Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HAMZY v R [2013] NSWCCA 156 Hearing dates: 11 June 2013 Decision date: 03 July 2013 Before: Hoeben CJ at CL at [1] Harrison J at [55] Beech-Jones J at [62] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Order that the interim suppression and non-publication orders made by this Court on 14 May 2013 in respect of the transcript and evidence in the sentence proceedings involving the applicant Zahra DCJ delivered on 10 May 2013 be continued. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (4) Set aside the so much of the interim suppression and non publication order made by this Court on 14 May 2013 as concerns the sentencing judgment of Zahra DCJ delivered on 10 May 2013 and in lieu thereof order that there be a suppression order in respect of those parts of that judgment that are listed in Schedule 1 hereto. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (5) Order that there be suppression and non-publication in respect of the evidence given by the applicant in these proceedings on 11 June 2013. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (6) Order that there be suppression and non-publication in respect of those parts of this judgment listed in Schedule 2 hereto pursuant to s 8(1)(c) of the Act. Such order is to take effect throughout the Commonwealth of Australia until further order of the Court. (7) Reserve liberty to apply to Harrison J in respect of the period up to and including 12 July 2013 and to Beech-Jones J thereafter in respect of any matter concerning the terms of these orders. Schedule 1 Suppressed Parts of the judgment of Zhara DCJ delivered on 10 May 2013 (Note : these are in addition to those matters covered by the non-publication order listed at the commencement of the judgment.) 1.That part of the judgment commencing "The offender's evidence of the circumstances in which he supplied prohibited drugs" on page 15 up to and including the phrase "the utilitarian benefit of the plea of guilty" on page 34. 2.The second sentence in the quote on page 49 being the sentence after the words "I know what happened" and before the words "I will not say I am sorry". 3.The sentence after the words "something of significance" in the third paragraph on page 51 Schedule 2 Pars [7], [8], [13], [14], [16] - third sentence, [24], [27], [29], [42] - last two sentences, [43], [50] - last two sentences, [51] - last two sentences, [52], [57] - last two sentences, [65] - other than first sentence, [66], [67] - other than first sentence, [68], [69] - second sentence. Catchwords: APPEAL - CRIMINAL - Appeal from refusal by District Court in its criminal jurisdiction to make a non-publication and suppression order - de novo appeal - Court Suppression and Non-publication Orders Act 2010 - admission of additional evidence - whether orders necessary to protect the safety of any person - whether evidence given in District Court gave rise to a risk of reprisals - meaning of word "necessary" in context of criminal proceedings. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Cases Cited: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 Hamzy v District Court of NSW [2013] NSWCA 130 In an application by Bassam Hamzy [2013] NSWCA 121 Category: Principal judgment Parties: Bassam Hamzy - Applicant Regina - Respondent Crown Australian Broadcasting Corporation - Intervenor Representation: Counsel: Mr G James QC/Mr P Lange/Mr J Kalantar - Applicant Ms N Noman SC - Respondent Crown Mr M Lewis - Intervenor Solicitors: AHA Taylor Lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown Grant McAvaney - Intervenor File Number(s): 2009/135919 Decision under appeal Date of Decision: 2013-05-10 00:00:00 Before: His Honour Judge Peter Zahra SC File Number(s): 2009/135919 Judgment 1HOEBEN CJ at CL: Nature of Proceedings The applicant seeks leave to appeal against the decision of Zahra DCJ on 10 May 2013 in which his Honour refused to continue a suppression and non-publication order under the Court Suppression and Non-publication Orders Act 2010 (the Act). 2The applicant filed an application for leave to appeal on 13 May 2013. The appeal is brought pursuant to s14(1) of the Act. Factual Background 3On 10 May 2013 the primary judge was sentencing the applicant (who had pleaded guilty) for two offences: (1) Between 5 May 2008 and 11 June 2008 at Lithgow in the State of New South Wales supplied a prohibited drug, namely methylamphetamine in an amount not less than the large commercial quantity for that drug. (2) On 5 June 2008 in Adelaide in the State of South Australia, while in the company of another person, detained John Baroutas without his consent and with intent to obtain an advantage, namely a financial advantage. Count 1 was laid under s25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence was life imprisonment. The offence carried a standard non-parole period of 15 years. Count 2 was laid under s86(2)(a) of the Crimes Act 1900 and carried a maximum penalty of 20 years imprisonment. 4The primary judge was also asked to take into account 15 further offences on a Form 1. 5During the proceedings on sentence, which commenced on 27 April 2012, an application was made by the applicant's then counsel for a non-publication order of the applicant's evidence. It was indicated that the application was based on the applicant's fears (proceedings on sentence 27.4.2012, p 1.42 - 2.5). There was no objection to this order by the Crown. 6The primary judge indicated that he needed to satisfy himself that it was necessary to make the non-publication order sought. He referred to the issue of national security concerning evidence touching upon certain stolen rocket launchers. The primary judge indicated that based on the state of the material before him at that time, an issue of national security might be relevant. 7The primary judge said: SUPPRESSED 8SUPPRESSED 9The proceedings on sentence continued on other days. On both 5 and 9 April 2013 the applicant appeared and made submissions on sentence on his own behalf, although Mr Abbas, his solicitor, was present. Towards the end of the proceedings on 9 April 2013 the issue of the continuation of the suppression order was discussed: "HIS HONOUR: Yes well the question of the suppression order is a matter that I was just about to raise Mr Crown because there is a suppression order obviously because of the nature of some of the evidence in this trial and that order was made obviously because of the sensitivity of investigations in relation to the rocket launchers. Now having heard all the evidence, I don't know whether there is in fact a foundation for any suppression order in relation or continuation of the suppression. CROWN: Does your Honour wish that to form part of the submissions from the Crown? HIS HONOUR: Yes. In other words that was a matter that I was about to raise Mr Crown. If a further suppression order is sought or continuation of the suppression order to cover obviously my Remarks on Sentence. CROWN: Yes your Honour. HIS HONOUR: It may be that if you're able to include that in your written submission but it may be ultimately once I hand down the sentence obviously depending on the matters I raise in the Remarks on Sentence it may be that there might be a further application. But it does appear to me on the face of it that there is no continuing inquiry in relation to the matter so far as Mr Hamzy is concerned and I don't know whether my referring to the evidence of this trial would be such that it form the basis of a suppression order in any event. OFFENDER: Your Honour may I make submissions with regard to that as well? HIS HONOUR: Yes I was about to come back to you Mr Hamzy on that issue. You need to turn your mind obviously to the provisions of the various sections there. Yes thanks Mr Crown. Mr Hamzy the Crown will provide written submissions in relation to whether the continuation of the suppression order is sought. If you want to make submissions in that regard, if you could make written submissions again. If you want to make further oral submissions again, I'm happy to list the matter before me but that's a matter you would need to address also. OFFENDER: Can you just explain to me your Honour what that actually means? HIS HONOUR: Yes. There is presently a suppression order. A suppression order was made because of what was believed at the start of the trial that the issues in the trial would relate to sensitive matters of a current investigation or an investigation in relation to the rocket launchers and I made an order closing the court, and as you would be aware, the proceedings up until now proceeded by way of closed court. However, I need to revisit that in the context of the sentencing proceedings that have taken place and whether there is to be an application for a continuation of the suppression orders that I have made, in other words, that any evidence during the course of the proceedings, whether an order is sought to suppress any information in relation to that. You might also consider whether you want to make submissions in relation to whether there should be a suppression order. Mr Abbas are you able to provide some assistance with Mr Hamzy for the various legislative provisions? ABBAS: I will your Honour. HIS HONOUR: Mr Abbas will be able to give you some advice in that regard. OFFENDER: I will be making submissions your Honour for the continuation of the suppression order your Honour so if I could just flag that with your Honour now. HIS HONOUR: Yes I understand from matters that you've raised with me previously that that suppression order relates to any issue relating to assistance with the authorities is that the case? OFFENDER: Yes and public interest immunity on the agreements that were made your Honour." (POS 9.4.13 - 33.26) 10Written submissions on both sentence and the suppression order were served by the Crown in April 2013. The Crown did not seek to extend the orders previously made. The Crown submitted that there was no basis for the court to conclude that any of the grounds set out in s8 of the Act were satisfied. 11The applicant prepared three pages of handwritten submissions addressing why a suppression order should be made. The applicant relied upon: National interest. Ensure the safety of any person. Protect a particular witness from distress. In the public interest. Most of the applicant's submissions addressed safety concerns in a general way without reference to specific concerns. 12The matter came back before the primary judge on 10 May 2013. Mr Abbas, solicitor, appeared again for the applicant with the applicant making his own submissions. The applicant confirmed that he sought an extension of the suppression order. There was a lengthy exchange between the judge and the applicant wherein the judge indicated that he had received the written submissions, but was of the view that there existed no basis to make the order. His Honour said that there was no longer an issue of national security and there was no evidence to suggest there were safety issues for any person (POS 10.5.2013 - 3.18). 13SUPPRESSED 14SUPPRESSED 15The judge indicated that he did not propose to make a suppression order (POS 10.5.2013 - 5.9). 16The judge then delivered his Remarks on Sentence in open court. His Honour made the non-publication and suppression orders, to which he had previously referred. SUPPRESSED 17At about 3pm on 10 May 2013 the Australian Broadcasting Commission (the ABC) published an article online called "Australia's Highest Security Inmate to Remain in Jail" (ABC article). The ABC article published a report of the sentence proceedings before the primary judge. 18After the sentence proceedings, the applicant's legal advisers made an urgent application to the Court of Appeal. At that time the applicant was seeking a suppression order primarily on the basis that such an order was necessary to protect his safety (s8(1)(c) of the Act). That application came before Basten JA. Basten JA was not persuaded to make an interim suppression order on that basis, although his Honour did make a suppression order in relation to the transcript and evidence in the sentence proceedings. Save for that order, the application was dismissed (In an application by Bassam Hamzy [2013] NSWCA 121). 19At about 5pm on 10 May 2013, after having been notified of the Court of Appeal suppression order, the ABC article was removed. 20On 14 May 2013 the NSW Court of Criminal Appeal made interim orders in the following terms: "That the suppression orders and non-publication orders made by his Honour Judge Peter Zahra SC on 25 July 2011 and 27 April 2012 be continued until further order of the court." On 17 May 2013 Basten JA revoked the suppression order which he had previously made (Hamzy v District Court of NSW [2013] NSWCA 130). 21The applicant's application for leave to appeal from the order of the primary judge raised three grounds of appeal: Ground 1: His Honour denied the applicant procedural fairness in circumstances where the court had previously indicated that the "removal" of the suppression order would be considered at a later date, after sentence had been passed, yet the Court refused to extend the order on the date on which sentence was passed. Ground 2: His Honour erred in failing to give sufficient reasons, when refusing to extend the orders made. Ground 3: His Honour erred in failing to give any weight whatsoever to the matters raised by the applicant in his handwritten submissions of 7 May 2013. 22The applicant's legal advisers sought leave to rely upon additional evidence which was to be provided at the hearing of the application pursuant to s14(5) of the Act. 23Although the Court of Criminal Appeal made its interim orders on 14 May 2013, the matter did not come before the court for hearing until Thursday, 13 June 2013. The DPP opposed the applicant's application, as did the ABC, which had intervened in the proceedings. 24SUPPRESSED 25On behalf of the DPP, statements were provided by senior police officers to the effect that the police did not regard the applicant as having useful information to provide concerning either the theft of rocket launchers, and their whereabouts, or other weapons and that he was attempting to hold out the prospect of assistance to the authorities for his own advantage. 26There was an affidavit relied on by the ABC which set out the content of the article, published online at 3pm on 10 May 2013, and which also identified other information in the public arena concerning the applicant, in particular the contents of an article published on 29 July 2011 which was entitled "Jailed jihadist tries for deal on stolen rocket launchers" which appeared in the Sydney Morning Herald. The application for leave to appeal 27SUPPRESSED 28A senior police officer gave evidence to the effect that retribution of the sort described by the applicant could be administered to persons even though they were in prison and even though they were being detained in conditions of high security. 29SUPPRESSED 30In relation to the three grounds of appeal, the submissions on behalf of the applicant were as follows. Ground 1 31The applicant relied upon an exchange of correspondence between his solicitors and the primary judge as misleading him into thinking that he would be given an opportunity to put arguments in favour of continuing the suppression order on a date other than the date on which the sentence would be handed down. The correspondence relied upon was an email of 7 May 2013 from the primary judge's associate to the applicant's solicitors: "His Honour has asked me to indicate that he intends to pass sentence on Friday. His Honour will continue the suppression order, however, the application by the Crown to remove the suppression order will be adjourned to another day as Mr Hamzy's father needs to be notified." On 8 May, the solicitors for the applicant responded: "In relation to the submissions with respect to the suppression and non-publication orders, if his Honour is satisfied Mr Hamzy's current submissions are sufficient, please let us know. If not, Mr Hamzy intends on supplementing them at a later stage before his Honour sets down a date for the suppression/non-publication argument." On 9 May, the primary judge's associate responded: "In regards to Mr Hamzy's submissions on the suppression orders, they are sufficient and his Honour does not require him to address anything further." 32The applicant submitted that it was clear from that exchange that the suppression order would continue in effect beyond the imposition of the sentence until such time as a full debate could occur. He submitted that there was no suggestion that the matter would be fully argued on 10 May. In that regard, he had been deprived of procedural fairness. 33The applicant submitted that the primary judge's error was perpetuated by his refusal at the time of handing down sentence to continue the suppression and non-publication orders so as to allow the applicant an opportunity to review his Honour's determination, either by way of a review under s13 or an appeal under s14 of the Act. Ground 2 34The applicant submitted that when refusing to extend the suppression and non-publication orders, the primary judge had merely stated that there was no longer a concern for national security and accordingly the orders would not be extended. The applicant submitted that the primary judge had said nothing about his safety, or that of his family. The applicant submitted that although the orders had originally been made on the basis that it was in the public interest to do so, the primary judge had not stated why that situation had changed so that such considerations no longer applied. The applicant submitted that the failure to provide proper reasons constituted error, as well as a denial of procedural fairness. Ground 3 35The applicant submitted that his Honour's failure to make any reference to his handwritten submissions in his reasons for refusing to extend the suppression and non-publication orders gave rise to a strong inference that he had given those submissions little or no weight. The applicant submitted that at the very least, the primary judge should have indicated why it was that he had concluded that because of the evidence which he had given, neither the applicant nor his family were at risk and that an order was not necessary to protect their safety. Consideration 36The nature of the appeal provided by s14 of the Act was referred to by Bathurst CJ in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 where his Honour said: "6 The nature of an appeal depends on the construction of the particular statutory provisions by which the right of appeal is conferred: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]; Dwyer v Calco Timbers Pty Limited [2008] HCA 13; (2008) 234 CLR 124 at [2]. In the present case the wide powers to admit not only additional evidence but also substituted evidence, coupled with the fact that, subject to leave, a review under s 13 and an appeal under s 14 appear to be alternatives, lead me to the conclusion that the hearing on the appeal is a hearing de novo. 7 As Basten JA has pointed out, as a practical matter, problems which could arise as a result of this construction can be controlled by the imposition of conditions on leave to appeal. Although the question of leave will depend upon each particular case, it is likely that in cases involving a reconsideration of an order on fresh or different evidence leave will commonly be refused and the applicant left to exercise his or her right of review." 37Given the delay which had already occurred between the date when sentence was handed down and when the matter came on for hearing, the Court determined to hear the additional evidence and to take that additional evidence into account when dealing with the application. There was, as the ABC stressed, some urgency in determining whether the interim suppression and non-publication orders should be continued. It submitted (with some justification) that the continuation for a substantial period of an interim suppression and non-publication order would of itself defeat the primary objective of achieving "open justice". 38Apart from the right of appeal, the relevant sections of the Act are: "6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court. 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made." 39An important concept in s8 is the use of the word "necessary". Fairfax Digital Australia provides useful guidance on that issue. "8 In par [46] of his judgment, Basten JA has expressed the view that the meaning of "necessary" depends on the context in which it is used. I agree that what is necessary in any given case will depend on that context. It will depend on the particular grounds in s 8 of the Suppression Orders Act relied upon and the factual circumstances said to give rise to the order. I agree that the variables that Basten JA refers to in par [46] are all relevant to what will be necessary in a particular context. Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word "necessary" should not be given a narrow construction. What was said by Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13] adopting the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 is equally applicable to the legislation in question. "However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed v Local Court (NSW) (at 161B): "This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based." 9 It follows that I agree with what Basten JA has said in par [48] of his judgment. I also agree that the requirement imposed by s 6 of the Suppression Orders Act, namely that in making an order the Court is required to take into account that a primary objective of the administration of justice is safeguarding the public interest in open justice, should not impede the Court from making an order when it is of the opinion that one of the grounds in s 8 is made out and that its importance will vary depending on the extent that any such order would interfere with that principle." (Bathurst CJ) 40Basten JA in the same case said: "48 The broader concept of the administration of justice, including consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence, accords with the approach taken in this Court: ... Each of these cases was dealing with the implied power of courts, operating prior to the commencement of the Suppression Orders Act, and each involved orders which impinged on the operation of the open justice principle. Accepting that broad view, at least in some circumstances, the factors referred to in paragraphs (c) and (d) of s 8(1) may overlap with (a), because orders falling within those paragraphs might also be necessary to prevent prejudice to the proper administration of justice. 49 This Court recently accepted that the "principle of legality" favours a construction of s 8 which has "the least adverse impact upon the open justice principle and common law freedom of speech": Rinehart v Welker [2011] NSWCA 403 at [26] (Bathurst CJ and McColl JA). However, that approach may have a more limited application in circumstances where the proposed order does not impact upon the open justice principle because it does not prevent or restrict publication of court proceedings. The "common law freedom of speech" is not to be disregarded, but it provides a lesser obstacle to an order designed to prevent prejudice to the proper administration of justice." Ground 1 41It is clear from what occurred during the sentence proceedings on 10 May 2013 that there were extensive oral submissions from the applicant supplemented by written submissions. Ample opportunity was provided for evidence to be produced and submissions in advance of 10 May 2013. Extensive evidence had been given by the applicant in the sentence proceedings, hence his submission that the non-publication and suppression order should be continued. The communication on behalf of the primary judge that the applicant's submissions were sufficient, did not equate with an acceptance that they were necessarily accepted. It is clear from what occurred in open court, both during the course of the proceedings and on 10 May, that full submissions had already been advanced and that both sides had been provided with and had availed themselves of the opportunity to make submissions. It is also not without significance that the applicant's solicitor was present on 10 May, even though the relevant submissions were made by the applicant himself. 42I am not satisfied that this ground of appeal has been made out. Even if it had been made out, the applicant has now had ample opportunity to make further submissions and to provide further evidence in these proceedings. He has availed himself of that opportunity. SUPPRESSED Ground 2 Ground 3 43Both these grounds can be dealt with together. SUPRESSED 44The Crown called evidence to the effect that while the applicant's initial offer to help the authorities in retrieving the rocket launchers might have been genuine, he simply did not follow through with it. The Crown denied the contents of the agreement which the applicant said he had with the NSW Crime Commission. 45It is clear from both the content and tenor of the primary judge's findings on sentence that he accepted the Crown evidence and rejected that of the applicant in relation to the assistance which he said he actually provided with respect to the recovery of the rocket launchers. His Honour noted that the extent of any assistance provided by the applicant was locating one firearm. No-one had been identified or arrested in relation to that. Neither the evidence in the sentence proceedings, nor that given before this Court was to the effect that there would be any reprisal visited upon the applicant or his family in respect of the locating of that single firearm. 46In relation to the alleged assistance in respect of retrieving the rocket launchers, it is apparent that the primary judge did not believe the applicant's evidence about an agreement with the NSW Crime Commission which allowed him to sell drugs. By implication and expressly, his Honour did not accept that following the initial offer to assist (which the Crown conceded may have been genuine), the applicant did anything else which assisted in recovering the rocket launchers. 47In other words, on the evidence and findings of the primary judge, other than the location of one firearm, there was no action on the part of the applicant which would invite reprisals from the persons he described in the evidence before this Court. No persons were identified and no arrests were made. 48It follows that the simple answer to Ground 2 and Ground 3 is that there were no actions on the part of the applicant which would have invited a reprisal from "Jihadists" and therefore it was not necessary to continue the non-publication and suppression orders. They had initially been made because it was suspected that some evidence relating to the retrieval of the rocket launchers of a confidential nature might be given. That did not occur. Accordingly, the basis for the continuation of such orders under s8(1)(b) or 8(1)(e) no longer existed. The protection of the applicant and his family 49In relation to s8(1)(c) the premise on which the handwritten submissions of the applicant were based, was found by his Honour not to exist, i.e., that the applicant had provided assistance to the authorities in the retrieval of the rocket launchers. There was no conduct disclosed which would expose either him or his family to reprisals. 50It follows that there is nothing in either the primary judge's judgment on sentence, nor in the evidence before him which renders it necessary as that term is used in s8 of the Act for non-publication and suppression orders to be continued in respect of those matters. Accordingly, the interim orders made by this Court on 14 May 2013 should be revoked. SUPPRESSED Proceedings in this Court 51That does not end the matter. Evidence was given by the applicant in these proceedings which went beyond that which was before Zahra DCJ. SUPPRESSED 52SUPPRESSED. 53It follows that I am satisfied that in relation to the applicant's evidence in these proceedings, a suppression and non-publication order is necessary to protect the safety of the applicant and his family. It is also necessary, for the same reason (s8(1)(c) of the Act) that parts of this judgment be subject to a suppression and non-publication order. Conclusion 54The orders which I propose are as follows: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The interim suppression and non-publication orders made by the NSW Court of Criminal Appeal on 14 May 2013 in respect of the transcript and evidence in the sentence proceedings involving the applicant and sentence judgment of Zahra DCJ delivered on 10 May 2013 are revoked. (4) Order suppression and non-publication in respect of the evidence given by the applicant in these proceedings on 11 June 2013. Such order is made pursuant to s8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (5) Order suppression and non-publication with respect to parts of this judgment pursuant to s8(1)(c) of the Act. Such order is to take effect throughout the Commonwealth of Australia until further order of the Court. 55HARRISON J: I have had the advantage of reading in draft the reasons for judgment of the Chief Judge. I agree with his Honour's proposed orders (4) and (5) for the making of suppression and non-publication orders in the terms suggested. I disagree with his Honour's proposed orders (2) and (3) that the interim suppression and non-publication orders made by this Court on 14 May 2013 in respect of the transcript and evidence in the sentence proceedings involving the applicant and sentence judgment of Zahra DCJ delivered on 10 May 2013 should be revoked. My reasons for this are as follows. 56The only basis upon which a suppression or non-publication order could be made in the present circumstances would be if s 8(1)(c) of the Act were triggered. In my opinion there is sufficient material to support a finding that an order is necessary to protect the safety of the applicant. 57It will be apparent that the Chief Judge is of the view that neither the evidence in the sentence proceedings nor that given in this Court was to the effect that there would be any reprisals visited upon the applicant or his family in respect of the locating of the single firearm. I respectfully agree with that observation. SUPPRESSED 58In these circumstances the Chief Judge has indicated that in his opinion, based upon the evidence and findings of the primary judge, there was no action on the part of the applicant, including the location of one firearm, that would invite reprisals from the persons he described in the evidence in this Court. His Honour has reasoned therefore that in the absence of actions or conduct on the part of the applicant disclosed in the proceedings before the primary judge that would expose either him or his family to reprisals from "Jihadists", there was nothing in either the primary judge's judgment on sentence or in the evidence before him that rendered it necessary (as that term is used in s 8 of the Act for non-publication and suppression orders) to be continued in respect of those matters. 59It is in my opinion a mistake to conflate either the truthfulness or usefulness of information and cooperation provided by the applicant to the authorities, with the likelihood that reprisals for having done so will follow if the fact of that provision of information or cooperation becomes publicly known. Unless I misunderstand the applicant's position, his fear for his own safety is not the product of having successfully exposed potential offenders to detection or prosecution of conviction, so much as it is the product of the perception created that he has been prepared to assist in achieving one or some of those outcomes. 60The term "necessary" is not to be given a restricted meaning. It has to be interpreted and applied in context. That context in my opinion includes the possibility of an irrational and illogical response by members of the applicant's faith, as so nominated by him in evidence in this Court, to the revelation of his historical dealings with the authorities concerning the rocket launchers, however unbelievable or unproductive they may have ultimately turned out to be in fact. It is not in my view appropriate to balance or to calibrate the competing interests recognised by the Act, including relevantly for present purposes the applicant's safety, upon the fulcrum of an assumed reasoned and dispassionate response by the applicant's potential detractors to the material that he seeks to keep confidential. If the potential publication of the applicant's evidence before the primary judge and in this Court raised even some doubt that his safety were compromised, he should in my opinion be given the benefit of that doubt when deciding the question of whether or not a suppression or non-publication order is necessary. I consider that the material does raise that doubt. The need to safeguard the public interest in open justice does not prevail in this case where in my opinion the s 8(1)(c) ground has been made out. 61In my opinion the following orders should be made: (1) Grant leave to appeal. (2) Allow the appeal. (3) Order that the interim suppression and non-publication orders made by this Court on 14 May 2013 in respect of the transcript and evidence in the sentence proceedings involving the applicant Zahra DCJ delivered on 10 May 2013 be continued. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (4) Set aside the so much of the interim suppression and non publication order made by this Court on 14 May 2013 as concerns the sentencing judgment of Zahra DCJ delivered on 10 May 2013 and in lieu thereof order that there be a suppression order in respect of those parts of that judgment that are listed in Schedule 1 hereto. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (5) Order that there be suppression and non-publication in respect of the evidence given by the applicant in these proceedings on 11 June 2013. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (6) Order that there be suppression and non-publication in respect of those parts of this judgment listed in Schedule 2 hereto pursuant to s 8(1)(c) of the Act. Such order is to take effect throughout the Commonwealth of Australia until further order of the Court. (7) Reserve liberty to apply to Harrison J in respect of the period up to and including 12 July 2013 and to Beech-Jones J thereafter in respect of any matter concerning the terms of these orders. Schedule 1 Suppressed Parts of the judgment of Zhara DCJ delivered on 10 May 2013 (Note : these are in addition to those matters covered by the non-publication order listed at the commencement of the judgment.) 1. That part of the judgment commencing "The offender's evidence of the circumstances in which he supplied prohibited drugs" on page 15 up to and including the phrase "the utilitarian benefit of the plea of guilty" on page 34. 2. The second sentence in the quote on page 49 being the sentence after the words "I know what happened" and before the words "I will not say I am sorry". 3. The sentence after the words "something of significance" in the third paragraph on page 51. Schedule 2 Pars [7], [8], [13], [14], [16] - third sentence, [24], [27], [29], [42] - last two sentences, [43], [50] - last two sentences, [51] - last two sentences, [52], [57] - last two sentences, [65] - other than first sentence, [66], [67] - other than first sentence, [68], [69] - second sentence. 62BEECH-JONES J: I have had the advantage of reading a draft of the judgment of Hoeben CJ at CL. His Honour's judgment relieves me of the necessity to set out the background to the appeal. 63As noted by His Honour once leave to appeal is granted under s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the "Act") then the appeal is by way of a fresh or "de novo" rehearing (Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [6] per Bathurst CJ, at [23] per Basten JA and [106] per Whealy JA). However the grant of leave can be subject to conditions which can allow the Court to control its own procedures (Fairfax at [7] per Bathurst CJ, at [24] per Basten JA and at [106] per Whealy JA). In this case the application for leave to appeal was heard on the basis that the argument and evidence in support of any appeal would be the same as that put forward in support of the application for leave to appeal. Further, one of the grounds put forward is that the applicant was not given a proper opportunity to be heard before the interim suppression order made by Zahra DCJ was revoked. Without deciding that ground, it appears to have some substance. In view of that, and bearing in mind the nature of the interest that the applicant wishes to uphold, namely his personal safety and that of his family, I propose that leave to appeal be granted. 64However, in my view one condition upon which leave should be granted is that any attempt to reagitate the findings of fact made by Zahra DCJ in sentencing the applicant should be refused. His Honour made those findings having received a significant body of evidence and detailed submissions. In the ordinary course the appropriate forum for any challenge to those findings is by way of an appeal under the Criminal Appeal Act 1912. In any event no challenge to any of his Honour findings in that judgment was made in this application. 65It is important to note the critical aspects of the sentencing judgment that relate to this application. SUPPRESSED 66SUPPRESSED 67However, in this Court the applicant gave further evidence. SUPPRESSED 68SUPPRESSED 69Once this evidence is considered it is, to my mind, unrealistic to address the test posed by s 8(1)(c) on the basis that persons who might be minded to engage in reprisals will read Zahra DCJ's sentencing judgment and dismiss the applicant's conduct as not being a threat to them. SUPPRESSED 70As noted by Senior Counsel for the applicant, the test posed by s 8(1)(c) does not turn upon the genuineness of the proposed informer's motivations and whether their coming forward was ultimately of any assistance. Instead the demonstration of whether it is necessary to protect a person is ascertained by an objective assessment of the level of risk posed. In this case, the applicant's evidence has persuaded me that the test posed by ss 8(1)(c) has been made out. 71Consistent with the competing interests sought to be balanced by the Act, the full version of this judgment will not be publicly available. However, a redacted version will be published. Of necessity the redacted version will not be able to fully explain the reasons for the making of the orders as to do so will jeopardise the very interest that is sought to be protected by the application. 72I agree with the orders proposed by Harrison J. In particular it is not necessary for the protection of the applicant that the entirety of the sentencing judgment be suppressed. A significant part of that judgment discusses the applicant's criminal conduct and other matters concerning his sentence which raise no issue concerning his safety. ********** 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: 04 July 2013