State of NSW v Elomar

[2018] NSWSC 708

Supreme Court

New South Wales

Medium Neutral Citation:

State of NSW v Elomar [2018] NSWSC 708

Hearing dates:

03 May 2018

Date of orders:

03 May 2018

Decision date:

03 May 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

The Court notes:
(1) The evidence that the State intends to adduce in these proceedings includes an exhibit called “Exhibit X–1”.

 

(2) The State has prepared the following copies of Exhibit X–1:
(a) one that is watermarked to indicate that it is for the solicitor for the defendant (“the defendant’s principal solicitor’s copy of Exhibit X–1”);
(b) one that is watermarked to indicate that it is for the solicitor employed by the solicitor for the defendant and assigned to undertake work in respect of these proceedings (“the defendant’s employed solicitor’s copy of Exhibit X–1”);
(c) one that is watermarked to indicate that it is for counsel for the defendant (“the defendant’s counsel’s copy of Exhibit X -1”); and
(d) one that is watermarked to indicate that it is to be the Court’s working copy of Exhibit X–1 (“the Court’s working copy of Exhibit X–1”)
(together, “the copies of Exhibit X–1”).

 

The Court orders:
(3) Exhibit X–1, the copies of Exhibit X–1, and the documents and information therein shall be dealt with as terrorism intelligence (within the meaning of “terrorism intelligence” in the Terrorism (High Risk Offenders) Act 2017) in accordance with Orders 4 to 16.

 

(4) Forthwith upon demand by or on behalf of the defendant, the State shall serve on the solicitor for the defendant the defendant’s principal solicitor’s copy of Exhibit X–1, the defendant’s employed solicitor’s copy, and the defendant’s counsel’s copy of Exhibit X–1.

 

(5) The solicitor for the defendant may provide the defendant’s counsel’s copy of Exhibit X–1 to counsel for the defendant in these proceedings.

 

(6) If the solicitor for the defendant advises the Crown Solicitor that he wishes to provide a copy of Exhibit X–1 or part thereof to an expert for the purpose of that expert preparing a report for use in the proceedings then:
(a)   the State shall before 5pm on the next business day provide to the solicitor a copy (watermarked to indicate the expert for whom it has been made) of Exhibit X–1 or the requested part thereof (as the case requires) for provision to and use by the expert (“the expert’s copy of Exhibit X–1”); and
(b)   the solicitor may provide the expert’s copy of Exhibit X–1 to the said expert provided that:
(i)   a copy of these orders has been provided to the expert; and
(ii)   the expert has acknowledged that he or she is bound by these orders.

 

(7) The legal representatives acting for the defendant may disclose to the defendant the content of the Exhibit X–1 or any part thereof (including, without limitation by reading the one of the copies of Exhibit X–1 [or part thereof] to him or by permitting him to read one of the copies of Exhibit X–1 [or part thereof]).

 

(8) No copy shall be made of any of the copies of Exhibit X–1 or the expert’s copy of Exhibit X–1.

 

(9) Subject Order 10, no record of the content of Exhibit X–1 shall be made.

 

(10) The legal representatives of the defendant, and any expert retained by the solicitor for the defendant, may makes notes of the content of Exhibit X–1.

 

(11) No copy of Exhibit X–1 or the contents thereof shall be provided or disclosed except:
(a)   in accordance with Orders 3 to 10 above;
(b)   to a lawyer who is acting for or advising the State or the Attorney General in respect of these proceedings;
(c)   an officer, employee or lawyer of the State or an agency of the State who is undertaking duties related to the conduct of these proceedings;
(d)   to an expert appointed by the Court for the purpose of that expert preparing a report for use in the proceedings;
(e)   to an expert retained by the State for the purpose of that expert preparing a report for use in the proceedings; or
(f)   to the Court and such of its staff who are assisting the Court in respect of these proceedings.

 

(12) Each person who receives one of the copies of Exhibit X–1 or the expert’s copy of Exhibit X–1 shall keep that copy, and any notes made pursuant to Order 10, securely and shall take all reasonable steps to ensure that it is, and they are, not disclosed, delivered or taken except pursuant to these Orders.

 

(13) Each person who receives one of the copies of Exhibit X–1 or the expert’s copy of Exhibit X–1 from the solicitor for the defendant shall upon demand by that solicitor return it to that solicitor.

 

(14) Each person who makes notes pursuant to Order 10 shall upon demand by the defendant’s solicitor give those notes to that solicitor.

 

(15) No later than seven days after:
(a)   the conclusion of the proceedings;
(b)   the expiry of all rights of appeal arising from the proceedings; and
(c)   the conclusion of any proceedings in the High Court of Australia,
the solicitor for the defendant shall:
(d)   retrieve all of the copies of Exhibit X–1 and the expert’s copy of Exhibit X–1 that he has provided to any person and shall return to the Crown Solicitor’s Office all copies of Exhibit X–1 and the expert’s copy of Exhibit X–1 that were served on him (sealed in a package or container if he so chooses); and
(e)   obtain all notes made pursuant to Order 10 and deliver them to the Crown Solicitor’s Office (sealed in a package or container if he so chooses).

 (16) All material returned to the Crown Solicitor’s Office pursuant to Order 15 above shall be held securely by the Crown Solicitor’s Office and shall not (without the permission or direction in writing of the solicitor for the defendant) be subjected to any reading, inspection, perusal, disclosure, destruction, tampering, or breaching of any sealing by the solicitor for the defendant in a package or container.

Catchwords:

TERRORISM – Terrorism (High Risk Offenders) Act 2017 – terrorism intelligence – application by Attorney General for order of service on defendant of redacted documents and on defendant’s legal representative of unredacted documents – discussion of issues – least restrictive order than full disclosure – order granted

Legislation Cited:

Terrorism (High Risk Offenders) Act 2017, s 60

Category:

Procedural and other rulings

Parties:

State of NSW (Plaintiff)
Ahmad Elomar (Defendant)
Attorney General (Applicant on Motion)

Representation:

Counsel:
P Singleton (Applicant on Motion)

  Solicitors:
NSW Crown Solicitor’s Office (Applicant on Motion)

File Number(s):

2018/121186

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application ex parte by the Attorney General otherwise than in his capacity as part of the Government of the State for orders of the Court pursuant to the terms of s 60(4) of the Terrorism (High Risk Offenders) Act 2017 ("the Act"). Section 60 of the Act allows the Court to permit a document or documents that are "terrorism intelligence" as defined by the Act to be the subject of service in varying degrees of restriction. The Attorney General seeks the lowest form of restriction, which is that contained in subs (4)(b) of s 60 of the Act.

2. I should make clear that para (a) of s 60(4) allows for an unrestricted copy to be provided, but the lowest form of restriction is one that provides to the legal representatives a copy of the intelligence and allows the party to view, but not have a copy of, that intelligence. That is the restriction that is sought from the Attorney General and the orders that he seeks to have the Court issue.

3. It perhaps is appropriate to deal with one matter. The definition of "terrorism intelligence" is contained in s 4 of the Act and it defines "terrorism intelligence" as meaning "any information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts, or to prejudice criminal investigations, or to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or to endanger a person's life or physical safety.”

4. The material in question in part deals with alleged associations between a number of people, some of which associations may not in fact result from any terrorism activity or any surveillance of those other persons. It is said, and I accept, that to allow a copy of the material in the prison would be to invite reactions that would necessarily or would have a high risk of exciting concern and creating problems for the Corrective Services officers and the prison system generally. I accept that the material could reasonably be expected to endanger a person's life or physical safety, being those persons in prison who are given the task of controlling and supervising prisoners, and other prisoners, and indeed the prisoners who may be named in the documents themselves. Of course these findings are made on a preliminary basis and these are interlocutory orders. I am of course able to revoke such an order on application at the time that the defendant is represented.

5. In the circumstances, and bearing in mind that I consider the material in the exhibit terrorism information, I am minded to make the order sought by the Attorney General under s 60(4)(b) of the Terrorism (High Risk Offenders) Act, and I make the orders handed up to me, subject to one matter: in para 4 I will delete the words "within two hours of the making of these orders" and insert in lieu thereof "forthwith upon demand by or on behalf of the defendant". Otherwise, I make the orders initialled and dated today's date.

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Decision last updated: 18 May 2018