulos is markedly different from the present matter.

49 Nicopoulos’s case, however, was raised particularly in relation to a proposition I mentioned during argument to Mr Willie QC. I remarked that it seemed unusual in the present matter, where an adverse finding could impact markedly on the professional careers of the applicants, that neither they, their legal representatives or anyone else would know what the material is that was to determine, in effect, the outcome of the application. In putting that proposition to Mr Willie QC, I had in mind the possibility that special counsel might be appointed. Senior counsel responded by giving Nicopoulos as an illustration of an extreme, but justifiable position.

50 It might be observed however, that the issue of the appointment of special counsel was not raised before Smart AJ in Nicopoulos. In any event, it may be convenient if I turn to the issue of special counsel at this point.

Special counsel

51 In Regina v Lodhi [2006] NSWSC 586, I addressed the possibility of the appointment of special counsel. This was against the background of the National Security Information (Criminal and Civil Proceedings) Act 2004. I traced the development of the practice of the appointment of special counsel in the United Kingdom (see paras 13 to 16). I do not propose to repeat those matters in this decision (see also Regina (Roberts) v Parole Board [2005] 3 WLR 152). The appointment of special counsel in Australia is a novel concept. For the reasons set out in Lodhi I considered that the provisions of the NSI Act did not prohibit the appointment of special counsel in appropriate circumstances. It follows that I take the view that the appointment of special counsel in a matter such as the present, that is outside the confines of the NSI Act, might in certain circumstances be appropriate, indeed necessary. As to the appropriateness of the appointment of special counsel, it is worthwhile recalling the words of Lord Bingham in R v H; R v C at para 22: -

“None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant”.

52 In the present matter, I have concluded that it is not necessary to consider further the appointment of special counsel. This follows essentially from the reasons I have already outlined as to why I think it is not necessary to order access in favour of the legal representatives for the applicants. To this I would add that I do not think in the present matter that the Court would be assisted by special counsel in understanding the issues that are likely to arise on the principal motion. I have explained why this is so in connection with both the confidential affidavits and the Warrant Affidavit material. In my view, the public interest in prohibiting disclosure, based as it is on the real possibility of a threat to national security, outweighs disclosure of the Warrant Affidavit material not only to the legal representatives but to special counsel as well. I consider that this is the position also in relation to the confidential affidavits but to an even higher degree. Mr Kirk candidly acknowledged that he faced a difficult threshold in obtaining access to the body of material in issue. In my view this was a very fair and frank evaluation of the likely situation. On inspection of the material, it has proved to be undesirable, in balancing out the competing considerations, for access to be granted.

53 Accordingly, I dismiss the motion and reserve the question of costs to the hearing of the principal application brought on behalf of the Commonwealth.

ADDENDUM:

54 After my decision was reserved, I gave the parties leave to file a supplementary submission in relation to a discrete point: Mr Willie QC, during argument, had suggested that Mr Lange may have been in breach of his undertakings not to disclose any information contained in the Warrant Affidavit. This emerged, he suggested, from a paragraph in Mr Lange’s draft affidavit. In this paragraph, Mr Lange made in draft two statements about the extent of his observations during his inspection of the material on 3 May 2006. It is clear the parties are in substantial disagreement on this point. But it is equally clear that this matter in dispute does not need to be resolved for the purposes of the present motion. It may (or may not) be relevant when the principal motion is heard. Its only relevance for the purpose of the present motion is that it provides an illustration, at its highest, of the potential or possibility that inadvertent disclosure may take place in relation to confidential material provides to lawyers. That is a topic I have already addressed in this decision. It needs no further comment in the context of the additional submissions.

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26/10/2006 - Spelling of Accused in heading of Judgment incorrect - Paragraph(s) Line 7 in heading of judgment