Regina (C'Wealth) v Baladjam [No 24]

[2008] NSWSC 1447

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 24] [2008] NSWSC 1447
HEARING DATE(S):	02/06/08
JUDGMENT DATE :	11 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Application for stay of proceedings refused
CATCHWORDS:	CRIMINAL LAW - Application for stay of proceedings - Abuse of process - Ability of ASIO witnesses to give surveillance evidence in criminal proceedings - ASIO Act 1979 - Construction of s 18(2) - Authority or approval to give evidence - Sufficiency of approval.
LEGISLATION CITED:	ASIO Act 1979 Criminal Code Act 1995 National Security Information (Criminal & Civil Proceedings) Act 2004
CASES CITED:	Church of Scientology v Woodward (1982) 154 CLR 25
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 24] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	G. Bellew SC; C. Donnell; Ms S McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma
SOLICITORS:	Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: WEDNESDAY 11 June 2008

2007/2397001 - Regina v Omar BALADJAM [No 24]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application for stay of proceedings – Abuse of Process – Ability of ASIO witnesses to give evidence in criminal proceedings – Criminal offence - ASIO Act 1979 - construction of s 18(2) – Authority or approval to give evidence – Sufficiency of approval

Background

1 HIS HONOUR: Nine men have been accused of conspiring with each other to do acts in preparation for a terrorist act or acts. The Crown case is largely circumstantial and will involve a detailed examination of the activities of the accused over a period of about fourteen months. There will, for example, be evidence of intercepted telephone conversations, listening device conversations and there will be surveillance evidence as well.

2 It is the Crown's intention to call surveillance evidence from persons who are officers within the Australian Security and Intelligence Organisation ("ASIO"). In fact, were they all to be called, there would be, I understand, approximately forty-eight ASIO witnesses called to give evidence of their observations over varying periods of time.

3 One of the accused is Khaled Cheikho. His lawyers, Messrs Waterstreet and Lange, have asked the Court to stay the proceedings against their client. It has been submitted that the proposed reliance by the Crown on surveillance evidence to be given by members of ASIO will constitute an abuse of process. This is because, so it is argued, ASIO officers are absolutely debarred from divulging intelligence information in court proceedings, or, alternatively, are debarred from doing so without the requisite and necessary approval under the Australian Security and Intelligence Organisation Act 1979 ("ASIO Act"). In fact, were an ASIO officer to give evidence it would constitute a serious criminal offence, one aided and abetted by the prosecution.

4 Mr Lange provided both written and oral submissions to the Court in support of these contentions. The Crown submissions were made by Mr Bellew SC in both written and oral form. At the conclusion of the argument I reserved my decision.

Arguments on behalf of Khaled Cheikho

5 As I have indicated above, Mr Lange's submissions were made in the alternative. The primary submission was that the giving of evidence by an ASIO officer was absolutely prohibited by the provisions of the ASIO Act. Mr Lange pointed to the provisions of s 18(1) and (2) of the ASIO Act. He argued that these provisions made it clear that the giving of evidence in criminal proceedings would be the commission of an offence by the relevant ASIO officer. It will be convenient to set out ss 18(1), (2) and (3) of the ASIO Act:

“ 18 Communication of Intelligence
(1) the communication of intelligence on behalf of the Organization shall be made only by the Director- General or by a person acting within the limits of authority conferred on the person by the Director-General.
(2) If a person makes a communication of any information or matter that has come to the knowledge or into the possession of the person by reason of his or her being, or having been, an officer or employee of the Organization or his or her having entered into any contract, agreement or arrangement with the Organization, being information or matter that was acquired or prepared by or on behalf of the Organization in connection with its functions or relates to the performance by the Organization of its functions, other than a communication made:
(a) to the Director-General or an officer or employee of the organization:
(i) by an officer or employee of the Organization – in the course of the duties of the officer or employee; or
(ii) by a person who has entered into any such contract, agreement or arrangement – in accordance with the contract, agreement or arrangement;


(b) by a person acting within the limits of authority conferred on the person by the Director-General; or

(c) with the approval of the Director-General or of an officer of the Organization having the authority of the Director-General to give such an approval;

the first-mentioned person is guilty of an offence.

Penalty: Imprisonment for 2 years.
(3) Notwithstanding paragraph 17(1)(b), the Director-General or a person authorised for the purpose by the Director-General may, in accordance with the following paragraphs, communicate information that has come into the possession of the Organisation in the course of performing its function under section 17:
(a) where the information relates, or appears to relate, to the commission, or intended commission, of an indictable offence against the law of the Commonwealth or of a State or Territory – the information may be communicated to:
(i) an officer of the Police Force of a State or Territory; or
(ii) a member or special member of the Australian Federal Police; or
(iii) the Integrity Commissioner, a staff member of ACLEI or a special investigator; or
(iv) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC; or
(b) where the information has come into the possession of the Organisation outside Australia and the Director-General or the person so authorised is satisfied that the national interest requires the communication – the information may be communicated to:
(i) a Minister; or
(ii) a Department; or
(iii) an intelligence or security agency; or
(iv) an officer of a Police Force of a State or Territory; or
(v) a member or special member of the Australian Federal Police; or
(via) the Integrity Commissioner, a staff member of ACLEI or a special investigator; or
(vi) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of ACC; or
(c) if an emergency declaration (within the meaning of section 80G of the ( Privacy Act 1988) is in force – the information may be communicated in accordance with Part VIA of that Act”.

6 Mr Lange argued that support for his contention was also to be found in the nature of the work done by ASIO, and in the provisions of ss 8, 17 and 20 of the ASIO Act. Further support again could be found in the provisions of s 18(3)(a) and (b) of the Act.

7 Section 8 of the ASIO Act provides, in particular, that the Organisation shall be under the control of the Director-General. Section 17 outlines the statutory functions of ASIO. It is in the following terms:

“17. Functions of Organisation
(1) The functions of the Organisation are:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner as are appropriate to those purposes;
(c) to advise ministers and authorities of the Commonwealth in respect of matters relating to security, insofar as those matters are relevant to their functions and responsibilities.
(ca) to furnish security assessments to a State or an authority of a State in accordance with paragraph 40(1)(b);
(d) to advise Ministers, authorities of the Commonwealth and such other persons as the Minister, by notice in writing given to the Director-General, determines on matters relating to protective security; and
(e) to obtain within Australia foreign intelligence pursuant to s 27A or 27B of this Act or s 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979, and to communicate any such intelligence in accordance with this Act or Telecommunications (Interception and Access) Act 1979 .
(2) It is not a function of the Organisation to carry out or enforce measures for security within an authority of the Commonwealth.”

8 Section 20 of the ASIO Act requires the Director-General to take all reasonable steps to ensure that the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions.

9 In relation to his primary submission, Mr Lange advanced a number of other general arguments. I shall outline these as necessary when I come to resolve the issues between the parties.

10 Mr Lange's alternative argument was that, if there be an ability for ASIO officers to give evidence in criminal proceedings, they can only do so with appropriate authorisation. Counsel argued that the material relied on by the Crown for this purpose did not give adequate authorisation or approval.

Arguments on behalf of the Crown

11 The Crown took issue with Mr Lange's primary argument. First, the Crown said a proper examination of the provisions of s 18(1) and (2) demonstrated that, far from there being a prohibition against ASIO officers giving evidence in proceedings, there was support for the contention that, with approval, communication of intelligence in this way would be permissible and not tainted by criminality. The Crown sought to draw support for its argument from s 17(1)(b) of the ASIO Act and from a number of the definition sections in the legislation. In particular, the Crown drew attention to the definition of "Security" in s 4 of the ASIO Act.

“’ Security ’ means:
(a) the protection of, and the people of, the Commonwealth and the several states and territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal violence;
(v) attacks on Australia's defence system;
(b) the carrying out of Australia's responsibilities for any foreign country in relation to a matter relating to any of the subparagraphs of paragraph (a).”

12 The Crown, in that context, drew attention to the definition in the same section of "Politically motivated violence". This is defined to mean "acts that are terrorism offences". In turn, terrorism offences are defined to include an offence against part 5.3 of the Criminal Code (the present proceedings relate to an alleged conspiracy that involves in its implementation an offence against s 101.6 of the Criminal Code, being an offence within part 5.3 of the Code).

