R v Lodhi

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 J
TUESDAY 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 poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for 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 or by the use of a poison or poisons, knowing the said connection.
A motion was brought to quash the indictment which was dismissed by Whealy J. That decision has been appealed and the appeal was heard by this Court on the same day as the present matter.
This application for leave to appeal arises from orders which Whealy J made on 17 March 2006 following a motion brought by the Commonwealth Attorney-General seeking orders prohibiting the disclosure of information and evidence provided at the trial. The orders which his Honour made are intended to protect the operational capacity of the Australian Security Intelligence Organisation (“ASIO”) from being compromised (I shall refer to them as “protective orders”) and take the following form:
Orders
Until further order:
1.The Court be closed at all times when information is disclosed, or evidence is heard, which discloses:
a.the fact of, or content of, ASIO’s dealings with any of its sources; or
b.the fact of, or content of, ASIO’s relationship with any foreign agency.
2.The Court be closed at all times when ASIO witnesses give evidence in the proceedings.
3.There be no disclosure or publication (except in closed Court) of any information which discloses:
a.the fact of, or content of, ASIO’s dealings with any of its sources;
b.the fact of, or content of, ASIO’s relationship with any foreign agency; or
c.details of the physical appearance of any ASIO witness or any other details which disclose the identity of, or are likely to lead to the identification of, any ASIO witness.
4.Officers or employees of ASIO be referred to, in and for the purposes of these proceedings, by pseudonym.
5.Any ASIO witness referred to in row 1 of the Table attached to the certificate issued on 2 March 2006 under subsection 28(2) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act) be screened from all persons other than:
a.            the Judge;
  b.            the Judge’s Associate;
  c.            the jury;
  d.            the legal representatives for the Defendant; and
  e.            the legal representatives for the Prosecution.
6.
a.The transcript of any proceedings which occurred in closed Court (other than any closed hearing under section 29 of the NSI Act) is to be provided forthwith in electronic format to the legal representatives for the Crown, the Accused and the Attorney-General;
b.The Attorney-General will inform the Court of any proposal to edit any part of the transcript;
c.If the Court considers it appropriate to do so the Court may grant leave to media interests to be heard in respect of the proposed edits to the transcript; and
d.The transcript will then be made publicly available in its edited form as soon as practicable after the edited transcript is received by the Court and in any event not later than 48 hours after the day to which the transcript relates or such further time as the Court may allow.
The applicant appeals against the whole of Order 1 and subparas (a) and (b) of Order 3 insofar as that Order requires that evidence to be given in closed court.
Legislative provisions
Both the Crimes Act 1914 and the Criminal Code Act 1995 authorise a court to exclude the public from a hearing or prohibit the publication of a report of the whole or part of the proceedings. The relevant provisions are as follows:
Crimes Act 1914 (Cth)
“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 or 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.”
Criminal Code 1995 (Cth)
“93.2 Hearing in camera etc.
(1)This section applies to a hearing of an application or other proceedings 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.”
I have emphasised the operative provision in each section. When considering whether to make the orders Whealy J adverted to both the Crimes Act and the Criminal Code. Because the interests of concern to the Commonwealth relate to matters of national security it would seem that the more relevant provision may be s 93.2 of the Criminal Code 1995 which, if otherwise appropriate, would provide the power to make the orders in question.
The approach of the trial judge
As the complete text of the orders indicates, Whealy J was asked to and made orders beyond the orders complained of in this appeal. His Honour identified his task as requiring a balancing and weighing exercise between “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.”
His Honour accepted that the principles of open justice were to be found in the decision of this Court in John Fairfax Publications Pty Limited & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344 and summarised those principles in the following terms:
“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.
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.
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.
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.
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.”
With respect to the balancing and weighing exercise Whealy J said:
“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.”
The determination by Whealy J
Whealy J examined the issues by considering four categories of witnesses or information. The orders challenged in this appeal relate to categories 2 and 3.
To assist in the resolution of the matter his Honour received an affidavit sworn by Mr O’Sullivan, the Commonwealth Director General of Security who holds office under the Australian Security Intelligence Organisation Act 1979 (the “ASIO” Act). Parts of that affidavit are confidential and his Honour provided for a section of his reasons to be included in a confidential schedule. This Court has considered all of Mr O’Sullivan’s evidence and his Honour’s confidential reasons. The affidavit includes Mr O’Sullivan’s analysis of the importance to the security of the Commonwealth of making protective orders in this case.
Category 1 relates to ASIO witnesses generally and his Honour resolved those issues in favour of making protective orders. His Honour’s reasons for making those orders are relevant to his reasons with respect to categories 2 and 3 and were as follows:
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.
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.
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”.
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.
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.
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.
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.
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.
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.
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.
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.”

