Supreme Court New South Wales Medium Neutral Citation: R (Cth) v Alqudsi (No 6) [2023] NSWSC 353 Hearing dates: 3 February 2023 Date of orders: 3 February 2023 Decision date: 03 February 2023 Jurisdiction: Common Law Before: Rothman J Decision: Application for extension of Suppression and Non-publication Orders granted. Catchwords: CRIMINAL PROCEDURE – suppression and non-publication – law enforcement methodology and technology – prima facie position of open justice protected – extension of previous suppression and non-publication orders granted for 20 years Category: Procedural rulings Parties: Rex (Crown) Hamdi Alqudsi (Accused / Respondent) Commissioner of the New South Wales Police Force / Attorney General of New South Wales (Applicant) Representation: Counsel: T McDonald SC / N Roucek (Crown) K Stares SC (Accused / Respondent) D Jordan (Applicant) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Pinnacle Legal Group (Accused / Respondent) Crown Solicitor's Office (Applicant) File Number(s): 2019/354277 ex tempore JUDGMENT 1. HIS HONOUR: Before the Court is a motion by the Commissioner of Police, requesting an extension of orders made previously by the Court relating to the non-publication of certain material relating to the methodology and technology of law enforcement agencies, either of the Commonwealth or of the State. The order, at the time it was made, was for the purpose of the trial to ensure non-publication from anything that was said or done during the trial. The material is in what would otherwise be publicly available information such as Affidavits that were read for the purposes of some of the proceedings, particularly some of the preliminary proceedings. 2. The prima facie position of the Court as enjoined by the legislature is that court proceedings should be open to the public, and the record of court proceedings should be available. 3. It is an essential aspect of the administration of justice and of democracy that court proceedings and the conduct of judges are able to be reviewed by the public, and to the extent possible, understood by the public. 4. It is against that prima facie position that the capacity of the Court to exercise the jurisdiction conferred on it to issue non-publication orders or suppression orders must be put in context. Therefore, the matters that are raised, and the issues that are raised in order to satisfy the Court that an order should be made, leaving aside for present purposes such as matters of public interest immunity or issues of national security generally, are tested against the need for the public to be aware of what has happened, and to be able to scrutinize the conduct of proceedings, particularly criminal proceedings where people have been charged with serious criminal offences. 5. The material in question, as I earlier stated, deals essentially with methodology of law enforcement agencies, including some of the technology that was able to be used. Some of the material about which there was a fear attested in earlier Affidavits was not actually the subject of evidence, but it has been mentioned in proceedings as I earlier said. 6. I continue to be satisfied that the non-publication of that methodology originally identified in the orders and ordered not to be published and/or to be suppressed, is material that continues to be such that the prima facie right of the public and of others to access all of the information that was before the Court must be qualified. An order suppressing the information is necessary firstly, to prevent prejudice in my view to the proper administration of justice, and secondly, to prevent prejudice to the interests of the State, and in particular the continued capacity of the law enforcement agencies to undertake methodology that is not publicly known, and as a consequence able to be avoided. 7. The application for the suppression orders is to be extended by a further 20 years. That is a long time. And it may well be that by the time these suppression orders expire, the technology will either no longer be new or will otherwise be in the public domain. It may be that the technology and/or methodology will not even be utilised by the law enforcement agencies. 8. Nevertheless, the Court retains a capacity to review the suppression order. As earlier stated on the record, contact has been made with the media, who are in part protected in relation to these suppression orders, to see if there were any interests that sought to oppose the extension of the order. No-one opposes it. Therefore, the view that I have formed is a view that I take, and continue to take, and I am comforted by the fact that no-one seeks to oppose the order. Nevertheless, it is for the Court to be satisfied. The Court is so satisfied, and the orders in the motion are made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023