BUSB v R

[2011] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

BUSB v R [2011] NSWCCA 39

Hearing dates:

10 February 2011

Decision date:

11 March 2011

Before:

Spigelman CJ at 1; Allsop P at 88; Hodgson JA at 94; McClellan CJ at CL at 95; Johnson J at 96

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - procedure - witnesses - where witnesses are ASIO officials - where identity and facial features of witnesses are screened from accused - whether District Court has implied power to make an order for the screening of witnesses for the purpose of protecting national security - whether District Court erred in the exercise of the power to make screening orders

CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution -where identity and facial features of witnesses are screened from accused - whether order for non-disclosure of witnesses' facial features violates Chapter III of the Commonwealth Constitution

Legislation Cited:

Criminal Appeal Act 1912, s 5F
Supreme Court Act 1970, s 17

Cases Cited:

ASIC v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265
Ex parte Queensland Law Society [1984] 1 Qd R 166
Gee v Magistrates Court of South Australia [2005] SASC 315; (2004) 89 SASR 534
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565
International Trust Finance Company Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Moevao v Department of Labour (1981) 1 NZLR 464
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
R v Alexandroaia (1995) 81 A Crim R 286
R v Davis [2008] UKHL 36; [2008] 1 AC 1128
R v Hughes [1986] 2 NZLR 129
R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231
R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573
R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508
R v Murphy [1990] NI 306
R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55
R v Stipendiary Magistrate of Southport, ex parte Gibson [1993] 2 Qd R 687
State Drug Commission of NSW v Chapman (1987) 12 NSWLR 447
Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429

Texts Cited:

D Lusty "Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials" (2002) 24 Sydney Law Review 361

Category:

Principal judgment

Parties:

BUSB (Appellant)
Director-General of Security (First Respondent)
New South Wales Director of Public Prosecutions (Second Respondent)
District Court of New South Wales (Third Respondent)
Attorney General for the State of New South Wales (Intervening)

Representation:

Counsel:
P Lange, G Scragg (Applicant)
T Howe QC, G Kennett SC, A Berger (First Respondent)
P Ingram SC, G Tabuteau (Second Respondent)
M Sexton SC Solicitor General, N L Sharp (Attorney General Intervening)
Solicitors:
LawyersCorp Pty Ltd (Applicant)
Australian Government Solicitor (First Respondent)
Solicitor for Public Prosecutions (Second Respondent)
Crown Solicitors Office (Intervener)

File Number(s):

CCA2006/00011417

Publication restriction:

Non-publication order - name of applicant.

 Decision under appeal 

Date of Decision:

2010-04-08 00:00:00

Before:

Charteris DCJ

File Number(s):

2006/00011417

HEADNOTE

The applicant is to be retried for certain offences arising from his discharge of a firearm. At the first trial the jury failed to reach a verdict.

The principal issue at the retrial will be whether the applicant "shot at" a police officer or, as he contends, he discharged the firearm for the purpose of avoiding apprehension but did not "shoot at" any person.

The Crown proposes to call a number of witnesses who are, or were, officers of the Australian Security Intelligence Organisation (ASIO). Two of the officers were eyewitnesses to the shooting and gave evidence in the first trial.

At the first trial, orders were made with respect to the way in which the ASIO officers gave evidence. In particular:

each witness was given a pseudonym;

there was to be no publication of their description or identity;

their evidence was given in a closed court and via video-link; and,

their evidence was given in such a way that the witnesses could not be seen by the applicant, but could be seen by all other persons permitted to be present.

On 15 December 2010, these orders were remade by Solomon DCJ in advance of the second trial. Only the order preventing the applicant from seeing the faces of the witnesses is challenged in this Court. The order was referred to in the proceedings as a "screening order".

On appeal, the issues were:

(a) Does the Constitution confine any power of the District Court to make an order for the screening of witnesses?

(b)   Does the District Court have the power to make an order for the screening of witnesses for the purpose of protecting national security?

(c)   Assuming the existence of the power, did Solomon DCJ err in the exercise of that power?

HELD

(per Spigelman CJ, Allsop P, Hodgson JA, McClellan CJ at CL and Johnson J agreeing)

The constitutional issue

1.   No constitutional issue arises in the present case. The existence of an implied power turns on what is necessary for the administration of justice. Were an implied power to have an impermissible effect on the institutional integrity of the court, then the test would not be satisfied and the power would not exist. [22] [88] [94] [95] [96]

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173; Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307; International Trust Finance Company Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319, referred to.

The existence of the power to make a screening order

2.   In oral submissions, the applicant accepted that the District Court had an implied power to screen witnesses. The existence of an implied power in the District Court to make screening orders does not, therefore, fall for consideration on this appeal. [41] [89] [94] [95] [96]

R v Stipendiary Magistrate of Southport, ex parte Gibson [1993] 2 Qd R 687; Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84; R v Hughes [1986] 2 NZLR 129; Gee v Magistrates Court of South Australia [2005] SASC 315; (2004) 89 SASR 534; R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573; R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55; R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508, referred to.

3.   The applicant abandoned a ground of appeal that may have put in issue whether a power exercised for the purpose of protecting national security could be said to serve the administration of justice. [35] [89] [94] [95] [96]

4.   The applicant sought to define the scope of an implied power to screen witnesses with reference to adverse affects on "full and effective cross-examination". This language is not apposite to delimiting the powers of the court. Such considerations give rise to questions of fact and degree that are more appropriately considered with respect to the exercise of the power, rather than the existence of the power. [41] [88] [94] [95] [96]

The exercise of the power to screen witnesses

5.   The judge was entitled to accept the evidence of the Director-General of Security with respect to the potential threat to national security posed by the applicant seeing the faces of ASIO witnesses. [62] [88] [94] [95] [96]

6.   The trial judge did not impose any evidentiary burden on the accused by noting that no specific forensic disadvantage had been established. His Honour's statement to that effect was appropriately made in the context of balancing national security with the right to a fair trial. [68] [70] [91] [94] [95] [96]

R v Alexandroaia (1995) 81 A Crim R 286, referred to.

7.   The degree of impingement that will be permitted on the right to a fair trial by the making of a screening order will vary from case to case. In this case, the only identified benefit of the accused being permitted to see the ASIO witnesses is the possibility that his memory may be refreshed by their physical appearance. This is not of significance in this case. [80] [83] [92]-[93] [94] [95] [96]

8.   The ASIO witnesses are to give corroborative rather than critical evidence. None of them fall within the category of witnesses discussed by the House of Lords in R v Davis . [80] [83] [92]-[93] [94] [95] [96]

R v Murphy [1990] NI 306; R v Davis [2008] UKHL 36; [2008] 1 AC 1128, applied.

ORDERS

1. Leave to appeal granted.

2. Appeal dismissed.

Judgment

1. SPIGELMAN CJ: This is an application under s 5F of the Criminal Appeal Act 1912 ("the Act") for leave to appeal from an order directing the manner in which certain witnesses will give evidence in the trial of the applicant. The matter has a long procedural history, which it is unnecessary to set out in full.

1. At a time when an issue had arisen as to this Court's jurisdiction under s 5F of the Act, the applicant for leave protected himself by instituting proceedings in the Court of Appeal invoking the Court's supervisory jurisdiction. Both matters were listed before the same bench. There is now no issue about the s 5F jurisdiction and this Court should exercise that jurisdiction. The same bench should dismiss the Court of Appeal proceedings with no order as to costs. (See s 17 of the Supreme Court Act 1970.)

1. As will appear below, the applicant raises an important issue about the powers of the District Court of New South Wales and seeks to challenge both the existence of those powers and their exercise in the particular case. Analogous issues have arisen in a number of different trials in recent years.

1. In the normal course, this Court would not grant leave under s 5F on the basis of an assertion that procedural orders about the manner in which evidence is to be given will undermine the fairness of the trial. That is a matter best dealt with in retrospect after the trial. However, there has already been a trial at which the relevant evidence was given. This application relates to the procedure being repeated in the retrial. The Court can assess the relevant facts on the basis of what happened at the first trial.

1. In these circumstances leave should be granted.

The Appeal

1. The appellant is to stand trial again on three counts: that he did shoot at a police officer, alternatively, with intent to murder him; with attempt to do grievous bodily harm to him; or, finally, maliciously with intent to prevent his own lawful apprehension.

1. On the basis of the submissions in this Court, the principal issue at trial will be whether, with respect to each alternative count, the applicant did "shoot at" the police officer. The applicant's case, as explained to the Court, is that while he discharged a firearm in order to avoid apprehension, he did not "shoot at" the police officer.

1. The Crown proposes to call a number of witnesses who are, or were, officers of the Australian Security Intelligence Organisation ("ASIO"). Two of them were eyewitnesses to the shooting and gave evidence in the first trial. Prior to that trial, orders were made with respect to the way in which the ASIO witnesses would give evidence.

1. These orders were that:

each witness be given a pseudonym;

there be no publication of their description or identity;

their evidence be given in a closed court and via closed circuit television;

their evidence be given in such a way that the witnesses could be seen by all those permitted to be present in the court, except for the appellant.

1. Only the last order is the subject of this appeal. The order made which is challenged is:

"4 Subject to any further Order of the Court, ASIO witnesses are permitted to give evidence via encrypted video-link or closed circuit television from a remote point to ensure their physical identity will be protected from being revealed to anyone other than those persons identified in Order 3(a) to (i) above."

1. The persons identified in Order 3(a)-(i) included the judge, jury, court officers, legal representatives and Commonwealth and State officers, including police whose presence is required. The sole person present at the trial but excluded from the list is the appellant.

1. On the arrangements proposed, the appellant will not be able to see any of the ASIO witnesses give their evidence, but he will be able to hear their evidence via an audio feed. The jury, however, will be under the impression that the appellant is able to see the witness.

1. The challenged order was, relevantly, made by Solomon DCJ on 15 December 2010. However, the order was first made by Charteris DCJ on 8 April 2010 for purposes of the first trial. Solomon DCJ adopted the reasoning and judgment of Charteris DCJ when he confirmed the orders for purposes of the second trial.

1. Three distinct issues arise on this appeal. First, does the District Court of New South Wales have power to make the order that has been challenged? Secondly, does the Constitution of the Commonwealth prohibit the existence of the power as exercised in the circumstances of the present case? Thirdly, on the basis that the power existed, did the learned District Court judge err in the exercise of the power?

The Judgment of the Trial Judge

1. As noted above, the order was made by Solomon DCJ, but his Honour adopted the reasons of Charteris DCJ. Both of their Honours had before them evidence from the Acting Director-General of Security ("Acting Director-General") in an open affidavit and in a confidential affidavit. The open affidavit from the Acting Director-General expressed the view, with reasons, that the orders being sought, including the order under appeal, were necessary to protect the identify and well being of ASIO officers and to protect the ability of ASIO to carry out its statutory functions.

1. In his judgment of 8 April 2010 Charteris DCJ set out the evidence before him, including a summary of the statements of the evidence that the ASIO officers would give. His Honour set out the submissions made to him, including references to authorities to which his Honour refers in the passage I am about to set out. Those authorities are Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55 and my own judgment in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344.

1. His Honour's conclusions were:

"I find as follows. The disputed orders regarding the screening of ASIO surveillance officers do not involve 'a matter arising under the Constitution or involving its interpretation' as understood in s 78B of the Judiciary Act . The principles set out in Kable are not engaged in determining the application before me. I find that this Court has the power to make the disputed orders. In that regard I rely upon Ngo and Fairfax Publications Pty Ltd v The District Court of New South Wales.

In deciding whether I exercise such a power I take into account my need to balance the rights of this accused to a fair trial together with, amongst other things, the interests of the public in eliminating or minimising a risk to the ASIO officers themselves or to national security generally. I have already observed that I accept the evidence of the Director-General, there being nothing to challenge it.

I make the finding that it is necessary in the interests of national security that I keep in place the disputed order (4). In my view the order does not measurably affect this accused's entitlement to a fair trial. On the material that has been put before me, no actual forensic disadvantage to the accused by the screening from him of the vision of ASIO surveillance officer 'A', or indeed of any other ASIO surveillance officer, has been demonstrated. The accused personally will be well aware of each witness's identity as an ASIO surveillance officer. Those who represent the accused have access not only to the witness's statement but all of the observational logs produced upon subpoena.

I apply a test of necessity, as stated by Spigelman CJ. I find that the consequences which would flow if the order were not made to be unacceptable, being an identified potential risk to ASIO officers and to national security."

1. His Honour also noted by way of conclusion:

"There is no submission that it would be inappropriate to provide the accused with a screen, which will give the impression to the jury that he has access, just as they do, to both the video and audio evidence from the remote location. The aim of that order is to achieve or maximise the prospects of a fair trial to the accused.

I make the following observation that those who represent the accused will be able, should circumstances change during the course of the trial, to renew the application seeking that the accused view the vision of a witness as he or she gives evidence."

The Constitutional Issue

1. The appellant invoked the line of authority commencing with Kable and asserted that the impingement upon the right to cross-examine, which he identified, was such as to undermine the institutional integrity of the Court and, accordingly, to render it a less effective vehicle for the exercise of federal jurisdiction. The applicant relied upon the strength of the principle that an accused has a right to confront the witness against him.

1. In this regard the allegedly impermissible consequential effect upon the institutional integrity of the District Court turns on the interference, on this occasion by means of implication rather than by express legislative provision, with the proper exercise of judicial power.

1. The general nature of the interference for which the appellant contends has been expressed in a number of alternative, albeit equivalent, formulations, including:

Legislation that "constituted a marked interference with a judicial process and circumscribed the judicial functions and discretions incidental to it." ( R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231 at [14] per Mason J.)

A law which requires or authorises a court to "exercise judicial power in the manner which is inconsistent with the essential character of a court or with the nature of judicial power". ( Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at [21].)

"Interference with the governance of the trial and distortion of its predominant characteristics." ( Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [145].)

Requiring the court "to depart to a significant degree from the methods and standards which have characterised judicial activities ..." ( Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [111], [600] and [651] and see International Trust Finance Company Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [52].)

1. In my opinion, no constitutional issue arises in this case. The implied power issue, discussed below, turns on the application of a test, stated at its highest, of what is necessary for the administration of justice. If any such implication had an effect of the kind summarised in the cognate formulations set out in the previous paragraph, to the extent that it undermined the institutional integrity of the Court, then the test could not be satisfied and the implied power would be held not to exist.

1. Grounds 1 and 6 in the Notice of Appeal should be rejected.

The Implied Power Issue

1. There was a good deal of common ground amongst the parties with respect to the relevant principles applicable to determining whether or not the District Court has power to make the screening order. It was accepted that there was no relevant express power, but that the Court did have implied powers, albeit not an inherent jurisdiction.

1. The most frequently cited test in Australian jurisprudence for identifying an implied power is that propounded by Dawson J, with whom other members of the Court agreed, in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at [21]:

"Every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ..."

1. Dawson J also identified at [23] the limits of permissible implication as follows:

"Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provision conferring particular jurisdiction'."

1. An implied power must relate to either the exercise of the court's jurisdiction or to the exercise of its powers. (See, eg, Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at [33]-[40], referred to with approval in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at [26] and in turn by joint judgments in ASIC v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [64] and Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 at [5].

1. The implied powers of a court are directed to preserving the ability of the court to perform its functions in the administration of justice and, in this respect, the administration of justice is to be regarded as a "continuous process not confined to the determination of the particular case" ( Moevao v Department of Labour (1981) 1 NZLR 464 at 481 per Richardson J, in a passage frequently cited with approval in Australian courts. See the references set out in John Fairfax v District Court at [56].)

1. The judgment in Grassby affirmed (at [21], [23]) that the test is one of necessary implication. (See also the authorities referred to in John Fairfax v District Court at [35]-[36].)

1. In Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, the High Court applied the Grassby test to the District Court of New South Wales. The majority joint judgment of Gaudron, Gummow and Callinan JJ said at [51]:

"The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'."

The last internal quotation is from State Drug Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452.

1. The dictum of Pollock CB approved in Pelechowski is:

"The word 'necessary' does not mean absolutely necessary, but reasonably necessary with reference to the circumstances of the case." ( Attorney General v Walker (1849) 3 Ex 242 at 255; 154 ER 833 at 838.)

1. However, a test of necessity cannot be stretched to encompass what is merely desirable or useful. Accordingly, in Pelechowski the High Court held that the order made by the District Court was more extensive than was warranted by a test of necessity. Similarly, an "advance ruling" on a hypothetical issue was not "necessary for the effective exercise of jurisdiction". ( TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [44], [101], [114]. See also John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at [42]-[46]; Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565 at [15]-[16]; Tagget v Sexton [2009] NSWCA 91; (2009) 255 ALR 522 at [61]-[66], [100]-[105], [125], [133]-[139], [145]-[151]; Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 esp at [51], [55].)

1. A test of necessity can be applied with varying degrees of strictness. Where, as is the case here, the power said to be implied impinges upon a fundamental principle of the administration of criminal justice - the right to confront accusers - the test must be applied with a higher level of strictness than may be applicable in other circumstances. (See John Fairfax v District Court at [51]) The extent of the power in such circumstances may be "minimalist". (See Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [144].)

1. As the purpose for which an implied power exists is to serve the administration of justice, such a power cannot be exercised for a different purpose. (See, eg, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481. See also Ex parte Queensland Law Society [1984] 1 Qd R 166 at 170.)

1. In the present case, one of the grounds of appeal appeared to call in question whether a power exercised for the purpose of protecting national security could be said to serve the administration of justice. However, any such suggestion was abandoned in oral submissions before the Court.

1. The appellant accepted that the District Court could exercise an implied power to screen witnesses for the purpose of protecting national security. He accepted that the implied power of the District Court did not differ from the power on the part of the Supreme Court to exercise its inherent jurisdiction for that purpose. This was a matter left open by McClellan CJ at CL in R v Lodhi [2006] NSWCCA 101; (2006) 65 NSWLR 573 at [35]. This is not a matter that calls for further consideration in the present appeal.

1. In this Court, Mr P Lange, who appeared with Mr G Scragg for the appellant, identified a specific matter which was said to be beyond the implied power. He focused on the adverse effect of the exercise of any such power upon cross-examination and submitted that the power did not extend if it prevented "full and effective cross-examination".

1. He submitted the following test. The power of a court to direct that new evidence given does not extend to:

"Any impingement [whereby] information about the Crown case as led is withheld from an accused so as to deny him the ability to cross-examine ... a witness for the Crown is impermissible ... insofar as the cross-examination is in respect of an issue in dispute at trial."

1. Mr Lange contended that the ability of an accused to see the face of a witness was a specific example of this general principle. This limitation was advanced both as a matter of implication from the statute and also as a constitutional limitation. I have dealt with the latter above.

1. Mr Lange accepted that the District Court had power to screen a witness, but not in a case where a witness cannot be effectively cross-examined unless the accused can see the face of the witness. He submitted that, on the facts of this case, this test was satisfied.

1. As I have indicated, there is no challenge to most of the orders made to protect the anonymity of the ASIO witnesses. Furthermore, the appellant accepts that a screening order can be made, subject to the limitation for which he contended. In these circumstances it is unnecessary and inappropriate to consider the conflicting authorities on this issue. (Cf R v Stipendiary Magistrate of Southport, ex parte Gibson [1993] 2 Qd R 687; Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84; R v Hughes [1986] 2 NZLR 129; Gee v Magistrates Court of South Australia [2005] SASC 315; (2004) 89 SASR 534; Ngo ; Lodhi ; R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508.)

Scope of the Power

1. As I have indicated above, it is not in issue that the District Court has an implied power to make a screening order. Nor is it in issue that the Court can make such an order for the purpose of protecting national security. The issue before this Court is whether that power exercised for that purpose does not extend so as to have an adverse effect on the exercise of the right to cross-examination of the character set out at pars [36]-[38] above.

1. The first thing to say is that the test propounded on the part of the appellant is not expressed in language appropriate for limiting the scope of a power of a court. Rather, it identifies facts and matters pertinent to the exercise of the discretion to make an order pursuant to the powers.

1. This consideration goes beyond the form of expression identified by the appellant. Each of the elements proposed in the delineation of the boundary said to exist with respect to the power involves considerations that, by their nature, give rise to questions of fact and degree. Because they do so, the elements are appropriate to be considered with respect to the exercise of the discretion, rather than with respect to delineation of power.

1. In the general formulation set out at [37] above, the terminology of "full and effective cross-examination" imports the idea of materiality. The controlling adjectives themselves import concepts that vary from case to case.

1. In the more specific formulation, set out at [38] above, the first such element is the reference to "information about the Crown case". The second such element is the reference to the effect of withholding such information being "to deny [an accused] the ability to cross-examine". The third such element refers to the scope of the cross-examination being "in respect of an issue in dispute at trial".

1. As to the withholding of information, it is not the case that an accused is entitled as a matter of law, to any information relevant to the Crown case which is in the Crown's possession. There are principles that have developed about the necessity of disclosure and delivery of the prosecution brief. However, there are restrictions on access to relevant material in accordance with other principles of the common law, such as public interest immunity and legal professional privilege.

1. The reference to "the ability to cross-examine" also raises questions of fact and degree, eg, the significance of the witness and of the relationship between the information withheld and any relevant cross-examination. In the present case, this latter aspect of the matter arises because the cross-examiner will be able to see the witness and the relevant restraint involves only such additional information as could be available to the cross-examiner by reason of the accused also seeing the witness.

1. The third element also covers a range of situations. Not all "issues in dispute at trial" are of similar significance. Whether or not the impingement on the ability to cross-examine raises a matter that affects the fairness of the trial necessarily varies from case to case.

1. These considerations strongly suggest that the matters which the appellant contends raise a question of power are, in fact, considerations relevant to the exercise of the discretion to exercise the power.

1. The appellant invoked the common law principle that an accused has a right to confront his accusers. As the appellant submitted, the strength of this principle was emphasised in the judgments in R v Davis [2008] UKHL 36; [2008] 1 AC 1128. (See generally D Lusty "Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials" (2002) 24 Sydney Law Review 361.) The appellant did not rely on the full extent of the right of confrontation. The appeal was concerned only with the screening order and the appellant accepted that there were circumstances in which such an order could be made.

1. In Davis the House of Lords accepted that the right was not unqualified. There were circumstances in which it could be qualified even at common law. Their Lordships did not doubt R v Murphy [1990] NI 306. (See Davis at [12], [53], [65], [73].) The contrast between Davis and Murphy is instructive. In Murphy the anonymous witnesses gave evidence about what they had filmed. The films were the relevant evidence. In Davis the testimony of the anonymous witnesses was decisive on the issue of guilt. This manifests the spectrum of significance of testimony.

1. The boundary of the power to make a screening order for which the appellant contends raises questions of fact and degree of a character that is not appropriate to be incorporated in the delineation of the scope of the powers of a court.

1. For these reasons, in my opinion, the issue raised by the appellant is not one of power, but of the exercise of a power. Ground 2, which was not pressed in its original form, and Ground 6 should be rejected.

The Exercise of the Discretion

1. Alternatively, the appellant submitted that the exercise of the power to screen miscarried. In this respect, the appellant relied on three alleged errors:

(1) That his Honour unreasonably accepted that there was a risk to national security on the basis of the affidavit by the Acting Director-General of Security.

(2) That his Honour imposed too high an evidential burden on the Applicant by holding that it was incumbent upon the Applicant to adduce evidence that access to the physical identities of the witnesses was necessary for the conduct of his defence.

(3) That his Honour erred by determining that the Applicant was not in any way disadvantaged by being unable to see the faces of the particular witnesses.

1. It is pertinent to note, particularly with respect to the second and third matters, that Charteris DCJ conducted a trial and had expressly reserved the right of the appellant to seek to have his orders varied, including the screening order. The ASIO witnesses were cross-examined and the appellant gave evidence. It was not suggested at the first trial that the appellant had suffered any prejudice as a result of the orders made. Nor was any application made to vary or rescind the orders in the course of the trial.

The Risk to Security

1. This ground of appeal is that his Honour erred by unreasonably accepting that there is a risk to national security. The appellant contended in his written submissions that the effect of the affidavit by the Acting Director-General was that the showing of facial features to the applicant could lead to the witnesses being identified, either by the applicant or by others assisted, whether deliberately or unwittingly, by the applicant.

1. The appellant contends that this assertion is "fanciful". He submitted that, unless a witness had some particular identifiable feature, a person could not, merely by observing facial features of the witness, efficiently describe that person to enable subsequent identification. The applicant also relied on the fact that the appellant is, by reason of his conviction on terrorism related offences, classified as a "AA" prisoner and that, accordingly, he has a particularly restrictive custodial regime. In these circumstances, the appellant contends, passing on information to assist in identifying witnesses is "effectively impossible".

1. I summarise below the evidence given by the Acting Director-General. I have read both the open and confidential affidavits. The latter provides additional information to support the opinions expressed in the open affidavit. The Acting Director-General addressed the full range of orders sought, of which only the screening order is in issue in this appeal.

1. With respect to the screening order, the Acting Director-General said in the open affidavit:

The order was "necessary to enable ASIO to effectively carry out its statutory functions".

The order was "necessary to protect against the likely harm to national security that may result should the orders not be made".

"Protecting the identity of ASIO witnesses ... is critical to ASIO's ability to effectively perform its functions. In particular

... protecting the identity of ASIO officers is a key part of ensuring the secrecy and confidentiality that is required to enable ASIO to perform its statutory functions. The disclosure of the identity of present or former ASIO personnel may:

... seriously compromise ongoing activities with which they are or were involved;

... lead to the identification and disclosure of past operational activities;

... warn targets that they were, or are, of security interest to ASIO; and

... reveal ASIO's operational methodologies."

"Acts and threats of violence have been directed over a long period of time against both current and former ASIO officers. Revealing the identity of current or former ASIO officers could place those persons, their families and their property in danger."

"ASIO has a relatively small pool of personnel with the necessary skills and experience ... Revealing the identity of these ASIO officers may greatly reduce their future capacity to perform this work, thereby adversely impacting ASIO's capacity to target and collect intelligence."

"Revealing the identity of ASIO officers in the public domain could result in those witnesses becoming targets for cultivation by persons ..."

The order is necessary ... "to prevent the defendant identifying any ASIO officers ... that the defendant may have seen in the course of any surveillance ... and ... to prevent persons ... from identifying any ASIO officers or former officers who are or may be involved in operational duties in the future".

"If the defendant were allowed to view the facial characteristics of the ASIO witnesses who are called to give evidence in the re-trial it would create an unacceptable risk to national security for the following reasons:

... Disclosing the visual identity of any such officers is very likely to refresh the defendant's memory as to the visual appearance of those officers, or alternatively, provide him with an opportunity to visualise the faces of persons whom he may never have seen before, or if he had, never have suspected that those persons worked for ASIO.

... If the defendant is given the opportunity to view the facial features of any ASIO officers, he may pass the information on, by way of description, to his associates or other persons ... Should the defendant's memory be refreshed ... it may

enable him to discover the scope of physical surveillance ... It may also allow him to inform other persons ... that ASIO surveillance was conducted on those individuals ... and

the physical characteristics of those ASIO officer(s) who may have been tasked to conduct surveillance at that time."

1. The Acting Director-General concluded that, for the reasons summarised above:

"If the faces of ASIO witnesses were to be revealed to either the defendant or [other] persons ... I consider this would adversely impact upon the ability of those officers, and other ASIO officers, to engage in operational duties in the future, and would pose a real and unacceptable risk to the personal safety of those current and former officers and their families. It would in turn harm ASIO's operational effectiveness."

1. In my opinion, his Honour was entitled to accept this evidence. The appellant's contention that his ability to memorise, and thereafter transmit to others, aspects of the visual characteristics of witnesses was "fanciful" should be rejected. The appellant would be able to see a witness for the entire period of his or her testimony. There would be ample opportunity to try to memorise the features of the witness.

1. Furthermore, by reason of the ideological commitment manifest in the other offences of which he has been convicted, the appellant may well have a motive to concentrate on the visual characteristics of an ASIO witness for the very purpose of describing them to others.

1. This ground of appeal should be rejected.

The Evidential Burden

1. This fourth ground of appeal is:

"His Honour erred in imposing too high an evidential burden on the Applicant by holding that it was incumbent upon the Applicant to adduce evidence that access to the physical identities of the witnesses was necessary for the conduct of his defence."

1. The ground is based on the following passage in the reasons of Charteris DCJ:

"Mr Wigney had also particularly drawn my attention to the absence of any evidence before me that it is actually necessary, in the conduct of the accused's case, for him to observe the facial features of any particular ASIO witness. There is no evidence, he submits, that this accused knew or had any personal contact with any of those officers. I agree with those submissions; at the time each of the officers was undertaking covert surveillance there is no evidence before me that the accused actually saw the face of any one of them. A number of them were in vehicles distanced from the accused during that surveillance. There does not appear to me to be any evidence of real interaction between the surveillance officer and the accused."

1. The appellant submits that, in the context of an impingement upon the fundamental common law right to confront an accuser, the imposition of an evidential burden upon the applicant is impermissible. The most that could be required, the appellant's written submissions contended, was an obligation on the accused to merely show that it is "on the cards" that such material would assist him. The "on the cards test" was derived from case law with respect to access to material to which a claim of public interest immunity has been made. ( R v Alexandroaia (1995) 81 A Crim R 286 at 289 was referred to.)

1. In my opinion, when read in its context, the reference to the absence of evidence in the passage relied upon by the appellant, was not intended to impose an evidential burden on the appellant. Rather, it was a finding appropriate to be made in the context of balancing the public interests involved between protecting the interests of national security, on the one hand, and giving effect to the right to a fair trial, specifically, the right of an accused to confront his accusers, on the other hand.

1. I note that in the open affidavit, the Acting Director-General of Security said:

"I am informed by officers from ASIO's Legal Division and believe that there is no evidence which points to the fact that the ASIO witnesses ever interacted personally with the defendant, that is, by communicating either directly or indirectly with him."

It appears that this was common ground before Charteris DCJ.

1. In these circumstances, his Honour's reference to the absence of evidence should not be understood as imposing even an evidentiary burden on the accused. It was a recitation of facts which were not in dispute and which were pertinent to the balancing exercise his Honour was conducting in that passage of his judgment. His Honour was simply taking into account a potentially countervailing consideration, by noting that no specific forensic disadvantage had been established.

The Disadvantage Issue

1. This ground is that his Honour erred in:

"Determining that the applicant was not in any way disadvantaged by being unable to see the faces of the particular witnesses."

1. The applicant's written submissions do not direct attention to any particular passage in his Honour's judgment to the effect of that asserted in this ground of appeal. It is probably a reference to the passage set out at [17] above, in which Charteris DCJ said:

"On the material that has been put before me, no actual forensic disadvantage to the accused by the screening from him of the vision of ASIO surveillance officer 'A', or indeed of any other ASIO surveillance officer, has been demonstrated."

1. This sentence appeared in that part of his Honour's reasons where his Honour was balancing the public interest in protecting national security against the public interest in a fair trial. His Honour's express reference to the right to a fair trial indicates that he was conscious of the fact that restrictions upon the conduct of the defence were entitled to weight. His Honour formed the judgment that the material before him did not indicate that an actual forensic disadvantage existed.

1. I accept that it is not possible for an accused to say in the abstract which anonymous witness he may have seen and, accordingly, is unable to provide instructions to counsel to prepare for cross-examination with respect to such matters as the witnesses ability to observe what s/he observed.

1. The principal submission made in this respect was that the ability to see a witness can be of considerable importance, because it may allow the appellant to recall events which were no longer fresh in his mind. In such respects counsel would, it was submitted, be handicapped in the conduct of cross-examining the witnesses in question. Mr Lange submitted that any interference with the right to cross-examine constituted such a forensic disadvantage.

1. In this respect, as in other contexts in which an accused is denied access to information - such as when a claim to legal professional privilege or public interest immunity are made - the accused is placed in a difficult position of necessarily engaging in speculation as to what use the material being denied can be put. Nevertheless, the propositions put to this Court as to the potential value of seeing the witness for the purposes of assisting the cross-examination being conducted by counsel are not, in my opinion, of a sufficiently high order.

1. The relevant issue in dispute, which Mr Lange identified, was whether the accused did "shoot at" the policemen or whether he fired off a warning shot. Only two of the ASIO witnesses could give evidence about the act of shooting. It is not clear to me why the appeal concerns the other ASIO witnesses, about whom no specific submissions were advanced.

1. Mr Lange emphasised that the accused was aware that he was under surveillance and, therefore, may be able to assist the cross-examiner by recalling where and when he had seen a witness. For example, he submitted that the accused could give instructions that a witness was not in the location where he asserted s/he was.

1. There were, it appears, four eyewitnesses: two police officers and two ASIO officers. Mr Lange submitted that the ability to cross-examine two of them was impeded by the inability of the accused to see their faces.

1. There are, I have no doubt, circumstances in which the degree of impingement upon effective cross-examination is of a high order. However, what is suggested here does not appear to me to be such.

1. The only identified effect of the accused seeing the faces of the two ASIO eyewitnesses was the possibility that the accused's memory may be triggered about their ability to observe what they say they observed. I am not satisfied that the degree of impingement of effective cross-examination in the present case is of significance.

1. I have referred above to the facts in Murphy and Davis. All but two of the ASIO witnesses in the present case are at the Murphy end of the spectrum. Two ASIO eyewitnesses can give significant evidence of the shooting, but it is corroborative rather than critical evidence. They are not at the Davis end of the spectrum.

1. The overriding principle is the right to a fair trial. What degree of impingement upon that right arises from a screening order will vary from case to case.

1. Furthermore, the prosecution, representing the community, is also entitled to a fair trial and, in that regard, can properly request steps for the protection of witnesses, including steps without which some witnesses would not be prepared to give evidence at all.

1. Although the Acting Director's evidence in this case did not state that ASIO witnesses would be withdrawn, that evidence leads to the inference that, absent a screening order, ASIO could well be reluctant to co-operate in future cases. Understandably, prosecutors may not be prepared to enforce such testimony. As I have pointed out at [28] above, the administration of justice is a continuous process and the existence of a power must be assessed in that context, not only with respect to the facts of a particular case.

1. It was open to his Honour to reach the conclusion that he did when balancing the conflicting interests involved.

Conclusion

1. The orders of the Court I propose are:

1 Leave to appeal granted.

2 Appeal dismissed.

1. ALLSOP P: I agree with the orders that the Chief Justice proposes.

1. The limit of the argument placed before this Court makes it unnecessary and inappropriate to explore the question of the relationship between national security and the administration of justice in the conduct of a criminal trial. It was accepted on behalf of the applicant that the protection of national security could be taken into account by the District Court in considering orders of this kind.

1. What was sought to be fashioned was a question of principle by reference to the strength of the common law right to confront one's accusers: R v Davis [2008] UKHL 36; [2008] 1 AC 1128 and the importance of cross-examination of witnesses in certain circumstances.

1. The crucial consideration here, in my opinion, is the legitimacy of the conclusion of the primary judge that there had been no disadvantage to the accused demonstrated. I agree with the Chief Justice that his Honour's expression of reasons should not be taken to throw an onus on the accused to negative prejudice.

1. On the basis of how the argument was presented, I agree with the Chief Justice about the ASIO witnesses who are not eyewitnesses. Mr Lange's arguments, as I understood them, were in particular directed to the eyewitness evidence of two ASIO officers said to corroborate the evidence of the police at whom the accused is said to have shot. These witnesses are said to have seen the act in question. They were undertaking surveillance of the accused. What Mr Lange put about the potential disadvantage was not far-fetched. The accused is charged with a serious crime. He is not to see the faces of witnesses who say they saw what the prosecution says he did. The primary judge concluded from the material before him and what was put to him that there was no forensic disadvantage. Like the Chief Justice, and for the reasons he gives, I am not able to conclude that that assessment was erroneous.

1. If it were to be seen as an erroneous conclusion and if the proper conclusion was that there was material disadvantage in the ability of counsel to cross-examine these two witnesses and, as a consequence, the fairness of the trial was materially reduced because of the weight given to the perceived need to prevent detriment to the security service of the state, basal questions of judicial power, and how it should be exercised, would arise. Davis makes pellucid the central importance of the fairness of the criminal trial and its procedures. Whilst their Lordships accepted Murphy as an exception to the general rule that an accused is entitled to be confronted by and know his or her accusers, there was no endorsement of any principle of wider application that would permit a compromise of the fairness of the trial: see Lord Bingham of Cornhill at [12] and [27]-[32], Lord Rodger at [44], Lord Carswell of Eaton-under-Haywood at [53] and [59]-[60], Lord Brown at [64]- [65] and Lord Mance at [73]-[74] and [97]-[98]. Davis also raises questions as to the scope of the judicial power to make orders (without statutory foundation) that have the effect of reducing the fairness of the trial. Murphy can be easily seen as a case in which there was not a scintilla of unfairness or injustice, notwithstanding the importance of the connecting evidence of the cameramen. The lack of error demonstrated in the conclusion of the primary judge as to disadvantage makes it unnecessary to explore these questions in the context of balancing the demands of national security.

1. HODGSON JA: I agree with the Chief Justice.

1. McCLELLAN CJ at CL: I agree with the Chief Justice.

1. JOHNSON J: I agree with the Chief Justice.

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Amendments

15 March 2011 - Typographical error - 'for' was omitted

Amended paragraphs: 21

Decision last updated: 15 March 2011