R v Lodhi

[2006] NSWSC 596

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 shall use the same descriptor in this decision. On 7 February 2006 the Crown presented a fresh indictment against the accused. The accused pleaded not guilty to each of the four charges in the new indictment. The counts in the indictment are as follows:

1. On or about 3 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi did collect documents, namely two maps of the Australian electricity supply system which were connected with preparation for a terrorist act, namely bombing part of the system, knowing the said connection.
2. On or about 10 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi did an act, namely sought information concerning the availability of materials capable of being used for the manufacture of explosives, in preparation for, or planning a terrorist act, namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown.
3. On or about 24 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi did make a document, namely a set of aerial photographs of Australia defence establishments which were connected with preparation for a terrorist act, namely the bombing of one or another of the establishments, knowing the said connection.
4. On or about 26 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for, the engagement of a person in, or assistance in a terrorist act namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown, knowing the said connection.

2 The first and third counts in the indictment allege offences against s 101.5(1) of the Criminal Code Act 1995 (“Criminal Code”). Count 2 of the indictment alleges an offence s 101.6 of the Criminal Code. Count 4 alleges an offence against s 101.4 of the Criminal Code.

3 In an earlier decision given on 14 February 2006, I set out relevant parts of the legislation contained in the Criminal Code Act 1995 pursuant to which the charges in the indictment were brought against the accused. I also set out, in some considerable detail, the background to the alleged offences and details of the evidence likely to be led against the accused. I shall not repeat these matters in this decision but I shall incorporate them here by reference to the earlier decision.

4 During the week of 6 March 2006, it became necessary for the Court to give consideration to certificates issued by the Attorney-General under Part 3 of the National Security Information (Criminal and Civil Proceedings) Act 2004. As indicated earlier, I have today, prior to giving this decision, indicated the range of likely orders to be made under s 31 of the NSI Act. I have not at this stage made those orders but merely indicated their likely scope and reach. The Attorney-General, who has been permitted to intervene in those proceedings, made submissions to the Court for the purposes of the NSI Act during a closed court hearing. The Court then moved into open court session immediately after the closed court hearing had finished. It did so to enable the Attorney-General to make submissions as to the imposition of protective orders relating to NSI in the event that the Court was minded to order disclosure pursuant to the NSI Act. The protective orders sought relate to pre-trial hearings and, if necessary, the trial itself.

5 Mr Howe appeared for the Attorney-General and for ASIO to make submissions in support of the imposition of protective orders. Leave was granted to Mr Blackburn SC to appear on behalf of media interests in opposition to the orders sought. The Crown was represented by Mr Maidment SC. Mr Boulten SC and Mr Lange appeared for the accused.

6 In general terms, the present application requires the Court to conduct a balancing and weighing exercise in relation to a number of strongly competing considerations. These include the protection of national security; the right of the prosecutor to place before the jury evidence in support of its contention that the accused is guilty of the charges brought against him; the principles of open justice and, importantly, the accused’s right to be tried fairly. The Court’s ultimate task is to come to a discretionary decision in relation to the imposition of protective orders and, if so, the extent to which such orders should be made. The considerations I have identified, as might be expected, pull strongly in different directions.

7 I have had placed before me an extensive affidavit sworn by Paul Thomas O’Sullivan, the Director-General of Security. Mr O’Sullivan holds office under the Australian Security Intelligence Organisation Act 1979 (the “ASIO Act”). The affidavit is in two forms. Exhibit “A” contains a considerable amount of confidential material, some of which is not available to the public generally and other parts of which have been furnished to the accused but not to the media interests. Exhibit “A1” represents an edited form of the affidavit, which does not contain confidential material. It is necessary in giving this decision to bear in mind the need for care to ensure that, in discussions of the material sought to be suppressed, national security is not damaged by inadvertent disclosure. For that reason, I will annex to this decision a confidential schedule, which will identify some aspects of the material, sought to be suppressed by court order. The schedule itself will be made available to the accused and his legal representatives but otherwise is not to be disclosed or published. It will be of course be available to any appeal court dealing with any appeal from this decision.

Sources of power

8 There have been two sources of power identified. The first is s 85B of the Crimes Act 1914 (CPH). This is in the following terms: -

“85B(1) At any time before or during the hearing before a Federal Court, a court exercising federal jurisdiction or a court of a territory of an application or other proceedings, whether in pursuance of this act or otherwise, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that such a course is expedient in the interest of the defence of the Commonwealth:
(a) order that some or all of the members of the public shall be excluded during the whole or a part of the hearing of the application or proceedings;
(b) order that no report of the whole of a specified part of or relating to the application or proceedings shall be published; or
(c) make such order and give such directions as he thinks necessary for ensuring that no person, without the approval of the court, has access, either before, during or after the hearing of the application or the proceedings, to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.
(2) A person who contravenes or fails to comply with an order made or direction given in pursuance of this section shall be guilty of an offence.
Penalty: Imprisonment for 5 years”.

9 The second source of power is s 93.2 of the Criminal Code Act 1995. This is in the following terms:

“ Hearing in camera etc.
(1) This section applies to a hearing of an application or other proceeding before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.
(2) At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth:
(a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or
(b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or
(c) make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.
(3) A person commits an offence if the person contravenes an order made or direction given under this section.
Penalty: Imprisonment for 5 years”.

The principles of open justice

10 The content and scope of the principles of open justice at common law have been the subject of determination by the New South Wales Court of Appeal in a number of decisions over the last 20 years. One of the most recent is the decision of the Court in John Fairfax Publications Pty Limited & Anor v District Court of New South Wales & Ors [2004] 61 NSWLR 344. The principles I take to be applicable are to be found in the decision of Spigelman CJ with whom Handley JA and M.W. Campbell AJA agreed. Those principles may be summarised as follows:

1. Open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public is an essential quality of an Australian court of justice.

2. Where a Court has an inherent or statutory jurisdiction to make a non-publication order, a test of necessity is ordinarily applied to the exercise of the power to make such an order. A court can only depart from the fundamental rule that the administration of justice must take place in open court where observance of the rule would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. An order of the court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in the proceedings before it.

3. An order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice or the protection of the relevant public interest.

4. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication (see John Fairfax & Sons Pty Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Attorney-General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342.

5. It is well established that the exceptions to the principle of open justice are few and strictly defined (see for example, McPherson v McPherson (1936) AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402. It is now accepted that the courts will not add to the list of exceptions but, parliament may do so, subject to any Constitutional constraints.

11 In John Fairfax Group v Local Court of New South Wales (1991) 36 NSWLR 131 at 141B-F Kirby P said: -

“At common law the rule is not absolute, as the Law Lords were at pains to stress in Scott v Scott and have done since both in the Privy Council (see eg. McPherson v McPherson ) and in the House of Lords: see eg. Attorney-General v Leveller Magazine Ltd (1979) AC 440. Exceptions have been allowed by the common law to protect police informers (see discussion Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246 FF; John Fairfax & Sons Limited v Police Tribunal of New South Wales (at 472); blackmail cases (see eg. R v Socialist Worker Printers and Publishers Limited; Ex Parte Attorney-General (1975) QB 637 at 649, 652) and cases involving national security: see A v Hayden (1984) 156 CLR 532 at 599; cf Re a Former Officer of the Australian Security Intelligence Organisation (1987) VR 875 at 876; Taylor v Attorney-General (1975) 2 NZLR 675. The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourages its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of a particular case.”

The scope of the statutory sources of power

12 One argument which emerged during the hearing of the present application related to the application of these common law principles to the statutory sources of power I have identified. In my view, those principles, in general terms, are applicable to the exercise of the statutory sources of power in both the Crimes Act 1914 and the Criminal Code Act 1995 in the sense that they are proper aspects of matters to be considered and weighed in the balance. Neither section mentions the principles of open justice but it is clearly the case that those principles underpin the discretionary exercise. (See ABC v Parish 29 ALR 228 per Bowen CJ at page 236). In the same way, it is proper to take into account, as a discretionary consideration, the issue as to whether, if protective orders were made, the accused would be precluded from receiving a fair trial. This is so even though such considerations are not mentioned in either statutory source of power.

13 Notwithstanding that these are proper matters to be taken into account, it is my view that each section falls to be applied, in the ultimate discretionary exercise, in accordance with its own terms. For example, in relation to s 85(b) of the Crimes Act 1914, the Court, having considered the full range of discretionary matters I have mentioned and such other matters as may be relevant to the statutory exercise must decide whether it is satisfied that it “is expedient in the interest of the defence of the Commonwealth” to order that the court be closed and that a non-publication order be made. (See John Fairfax Publications Pty Limited v Ryde Local Court [2005] 52 NSWLR 512 at paras 82 and 83).

14 In view of the importance of the principles of open justice and the importance of the right of the accused to be tried fairly, the determination to order a closed court and non-publication is a weighty one. It is a decision that should only be made on the basis of proper evidence or material before the court.

Category 1

15 The first category of order relates to ASIO witnesses generally. In relation to all these witnesses, the following orders are sought: -

1. The Court be closed while the witnesses gives his or her evidence and that there be no publication of evidence taken during the closed court session.
2. There be no disclosure or publication of details of the appearance of the witness.
3. That each witness give evidence while using a pseudonym or cipher.

16 There is little, if any, controversy regarding the second and third orders sought. The first order identified above has, however, prompted vigorous argument and contest from both the media interests and the accused. It will be convenient if I deal with the second and third orders sought by way of preliminary to the matter in significant contest.

17 There is no objection to the use of pseudonyms and I propose to make an order to that effect in due course. (Regina v CAL unreported decision of CCA (NSW) 18 February 1993). There was, however, some discussion about the ancillary order relating to non-publication of details of the appearance of the witness. In my view, an order in the terms of that made in Witness v Marsden (2000) 49 NSWLR 429 at 464 will address the arguments of the media interests and satisfy the Director-General. The order made in that case was: -

“Any matter which is likely to lead to the identification of the witness is not to be reported by those in Court”.

18 This brings me to the critical argument. It relates to the question whether the Court should be closed while an ASIO witness gives his or her evidence. Such an order is pressed on behalf of the Commonwealth on two bases. First, to protect against the unwitting disclosure of national security information by an ASIO agent in the course of his or her evidence. Secondly, the order is sought, and is suggested as necessary, on the basis that it is needed to confer effective protection against disclosure of the identity of ASIO agents.

19 The material in support of each of these bases for the imposition of a closed court order appears, first, in the open sections of Mr O’Sullivan’s affidavit Exhibits “A” and “A1”. The first matter which was developed is obvious enough: it is fundamental to the effective operation of an organisation such as ASIO that its areas of interest; the identity of subjects of security interest; the degree of its ability to obtain intelligence in relation to those subjects; its sources, investigative techniques and work methods and the like, are all matters specific details of which must be kept in the strictest possible secrecy. Disclosure of matters of that kind in the public domain would adversely affect ASIO’s ability to effectively perform its statutory functions. Without this advice, the Commonwealth would not be able to receive timely forewarning or threats to Australia’s security and would be less able to take appropriate action to deal with such threats.

20 The second matter relates to the position of individual ASIO personnel. Again, the concern is clear enough. The notion of protecting the identity of former and serving ASIO personnel is critical to ASIO’s ability to perform its functions effectively. With a few exceptions, all ASIO personnel are required to take steps to prevent disclosure of the fact that they work for ASIO. The protection of the identity of ASIO personnel is a key part of ensuring the secrecy and confidentiality of the general matters described in the first major matter that I have identified above. It is perfectly clear that disclosure of the identity of former ASIO personnel may seriously compromise ongoing activities with which they have been involved. So too, disclosure of the identities of present ASIO personnel has the capacity to seriously compromise both past and present activities. It appears that the importance of preserving this anonymity is highlighted by the fact that periodically attempts have been made to identify and photograph ASIO personnel.

21 The third proposition arises from the personal danger that might face ASIO personnel their families and property were they to be identified. There is no reason to suppose that this concern does not extend to persons who worked with ASIO but no longer do so.

22 Finally, it cannot be doubted that ASIO personnel have access to a great deal of highly sensitive information, the unauthorised disclosure of which could cause significant damage to the security not only of Australia but of other countries. It is very easy to see that, were the identity of ASIO personnel to be revealed, they could easily become targets for persons and organisations interested in carrying out espionage and politically motivated violence. Such persons are plainly likely to go to great lengths to determine the extent of ASIO’s knowledge about their activities and the nature of intelligence and operational techniques used by ASIO. In addition, s 92 of the ASIO Act makes the unauthorised disclosure of the identity of a present or former ASIO officer employee or agent an offence.

23 In addition to these matters of general and obvious particularity, there are a number of matters raised in this connection on a confidential basis by Mr O’Sullivan in his affidavit Exhibit “A”. The nature of the number of these concerns are known to the accused and his legal representatives but they have not been made public to the media interests or generally. It is not appropriate that they be revealed in this decision. I have however, prepared and published, as indicated earlier, a confidential schedule, which is not to be disclosed or published (beyond the prosecutor, the Attorney-General and the defendant) to any other person save and except for a court hearing an appeal from this decision. I refer here to the matters mentioned in the confidential schedule.

24 It is sufficient to say, however, that the confidential material places all of the concerns I have identified above in general terms into a real and concrete setting.

25 Essentially, the media interests argue that an order closing the court and requiring non-publication of the closed court session will be an over reaction. Mr Blackburn SC described it as “overkill”. Senior counsel argued that such an order was simply not necessary in the interests of the defence of the Commonwealth and was therefore not expedient in that regard. Mr Boulten SC expressed a general concern that related not only to this matter but to other protective orders discussed. This was to the effect that the particular and cumulative effect of a number of closed court orders, together with other orders, would be likely to influence the jury to such an extent that it would create the risk of unfair prejudice to the accused and hence bring about an unfair trial.

26 The position of the Crown was twofold: Mr Maidment SC generally supported the position adopted by the Attorney-General but indicated that, so far as it could be done, the Crown wished the trial to proceed as normally as possibly. The Crown, however, submitted that, were the Court to accede to the protective orders presently under discussion, an appropriately worded direction to the jury would remove the possibility of prejudice. The second matter mentioned by the Crown was that it was generally concerned that, were the Court to refuse to impose appropriate protective orders, this might affect the availability of evidence otherwise to be called by the Crown. In other words, it might result in a situation where the Attorney-General would not allow disclosure of evidence resulting in an aborted trial (as happened in the trial of Syed Bukhari in London a fortnight ago).

Resolution of the issues

27 As I said at the outset, it is necessary for the Court to come to a decision which balances the various competing considerations I have identified. Each of the contesting parties has raised powerful considerations, which either go to the support of the protective orders sought or against the imposition of such orders. It is fair to say that each contesting party has strongly advocated its position with little regard for the arguments put on the other side. I do not say this critically but it might be observed that the adversarial system does not provide easy assistance to the resolution of a discretionary consideration such as the present.

28 In my view, having carefully considered all the arguments put, the discretion ought to be exercised by the imposition of the orders sought. There are two qualifications to this conclusion that I should mention immediately. The first is that although the orders at this stage are intended to relate to both pre-trial matters and matters during the trial itself, I would be prepared to review the orders once the pre-trial matters have concluded. This comment applies not only to this topic but to all the orders I contemplate making arising out of this decision. Of course, the need to protect the identity of ASIO witnesses will continue both during pre-trial applications and during trial. But, in general terms, I think it is wise to allow the trial situation to be scrutinised afresh once the pre-trial applications have concluded.

29 The second qualification is that, while I would be prepared to impose an non-publication order on evidence given during the closed court session, it seems to me that it would be appropriate to order that, once the transcript has been scrutinised, it should, subject to any further considerations of national security matters, be published. In that way the media interests and the public will know precisely what it is that has happened in court, subject only to the deletion of clearly sensitive material. It is unlikely that the publication of such a transcript would endanger the identity of ASIO witnesses but it would protect the unwitting disclosure of sensitive information while the evidence itself is being given.

30 These two qualifications, in my view, are important not only in recognising a reasonable degree of adherence to the principles of open justice. They also recognise, particularly the first, the need to ensure that the accused is not tried unfairly.

31 The reasons why I have favoured the ultimate exercise of discretion in favour of the Attorney-General are these: first, material in Exhibits “A” and “A1” satisfies me that there are real and genuine concerns for matters effecting the proper capacity of ASIO to act if these protective orders are not imposed. This is particularly so in the case of presently serving ASIO personnel but it extends also to those who are no longer engaged on behalf of ASIO. Secondly, the nature of this trial – the very essence of the charges and the nature of the evidence likely to be led – require that keen and scrupulous attention be paid to the giving of evidence by witnesses where even momentary inadvertence may reveal a matter of very significant importance to national security. Of course, as Mr Boulten argued, it might be sufficient to contemplate making non-publication orders as such problems emerge. But that would be to run the real risk that the damage would have been done. This is plainly so if the inadvertence were to occur in open court. Thirdly, while the accused has pleaded not guilty to each of the charges and must therefore be afforded every entitlement to the presumption of innocence, the very contemplation of terrorist activities directed against public utilities establishments and persons demonstrates, in my view, the degree to which the court must take care in trials of this kind not to underrate the views of the Director-General of Security.

32 In that regard, it is clear that considerable respect should be paid to the views expressed by the Director-General of Security. National security forms a category of public interest of special importance. Considerable weight must attach to the view as to what national security requires as expressed by a person holding the office of the Director-General of Security. (Alister v The Queen (1983) 154 CLR 404 at 435and 436; D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at page 233 per Lord Simon of Glaisdale). I do not accept that the material placed before the Court by the Director-General, both in its open and confidential capacity, should be described as an over reaction. Rather, I have come to the conclusion that a powerful case has been established to warrant the court’s satisfaction that the additional protective order sought is expedient in the interest of the defence of the Commonwealth.

33 I have, however, given earnest consideration to the arguments advanced by Mr Boulten SC. It is perhaps true, as Mr Boulten argued, that it will be not easy for the accused to receive a fair trial in this matter, particularly in the light of the attention paid by the media and politicians to divisions within the community affecting people of the Muslim faith. This is especially so for persons whose national and ethnic backgrounds reside in areas where there is, and has been, considerable conflict and dissension. But I adhere to the view that, properly instructed and directed, jurors will approach their important task precisely in accordance with the oath or affirmation they have taken. They will do so on the basis of the evidence that is placed before them. They will do so free from the bias or prejudice that has the capacity to infect us all. In my experience, juries understand and respect the directions they are given. This extends to directions to avoid particular areas of bias and to approach the evidence in the trial in a manner that is free from prejudice. Similarly, careful and appropriate directions in relation to the imposition of protective orders that I consider are necessary and expedient in the interests of the defence of the Commonwealth in the present matter will, I am confident, be respected and implemented by a jury selected to try the proceedings. (See John Fairfax Publications Pty Limited v District Court of New South Wales per Spigelman CJ at 104-109: In these paragraphs, the Chief Justice has gathered together a wide range of earlier authorities which plainly support the propositions I have advanced).

34 In reaching my conclusion, I have also taken into account the arguments advanced on behalf of the Crown. I do not, however, consider that the Crown submission carries significant weight at this stage because I am unable to determine whether the evidence sought to be relied on by the Crown would in fact be withdrawn from its grasp if the confidential orders were not made.

Category 2

35 The next category of evidence requires mention in terms of considerable caution. The issue to be discussed is whether there should be protective orders which would disclose the fact of ASIO’s dealings with any of the witnesses to be called; and, if there were any such dealings, the contents of those dealings in relation to the accused and other persons associated with the accused in these proceedings. In the confidential schedule to this decision, I provide further detail regarding the topic and in particular I refer to the arguments advanced by Mr Boulten SC on behalf of the accused in relation to the topic. For the purposes of this public portion of my reasons, I do not wish it to be inferred, or in any way concluded, that ASIO in fact had any dealings with any of the witnesses to be called in the proceedings. The very question as to whether ASIO had or did not have any dealings with witnesses in this matter is, in my opinion, a matter relating to important aspects of national security and hence of matters properly going to the interest of the defence of the Commonwealth. The arguments advanced by the parties however, were essentially those I have identified in dealing with the previous topic. There was one additional matter raised by Mr Boulten SC which I have set out and examined in the confidential schedule.

36 Once again, having considered carefully the various arguments pursued by the parties, I have come to the conclusion that it is expedient in the interest of the defence of the Commonwealth to order that the Court be closed while information caused by disclosure, of ASIO’s dealings with particular persons, if any, occurs; and that there be no report or publication of such material if it exists. Again, when these orders are made, it is to be on the bases that they will apply to the pre-trial proceedings and trial but the issue may be reviewed prior to trial when the pre-trial proceedings have concluded. Secondly, even though the closure relates to a very limited and precise topic, there should be the opportunity to scrutinise the transcript after the conclusion of the evidence of each witness and, where appropriate, after that process the transcript of the witness may be made available to the media interests and others either in an edited or unedited form.

37 In coming to this conclusion, I have endeavoured to give consideration and appropriate weight to each of the arguments advanced by the parties. I have considered, once again, the position of the prosecutor but I have been unable to give his position significant weight because I am uncertain at this stage whether the material evidence would be withdrawn from the prosecution if the protective orders were not made. In relation to the principles of open justice, I have endeavoured to give them considerable weight in the balancing exercise but once again I consider that the derogation to those principles will not be severe. This is because of the limited nature of the material protected by the disclosure order and the fact that a transcript of the witness’ evidence should be available very shortly after the completion of the evidence of that witness. Thirdly, I consider that very significant weight must be attached to the views expressed by Mr O’Sullivan in Exhibits “A” and “A1”. This evidence embraces a number of the general matters I referred to in relation to the previous topic. It includes also the confidential matters revealed to the defendant but not to the media interests and the public generally in paragraphs 21 through to 27; and paragraphs 29 to 32 of Exhibit “A”. In addition there is confidential material in paragraphs 28 and at the end of 29 on which I have placed particular reliance. Protection of sources has long been a recognised body of public interest immunity (Alister v The Queen per Gibbs CJ at 415; Wilson and Dawson JJ at 437-438 and Brennan J at 453-455) This is so especially in relation to sources available to security organisations. Moreover, the true basis of the protection of material of this kind lies in the threat disclosure may provide to the free flow of information to intelligence or enforcement agencies. (See Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246 FF

38 I should say immediately that the position in the present matter is markedly different from that in Alister’s case. Here, the topic under discussion has already been disclosed, at least in general terms, as between the Crown, the Attorney-General and the defence. Moreover, I have given an indication as to my views on the issue of disclosure in my earlier decision given today pursuant to s 31 of the National Security Information Act 2004. What is in issue now is whether protective orders should be in place when that disclosure is further revealed in pre-trial issues and, if necessary, in the trial itself. This difference, however, only highlights in my view the need for protective orders to be made. My reasoning generally accords with that I have set out in relation to the previous category although it has been necessary for me, in the confidential schedule, to mention the additional argument raised by Mr Boulten and, and as I perceive it, to provide the answer to that submission. I have, however, taken that additional matter into account in endeavouring to come to an ultimate discretionary decision.

39 In addition, I do not think that the imposition of the subject protective orders will necessarily have the disruptive effect Mr Boulten complained of in his general submissions. At the conclusion of the pre-trial issues, the Court will be in a much better position to know how such issues are likely to arise and how they may best be handled in the trial. The particular matters are within a relatively small scope and the evidence-in-chief and cross-examination on the topic is likely to be within a relevantly confined area. I accept that the general body of evidence to be given by the witnesses identified on a confidential basis in the material before me is likely to be the information given to the Australian Federal police and which is the subject of statements provided by the prosecution to the defence. I repeat that although there is likely to be a pocket of information quite properly to be categorised under the present topic, it is relatively small and, in that sense, ought to be manageable.

