State of New South Wales v Holt (No 3)

[2023] NSWSC 683

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Holt (No 3) [2023] NSWSC 683
Hearing dates:	5 and 9 June 2023
Date of orders:	22 June 2023
Decision date:	22 June 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Direct that the parties bring in short minutes of order conforming with the prayers for relief in the State’s notice of motion of 30 May 2023 in respect of the subject confidential exhibit (otherwise see [40] below).
Catchwords:	HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – terrorism intelligence application – closed court – whether the Attorney General’s order sought a ‘pre-existing document’ of the kind prescribed by the regulation – consideration of the interaction between the Attorney General’s compulsory powers of documentary production by order under the Act and the Evidence Act 1995 (NSW) – terrorism intelligence application granted
Texts Cited:	Macquarie Dictionary, online ed
Category:	Procedural rulings
Parties:	State of New South Wales (Plaintiff) Michael James Holt (Defendant)
Representation:	Counsel: P McDonald SC with T Epstein (Plaintiff) P Coady with J Wilcox (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2021/193502
Publication restriction:	Non-publication order under s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW), made on 14 December 2023.

JUDGMENT

1. The State of New South Wales (‘the State’) seeks a Continuing Detention Order against the defendant, Mr Holt, under the provisions of the Terrorism (High Risk Offenders) Act 2017 (NSW) (‘the Act’). The matter is listed for final hearing before me on 4 and 5 July 2023. Mr Holt’s current term of imprisonment expires on 31 July 2023, after which an Interim Detention Order for a period of 28 days imposed by N Adams J as long ago as 21 August 2021 will revive from its current state of suspended operation.

2. By notice of motion filed on 30 May 2023, the State applies for an order under s 59A of the Act that certain information be dealt with as terrorism intelligence as defined in s 4 of the Act. As it happens there has been agreement between the parties that documents falling into an identified category may be so dealt with and Yehia J made orders in that regard when the matter was before her Honour on 31 May 2023. The current dispute refers to a single document referred to in the motion as Confidential Exhibit MRS-1 (‘the confidential exhibit’) to the confidential affidavit of Acting Assistant Commissioner Michael Raymond Sheehy sworn on 26 May 2023.

3. I have already made orders that the application be dealt with in closed court and that there be suppression orders of the proceedings inuring until the making of final orders, at which time the issue may be revisited as appropriate. Those orders will cover these reasons, or at least such part of the reasons as the parties agree, with my approval, should remain suppressed. As I understand the position, on 1 June 2023 Yehia J pronounced orders under ss 59A and 59C maintaining the confidentiality of the confidential exhibit while the application is under consideration.

4. In these circumstances, it is appropriate that I deal with the matter without circumlocution or coded references. I will allow one exception, xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

Issues

5. I should also say at the outset that the issue for my determination has been commendably narrowed by Ms P McDonald SC and Ms T Epstein of counsel, for the State, and Mr P Coady and Mr J Wilcox both of counsel, for Mr Holt. It is perhaps best described in these terms, the confidential exhibit is xxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. I interpolate that the State’s application for principal relief under the Act is based upon the allegation that Mr Holt is a neo-Nazi with a strong belief in the necessity to engage in violent extremism to advance the achievement of the political goals and objectives of that debunked but dangerous political and social philosophy.

6. Mr Coady, who has had restricted access to the material pursuant to an agreement under s 59E of the Act, accepts that the confidential exhibit is “terrorism intelligence” as defined by s 4 of the Act for the purpose of s 59A(2)(b). He does not accept that xxxxxxxxxx was lawfully provided to the Attorney General pursuant to an order under s 58 of the Act for the purpose of s 59A(2)(a). The basis of Mr Coady’s argument is to be found in clause 7 of the Terrorism (High Risk Offenders) Regulation 2018 (NSW) (‘Regulation’). For the purpose of s 58, it prescribes the kinds of offender information about an eligible offender that the Attorney General may require be produced by order under s 58. The key to the argument is to be found in cl 7(2) which is in the following terms:

“The only type of information that the Attorney General can require is pre-existing documents”. (My emphasis)

To resolve the dispute, it will be necessary to set out the key legislative provisions at play.

