R v BB (No 6)

HIS HONOUR: Ordinarily I would reserve reasons in relation to an application for a suppression or non-publication order. The matter concerns an application by Motion in the proceedings for a suppression or non-publication order and relates to evidence before the Court of a fear on the part of the offender and his partner of reprisals against either of them and more obviously their family that still resides in Iran. An interim suppression order issued on Monday, 22 November 2021, relating to the whole of the matter. That was done on the basis that the Court did not want to render nugatory that which is now before the Court.

The issue that needs to be determined is the issue of whether, pursuant to the terms of s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (hereinafter "the Act"), the Court should prevent or prohibit the publication of certain information.

The application as it was framed was in relatively broad terms. During the course of the discussion between counsel on both sides and the Court that seems to have been narrowed to issues associated with the names and identity of the offender in this case and his partner, who in fact is an offender in other proceedings, a company with which they are associated and whether or not information was obtained from them in documents.

The issue that is now before the Court is an issue that arises under s 7 of the Act. Section 10 of the Act deals with interim orders and allows the Court to make such orders without determining the merits of the case. Section 7 of the Act allows the Court to make a suppression order or non-publication order on a number of grounds. Relevantly that which is relied upon is that which is contained in s 8(1)(c) which allows the Court to make orders where it is necessary to protect the safety of any person. That provision must be understood in light of the provisions of s 6 which make it clear that the primary objective of the administration of justice is to safeguard the public interest in open justice.

There are a number of matters that are raised. I will set out the sections of the Act that are relevant.

As already stated, the material before the Court, admittedly by way of hearsay on the basis that this is an interlocutory hearing and a hearing relating to sentencing, is to the fear of what I will call the two offenders and the likelihood of reprisal against their families and/or friends or acquaintances in Iran.

The Court takes note of the material provided by the Crown, for which I am grateful, being the briefing paper on Iran prepared by the Department of Foreign Affairs and Trade. It can be said that there are parts of the operation of Iran that are extremely troubling. There is reference in that document to extrajudicial killings. There is reference to a range of conduct that, regardless of how one may feel about some acts of our governments, would be simply abhorrent to anyone who lived and understood the culture that exists in Australia. That gives me great concern.

Even though in many respects conduct by way of reprisal against either one of the offenders would be irrational in the sense that, as I mentioned during the course of proceedings, these two offenders assisted the interests of the Iranian Government in arranging for goods that were sanctioned by the United Nations to be delivered to Iran, it would be seemingly irrational in those circumstances for the Iranian Government to be concerned at the fact that that has been found out by the Australian Government and that people have been sentenced for offences as a consequence of that conduct. Nevertheless, there are some aspects of the issues which, without repeating them, I accept may give rise in the context of a Government such as Iran to conduct that would be by way of reprisal, either against one of the offenders, were they overseas or even in Australia, or against one of the offenders' family members.

The question, therefore, is whether that circumstance is sufficient to meet the requirements of para (c) of s 8(1) of the Act. It is unfortunate, but probably necessary to note that the material before the Court is by way of hearsay, but it would be unlikely in those circumstances for it to be anything other than hearsay and must necessarily relate to a fear rather than conduct that has already existed, except perhaps, as has occurred on previous occasions with which the Court as presently constituted has dealt, where there have been reprisals, usually by persons other than Government and the like in Australia.

The proposition with which the Court starts and which is the primary consideration under the Act is the principle of open justice. The importance of open justice cannot be underestimated. It is necessary, in order for justice to be administered in a way that people can see the manner in which judges operate and the evidence that is adduced against persons, that the public has available to it a means by which justice can be done and be seen to be done by the Courts. It is a deterrent to corruption and to a range of other problems associated with misconduct which, frankly, I am aware has occurred in other countries and, thankfully, has not occurred in this country, at least not to any great extent.

The Court of Appeal in D1 v P1 [1] referred to the principle of open justice and its importance. I will not read it now but I will include in the judgment paras 49, 50 and 51 of that judgment.

As earlier stated, the starting point for the exercise of the jurisdiction to issue a suppression order is the principle of open justice. In John Fairfax & Sons v The Police Tribunal, [2] the Court of Appeal was dealing with the powers of a Police Tribunal and remarked that it had no powers or jurisdiction to suppress. Nevertheless, the Court discussed open justice. McHugh J, then on the Court of Appeal, said:

This case has occurred in open court. Anybody who has desired it has been able to listen to the first trial, the evidence that was adduced, the submissions and all of the circumstances of the proceedings, including the names of the offenders. What is now sought is an application for suppression of publication.

The Crown relies on two aspects. First, it relies on the fact that the test of necessity has not been met, and that is a requirement of s 8(1)(c) which is relied upon by the offender. The second is that, to some extent, the orders would be of futility because there has already been some publicity and the proceedings have been conducted in open court and people have been able to report that which has occurred so far.

In relation to the latter aspect, it seems to me not a matter that detracts from the necessity or efficaciousness of the suppression order; indeed, it does qualify, as earlier stated, some of the issues that might otherwise be associated with restrictions on open justice.

In John Fairfax v District Court of New South Wales, [4] Spigelman CJ dealt with this context and the issues of safety stating:

As I have tried to make clear, the importance of open justice cannot be overstated. I have also stated during the course of the proceedings that, in my experience, if one is talking about the press - I am talking now about legitimate press and mass circulation media - it behaves reasonably in relation to these matters, both as to the issues associated with identity and with the matters that should be reported without being problematic. I do consider that it is problematic to have some of this material published and I think that, on the material before me, it may give rise to significant issues in Iran for the family of the offenders.

The publication order that I will make, and I intend to make it, will not, in my view, interfere with the public's right to scrutinise the conduct of the Court, nor will it interfere with the implementation of justice, both of which are fundamental protections that ensure the proper operation of the justice system. It allows judges to be the subject of criticism in relation to their judgments, it ensures that the implementation of justice is not seen to be governed by any secret or undisclosed factors and each of those are essential elements of the justice system. Nor will it interfere, it seems, with the Australian Government’s need to report its enforcement of the UN Sanctions to it allies or the U.N itself.

Dealing with the issue of necessity, the High Court dealt, in relation to the powers or jurisdiction of the District Court, with the meaning of the word "necessary" in the context of the implied powers of a court of record.

In Pelechowski v Registrar of the Court of Appeal (New South Wales), [6] the High Court - the plurality judgment was written by Gaudron, Gummow and Callinan JJ - said:

Applying that test is the appropriate means of looking at what is meant by the term "necessary" in s 8 of the Act. Indeed, were it not applied in that way, then the primary consideration could never outweigh the criteria prescribed by s 8.

The Court must consider whether the accomplishment of the prescribed criterion outweighs the public interest in open justice in that evaluation. In doing so, there may be different answers, depending upon the nature and extent of the suppression power that is sought or ordered.

It seems to me that the threat of and to the safety of the families of the offenders would be an inappropriate outcome of any sentencing exercise and any prosecution exercise and the threat is real enough to warrant it being the basis for the accomplishment of the powers associated with sentencing and, indeed, with the administration of justice.

In all of the circumstances, I will make orders under s 7(1) of the Court Suppression and Non-publication Orders Act 2010 that the names of either the offender in these proceedings or his partner not be published, nor anything that would identify either of them. Further, that there not be published one or other of their connections with or the identity of the company [REDACTED] and that there not be publication of any information disclosing the possession by either person of documents or information that were seized or used by law enforcement agencies in the investigation or prosecution of either of them.