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. Relevant legislation 1. Section 7 of the Court Suppression Act provides that a court may, by making a suppression order or non-publication order on grounds permitted by the Act, prohibit or restrict the publication or other disclosure of information that comprises "evidence, or information about evidence" given in proceedings before the court. 2. The grounds upon which a suppression order or non-publication order may be made are set out in s 8(1) of the Court Suppression Act. Those grounds include, inter alia, that the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)), that 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 (s 8(1)(b)), and that 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 (s 8(1)(e)). 3. A "suppression order" is defined in s 3 of the Act as an order that prohibits or restricts the disclosure of information (by publication or otherwise), whereas a "non-publication order" is defined to mean an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). 4. In deciding whether to make a suppression order, or a 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: s 6 of the Court Suppression Act. 5. The Commissioner also relied upon s 47 of the Surveillance Devices Act 2004 (Cth) ("the SD Act"). Section 47(1) of the SD Act provides that, in a proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices. If the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal such details, the person must make any orders prohibiting or restricting publication of the information that he or she considers necessary to ensure that those details are not revealed. Evidence 1. The material in relation to which the orders were sought pertained to evidence that concerned, or was the product of, a particular investigative methodology used by the Commissioner. 2. The Phelan affidavit was formally read in support of the application. Michael Phelan is a Deputy Commissioner of the Australian Federal Police and the Deputy Commissioner, National Security. In correspondence with my Chambers prior to 10 April 2017, the solicitor for the Commissioner requested that that the Phelan affidavit be stored in a lockable cabinet and returned once the Commissioner's motion was determined. I will return to the question of whether the affidavit ought to be returned to the Commissioner later in these reasons. 3. The affidavit contains some information that the Commissioner, by his application, wishes to protect from disclosure (but which is available to the parties in this matter). That information is highlighted in yellow. It also contained other, more sensitive, information that explains the basis for the application. That information is highlighted in green. The second category of information was not made available to the parties at the hearing and does not directly concern the accused or any of the issues to be raised at the trial. 4. I was also provided with the statements and other documents containing the material over which the orders pertained. Submissions of the Commissioner 1. Mr Glover of counsel relied upon detailed written submissions. He submitted that disclosure of the material, beyond that for which the orders provide, would cause real prejudice to counter-terrorism investigations and investigations into serious and organised crime, and would generally prejudice national security. 2. It was submitted that this Court has ample power to make the orders sought, whether under s 7 of the Court Suppression Act, s 14 of the SD Act, or in its inherent jurisdiction as a superior court of record. Insofar as the power in s 7 of the Court Suppression Act is concerned, Mr Glover submitted that the relevant grounds in this case are sub-ss 8(1)(a), (b) and (e). 3. Mr Glover noted that Adamson J had recently made orders in a form largely identical to that set out in the Commissioner's notice of motion: R v Yousif, Elomar & Elomar (unreported, 22 March 2017, NSWSC, Adamson J). Her Honour had previously made similar orders in R v Alqudsi [2016] NSWSC 1168. 4. As stated above, neither the Crown nor the accused opposed the orders sought. Determination 1. At the time that I made the relevant orders on 10 April 2017, I was satisfied on the basis of the Phelan affidavit that it was necessary to do so in order to prevent prejudice to the proper administration of justice and to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security. Having regard to the evidence that disclosure may cause grave harm to the public interest in the proper functioning of AFP investigations, I considered that the orders were necessary notwithstanding that there has been some limited disclosure of evidence obtained using the relevant investigative methodology. At the time that I made the orders sought, I had regard to the importance of safeguarding the public interest in open justice 2. I made the orders prohibiting disclosure of the material described in prayer 1 of the Commissioner's notice of motion having regard to ss 8(1)(a), (b) and (e) of the Court Suppression Act. 3. The motion came before me at the beginning of the first day of the trial before any of the pre-trial arguments had been heard. The orders that I made were anticipatory; that is, it was anticipated that the evidence would be given at the trial. On the same day, the Crown Prosecutor filed in court a final version of the Crown Case Statement. It comprises 477 paragraphs and is 69 pages long. 4. On 12 April 2017, the accused notified the Commonwealth DPP of a large number of objections to the evidence described in certain paragraphs of the amended Crown Case Statement filed in court on 10 April 2017. On 20 April 2017, I commenced to rule on those issues that the parties were not able to resolve. During the day, I adjourned the argument in order to give the parties an opportunity to consider further their respective positions. By email later that day, I was informed that the Crown did not propose to press paragraphs [51] – [53], [55] – [57], [59] – [76], [78] – [105], [110], [114] – [116], [121] – [133], [223] – [224], [340], [346] – [350] and [363] – [365] of the amended Crown Case Statement. 5. All of the material to which the orders I made on 10 April 2017 pertained was included in those paragraphs upon which the Crown no longer seeks to rely at trial. 6. Although the evidence will not be led at trial, the orders I made also covered the documents in the prosecution brief that contained the relevant material. Those documents were tendered at the committal proceedings and then returned to the Commonwealth DPP. The only copies of those documents are thus in the hands of the parties. The documents were also before me on this application. 7. A suppression order (or non-publication order) can only be made in relation to information that comprises "evidence, or information about evidence" given in proceedings before the court. It seems to me that all of the documents, except for the Crown Case Statement, are "evidence" in that they were tendered in court at the committal proceedings. The difficulty is that, on one view, they were not evidence in this Court, save for on this application. I have had regard to the fact that Adamson J made similar suppression orders over documents in the Crown brief in both R v Yousif, Elomar & Elomar and R v Alqudsi. I am satisfied that I have the power to order the suppression of the relevant documents in the Crown brief and of the Crown Case Statements, if not under the Court Suppression Act then in the inherent jurisdiction of this Court. 8. That leaves the material highlighted in green in the Phelan affidavit. The parties were not provided with that material. It was not evidence relevant to the proceedings. Rather, it was an explanation as to why the orders were sought in the first place. I had regard to that material. It provided the basis for my satisfaction that the orders were appropriate. Mr Glover submitted that the unredacted version of the Phelan affidavit be returned to him and a redacted version provided instead for the court file. 9. I have given consideration as to whether it is appropriate for the version of the Phelan affidavit containing the confidential material to be returned and a redacted version supplied in its place. It is the usual practice in this Court that a copy of any material upon which the Court has been asked to make a ruling be retained on the court file. Retaining evidence and other material on the court file assists in maintaining the integrity of the file and ensures that, if there is later any controversy about any orders or rulings made, there is no disagreement as to the evidence that was before the court. Despite this, Mr Glover submitted there is a distinction between the ordinary run of cases and those which concern national security information. He relied upon the decision of Whealy J in R v Lodhi (2006) 163 A Crim R 508; [2006] NSWSC 596 and in particular what his Honour observed at [7]. I note that Whealy J did not specifically address the issue of the return of confidential material to the Commissioner in that decision. 10. I am satisfied that the Phelan affidavit contains information of an extremely sensitive nature. Sensitive material can be kept on a court file sealed in an envelope with a direction that the envelope is only to be opened by order of a judge of this Court. In the usual course of events, that is what would have occurred in this case. Despite this, I am satisfied that in the circumstances of this case it is appropriate that the material be returned. There are two reasons why I have reached this conclusion. 11. First, I am satisfied that there are some circumstances in which information with respect to national security need not be retained on the file so long as the integrity of the documentation is maintained, such that, should there be need for another court to view what was before this Court, that can occur. Second, as it turned out, this material was not adduced at the trial and is completely irrelevant to any of the issues at trial. Thus it is unlikely that there would ever be any need to revisit these orders. 12. In the circumstances of this case, I am satisfied that the Phelan affidavit should be returned to the Commissioner and a redacted version provided in its place. Such a course would prevent inadvertent disclosure or loss of the documents. This is not to be taken as a statement of general principle to the effect that documents containing national security information should be returned. Each case will turn on its own facts. ORders 1. I make the following orders: 1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) and s 47 of the Surveillance Devices Act 2004 (NSW), I order that there be no disclosure, by publication or otherwise of: 1. All images and documents exhibited to the statement of Nadine Hallak dated 7 January 2016; 2. The statement of Anton Sabella dated 11 January 2016, including all images and documents exhibited to that statement; 3. The statement of Federal Agent Robert Crane dated 14 January 2016, including all images and documents exhibited to that statement; 4. Images obtained pursuant to the warrant issued in respect of Hamdi Alqudsi under s 16 of the SD Act on 26 August 2016 by John Pascoe (and as extended on 20 November 2013 by Stephen Scarlett ("the Warrant"); 5. Any other images identified in the proceeding as being obtained from a surveillance device; 6. The evidentiary certificate issued under s 62(1) of the SD Act in respect of the Warrant, signed by Commander Glen McEwen on 9 January 2014, and the information contained therein; 7. The evidentiary certificate issued under s 62(1) of the SD Act in respect of the Warrant, signed by Commander Greg Harrigan on 20 May 2016, and the information contained therein; 8. The Crown Case Statement tendered by the Crown at the committal hearing of the defendant in February 2016; 9. The Crown Case Statement filed by the Crown in the Supreme Court on 8 February 2017; 10. The document entitled 'Chronology of Occurrences of Telecommunications and Surveillance Device Evidence' tendered by the Crown at the committal hearing of the defendant in February 2016; 11. The whereabouts of the surveillance device used to obtain the images referred to in orders (1)(a) – (e), at the time it was operational; 12. The methods and means by which the images referred to in orders (1)(a) – (e) were obtained; 13. Information highlighted in yellow in the affidavit of Deputy Commissioner Michael Phelan sworn in support of this motion; and 14. The written submissions filed by the Commissioner of the Australian Federal Police in support of this motion. 1. Order (1) does not prevent disclosure of annexure MP-1 to the affidavit of Deputy Commissioner Michael Phelan sworn in support of this motion. 2. Order (1) does not prevent disclosure of any information to and between the following people until the final determination of these proceedings and for the purposes of these proceedings: 1. The Court and court staff; 2. The jury empanelled in this proceeding: 3. The Commonwealth Director of Public Prosecutions and legal representatives of the Director instructed in this proceeding; 4. The defendant and legal representatives of the defendant instructed in this proceeding; 5. The Commissioner of the Australian Federal Police, Australian Federal Police officers, and legal representatives of the Commissioner; and 6. Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)). 1. The defendant and his legal representatives shall, at the conclusion of these proceedings, including any appeals, return to the Commissioner of the Australian Federal Police (through the Australian Government Solicitor) any documents in their custody or control which fall within orders (1)(a) – (n) above. 2. These orders apply throughout the Commonwealth of Australia and until further order. 3. Insofar as these orders are made pursuant to the Court Suppression Act, they made on the grounds referred to in s 8(1)(a), (b) and (e). 4. The affidavit of Michael Phelan sworn 28 March 2017 is to be returned to the Commissioner and a redacted version provided to the court within seven (7) days. ********** Amendments 19 May 2020 - Pursuant to "slip rule" subparagraph (d) included in Order 3 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: 19 May 2020