Supreme Court New South Wales Medium Neutral Citation: R v Khaja (No 1) [2017] NSWSC 1578 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Common Law Before: Fagan J Decision: Orders made at [33]. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1914 (Cth) Criminal Code (Cth) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Cases Cited: BUSB v R [2011] NSWCCA 39 R v Murphy [1990] NI 3I6 Category: Procedural and other rulings Parties: Regina (Crown) Tamim Khaja (accused) Representation: Counsel: Ms Trish McDonald/Mr William Fitzsimmons (Crown) Mr Gregory Scragg (accused) Ms Kristina Stern SC/Ms Sophie Callan (applicant) Solicitors: Mr Carmelo Ragusa, Commonwealth Director of Public Prosecutions (Crown) Mr Moustafa Kheir, Birchgrove Legal (accused) Mr Matthew Varley, Australian Government Solicitors Office (applicant) File Number(s): 2016/151874 Judgment 1. In connection with an impending criminal trial the Court has before it an application of the Commissioner of the Australian Federal Police and an application of the Commissioner of the New South Wales Police for orders to protect the identities of certain Crown witnesses. The proposed orders would include the taking of their evidence on audio visual link and in closed court. The charges on the indictment 1. The accused has been indicted on two counts of offences contrary to provisions of Pt 5.3 of the Criminal Code (Cth). The first count is that between 11 and 18 May 2016 he did acts in preparation for or planning of a terrorist act. In broad terms the Crown's allegation is that the accused undertook planning and/or preparation for a violent attack to be made upon either a Commonwealth Defence Forces facility in Western Sydney or on the Parramatta Court Complex, in which he would kill many people by gunfire or by detonating an explosive device or both. It is alleged all of this would be in furtherance of the ideological or religious cause of achieving Muslim domination of Australia. 2. The second charge is that between 20 January 2016 and 28 February 2016 the accused engaged in conduct preparatory to entering a foreign country with the intention of engaging in hostile conduct there. On this count the Crown's case is that the accused made preparations to travel to Syria to join the organisation known as Islamic State of Iraq and Sham ("ISIS" or "IS") and to engage in combat as part of that organisation. It is alleged that he was stopped at Sydney Airport. 3. On the first count the core of the Crown's evidence will be records of online conversations in which it is alleged the accused expressly described his plans, sought to procure weapons and sought assistance in equipping himself with an explosive suicide belt. There will be evidence of face-to-face meetings at which the subject of the accused carrying out a lethal attack was discussed. Confidential evidence supporting suppression of witness identity 1. The Commissioner of the Australian Federal Police seeks to protect the identities of three of the counterparties to these conversations and meetings, who will be called to prove them. Two of them communicated only in written electronic form with the accused and one of them had a face-to-face meeting. 2. The detail of the reasons for wishing to protect their identities have been made known to the Court in confidential affidavits of a Deputy Commissioner of the Australian Federal Police, Mr Michael Phelan, sworn on 6 April 2017 and 6 October 2017. 3. Parts of the affidavits have been made available to the accused but other parts have been received by the Court only, confidentially having regard to their content and the nature of the public interest immunity concerned in the application. I consider that the parts that have been received only confidentially have properly been restricted to that form of communication to the Court and I will act upon them without the accused having seen those aspects of the sworn material. 4. The detail in the confidential parts of the affidavits cannot be referred in these reasons without defeating the purpose of the orders sought. The affidavits satisfy me that if the three witnesses in respect of whom the Commissioner of the Australian Federal Police makes his application were required to give evidence in open Court where they could be seen and heard by members of the public, there would be a high risk that members of the public may recognise the witnesses either by appearance or by voice. Such recognition may not be immediate but may come as a result of a memory being retained of their appearance or voice as observed or heard in Court and that being matched to individuals at a subsequent time, either directly or by being passed on to other persons who may be able to make the identification. 5. The Crown evidence in the trial, if accepted, will show that the accused heard the voice of one of the witnesses in the course of the events charged over a sufficient duration to enable him to recall the voice. No purpose would be served by an order designed to prevent him from hearing the voice in the course of the evidence given and in any event that would be impractical. However, the accused had no exposure to meeting with the first two witnesses and had only two relatively brief encounters with the third. He would not, prior to the conduct of the trial, have had any opportunity to observe the first two witnesses or to make identification of them and it remains possible that he would not have seen enough of the third witness, whom he only encountered briefly on two separate days in May 2016, to be able to make an identification now or at any later time. The possibility of him not having had sufficient opportunity at the time of relevant events in May 2016 to be able to identify that third witness is a subject I will return to later in these reasons. 6. Orders are sought to prevent the accused having an opportunity to observe any of the three witnesses in the course of the trial. As with members of the public, this is for the purpose of preventing him from being able to make an identification or to provide information to others which might, with their assistance, permit identification. 7. I am satisfied there are powerful reasons for conducting the trial in a way which would prevent members of the public other than persons essentially involved in the conduct of the proceedings from being able to identify or make observations of the subject witnesses and there are similarly powerful reasons for preventing the accused from seeing any of them and from thereby obtaining visual identification information. The reasons are the risk to their personal safety if their identities should become known and the compromise of the ability of the police to investigate crimes of this nature through exposure of persons who have provided evidence in this case. Taking the witnesses' evidence by Audio Visual Link 1. The first element of the orders sought to achieve the objective of protecting the witnesses' identities is that their evidence should be taken by audio visual link. I have power to order that their evidence be taken in that manner, by force of s 15YV of the Crimes Act 1914 (Cth) if the application is made by the prosecutor. The application here is made by the Commissioner of the Australian Federal Police but Crown counsel has indicated that it is supported by the Crown. I consider that constitutes seeking of the order by the Crown for the purpose of the section. 2. Under s 15YV an order for audio visual taking of the evidence should not be made if it would have any adverse effect on the accused's right to a fair hearing. I do not see that it would have any such adverse effect. Pursuant to the orders that I propose to make on the application of both of the Commissioners of Police, all of the evidence of in total four persons who communicated with the accused and will give evidence of the communications, will be taken in the same manner. There will be a uniformity about it. 3. There does not in my view arise from the taking of the evidence in that way, any inference adverse to the accused. In case there should be any such inference, which I cannot at the moment foresee or anticipate, I would give a direction to the jury in strong terms that they should not draw any conclusion from this manner of taking evidence. I consider it would be correct and appropriate to tell them that it is a commonplace for evidence to be taken in that manner where persons cooperating with the police are giving evidence. I would consider the terms of any such direction in consultation with defence counsel with a view to making it as firm as possible and ensuring that no possible adverse inference could be drawn against the accused from the procedure adopted. 4. I consider that the making of an order for the taking of the evidence by audio visual link is essential because it is integral to achieving protection of the witnesses' identities, taken in conjunction with other orders that I will make. Namely, orders for the evidence to be taken in closed court and for the screens on which the evidence is conveyed into the courtroom by audio visual link to be restricted so that the accused does not have access to them whereas all other participants in the trial do. I propose that the orders be implemented in such a way that the jury will not be aware of this differentiation. 5. There is an alternative source of jurisdiction for ordering that the evidence of these witnesses be taken by Audio Visual Link. Namely, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Section 5(1A) of that Act makes it clear that its provisions do not exclude or limit the operation of other laws which cover the same field. Hence it appears that s 15YV of the Crimes Act 1914 (Cth) to which I have referred already, may operate in parallel with this State legislation. 6. Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act empowers the Court to direct that a person may give evidence by audio visual link from a place other than the court room. Subsection (2) of s 5B prohibits the court from making such an order if it is satisfied that the direction would be unfair to any party to the proceeding. I do not consider that it would be unfair, particularly in view of the direction that I propose will be given to the jury about the normality of such an arrangement and in view of the fact that there will be a uniformity of taking the evidence of all four witnesses who communicated with the accused in the same way. 7. There does not appear to be any impediment to defence counsel in mounting his client's case arising from the circumstance that he, but not his client, may see the witness. In argument it was not suggested to me that there would be any such difficulty. Counsel for the accused objected only to the taking of the evidence in this manner from one of the three witnesses with whom the application of the Commissioner of the Australian Federal Police is concerned, namely a witness who met the accused face to face. In connection with that witness it was not submitted that particular unfairness would arise other than some inference that the jury might draw from the circumstance that evidence is taken by Audio Visual Link rather than in person, which I have already dealt with. But it was put that there would be no utility in making the order because the accused has already seen this witness and could make identification of him anyway from experience of him and contact with him in the course of events from which the charges arise. 8. As to that, the evidence would show that the encounter between the accused and this witness was relatively brief, on two separate days. It is not apparent from the witness statements, without hearing witnesses tested, to what extent the accused may have looked at the face and appearance of this witness or taken in his features. It is not apparent whether the witness has any striking feature which might mean that he would be recognised again even after the two brief meetings. 9. In short, the question whether the accused may already be in a position to identify this person if seen again or to pass on a description of him to any other individual, is a matter of conjecture. It being so I do not consider that it would be appropriate to reject the Commissioner's application with respect to this witness on grounds of inutility, simply because it is possible that it will not serve a useful purpose. The argument for the accused would assume greater weight if there were significant risks of damage to the accused's case being done by any adverse impression the jury might receive from the procedure proposed. I have already said that I see no risk of that nature and I believe any possibility of it can be countered by appropriate directions to the jury. Closure of the Court during the witnesses' evidence 1. On the basis that the three witnesses will give their evidence by Audio Visual Link, the second element of the protections the Commissioner for the Australian Federal Police seeks to put in place is to have this done in closed court. That is, to prevent the general public seeing the witnesses on the screen and hearing their voices. The Court has power to close the hearing for all or part of the trial, pursuant to s 93.2 of the Criminal Code, "if satisfied that it is in the interests of security or the defence of the Commonwealth." 2. The first count on the indictment, at least, concerns a subject matter which has a direct bearing upon security of the Commonwealth. The allegations are of planning and preparation being undertaken to make an attack either upon a Commonwealth Defence Force establishment or upon a building and upon personnel of the Courts of New South Wales, which administer both the laws of the Commonwealth and of the States. The capacity to investigate such an alleged offence, to prosecute charges arising out of the investigation and to preserve the capability of the Commonwealth to investigate and prosecute other like offences in the future are, in my view, matters clearly within "the interests of security and defence of the Commonwealth". 3. It is inherent in activity of the kind that is alleged that it involves a risk to the security of the Commonwealth and its people and institutions that there may be repetition of such planning, preparation or execution of violent attacks by others who may have the same beliefs as those alleged to be held by the accused in this case. Namely, belief in the cause of Islamic domination of unbelievers in this country, to be achieved by violent means. I am satisfied from the affidavits of Deputy Commissioner Phelan to which I have referred that it is important to the interest of security of the Commonwealth, to protect itself against crimes of this nature, that secrecy of the identity of these three witnesses be maintained by closing the court to the public whilst their evidence is given by Audio Visual Link. Ancillary orders for non-publication 1. Other ancillary orders relating to non-publication of the proceedings, restriction of access to the transcript and the like are also justified for these reasons and may be made under s 93.2(2). 2. Taking into account those matters already referred to in these reasons I have today made certain orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The matters to which I have just referred, have led to me making orders which will suppress publication of material that might reveal certain police methods or identify one witness and in making those orders I have relied upon the grounds in s 8(1)(b) and (c) of the Act. 8(1) A court may make a suppression order or a non-publication order on one or more of the following grounds: … (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. 1. With respect to par (b), I have referred at length to the interests of security of the Commonwealth. There is a similar interest of security of the State. For the purposes of par (c), the safety of one of the three witnesses concerned is one of the grounds upon which I have made the non‑publication orders, by way of continuation of orders previously made by Johnson J on 7 April 2017. Consideration of the public interest in open justice 1. In determining to make orders for the taking of the evidence of the three witnesses in closed court I have taken into account the principles of open justice which must be given great weight. The objective of openness in court proceedings will be infringed only to a limited extent by the orders which are proposed. The Crown's evidence of the content of the alleged communications by the accused will be given openly. That evidence constitutes the essence of its case and it is the subject of electronic recording, both of written messages from the accused, replies received by him and further responses made. There are text messages and messages by other electronic media. 