40 Mr O’Sullivan has given evidence in paragraphs 28 and 31 which, in a practical application, highlights the problems that will arise unless protective orders are made in this regard.

41 I am not satisfied that there will be any real prejudice to the accused if the orders are made in this category. This is so provided that, once again, an appropriate direction or directions is or are given to the jury to make it clear that the court is being closed because of the nature of ASIO operations and that the closure is not personal to the accused himself. Obviously, the form and content of such a direction need to be further explored with counsel. But I am confident that, with the assistance of experienced and able counsel for the prosecution and the defence, all relevant matters can be addressed. I accept that the making of the closure orders on this category, as before, must derogate to a degree from the principle of open justice. But, for the reasons I have identified, this will be kept to a minimum by the issue of a transcript. Moreover, I am obliged to keep steadfastly in mind the requirements of both the Commonwealth Crimes Act and the Criminal Code Act in relation to orders of this kind. The interest of national security and effective intelligence operations identified by Mr O’Sullivan, especially in an age of heightened terrorist activity, are plainly of very great importance. (See Wood CJ at CL in Regina v Mallah (unreported 11 February 2005 at para 23).

Category 3

42 Again, the Attorney-General seeks orders for closure of the court and non-disclosure or publication of any information revealing ASIO’s relationships with other services.

43 In this area, the parties repeated the submissions which I have earlier identified. Mr O’Sullivan’s affidavit makes it clear that by 30 June 2005, ASIO had liaison relationships with 266 authorities in 112 countries. It is plain that those relationships are critical to enable ASIO to effectively discharge its statutory functions. It is also understandable, as the affidavit makes clear, that these relationships are based on the confidentiality of the subject areas of information exchange. In some cases, they are based on the existence of the relationship itself. The nature of the relationship is often not publicly known or identified, although in some cases it is.

44 I have no difficulty in concluding, after considering once more the competing considerations, that the orders sought should be made. In addition to the reasons I have given generally in relation to earlier topics, I should add that I have inspected, for the purposes of the hearing under s 31 of the NSI Act a great deal of material of this kind placed before me on a confidential basis and I have concluded that there is nothing in that material, under this heading, which would be helpful to the defence case. Once again however, I take Mr Boulten to have submitted that yet another area of court closure may act to the detriment of his client. My response is as I have earlier indicted but I would add merely this: all the topics so far calling for the issue of protective orders relate to ASIO and its dealings with other persons or services. It is a generally discrete topic and one would think that directions could be fashioned which will make it clear to the jury that it is a discrete topic and one that plainly requires evidence to be given in closed court because of the nature and scope of ASIO’s operations in the Australian community and elsewhere. I am confident that a jury, properly instructed, will not view the closure of the court relating to this category as a matter prejudicial to the accused.

45 There is one distinction in this category that should be mentioned. I doubt whether any transcript could be issued which contains material on this topic. Nevertheless, the transcript will be issued in relation to the evidence given by ASIO witnesses, as I have indicated earlier and, at least in that respect, the principles of open justice will be respected. I do consider, however, that evidence of ASIO’s dealings with other services is a matter that should not be disclosed or made public for that matter on the basis that, for the reasons stated by Mr O’Sullivan, these orders are required as being expedient in the interest of the defence of the Commonwealth. In my view, it could hardly be said otherwise.

Category 4

46 This final category requires particular attention. In relation to a number of particular ASIO witnesses, identified confidentially, it is proposed that they give evidence in the trial (and perhaps some of them at pre-trial). The Attorney-General seeks an order that those particular witnesses give evidence in such a way that their appearances are screened from persons other than:

(i) The Judge and Judge’s Associate;
(ii) The jury;
(iii) Legal representatives of the defendant; and
(iv) Prosecution legal representatives.

47 Further, the scope of the order sought includes arrangements to enable these particular ASIO witnesses to enter and leave court and the court building by means which avoid them being identified by any person precluded from being present in the court during their evidence and, where applicable, by any person from whom their physical appearance will be screened during the course of evidence.

48 Mr O’Sullivan’s affidavit identifies a number of reasons why these orders are sought. The witnesses are said to be ASIO personnel who are or may be involved in operational duties in the future. The claim is that a screening order should be made and that such an order is necessary for the purposes of national security.

49 Mr Boulten SC argued that this was an area of special prejudice to the accused and vehemently opposed the making of the order sought by the Attorney-General. Senior counsel argued that not only was it inherently wrong to contemplate making such an order in the present circumstances but, viewed cumulatively with the other closure orders, it would manifest extreme prejudice for the accused.

50 The thrust of Mr Boulten’s argument was that it would be apparent to the jury that the only person who was being screened from the witnesses was the accused himself. This would lead inevitably to the conclusion, in the minds of the jury collectively, that the accused was a dangerous person and therefore likely to be guilty of the offences charged.