13 Against this statutory background, the Crown submitted that s 18 of the ASIO Act, in its own terms, clearly contemplated that in certain circumstances intelligence might be communicated by a person with the requisite authorisation of, or the approval of the Director-General. The Crown argued that provisions of this kind are to be broadly construed. This is especially so in relation to s 18 of the Act (Church of Scientology v Woodward (1982) 154 CLR 25). Particular reliance was placed upon a passage in the judgment of Gibbs CJ at 53 where his Honour had observed:

“Obviously subs 18(2) does not prevent the Director-General or an officer authorised by him from making a communication of whatever information the Director-General authorises to be communicated.”

14 The Crown also submitted that the interpretation suggested by Mr Lange was one, which would render the legislation "absurd and unworkable" (Church of Scientology v Woodward at 51 per Gibbs CJ).

15 In relation to Mr Lange's alternative submission, the Crown argued that the approval of the Director-General to the calling of the ASIO evidence was to be inferred from a number of matters. The first of these was that the Director-General has, since the commencement of the proceedings on 25 February 2008, been represented in this trial all times by a solicitor and/or counsel. It was suggested that the appropriate inference to be drawn from that fact is that the Director-General authorises and consents to the relevant witnesses giving such evidence as may be required, subject to any claims for public interest immunity which might arise in the course of their doing so.

16 Secondly, the Crown drew attention to the contents of a document Exhibit “A”. This document was tendered as a “confidential” document, but, in any event, there is no need to detail it in this decision. The Crown argued that the contents of the document enabled the Court to draw an inference that the Director-General had approved, in effect, the procedure sought to be adopted by the Crown in the trial, so far as it related to ASIO officers.

17 During argument I expressed some misgivings about this manner of demonstrating the approval of the Director-General. I did so because it seemed to me that, were an individual ASIO officer to place himself in a possible position of committing a serious criminal offence by giving evidence, the question of approval should not be left to mere inference but should be a matter demonstrated plainly and conclusively.

18 In the light of those comments, senior counsel for the Crown later sought the Court's leave to tender a further document. That document has been admitted for the purposes of this application as Exhibit “B”.

19 The document reads as follows: -

“ AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979
AUTHIORITY TO COMMUNICATE INFORMATION

Pursuant to section 18 of the Australian Security Intelligence Organisation Act 1979, I, Paul O’Sullivan, Director-General of Security, noting that with my authority:

(a) statements of persons known for the purposes of the proceeding by the names given in the attached list (initialled by me), being officers or employees or former officers or employees of the Organisation, have been prepared and served on the parties in the matter of R v Cheikho and Ors; and
(b) some of those persons have given evidence in the committal proceedings in the matters

hereby authorise those persons to give written and/or oral evidence in the proceedings, including evidence relating to intelligence, information or matters that have come to their knowledge by reason of them being officers or employees of the Organisation”.

20 The document is signed by Mr Paul O’Sullivan, Director-General of Security and is dated 5 June 2008. Attached to the document is a list of 55 “names”.

21 The Crown submitted that the Court can be readily satisfied that the Director has given his approval, within the meaning of s 18(2)(b), to the giving of evidence in these proceedings by each of the proposed ASIO witnesses.

Resolution of the issues

22 Although Mr Lange's argument raised the broader question of whether an ASIO officer could ever legitimately give evidence in any proceedings, the narrower and more precise question I am concerned with is whether the proposal to call ASIO officers in this trial to give evidence concerning their surveillance of the accused will involve a criminal offence under s 18(2) of the ASIO Act. If the answer to that question is in the negative, no question of abuse of process can arise and the present application must fail. The abuse of process argument is aimed directly at the present trial.

23 In my opinion, the answer to the question posed by Mr Lange is that, provided the giving of evidence is approved by the Director-General of Security, the communication of the information represented by the giving of that evidence would not amount to or involve any criminal offence under s 18(2) of the ASIO Act.

24 In my opinion, s 18, on its proper interpretation, would permit ASIO officers, with the approval of the Director-General, to give evidence of surveillance of the accused in a prosecution of the accused for an offence of the kind charged in the present indictment. I shall state my reasons.

25 First, s 18 does not prohibit communication of intelligence on behalf of ASIO. In fact, it permits it, but only where that communication is made by the Director-General or by a person acting within the limits of authority conferred on the person by the Director-General.

26 Secondly, the more precise question involves the interpretation of s 18(2) of the ASIO Act. This plainly establishes an offence where an employee of ASIO makes a communication of any information that has come to the knowledge or into his or her possession by reason of his or her being, or having been, an officer or employee of ASIO. No crime will be committed, however, where the communication is made by a person acting within the limits of authority conferred on the person by the Director-General, or where the communication is made with the approval of the Director-General.

