R v Azari (No 8)

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.

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.

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.

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.

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.

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.

For obvious reasons I do not propose to refer to the contents of the confidential affidavit or submissions in this judgment.

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.

Mr Melican submitted that the Commissioner supported the making of the further orders sought by Mr Wilson on behalf of the witness.

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.

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.

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.

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.

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)).

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).

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.

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]:

His Honour went on to observe at [48]:

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].

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]):

His Honour went on to observe (at 586 [33]):

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.

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.

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.

In accordance with the above, I make the following orders: