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

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.
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.
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.
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.
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…

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 Uweinat

Details

AGLC: R v Uweinat [2021] NSWSC 626
Case: [2021] NSWSC 626
Decision Date: 01 June 2021

CaseChat Overview and Summary

The case of R v Uweinat involved the Commonwealth, represented by the Australian Federal Police, and the respondent, Uweinat. The matter was heard in the Federal Court of Australia. The Commonwealth sought suppression and non-publication orders to prevent the publication of details about a surveillance device used in the investigation and prosecution of Uweinat. The court was required to determine whether such orders were necessary to protect the Commonwealth's interests in relation to national security and whether the national interest substantially outweighed any derogation from the open justice principle.

The central legal issue before the court was whether the suppression and non-publication orders were justified to prevent prejudice to the interests of the Commonwealth in relation to national security. The court considered whether the orders were necessary to protect sensitive information that could harm national security and whether the national interest substantially outweighed the principle of open justice. The court found that the information in question was highly sensitive and could potentially prejudice national security if disclosed. The court further held that the national interest substantially outweighed the derogation from the principle of open justice, as the suppression and non-publication orders were necessary to protect critical national security interests.

Having determined that the suppression and non-publication orders were justified, the court made the orders sought by the Commonwealth. The court found that the national interest substantially outweighed any derogation from the principle of open justice and that the orders were necessary to prevent prejudice to the Commonwealth's interests in relation to national security. The court's decision was based on a careful balance of the competing interests and a recognition of the importance of protecting sensitive information in the context of national security.

Orders