R v Uweinat

[2021] NSWSC 626

Supreme Court

New South Wales

Medium Neutral Citation:

R v Uweinat [2021] NSWSC 626

Hearing dates:

On the papers

Date of orders:

1 June 2021

Decision date:

01 June 2021

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

Suppression and ancillary orders made

Catchwords:

CRIMINAL PROCEDURE – Suppression and non-publication orders – suppression of details pertaining to a surveillance device – orders necessary to prevent prejudice to the interests of the Commonwealth in relation to national security –national interest substantially outweighs confined derogation from open justice – orders made

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Criminal Code (Cth)

Surveillance Devices Act 2004 (Cth)

Cases Cited:

Alister v R (1984) 154 CLR 404

R v Alqudsi [2016] NSWSC 1168

R v Azari (No 3) [2017] NSWSC 553

R v Elmir [2018] NSWSC 308

R v Khazaal [2006] NSWSC 1061

R v Mallah (Supreme Court (NSW), 11 February 2005, unrep)

R v Musleh (No 2) [2018] NSWSC 1221

R v Yousif, Elomar & Elomar (Supreme Court (NSW), Adamson J, 22 March 2017, unrep)

Category:

Procedural rulings

Parties:

Regina
Commissioner of the Australian Federal Police
Youssef Uweinat

Representation:

Counsel:

Solicitors:
Australian Government Solicitor
Legal Aid NSW

File Number(s):

2019/382534

Judgment

1. HIS HONOUR: Youssef Uweinat pleaded guilty in the Local Court to offences contrary to the Criminal Code (Cth) of knowingly be a member of a terrorist organisation and advocating a terrorist act or commission of a terrorism offence. He has been committed to this Court for sentence. The matter is in the Arraignments List on 4 June 2021 for the purpose of fixing a date for a hearing on sentence.

2. The Commissioner of the Australian Federal Police proposes to serve further evidence in relation to the matter prior to 4 June 2021 but in that connection has filed a Notice of Motion on 25 May 2021 seeking suppression and ancillary orders in respect of sensitive surveillance device capabilities.

3. The Commissioner’s application is supported by an open affidavit and a confidential affidavit, each sworn by Assistant Commissioner Nigel Ryan, National Manager Crime Command, Australian Federal Police, both of which were sworn on 24 May 2021.

4. Orders of the same type that are now sought were made in the Local Court in respect of a statement of Federal Agent Xuereb dated 19 October 2020 including annexures B and C to that statement and the information (including images) contained therein. The orders now sought extend to further material, including a statement of Federal Agent Xuereb dated 21 May 2021 including annexure A to that statement and the information (including images) contained therein.

5. The Australian Government Solicitor who represents the Commissioner on this application has confirmed that correspondence with the court in relation to this issue, a signed copy of the Notice of Motion, written submissions and the open affidavit of Assistant Commissioner Ryan have been provided to the parties and both the Commonwealth Director of Public Prosecutions and the defendant’s lawyers have indicated they consent to the matter being sent to the court and being dealt with in chambers. Both parties consent to the making of the orders.

6. The orders are sought pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CS&NPO Act) and the Surveillance Devices Act 2004 (Cth) (the SD Act). Under the former, the Commissioner seeks suppression orders on the ground in s 8(1)(b) that they are necessary to prevent prejudice to the interests of the Commonwealth in relation to national security. Under the latter the Commissioner points to the provision in s 47(5) which mandates a court making an order prohibiting or restricting publication of information where it is considered necessary to ensure details pertaining to a surveillance device should not be revealed.

7. By virtue of the definition of “suppression order” in s 3, a suppression order under the CS&NPO Act is broader than a non-publication order made pursuant to s 47(5) of the SD Act because it extends to the restriction of disclosure of information by publication or otherwise.

8. I note the proposed orders do not seek to restrict the ability of the parties to disclose the information between themselves and the Court; the restriction will apply to the broader public.

9. I also note from the written submissions on behalf of the Commissioner that orders of the type sought in this matter are not novel and have been made in the past in cases including: R v Alqudsi [2016] NSWSC 1168; R v Yousif, Elomar & Elomar (Supreme Court (NSW), Adamson J, 22 March 2017, unrep); R v Azari (No 3) [2017] NSWSC 553; R v Elmir [2018] NSWSC 308; R v Musleh (No 2) [2018] NSWSC 1221.

10. It is also uncontroversial that special importance attaches to the protection of national security. In that regard the written submissions cite by way of examples Alister v R (1984) 154 CLR 404; R v Mallah (Supreme Court (NSW), 11 February 2005, unrep); R v Khazaal [2006] NSWSC 1061. I am satisfied that reliance by the Commissioner upon the national security ground in s 8(1)(b) of the CS&NPO Act is soundly based.

11. Section 6 of the CS&NPO Act requires a court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In this regard I accept the submission on behalf of the Commissioner that the derogation from the principle of open justice in this instance is quite confined. I am satisfied that the national interest substantially outweighs the derogation of that fundamental principle. I am satisfied that the orders should be made.

12. An order only having force within the State of New South Wales would be ineffective and so the submission that it should apply throughout the Commonwealth of Australia is accepted: s 11 of the CS&NPO Act.

13. Section 12 of the CS&NPO Act requires a court to ensure an order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. The affidavit material persuades me to accept that the proposed period of 10 years is appropriate.

14. I make the following orders:

Suppression orders

1.   Subject to order 2, there be no disclosure, by publication or otherwise, of any information connected with this proceeding (including any information or document disclosed to the defendant) that reveals, or tends to reveal:

1.1   the Statement of Federal Agent Xuereb dated 19 October 2020, including Annexures B and C to that statement, and the information (including images) contained therein;

1.2   the Statement of Federal Agent Xuereb dated 21 May 2021, including Annexure A to that statement, and the information (including images) contained therein;

1.3   the whereabouts, or information which tends to reveal the whereabouts, of the surveillance devices used to obtain the information (including images) described in the Statements of Federal Agent Xuereb dated 19 October 2020 and 21 May 2021 at the time the surveillance devices were operational;

1.4   the methods and means, or information which tends to reveal the method and means, by which the information (including images) described in the Statements of Federal Agent Xuereb dated 19 October 2020 and 21 May 2021 was obtained,

(collectively, sensitive information).

Exceptions to suppression orders

2.   Order 1 does not prevent disclosures to and between the following people:

2.1   the presiding Judge;

2.2   the Commonwealth Director of Public Prosecutions (CDPP) and legal representatives of the CDPP instructed in this proceeding;

2.3   the defendant and legal representatives of the defendant instructed in this proceeding and any appeal or review of any decision in this proceeding;

2.4 persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) (AFP Act) and legal representatives of the Commissioner of the Australian Federal Police instructed in this proceeding; and

2.5   judicial officers and necessary staff of any court hearing an appeal or review of any decision in this proceeding.

3.   Order 1 does not prevent:

3.1 persons referred to in s 6(1) of the AFP Act (Person 1) from disclosing the sensitive information to any other person (Person 2) where such disclosure is in accordance with Person 1’s powers, functions or duties under the AFP Act or other legislation; and

3.2   a person in the position of Person 2 from using or disclosing the sensitive information.

Note The Court notes that the use and disclosure of the sensitive information by a person in the position of Person 2 may be subject to limitations and conditions imposed by legislation, including (but not limited to) the AFP Act and the SD Act.

Ancillary orders

4.   There be no disclosure of, or of the contents of, the confidential affidavit of Assistant Commissioner Nigel Patrick Ryan sworn in support of this motion on 24 May 2021.

5.   The document referred to in order 4 be returned to the Commissioner of the Australian Federal Police, through his legal representatives, at the conclusion of the hearing of the motion for these orders.

6.   The defendant and his legal representatives return any document containing the sensitive information to the Commissioner of the Australian Federal Police, through his legal representatives, within 28 days from the conclusion of this proceeding (including any appeal).

Application and basis for orders

7.   These orders apply throughout the Commonwealth of Australia for a period of 10 years.

8.   To the extent that these orders are made pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW), these orders are made on the ground identified in s 8(1)(b) of that Act.

9.   To the extent these orders are made pursuant to the Surveillance Devices Act 2004 (Cth), these orders are made on the grounds identified in s 47(5) of that Act.

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Decision last updated: 02 June 2021