Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Elomar (No 3) [2018] NSWSC 1158 Hearing dates: 06 July 2018 Date of orders: 06 July 2018 Decision date: 27 July 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) The Judgment (No 2), in its present form in this matter, is to be removed from Caselaw and, as and when a redacted version is provided, the redacted version will be published to Caselaw until further order of the Court. (2) The parties are to provide a redacted version of Judgment (No 2) in this matter to be published on Caselaw. Catchwords: SUPPRESSION ORDER – principle of open justice – reference in judgment to matters obtained from confidential exhibit – matters of national or international terrorism intelligence – original judgment redacted on application of Attorney General - Legislation Cited: Court Suppression and Non‑publication Orders Act 2010, s 8(1)(b) Cases Cited: State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Ahmad Elomar (Defendant) Attorney General of New South Wales (Applicant on Motion) Representation: Counsel: B Hughes SC / T Phillips / C Palmer (Plaintiff) G James QC (Defendant) P Singleton (Applicant on Motion) Solicitors: Crown Solicitor's Office (Plaintiff) Lawyers Corp (Defendant) Crown Solicitor's Office (Applicant on Motion) File Number(s): 2018/121186 Publication restriction: NON PUBLICATION ORDER on name and any information that would identify deponent. NON PUBLICATION ORDER in relation to Mr CHEIKA & Mr BALADAJAM vacated. EX TEMPORE Judgment 1. HIS HONOUR: In this matter, the State of New South Wales tendered an exhibit, which was marked as confidential on the basis of the provisions of the Court Suppression and Non-publication Orders Act 2010 associated with national or international security. Material in the judgment that was delivered yesterday (State of New South Wales v Elomar (No 2) [2018] NSWSC 1034) quotes from that material. 2. At the hearing yesterday the issue was raised and a suppression order was made in unusual terms, in that it required any report of the judgment to refer to the fact that at this stage the factual matters were only allegations of fact and not proved to the usual standard; and, secondly, would not refer to any item directly derived from what has been expressed as "intelligence sources". 3. The parties, at least initially, seemed to operate on the basis that as the judgment was already published on Caselaw, to use the words of senior counsel, the "horse had bolted". The Court did seek to disabuse that view in the sense that the parties were advised the judgment could be taken down, but no-one seemed to take that suggestion any further than the Court's statement of what was possible. 4. The Court understands the application by the Attorney General in this and other matters. Many issues associated with National Security at least, and probably international security, relating to terrorism offences come before the Court. 5. The Court is satisfied from what it knows of the material and of the source of the material, that an order under s 8(1)(b) of the Court Suppression and Non‑publication Orders Act is necessary to prevent prejudice to the interests of New South Wales and indeed the Commonwealth in relation to National or International Security. 6. As a consequence the Court makes the following orders: 1. The Judgment (No 2), in its present form in this matter, is to be removed from Caselaw and, as and when a redacted version is provided, the redacted version will be published to Caselaw until further order of the Court. 2. The parties are to provide a redacted version of Judgment (No 2) in this matter to be published on Caselaw. 1. The Court thanks the Attorney General for raising the matter appropriately and having consulted with the other parties. While consent is an issue in this area of the public interest in open justice, it is important that consent not override that public interest. The Court takes into account that public interest in making the orders above. 2. The Court envisages that these suppression orders will be effective, at least until such time as final findings of facts can be made and possibly beyond that time. At this stage it is only necessary in relation to that length of time. ********** 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: 27 July 2018