R v Musleh (No 2)

By notice of motion filed on 31 July 2018 the Commissioner of the Australian Federal Police (the Commissioner) seeks suppression orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), s 47 of the Surveillance Devices Act 2004 (Cth) or in the exercise of this Court’s inherent jurisdiction. The application is supported by an affidavit sworn on 31 July 2018 by Ian McCartney who is an Assistant Commissioner of the Australian Federal Police (AFP) and whose current position is National Manager Counter-Terrorism.

In advance of the hearing of the notice of motion, I was provided with the notice of motion; written submissions made on behalf of the Commissioner; and two copies of Mr McCartney's affidavit. The copies of the affidavit were unredacted. Passages highlighted in green were made available only to this Court. The passages highlighted in yellow have been made available to the parties to the proceedings. A redacted version of the affidavit, which omits the yellow and green highlighted portions, will be provided by the Commissioner to be kept on the Court file. In order to protect from disclosure the highlighted portions, which I shall refer to collectively as “the sensitive information”, 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 Muhammed Abdul Karim Musleh, has indicated that his client does not oppose the orders sought in the notice of motion.

The information sought to be suppressed relates, in general terms, to techniques which are currently used by the AFP in the detection, prosecution and proof of crimes, including so-called terrorist crimes.

Mr McCartney deposed, at [44] of his affidavit:

Mr McCartney has also deposed that the sensitive information has been used, and continues to be used, in many of the AFP’s operations. He said that the sensitive information has “directly led the AFP to disrupt terrorist plots” and “has been utilised in a number of current and recent counter terrorism investigations” (paragraphs [57] and [59] of his affidavit). I accept his evidence as to the effect of disclosure of the sensitive information in these proceedings as follows (at paragraph [79]):

I am satisfied, on the basis of Mr McCartney’s affidavit, that it is necessary to make these orders by reason of s 8(1)(b) of the Act: namely, that it is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security. This subparagraph in s 8(1) appears to me to be the most relevant to the present application. Disclosure of the sensitive information could compromise the ability of the AFP to detect, investigate and prove the commission of serious crimes, including so-called terrorist crimes. National security could be compromised if the sensitive information were disclosed.

It has been held that “the administration of justice” can extend to the investigation and detection of crime and the obtaining of evidence against suspects: Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [38] (Hodgson JA, Hislop and Latham JJ agreeing). On this basis I consider the orders also to be necessary under s 8(1)(a) of the Act.

Although the Commissioner does not seek to rely on public interest immunity of itself to protect the sensitive information from disclosure, Mr Melican, who appeared for the Commissioner, submitted that there is a public interest in the protection of sensitive police technologies, capabilities and procedures to ensure the ongoing supply of relevant information for the purposes of law enforcement. I am satisfied that there is a substantial public interest in the investigation and prosecution of crime. On this basis I am satisfied that it is otherwise necessary in the public interest for the order to be made. Thus, the order is also supported by the power in s 8(1)(e) of the Act if this public interest significantly outweighs the public interest in open justice.

The course proposed on behalf of the Commissioner is that a summary of the substantive content of the images sought to be protected will be prepared by officers of the AFP and will be available in open court in accordance with the principles of open justice. Thus, although there will be some derogation of the principles of open justice, I am satisfied that it will be kept to a minimum in the manner proposed.

In light of the course proposed by the Commissioner, I am satisfied that the public interest is in making the suppression order significantly outweighs the public interest in open justice, having regard to the minimal derogation to which I have referred: see Lodhi v Regina (2006) 65 NSWLR 573; [2006] NSWCA 101 at [24]-[28] (McClellan CJ at CL, Spigelman CJ and Sully J agreeing).

The Court has a discretion whether to make the orders sought, as indicated by the use of the word “may” in the prefatory words in s 8(1) of the Act. I do not regard the only particularly relevant countervailing factor, namely, the principle of open justice, as sufficient to prevent my making the orders which I consider to be otherwise appropriate. The principle of fair trial does not arise as the Commissioner does not seek to deprive the parties of access to that part of the sensitive information which is relevant to the proceedings.

As there is ample power in the Act to make the orders sought by the Commissioner, it is unnecessary to address whether the orders could also be made pursuant to s 47 of the Surveillance Devices Act or in the exercise of this Court’s inherent jurisdiction.

Prayer 8 in the notice of motion seeks an order that the orders shall apply throughout Australia and “until further order”. In deciding the period for which an order is to operate I am obliged to ensure that the order operates for 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 Mr McCartney’s affidavit, that it is not presently feasible to predict how long the orders need to be in place, although one can envisage a time in the future when the matters referred to might become part of common knowledge in which case these orders will no longer be required. However, on the basis of current information, I do not propose to specify a period for which the orders are to operate.

Mr Melican has provided short minutes of order which he asks that I make if I am persuaded that such orders are appropriate. For the reasons I have given, I consider it is appropriate to make orders in terms of paragraphs 1, 2, 3, 4, 5, 6, 8 and 9 of the short minutes of order which have been provided by Mr Melican which I will sign and date.

I propose to note, in lieu of draft order 7 in the short minutes of order, that I shall return to the Commissioner of the Australian Federal Police all copies of the affidavit of Mr McCartney sworn 31 July 2018 containing information referred to in order 2.

I make the following orders: