R v Musleh (No 2)

[2018] NSWSC 1221

Supreme Court

New South Wales

Medium Neutral Citation:	R v Musleh (No 2) [2018] NSWSC 1221
Hearing dates:	6 August 2018
Date of orders:	06 August 2018
Decision date:	06 August 2018
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	See paragraph [16]
Catchwords:	SUPPRESSION AND NON-PUBLICATION ORDER – orders necessary to protect investigation techniques and capacity of Australian Federal Police – minimal derogation from the principles of open justice – orders made
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8 and 12 Surveillance Devices Act 2004 (Cth), s 47
Cases Cited:	Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 Lodhi v Regina (2006) 65 NSWLR 573; [2006] NSWCA 101
Category:	Procedural and other rulings
Parties:	Regina Muhammed Abdul Karim Musleh (Offender) Commissioner of the Australian Federal Police (Applicant)
Representation:	Counsel: R Glover (Crown) G Scragg (Offender) P Melican (Applicant)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Legal Aid of New South Wales (Offender) Australian Government Solicitor (Applicant)
File Number(s):	2016/341400

Judgment: EX TEMPORE

Introduction

1. By notice of motion filed on 31 July 2018 the Commissioner of the Australian Federal Police (the Commissioner) seeks suppression orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), s 47 of the Surveillance Devices Act 2004 (Cth) or in the exercise of this Court’s inherent jurisdiction. The application is supported by an affidavit sworn on 31 July 2018 by Ian McCartney who is an Assistant Commissioner of the Australian Federal Police (AFP) and whose current position is National Manager Counter-Terrorism.

The application

2. In advance of the hearing of the notice of motion, I was provided with the notice of motion; written submissions made on behalf of the Commissioner; and two copies of Mr McCartney's affidavit. The copies of the affidavit were unredacted. Passages highlighted in green were made available only to this Court. The passages highlighted in yellow have been made available to the parties to the proceedings. A redacted version of the affidavit, which omits the yellow and green highlighted portions, will be provided by the Commissioner to be kept on the Court file. In order to protect from disclosure the highlighted portions, which I shall refer to collectively as “the sensitive information”, I propose, at the conclusion of the delivery of these reasons, to return copies of those documents to Mr Melican, who appears on behalf of the Commissioner, for safe-keeping by the Australian Government Solicitor. I note that Mr Scragg, who appears on behalf of Muhammed Abdul Karim Musleh, has indicated that his client does not oppose the orders sought in the notice of motion.

The evidence in support of the application

3. The information sought to be suppressed relates, in general terms, to techniques which are currently used by the AFP in the detection, prosecution and proof of crimes, including so-called terrorist crimes.

4. Mr McCartney deposed, at [44] of his affidavit:

“The methods used by terrorists and criminal organisations are constantly evolving. The prevention and investigation of terrorism and serious and organised crime involves using various technologies to identify suspects and activities of potential concern. The AFP maintains investigative capacities to detect and prevent terrorism-related activity and serious and organised crime, as well as to collect evidence that may be used in prosecutions for such offences. Maintaining these capacities is critical to the effectiveness of modern policing.”

5. Mr McCartney has also deposed that the sensitive information has been used, and continues to be used, in many of the AFP’s operations. He said that the sensitive information has “directly led the AFP to disrupt terrorist plots” and “has been utilised in a number of current and recent counter terrorism investigations” (paragraphs [57] and [59] of his affidavit). I accept his evidence as to the effect of disclosure of the sensitive information in these proceedings as follows (at paragraph [79]):

“[T]here would be real prejudice to AFP counter-terrorism investigations and investigations into serious and organised crime, and prejudice to Australia’s national security more generally, if the Sensitive Information were to be disclosed in an uncontrolled manner in these proceedings.”

The power to grant the application

Section 8(1)(b) of the Act: that the order is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security

6. I am satisfied, on the basis of Mr McCartney’s affidavit, that it is necessary to make these orders by reason of s 8(1)(b) of the Act: namely, that it is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security. This subparagraph in s 8(1) appears to me to be the most relevant to the present application. Disclosure of the sensitive information could compromise the ability of the AFP to detect, investigate and prove the commission of serious crimes, including so-called terrorist crimes. National security could be compromised if the sensitive information were disclosed.

Section 8(1)(a) of the Act: that the order is necessary to prevent prejudice to the proper administration of justice

7. It has been held that “the administration of justice” can extend to the investigation and detection of crime and the obtaining of evidence against suspects: Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [38] (Hodgson JA, Hislop and Latham JJ agreeing). On this basis I consider the orders also to be necessary under s 8(1)(a) of the Act.

Section 8(1)(e) of the Act: that it is otherwise necessary in the public interest for an order to be made and that the public interest significantly outweighs the public interest in open justice

8. Although the Commissioner does not seek to rely on public interest immunity of itself to protect the sensitive information from disclosure, Mr Melican, who appeared for the Commissioner, submitted that there is a public interest in the protection of sensitive police technologies, capabilities and procedures to ensure the ongoing supply of relevant information for the purposes of law enforcement. I am satisfied that there is a substantial public interest in the investigation and prosecution of crime. On this basis I am satisfied that it is otherwise necessary in the public interest for the order to be made. Thus, the order is also supported by the power in s 8(1)(e) of the Act if this public interest significantly outweighs the public interest in open justice.

9. The course proposed on behalf of the Commissioner is that a summary of the substantive content of the images sought to be protected will be prepared by officers of the AFP and will be available in open court in accordance with the principles of open justice. Thus, although there will be some derogation of the principles of open justice, I am satisfied that it will be kept to a minimum in the manner proposed.

10. In light of the course proposed by the Commissioner, I am satisfied that the public interest is in making the suppression order significantly outweighs the public interest in open justice, having regard to the minimal derogation to which I have referred: see Lodhi v Regina (2006) 65 NSWLR 573; [2006] NSWCA 101 at [24]-[28] (McClellan CJ at CL, Spigelman CJ and Sully J agreeing).

Whether the orders ought be made

11. The Court has a discretion whether to make the orders sought, as indicated by the use of the word “may” in the prefatory words in s 8(1) of the Act. I do not regard the only particularly relevant countervailing factor, namely, the principle of open justice, as sufficient to prevent my making the orders which I consider to be otherwise appropriate. The principle of fair trial does not arise as the Commissioner does not seek to deprive the parties of access to that part of the sensitive information which is relevant to the proceedings.

12. As there is ample power in the Act to make the orders sought by the Commissioner, it is unnecessary to address whether the orders could also be made pursuant to s 47 of the Surveillance Devices Act or in the exercise of this Court’s inherent jurisdiction.

The duration of the orders

13. Prayer 8 in the notice of motion seeks an order that the orders shall apply throughout Australia and “until further order”. In deciding the period for which an order is to operate I am obliged to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 12(2) of the Act. I am satisfied, on the basis of the material in Mr McCartney’s affidavit, that it is not presently feasible to predict how long the orders need to be in place, although one can envisage a time in the future when the matters referred to might become part of common knowledge in which case these orders will no longer be required. However, on the basis of current information, I do not propose to specify a period for which the orders are to operate.

Orders

14. Mr Melican has provided short minutes of order which he asks that I make if I am persuaded that such orders are appropriate. For the reasons I have given, I consider it is appropriate to make orders in terms of paragraphs 1, 2, 3, 4, 5, 6, 8 and 9 of the short minutes of order which have been provided by Mr Melican which I will sign and date.

15. I propose to note, in lieu of draft order 7 in the short minutes of order, that I shall return to the Commissioner of the Australian Federal Police all copies of the affidavit of Mr McCartney sworn 31 July 2018 containing information referred to in order 2.

16. I make the following orders:

The Court orders that:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), s 47 of the Surveillance Devices Act 2004 (Cth) and in exercise of the Court’s inherent powers:

Restriction on disclosure

1.   There be no disclosure, by publication or otherwise, of:

1.1.   the 2 statements of Federal Agent Bassem Sultan dated 1 May 2017 (including annexures) and the information (including the images) contained therein;

1.2. images obtained pursuant to the warrant issued under s 16 of the Surveillance Devices Act 2004 (Cth) on 26 August 2013 by John Pascoe and extended on 20 November 2013 by Stephen Hugh Scarlett;

1.3. images obtained pursuant to the warrant issued under s 16 of the Surveillance Devices Act 2004 (Cth) on 23 February 2016 by Gina Lazanas and extended on 19 May 2016 by Jill Frances Toohey and further extended on 15 August 2016 by Naida Isenberg;

1.4. the evidentiary certificate issued under s 62(1) of the Surveillance Devices Act 2004 (Cth) signed by Commander Glen McEwen on 9 January 2014, and the information contained therein;

1.5. the evidentiary certificate issued under s 62(1) of the Surveillance Devices Act 2004 (Cth) signed by Commander Sue Thomas on 8 February 2017, and the information contained therein;

1.6.   the whereabouts, or information which tends to reveal the whereabouts, of the surveillance devices used to obtain the images referred to in orders 1.1 to 1.3, at the time they were operational; and

1.7.   the methods and means, or information which tends to reveal the method and means, by which the images referred to in orders 1.1 to 1.3 were obtained.

2.   There be no disclosure, by publication or otherwise, of:

2.1.   the information highlighted yellow in the affidavit of Ian McCartney sworn on 31 July 2018 in support of the notice of motion of the Commissioner of the Australian Federal Police dated 31 July 2018; and

2.2.   the written submissions in support of the notice of motion of the Commissioner of the Australian Federal Police dated 31 July 2018.

3.   There be no disclosure, by publication or otherwise, of the information highlighted green in the affidavit of Ian McCartney sworn on 31 July 2018 in support of the notice of motion of the Commissioner of the Australian Federal Police dated 31 July 2018.

Exceptions

4.   Orders 1 and 2 do not prevent disclosures of any information to and between the following people until the final determination of these proceedings and for the purposes of these proceedings:

4.1.   the Court and necessary court staff;

4.2.   the Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in these proceedings;

4.3.   the Defendant and the legal representatives of the Defendant instructed in these proceedings;

4.4.   the Commissioner of the Australian Federal Police, Australian Federal Police members and appointees, and legal representatives of the Commissioner; and

4.5. Commonwealth officers (within the meaning of s 3 of the Crimes Act 1914 (Cth)).

5.   Order 3 does not prevent disclosures of any information to and between the following people until the final determination of these proceedings and for the purposes of these proceedings:

5.1.   the Court and necessary court staff; and

5.2.   the Commissioner of the Australian Federal Police, Australian Federal Police members and appointees, and legal representatives of the Commissioner.

Return of material

6.   The Defendant and the Defendant’s legal representatives shall:

6.1.   forthwith return to the Commissioner of the Australian Federal Police any documents in their custody or control containing information which falls within order 2, and any documents in their custody or control which falls within order 2; and

6.2.   at the conclusion of these proceedings, including any appeals, return to the Commissioner of the Australian Federal Police any documents in their custody or control which fall within orders 1.1 to 1.7, or contain information that falls within those orders.

Application and duration of orders

8.   These orders apply throughout the Commonwealth of Australia and until further order.

Grounds for orders

9.   Insofar as these orders are made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), they are made on the grounds referred to in s 8(1)(a), (b) and (e).

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Decision last updated: 15 August 2018