Category 2 relates to the issue of whether there should be protective orders which would prevent the disclosure of 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 the proceedings. His Honour expressed the need to mention these matters “in terms of considerable caution.”
After acknowledging that he had given careful consideration to the arguments raised by the parties and had given consideration to the matters referred to in his short confidential reasons his Honour said (initially referring back to his reasons in relation to category 1):
“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-trail 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.
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 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.
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.
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.
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.
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 by 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 relates to ASIO’s dealings with other intelligence and security services. His Honour’s reasons for making orders relating to these matters were as follows:
“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.
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 indicated 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.”
The applicant’s argument on the appeal
The applicant’s fundamental submission was that in determining to make the orders Whealy J failed to apply the appropriate test. The applicant acknowledged that his Honour recognised the importance of the principles of open justice and the need to provide, so far as possible, that there be a fair trial. However, it was submitted that his Honour failed to weigh these matters in the balance and confined his consideration to whether there were security or defence interests which should be protected.
It was further submitted that his Honour’s reference to the decision of this Court in John Fairfax Group Pty Ltd & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 where Kirby P said of the common law rule of open justice that it “is not absolute” (at [141]) was not entirely appropriate. It was submitted that the statutory provision in that case operated “with its own force” and stipulated that applications “are to be heard in the absence of the public unless the court hearing the proceedings otherwise directs” (s 562NA of the Crimes Act 1901).
It was further submitted that the language of s 85B, which provides that a court may be closed if the court is satisfied “that such a course is expedient in the interests of the defence of the Commonwealth”, does not substantially reduce the usual burden that falls upon a party to demonstrate why the court should be closed. Normally, a court would be closed only where it was necessary in the interest of justice to do so. It was submitted that although the test under s 85B may not require that closure of the courtroom “be necessary,” the burden to be discharged by the moving party is nevertheless a high one. It was submitted that given the importance of the principle of open justice, described by counsel as “a right”, and the need to ensure against the substantial risk of unfair prejudice to the accused, the term “expedient” must be given a restrictive interpretation.
By giving weight to the ultimate release of the transcript the applicant submitted his Honour erred. It was submitted that even if the transcript is released at some stage this would not satisfy the need for open justice which could only be met if the public are able to observe the proceedings and form a view of the evidence without the filter of the media. It was also submitted that the evidence, which is to be taken in camera, would be likely to be the subject of an application that it not be disclosed. Because the courtroom has been closed on the basis of the “informant rule” it was submitted that such an application would be likely to be upheld.
It was submitted that the court should have regard to the fact that the relevant witnesses are not members of ASIO and are not entitled to any statutory protection of their identity. None are “informers” in the conventional sense. All of them had dealings with ASIO as a result of approaches made by that organisation and accordingly the witnesses are analogous to citizens who are contacted by the police during the course of conventional criminal investigations. Accordingly, it was submitted that the principles that normally protect informants are not strictly relevant. The applicant emphasised that if there has been an offer of confidentiality made to these witnesses by ASIO it should be given no weight because ASIO must have foreseen the likelihood of the utilisation of these witnesses in a police investigation and consequent criminal prosecution. In several instances federal police officers attended with ASIO officers when the witnesses were interviewed.
In these circumstances it was submitted that the interests of national security must receive less weight in the balancing exercise than might otherwise be the case. It was submitted that some of the relevant witnesses are likely to be called in open court, the court being closed only when the “ASIO sensitive” evidence is given, and any incremental embarrassment caused, or likely to be caused, to the witnesses by the public airing of conversations with ASIO officers is likely to be minimal and could be adequately protected by an order prohibiting the publication of the fact of the witnesses’ dealings with the security organisation.
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.”
Spigelman CJ was, of course, speaking of the principles developed by the common law. Those principles must of necessity give way or accept modification to ensure that the proceedings are conducted in a manner which serves the overall interests of society. In John Fairfax Group v Local Court of New South Wales Kirby P said (at 141):
”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 discourage 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 the particular case.”
I do not believe Kirby P’s remarks should be given a confined operation but are of general application. As his Honour makes plain the common law will, in appropriate circumstances, protect the identity of informers and the interests of national security. Just as the rule of openness has in appropriate circumstances been modified by the courts it may also be modified by the Parliament. In this respect the Commonwealth Parliament has legislated to protect the security and defence interests of the Commonwealth. To this end ss 85B and 93.2 authorise a court to exclude some or all of the members of the public, prohibit publication of part or all of the proceedings or prohibit any person from having access, inter alia, to information or other documents used in the proceedings.
Neither the Crimes Act or the Criminal Code expressly acknowledges the principle of open justice or a fair trial. However, by the use of the word “may” the Court is given a discretion as to whether to make an order. Accordingly, the Court must determine whether the relevant interest of the security of the Commonwealth is present and, after considering the principle of open justice and the objective of providing the accused with a fair trial, determine whether, balancing all of these matters, protective orders should be made.

In my opinion, Whealy J approached his decision in the appropriate manner. His Honour appreciated that he was required to exercise a discretion and weigh the principles of open justice and the objective of providing a fair trial with the need to protect the security and defence interests of the Commonwealth.
The applicant referred to the decision of the Full Court of Victoria in Jarvie & Anor v Magistrates Court of Victoria at Brunswick & Ors [1995] 1 VR 84 and submitted that in that case a balancing exercise was carried out in circumstances analogous to the present case. Brooking J framed the task in a manner which favours disclosure. His Honour said (at 90):
“The balancing process accepts that justice, even criminal justice is not perfect or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed.”
Jarvie involved the question of whether the anonymity of a police operative who was called as a witness should be protected. The Court found that, because of the likely substantial prejudice to the accused if confidentiality orders were made, they were not appropriate. The case turned on its particular facts and provides no significant guidance to the resolution of the present matter. In any event, I am not persuaded that in the circumstances of the present case the protective orders in question will result in substantial prejudice to the applicant.
I have reviewed the evidentiary material considered by Whealy J including the affidavit of Mr O’Sullivan. It was argued that, because the concerns of ASIO relate to the protection of its dealings with other security agencies and individuals outside ASIO itself, the interests which are sought to be protected fall outside the concerns of the statute. To my mind, Whealy J was correct to reject this argument. If ASIO is to be effective it is plain that it must be able to engage in the mutual exchange of information with other security organisations and individuals. I accept that disclosure of its sources of information, whether from another organisation or an individual, may seriously compromise its future operational capacity. Although perhaps not registered informers, many of its sources of information will require protection so that they may be available in the future and so that others will not be discouraged from assisting ASIO’s intelligence gathering activities.
The fundamental complaint by the applicant is the prejudice he may suffer by reason of the need to interrupt the hearing and close the court, perhaps on many occasions during the trial. I accept that interruptions may be necessary. However, that matter was carefully considered by Whealy J who was satisfied that, if there is a need, appropriate directions can be given to the jury. I share his Honour’s view that any prejudice can be minimised in this manner.
It was further submitted that by providing for the Court to be closed Whealy J had made orders beyond those necessary to meet the identified need for the protection of national security. It was argued that non-publication orders would be sufficient to achieve this result. I do not accept this submission. If the Court was to remain open it would be possible for any person, including perhaps the very people who the Commonwealth would not want to have access to the information, to obtain and misuse it. A non-publication order would hardly be likely to be effective in relation to such a person.
Apart from the capacity to give directions to the jury his Honour had in mind that an edited transcript of the proceedings, which protects sensitive information, would be made available. The release of such a transcript will significantly ameliorate any adverse impacts from closing the court. However, if it is to be effective, arrangements must be in place to ensure its timely release, which should be as near as can practically be achieved to the giving of the evidence. I assume that consideration has been, or will be, given to this aspect of the matter.
No challenge is made to the order which his Honour made with respect to the screening of witnesses. Such an order is not authorised by the Crimes Act or the Criminal Code but may be made by the Supreme Court in the exercise of its inherent jurisdiction. Whether such an order could be made by a court of statutory jurisdiction does not need to be considered, although that question could arise if a trial was to take place in the District Court. Relevant principles are considered in John Fairfax Publications Pty Ltd v District Court (at [24]ff).
For the foregoing reasons I am satisfied that Whealy J both correctly identified and applied the appropriate principles when determining to make the orders which are challenged.
In my opinion, although I would grant leave to appeal, the appeal should be dismissed.
SULLY J: I agree with McClellan CJ at CL.

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LAST UPDATED: 05/04/2006

[2006] NSWCCA 101

4 April 2006