2. The public attending the proceedings, the media following them and taking an interest in how the case is supported by the Crown, will have full access to the substance of the communications which are at the heart of the case. Exclusion of the public from that part of the evidence in which the counterparties to these conversations confirm the making of the exchanges will not be a sweeping or a fundamental inroad into the openness of the trial. Alternative legal bases for closure of the court 1. Each of the three witnesses is the subject of an Identity Protection Certificate issued under s 15MJ of the Crimes Act. Consequently s 15MK empowers the Court to make any order it considers necessary or desirable to protect the identity of the person who is the subject of the certificate. That is one of the further basis upon which the Court is empowered to close the Court to the extent to which I have referred. There is also an inherent power as recognised by the Court of Criminal Appeal of this State in BUSB v R [2011] NSWCCA 39, particularly at [24] to [51]. In that case consideration was given to the question whether making of such an order may impair cross‑examination as something that must be taken to account. There is no such suggestion here and I do not see that there would be any impairment. Disposition of AVL in court 1. The third element of the protections which the Australian Federal Police Commissioner seeks is that when the evidence of these witnesses is given by Audio Visual Link in closed court the screens which display the image of the witness as evidence is taken should not be visible to the accused. There is power in the court to order such an arrangement as recognised in BUSB v R. The reasons that I have already given are sufficient to explain why I consider that such a restriction is appropriate and necessary here, in the interests of protecting the safety of these three witnesses and protecting their identity in the interests of preserving the authorities' capacity to conduct further investigations. 2. It is notable that with respect to the two face to face meetings with one of the witnesses, in relation to whom the defence has taken objection to evidence being given in this manner, that meeting was substantially sound recorded. There is some video recording of it and there are photographs. Consequently establishment of the fact that the meeting took place and what transpired in it will be before the jury in a compelling form. The role of the witness who was a participant, or counterparty, on that day and in relation to whom the objection is taken by the defence to the orders now sought is not of great forensic significance. 3. In that respect the case resembles the facts of R v Murphy [1990] NI 3I6. There, film of Irish Republican Army members murdering two British soldiers was tendered in evidence. There was a question about the relative importance of the witnesses who had taken the film and concerning the manner in which their evidence might be given. I consider this case has significant parallels in relation to the one witness whose manner of giving evidence is in issue on this application. The decision supports my view that it is not critical to the fairness of the proceeding that the accused should be able to see the man with whom he met on two occasions as that person gives evidence via AVL in closed court. Conclusion 1. For those reasons, on the application of the Commissioner of the Australian Federal Police I will make the orders set out in the short minutes which have been provided to the Court in connection with this application, which I will initial and place with the papers, subject to minor modifications and, in addition, orders 14 – 16 below: 1. Pursuant to s 93.2(2)(a) of the Criminal Code (Cth) and the Court's inherent powers, the Court shall be closed for the hearing of this motion. 2. Pursuant to s 93.2(2)(a) of the Criminal Code (Cth) and the Court's inherent powers, the Court shall be closed when the following witnesses give evidence: 2.1. Sidiq al-Hasan; 2.2. UCO 772241, and 2.3. OCE 595294 (collectively, the Protected Witnesses). 1. Only the following people are permitted to be present when the Court is closed pursuant to paragraphs 1 and 2 above: 3.1. the presiding Judge, 3.2. necessary Court staff (including transcription service providers); 3.3. the jury empanelled in the proceedings; 3.4. the Commonwealth Director of Public Prosecutions, her officers, and her legal representatives; 3.5. the Defendant; 3.6. the legal representatives of the Defendant instructed in this proceeding; 3.7. the Commissioner of the Australian Federal Police (the Commissioner), AFP members and appointees (within the meaning of the Australian Federal Police Act 1979 (Cth)), and the Commissioner's legal representatives; 3.8. the Commissioner of the New South Wales Police Force, officers and employees of the New South Wales Police Force, and the legal representatives; 3.9. officers and employees of the Federal Bureau of Investigation 3.10. Corrective Services officers 1. Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the Protected Witnesses are to give evidence via encrypted audio visual link from a remote location. 2. Pursuant to the Court's inherent powers, there be no disclosure of the remote location from which any of the Protected Witnesses are to give evidence in accordance with paragraph 4 above. 3. Pursuant to the Court's inherent powers, only persons referred to in paragraphs 3.1 to 3.4 and 3.6 to 3.10 shall be permitted to view the television monitors on which the Protected Witnesses will give evidence in accordance with paragraph 4 above. 4. Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), and on the grounds specified in s 8(1)(a), (b) and (c) of that Act, until further order there be no disclosure anywhere in the Commonwealth of any information which would reveal, or tend to reveal, the identity of any of the Protected Witnesses, including: 7.1. any image of any of the Protected Witnesses; 7.2. any description of the physical appearance of any of the Protected Witnesses; 7.3. any recording of the voice of any of the Protected Witnesses. 1. Pursuant to the Court's inherent powers and s 93.2(2)(b) of the Criminal Code (Cth) and s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the grounds specified in s 8(1)(a), (b) and (c): 8.1. The transcript of any hearing that occurs in closed court in respect of the witness identified at paragraph 2.1 above (the closed court transcript) shall, in the first instance, not be provided other than to the persons included in the list in paragraph 3 above; 8.2. Within 48 hours of receiving the closed court transcript (or such other period as permitted by the Court), the Commissioner shall: 8.2.1. if the Commissioner does not seek any redactions to the closed court transcript, advise the Court and the parties; 8.2.2. if the Commissioner seeks redactions of any sensitive information contained within the closed court transcript — produce to the Court and the parties a redacted copy of that transcript (the redacted closed court transcript) and this shall be treated as an application for a non-publication order (extending throughout the Commonwealth and until further order) as regards those passages in the transcript which are so redacted; 8.3. As regards: 8.3.1. any closed court transcript that falls within paragraph 8.2.1 above, 8.3.2. any redacted closed court transcript produced as set out in paragraph 8.2.2 above, and 8.3.3. any closed court transcript in respect of which the Commissioner does not take either of the steps described in paragraph 8.2 within the period allowed, that transcript may be made available to members of the public, but no closed court transcript shall otherwise be provided to any person other than the persons identified in paragraph 3 above until any application by the Commissioner as described in paragraph 8.2.2 has been determined by the Court; 8.4. The Court shall consider any application by the Commissioner as described in paragraph 8.2.2 in chambers, unless any person seeks to be heard in respect of the application, and the Commissioner and any person disputing a redaction shall be permitted to rely on evidence and submissions on the application. 1. Pursuant to s 93.2(2)(c) of the Criminal Code (Cth) and s 7(b) of the CourtSuppression and Non-publication Orders Act 2010 (NSW), and on the grounds specified in s 8(1)(a),(b) and (c) of that Act, until further order there be no disclosure of: 9.1. the yellow-highlighted information in the affidavit of Michael Phelan made on 6 October 2017 in these proceedings; other than to and between persons identified-in paragraphs 3.1 to 3.2 and 3.4 to 3.9 above for the purpose of these proceedings. 1. Pursuant to s 93.2(2)(c) of the Criminal Code (Cth) and s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW), and on the grounds specified in s 8(1)(a),(b) and (c) of that Act, disclosure of the green-highlighted information in the affidavit of Michael Phelan made on 6 October 2017 in these proceedings, be limited to the Judge who is to determine the Commissioner's notice of motion filed on 6 October 2017. 2. The persons referred to in paragraph 3 shall return all copies of the document referred to in paragraph 9.1 to the Commissioner (through his legal representatives) within 14 days of the determination of this motion (including any appeals). 3. Liberty to apply to have these orders varied. 4. The confidential affidavits of Deputy Commissioner Michael Phelan be returned. 5. The transcript of the proceedings on this application which has been taken during the period in which the Court has been closed, is suppressed pursuant to the Court Suppression and Non‑publication Orders Act 2010 (NSW) and that transcript is to be in one copy only, placed in an envelope on the Court file and marked not to be opened without the order of a Judge. 6. [Order for non-publication, subsequently discharged on 23 November 2017]. 7. The ground for making orders 14 and 15 is s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). 8. Order 7.3 does not restrict the Crown, its legal representatives and any police officers assisting them from playing or listening to a recording of the voice of any of the three protected persons for the purposes of preparing evidence to be tendered in the trial. ********** 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: 07 December 2017