Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Holt (No 4) [2023] NSWSC 861 Hearing dates: 6 July 2023 Date of orders: 6 July 2023 Decision date: 06 July 2023 Jurisdiction: Common Law Before: Campbell J Decision: The matter is adjourned until 28 July 2023. Catchwords: CIVIL PROCEDURE — plaintiff unable to provide instructions on evidence classed as terrorism intelligence and currently subject to confidentiality orders under the Terrorism High Risk Offenders Act 2017 (NSW) — issue as to whether confidentiality regarding that evidence ought to subsist — consideration of scope to protect terrorism intelligence and competing the interest of natural justice — application for adjournment to enable full consideration of the issue Legislation Cited: Terrorism High Risk Offenders Act 2017 (NSW) ss 59C, 59D, 60A Cases Cited: State of New South Wales v Holt (No 3) [2023] NSWSC 683 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) Solicitors: Crown Solicitor's Office (Plaintiff) Macedone Legal (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. Decision under appeal File Number(s): 2021/193502 Ex tempore JUDGMENT (revised) 1. This case has a long history, but it is necessary in the interests of the administration of justice and in the public interest that it be adjourned again. It is appropriate that I give some brief reasons as to why that is necessary. Xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 2. The principal relief sought by the State of New South Wales (the "State") is that Mr Holt be subject to an interim detention order under the Act of 12 months' duration. As things have developed in this case since last December, a central ground underpinning the State's application is xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. These matters are dealt with more fully in my judgment of 22 June 2023: State of New South Wales v Holt [2023] NSWSC 683; and do not need to be amplified for the purpose of these reasons. 3. The present form of the suppression orders made by me include order 4, which is in the following terms: "the defendant shall not be permitted to see, read or otherwise be appraised of the information contained within the document that comprises terrorism intelligence". 1. Although his legal representatives have had the benefit of copies of the documents in an unredacted form, they are not permitted to relay the information to Mr Holt or take his instructions in relation to it. 2. My concern as expressed today at the commencement of the proceedings relates to what I see as a real conflict between not only the various aspects of the public interest in xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and the public interest in the open justice principle, but also perhaps the even more fundamental public interest which underpins the whole administration of justice, the rules of natural justice. Fundamentally, the "hearing rule" requires that a person at jeopardy of penalty or the deprivation of liberty is entitled to know the case made against him or her, the evidence upon which it is based and to have an opportunity to answer it. 3. I fully appreciate that certain provisions of the Act manifestly inhibit or circumscribe the rules of natural justice, but not entirely. It is sufficient to refer in general terms of s 59C which require the Court to take steps to maintain the confidentiality of terrorism intelligence, but not at any cost. It is quite apparent from the terms of subs (2) and subs (3), read together, that while the Court may deny access to terrorism intelligence information to any party, more specifically, the defendant, it is not by force of law required to do so. That the requirements of natural justice are not entirely ousted by the legislation is made quite clear, to my mind anyway, by the provisions of s 59D(3) on the one hand and s 60A(3) on the other. 4. Speaking only of s 59D, that provision permits the State or another terrorism agency to withdraw a document sought to be covered by terrorism intelligence protections including in circumstances where the Court decides not to grant the level of restricted access requested by the State in respect of the document. The Court has a discretion to refuse to allow the document to be withdrawn if the Court considers that the withdrawal would be manifestly unfair to a party to the substantive proceedings who is an eligible offender. Section 60A(3) mirrors that provision. Although that is concerned with a withdrawal rather than the tender, I think it clearly indicates that neither the express words of the provisions of Div 5.3 the Act, nor any necessary implication, excludes the fundamental common law values embodied in the rules of natural justice. 5. Having come to that conclusion after considering the material in chambers, I raised it with counsel in court this morning and explained my reasons for concluding that the terms of the order I had made denied Mr Holt the opportunity to answer what is now really the basic charge against him, if I can put it that way. I remain concerned about the public interest, as I have said, xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 6. There are two aspects to that. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 7. I did make a suggestion to the parties which is recorded in the confidential transcript and need not be outlined here, as to how I thought those competing interests could be accommodated. As things transpired, it is unpalatable to both and accordingly it is necessary for me to decide the issue. Given it was raised by me without notice, counsel have not had a full opportunity to consider the ramifications of my suggestion. 8. I accept that the matter is capable of being of some importance to the State and to the associated counterintelligence agencies who might come under that umbrella, and I have been asked to allow an opportunity for full submissions to be developed about why I should not proceed in accordance with the suggestion that I have made. Indeed, from the State's point of view, it would prefer the orders stand as they are but may be prepared to consent to relaying some anodyne information to Mr Holt which would inform him of nothing at all, in my view. That matter is the subject of confidential MFI 1. 9. Mr Coady, counsel for Mr Holt, has submitted that all of the confidential material which is the subject of my order of 23 June 2023 should be disclosed to Mr Holt so he can provide full instructions in relation to the matter, xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 10. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 11. In the event, I accede to the State's application for an adjournment to enable the argument to be fully rehearsed before me. In the circumstances, I am satisfied that allowing for that argument, a ruling in relation to it and xxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxin any event the matter can still complete in one day. It seems that given the busy diaries of the experienced counsel involved, the earliest day available to them is during the week commencing 24 July and I have decided to adjourn the matter to 28 July. I will make orders in respect of that adjournment in open court. ********** Amendments 10 November 2023 - Title amended to State of New South Wales v Holt (No 3) 10 November 2023 - Title changed to State of New South Wales v Holt (No 4) 10 November 2023 - Cases cited changed to: State of New South Wales v Holt (No 3) [2023] NSWSC 683 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. 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: 21 December 2023