Relevant legislation

7. While not in issue, it is apposite to set out the definition of terrorism intelligence, which is found in s 4 of the Act:

terrorism intelligence means information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected—

(a)  to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or

(b)  to prejudice criminal investigations or investigations by intelligence agencies, or

(c)  to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or

(d)  to endanger a person’s life or physical safety.

8. While the State and Mr Holt may not necessarily agree completely as to why the confidential exhibit is terrorism intelligence, it is not very controversial that general disclosure of the confidential exhibit is likely to x xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

9. Section 50 of the Act is significant, and in particular subsection (2):

“(1)  Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.

(2)  To avoid doubt, a provision of this Act that provides for a document, report or other information to be admissible in proceedings under this Act despite any Act or law to the contrary does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence.”

10. Section 58 is in the following terms:

(1)  The Attorney General may in the circumstances prescribed by the regulations, by order in writing served on a person, require that person to provide the Attorney General with offender information of a kind prescribed by the regulations that is in the person’s possession or under the person’s control.

(2)  A person on whom an order has been duly served must comply with the order.

Maximum penalty (subsection (2))—

(a)  in the case of a corporation—100 penalty units, or

(b)  in the case of an individual—100 penalty units or imprisonment for 2 years (or both).”

It is in this regard, as I have said, that sub-cl 7(2) of the Regulation is important. Without setting out the whole of the regulation, it is apparent from considering the provisions of sub-cl (1) as a whole, that the items or categories of offender information prescribed, while not uniform, in general terms reference “reports, records or other documents” about a following specified topic. But they also extend to letters or correspondence of the eligible offender; books, magazines, pamphlets or other publications possessed by him; and information about the offender’s internet posts advocating support for engaging in any terrorist acts.

11. Section 59A is in the following terms:

(1) The Attorney General or a prescribed terrorism intelligence authority may—

(a) make an application (a terrorism intelligence application) to the Supreme Court in any proceedings before the Court under this Act (the substantive proceedings) for particular information to be dealt with as terrorism intelligence in those proceedings, and

(b) request that the Supreme Court take steps under section 59C to maintain the confidentiality of the information while the Court is considering whether to grant the application.

(2) The Supreme Court must grant a terrorism intelligence application if the Court is satisfied that—

(a) the information to which the application relates was provided to the Attorney General under Division 5.2, and

(b) the information is terrorism intelligence.

Section 58 is part of Div 5.2 of the Act.

12. It is notable that if a s 59A application is unsuccessful, by dint of s 59D of the Act the Court is to allow the opportunity for the information to be withdrawn. By s 60A production to the Attorney General under s 58 does not foreclose a claim of public interest immunity. Again, if the Court is against that claim, an opportunity to withdraw the document is to be allowed.

13. Section 61 is a critical provision and is in the following terms:

“Any document or report (or a copy of a document or report) provided to the Attorney General under this Part is admissible in proceedings under this Act despite any Act or law to the contrary.”

14. In Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 (‘Lawrence’), (at [77] and [78]) Bathurst CJ, with the agreement of Bell P (as his Honour then was) and Leeming JA, said of the interplay between ss 61 and 50 of the Act the following:

“[77] The principal criticism made by the appellant is that although the
proceedings are described as civil proceedings, and s 50 of the Act states that
except as otherwise provided the proceedings are to be conducted in
accordance with the rules of evidence relevant to civil proceedings, the effect
of s 39(3) and s 61 (coupled with the terrorism intelligence provisions) renders
the proceedings procedurally unfair to the appellant such as to undermine the
integrity of the court as an independent and impartial tribunal.