51 The essential material arising from Mr O’Sullivan’s affidavit is the concern that, unless a screening order is made, the accused would be able to identify ASIO witnesses who are presently or will be involved in operational duties. The confidential material gave details of the locality where those operational activities are or may be carried out. The Director-General said openly that he was concerned that the defendant would be in a position to identify those witnesses now or in the future or be able to assist other persons in so identifying them. Mr O’Sullivan conceded (para 20) that even if the risk was small that the defendant would see any of these ASIO witnesses in the future, outside the context of these proceedings, the consequences which could arise, should that risk eventuate, might be very grave in terms of the possible safety of the operational matters he had described. Moreover, there would be a real and unacceptable risk to the safety of other persons in the community. This was a reference to lay persons who agreed to or were seen conversing with any of the ASIO officers in the course of their duties.

52 In one sense, the concerns of the Director-General raise a number of matters which have to be considered as hypothetical situations. For example, if the defendant were to be convicted of the subject offences, it is unlikely, in a practical sense, that he would have a great deal of opportunity to reveal details of the appearance of these witnesses to other persons. Nevertheless, there would be some capacity for that to be done. On the other hand, were the defendant to be acquitted of the charges, he would return to his local community and would be in a position to describe or identify ASIO officers engaging in activities in that area, if that happened to be their task. Indeed, this could happen quite inadvertently. According to the arguments presented, these possibilities could have an impact on the ASIO witnesses themselves, persons they spoke to and the efficacy of ongoing operations. The consequences of which the Director-General spoke were a diminution of the ability of ASIO to protect Australia and Australian citizens against terrorist acts.

53 Detailed consideration was given during argument to the principles discussed in Ngo’s case (R v Ngo (2003) 57 NSWLR 555). In that case, the accused was charged with the murder of a politician John Newman. During the course of the trial, the trial judge authorised the giving of evidence by two witnesses by way of an audio visual link. While the jury, presiding judge and counsel could hear and see the witnesses on the video screen, the accused was not permitted to see the witnesses. In order to overcome any prejudicial inference that might be drawn against the accused, a subterfuge was contrived in the form of a non-operating monitor placed in front of the accused to give the jury the impression that the accused was looking at the same material as they were. The trial judge made these orders because he said he was satisfied that the witnesses in question had a genuine fear of the accused and would probably not give evidence if required to do so in the courtroom in the presence of the accused.

54 In those circumstances, the trial judge concluded that it was in the interests of the administration of justice to make the order. His Honour specifically took into account a particular objection raised by the accused namely that he would not have the opportunity to properly contest the evidence of the witnesses because he would not have the opportunity of seeing them and identifying them. This, however, did not outweigh the trial judge’s views that the video link application should be granted as well as the screening application.

55 In the course of its decision the New South Wales Court of Criminal Appeal analysed many decisions both in this country and overseas where issues relating to screening of evidence from the accused had occurred. In some of the cases the accused could see the witness and in others he could not. Their Honours also analysed a range of statutory provisions where legislation had the effect of eroding the right to face to face confrontation during a criminal trial. For example, the court mentioned statutes concerning the receipt of evidence of children in sexual cases and cases involving the protection of informers. At page 71 (para 121) the Court said:

“What the local and overseas authorities make clear is that the need to protect witnesses must be balanced against the unfairness to the accused. One of the important factors often seen as critical to such a decision is the question as to what is demanded by the interest of justice. …
Many of the cases discussed earlier involve situations where the accused can still “see his accuser”, whether in court or on a video screen. The appellant stresses that here, although the appellant’s legal representatives could see the witnesses on the screen, the appellant was not permitted to do so. However, it may be pointed out that a number of the authorities discussed above do involve the accused not “seeing” his accuser, see eg R v Smellie ; R v Accused , R(D) v Camberwell Green Youth Court , Jarvie and R v Sparkes .
In our opinion there was no error by his Honour in the exercise of the discretion involved in s 5B(2). His Honour considered the unfairness to the appellant and balanced it with the position of the witnesses. We are unable to conclude that his discretion miscarried in this part of the exercise.”

Resolution of the issues

56 The resolution of this question requires the Court to make a discretionary decision after balancing the appropriate considerations to be taken into account. The arguments of the prosecution stressed the prospect that these operational ASIO agents may not be willing to give evidence if they are exposed to direct scrutiny from the accused. The Crown suggested (and the Attorney-General echoed) the proposition that this evidence, or some of it, may not be available to the Crown if the screening order is not made. The evidence of Mr O’Sullivan makes it clear that, at least from his perspective, the absence of the screening order in the terms sought would significantly restrict the ability of those particular officers to engage in a range of operational duties in the future and would pose a real and unacceptable risk to their personal safety and that of their families. In turn, he maintained that these considerations would compromise ASIO’s effectiveness (para 18). On the other hand, none of the witnesses themselves have given evidence as to their fears. At least to that extent, the position may be regarded as slightly different to the position that arose during the Ngo trial.

