R v Uweinat

HIS HONOUR: Youssef Uweinat pleaded guilty in the Local Court to offences contrary to the Criminal Code (Cth) of knowingly be a member of a terrorist organisation and advocating a terrorist act or commission of a terrorism offence. He has been committed to this Court for sentence. The matter is in the Arraignments List on 4 June 2021 for the purpose of fixing a date for a hearing on sentence.

The Commissioner of the Australian Federal Police proposes to serve further evidence in relation to the matter prior to 4 June 2021 but in that connection has filed a Notice of Motion on 25 May 2021 seeking suppression and ancillary orders in respect of sensitive surveillance device capabilities.

The Commissioner’s application is supported by an open affidavit and a confidential affidavit, each sworn by Assistant Commissioner Nigel Ryan, National Manager Crime Command, Australian Federal Police, both of which were sworn on 24 May 2021.

Orders of the same type that are now sought were made in the Local Court in respect of a statement of Federal Agent Xuereb dated 19 October 2020 including annexures B and C to that statement and the information (including images) contained therein. The orders now sought extend to further material, including a statement of Federal Agent Xuereb dated 21 May 2021 including annexure A to that statement and the information (including images) contained therein.

The Australian Government Solicitor who represents the Commissioner on this application has confirmed that correspondence with the court in relation to this issue, a signed copy of the Notice of Motion, written submissions and the open affidavit of Assistant Commissioner Ryan have been provided to the parties and both the Commonwealth Director of Public Prosecutions and the defendant’s lawyers have indicated they consent to the matter being sent to the court and being dealt with in chambers. Both parties consent to the making of the orders.

The orders are sought pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CS&NPO Act) and the Surveillance Devices Act 2004 (Cth) (the SD Act). Under the former, the Commissioner seeks suppression orders on the ground in s 8(1)(b) that they are necessary to prevent prejudice to the interests of the Commonwealth in relation to national security. Under the latter the Commissioner points to the provision in s 47(5) which mandates a court making an order prohibiting or restricting publication of information where it is considered necessary to ensure details pertaining to a surveillance device should not be revealed.

By virtue of the definition of “suppression order” in s 3, a suppression order under the CS&NPO Act is broader than a non-publication order made pursuant to s 47(5) of the SD Act because it extends to the restriction of disclosure of information by publication or otherwise.

I note the proposed orders do not seek to restrict the ability of the parties to disclose the information between themselves and the Court; the restriction will apply to the broader public.

I also note from the written submissions on behalf of the Commissioner that orders of the type sought in this matter are not novel and have been made in the past in cases including: R v Alqudsi [2016] NSWSC 1168; R v Yousif, Elomar & Elomar (Supreme Court (NSW), Adamson J, 22 March 2017, unrep); R v Azari (No 3) [2017] NSWSC 553; R v Elmir [2018] NSWSC 308; R v Musleh (No 2) [2018] NSWSC 1221.

It is also uncontroversial that special importance attaches to the protection of national security. In that regard the written submissions cite by way of examples Alister v R (1984) 154 CLR 404; R v Mallah (Supreme Court (NSW), 11 February 2005, unrep); R v Khazaal [2006] NSWSC 1061. I am satisfied that reliance by the Commissioner upon the national security ground in s 8(1)(b) of the CS&NPO Act is soundly based.

Section 6 of the CS&NPO Act requires a court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In this regard I accept the submission on behalf of the Commissioner that the derogation from the principle of open justice in this instance is quite confined. I am satisfied that the national interest substantially outweighs the derogation of that fundamental principle. I am satisfied that the orders should be made.

An order only having force within the State of New South Wales would be ineffective and so the submission that it should apply throughout the Commonwealth of Australia is accepted: s 11 of the CS&NPO Act.

Section 12 of the CS&NPO Act requires a court to ensure an order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. The affidavit material persuades me to accept that the proposed period of 10 years is appropriate.

I make the following orders: