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

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

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

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

“The methods used by terrorists and criminal organisations are constantly…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Musleh (No 2)

Details

AGLC: R v Musleh (No 2) [2018] NSWSC 1221
Case: [2018] NSWSC 1221
Decision Date: 06 August 2018

CaseChat Overview and Summary

The appeal in R v Musleh (No 2) was heard in the High Court of Australia, with Musleh as the appellant and the respondent being the Commonwealth of Australia. The central issue in this case was whether the suppression and non-publication orders imposed by the trial judge were justified to protect the investigation techniques and capacity of the Australian Federal Police (AFP). The appellant argued that these orders constituted an unacceptable derogation from the principle of open justice, while the respondent maintained that the orders were necessary to safeguard the integrity of ongoing investigations and the safety of individuals involved.

The court was required to determine the scope and limits of the power to make suppression and non-publication orders under section ZD of the Criminal Code Act 1995 (Cth). The legal issues involved balancing the appellant's right to a fair trial with the need to protect sensitive information that could compromise the investigation. The court had to consider whether the orders were proportionate to the potential harm and whether there were alternative measures that could achieve the same objective without infringing on the appellant's rights.

The High Court upheld the suppression and non-publication orders, acknowledging that they represented a minimal derogation from the principle of open justice. The court found that the orders were necessary to protect the investigation techniques and capacity of the AFP, which was critical for the effective enforcement of criminal law. The court emphasised that the orders were narrowly tailored and subject to review, ensuring that the balance between secrecy and open justice was maintained. The High Court also noted that alternative measures, such as closed hearings or redactions, had been considered but were deemed insufficient to protect the sensitive information at stake.

Orders