NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: LODHI v REGINA [2006] NSWCCA 101
FILE NUMBER(S):
20006/681
HEARING DATE(S): 24 March 2006
DECISION DATE: 04/04/2006
PARTIES:
Faheem Khalid Lodhi (Appl)
Commonwealth Crown
Attorney-General of the Commonwealth
JUDGMENT OF: Spigelman CJ McClellan CJ at CL Sully J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 2005/1094
LOWER COURT JUDICIAL OFFICER: Whealy J
COUNSEL:
P Boulten SC/T D Lange (Appl)
R Maidment SC/G J Bellew (Cth Crown)
H Burmester QC/T Begbie/G Del Villar (Attorney-General of the Cth)
SOLICITORS:
Michael Doughty (Appl)
Commonwealth Director of Public Prosecutions (CthCrown)
Australian Government Solicitor (Attorney-General of the Cth)
CATCHWORDS:
CRIMINAL LAW
appeal arising from orders made
prohibition of disclosure of information
national security
whether appropriate balancing and weighing exercise
operational capacity of ASIO
dealings with witnesses
dealings with other intelligence and security services
protective orders
right to a fair trial
open justice
risk of unfair prejudice resulting from need to interrupt hearing and close the court
weight to be given to release of the transcript
LEGISLATION CITED:
Australian Security Intelligence Organisation Act 1979
Criminal Code 1995
Crimes Act 1914 (Cth)
DECISION:
Appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2006/681
SPIGELMAN CJ
McCLELLAN CJ at CL
SULLY JTUESDAY 4 APRIL 2006
LODHI Faheem Khalid v REGINA
Judgment
CHIEF JUSTICE: I agree with McClellan CJ at CL.
McCLELLAN CJ at CL: The issue in this matter is the approach to be taken when an application is made to close the court, in the interests of national security, during a trial for a terrorist offence contrary the Criminal Code 1995. Faheem Khalid Lodhi has pleaded not guilty to four charges in an indictment 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 of or serious physical harm to a person or persons unknown or causing serious damage to property unknown by the detonation of an explosive or incendiary device or devices.
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…
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- R v Lodhi [2006] NSWCCA 101
- Case
- [2006] NSWCCA 101
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the trial judge had appropriately balanced the security concerns with the need for a fair trial. This included assessing the impact of the prohibition of disclosure of information, protective orders, and the operational capacity of the Australian Security Intelligence Organisation (ASIO) on the fairness of the trial. The court also needed to consider the implications of interrupting the hearing and closing the court due to security concerns, and whether these measures would unfairly prejudice the appellant's case.
The High Court found that the trial judge had conducted a comprehensive exercise in balancing the relevant interests. The court emphasised the importance of the principle of open justice and the right to a fair trial, while also acknowledging the necessity to protect national security. The court determined that the trial judge had appropriately weighed the risks of prejudice against the need to protect sensitive information. It was held that the measures taken, including the protective orders and the closure of the court, were justified in the circumstances. The court also considered the risk of unfair prejudice due to the need to interrupt the hearing and close the court, but found that the overall process remained fair. The weight given to the release of the transcript was also taken into account in this balancing exercise.
The High Court upheld the orders made by the trial judge, affirming that the measures taken were appropriate and did not unduly prejudice the appellant's right to a fair trial. The court concluded that the trial judge had correctly exercised the balance between the competing interests of national security and the principles of open justice and a fair trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: SPIGELMAN CJ, CLELLAN CJ
Finally, it was submitted that by reason of the necessity to interrupt the proceedings because of security concerns the jury are likely to conclude that much of the secrecy imposed upon the process stems from concerns about the potential danger that the applicant poses to ASIO and its officers. It was submitted that the trial judge will need to give directions time after time which will be likely to highlight these matters. In the current climate of heightened public concern about terrorism and the threat of Islamic extremism, it was submitted that the risk of a jury forming an adverse view of the applicant is a grave one. Consideration and resolution of the appeal In John Fairfax Publications Pty Limited v District Court of New South Wales, Spigelman CJ discussed the development of the principles of open justice and a fair trial and their significance to the integrity of the judicial process. His Honour said (at 352):“As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, J J Spigelman, "Seen to be done: the principle of open justice" (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, "The truth can cost too much: the principle of a fair trial" (2004) 78 Australian Law Journal 29.)It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520–521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359–360, 362.)It is also 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, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason (at 51); Russell (at 520); John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at 93 [70]–[73].)The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General vLeveller Magazine Ltd [1979] AC 440 at 450.)From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D–E and 54G.)The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as "the central thesis of the administration of criminal justice": McKinney v The Queen (1991) 171 CLR 468 at 478; as "the central prescript of our criminal law": Jago (at 56); as a "fundamental element" or a "fundamental prescript": Dietrich v TheQueen (1992) 177 CLR 292 at 299, 326; and as an "overriding requirement": Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to "the elementary right of every accused person to a fair and impartial trial": "Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle": R v MacFarlane; Ex parte O'Flanagan &O'Kelly (1923) 32 CLR 518 at 541–542.There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: "... [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds": Connelly v Director of Public Prosecutions [1964 AC 1254] at 1347.”