27 Thirdly, it is clear that, in the present matter, the giving of approval for an ASIO officer to give evidence about surveillance of the accused (or other persons connected with the conspiracy) may properly be said to be for a purpose "relevant to security". In this regard, I consider that the Crown's submissions are correct. The statutory framework I have earlier set out makes it clear that the giving of surveillance evidence in the present matter would not be a matter that falls outside the scope of the statutory functions in s 17, especially those mentioned in 17(1)(a) and (b). More precisely, it may be stated, first, that the giving of evidence would not be a criminal offence under s 18(2) because it had been approved; and secondly, it would not be beyond the scope of the statutory functions because the statutory definitions in s 4 clearly enable it to be categorised it as a task "for purposes relevant to security". In other words, once a broad construction is given to the sections under consideration, a prosecution for a terrorism offence, and the process of giving of evidence within that trial, will be seen to be a proceeding relevant to the protection of the community from the implementation of an agreement that would, by its very nature, involve acts of violence, and would, in any event, answer the description of a terrorism offence in the ASIO Act.

28 Fourthly, this construction of both s 17(1)(a) and (b) and s 18(1) and (2) of the ASIO Act is further aided by ss 8, 18(3), 19 and 20 of the Act.

29 Section 8 confirms the broad powers of the Director-General to act as the controlling figure of ASIO. Section 20 confers a wide ambit of authority on the Director-General ("take all reasonable steps") to ensure the Organisation operates within the confines of its statutory functions and is not diverted or distracted into partisan or political paths. Section 18(2), as I have said, gives the Director-General a broad power to approve the communication by employees of intelligence information in circumstances, no doubt, deemed by him to be appropriate. Section 17 ascribes, as a core ASIO function, the ability to communicate intelligence for purposes that are both relevant and appropriate to the broadly defined notion of "security".

30 Indeed, s 18(3) travels well beyond the concept of “security” to enable the communication by employees of intelligence on an even broader basis: for example, where the intelligence reveals the commission by a person of any indictable offence against the laws of the Commonwealth, a State or Territory. Section 18(3)(b) enables the dissemination within Australia of information captured outside Australia, where the Director-General is satisfied that the "national interest" requires the communication (there could hardly be a wider concept than this). Finally, s 19 provides that, so far as is necessary or conducive to the performance of its functions, ASIO may cooperate with, for example, nominated police agencies and the like, both in Australia and overseas. It may also communicate information to an overseas authority where such information is "relevant to the security of that country".

31 Consequently, it will be seen that the statute gives very substantial powers to the Director-General, and hence to the Organisation, to communicate intelligence to individual persons, bodies, other countries and generally. For that reason, it seems to me to be fanciful to suggest that, where ASIO has been acting in cooperation with police agencies to provide surveillance of terrorist suspects, the calling of those ASIO officers with the approval of the Director-General, in a subsequent prosecution for a terrorism-related offence, will or could involve the commission of a crime. Such a consequence would be completely unexpected, at variance with the terms of the legislation and, in terms of the principles of statutory construction, an absurd result. Indeed, one would expect the legislature to cater for the very situation that is envisaged and intended in the present trial. In my opinion, the legislation plainly allows for that result and any contrary interpretation is, with respect, misconceived.

32 Mr Lange advanced four specific reasons in support of his suggested interpretation of the legislation. I will deal with these briefly.

33 The first related to s 18(3)(a) of the ASIO Act. Mr Lange placed particular reliance on the opening words of the sub-section. These were "Notwithstanding paragraph 17(1)(b)". Mr Lange submitted that this phrase was inserted because the provision of information for reasons of investigation for prosecution was not covered by the language of s 17(1)(b). I am unable to agree with this submission. The phrase appears where it does in s 18(3) because the clear intention of the legislature was to allow the communication of information where the offence revealed by the intelligence related to the commission (or intended commission) of any indictable offence in the relevant criminal legislation, even if it were not a "security" related offence. Similarly, Mr Lange argued that the language of s 18(3)(b) was restrictive. I would, however, regard the concept in this sub-section as very broad indeed, namely, the concept of "national interest".

