Cheikho v Regina

Case [2008] NSWCCA 191

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Cheikho v Regina [2008] NSWCCA 191

FILE NUMBER(S):
2007/2397003
2007/2395003
2007/2399003
2007/2400003
2007/2452004
2007/2454003
2007/2455003

HEARING DATE(S):
8 July 2008

JUDGMENT DATE:
13 August 2008

PARTIES:
Bradley Umar Sariff Baladjam (Applicants)
Khaled Cheikho
Mohamed Ali Elomar
Abdul Rakib Hasan
Mohammed Omar Jamal
Mirsad Mulahalilovic
Mazen Touma
Regina (Respondent)
Attorney-General of the Commonwealth (Intervening)

JUDGMENT OF:
Spigelman CJ Barr J Fullerton J   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2007/2397001
2007/2395001
2007/2399001
2007/2400001
2007/2452001
2007/2454001
2007/2455001

LOWER COURT JUDICIAL OFFICER:
Justice Whealy

LOWER COURT DATE OF DECISION:
27 May 2008

COUNSEL:
J T Gleeson SC, C C Waterstreet; P D Lange (Applicants)
W Abraham QC. C P O’Donnell (Respondent)
H Burmester QC, K M Richardson (Intervening)

SOLICITORS:
Legal Aid Commission of New South Wales (Applicants)
Commonwealth Director of Public Prosecutions (Respondent)
Australian Government Solicitor (Intervening)

CATCHWORDS:
CRIMINAL LAW – appeal and review – evidence – ruling on admissibility and effect of evidence – whether interlocutory judgment or order – right of appeal – Criminal Appeal Act 1912 NSW, s 5F
CRIMINAL LAW – accusatory system of criminal justice – prosecution duties – proof of elements of the offence – conclusive evidence certificate – connection to facts in issue – Telecommunications (Interception and Access) Act 1979 (Cth) s 18(2)
CONSTITUTIONAL LAW – conclusive evidence certificate – whether usurpation of separation of judicial powers – scope to challenge illegality of method of obtaining evidence –permissible modification of judicial process – Constitution Act ss 71, 77
CONSTITUTIONAL LAW – conclusive evidence certificate – whether usurpation of right to trial by jury – essential characteristics of a jury trial – scope to challenge chain of evidence – permissible modification of judicial process – Constitution Act s 80
EVIDENCE – facts excluded from proof – provisions as to conclusive evidence – Telecommunications (Interception and Access) Act 1979 (Cth) s 18(2)

LEGISLATION CITED:
Acts Interpretation Act 1901 (Cth)
Constitution Act
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Evidence Act 1995
Judiciary Act 1903 (Cth)
Telecommunications (Interception and Access) Act 1979 (Cth)

CATEGORY:
Separate Question

CASES CITED:
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Alister v The Queen (1984) 154 CLR 404
Attorney-General (Cth) v Tse Chu-Fai (1998) 193 CLR 128
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
B v Auckland District Law Society [2003] 2 AC 733
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Batterham v QSR Ltd [2006] HCA 23; (2006) 225 CLR 237
Brown v The Queen (1986) 160 CLR 171
Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278
Bunning v Cross (1978) 141 CLR 54
Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118
Carella v California 491 US 263 (1989)
Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121
Cheatle v The Queen (1993) 177 CLR 541
Cheeseman…

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Details
AGLC
Cheikho v Regina [2008] NSWCCA 191
Case
[2008] NSWCCA 191
Decision Date

CaseChat Overview and Summary

In the case of Cheikho v Regina, the applicants contested the admissibility and effect of evidence obtained through a conclusive evidence certificate under the Telecommunications (Interception and Access) Act 1979 (Cth). The case centred on whether the certificate's conclusive nature allowed the Crown to bypass proving certain elements of the offence and if it infringed on the separation of judicial powers and the right to a trial by jury. The applicants argued that the certificate prevented them from challenging the chain of evidence and the legality of the evidence-gathering method. The court needed to determine if the conclusive evidence certificate could be used to establish an overt act in a conspiracy offence and whether it violated constitutional protections.

The legal issues in the case included whether the conclusive evidence certificate could be used to establish an overt act in a conspiracy offence, whether the certificate's use infringed upon the separation of judicial powers, and whether it violated the right to a trial by jury. The applicants argued that the certificate's conclusive nature prevented them from requiring the Crown to prove the elements of the offence or challenging the chain of evidence. They further contended that the certificate's use represented a legislative usurpation of judicial power by removing the judge's role in determining the legality of conduct. Additionally, the applicants argued that the certificate infringed upon their right to a trial by jury by preventing them from doubting the existence of facts determined by the certificate.

The court examined whether the conclusive evidence certificate could be used to establish an overt act in a conspiracy offence. It found that the certificate, combined with proof of receipt of the relevant information by ASIO, could establish the act of downloading, which constituted the "act" within the meaning of "overt act". The court held that the Crown would still need to establish other aspects of the requirement found in section 11.5(2)(c) of the Commonwealth Criminal Code. Regarding the separation of powers, the court held that the conclusive evidence certificate did not impermissibly interfere with the separation of powers. It found that the certificate did not vest judicial power in an officer of a private company or in the representative of the executive branch of government, and it did not conclusively determine that a particular fact existed, preventing the tribunal of fact from doubting the existence of that fact. The court also held that the certificate did not infringe upon the right to a trial by jury, as it did not prevent the jury from determining facts or require the judge to determine whether to withhold evidence on the ground of illegality.

The court's reasoning and outcome demonstrate that the conclusive evidence certificate could be used to establish an overt act in a conspiracy offence, provided that the Crown still established other aspects of the requirement. The court held that the certificate did not infringe upon the separation of powers or the right to a trial by jury. The applicants' contentions that the certificate prevented them from requiring the Crown to prove the elements of the offence or challenging the chain of evidence were rejected. The court found that the certificate's use did not represent a legislative usurpation of judicial power, and it did not prevent the jury from determining facts or require the judge to determine whether to withhold evidence on the ground of illegality.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The US authorities are of limited assistance. The Chain of Evidence Issue The applicants contend that the conclusive nature of the certificate prevents each applicant from putting the Crown to proof of what they describe as a “critical fact”. The Crown must establish that there was in fact access to the website and an actual downloading of material and that this occurred via a computer linked to one of the applicants. As I have indicated above, the Crown proposes to rely on the act of downloading and the content of the material downloaded in three different ways: as a circumstantial fact to establish the alleged conspiracy, as a fact from which it can be inferred that the accused Cheikho had the requisite intention and, perhaps most significantly, as an overt act committed by the accused Cheikho pursuant to the alleged conspiracy. It appears to me that the reliance on the conduct as an overt act is the use which most closely approximates proof of an “ultimate fact”. If that is constitutionally permissible, I cannot see that either of the other respects would differ. For ease of analysis it is appropriate to consider reliance on the certificate as a step in proving an overt act. I have set out at par [4] above the provision of the Commonwealth Criminal Code that constitutes the occurrence of an overt act as an element of the offence of conspiracy. Section 11.5(2)(b) expresses that element in terms of a person who is a party to the agreement ‘committing an overt act’. The focus of this element of the offence is not upon an act occurring, it is upon the person who carried out the act. Nothing in the certificate, indeed in any possible certificate, could contain an assertion of fact that identifies the person who downloaded the information. Nor could any such certificate assert that the relevant act was undertaken “pursuant to the agreement”. Indeed, that linkage is implicit in the use of the word “overt” to identify an act. Nevertheless, the information available from Optus employees is a significant step in establishing that a download occurred and that it was linked to the use of a particular telecommunications service. Reliance upon the fact of a download is an element of the offence in the sense that the download constitutes the “act” within the meaning of “overt act”. Other aspects of the requirement found in s 11.5(2)(c) will have to be established by the Crown in the course of its overall circumstantial case. The “act” of downloading will be established by the combined effect of the conclusive certificate and proof of receipt of the relevant information by ASIO. The proposition upon which the applicants rely in this respect was variously stated. For present purposes it is, in my opinion, a sufficient characterisation of their case that they will be placed in a position where they are unable to require the Crown to prove its case or to challenge, in any way, the first step in what is, in substance, a series of interrelated steps. There is an analogy with chain of custody of physical evidence, the tender of which is an essential part of the Crown case. That is to say, the act of downloading is of comparable evidentiary significance to a physical object which is to be tendered in the Crown case, for example, in order to prove that a piece of the accused’s clothing contained blood which other evidence, based on DNA sampling, establishes was that of the victim.

Decision

Reasons for decision

SPIGELMAN CJ BARR J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ BARR J

The issue before this Court is to identify, and perhaps to define, whether, and if so to what extent, it is an essential characteristic of trial by jury that the jury determine facts and/or that the judge must determine whether to withhold evidence on the ground of illegality. In Cheung supra, the High Court determined that it was not an essential characteristic of a jury trial that facts relevant to sentence must be found by the jury. There is no authority directly in point on the issues now before the Court.Separation of Powers The applicants submit that s 18(2) of the TIA impermissibly interferes with the separation of powers established by Chapter III of the Constitution. They rely on that aspect of this doctrine which is often characterised as the legislative usurpation of judicial power. The applicants rely on two alternative contentions. First, they contend that s 18(2) constitutes a legislative usurpation of the judicial power by vesting such power in an officer of a private company, ie the senior executive of Optus authorised to sign the certificate, and/or in the representative of the executive branch of government, relevantly, the Director of Public Prosecutions, who is proposing to tender and rely upon the certificate. The section is said to be an impermissible usurpation by reason of the fact that it removes from the judge the function of determining whether conduct has occurred which Parliament has made illegal. I will refer to this as the illegality issue. The second, and alternative, basis upon which it is submitted that there is an impermissible usurpation of judicial power is that a s 18 certificate conclusively determines that a particular fact exists, thereby preventing that tribunal of fact from doubting the existence of that fact or receiving evidence or submissions leading to the existence of such a doubt. The applicants’ reliance upon the separation of powers doctrine does not, it appears, turn in any relevant respect on the identity of the tribunal of fact. The fact that it is a jury, rather than a judge, which is to determine the facts is clearly at the heart of the s 80 case. The Chapter III case propounded by the applicants is not, in my opinion, so confined. Nevertheless, there may be particular characteristics of a criminal trial which are constitutionally protected from intrusion, even though the parallel characteristics of a civil trial are not so protected. There have been a variety of judicial formulations as to the test to be applied for a legislative usurpation of, or interference with the judicial power, which are in general terms equivalent and include:Requiring a court “to depart to a significant degree from the methods and standards which have characterised judicial activities”. (Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 at [111], [600] and [651])Legislation that “constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it”. (The Queen v Humby; ex parte Rooney (1973) 129 CLR 231 at 250)A law which requires or authorises a court to “exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power”. (Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27)