Cheikho v Regina - [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 v Waters (1997) 77 FCR 221
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159
Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commonwealth v Northern Land Council (1993) 176 CLR 604
Dalton v NSW Crime Commission [2006] HCA 17; (2006) 227 CLR 490
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Fittock v The Queen [2003] HCA 19; (2003) 217 CLR 508
Grollo v Palmer (1995) 184 CLR 348
Harris v Caladine (1991) 172 CLR 84
Hilton v Wells (1985) 157 CLR 57
HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
John Fairfax Publications v Doe (Jockey Tapes case) (1995) 37 NSWLR 81
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Kingswell v The Queen (1985) 159 CLR 264
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lodhi v R [2007] NSWCCA 360
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Ng v The Queen [2003] HCA 20; (2003) 217 CLR 521
Nicholas v The Queen (1998) 193 CLR 173
Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
Polyukhovich v Commonwealth (1991) 172 CLR 501
R v Bozatsis (1997) 97 A Crim R 296
R v Derby Magistrates’ Court; ex parte B [1996] AC 487
R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126
R v RAG [2006] NSWCCA 343
R v Steffan (1993) 30 NSWLR 633
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Trade Practices Tribunal; Ex parte Tasmanian Brewery Pty Ltd (1970) 123 CLR 361
Ridgeway v The Queen (1995) 184 CLR 19
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
The Queen v Humby; ex parte Rooney (1973) 129 CLR 231
The Trust Co of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77
Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
United States v Klein 80 US 128 (1871)
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
Walsh v Tattersall (1996) 188 CLR 77
Waterford v The Commonwealth (1987) 163 CLR 54
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

TEXTS CITED:

DECISION:
1 Time to lodge an application for leave to appeal extended up to and including the date on which the application was filed in matters 2007/2397; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2455.
2 Leave to appeal refused in each case.

JUDGMENT:

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

2007/2397
2007/2395
2007/2399
2007/2400
2007/2452
2007/2454
2007/2455
SPIGELMAN CJ
BARR J
FULLERTON J
Wednesday 13 August 2008

Khaled Cheikho & Ors v Regina
FACTS
The applicants face charges of conspiracy to commit acts in preparation for a terrorist act or acts under the Criminal Code Act 1995 (Cth). One element of the offence is the commission of at least one overt act in pursuance of the conspiracy. The Crown seeks to prove as an overt act that one of the accused downloaded certain documents on the telecommunications service linked to the applicant Cheikho.
The manner of proof of these documents is in issue. The Crown seeks to tender a certificate, issued by the telecommunications carrier Optus, pursuant to s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). The certificate outlines what acts Optus employees performed in order to enable listening and recording at ASIO of the telecommunications service, pursuant to and during the period of a valid warrant. This certificate has the effect of being conclusive evidence of the facts stated in the certificate both on the issue of admissibility and before the jury.
The certificate replaces an earlier certificate which contained assertions of fact that were arguably inconsistent which could give rise to an issue of illegality pertaining to admissibility.
The applicants challenged s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) as being contrary to ss 71, 77 and 80 of the Constitution, and on the basis that it is not possible to challenge the legality of the interception on the basis that the certificate conclusively establishes a step in the chain of evidence to prove an overt act. The trial judge determined that the section was constitutionally valid. The applicants seek leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912.
HELD
Jurisdiction
(Spigelman CJ, Barr and Fullerton JJ agreeing)
1Rulings on the admissibility of evidence in advance of a trial do not constitute a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912. [22] [191] [192]

R v Steffan (1993) 30 NSWLR 633 ; R v Bozatsis (1997) 97 A Crim R 296; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 cited.

2The ruling of the trial judge is not only a step in making a ruling on evidence. The constitutional issue, and the effect of s 78B and s 78A of the Judiciary Act 1903 (Cth) transformed the nature of the matter into a ruling on the effect of the evidence in terms of its conclusiveness. [23] [25]-[27] [28] [31] [191] [192]

Cheeseman v Waters (1997) 77 FCR 221; Peacock v Human Rights andEqual Opportunity Commission [2005] FCAFC 45; United States Tobacco Cov Minister for Consumer Affairs (1988) 20 FCR 520 referred to.

Illegality issue
(Spigelman CJ, Barr and Fullerton JJ agreeing)
Separation of powers
3On the “preliminary” finding of fact by Whealy J there was no illegality. [85] [86] [191] [192]
4The act must be read as a whole. A statutory regime which determines what constitutes illegal conduct and restricts the ability to establish such illegality, does not interfere with the separation of powers. The Court must give full effect to the entire statutory regime which is an issue of statutory interpretation, not constitutional validity. [108] [111] [115] [191] [192]

5The degree of modification of the judicial process by s 15X of the Crimes Act 1914 (Cth), which was upheld in Nicholas v The Queen, is directly analogous to s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). [96] [109] [110] [191] [192]

Nicholas v The Queen (1998) 193 CLR 173 applied.

Trial by jury
6Only the ‘essential characteristics’ of a trial by jury are protected by s 80 of the Constitution where proceedings have been commenced by indictment. [62] [191] [192]

Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278; Ng v The Queen [2003] HCA 20; (2003) 217 CLR 521; Cheatle v The Queen (1993) 177 CLR 541; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 cited.

7The identification of the circumstances in which a judge is able to reject evidence on the ground of illegality is capable of being modified by statute, relevantly a statute that creates the illegality. This does not impinge on any of the essential characteristics of a trial by jury or of the exercise of judicial power. [114] [191] [192]

Chain of evidence issue
(Spigelman CJ, Barr and Fullerton JJ agreeing)
8Facts that constitute elements of the offence are essential matters which the prosecution must establish. However, this may not be an exhaustive statement of constitutionally impermissible interference with fact finding in a criminal trial. [116] [154] [168] [191] [192]

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 324; Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159; R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 referred to.

Nicholas v The Queen (1998) 193 CLR 173; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; Cheatle v The Queen (1993) 177 CLR 541; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1; Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; R v Trade Practices Tribunal; Ex parte Tasmanian Brewery Pty Ltd (1970) 123 CLR 361 considered.

9It is not one of the predominant or essential characteristics of a criminal trial in an accusatory system that there be no restriction on the proof of facts or the ability to challenge facts in the Crown case. [153] [160] [191] [192]

10The Australian system of criminal justice is accusatorial. [156] [191] [192]

Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 23 NSWLR 118; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Walsh v Tattersall (1996) 188 CLR 77; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; TKJW v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125; HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 referred to.

11Legal professional privilege and public interest immunity are established methods of restricting evidence based on balancing of competing public interests. They are compatible with the predominant characteristics of the exercise of judicial power and with the essential characteristics of trial by jury. [161] [191] [192]

Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 considered.

R v Derby Magistrates’ Court; ex parte B [1996] AC 487; B v Auckland District Law Society [2003] AC 733; Waterford v The Commonwealth (1987) 163 CLR 54; Commonwealth v Northern Land Council (1993) 176 CLR 604; Alister v The Queen (1984) 154 CLR 404 referred to.

12In the present case, the Parliament has balanced competing public interests. It is not alien to the criminal justice system for the Parliament to identify one public interest and adopt a conclusive certificate regime to protect it. It is not offensive to the predominant or essential characteristics of the exercise of federal judicial power. [106]-[107] [165]-[167] [191] [192]

Granting leave
(Spigelman CJ, Barr and Fullerton JJ agreeing)
13Leave to appeal should be refused. The facts asserted in the certificate are too far removed from the facts in issue. [186] [189] [191] [192]

14With respect to the chain of evidence issue, the fact that errors have occurred in interceptions on other occasions is entitled to minimal weight. The absence of a suggestion that there was any error in the identification of the computer or the content of the download should be given significant weight in the exercise of the discretion to grant leave. [171] [174] [191] [192]

15In the case of the illegality issue, the constitutional point is entitled to minimal weight. The chain of evidence issue the constitutional point is entitled to greater but not significant weight. [173] [191] [192]

16The fact that the Crown agreed to a significant range of matters to which the certificate could not conclusively certify will bind the Crown during the conduct of the trial. This is an important factor in determining leave to appeal. [179]-[180] [191] [192]

17If there arises any reason to doubt the content of the certificate or the illegality of the processes described in it, the trial judge has options to reconsider the matter during the course of the trial, such as s 137 of the Evidence Act. [175]-[177] [191] [192]

Orders
(Spigelman CJ, Barr and Fullerton JJ agreeing)
1Time to lodge an application for leave to appeal extended up to and including the date on which the application was filed in matters 2007/2397; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2455.

2 Leave to appeal refused in each case.

[190] [191] [192]

IN THE COURT OF

CRIMINAL APPEAL

2007/2397
2007/2395
2007/2399
2007/2400
2007/2452
2007/2454
2007/2455
SPIGELMAN CJ
BARR J
FULLERTON J
13 August 2008

Khaled Cheikho & Ors v Regina

Judgment

SPIGELMAN CJ: The applicants seek leave to appeal, pursuant to s 5F of the Criminal Appeal Act 1912, from a judgment of Whealy J of 27 May 2008. The applicant, Khaled Cheikho, has filed his application in time. The other applicants require an extension of time. The issue is the same in each case. Time should be extended.
Each of the applicants face charges under the Criminal Code Act 1995 (Cth) (“the Commonwealth Criminal Code”), alleging participation in a conspiracy to commit acts in preparation for a terrorist act or acts, as defined in the Commonwealth Criminal Code.
The relevant provisions of the Commonwealth Criminal Code and a summary of the Crown case are set out by Whealy J. I proceed as if pars [4]-[20] of his Honour’s judgment were set out herein.
For present purposes it is pertinent to emphasise that one of the elements of a charge of conspiracy under s 11.5 of the Code is that:
“11.5(2)(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.”
The Certificates
The issue now before the Court was raised on the voir dire being conducted by his Honour in the course of determining a range of pre-trial issues in the proceedings.
This application turns on s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) “the TIA”. Pursuant to the provisions of that Act, warrants may be issued for the interception of telecommunications.
Section 18 of the TIA makes provision for evidentiary certificates which are of conclusive effect:
“18         Evidentiary certificates
(1)          The Managing Director or secretary of a carrier may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed.
(2)          A document purporting to be a certificate issued under subsection (1) and purporting to be signed by the Managing Director or secretary of a carrier is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, conclusive evidence of the matters stated in the document.”
The application before Whealy J sought the following orders:
“2. A declaration that section 18(2) Telecommunications (Interception) Act 1979 is unconstitutional either as violating the separation of powers embodied in Chapter III of the Constitution, or as violating the right to a jury trial guaranteed by section 80 of the Constitution.
3.            Consequently, an order excluding the evidence purportedly given by Paul O’Brien in respect of telecommunications service [email protected], dated:
(a)          31 August 2005;
(b)          6 September 2004;
(c)          3 March 2005; and
(d)          3 June 2004
as being irrelevant or otherwise as hearsay.”
The certificate tendered before Whealy J and proposed to be tendered at trial, is as follows:
“1.          A true redacted copy of a warrant issued on 3 June 2004 by the Attorney-General, authorising the interception of telecommunication services, is annexed and marked with the letter ‘A’ (‘the warrant’).
2.            Optus was informed of the issuing of the warrant on 3 June 2004.
3.            A certified copy of the warrant was received by an employee of Optus on 3 August 2004.
4.            Between the period commencing on 3 June 2004 and ending on 7 September 2004, Optus employees did acts and things of a professional and technical nature that were necessary to enable the listening to and recording at the Australian Security Intelligence Organisation (ASIO) of the communications conducted using telecommunication service (02) 97073250 as they passed through the Optus network within one or two seconds of the communication being sent from the computer terminal.
5.            Each communication passing over the telecommunication service specified in the warrant was transmitted directly to ASIO, without at any time being recorded or listened to by any Optus employee.
6.            The equipment used by employees of Optus to facilitate the interception of communications enabled the recording by ASIO of the following information in relation to each communication:
- the time and date of the communication;
- the direction of the communication ; and
- the content of the communication.”
The certificate before the Court replaced an earlier certificate that had been cancelled. The original certificate said, relevantly:
“4.          Between the period commencing on 3 June 2004 and ending on 7 September 2004, Optus employees did acts and things of a professional and technical nature that were necessary to intercept in real time the telecommunications service specified in the warrant which is annexed and marked with the letter A. Each communication was conducted using telecommunication service 0297073250 and was intercepted as it passed through the Optus network within one or two seconds of the communication being sent from the computer terminal.
5.            The equipment used by employees to intercept each communication recorded the following information in relation to each communication:
the time and date of the communication;
the direction of the communication; and
the content of the communication.
6.            The information which was recorded from the intercepted communications in relation to the warrant issues on (date) as set out in paragraph 5 was periodically supplied in a process established by Optus employees to employees of the Australian Security Intelligence Organisation.”

The final certificate is in a distinctively different form in a number of respects. Four matters are of particular relevance. First, the contrast between original paragraph 4, which stated that Optus employees performed acts “necessary to intercept” the service and the final paragraph 4, which stated that the acts done were those “necessary to enable the listening to and recording at ASIO”. Secondly, there is a similar contrast between the reference to “recorded” in the original paragraph 6 and the addition of the words “enabled the recording by ASIO” in the final paragraph 5. Thirdly, the contrast between paragraph 5 of the final certificate and paragraph 6 of the original certificate in that the final certificate refers to the communication being “transmitted directly to ASIO” whereas the original certificate referred to the communications being “periodically supplied to ASIO”. Fourthly, the final paragraph 5 asserts, for the first time, that the communications were not recorded or listened to by an Optus employee.
In his Judgment Whealy J identified the effect of the new certificate as follows:
“[30] The February 2007 certificate has since been ‘revoked’ by Mr O’Brien and the new certificate has issued. The complaint made by Khaled Cheikho is that, arguably at least, the facts conclusively proved in the new certificate are substantially at variance with, or indeed contradictory of, the facts stated in the earlier certificate. The accused is, however, confronted by the provisions of s 18(2) which make the facts stated in the certificate to be tendered conclusive evidence of the matters stated therein.”
Issues on the Appeal
If leave is granted, the applicants intend to appeal on two grounds, alleging that the conclusive evidence provision in s 18(2) of the TIA violates ss 71, 77 and/or 80 of the Constitution of the Commonwealth, by:
“(i) Preventing or limiting enquiry into the legality of the interception conducted pursuant to the Act
(ii) Depriving the jury of the capacity to doubt the transmission of communications purportedly intercepted, pursuant to the Act for purposes, inter alia, of determining the existence of an overt act, relied upon by the Crown in it’s case statement.”
It is convenient to refer to these alternative bases for constitutional invalidity as the illegality issue and the chain of evidence issue.
The first basis, if upheld, could lead to the exclusion of the certificate from evidence, subject to the formulation of a statutory judgement or the exercise of a discretion.
The second basis, if upheld, would lead to the exclusion of the certificate from evidence or, if s 18(2) could be read down pursuant to s 15A of the Act Interpretation Act 1901, to reduce its effect from conclusive to prima facie evidence.
Detailed submissions have been made on behalf of the applicants on the issue of the constitutional validity of s 18(2) of the TIA. The Crown submits that the decision of Whealy J is not a “judgment or order” within s 5F. Alternatively, the Crown objects to leave to appeal being granted. The Attorney General of the Commonwealth has intervened on the constitutional issue if leave to appeal is granted. The factual basis of this application focused on the case of the accused, Khaled Cheikho. It was not suggested that the case of any other applicant differs in a material respect.
During the course of submissions attention focused on the particular content of the certificates here in question. It is pertinent to note that neither before Whealy J, nor in this Court, was there any attack on the certificate as going beyond the statute and being therefore invalid. There were references in submissions to the effect that, perhaps, certain statements were not authorised by s 18(2). That is not a matter before this Court.
If the certificate does not answer the statutory description then the appropriate relief is not a declaration of constitutional invalidity. The phrase found in s 18(2), with respect to a document “purporting to be a certificate”, may not prove to be as protective as it appears at first sight. (See Batterham v QSR Ltd [2006] HCA 23; (2006) 225 CLR 237 at [26].)
For purposes of determining the constitutional validity of a conclusive evidence certificate it is necessary to focus on the terminology of the legislation which the appellants contend is constitutionally invalid, rather than upon the terms of the particular certificate.
The content of the certificate and its effect on the particular proceedings may have implications for constitutional issues raised. Furthermore, the content and effect will be of particular significance in determining whether leave to appeal should be granted.
The Court’s Jurisdiction
Section 5F of the Criminal Appeal Act 1912, confers jurisdiction on this Court to hear and determine applications for leave to appeal from “an interlocutory judgment or order.” There is a well established line of authority that rulings on evidence in advance of trial do not constitute a judgment or order within the meaning of the section. (See R v Steffan (1993) 30 NSWLR 633 at 636A-C, 639B-640B; R v Bozatsis (1997) 97 A Crim R 296 at 302, 304; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [10], [17].)
The issues agitated before Whealy J and in this Court are related to both the admissibility and the effect of evidence. The issue of illegality raised in these proceedings is clearly related to admissibility. However, the constitutional challenge goes beyond admissibility to encompass the effect of the evidence in terms of its conclusiveness.
The orders sought by the applicants before Whealy J, set out at par [8] above, were first a declaration that s 18(2) of the TIA was unconstitutional and secondly, an order excluding the certificate from evidence. As expressed, the order was consequential upon the declaration.
Matters of this character must be determined as a question of substance and not of form. The fact that the appellants sought a declaration in terms is not conclusive. However, the fact that the declaration raised a constitutional question is of significance. Such a step has consequences which, in my opinion, transform the nature of the application from merely a ruling on evidence.
First, by force of s 78B of the Judiciary Act 1903 (Cth), where a matter arising under the Constitution or involving its interpretation has arisen, the Court is obliged not to proceed unless notice has been given to the Attorneys General of the Commonwealth and of the States and s 78B(2) confers certain procedural powers on the Court.
Furthermore, by force of s 78A(1) of the Judiciary Act, the Attorney General of the Commonwealth, or of a State, is empowered to intervene in proceedings when such an issue has been raised. Where such intervention occurs the Attorney is taken to be a party to the proceedings for purposes of the institution and prosecution of an appeal by s 78A(3). (Cheeseman v Waters (1997) 77 FCR 221 at 226-227; Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [75]; and United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.)
The intervention of additional parties alters the nature of the lis so that it is no longer inter partes. These statutory provisions change the nature of the dispute from a ruling on the admissibility of evidence, even if the issue to be determined is, so far as the direct parties are concerned, only a stepping stone in an argument concerning the admissibility of evidence.
I am reinforced in this view by the fact that it is not necessarily the case, if constitutional invalidity is identified, that this will lead to the second order sought, ie the exclusion of the evidence. One of the options available to the Court, when a constitutional issue is raised, is to read down the provision.
In the present case, a possible, perhaps probable, outcome of the Court upholding any of the constitutional submissions of the applicants would be to read down s 18(2) of the TIA by eliminating the word “conclusive”. The certificate would still be admissible in evidence, but its effect would be no more than to shift a burden of an evidentiary or of a persuasive kind (it is unnecessary to determine which) to the defence.
Section 15A of the Acts Interpretation Act 1901 (Cth) requires the Court to construe Commonwealth legislation, where that is possible, so that it remains a valid enactment to the extent to which it is not in excess of the legislative power of the Commonwealth. Assuming, without needing to decide, that such a reading down was appropriate in the present case, the option highlights the fact that the constitutional argument raised in the present proceedings constitutes a distinct lis. It is not appropriate to characterise it only as a step in making a ruling on evidence.
The decision of Whealy J was a judicial act that determined an identifiable and separate part of the proceedings, namely the constitutional validity of s 18(2) of the TIA. (See Steffan supra at 636A; R v RAG [2006] NSWCCA 343 at [15].) In my opinion, there is a “judgment or order” within s 5F.
I will deal further below with the issue of whether this Court should grant leave. An important consideration in determining that issue is to identify precisely how the tender of the certificate may impinge on the course of the trial. The issue of leave will also be affected by which, if any, of the applicants’ constitutional arguments is upheld.
The Reasons of Whealy J
Whealy J referred to the constitutional case law on both separation of powers and trial by jury. He adopted terminology from that case law and applied it to the two fields in a broadly similar way.
His Honour stated the test he applied with respect to the separation of powers argument was as follows:
“[66] … the predominant characteristic of a criminal trial, for present purposes, is that it is for the tribunal of fact to determine ultimate facts (that is the elements of the offence) …”
His Honour adopted the concept of “predominant characteristic” from Nicholas v The Queen (1998) 193 CLR 173 at 232 [145] and the reference to “ultimate facts” from Nicholas at 236 [156], 238 [162] and 278 [252].
With respect to the s 80 issue, his Honour adopted the following test:
“[94] … the jury should decide each of the elements of the crime with which the accused is charged …”
In the course of rejecting the applicants’ submissions on the s 80 issue his Honour said:
“[95] … The s 18 certificate procedure provides only that certain formal and technical facts are conclusively proved. They are not ultimate facts for the reasons I have analysed in relation to the first principal argument. The legislation does not take away from the jury its role of determining all or any of the ultimate issues of fact. In accordance with the established authorities, the ‘essential’ features, the fundamental features, of a trial by jury are unaffected by the legislation.”
In the course of rejecting the applicants’ submissions on the separation of powers issue his Honour made the following observation:
“[68] The legislation is, it will be seen, very limited in its scope. It enables the Managing Director of a carrier to certify facts ‘he or she thinks relevant with respect to acts or things done by, or in relation to employees…to enable a warrant to be executed.’ The actions of the employees of a telecommunication carrier in enabling the execution of a warrant are completely at a remove from the elements of the offence the prosecution will need to prove beyond reasonable doubt in relation to the charge against Khaled Cheikho.
[69] The purpose of the legislation was, as is commonly accepted by both counsel, to protect the identity of the carrier’s employees engaged in enabling the execution of warrants by police and other agencies. It was designed to save those employees from having to give evidence in Court. It was intended to provide for a certificate going to formal matters of technical evidence only, and not to any issue before the Court (see Explanatory Memorandum and Second Reading Speech – Hansard, House of Representatives 9 May 1995 page 1980).”
Whealy J characterised the certificate and added:
“[71] I am unable to see that any of the facts certified conclusively prove any of the ‘ultimate facts’, that is, the elements of the offence charged against Khaled Cheikho. Indeed, they have nothing to say as to those elements.”
His Honour characterised the Crown case:
“[74] It needs to be remembered that we are dealing here with circumstantial evidence of a particular kind. In this case, the Crown relies upon a substantial body of circumstantial evidence from which it will ask the jury to infer that it has proved the elements of the offence beyond reasonable doubt. No circumstance in the present trial will prove guilt of itself. Indeed, many of the facts are of an apparently inconsequential kind. It is only when they are assembled with all the evidence in the Crown case that the prosecution asserts a mosaic of guilt is revealed.”
He added:
“[75] … In any event, it needs to be borne in mind that the Crown allegation here is that the accused downloaded material from the Internet on to his computer. This is simply one fact among a multitude of facts. It does not, as I say, suggest guilt of itself. Nor could proof of that fact in the present trial be evidence establishing an element of the offence.
[76] When one turns to analyse the certified facts here, it will be apparent that they are not circumstantial facts, in any event, going to proof of the elements of the offence. True it is a telephone service is named and the subscriber of that service is named in the warrant. The facts certified, however, are essentially the ‘description’ of the acts of the employees of the carrier enabling the warrant to be executed. Those facts say nothing about the accused either directly or indirectly. They say nothing about his actions and nothing about whether he downloaded any material from the Internet. It does not appear the service is in his name. In addition, the facts certified are not facts going to proof of guilt but, rather, facts that relate only to the gathering of evidence, that is, a technical question as to what a carrier did in order to allow the execution of a warrant by ASIO. They are precursors to the task of interception. On the other hand, the material intercepted may properly be described as part of the Crown circumstantial case. The technical means to be used to enable ASIO to make the intercept, by way of contrast, are not.”
His Honour identified a range of matters which the accused could put in issue with respect to the interception and concluded:
“[81] … [T]he certificate would not preclude any valid argument challenging the relevance of the intercepts. Nor would it preclude any valid argument as to the weight, if any, to be given to the intercepts in the overall evaluation of the Crown’s circumstantial case. All that is rendered conclusively proved by the certificate are the acts of the Optus employees certified by Mr O’Brien. Those acts, as I have explained, are not themselves, strictly speaking, part of the circumstantial case. It is true, I accept, that the accused would be precluded from arguing that the intercepts were not transmitted to ASIO. But the issue surrounding that fact is not a circumstantial fact, and it is very far removed from being an ‘ultimate fact’ in the sense of being an element of the offence.”
Finally, his Honour concluded:
“[82] … If the legislation does not distort the predominant characteristic of a trial and does not impinge upon the Prosecutor’s duty and obligation to prove the “ultimate facts” against the accused, it cannot be said that the accused is in any relevant sense disadvantaged in, or precluded from, meeting the case against him.”
With respect to the Crown’s reliance on the act of downloading as an overt act, his Honour said:
“[88] … [T]he Crown has placed reliance on over 130 overt acts. Nonetheless, the downloading of extremist material (by all the accused) is said by the Crown to be one overt act. Does this result in a situation where the legislation is conclusive evidence of a fact or facts which are elements of the offence? The answer must, once again, be in the negative. As I have explained, a conclusive certificate under s 18 relates to only act by employees of a relevant carrier. The certificate does not include facts in relation to acts or things done by any other person, including any acts or things done by the accused. The certified facts, in a constitutional sense, leave untouched the elements of the crime for which the accused is to be tried.”
Submissions on the Appeal
The applicants’ submissions identified what was called a “critical fact” in the Crown case, namely proof that the accused Cheikho or another party to the conspiracy accessed and downloaded documents on a telecommunications service linked to one of the accused. This fact is relevant to the Crown’s case in three respects:
(i)           As a fact from which, with other facts, it can be inferred that one of the accused was party to the alleged conspiracy;
(ii)          As a fact from which it can be inferred that that accused had the requisite intention that an offence, namely preparation for a terrorist act, would be committed by some person; and
(iii)         As the doing by one of the accused of an overt act pursuant to the alleged conspiracy.
The relevant overt act particularised is:
“On 8 July 2004, three documents in Arabic were downloaded from a website on a computer located at Khaled Cheikho’s home, as follows:
a)            a 1 page document showing Osama Bin Laden and containing links to military lessons, Jihad websites, Jihad chat rooms, scholars of Jihad and news;
b)           a 1 page document containing ‘a few advices’ inciting Muslims to engage in Jihad; and
c)            a 12 page Arabic document containing instructions on the various types of explosives (including the speed, force, ferocity and sensitivity of explosives) and how to construct a detonator and manufacture improvised explosives from commonly available products.”
The applicants’ submissions focused upon the significance for the Crown case of establishing that the documents were, as a matter of fact, downloaded by a computer connected to one of the applicants.
First, the applicants submit that the certificate tendered before his Honour on the voir dire prevents them from raising an issue of illegality which may lead to the exclusion of the evidence. Pursuant to the provisions of the TIA an employee of the relevant telecommunications corporation is prohibited from recording or listening to the conversation intercepted. Such conduct, if established, would raise an issue of illegality under the TIA itself with respect to the admissibility of the communications into evidence.
Secondly, the applicants submit that the conclusiveness of the certificate will be used by the Crown as proof that the contents of the documents received at ASIO following the transmission by Optus employees, were downloaded as alleged. The applicants submit that they will not be able to challenge whether there was a download at all, nor put the Crown to proof of a step in the chain of evidence necessary for the tender of the intercepted material.
The applicants submit that the Crown cannot prove by means of direct evidence that any downloading of relevant documents occurred. It is not suggested, for example, that the Crown could establish that the downloaded material could be located on any relevant computer. Important aspects of the act of downloading will be established by means of the conclusive certificate.
With respect to the issue of illegality, the applicants rely on s 63(1)(b) which provides that intercepted communications shall not be given in evidence “subject to this part”. This prohibition extends to all legal proceedings. It is relevant to note that this section prohibits, under criminal sanction, the tender of intercepted information, whether lawfully obtained or not. There is no general discretion. However, that Part of the Act creates a regime for admissibility.

