R v Azari (No 3) [2017] NSWSC 553

Supreme Court New South Wales

Medium Neutral Citation: R v Azari (No 3) [2017] NSWSC 553 Hearing dates: 10 April 2017 Date of orders: 10 April 2017 Decision date: 10 May 2017 Jurisdiction: Common Law Before: N Adams J Decision: See paragraph [29] Catchwords: CRIMINAL LAW – terrorism trial – application for suppression orders – application granted Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8 Criminal Code (Cth), s 101.6 Cases Cited: R v Alqudsi [2016] NSWSC 1168 R v Azari (No 2) [2017] NSWSC 515 R v Lodhi (2006) 163 A Crim R 508; [2006] NSWSC 596 R v Yousif, Elomar & Elomar (unreported, 22 March 2017, NSWSC, Adamson J) Category: Procedural and other rulings Parties: Regina (Crown) Omarjan Azari (Accused) Commissioner of the Australian Federal Police (Applicant) Representation: Counsel: Mr P Neil SC with Ms J Single (Crown) Mr J Stratton SC with Ms M Curry (Accused) Mr T Glover (Applicant)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Specialists (Accused) Australian Government Solicitor (Applicant) File Number(s): 2014/00274649 Publication restriction: Nil

Judgment

Background 1. On 10 April 2017, the accused Omarjan Azari pleaded not guilty before me to one count of doing an act in preparation or planning for a terrorist act contrary to s 101.6(1) of the Schedule to the Criminal Code Act 1995 (Cth). On the same day, I made suppression orders under s 7(1)(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Court Suppression Act") in relation to certain material set out in a notice of motion filed on 27 March 2017 on behalf of the Commissioner of the Australian Federal Police ("the Commissioner"). Mr Glover of counsel appeared on behalf of the Commissioner. There was no opposition to the orders sought being made. In fact, neither the Commonwealth DPP nor the accused, who were both represented by senior counsel, sought to be heard on the application. 2. The Commissioner had provided the material upon which it relied to my Chambers prior to the hearing of the motion. That material comprised the notice of motion, an affidavit of Michael Phelan sworn 28 March 2017 ("the Phelan affidavit") and written submissions. Copies of the documents sought to be suppressed were also provided. I was satisfied that it was appropriate to make the orders set out in the short minutes of order handed up by Mr Glover on that day. Given that it was the first day of trial and there were a number of other matters to be attended to, I indicated that I would provide my reasons later. I also reserved the question of whether the Phelan affidavit should be returned to the Commissioner. These are my reasons for making those orders on 10 April 2017. 3. A jury was empanelled on 24 April 2017 and the trial proceeded over 26, 27 and 28 April 2017 and 1 and 2 May 2017. On 3 May 2017, I discharged the jury on the application of the accused by reason of the prejudice caused by media reportage of other proceedings: R v Azari (No 2) [2017] NSWSC 515. A new trial will commence later in the year.