R v Azari (No 6)

The accused, Omarjan Azari, has pleaded not guilty to one count of doing an act in preparation or planning for a terrorist act contrary to s 101.6(1) of the Schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code (Cth)”). He is due to stand trial on that charge on 2 October 2018. I have already made a number of suppression orders in this matter under s 7(b) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) since this matter first came before me in April 2017.

On 25 May 2018, a solicitor from the Australian Government Solicitor, who appears for the Commissioner of the Australian Federal Police (“the Commissioner”), wrote to my associate to advise that the Commissioner seeks further orders under the Act in this matter. I listed the matter for hearing today. Due to the sensitive nature of the information described in the application, it was agreed that the notice of motion, supporting affidavit and submissions be provided to my chambers and not filed in the Registry.

The material relied upon by the Commissioner was delivered to my chambers prior to the hearing of this motion. It comprises the notice of motion, a confidential affidavit of Leanne Close sworn 11 May 2018 and confidential written submissions. Although that affidavit and the submissions are described as confidential, copies have been made available to both Mr Powell, who appears for the Commonwealth DPP today, and Mr Ryan, who appears for Mr Azari.

Mr Powell has indicated that the orders are not opposed by the Commonwealth DPP and Mr Ryan indicated he is not in a position to oppose the orders at this stage, but it may be that, after further consultation with Senior Counsel briefed in this matter, an approach will be made to the Court to seek a variation of some of those orders.

I should note that Ms Close, who is the deponent of the affidavit relied upon by the Commissioner, is a Deputy Commissioner of the Australian Federal Police (“AFP”) and is the Deputy Commissioner of National Security. She is the most senior AFP officer with direct responsibility for all AFP counter-terrorism operations and investigations for the AFP national security matters. In particular, she has experience in the protection of confidential sources.

For obvious reasons, I do not propose to refer to the contents of the confidential affidavit in these reasons. Suffice it to say that it pertains to the need to protect the identity of a witness in this trial and that there is detailed information in that affidavit that persuades me of the necessity to make these orders.

Section 7 of the 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 section 8(1) of the Act. In this particular matter, the Commissioner relies upon subsections (a), (b) and (c) which are in the following terms:

A suppression order is defined in s 3 of the Act as an order that prohibits or restricts the disclosure of information by publication or otherwise. In deciding whether to make a suppression order, a Court must take into account the primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 of the Act.

As is clear from the Act, each of the grounds set out in s 8 of the Act import a test of necessity. I have had regard to what the Court observed in relation to that test in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, and in particular, to the comments of Bathurst CJ at [8] and Basten JA at [46].

In addition to the powers available under the Act, 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: see Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366.

It is well accepted that the position of certain police witnesses is such that care needs to be taken to protect their identity: see DPP v Smith (1996) 86 A Crim R 308; Cain v Glass (No 2) (1985) 3 NSWLR 230 and Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156. Having regard to the principles in those cases, the terms of the Act and the material contained in the confidential affidavit before me, I am satisfied that it is appropriate to make the orders sought.

During the hearing of this application today, a question arose as to the extent to which it is appropriate to have a redacted version of the orders published such that any person who had access to those orders through the Supreme Court Media Officer would not in fact know the identity of the witness whose identity is being suppressed. After further discussion with Mr Melican of counsel, who appears for the Commissioner on this application, it was accepted that a number of variations should be made to the proposed orders that are attached to the notice of motion in this matter.

In order to avoid a situation where the parties have to return to Court for those finalised orders to be made, I consider it appropriate at this stage that I make the orders 1 to 12 in that notice of motion and note the other matters contained therein. I propose to vary those orders in chambers once I have received the finalised proposed orders from the Commissioner.

I have been asked by the Commissioner to return the affidavit and submissions rather than have them kept on the Court file. It is the usual practice of this Court that a copy of any material upon which the Court has been asked to make a ruling be retained on the Court file. Retaining evidence and other material on the Court file assists in maintaining the integrity of the file and ensures that if there is later any controversy about any orders made, there is no disagreement as to what evidence was before the Court. Despite this, I am satisfied that there is a distinction between the ordinary run of cases and those which concern national security information.

In those circumstances, given the sensitive nature of the material contained in Ms Close's affidavit, I am prepared to return the affidavit and the submissions to the Commissioner on the basis that the Commissioner undertakes that those documents will be kept safely and be made available to the Court should the issue arise at some future time.

Under s 12 of the Act, it is necessary to specify the length of time over which suppression orders made under the Act are kept in place. In the present matter, the trial is not until October 2018 and on material provided to me, it is not currently known when the material will no longer be considered sensitive such that it would be appropriate that the orders be lifted. In those circumstances, I consider it appropriate that the orders be made until such further order by me.

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