State of New South Wales v Holt (No 6)

[2023] NSWSC 1367

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Holt (No 6) [2023] NSWSC 1367

Hearing dates:

28 July 2023

Date of orders:

28 July 2023

Decision date:

28 July 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The confidentiality orders made earlier in the proceedings in relation to the terrorism intelligence information are to be amended to allow the relevant substance of that information to be relayed to the defendant

Catchwords:

HIGH RISK OFFENDERS — closed court —Terrorism (High Risk Offenders) Act 2017 (NSW) — consideration of steps required to protect the confidentiality of terrorism intelligence — plaintiff contends that the terrorism intelligence should be considered by the Court in its determination — plaintiff proposed that the information be accessed by the defendant’s legal representatives but not the defendant himself — defendant’s legal representatives unable to get instructions from the defendant in relation to the terrorism intelligence — competing interests in the protection of the terrorism intelligence and the right of the defendant as a matter of natural justice to know the case against him

Legislation Cited:

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

Terrorism (High Risk Offenders) Act 2017 (NSW), ss 38, 59C

Cases Cited:

State of New South Wales v Holt (No 3) [2023] NSWSC 683

State of New South Wales v Holt (No 4) [2023] NSWSC 861

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Michael James Holt (Defendant)

Representation:

Counsel:
P McDonald SC with K Curry (Plaintiff)
P Coady (Defendant)
T Weller-Wong (xxxxxxx)
Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)
Streeton Lawyers (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 15 December 2023.

EX TEMPORE JUDGMENT (revised)

1. I am hearing an application under the Terrorism (High Risk Offenders) Act 2017 (NSW) by which the State of New South Wales (the “State”) seeks a continuing detention order against the defendant, Michael Holt. Orders have been made by my colleague Yehia J on 1 June 2023 and by me on 23 June 2023 prohibiting the defendant from seeing, reading or otherwise being apprised of information contained within a particular document, which I have held comprises of terrorism intelligence. After a contested hearing I made an order to that effect on 26 June 2023, after publishing my reasons in the State of New South Wales v Holt(No 3) [2023] NSWSC 683 on 22 June 2023.

2. The particular document that has been the subject of argument today is xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. The gravamen of the information, as summarised by Acting Assistant Commissioner Michael Sheehy in his confidential affidavit sworn on 26 May 2023, is set out at paragraph 16 of my confidential judgment of 22 June 2023.

3. Although the terrorism intelligence application, which is the subject of the judgment, was contested, there was no argument on the hearing of the application about the nature of the orders that should be made. In effect, it was at least tacitly accepted that the prayers for relief in the State's motion should be accepted if the application were otherwise successful.

4. As things transpired the final hearing commenced before me on 5 July 2023. On 6 July 2023, I raised with counsel a concern that I had in relation to order 4 to which I have referred at the commencement of these reasons. My concern, as explained in my judgment of 6 July 2023 (State of New South Wales v Holt (No 4) [2023] NSWSC 861) is that given the relief is a continuing detention order and having regard to the fundamental requirements of the rules of natural justice, I had thought better of the appropriateness of order 4 in the terms in which I made it. It seemed to me, in simple terms, that if I was to be asked to commit the defendant to custody for an extended period of time after his sentence lawfully passed had expired he was entitled to know what was said against him to justify that outcome.

5. I should say that there has been no issue before me that Mr Holt, given his adherence to a neo-Nazi ideology of a more or less extreme kind, poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision in the community. The substantial question has been whether that risk can only be managed by making a continuing detention order rather than an extended supervision order (“ESO”).

6. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

7. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

8. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

9. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. I must say the purpose underpinning the legislation and the Court's purpose in making orders, when grounds for them are established, is to protect the community. One proceeds on the basis that the orders are effective although no system is foolproof.

10. I have also had regard to the evidence of Acting Assistant Commissioner Sheehy at paragraphs 44 and 45 of his affidavit, which are in the following terms:

XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X.

XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X.

11. I have also had regard to paragraphs 46 and 47 and I have noted what the witness has said about public interest immunity in the event of disclosure. It should be borne in mind in these proceedings, before I come to the legal context in which this decision is to be made, that the order that I have made and that Yehia J had made allows quite a broad degree of disclosure. There are eight categories of persons who are entitled to have access to xxxxxxxxxxxxxxxxx xxxxxxxxx. The first category is the Court and Court Staff. Now obviously the Court and Court Staff are inherently trustworthy, but the classes of persons who are permitted to have access to the documents are quite large and involve quite a large number of people. I am prepared to accept that all persons falling within the various classes are likely to be trustworthy and that the risk of disclosure inadvertently or deliberately by any of them is so slight as to be effectively non-existent. Even so there is a fair distribution group entitled to have access to this information. The final category of persons entitled to have access to information are the court-appointed experts. Again, they are entirely trustworthy professionals. However, one can understand that taken as a whole the orders do not tightly control confidentiality. It is necessary, of course, that all those categories of person have access to this material if it is to be used in these proceedings. At the same time that necessity is not entirely irrelevant to the necessity to do justice to the defendant, and I bear that in mind.

12. Turning to the legislative context, I have already said that I have found, and I adhere to that finding, that xxxxxxx is terrorism intelligence. I make the observation that I made in my judgment of 22 June 2023 that the definition of terrorism intelligence, to be found at s 4 of the Act which I will not set out, is very broad. The information, mainly documentary in kind, falling within that broad definition is exempt from the compulsory disclosure provisions of s 38 of the Act by dint of s 38(3), at least when a terrorism intelligence application is in contemplation. As I have said and repeat, such an application was made in this case.

13. Section 59C is, I think, a central provision because it imposes the duty upon the Court to maintain the confidentiality of information to which a terrorism intelligence application relates, while it is pending, and also after it is heard if the application is granted. But that obligation to maintain the confidentiality of the intelligence is not unqualified or absolute as the orders in this case demonstrate. The Court has given a wide range of options by subsections (2) and (3) of s 59C. It is quite apparent, for instance, that Parliament contemplated that confidentiality could be relevantly maintained even by allowing the defendant to have a copy of the documents, as illustrated by s 59C(3)(a). All of this indicates that judgment has to be made as to what is called for in a particular case. There is no single approach mandated by the provision. Obviously in every case competing considerations will need to be balanced.

14. The starting point for that balancing exercise is the chapeau to s 59C(2) itself. It is in the following terms:

“The Supreme Court may allow any of the following forms of access to information or terrorism intelligence referred to in subsection (1) (having regard to what the Court considers appropriate because of the nature of the information or intelligence and the degree of risk of disclosure to non-parties by parties and their legal representatives and any other matter the Court considers relevant)…"

A wide variety of considerations will be relevant in any given case. But it is quite clear that the primary focus of the Court's consideration is an assessment of the nature of the intelligence and the degree of risk of inappropriate disclosure to non-parties, and that those are the guiding considerations that I have to apply.

15. Apart from the general considerations, which I accept are important, set out in the confidential affidavits to which I have referred, a primary concern here, of course, as I have also mentioned, is xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

16. When this matter was raised by me with the parties, I on my own motion suggested a limited disclosure of the substance of the evidence against Mr Holt on this important point, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx. That seemed to me to be a sensible way of striking the necessary balance. At the time, it was not embraced by either party, although I think Mr Coady of counsel has since repented. But I have had the benefit of very helpful, persuasive submissions from Ms McDonald SC and Ms Curry on behalf of the State, as to why I should adhere to the orders I pronounced on 23 June, and I have given them very anxious and close consideration.

17. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

18. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

19. I have thought through the possible ramifications of my decision, as explained in the submissions of the Crown and also on the evidence of Assistant Commissioner Sheehy. Having done so, I remain of the view that the requirements of natural justice are so fundamental to our system of both civil and criminal justice in our democratic and free society that they cannot be put entirely to one side in this case, notwithstanding the strong claims of the other public interests at play here.

20. What I have proposed, in my own judgment, is the minimum, the bare minimum, that justice requires in this case. I am of the view that a minimalistic approach takes full regard of the other legitimate interests at play and involves the least reduction of their significance that the interests of justice require in the circumstances of the case.

21. Accordingly, I propose to amend the orders pronounced by Yehia J on 1 June 2023, and the orders pronounced by me on 23 June 2023, to allow the substance of the charge against Mr Holt to be disclosed to him, more or less as I explained on 6 July 2023. But I will give the parties the opportunity of suggesting the final form of what can be disclosed by reference to the summary of Acting Assistant Commissioner Sheehy at page 3, paragraph 11, of his confidential affidavit, as set out by me at paragraph 16 of my earlier judgment.

22. I simply wish to add two things. One is that, in coming to this conclusion, I have borne in mind, given the breadth of the definition of terrorism intelligence, that there is a wide spectrum of sensitivity attaching to different classes of information legitimately covered by that definition. My own judgment is that this is towards the lower end of sensitivity on that spectrum. Xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

23. The second thing I wish to say is, I have decided to give ex tempore reasons in this case because I have had the benefit of careful submissions, but also because it is important that the decision be made now, without any further delay.

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Amendments

21 December 2023 - Non publication order lifted and replaced with 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