R v Musleh

By notice of motion filed in court on 20 June 2018 the Commissioner of the Australian Federal Police (the Commissioner) seeks orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act). Other orders are sought which include an order that the court be closed for particular aspects of the evidence, opening and submissions. The application is supported by a confidential affidavit sworn on 1 June 2018 by Leanne Close who is a Deputy Commissioner of the Australian Federal Police (AFP). In April 2018 Ms Close was appointed to the position of Deputy Commissioner National Security.

I was provided with a copy of Ms Close's affidavit, the notice of motion and written submissions made on behalf of the Commissioner in advance of the hearing of the notice of motion. In order to protect the name of the informant from disclosure, I propose, at the conclusion of the delivery of these reasons, to return copies of those documents to Mr Melican, who appears on behalf of the Commissioner, for safe-keeping by the Australian Government Solicitor. I note that Mr Scragg, who appears on behalf of the accused Muhammed Musleh, has indicated that his client does not oppose the orders sought in the notice of motion. The Crown has also indicated that it does not oppose the orders sought in the notice of motion.

What is proposed in substance is that a pseudonym order be made in respect of one person who has assisted the AFP in various ways. If the identity of the person was widely known, the person and the person’s family could be at substantial risk. The protection of persons who have provided information to investigating and prosecuting authorities is fundamental, not only for particular cases, but for the investigation of crime and the administration of justice generally.

What is sought to be protected is “Sensitive Information”, which is defined to mean information, including in a documentary form, connected to these proceedings which reveals or tends to reveal the identity of the informant in connection with these proceedings, including the informant’s name and address and any image or description of the informant’s appearance; or information regarding the fact or nature of any assistance the informant has provided or may in future provide to the authorities.

I am satisfied, on the basis of Ms Close’s affidavit, that disclosure of the Sensitive Information would prejudice counter-terrorism investigations and prosecutions and thereby prejudice Australia’s national security, international security and the proper administration of justice. I am also satisfied that such disclosure would place the informant and the informant’s family at risk of being harmed or even killed. I am satisfied, on the basis of Ms Close’s affidavit and having read the submissions of Mr Glover on behalf of the Commissioner, that it is necessary to make these orders under each s 8(1)(a), (b) and (c) of the Act. In other words I am satisfied that the orders are necessary to prevent prejudice to the proper administration of justice, to prevent prejudice to the interests of the Commonwealth in relation to national and international security and to protect the safety of a person or persons, being the informant and the informant’s family.

I note that the Commissioner does not seek to prevent disclosure of the Sensitive Information as between the parties and the Court. Thus the principles of natural justice will be preserved in that the accused and his representatives will have access to this information for the purposes of the defence of the accused at his trial.

In order to protect the identity of the informant, it is also necessary to make suppression orders in respect of the affidavit of Ms Close and the written submissions relied on by the Commissioner in support of the application.

It is also necessary that the accessible copy of these orders on the court file be redacted to delete the name of that person and to ensure that only a pseudonym appears on those orders. In order to preserve and protect the record of the court, I will ensure that the un-redacted orders are placed in a sealed envelope which cannot be opened except by my order, or the order of another judge of this Court if I were to be unavailable.

In deciding the period for which the orders for suppression are to operate I am obliged to ensure that any suppression order or other non-publication order operates for a period that is no longer than is reasonably necessary to achieve the purpose for which it is made: s 12(2) of the Act. I am satisfied, on the basis of the material in Ms Close's affidavit, that it is not presently feasible to predict how long the orders need to be in place. It is thus necessary to specify that the orders are to operate until further order.

As referred to above, the Commissioner also seeks an order that the court be closed for the taking of the evidence of the informant and at any time when there is any reference to the Sensitive Information. The purpose of such an order is to protect the informant from being identified by a member of the public who might be included to take action against the informant or the informant’s family. The closing of a court is a rare event, except in cases where minors are involved in certain capacities, either as accused or as complainants.

In the present case, the very danger which has been identified by Ms Close in her affidavit would be posed by allowing the evidence of the informant to be given in open court. Any member of the public would, in that event, be free to enter the court, observe the appearance of the informant (and possibly recognise the informant). Thus the danger to the informant would be increased substantially by the evidence being taken in open court or by disclosure of the Sensitive Information in open court. If anything were to happen to the informant as a consequence of being recognised in that environment, there would be serious consequences for any further investigations. Other potential informants would be in fear of their lives and would be deterred from coming forward to assist investigating authorities in future. This, in turn, would undermine the rule of law, the administration of justice and, potentially, national and international security. Furthermore, there is, or may be, a strong element of public service in the contributions made by informants to the administration of justice. The courts, in these circumstances, owe such informants such protection as can be provided, as long as there is no unnecessary compromise of the principles of open justice. While the principles of open justice are fundamental, they are not inviolable and must give way, in certain circumstances, to other considerations. I am satisfied that the present is such a case. The administration of justice would not, otherwise, be disrupted by an order to close the court for the informant’s evidence or for any period during which the Sensitive Information is mentioned. The Court, the jury, the accused and the legal representatives, as well as any other authorised person, would be present in court when such evidence is given and able to observe the informant.

I am satisfied that the orders sought by the Commissioner are designed to protect the administration of justice, the national and international security and the safety of the informant and the informant’s family. I note that the orders sought by the Commissioner, if made, would not prevent disclosure of any information save to the extent that such disclosure would reveal the identity of the informant or the fact or nature of the assistance the informant has provided to authorities. The orders would not prevent the media reporting the existence of an informant or the fact of assistance having been provided. Nor would the orders prevent publication of the informant’s evidence as long as the publication does not reveal the identity of the informant.

For these reasons I propose, pursuant to the Act, to make orders set out in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the short minutes of order which I will initial and date. I note that I have made a hand-written amendment to the order in [3.2] and the parties have amended order [9] by hand. I have specifically initialled these paragraphs.

The orders, in redacted form, are: