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R v Lodhi

R v Lodhi

Case [2006] NSWSC 596 15 March 2006

National Security Information (Criminal & Civil Proceedings) Act 2004

Protective orders

Open justice

Criminal Law

National Security Law

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Reported Decision:
163 A Crim R 508
199 FLR 270

New South Wales

Supreme Court

CITATION: Regina v Lodhi [2006] NSWSC 596

JUDGMENT DATE :
15 March 2006

JUDGMENT OF: Whealy J at 1

DECISION: Make Orders in accordance with Short Minutes of Order

CATCHWORDS: National Security Information (Criminal & Civil Proceedings) Act 2004: Protective orders - imposition of orders to protect National Security during a criminal trial - s 85B Crimes Act 1914 (Cth) - s 93.2 of the Criminal Code Act 1995 - principles of open justice - pseudonyms - screening orders - closed court orders - supression of publication of evidence

LEGISLATION CITED: Criminal Code Act 1995
National Security Information (Criminal and Civil Proceedings) Act 2004
Australian Security Intelligence Organisation Act 1979
Crimes Act 1914 (CPH)

CASES CITED: John Fairfax Publications Pty Limited & Anor v District Court of NSW [2004] 61 NSWLR 344
John Fairfax & Sons Pty Limited v Police Tribunal of NSW (1986) 5 NSWLR 465
Attorney-General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342
McPherson v McPherson (1936) AC 177 at 200
R v Tate (1979) 46 FLR 386 at 402
John Fairfax Group v Local Court of NSW (1991) 36 NSWLR 131 at 141B-F per Kirby P
ABC v Parish 29 ALR 228 per Bowen CJ at 236
John Fairfax Publications Pty Limited v Ryde Local Court [2005] 52 NSWLR 512 at paras 82 and 83
Regina v CAL (unreported CCA (NSW) 18 February 1993)
Witness v Marsden (2000) 49 NSWLR 429 at 464
Alister v The Queen (1983) 154 CLR 404 at 435 and 436
D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at page 233 per Lord Simon of Glaisdale
Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246FF
Regina v Mallah (unreported 11 February 2005 at para 23 per Wood CJ at CL
R v Ngo (2003) 57 NSWLR 555
Jarvie v Magistrate's Court (Vic) (1995) 1 VR 84 per Brooking J
Jago v District Court (1989) 168 CLR 223
R v Glennon (1992) 173 CLR 592
Dietrich v The Queen (1992) 177 CLR 292

PARTIES: Regina v Faheem Khalid LODHI

FILE NUMBER(S): SC 2005/1094

COUNSEL: Mr T. Howe - Applicant for C'Wealth Attorney General
Mr T. Blackburn SC - Media Interests (Intervening)
Mr R. Maidment SC; Mr G. Bellew - Crown
Mr P. Boulten SC; Mr P. Lange - Accused

SOLICITORS:
Australian Government Solicitor - C'Wealth A.G.
Commonwealth DPP - Crown
Michael Doughty - Accused

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

WHEALY J

WEDNESDAY 15 March 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application for Protective Orders

1 HIS HONOUR: This is the hearing of a motion on behalf of the Commonwealth Attorney-General. The application arises out of my decision given earlier today in relation to likely orders for disclosure in relation to national security information. I have in my previous decision referred to this information as “NSI”. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lodhi

Details

AGLC: R v Lodhi [2006] NSWSC 596
Case: [2006] NSWSC 596
Decision Date: 15 March 2006

CaseChat Overview and Summary

In the case of R v Lodhi, the appellant was charged with terrorism-related offences. The court was tasked with deciding whether the trial should be held in public or whether protective orders should be imposed to safeguard national security. The legal issues centred on the application of the National Security Information (Criminal & Civil Proceedings) Act 2004, specifically sections 85B of the Crimes Act 1914 (Cth) and 93.2 of the Criminal Code Act 1995. The appellant argued that the principles of open justice required the trial to be held in public, while the prosecution contended that protective orders were necessary to protect national security.

The court considered the balance between the right to a public trial and the need to protect sensitive information that could endanger national security. It noted the importance of open justice but recognised the potential risks of publicising certain details. The court found that the evidence in question was highly sensitive and that its publication could lead to serious harm. The court also examined the use of pseudonyms, screening orders, and closed court orders as measures to mitigate the risks while still allowing for a degree of transparency. Ultimately, the court decided that closed court orders were necessary to protect national security without completely sacrificing the principles of open justice.

The court's reasoning led to the conclusion that the trial should proceed with certain protective measures in place. The appellant's arguments for a fully public trial were not accepted due to the sensitive nature of the evidence. The court ordered that the trial proceed with pseudonyms, screening orders, and closed court orders to ensure that national security was protected while maintaining a degree of transparency. This decision underscored the delicate balance between open justice and national security.

The final orders of the court included the imposition of pseudonyms for individuals involved in the case, the implementation of screening orders to limit the audience of the trial to those with a direct interest, and the establishment of closed court orders for parts of the trial where the most sensitive evidence was to be presented. These measures aimed to protect national security while ensuring that the trial remained as open and transparent as possible under the circumstances.

Orders