Supreme Court New South Wales Medium Neutral Citation: R v Khaja (No 2) [2017] NSWSC 1853 Hearing dates: 13 October 2017 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: Orders made at [9]. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Law Enforcement and National Security Assumed Identities Act 2010 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Tamim Khaja (accused) New South Wales Commissioner of Police (applicant) Representation: Counsel: Ms Trish McDonald/Mr William Fitzsimmons (Crown) Mr Gregory Scragg (accused) Mr Robin Bhalla (applicant) Solicitors: Mr Carmelo Ragusa, Commonwealth Director of Public Prosecutions (Crown) Mr Moustafa Kheir, Birchgrove Legal (accused) Crown Solicitors Office (applicant) File Number(s): 2016/151874 Judgment 1. These reasons should be read together with the judgment of the Court of today's date, in these proceedings, R v Khaja (No 1) [2017] NSWSC 1578 in which I have given reasons for making certain orders on the application of the Commissioner of the Australian Federal Police ("AFP") designed to protect and maintain confidential the identity of three witnesses whom the Crown intends to call in the trial of Tamim Khaja listed to commence on 30 October 2017. 2. The New South Wales Commissioner of Police has applied by notice of motion filed 6 October 2017 for similar orders to protect the identity of a fourth witness who is an officer of the New South Wales Police who works in an undercover capacity. This application is supported by an open affidavit of Acting Assistant Commissioner Gregory Rolph sworn 6 October 2017. That affidavit has annexed to it the statement of the witness according to which his evidence-in-chief is intended to be led by the Crown in the trial. That affidavit and its annexures have been provided to the defence. The application is also supported by a confidential affidavit of the same witness also sworn 6 October 2017, and a further confidential affidavit of a senior officer of another government agency. 3. I have had regard to all of that material which satisfies me that for the same reasons as those which I gave in relation to the three witnesses who are the subject of the AFP Commissioner's application, orders should be made to protect and maintain confidentiality for the identity of this witness. That is in the interests of protecting his personal safety and also in the interests of not harming, incapacitating or impeding the investigatory work of the New South Wales Police and other law enforcement agencies. 4. The relevant witness had two meetings face-to-face with the accused, according to the Crown case. One of those meetings involved sitting on a park bench and sitting in a car. It lasted over an hour and a half. The second meeting two days later lasted no more than an hour. 5. The accused opposes the orders sought which are for the taking of the evidence of this witness in closed court and by audio visual link and without the accused having the opportunity to see his face. 6. Again, as with one of the witnesses the subject of the AFP Commissioner's application, the defence objection is based solely on utility. It is asserted that from meetings of the length that I have described, face-to-face, the accused will already have had the opportunity to observe this witness in circumstances which would enable him to retain a memory of his features and to be able to identify him by description to other persons or by sighting him on another occasion. 7. As with the third of the witnesses to which the AFP Commissioner's application relates, I cannot judge this question of utility from the present standpoint, without hearing witnesses cross-examined and tested. I do not consider that potential inutility of the order, where the Court cannot be certain that making it would be futile, is a substantial reason for refraining from exercising the Court's power. That is in circumstances where the counter considerations (the significant risk to the witness and the significant potential detriment to the investigative capabilities of the authorities) is quite grave. 8. Balancing that grave risk against possible but at the moment speculative inutility it appears to me the orders ought be made. There is jurisdiction to make them on grounds which I have already referred to in R v Khaja (No 1). There is additional power to make all of the orders sought under s 34 of the Law Enforcement and National Security Assumed Identities Act 2010 (NSW). 9. The witness performs some of his duties for investigative agencies under an assumed name. It would be preferable to achieve the objects sought by the New South Wales Commissioner of Police that he be known throughout this trial by a pseudonym, that is neither the assumed name nor his real name. Accordingly I make these orders: 1. The witness, the subject of the application by the Commissioner of the New South Wales Police filed 6 October 2017, is permitted to appear before the Court at the trial of the accused and to give evidence under the pseudonym AB. 2. The witness is to be referred to by way of his pseudonym during the course of the trial, during the course of any further interlocutory proceedings and for all ancillary purposes. 3. There is to be no disclosure of the real identity or of the assumed identity of the witness or of any document or evidence that identifies or might facilitate the identification of the real or any other assumed identity of that witness except as necessary for the proper conduct of the trial. 4. There is to be no publication of the real or any other assumed identity or the real or any other assumed name of the witness or of any document or evidence that identifies or might facilitate the identification of the real or assumed identity of the witness except as necessary for the proper conduct of the trial. 5. Without limiting the generality of orders (3) and (4) there is to be no disclosure of any visual or other description or depiction of the physical appearance or any other identifying feature of the witness except as necessary for the proper conduct of the trial. 6. The Court is to be closed for the duration of the evidence given by the witness in the trial subject to the following persons being permitted to be present in Court while he gives evidence; 1. the accused; 2. legal representatives of the accused; 3. the prosecution lawyers; 4. the jury 5. officers of the New South Wales Police Force involved in investigating the offences before the Court or attached to the New South Wales Police Force undercover program so long as they are not required to give evidence after the witness; 6. legal representatives of the Commissioner of Police; 7. officers of the Australian Federal Police involved in investigating the offences before the Court so long as they are not required to give evidence after the witness; 8. legal representatives of the Commissioner of the AFP; 9. staff of the Department of Corrective Services; 10. officers and employees of the Federal Bureau of Investigations; 11. the presiding judge, Court staff and anyone else permitted by the Court. 1. The witness is to give evidence via encrypted audio visual link from a remote location. 2. There is to be no disclosure of the remote location from which the witness is to give evidence in accordance with paragraph (7). 3. Only the persons referred to in orders 6(b) to (k) shall be permitted to view the television monitors on which the witness will give the evidence in accordance with paragraph (7). 4. The transcript of the proceedings that have taken place in closed court in hearing the notices of motion filed by the Commissioner of the Australian Federal Police and the New South Wales Commissioner of Police is suppressed pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) and that transcript is to be placed on the Court file in an envelope to be marked "Not to be opened without order of a Judge". This order is made on the ground that it is necessary to prevent prejudice to the interests of the Commonwealth and the State of New South Wales in relation to national security. 5. It is ordered pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) that publication is prohibited of the terms of paragraph (9) of these orders on the ground that this is necessary to the administration of justice. [This order was discharged on 30 April 2018]. ********** 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: 30 April 2018