57 On the other hand, the particular concerns that the accused had during the Ngo trial do not arise here. None of the ASIO witnesses (as I understand it) will give evidence that directly implicates the accused in the commission of the offences charged. Moreover, counsel for the accused will be able to see and confront the witnesses on any issue where that becomes necessary. Counsel will also be able to take instructions from their client but presumably those instructions will not extend, at least so far as one can see, to any issue involving the physical appearance or physical identity of the relevant witnesses. It is accepted by all parties on the issue that the power to make a screening order arises from the inherent power of the court and that this power should be exercised, if at all, by reference to general considerations of the proper and fair administration of justice. This involves considerations as to the impact on the parties in the trial of making or not making the direction. It involves the assessment of the impact especially on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses for the Crown and to the considerations of the public interest arising out of the nature of ASIO’s functions and the impact on national security the refusal to make an order is likely to have.

58 So far as the accused himself is concerned it is important to bear in mind, that although an order which deprives the accused of a face to face confrontation with the relevant witnesses involves some unfairness, there is a need to determine the degree extent and effect of that unfairness. There can be no doubt that an accused person has a fundamental right to a fair trial and a direction should not be made if that means an accused could not have a fair trial. (Ngo at (para 108)). On the other hand a fair trial does not mean a perfect trial (free from possible detriment or disadvantage of any kind or degree to the accused). (Jarvie v Magistrate’s Court (Vic) (1995) 1 VR 84 per Brooking J; see also Jago v District Court (1989) 168 CLR 223; R v Glennon (1992) 173 CLR 592 and Dietrich v The Queen (1992) 177 CLR 292).

59 I have come to the conclusion that I should make a screening order in the terms sought. First, I have given consideration to the position of the prosecutor and to the prospect that evidence may not be available to the prosecutor if a screening order is not made. However, the evidence does not enable me to say at this stage that that will definitely be so. It is a possibility but it does not arise above that situation at this stage, having regard to the evidence placed before me. Secondly, I have concluded that a most significant factor in the matter is the risk to national security. I should make it clear that by this I do not mean to express any concluded view as to whether the accused committed the offences charged against him or, for that matter whether he has been engaged in any criminal activity whatsoever. In my view, the accused is entitled to the full presumption of innocence and, although I am familiar with the Crown case to be made against him, I hold no view one way or the other as to his guilt or innocence. In a sense, as I have indicated above, the rational assessment of the type of risk referred to by the Director-General in his affidavit does require the consideration of possible hypothetical situations. My decision is not intended to relate to the accused himself in specific terms. It does however, relate to the real possibility of the compromise of intelligence operations in Sydney, both present and for the future, and it relates to the need to avoid the dire consequences of such risks eventuating. As I said above, whether at liberty or in custody, the accused might well find himself in a position where, without criminal intent on his part, he might unwittingly identify ASIO personnel or be pressured into so doing. In my opinion, in an unusual trial such as this, there are issues of national security at the forefront. This is a consideration that assumes a very great significance for the manner in which the discretion is to be exercised.

60 I am very conscious of the fact that the imposition of a screening order and its implementation will carry with it a degree of disadvantage for the accused. I do not assess that disadvantage as large provided adequate directions are given to the jury to ensure that they understand that the screening process is carried out to protect the fulfilment by ASIO officers of their tasks under the legislation without fear of identification by any member of the public. A proper direction will need to explain to the jury that the principle I have identified is to be relaxed in their case because they have the task of assessing the demeanour of the relevant witnesses. It will be relaxed in the case of the legal representatives for the Crown and the defendant so that they can each carry out the instructions of their respective client. So far as the screening of the accused is concerned, he will, in that regard, be no position different from any other member of the public. The precise content of such a direction is clearly something that will require considerable thought and input from the legal representatives on both sides. I would expect a considerable degree of co-operation from counsel in that regard. I repeat that, in the face of an appropriate direction, the disadvantage and likely prejudice to the accused will, in my view, be significantly minimised.

61 I also take into account to the extent I am able to do so the fact that screening from the public generally, including from the accused, will provide the relevant ASIO witnesses with some degree of assurance that they may safely continue with their intelligence gathering operations or, where appropriate, may commence such intelligence gathering in the future without undue fear for their own safety or that of their families. I take this into account withstanding that I have not received specific evidence from the ASIO witnesses involved but rather have relied, as I consider I am entitled to do, on the statements of Mr O’Sullivan in his affidavit.

62 I also have taken into account that a screening order will need to be assessed in its likely impact on the accused and his right to receive a fair hearing against the background of other protective orders that are made. That consideration does not lead me to a different conclusion than the one I have expressed. As to the method of entering and leaving the courtroom, I leave that matter undecided until further material is placed before me.

63 I direct the parties to bring in Short Minutes to give effect to these reasons. Draft Short Minutes should be forwarded to my chambers by 4pm on Thursday, 16 March 2006.

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