[78] I do not think this is correct. Although the court is at least implicitly
required to admit material falling within s 39(3), and expressly required to
admit material falling within s 61, the court is not required to place any
particular weight on any part of that material and could take into account the
fact that it has not been tested by cross-examination, or that it contains hearsay, irrelevant material or non-expert opinion evidence. In addition, the court has power to limit its use by making an order under s 136 of the Evidence Act. That the court retains these powers in my opinion is made clear by s 50(2) of the Act. Further, leaving aside the question of terrorism intelligence, it is open
to the person against whom the order is sought to make submissions as to the
use that can be made of such material and its evidentiary value.” (My emphasis.)

As I understand his Honour, the apparent qualification in relation to terrorism intelligence may relate to the Court’s power to withhold that information from the defendant and, perhaps exceptionally, his legal representatives: ss 59C and 59F. Here advance access has been granted to Mr Holt’s legal representative. It will be open to counsel to make submissions about the relevance, probative value and reliability of the confidential exhibit, xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx.

Background facts

15. Without going into all of the gateway provisions, on which the Court’s jurisdiction and power to make a continuing detention or extended supervision order turn, Mr Holt is serving a term of imprisonment for offending in New South Wales. At the time material to this application, xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxThe primary records recording xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx in connection with it are the documents and information covered by Yehia J’s orders of 1 June 2023.

16. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

17. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

18. Having regard to the manner in which the argument was developed before me, I should record that there is no suggestion in the evidence that the police officers concerned were other than acting in the discharge of their office as constables of police. In particular, there is no suggestion that they were asked xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx by or on behalf of the Attorney General. To make things completely clear, there is no suggestion that anyone on behalf of the Attorney General requested that such a document be created to facilitate its production under s 58 of the Act for the purpose of its admission into evidence without further proof under s 61.

19. Xxxxxxxxxxxxxxxx was produced to the Attorney General pursuant to an order under s 58(1) directed to the Commissioner of the New South Wales Police Force requiring provision of a single document, rather than a category of documents, being xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. I emphasise, no other document was required. Xxxxxxxxxxxxx was provided to the Attorney General in compliance with the order.

The submissions of the parties

20. Learned senior counsel for the State argued that quite clearly the requirements for making a terrorism intelligence application under s 59A had been satisfied: xxxxxxxxxxxxxxx had been provided to the Attorney General under s 58 which is part of Div 5.2 of the Act and, as was not disputed by Mr Holt, the information is indubitably terrorism intelligence. In these circumstances, senior counsel argued, the Court had no discretion but was required by law to grant the application.

21. The Court was also required to take steps to maintain the confidentiality of the terrorism intelligence and exercise the discretion conferred by subsections (2) and (3) of s 59C in terms of the specific steps that should be taken for the maintenance of the confidentiality of xxxxxxxxxxxxxxx. Senior counsel also argued that nothing should be read into the circumstance that the relevant s 58 order referred specifically, and only, to xxxxxxxxxxxxx. The Department of Justice, of which the Attorney General is the political head, is a relevant agency for the purpose of s 62 of the Act, as is the NSWPF, and under s 64, each relevant agency had a duty to co-operate with the others in the exercise of their functions concerned with risk assessment and management under the Act. The duty to co-operate includes the duty to disclose information to another relevant agency that is likely to be of assistance to the other agency in the exercise of its high risk terrorism offender functions (s 64(2)(a)). This provision explains why the Attorney General, who is entitled to act on behalf of the State in bringing applications under the Act (s 66 of the Act), would be aware of both the existence of xxxxxxxxxxxxx and its relevance for the purpose of the exercise of his s 58 power. It was emphasised that there is no suggestion the Attorney General, or the Crown Solicitor’s Office at a practical level, requested xxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx for the purpose of circumventing the usual rules of evidence for the purpose of taking undue advantage of the easy admissibility pathway provided by s 61.

22. Mr Coady submitted that the effect of an order under s 59A is to shroud the relevant offender information, or rather terrorism intelligence, in secrecy under the confidentiality provisions contained in ss 59C and 59F. This has the effect that the information is not to be provided to Mr Holt or that he be even alerted to its existence. Learned counsel submitted that these are extraordinary powers which the Court should only exercise with caution and restraint. Mr Coady submitted that the confidential exhibit, unlike the terrorism intelligence the subject of Yehia J’s orders on 1 June 2013, is not a pre-existing document for the purpose of clause 7(2) of the Regulation. The documents, the subject of Yehia J’s orders xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

23. Mr Coady submitted that it is clear, given s 64 of the Act, that the Attorney General would have learnt of the existence of the confidential exhibit through the co-operation of its officers with other relevant agencies. For this reason, Mr Coady submitted, xxxxxxxxxxxxxx “has lost the nature of being ‘pre-existing’ for the purposes of” the Regulation (defendant’s written submissions [26]). Counsel further submitted that utilising s 58 in this way facilitates the State being “complicit” in the creation of evidence such as a xxxxxxxxxxxxxxxx through the interagency co-operation. And, for the purpose of cloaking xxxxxxxx xxxxxxxxx, where it fits the definition of terrorism intelligence, with the secrecy provisions of ss 59C and 59F. Counsel submitted, “[t]his cannot be how s.58 was intended to apply” (defendant’s written submissions [28]).

20. Mr Coady submitted there is nothing to stop the State from xxxxxxxxxxxx, xxxxxxxxxxxxx, should it choose to do so. Whether confidentiality orders should be made then is a different question which should be argued separately.

Consideration

25. There are a number of other matters of law which should be referred to. First, “offender information” is an expression defined by s 57 meaning “any document, report or other information that relates to the behaviour, beliefs, financial circumstances, or physical or mental condition, of an eligible offender, and includes terrorism intelligence about the offender” (emphasis added). The definition refers to “other information”. This phrase, of course, could refer to the unwritten knowledge, belief or opinion of a person. But the terms of the Regulation, especially clause 7, seem to make it clear that only information recorded in documents is prescribed for the purpose of s 58. Clause 6 of the Regulation too, which prescribes the circumstances in which the Attorney General may exercise the s 58 power, is confined to documents because it refers to “offender information … of the kind prescribed by clause 7”. It is not irrelevant to also bear in mind that by cl 6(1)(a) & (b) the Attorney General may exercise the s 58 power if he is satisfied that the information is required for use either in determining whether to bring proceedings under the Act, or in proceedings under the Act. That is to say, the power can be exercised both for the gathering of primary information to make a decision about whether an application should be brought and for the purpose of gathering evidence for use in the proceedings actually brought; in either case within the confines of the cl 7 prescription.

26. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

27. It may also be important to refer to the first instance decision in the State of New South Wales v Lawrence [2019] NSWSC 946, where (at [47]) Johnson J referred to the broad meaning of “the less concrete concept of ‘intelligence’”. His Honour continued:

“The term ‘intelligence’ is understood as extending to direct or indirect information which falls short of being evidence. The use of term ‘terrorism intelligence’ is understandable given the primary object in s 3(1) [of the Act] (ensuring the safety and protection of the community) and the range of concepts engaged by the definitions of ‘terrorist activity’ and ‘terrorist act’ in s 4(1), with the latter definition incorporating by reference the elaborate provisions in s 100 (1) and (2) Criminal Code (Cth)”.

28. I observe that the definition of “terrorism intelligence” is conditioned by use of the verb “means”, normally connoting that what follows is intended to be exhaustive. What follows here, however, is certainly complex, which complexity is added to by the incorporation in the definition of other terms or expressions elsewhere defined by the Act.

29. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

30. Focusing on the phrase “pre-existing documents” used in clause 7(2) of the Regulation, given the circumstances described by clause 6 of the Regulation in which the Attorney General is authorised by order in writing to require a compellable person to provide the Attorney General with offender information of a kind prescribed by clause 7 of the Regulation, it is accepted by both sides that the point in time which “documents” required to be provided “pre-existed” is the date of the applicable s 58 order requiring them. This means that an order under s 58 can require the provision of documents brought into existence both before and after the commencement of proceedings under the Act provided their creation pre-dates the date of the s 58 order.

31. According to the Macquarie Dictionary, online ed, “pre-existing” may be defined as “existing beforehand”. And bearing in mind the caution with which dictionaries must be used as an aide to statutory construction because of the importance of context in its various aspects to legal interpretation (see for example Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560-561 (Mahoney JA)), this seems to be a sound rendering of the word’s ordinary meaning. This is consistent with the consideration that a court’s coercive powers to compel the production of documents by way of subpoena or discovery may permissibly apply only to documents actually already in existence when the subpoena, order for discovery or other process is issued. A court may not require, by use of its coercive processes for the production or disclosure of documents relevant to proceedings, a party or the recipient of a subpoena to bring documents not already in existence into existence under penalty. The Attorney General is not a court, but it is clear that the intent of the provision is the same. The Attorney General cannot require the recipient of a coercive s 58 order to create a document containing offender information which may be derived from other sources, including the recipient’s unwritten knowledge.

32. However, in Mr Coady’s submission, the expression “pre-existing document” means more than existing beforehand. The effect of his submission is that a s 58 order can only be used to require the provision of what might be referred to as primary documents brought into existence in the ordinary course of, where the recipient of the order is a government agency, the ordinary discharge of its statutory functions, and where a private individual or corporation in the ordinary course of their business undertaking or endeavour. It was necessarily implicit in Mr Coady’s argument that ss 58 and 61 operating together did so more or less by analogy with s 69 Evidence Act 1995 (NSW). That is to say, documentary offender information which may be required to be provided by a s 58 order is restricted to documents which form part of the records belonging to or kept by a person containing information which was recorded by a person who had or might reasonably be supposed to have had personal knowledge of the information or on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the facts recorded. Obviously, I have paraphrased the provisions of s 69 of the Evidence Act. To this end Mr Coady in his submission referred to information of the type apt to be excluded by s 69(3), being a document prepared for or in connection with litigation or made in connection with an investigation relating or leading to a criminal proceeding. It was implicit in Mr Coady’s argument that such an approach to ascribing legal meaning to the phrase “pre-existing documents” in its statutory context was necessary xxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Given what may be at stake in the present case, Parliament could not reasonably have intended that xxxxxxxxxxxxxxxxxxxx, for example, prepared even after the commencement of proceedings under the Act and dealing with topics germane to the ultimate question, could be permitted to be admitted into evidence in circumvention of the ordinary procedures governing the business of civil courts xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Mr Coady pointed out that on the analysis of Bathurst CJ in Lawrence the general discretion to exclude evidence conferred the courts by s 135 Evidence Act and the discretion to exclude improperly or illegally obtained evidence conferred by s 138 Evidence Act are outflanked by the provisions of ss 58 and 61 of the Act.

33. I have come to the conclusions there are a number of reasons why Mr Coady’s argument must be rejected. To refashion ss 58 and 61 to fit a template patterned on the shape of s 69 Evidence Act in truth involves a substantial re-writing of the relevant provisions which the Court’s powers in relation to legal interpretation and construction will not accommodate. Not all of the documents which may properly be required to be provided under s 58, having regard to the provisions of cll 6 and 7 of the Regulation, fit the paradigm of business records. The prescribed information in the various categories for the purpose of clause 7 frequently commences with the collocation, “reports, records or other documents”. It is apparent that the categories of prescribed information go beyond documents brought into existence in a manner like business records. The categories extend to letters or correspondence of the eligible offender to an associate or family member. They also extend to books, magazines, pamphlets or other publications possessed by him or her. A wide range of disparate classes of document are prescribed information for the purpose of s 58.

34. Clause 7(2), the keystone in Mr Coady’s argument, refers to “pre-existing documents” not “pre-existing records”. These provisions apply to all records that might be provided to the Attorney General, not just those which also fall into the definition of terrorism intelligence.

