Supreme Court New South Wales Medium Neutral Citation: R v Azari (No 8) [2018] NSWSC 1674 Hearing dates: 9 October 2018 Date of orders: 11 October 2018 Decision date: 02 November 2018 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: See paragraph [26] Catchwords: CRIMINAL LAW – Terrorism trial – Application for suppression, pseudonym and closed-court orders relating to a particular witness – Whether orders necessary to prevent prejudice to the proper administration of justice and to the interests of the Commonwealth in relation to national or international security – Whether orders necessary to protect the safety of a witness – Application granted Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 3, 6, 7, 8 Crimes (Administration of Sentences) Act 1999 (NSW), s 77 Criminal Code Act, Sch, s 101.6 Cases Cited: Commissioner of Police v Nationwide News (2007) 70 NSWLR 643; [2007] NSWCA 366 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101 Category: Procedural and other rulings Parties: Regina (Crown) Omarjan Azari (Accused) Commissioner of Australian Federal Police (Applicant) Representation: Counsel: Mr L Crowley with Mr B Power (Crown) Mr B Hughes SC with Ms M Curry (Accused) P Melican (Applicant) R Wilson (Witness) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Specialists (Accused) Australian Government Solicitor (Applicant) File Number(s): 2014/274649 Publication restriction: Nil Judgment 1. On 11 October 2018, I made certain orders under s 7(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Court Suppression Act"). I indicated at that time that I would provide my reasons for doing so at a later date. These are those reasons. 2. The accused, Omarjan Azari, has pleaded not guilty to one count of doing an act in preparation of, or planning, a terrorist act contrary to s 101.6(1) of the Schedule to the Criminal Code Act 1995 (Cth). His trial was due to start on Tuesday, 9 October 2018 but because of this application and other pre-trial matters it was not able to commence until 11 October 2018. 3. Since this trial was first listed before me in April 2017, I have made a number of suppression orders under s 7(b) of the Court Suppression Act. Some of those orders have pertained to the identity of one of the witnesses to be called in the Crown case. 4. On the morning of 9 October 2018, Mr Melican of counsel appeared before me instructed by the Australian Government Solicitor ("AGS") on behalf of the Commissioner of the Australian Federal Police ("the Commissioner") and sought to consolidate and add to the suppression orders made in relation to the identified Crown witness. Mr Melican also foreshadowed that Richard Wilson of counsel, who had appeared for the witness in his sentencing proceedings, would seek leave to be heard on the question of whether the witness should give evidence in a closed court and whether a pseudonym order should be made for the purpose of his evidence. 5. In circumstances where the jury panel would need to be informed of the witness's true identity and that the jury would need to be informed of his pseudonym, and also given the large number of documents in the Crown case including the true identity of the witness, the jury panel was sent away and the matter stood down to 2:00 pm to deal with the application in closed court when Mr Wilson was available to attend. An order under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) for the witness to attend via audio-visual link was made. 6. In closed court proceedings at 2:00 pm that day, the Commissioner again relied upon the material that was before me when I made previous orders in relation to the Crown witness on 19 October 2017. This material was comprised of the confidential affidavit of Ian McCartney sworn on 18 October 2017 and confidential written submissions. A proposed consolidated short minutes of order document was provided. 7. For obvious reasons I do not propose to refer to the contents of the confidential affidavit or submissions in this judgment. 8. Mr Wilson, who appeared for the witness, supported the application for consolidated suppression orders sought on behalf of the Commissioner and in addition, sought orders that the witness's true identity be suppressed and that he be referred to by a pseudonym. It was also submitted that his evidence be given in closed court. Mr Wilson's written submissions, annexing the suppressed sentencing remarks in relation to the witness, were emailed to my chambers that morning and were before me on this application. 9. Mr Melican submitted that the Commissioner supported the making of the further orders sought by Mr Wilson on behalf of the witness. 10. In his submissions Mr Wilson set out the witness' assistance to authorities. The witness had been sentenced for a terrorism-related offence already and his entire sentencing proceedings were the subject of suppression orders on the basis of national security reasons and the need to protect his and his family's safety. 11. Mr Wilson made detailed submissions outlining a number of matters pertinent to the application and in particular provided details of the matters referred to above at [10]. Those submissions were made in closed court. I do not consider it necessary to summarise them for the purposes of these reasons. In any event, to do so would be in breach of order 3, which I made on 11 October 2018. 12. At the hearing of the application, the orders were not opposed by the Crown and were neither consented to nor opposed by senior counsel for the accused. I indicated that before I formally made the orders I would need to read all the documentation provided to me and reserved my decision until court resumed on 11 October 2018. Consideration 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 Court Suppression 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. Each of the grounds set out in s 8 of the Court Suppression Act imports a test of "necessity". The Court of Criminal Appeal (Bathurst CJ, Basten and Whealy JJA) considered the question of what is meant by a test of necessity in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. Bathurst CJ agreed with Basten JA regarding the meaning of the word "necessary" who observed at [46]: "The meaning of "necessary" depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word "necessary" is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be "to prevent prejudice to the proper administration of justice". That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered "necessary" in particular circumstances." 1. His Honour went on to observe at [48]: "The broader concept of the administration of justice, including consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence, accords with the approach taken in this Court: see John Fairfax Group Pty Ltd (Receivers and managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161 D-E (Mahoney JA, Hope AJA agreeing), approved in John Fairfax Publications Pty Ltd v District Court at [47] (Spigelman CJ, Handley JA and MW Campbell AJA agreeing) and in R v Kwok [2005] NSWCCA 245; 64 NSWLR 335 at [13] (Hodgson JA), [34] (Howie J) and [38]-[40] (Rothman J); see also Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27; 226 CLR 256 at [12]. Each of these cases was dealing with the implied power of courts, operating prior to the commencement of the Suppression Orders Act, and each involved orders which impinged on the operation of the open justice principle. Accepting that broad view, at least in some circumstances, the factors referred to in paragraphs (c) and (d) of s 8(1) may overlap with (a), because orders falling within those paragraphs might also be necessary to prevent prejudice to the proper administration of justice." 1. As Basten JA observed, in addition to the powers available under the Court Suppression Act, orders protecting the identity of witnesses can be made in the Court's inherent jurisdiction. It is well established that the Court has inherent jurisdiction to make appropriate orders whenever it is necessary to do so to secure the proper administration of justice: Commissioner of Police v Nationwide News (2007) 70 NSWLR 643 at 648; [2007] NSWCA 366 at [32]. 2. In R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101, McClellan CJ at CL (with whom Spigelman CJ and Sully J agreed) referred (at 583-584 [24]) to the observations made by Spigelman CJ in John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 (at 352 [17]-[23]) and then went on to observe at (at 584 [25]): "Spigelman CJ was, of course, speaking of the principles developed by the common law. Those principles must of necessity give way or accept modification to ensure that the proceedings are conducted in a manner which serves the overall interests of society. In John Fairfax Group v Local Court of New South Wales Kirby P said (at 141): 'If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.'" 1. His Honour went on to observe (at 586 [33]): "It was further submitted that by providing for the Court to be closed Whealy J had made orders beyond those necessary to meet the identified need for the protection of national security. It was argued that non-publication orders would be sufficient to achieve this result. I do not accept this submission. If the Court was to remain open it would be possible for any person, including perhaps the very people who the Commonwealth would not want to have access to the information, to obtain and misuse it. A non-publication order would hardly be likely to be effective…" 1. I had regard to all of these principles when I made the orders suppressing the identity of the witness and ordering that the court be closed for his evidence. I was satisfied that it was necessary to make the relevant orders 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 and international security. 2. At the time that I made the orders sought, I had regard to the importance of safeguarding the public interest in open justice. An order that evidence be given in closed court is not one to be made lightly. Despite this, the circumstances of this case, the material put before me by the witness' counsel and the material previously provided to me in the confidential affidavit satisfy me that this is one such case. 3. A pseudonym was agreed upon. The witness will be known throughout the proceedings as Ahmed Hussain. Given that the trial was about to commence, it was considered impractical to change every single document to be tendered in the trial which contains the true identity of Mr Hussain. In those circumstances, as the orders attached to these reasons reflect, his true identity will remain in those documents and suppression orders were made in relation to those exhibits as well. ORDERS 1. In accordance with the above, I make the following orders: 1. Vacate the orders made on 19 October 2017, 1 March 2018 and 4 October 2018. Pseudonym order 1A. Any references to [redacted] in court, except in any document tendered, shall be by the pseudonym "Ahmed Hussain", with the following exceptions: 1A.1 in the course of any necessary direction or explanation by the judge to the jury about the use of the pseudonym; and 1A.2 by the Crown Prosecutor to the jury panel as part of a list of persons from whom, or about whom, the jury might hear. Closed court order 1B. The witness known as Ahmed Hussain shall give his evidence in the trial, including in any voir dire, in a closed court. 1C. Only the persons specified in order 7 are permitted to be present when the court is closed pursuant to order 1B. Transcript orders 1D. The official transcript of the evidence in the trial shall refer to the witness known as Ahmed Hussain using that pseudonym. 