34 Secondly, Mr Lange argued that there is in fact no provision in the legislation expressly permitting the giving of evidence by ASIO employees in a trial of the present kind, or, for that matter, in any trial. One answer to that proposition is that there is no provision in the legislation expressly prohibiting it. Moreover, for the reasons I have explained, there is, in any event, ample scope within the legislation for a finding that the Director-General's powers of approval extend to allow the giving by ASIO officers of evidence in a trial such as the present.

35 Thirdly, Mr Lange argued that ASIO is essentially an intelligence gathering body and is not normally regarded as being involved in investigative matters. In general, I accept that this is an accurate description of the functions of ASIO. However, the power, and perhaps obligation, to cooperate with other authorities (as evidenced by ss 18 and 19) has meant that ASIO on occasions has provided its intelligence gathering services within the umbrella of an investigative process. Such a level of co-operation is likely to increase rather than to lessen. This can have awkward results for the agency, as I found in the Lodhi trial. That is, however, not to the point in the present discussion. In this trial, ASIO witnesses would simply be called to give evidence of surveillance. That might properly be described as intelligence gathering within the umbrella of a criminal investigation by the police.

36 Whatever label is ascribed to the ASIO task, the question is whether the giving of evidence by an ASIO officer about matters he has observed in the course of carrying out an intelligence gathering exercise would fall outside the scope of the statutory functions of ASIO? In my opinion, for the reasons I have already given, it would not. A prosecution for a terrorism offence must be, as I have said, a proceeding that is itself relevant to the protection of the Australian community from the implementation of an alleged agreement that would or might involve acts of violence against the community. If that be so, the giving of evidence in such a trial must be regarded as an activity carried out "for purposes relevant to security". In that sense, it is very much within the scope of ASIO's statutory functions.

37 Finally, Mr Lange argued that, since s 8 of the ASIO Act envisages that the Director-General will control the activities of the Organisation, it would be a matter for concern if ASIO witnesses were to be cross-examined about matters that might unexpectedly and perhaps inadvertently throw up important issues of national security. The Director-General, counsel argued, would have no control over this situation. There are a number of answers to this submission. First, the Director-General has the power and discretion to decide whether a particular ASIO officer will give evidence in a prosecution. The Director-General has the capacity to reflect upon the identity of the witness, the nature of the evidence to be given and the likely ambit of relevant cross-examination. I stress the word "relevant" because the duty of a Court would be to stop in its tracks cross-examination that passed beyond the permissible to the irrelevant. The first point of control, however, is the Director-General's decision itself.

38 The second point of control is the important obligation placed on counsel not to ask questions that are scandalous, embarrassing, confusing, time wasting or off the point. In a trial where national security issues are clearly involved, counsel would be expected to be particularly focused and diligent in this regard.

39 The third point of control is the Court itself, which would, with stern but polite detachment, prevent any of these boundaries from being improperly transgressed.

40 The fourth area of control lies in the continued presence of solicitor and counsel for the Commonwealth. The Attorney General, by virtue of the National Security Information legislation, is taken to be a party to the proceedings. In that context, there are already in force, by agreement, a raft of security related orders arising from the operation of the security protection legislation. The lawyers for the Commonwealth are there to ensure those orders are obeyed.

41 Finally, there are the provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 itself. This legislation includes provisions such as s 25. This section prevents a witness from disclosing national security information in federal criminal proceedings by not allowing the witness to answer “the question” until a national security hearing has been held, or a certificate has been issued by the Attorney General. This is but one example of the way in which the legislation protects the inadvertent or careless disclosure of national security information. There are many other instances in the legislation, but they do not require detailed examination on the hearing of the present application.

42 The presence and combination of all of these control points, if I may so describe them, seem to me to rob Mr Lange's final point of any real substance or significance.

43 The remaining matter to be determined is whether the Court can be satisfied that the Director-General has given his approval to the procedure that the Crown intends to adopt in the present trial. Has the Director-General given approval for each of the witnesses to give evidence of the surveillance and other matters intended to be relied upon as part of the prosecution case?

44 The answer to that question, given the contents of Exhibit “B”, is plainly in the affirmative. In those circumstances, the asserted foundation of Mr Lange’s argument cannot stand. Consequently, the application for a stay of proceedings must fail. No abuse of process has been demonstrated. I order that the application for a stay of proceedings be dismissed.

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