35. It is true that if a s 59A application is successful the documents covered by the Court’s orders are handled with what may well be, depending on the circumstances, a high degree of confidentiality. However, usually, as here, subject to significant restrictions, I accept, an offender’s legal representatives will have access to the information. I do not for a moment underestimate that those lawyers may be at a disadvantage given their inability to obtain instructions from the offender in relation to a document or its source. However, as the decision in Lawrence makes clear, the Court is not powerless to address those disadvantages. In the evaluation of information admitted under s 61, the Court will be astute to factor its limitations and the limitations of the offender’s legal representatives to test it. In circumstances like the present. Should the State xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (subject to appropriate protections, if required) the reliability of the confidential exhibit and accordingly the weight to be afforded to it will be assessed accordingly. Should the State or other prescribed terrorism intelligence authorities seek to withdraw information in the circumstances set out in s 59D of the Act or if a claim for public interest immunity has been unsuccessful under s 60A, the Court is not required to allow the document or report to be withdrawn from consideration if it considers that its withdrawal would be manifestly unfair to a party to the proceedings who is an eligible offender.

Conclusion

36. In considering Mr Coady’s argument as to the legal meaning of the provisions under review, it is necessary to bear in mind that in accordance with s 3 the primary object of the Act “is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community” (my emphasis). The arguments of Mr Coady draw particular attention to and emphasise the ordinary civil liberties of the citizen. However, even in adjectival matters like those under consideration they are considerably modified by the express terms of the legislation. This is well illustrated by the provisions of Divisions 5.2, 5.3 and 5.4 that I have been dealing with in this judgment. So much was also acknowledged by the judgment of the Court of Appeal in Lawrence, by which I am bound. That consideration is also illustrated by the provisions of s 38 of the Act, inter alia, dealing with compulsory pre-trial disclosure by the State to the eligible offender in question, here, Mr Holt. Those provisions do not apply to any document, report or other information, the subject of an intended, pending or granted terrorism intelligence application.

37. I am satisfied that the phrase “pre-existing documents” within the meaning of clause 7(2) of the Regulation means no more than documents already in existence before the s 58 order is made, or existing beforehand. And the confidential exhibit to Acting Assistant Commissioner Sheehy’s affidavit meets that description however expressed.

38. Different questions may have arisen had there been any evidence that suggested the confidential exhibit had been brought into existence at the suggestion of the Attorney General to take advantage of the provisions of ss 58 and 61 for the purpose of circumventing the ordinary rules of evidence which generally apply by force of s 50(1). The Court has ample and inherent power to take necessary steps to prevent its processes being abused. But there is no suggestion in the evidence before me that this concern arises here; quite the contrary, as I have set out above. Notwithstanding ss 58, 59A, 59C and 61, s 50(2) makes clear that those provisions do not affect the rules of evidence “with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence” as Bathurst CJ pointed out in Lawrence.

39. Had Mr Coady’s argument found favour with me, it would still have been appropriate, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx to have considered whether appropriate procedures xxxxxxxxxxxxxxxxxxx under the Court Suppression and Non-publication Orders Act 2010 (NSW) should have been adopted.

40. For these reasons, I am bound to grant the State’s terrorism intelligence application in respect of the confidential exhibit to Acting Assistant Commissioner Sheehy’s confidential affidavit because the conditions specified in s 59A(2) have been satisfied. I direct that the parties bring in short minutes of order conforming with the prayers for relief in the State’s notice of motion of 30 May 2023 in respect of the confidential exhibit. I publish my reasons to the legal representatives of the parties. Under s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground stated in s 8(1)xx the publication of these reasons is otherwise restricted until further order. The reasons may be published on NSW Caselaw’s restricted database.

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Amendments

10 November 2023 - Title changed to State of New South Wales v Holt (No 3)

21 December 2023 - Non-publication order lifted. Non-publication order under s 7 of the Court Suppression and Non publication Orders Act 2010 (NSW), made on 14 December 2023.

Decision last updated: 21 December 2023