Secret evidence used in Australian “terrorist” trial
By Mike Head
20 December 2004
In a development without precedent in Australia, secret evidence is being heard in closed sessions, with access denied to the public, the media and even the accused man and his lawyer, in a hearing of terrorist-related offences currently underway in Sydney. A magistrate has granted wide-ranging secrecy and suppression orders, in the first test of the Howard government’s latest “national security? legislation.
After months in a maximum security prison awaiting trial, Faheem Khalid Lodhi, a 34-year-old architect, was brought before the Central Local Court last week on nine charges, most alleging a conspiracy to commit terrorist acts in Sydney. The committal hearing will determine whether the Pakistani-born Australian citizen is sent for trial. On the opening day, the prosecution dropped a further charge of attempting to recruit a young student to a terrorist organisation.
Lodhi was bundled into the court building in shackles, in full view of the media. The display was intended to convey the impression that he is a violent and highly dangerous individual. Like several other Muslim men charged with terrorist offences in Australia over the past year, Lodhi has been denied bail and held in virtual solitary confinement in a “super max? prison, cut off from family and friends. Under state and federal “counter-terrorism? laws, the traditional presumption in favour of bail has been scrapped. It will only be granted in “exceptional circumstances”.
On receiving a confidential affidavit from the Commonwealth, Magistrate Michael Price imposed a number of secrecy orders despite vigorous objections by lawyers for Lodhi and by media organisations. The orders mean that the affidavit itself will remain suppressed, and the media is barred from disclosing even the general nature of the material relied upon in it.
Speaking for the Howard government in reply, Commonwealth counsel Tom Howe dismissed the constitutional right to have facts heard in court as “nonsense on stilts”. As a general rule, he insisted, national security should prevail when it conflicted with the right to an open trial.
This sweeping assertion, and the magistrate’s acceptance of it, illustrates the far-reaching and draconian character of the National Security Information (Criminal Proceedings) Act, which was pushed through federal parliament this month with the backing of the opposition Labor Party.
If Lodhi or any other alleged “terrorist” is committed for trial, juries can be asked to convict them without seeing key evidence. With the judge’s permission, the prosecution can withhold testimony or other material from the accused and present it to the jury in summarised and censored form, preventing defence lawyers from questioning its credibility.
These provisions violate some of the most fundamental legal rights of an accused person, won in centuries of struggle against absolutist regimes. These include the right to hear all the prosecution’s evidence, cross-examine its witnesses to test their veracity and credibility, and expose its case to public scrutiny. The legislation flouts international human rights law, including the International Covenant on Civil and Political Rights, which enshrines an accused’s right to access, and respond, to all material being used against them.