Pursuant to s 74, “lawfully obtained information” may be given in evidence in “exempt proceedings”, of which the present proceedings are an example. Furthermore, where there has been an interception that has contravened the statute, such as the prohibition upon an Optus employee recording or listening to a conversation, the interception may be admitted into evidence pursuant to s 75 of the TIA, if the Court is satisfied that there was an “irregularity” that was not a “substantial defect or irregularity” and which should “in all the circumstances … be disregarded”.
The conclusiveness of the certificate tendered on the voir dire is such that Whealy J will not consider the issues which could arise under s 75. I will refer to the relevant statutory provisions further when dealing with the illegality issue below.
With respect to the chain of evidence issue, the applicants submit that the Crown has to prove what happened at Optus, as well as what happened at ASIO. The first step is, they submit impermissibly, conclusively determined by the certificate. They place particular emphasis on the proposition that the “critical fact” they have identified is a particularised overt act and, accordingly, constitutes an element of the offence.
Mr H Burmester QC, who appeared for the Attorney, submitted that the certificate does not intrude into the area of determination of critical or even of significant facts. Matters which relate only to the gathering of evidence, he submitted, are not of that character.
The submissions of the Attorney, adopted by the Crown, turn on what the Attorney submits is the limited scope of a permissible certificate under s 18(2), characterising that scope by the use of such words as “formal” and “technical”. The Attorney submits that evidence about how certain material was received by ASIO, based on what employees of a telecommunications carrier did to enable the interception, does not impinge upon the content of the material intercepted or determine in any way an issue that goes to elements of the offence charged. Such a certified fact, which cannot be controverted, is not the type of fact that can prejudice the discharge of the judicial power or the ability of the jury to find facts necessary for the determination of criminal guilt.
The Attorney submitted that, although the certificate conclusively establishes that a particular service was intercepted and communications were transmitted to ASIO, there are important restrictions on the scope of the certificate. I will set out the detail of this submission below.
Trial By Jury
Section 80 of the Constitution relevantly states:
“[80] The trial on indictment of any offence against any law of the Commonwealth shall be by jury …”
The words “trial by jury” must be understood as a “constitutional expression” (Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278 at 284 [7], 291 [33]); as are the words “Supreme Court” in s 73 (Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 141); the writs identified in s 75(v) (Dalton v NSW Crime Commission [2006] HCA 17; (2006) 227 CLR 490 at 505 [34]); and “court of a state” in s 77(iii) (The Trust Co of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77 at [44]).
The case law on s 80 has primarily focussed on the word “indictment” (Kingswell v The Queen (1985) 159 CLR 264; Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248) or the word “jury” (Brown v The Queen (1986) 160 CLR 171; Cheatle v The Queen (1993) 177 CLR 541; Brownlee supra; Fittock v The Queen [2003] HCA 19; (2003) 217 CLR 508; Ng v The Queen [2003] HCA 20; (2003) 217 CLR 521). The focus of the issues that arise in the present case is on the words “trial … by”. One of the few cases which was directly concerned with this terminology in s 80 is Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.
The fundamental test is that only the “essential characteristics” of trial by jury are protected by s 80 of the Constitution where proceedings have been commenced by indictment. (See Ng supra [9]; Brownlee supra [67], [17], [21]-[22], [33] [34], [54], [58], [71]; Cheatle supra at pp 557-558.)
A reference to “essential features” of a jury trial, as an authoritative statement of the constitutional guarantee contained in s 80, was first stated by O’Connor J in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375. This formulation was first authoritatively applied to s 80 in the joint judgment of the High Court in Cheatle supra at 549 and 560.
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)
With respect to a criminal trial, Nicholas identifies a more specific test with respect to legislation that modifies the law of evidence and procedure, including:
“Interference with the governance of the trial and distortion of its predominant characteristics”. (Nicholas supra at 232 [145])
Legislation that deems to exist or to have been proved “any ultimate fact being an element of the offence”. (Nicholas at 236 [156], 238 [162])
“So radical and so pointed in their application … that they could be seen, in substance, to deal with ultimate issues of guilt or innocence”. (Nicholas supra at 278 [252])
These were the formulations to which particular emphasis was given in submissions in these proceedings.
The Illegality Issue
The Crown submits that no issue of illegality has arisen on the facts of the present case.
With respect to this issue the applicants assert that two inferences were available on the basis of the original certificate set out at [10] above. The first inference is that there was a recording by employees of Optus. This inference is, in my opinion, open.
The second inference for which the applicants contend is that there was a separate and later communication by Optus employees of the information they had recorded to employees of ASIO. In my opinion, this inference is not open or, at least, no more than faintly arguable.
The critical terminology is that found in par 6 of the original certificate as set out in par [10] above which states, to repeat: “The information which was recorded … was periodically supplied in a process established by Optus employees to employees of the Australian Security Intelligence Organisation”. The import of this statement turns on the word “process”. It is not apparent that the process involved any act on the part of Optus employees. Nor does the word “recorded” indicate that what was “supplied” was the Optus illegal ‘recording’, if any, as distinct from passing on the same information as was ‘recorded’. It was the “information” that was said to have been “supplied” not the “record”, if any.
This analysis confirms the proposition that the communication of the information to ASIO by this “process” was as described in the terminology of par 5 of the final certificate namely that the communication was “transmitted directly to ASIO”.
No doubt for this reason Whealy J concluded, in what he described as a “preliminary reaction” as follows:
“[97] … I accept that the first certificate is rather opaque. I suspect that there may have been a certain wariness on the part of the certifier to be overtly specific about the way intercepts are transmitted to ASIO … I do not, however, read the earlier certificate as negating the fact that the interceptions went directly through the carrier to the agency. Read in that way, the second certificate is not contradictory of the first at all.”
As I have indicated, there is an arguable case, on the basis of the first certificate, that Optus employees listened to and recorded the intercepted communication. If that occurred it would be a contravention of s 7(1)(a) of the TIA on the basis that those employees intercepted a communication in circumstances where they were not authorised to do so by a warrant. The relevant warrant authorised only ASIO officers to conduct the interception.
If this did in fact occur then the recording of the interception by the Optus employees would not have the character of “lawfully intercepted information” as defined in s 6E(1) of the TIA, which provides:
“6E(1) … A reference in this Act of lawfully intercepted information is a reference to information obtained … by intercepting, otherwise than in contravention to subsection 7(1), a communication passing over a telecommunications system.”
In the submissions made by the applicants in this respect emphasis was placed upon s 63(1)(a). The section provides:
“63(1)     Subject to this Part, a person shall not, after the commencement of this Part:
(a)          communicate to another person, make use of, or make a record of; or
(b)          give in evidence to a proceeding
lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).”
One of the provisions in the Part, to which s 63(1) is made subject, is s 74 which states:
“74(1) A person may give lawfully obtained information (other than foreign intelligence information) in evidence in an exempt proceeding.”
The applicants’ submission is that, as the ASIO employees received the information recorded by Optus, that information retained its character in the hands of the ASIO employees, and subsequently the Crown, as being information obtained in contravention of s 7(1). Accordingly, s 63(1)(b) operated to prevent that information being given in evidence in the proceedings.
I observe that with respect to this step in the applicants’ submissions it does not matter whether the information is “lawfully obtained” or obtained in contravention of s 7(1). Section 63(b) applies to all intercepted information. The relevant issue is posed by s 74 which creates an exception for “lawfully obtained information” in an exempt proceeding, such as the present proceeding.
Accordingly, the crucial question on the issue of illegality is whether or not the information received by ASIO was “lawfully obtained information”, as defined in s 6E(1), within s 74(1).
If, as Whealy J found, on a preliminary basis, the transmission of the information to ASIO was automatic, so that the listening and recording by Optus employees was not the source of the information to ASIO, then that interception did have the quality of “lawfully obtained information”.
Pursuant to the warrant ASIO employees were authorised to conduct an intercept. If, as Whealy J found by way of a “preliminary reaction”, the technical means of interception occurred in such a manner as not to require any step by Optus employees between the technical interception and the communication to ASIO employees, then there is no contravention of s 7(1) in that respect. The fact, if it be a fact, that there was a contravention by reason of the recording and/or listening to the interception by Optus employees, as may be suggested on the original certificate, does not affect the transmission to ASIO. Nor does it result in the characterisation of that transmission as something other than “lawfully obtained information”.
Nevertheless, as his Honour made the relevant finding only on a preliminary basis, it is appropriate for this Court to consider the applicants’ submissions on the alternative basis that it is at least arguable that what Optus employees recorded was what was transmitted to ASIO. On this assumption s 63(1)(a) would be engaged and the information would not be “lawfully obtained information” within s 6E(1).
Section 18(2) of the TIA repeats, in substance, s 25A of the TIA introduced by amendment in 1985. That section made provision for the same kind of certificate which, similarly, would constitute “conclusive evidence” of matters stated in it.
In Hilton v Wells (1985) 157 CLR 57 the High Court determined, by majority, that the existing legislative scheme did not prohibit the admission into evidence of information obtained by an illegal interception. The general discretion, subsequently reflected in s 138 of the Evidence Act 1995 could be invoked but there was no further restraint. (Section 137 of that Act made further provision.)
In 1987, the TIA was amended to overcome the effects of Hilton v Wells. (See Grollo v Palmer (1995) 184 CLR 348 at 385-386; John Fairfax Publications v Doe (Jockey Tapes case) (1995) 37 NSWLR 81 at 85, 88.) Part VII of the TIA, which includes ss 63, 74, 75 and 76, constitutes a detailed and restrictive scheme in relation to admissibility of evidence obtained by the interception of telecommunications. The interaction of this scheme with s 137 and s 138 of the Evidence Act was not the subject of submissions on this appeal.
Former s 25A was re-enacted as part of that scheme in the new s 61. In 1993, s 18 was inserted in lieu of the 1987 version of s 61. Accordingly, the conclusive nature of a certificate has been a feature of the legislative scheme since 1985.
There may be a tension between the stringency of the regime created by Pt VII of the Act with respect to the admissibility of information obtained by illegal interception, on the one hand, and the practical impossibility of establishing such illegality in respects which are expressly and permissibly addressed in a certificate which has conclusive effect. This tension raises questions of statutory interpretation. It does not raise, in my opinion, a constitutional issue as to the limits of the powers of the Commonwealth Parliament which arise by reason of the separation of powers under Chapter III of the Constitution or by reason of the provision for trial by jury in s 80.
In this regard I can see no relevant distinction between s 18(2) of the TIA and s 15X of the Crimes Act 1914 (Cth) considered by the High Court in Nicholas supra. Section 15X operated with retrospective effect to restrict the application of the common law discretion to refuse to admit illegally obtained evidence. That discretion had been reaffirmed in Ridgeway v The Queen (1995) 184 CLR 19 with respect to a prosecution under s 233B of the Customs Act 1901 (Cth). Nicholas also involved a prosecution under that section.
Section 15X was enacted as part of a legislative scheme in response to the decision in Ridgeway. Some sections of the amending legislation decriminalised the involvement of a law enforcement officer in controlled operations for the delivery of drugs to drug dealers. Section 15X applied to controlled operations which had occurred before the commencement of the Act. It stated, relevantly:
“In determining … whether evidence that narcotic goods were imported… should be admitted, the fact that a law enforcement officer committed an offence … is to be disregarded…”
I have had occasion to consider Nicholas in Lodhi v R [2007] NSWCCA 360 and reiterate my observations at pars [60]-[61]:
“[60] Section 15X did not abolish the relevant discretion. It removed an element, albeit a particularly pertinent, indeed critical, element, from the process of exercising the discretion.
[61] Four of the majority judgments in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the Court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151], [161]-[162], [235]-[236], [238].)”
The certificate in issue in the present case, has a similar effect to that identified. It does not abolish the relevant power to exclude evidence. However, on the argument propounded by the applicants, and assuming the validity of par 5 of the final certificate, the conclusive nature of such a statement in the certificate will, in substance, mean, paraphrasing s 15X, “the fact that an Optus employee committed an offence … is to be disregarded”.
I attach particular significance to the fact that four judges of the majority in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151], [161], [162], [235]-[236], [238].)
Section 18(2) of the TIA is also a change to the law of evidence which directly impinges on both the common law principle with respect to the admissibility of evidence in a criminal prosecution and a stringent statutory regime. This is not a relevant difference for purposes of separation of powers or trial by jury analysis.
The legislative scheme for dealing with illegally obtained evidence found in the TIA, like the common law principle, involves the balancing of conflicting interests. This has always been recognised as the consideration at the heart of the discretion to exclude illegally obtained evidence. As the joint judgment of Stephen and Aicken JJ, frequently referred to, in Bunning v Cross (1978) 141 CLR 54 at 74, put it what is involved is:
“ … the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval or even encouragement, being given to the unlawful conduct of those whose task it is to influence the law.”

See also the analysis of the case law by Brennan CJ in Nicholas supra at [32]-[35].
Each of the four majority judgments in Nicholas emphasised that the discretion upon which s 15X impinged, involved the balancing of conflicting public policy considerations. Their Honours accepted that the alteration of the way the balance should be struck in that case did not constitute an impermissible usurpation of the judicial power (See at 35-36, 55, 159-160, 164-234.)
As Gummow J noted at 160:
“The legislature has now … struck a different balance between these competing interests.”
And as Hayne J said at 238:
“In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the court, by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.”
Furthermore, as Brennan CJ put it at [38]:
“In striking a balance between the factors relevant to the Ridgeway discretion, subject to the conditions prescribed by the Div 3 of Pt 1AB, the Parliament expresses where the balance of public interests lies. The declaration of the balance of public interest devolves on the court when the Parliament is silent, but once the Parliament has spoken, it is the voice of the Parliament that declares where the balance of the public interest lies.”
Similarly in the present case, s 18(2) involves a conflict of public interests of the same kind identified by the High Court in Nicholas and which was found not to involve any usurpation of the judicial power.
As I have indicated above, the origin of s 18(2) was in s 25A of the TIA, which, when it was introduced, was the subject of the following explanation by the then Attorney General:
“Initially, material obtained by interception was used for criminal intelligence purposes. However, as it is admissible as evidence in criminal proceedings, there are cases where it is appropriate and necessary to put the material into evidence. Strict proof of actions taken by Telecom employees would require those employees to give evidence in court. Telecom management had been advised that employees are unwilling to give such evidence because public identification of their involvement in narcotics interception would cause fear for their own safety, that of their families and that of their fellow workers.
Telecommunications interception is of great assistance to the Australian Federal Police in the prevention and detection of drug offences. It would be contrary to the public interest for the lawful interception of telecommunications to be reduced or prejudiced. In this Bill, the Government proposes that evidence of acts performed by Telecom employees to enable the execution of an interception warrant to be given by a certificate signed by the Managing Director of Telecom. Such a certificate would be conclusive proof of the matters contained therein. The matters which will be contained in the certificate are formal matters of evidence only and do not go to any issue before the court.
The Government recognises that there is an objection to a prosecutor seeking to establish, by certificate or averment, an element of the prosecution case going to the conduct of the accused. However, proof that a warrant was executed strictly in compliance with its terms is a purely formal matter.” (Hansard, House of Representatives, 9 May 1985, p 1980.)
Section 18(2) involves a balancing of public interests, by weighing the public interest to ensure that employees of telecommunications corporations act in support of the process of law enforcement, on the one hand, against the public interest in the exclusion of unlawfully obtained evidence. The latter public interest is expressly recognised by the legislative scheme adopted in the TIA.
In my opinion, the fact that s 18(2) appears in the same legislation that creates the scheme restricting admissibility makes the conclusion even clearer than was the case in Nicholas. Where the challenged provision appears in the same legislative scheme then the principle of statutory interpretation that the act must be read as a whole and effect given to all parts of it, is such that it cannot be said that the rights or expectations created by the legislative scheme with respect to the exclusion of illegally obtained intercept evidence has constitutional protection.
The degree of modification of (I do not use the word interference with) the judicial process constituted by the limitation enacted in s 15X of the Crimes Act 1914 (Cth), which was upheld in Nicholas, is directly analogous, in my opinion, to s 18(2) of the TIA. With respect to controlled operations that occurred prior to the enactment of s 15X, that section provided, as noted, that the illegality “is to be disregarded”.
In the regime which the TIA creates for the admissibility of evidence obtained by interception, both lawful and unlawful, s 18(2) has a similar consequence by ensuring that the conclusive nature of the certificate prevents the Court, as a practical matter, from determining the contrary in the case of factual matters properly within the statutory power to certify. In this regard, it is pertinent to note that the power extends only to “acts or things done … to enable a warrant to be executed”. This is a significant restraint, the bounds of which were not explored before Whealy J or in this Court.
The Court must give full effect to the entire statutory regime created by the TIA, both with respect to the significant restrictions on the ability to tender the product of unlawful interceptions and on the practical difficulty that a s 18(2) certificate places in the way of agitating the issue. This raises issues of statutory interpretation, not constitutional validity.
The applicants further contend that s 18(2) impermissibly interferes with the concept of trial by jury by removing from the judge his or her role in determining what evidence is properly receivable by the jury.
O’Connor J referred, in a frequently cited passage from Huddart Parker v Moorehead, supra at 375, to the proposition that one of the essential features of a trial by jury is that such trial occur “under the guidance of a judge”. I will set out the passage below.
Aspects of the role of the judge in a jury trial may constitute, in some respects, one of the essential characteristics of such a trial. Nevertheless identification of the circumstances in which a judge is able to reject evidence on the ground of illegality is a matter which by its very nature is capable of modification by statute. It is, relevantly, a statute that creates the illegality. Modifying that effect does not impinge on one of the essential characteristics of trial by jury or upon one of the predominant characteristics of the exercise of judicial power.
The judgments in Nicholas do, in my opinion, establish that the creation of a statutory regime which determines what constitutes relevant illegality and which restricts the ability to establish such illegality, does not interfere with the separation of powers. By parity of reasoning, such a regime does not impinge upon any essential characteristic of the constitutional conception of trial by jury. In each case the effect of the statute is to expand, not to restrict, the range of relevant facts before the tribunal of fact. In this critical respect there is a difference between the illegality issue and the chain of evidence issue.
The Centrality of Fact Finding
The Attorney’s submission, adopted by the Crown, conceded that Commonwealth legislation could not establish a conclusive certification regime for, to use the terminology in Nicholas at 236 [156], 238 [162], “any ultimate fact being an element of the offence”. However, there is a doubt in my mind whether the passages from the reasoning in High Court judgment that refer to proof of elements of the offence were intended to be exhaustive. If not, there is no guidance as to where the line is to be drawn for either separation of powers analysis or constitutional trial by jury analysis.
In the context of s 80, O’Connor J said in Huddart Parker v Moorehead supra at 375:
“What are the essential features of a trial by jury? … It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process.” [Emphasis added]
This passage was cited with approval, in the joint judgment of Gleeson CJ and McHugh J in Brownlee supra [16], where their Honours went on to say at [17] that this was not an exhaustive statement of essential characteristics of trial by jury.
Furthermore, the joint judgment in Cheatle also referred to this passage and said at 549:
“That statement correctly draws attention to the representative character of a jury and to the fact-finding function which a jury traditionally served in civil litigation and in criminal committal and trial processes. It does not, however, attempt to address the more particular question of what, if any, are the minimum requirements which must be observed to ensure that a jury in a criminal trial is adequately representative of the community.” [Emphasis added]
I add that the passage also does not “attempt to address” the minimum requirements as to fact finding on the part of the jury which constitute the constitutional conception of trial by jury.
It is not the case that O’Connor J’s reference to “ascertain … the truth in questions of fact arising” encompasses every fact to be adduced in evidence in a criminal trial. As Isaacs J stated with respect to s 80 in Huddart Parker v Moorehead at 386:
“The whole meaning in essence of the requirement is that a jury, and not a judicial officer, shall pronounce upon the guilt or innocence of the accused.”
This proposition is consistent with the proposition that the concept of “trial by jury” directs attention to the elements of an offence, rather than to each relevant fact.
This also appears to be the approach of Gleeson CJ, Gummow and Hayne JJ in Cheung supra, when their Honours said:
“[4] When an accused person is tried upon indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment, and by the plea…” [Emphasis added]
In the context of that case, ie the determination of facts relevant to the degree of culpability for purposes of sentencing, their Honours went on to say:
“[7] It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury’s verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. … Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness or any particular evidence. These are familiar aspects as what is sometimes described as the inscrutability of a jury verdict.” [Emphasis added]
Their Honours also referred at [53] to the similar observation that their Honours had made in Cheng v The Queen(2000) 203 CLR 248 that:
“[T]he constitutional command in s 80 is directed to jury trial and issues joined between prosecution and accused.” [Emphasis added]
In Cheng, supra, their Honours had referred at [41] to the effect of a plea of guilty as constituting “a formal admission of the elements of the offence”.
I note that Kirby J, who has long taken a more expansive view of the constitutional guarantee in s 80 of the Constitution, has also identified the trial by jury as a mode of trial in which:
“[T]he jury decided by its verdict whether or not the prosecutor has proved the accused guilty of the offence charged.”
(Cheung supra at [130])
It may be that his Honour was not intending to confine this observation to the elements of an offence.
Similar issues have been addressed in the separation of powers case law:
“Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case”. (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56]) [Emphasis added]
“[T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined”. (R v Trade Practices Tribunal; Ex parte Tasmanian Brewery Pty Ltd (1970) 123 CLR 361 at 374 [emphasis added], a passage frequently referred to as authority, including in Harris v Caladine (1991) 172 CLR 84 at 150; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 532, 703-4; and Bass supra at 359 n 110)
“Consistency with the essential character of a court … necessitates [that] … facts [be] determined in accordance with rules and procedures which truly permit the facts to be ascertained”. (Nicholas supra at 208-209, referred to as authority in Bass supra at 359 n 110) [Emphasis added]
“[20] … A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, or applying law or exercising an available discretion.” [Emphasis added] (Nicholas at 188 [20])
“[21] Section 15X does not impede or otherwise affect the findings of facts by a jury. Indeed, it removes the barrier which Ridgeway placed against tendering to the jury evidence of an illegal importation that narcotic goods where such importation had in fact occurred. Far from being inconsistent with the nature of the judicial power to adjudicate and punish criminal guilt, s 15X facilitates the admission of evidence of material facts in aid of correct fact finding.” [Emphasis added] (Nicholas at 188 [21])
The applicants relied on a number of United States authorities which determined that conclusive evidence legislation was constitutionally invalid. Many of the cases turned on due process reasoning, in whole or in part. Australian Chapter III jurisprudence has not recognised a due process requirement. (See Thomas v Mowbray supra at [111], [600] and [651].) There are United States authorities which deploy separation of powers reasoning either alone or together with the due process reasoning. Chapter III jurisprudence has been usefully informed by Article III jurisprudence from the United States but Australian separation of powers doctrine is not the same as that of the United States. The reasoning in the United States authorities may prove to be persuasive, whilst recognising that what may be regarded as the “predominant characteristics” of the exercise of judicial power in the United States, a matter which may vary from State to State in that nation, may not be the same as the identification of such characteristics in Australia.
The applicants drew the Court’s attention to the analysis of statutory conclusive evidence provisions in the 3^rd edition of Wigmore on Evidence in which a distinction is clearly drawn between a provision which is in substance a rule of substantive law and one which is a rule of conclusive evidence. In this, the last edition produced by Wigmore himself, the learned author stated by way of contrast:
“On the one hand, so far as a so-called rule of conclusive evidence is not a rule of evidence at all, but a rule of substantive law, it is clear that the legislature is not infringing upon the prerogative of the judiciary to determine the truth of a fact in issue.” (p 714)
However:
“It is one thing for the judiciary, while exercising in its own way its constitutional powers, to choose to accept the aid of an official certificate in reaching its determination; but it is quite a different thing for the judiciary to be forbidden altogether to exercise its power in a certain class of cases. The judicial function under the Constitution is to apply the law in controverted cases; to apply the law necessarily involves the determination of the facts; to determine the facts necessarily involves the investigation of evidence as a basis for that determination. To forbid investigation is to forbid the exercise of an indestructible judicial function.” (p 715-716)
The learned author went on to say:
“ … That a legislature’s attempt to interfere with a judiciary’s powers by forbidding investigation of facts, though declaring certain testimony or other evidential data to be conclusive, is invalid.
The genuine instances of this sort, indeed, are rare; most statutes purporting to do this are really attempts to change the substantive law under the guise of a rule of evidence, and therefore may or may not be valid, according to their interpretation … In the present class, however, would be long statutes which, while plainly recognising one fact as still dominant in the substantive law, and not desiring to change it, should make another fact conclusive proof of it.” (p 720)
Much of the analysis in this part of Wigmore is concerned with what is called in Australia proof of constitutional facts, with respect to which the legislature could not enact any conclusive evidence provision. The position is the same in Australia. (See eg Nicholas supra at 236 [155]; Attorney-General (Cth) v Tse Chu-Fai (1998) 193 CLR 128 at 149 [54].) No such issue arises in the present case.
Considered as a whole the analysis in Wigmore may, however, be more consistent with a focus on the elements of an offence rather than on facts relevant to a fact in issue, encompassed by the chain of evidence argument in the present proceedings. In accordance with Wigmore’s analysis it may be that legislation which impinges upon facts not being “ultimate facts” or “elements of an offence” will usually be characterised as an alteration to the “substantive law”.
Of the two United States Supreme Court authorities upon which the applicants rely in this respect one was primarily concerned with separation of legislative and executive power, although reference was made to the judicial power, (United States v Klein 80 US 128 (1871)) and the other was concerned with due process and trial by jury, rather than separation of powers (Carella v California 491 US 263 (1989)). Nevertheless, the references in Carella to the fact finding function being assigned solely to the jury has some resonance for Australian s 80 jurisprudence although the Australian test requires the identification of an “essential characteristic”.
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.
The applicants submit that the chain of “custody” of the downloaded information is of such character. It is not enough, they submit, to seek to tender only the evidence of what ASIO recorded. It is necessary, before that evidence is admitted, to establish how ASIO came to record it, perhaps most significantly, to establish that the download occurred by use of a particular computer.
On this approach, perhaps the most pertinent fact asserted in the certificate in issue in the present case is the identification in par [4] of the telecommunication service that was intercepted. There are, no doubt, other matters that will be proved on a chain of “custody” basis. However, the identification of the service, which is linked to one of the accused, is of such significance that analysis can concentrate on that assertion of fact.
The submissions by the Attorney, adopted by the Crown, rely on the references to “predominant characteristics”, “element of the offence” and “ultimate facts” in the authorities to which I have referred at [70] above. He submits that a conclusive evidence provision is constitutionally permissible as long as the fact is not an element of the offence.
The Crown submits that the overt act constituted by the downloading of the information on the particular occasion the subject of the certificate is not an element of the offence. This is based on the proposition that the Crown only has to prove one overt act in order to make out the charge. It has provided particulars of 134 distinct overt acts.
In my opinion, this issue is not to be determined in terms of numbers. The Crown relies on each overt act as particularised. A conclusive certificate which stated, in terms, that a particularised overt act occurred would constitute proof of an element of the offence. On the Attorney’s submission this would not be permissible.
In substance, the issue before this Court is whether a fact which must be established in order to prove the occurrence of an overt act can permissibly be the subject of a conclusive evidence statutory provision. Such a fact is appropriately characterised as a fact relevant to a fact in issue. However, the word ‘relevant’ covers a wide spectrum of closeness of connection. Questions of fact and degree are necessarily involved.
In my opinion, the applicant’s case involves the consideration of the scope of the accusatorial system of criminal justice which operates in Australia. So far as I am aware this characterisation of our system of criminal justice was introduced into contemporary jurisprudence by Chief Justice Gleeson in Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 when his Honour referred at 127F to: “our accusatorial system of criminal justice, which obliges the Crown to make out a case before an accused must answer”.
On appeal to the High Court his Honour’s characterisation was quoted with approval by Mason CJ and Toohey J (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 500) and their Honours, and McHugh J in a separate judgment, both adopted that characterisation for the purpose of analysing the privilege against self-incrimination. (See at 501, 503, 504, 508 and 546.)
This characterisation has subsequently been frequently referred to in High Court jurisprudence: in the context of the principle of duplicity (Walsh v Tattersall (1996) 188 CLR 77 at 94); to explain the right to silence and determine that the rule in Jones v Dunkel did not apply to a criminal trial (RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [22]; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at [34], [38], [64]; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [9], [60]); to explain the inapplicability of the rule in Browne v Dunn (1893) 6 R 67 (HL) to a criminal trial (MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at 340 [41]); to explain the approach a Court of Criminal Appeal should adopt when applying the proviso (Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [43]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [109]); to determine whether or not the conduct of counsel caused a miscarriage of justice at the trial (Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [25]); to identify the duties and responsibilities of the prosecution (Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [71]-[72]); to explain the obligation to disclose the Crown case to an accused (Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [67]); and the obligation to provide particulars (HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 at [9], [57]).
It cannot, however, be said that it is one of the predominant characteristics, or an essential characteristic, of a criminal trial in an accusatory system that every single fact which is relevant to the discharge by the prosecution of its onus to prove the case against an accused beyond reasonable doubt must be regarded as of equal significance. I repeat, questions of fact and degree arise.
Clearly where a fact constitutes an element of an offence the concept of the accusatory system has a clear application. As Hayne J said in Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234:
“[73] A criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. If an accused person pleads ‘not guilty’, the accused puts the prosecution to proof, beyond reasonable doubt, of every element of the offence or offences charged.” [Emphasis added]
In Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159 the High Court was concerned with s 144 of the Excise Act 1901 (Cth) which permitted averments in an information or complaint to constitute prima facie evidence of the matters of fact averred. Kirby J noted at [50] the tension between an averment of an “essential part of the offence” and the accusatory system. In that case, there was no challenge to the constitutional validity of s 144, but Kirby J’s reasoning suggests that any attempt to make such an averment conclusive evidence would not be compatible with the Constitution. (See esp at [69]-[70].) This was, however, a dissenting opinion. Furthermore, the issue was not argued in the Court and was not dealt with in the majority joint judgment.
There are other statements, by Justice Kirby in which his Honour emphasised that elements of the offence are essential matters which the prosecution had to establish in an accusatory system. For example in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 his Honour said:
“[162] … The accusatorial form of criminal prosecution, observed in Australia, requires the prosecution to establish the criminal accusations made by it against an accused and to make good the precise offence charged in the indictment.”
In any event, as I have indicated above, the Attorney and the Crown concede that a conclusive evidence certificate directed to an element of the offence would not be permissible. Nevertheless, I am not at present satisfied that the only constitutional protection of the fact finding function in an accusatory system, particularly in a trial required to be by jury, should be limited to “ultimate issues” or “elements of the offence”. Facts may be so closely connected with such matters as not to be distinguishable from them.
The concept of an accusatory system is not equivalent to the concept of an adversary system. It has a different and, in some respects, a broader scope. An accusatory system encompasses procedural and, especially, evidentiary requirements which go beyond the adversarial process. The accusatorial system of the common law tradition is distinguished from the inquisitorial system of the civil law tradition by reason of the development of a formal, separate law of evidence in which facts which would pass the test of relevance are not admissible into evidence. Although many of these rules find their origins in the jury system, the rules are not, or are no longer, so confined.
The existence of a separate law of evidence, constituting a distinct body of exclusionary rules, is one of the most fundamental differences between the common law tradition and the civil law tradition. The distinction between an accusatorial system and an inquisitorial system was once described, as accurately as shorthand labels can do so, as the distinction between “procedural truth” and “fact”. (See G L Certona “The Accusatory System v. The Inquisitorial System: Procedural Truth v Fact?” (1982) 56 Australian Law Journal 288.)
It is, in my opinion, not an essential or predominant characteristic of an accusatorial system of criminal justice that there be no restriction on the proof of facts or the ability to challenge facts in the Crown case. No doubt most of the restrictions in the law of evidence operate in favour of an accused. This is a manifestation of the fundamental principle that every accused must receive a fair trial. However, some forms of restriction on the admissibility of evidence will operate in favour of the prosecution.
There are two significant examples of legal restriction upon the admissibility of evidence, which are well established in the criminal law, and which indicate that restrictions on the ability of an accused to adduce evidence or to contest evidence in the prosecution case are compatible with the predominant characteristics of the exercise of judicial power and with the essential characteristics of trial by jury. I refer to the doctrine of legal professional privilege and to the doctrine of public interest immunity. Each of these well established common law principles carries with it the possibility of restricting access to information which would enable the accused to contest facts adduced in the Crown case.
In Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 the High Court was concerned with the effect of a claim on legal professional privilege upon criminal proceedings. The issue in that case was stated expressly (see eg at 125) in terms of whether a document subject to legal professional privilege can be compelled to be produced on a subpoena issued on behalf of an accused person in criminal proceedings, when those documents could establish the innocence of the accused or materially assist his defence. The High Court, by majority, held that there was no such exception to a claim for legal professional privilege.
The reasoning of the Court recognised that there was a conflict between two public interests of which one was the interest in the fair trial. However, the law with respect to the legal professional privilege had struck the balance rather than leaving it to the courts to undertake a balancing of the conflict of public interests. (See eg at 128, 134-135, 161-162.) The history of the law with respect to claims of legal professional privilege was of great significance in the conclusion reached that no balancing exercise was permissible because the balance had already been struck, by well established, longstanding precedent. (See also R v Derby Magistrates’ Court; ex parte B [1996] AC 487 esp at 507-508, 509; B v Auckland District Law Society [2003] 2 AC 733 esp at [37]–[51])
The position with respect to public interest immunity is different because a balancing exercise is undertaken by the Courts. (See eg Waterford v The Commonwealth (1987) 163 CLR 54 at 64-45.) A liberal approach to public interest immunity is adopted in a criminal case. (See eg Commonwealth v Northern Land Council (1993) 176 CLR 604 at 633; Alister v The Queen (1984) 154 CLR 404 esp at 413-416, 431, 455-457.) Nevertheless, the public interest may require that the interests of an accused in a criminal trial are made subject to the public interest in non-disclosure.
In a sense, the issue before the Court in this case turns on a balancing exercise that has been conducted by the Parliament. Parliament has identified a particular public interest that requires protection, namely the willingness of persons employed by a telecommunications company to assist the law enforcement process by taking technical steps required to enable law enforcement agencies or security agencies to intercept communications. I have set out at par [106] above the extract from the Second Reading Speech which identifies the relevant public interest.
This public interest falls to be assessed in a context in which Parliament has established a regime for the admissibility of information obtained by intercepts in criminal proceedings, in cases of both lawfully intercepted information and of unlawfully intercepted information. As part of that regime the Parliament has adopted a provision for a conclusive certificate.
The principle of legal professional privilege in its application to criminal proceedings and the potential impingement upon criminal proceedings of the doctrine of public interest immunity, indicates that the kind of provision the Parliament has made in s 18(2) is not so alien to the criminal justice system as to render the section offensive to one of the predominant or essential characteristics of the exercise of federal judicial power.
Matters of fact and degree are, as I have indicated, necessarily involved unless the Court accepts that there is no constitutional restraint on any fact short of an element of the offence. In my opinion, in an accusatory system, the essential characteristics of trial by jury or the predominant characteristics of the exercise of judicial power with respect to fact finding, cannot be so narrowly confined.
Whether the constitutional restraint is breached depends on the circumstances of the particular case. In the context of the present application, this raises the issue of whether leave to appeal should be granted.
Should Leave be Granted?
Unlike the illegality issue, with respect to the chain of evidence issue there is nothing of any character before the Court which suggests that there is any reason to doubt that any of the facts recorded in the certificate, let alone the material recorded by ASIO, was in any sense inaccurate or even doubtful. Nevertheless, the applicants submitted in this Court that “the possibility that the interception did not occur in the manner suggested by the certificate in the present case is not fanciful”. The applicants sought to place before the Court evidence that, in the relevant year, ASIO had on other occasions caused wrong telecommunications services to be intercepted and, indeed, on occasion had acted without authorisation under the TIA.
The fact that errors have occurred on other occasions is, in my opinion, entitled to minimal, if any, weight. There is nothing before the Court to suggest that the material in this case as recorded by ASIO is anything other than an accurate record of what was downloaded by the computer that can be linked to one of the accused. I refer in particular to the identification of the telecommunications service intercepted.
It is generally inappropriate for this Court to seek to micromanage a long and complex criminal trial by intervening in the pre-trial process. The applicants submit that the Court should not permit a trial to proceed to the detriment of the accused in a manner which may not be permitted by the Constitution. They place particular emphasis on the fact that the trial is estimated to last for at least a year. The resources to be expended will be substantial and, they submit, the constitutional issue should be determined now so that there is no risk of a conviction being recorded on an erroneous constitutional basis, necessitating a retrial.
The fact that a constitutional point has been raised is not of any special status when determining whether to intervene with a grant of leave at this stage. Nevertheless, it is appropriate to have regard to the weight of the constitutional point when exercising leave. For the above reasons, in the case of the illegality issue, the constitutional point is, in my opinion, entitled to minimal weight. Similarly for the reasons I have given, the chain of evidence issue is entitled to greater but not, in my opinion, significant weight.
Each of the accused is entitled to make the Crown prove its case. That does not, however, mean that the criminal trial must be permitted to proceed as if it were some kind of forensic game in which there cannot be a bad point if it is a point taken by the accused. The absence of a suggestion that there was any error in the identification of the computer or the content of the download should be given significant weight in the exercise of the discretion to grant leave.
If it should emerge in the course of the trial, that there is any reason to doubt the content of the certificate, the trial judge has a range of options available to reconsider the matter.
I should add that these options would also be available if something further emerges on the illegality issue.

Although this Court has not heard submissions on this issue, it appears to me that should any reason to doubt any fact in the certificate emerge, the trial judge could well form the judgment under s 137 of the Evidence Act that the probative value of the certificate is outweighed by the danger of unfair prejudice. It may be that the exclusion of the evidence pursuant to s 137 would be avoided if the Crown agreed that the certificate would stand only as prima facie evidence, so that it did not rely on s 18(2) of the TIA, and the jury was instructed accordingly.
There may be other respects in which the course of the trial affects the manner and significance of how the s 18(2) certificate impinges on the accusatory system of criminal justice.
As I have indicated above, Mr Burmester identified, and the Crown agreed, a significant range of matters to which the certificate in this case would not extend. He submitted that it:
Does not preclude arguments about the admissibility of any material allegedly derived from that interception;
Does not preclude the accused from seeking to prove that the evidence could not have come from the intercepted service;
Does not prevent the accused from leading evidence to cast doubt on who the subscriber to the telecommunications service was or who may have downloaded material;
Does not prove that any material allegedly derived from that interception and put forward in evidence was obtained from that service;
Does not prevent the accused from challenging the accuracy of anything allegedly said or transmitted over the intercepted communication, including whether it in fact was said or written.
These submissions will, no doubt, bind the Crown in the conduct of the trial. They were not challenged by the applicants in this Court. I regard this as an important factor in determining whether leave to appeal should be granted.
On the basis of these submissions, the scope of s 18(2) is very limited. Not only does the certificate not impinge on any element of the offence, the certificate has very little significance for facts relevant to a fact in issue, including with respect to the chain of custody argument propounded by the applicant.
The tender of evidence of the communication, based upon the interception at ASIO, cannot be the subject of a conclusive certificate. Section 18(4) and (5) relevantly provides:
“18(4)     The Director General of Security or the Deputy Director-General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:
…
(b)          anything done by an officer or employee of the Organisation in connection with:
…
(iii)         the making of a record of; or
(iv)         the custody of a record of; or
(v)          the giving in evidence of;
information obtained by the execution of such a warrant.
(5)          A document purporting to be a certificate issued under subsection (3) or (4) … is to be received in evidence in an exempt proceeding without further proof and is, in an except proceeding, prima facie evidence of the matters stated in the document.”
A provision for a prima facie consequence arising from a certificate is, of course, quite different in its constitutional implications from a conclusive certificate.
Mr Burmester submitted, and the Crown adopted his submissions, that although a certificate may assert that steps were taken to enable ASIO to listen to the content of the communication a certificate may not in fact say, relevantly, that there was a download of any particular communication on a particular day. The “critical fact” upon which the applicants primarily relied, is not itself conclusively established.
The evidence from ASIO as to what happened on a particular day may be the subject of a certificate, but it would have only prima facie force. The Attorney submits that facts to which a permissible certificate can attest are too far removed from any issue in the criminal trial to constitute an impermissible intrusion on either the separation of powers or trial by jury. It cannot be said, Mr Burmester submitted, that a conclusive certificate is constitutionally impermissible no matter what fact it covers. As I have indicated, I accept that issues of fact and degree arise and in the present case the matters are too far removed, in the sense accepted by Whealy J.
In the present case, his Honour’s reasoning, which I accept, is particularly relevant to the issue of leave. The matters to which the certificate relied upon in the present case attests are too far removed from the facts which, on the present state of the Court’s knowledge, are facts in issue.
Notwithstanding the limitations placed upon the use of the certificate by the Attorney and the Crown, an important aspect of the case of the applicants on this issue remains intact. There is a chain of evidence issue, in the sense that, without the Optus certificate under challenge, the Crown would not be able to tender the material intercepted by ASIO, as the relevant chain has not been established.
Nevertheless, in view of the Crown concessions as to the deployment of the certificate, this consideration is not shown to be of sufficient significance in the likely course of the trial, to justify the grant of leave.
Weighing these various considerations, in my opinion, leave to appeal should be refused on both the illegality issue and the chain of evidence issue.
Orders
The orders I propose are:
1 Time to lodge an application for leave to appeal extended up to and including the date on which the application was filed in matters 2007/2397; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2455.
2 Leave to appeal refused in each case.
BARR J: I agree with Spigelman CJ.
FULLERTON J: I agree with Spigelman CJ.
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LAST UPDATED:
18 October 2013