1E. The transcript of any hearing conducted in closed court in accordance with order 1B (the closed court transcript) shall not be disclosed (by publication or otherwise) otherwise than in accordance with orders 1F to 1J below. 1F. The closed court transcript shall be provided to the Crown, the Accused, the witness known as Ahmed Hussain, and the Commissioner of the Australian Federal Police (the Commissioner) (on behalf of the NSW Joint Counter Terrorism Team) through their respective legal representatives. 1G. The Commissioner shall cause to be prepared a version of the closed court transcript from which information the subject of orders 2 and 3 is redacted (the redacted transcript). 1H. The Commissioner shall cause the redacted transcript to be provided to the Associate to Justice N Adams and the legal representatives of the Crown, the Accused and the witness known as Ahmed Hussain within 2 business days of the day on which the Commissioner received the transcript pursuant to order 1F (or such other period as permitted by the Court). 1I. Any dispute regarding the redactions made to the redacted transcript shall be determined by Justice N Adams upon hearing from the legal representatives of the Commissioner and any other person with a sufficient interest in the matter. 1J. These orders do not prevent the disclosure or publication of any information appearing in the redacted transcript. Suppression orders 2. Subject to these orders, there be no disclosure, by publication or otherwise, of any information that reveals, or tends to reveal, the identity of the witness known as Ahmed Hussain in connection with these proceedings, including: 2.1. the name or address of the witness known as Ahmed Hussain; and 2.2. any image or description of the appearance of the witness known as Ahmed Hussain. 3. Subject to these orders, there be no disclosure, by publication or otherwise, of any evidence given in these proceedings, any document produced in these proceedings, or any information disclosed to the Accused for the purposes of these proceedings, regarding the fact or nature of any assistance that the witness known as Ahmed Hussain has provided, or may in future provide, to authorities. Note: The court notes that any questions by a representative of a media organisation as to whether information falls within orders 2 and/or 3 may, in the first instance, be directed to the Australian Government Solicitor, as the legal representatives of the Commissioner of the Australian Federal Police. 3A. To avoid any doubt, except if appropriately edited or redacted, no document tendered in court containing information subject to orders 2 or 3 is to be made available to any person to whom these suppression orders would prevent disclosure or publication. 4. Subject to these orders, there be no disclosure, by publication or otherwise, of the following documents that have been disclosed to the Accused in these proceedings: 4.1. Statement of witness known as Ahmed Hussain dated 13 January 2016. 4.2. Transcript of record of interview with the witness known as Ahmed Hussain dated 18 February 2016. 4.3. Transcript of record of interview with the witness known as Ahmed Hussain dated 25 February 2016. 4.4. Transcript of record of interview with the witness known as Ahmed Hussain dated 26 February 2016. 4.5. Transcript of record of interview with the witness known as Ahmed Hussain dated 3 March 2016. 4.6. Transcript of record of interview with the witness known as Ahmed Hussain dated 4 March 2016. 4.7. Transcript of record of interview with the witness known as Ahmed Hussain dated 10 May 2016. 4.8. Transcript of record of interview with the witness known as Ahmed Hussain dated 11 May 2016. 4.9. Transcript of record of interview with the witness known as Ahmed Hussain dated 12 May 2016 (am). 4.10. Transcript of record of interview with the witness known as Ahmed Hussain dated 12 May 2016 (pm). 4.11. Transcript of record of interview with the witness known as Ahmed Hussain dated 13 May 2016 (am). 4.12. Transcript of record of interview with the witness known as Ahmed Hussain dated 13 May 2016 (pm). 4.13. Transcript of record of interview with the witness known as Ahmed Hussain dated 6 June 2016. 4.14. Transcript of record of interview with the witness known as Ahmed Hussain dated 16 June 2016. 4.15. Transcript of record of interview with the witness known as Ahmed Hussain dated 24 June 2016. 4.16. Transcript of record of interview with the witness known as Ahmed Hussain dated 30 June 2016. 4.17. Statement of the witness known as Ahmed Hussain in the matter of R v Kruezi dated 25 January 2018 and 17 February 2018. 4.18. Statement of the witness known as Ahmed Hussain dated 23 February 2018. 4.19. Letter from Scott Bruckard PSM of the Office of the Commonwealth Director of Public Prosecutions to Peter Katsoolis dated 6 April 2018. 4.20. Affidavit sworn by Rodney Spencer on 9 April 2018 for proceedings [redacted]. 4.21. Affidavit affirmed by Suzanne Louise Mayhew on 10 April 2018 for proceedings [redacted]. 4.22. Affidavit sworn by Rodney Spencer on 11 April 2018 for proceedings [redacted]. 4.23. Undertaking to co-operate given by the witness known as Ahmed Hussain on 12 April 2018. 4.24. Transcript of testimony of Rodney Spencer on 12 April 2018 in proceedings [redacted]. 4.25. Transcript of testimony of the witness known as Ahmed Hussain on 12 April 2018 in proceedings [redacted]. 4.26. Transcript of testimony of the witness known as Ahmed Hussain on 10 May 2018 in proceedings [redacted]. 4.27. Transcript of testimony of the wife of the witness known as Ahmed Hussain on 10 May 2018 in proceedings [redacted]. 4.28. Remarks on sentence delivered by Justice Latham and dated 31 May 2018 in proceedings [redacted]. 4.29. MFI 1 in District Court proceedings [redacted] being Crown submissions on sentence. 4.30. MFI 2 in District Court proceedings [redacted], being Offender's outline of submissions on sentence. 4.31. Transcript of hearing on [redacted] in District Court proceedings [redacted]. 5. [not used] Exceptions to suppression orders 6. Orders 2 and 3 do not prevent disclosure of these orders: 6.1. to persons who have received the information referred to in orders 2, 3 or 4; 6.2. to persons who are entitled, in accordance with these orders, to receive the information referred to in orders 2, 3 or 4; or 6.3. in the circumstances described in order 11. Note: The Court notes that order 6 reflects the extent to which these orders may be disclosed in their terms. The Court further notes that the Commissioner of the Australian Federal Police will cause a version of these orders to be prepared from which information which would reveal the identity of the witness known as Ahmed Hussain is redacted throughout, and that the redacted order may be published. Note: The Court notes that should it be necessary for disclosure of these orders to be made to a journalist or media organisation, leave is granted to approach the Court to vary these orders. 7. These orders do not prevent disclosures to and between the following people: 7.1. Judges of this Court; 7.2. necessary Court staff (including transcription service providers); 7.3. the jury empanelled in these proceedings; 7.4. the Commonwealth Director of Public Prosecutions and legal representatives of the Commonwealth Director of Public Prosecutions instructed in these proceedings; 7.5. the Accused and legal representatives of the Accused instructed in these proceedings; 7.6. officers and employees of agencies that are members of the New South Wales Joint Counter Terrorism Team, and legal representatives of those agencies; 7.7. necessary staff of New South Wales Corrective Services; 7.8. the witness known as Ahmed Hussain and his legal representatives; and 7.9. judicial officers and necessary staff of any court hearing an appeal or review of any decision, verdict or sentence delivered in the course of these proceedings. 8. [not used] 9. These orders do not prevent: 9.1. the Crown from disclosing information subject to orders 1E and 2 to 4 for the purposes of other criminal proceedings brought by the Crown (Other Proceedings); and 9.2. the parties to the Other Proceedings in which such disclosure occurs from thereafter using or disclosing information subject to orders 1E and 2 to 4 for the purposes of the Other Proceedings. Note: The Court notes that the use and disclosure of information subject to these orders in the Other Proceedings shall be regulated by the Court hearing those proceedings, and that the Crown or the Commissioner of the Australian Federal Police may bring applications for suppression or non-publication orders in the Other Proceedings. 10. These orders do not prevent: 10.1. the issuing or service of any subpoena which includes the true name of the witness known as Ahmed Hussain; or 10.2. the recipient of such a subpoena, and persons on their behalf, from complying, and taking reasonable steps to comply, with the subpoena. 11. Any party on whose request a subpoena referred to in order 10 has been issued shall provide the recipient of the subpoena with a copy of these orders, with the exclusion of orders 3 and 4, at the same time as the subpoena is served on the recipient. For the avoidance of doubt, orders 3 and 4 must be redacted or removed from the copy of the orders provided to the recipient of the subpoena. 12. Any party on whose request a subpoena referred to in order 10 has been issued shall give the Commissioner of the Australian Federal Police notice that the subpoena has been so issued and such notice: 12.1. shall be via email addressed to tristan.lockwood@ags.gov.au; and 12.2. shall be given no later than at the time the subpoena is served on the recipient. 13. All documents produced pursuant to a subpoena referred to in order 10 shall be held by the Registry as confidential documents and access to them will be restricted to the parties and the Commissioner of the Australian Federal Police. Incidental orders 14. Access to the confidential affidavit of Assistant Commissioner Ian McCartney sworn on 18 October 2017 and the confidential written submissions relied upon by the Commissioner of the Australian Federal Police dated 19 October 2017 shall be limited to the Court, the parties and the legal representatives of the parties. 15. Any copies of the documents referred to in order 14 that are provided to the Court, the parties and the legal representatives of the parties shall be returned to the legal representatives of the Commissioner of the Australian Federal Police forthwith. 15A. Access to any material or submissions filed on behalf of the witness known as Ahmed Hussain in his application, or to any transcript of the proceedings relating to his application, shall be limited to the Court, the parties, the legal representatives of the parties, the Commissioner of the Australian Federal Police, AFP members and employees with duties and responsibilities relating to these proceedings, the legal representatives of the Commissioner, and, upon further application, the legal representatives of the witness known as Ahmed Hussain. 16. These orders apply throughout the Commonwealth of Australia and until further order. 17. To the extent that these orders are made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), these orders are made on the grounds identified in s 8(1)(a), (b) and (c) of that Act. 18. Liberty to apply to vary these orders at short notice. ********** 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: 05 November 2018