R v Nixon (Questions of Law Reserved) No. Sccrm-00-235

[2000] SASC 437

R v NIXON
(Questions of Law Reserved)
[2000] SASC 437

Court of Criminal Appeal:  Prior, Olsson and Williams JJ

1................ PRIOR J......................... The questions reserved for this Court call for answers to hypothetical questions and the giving of advisory opinions.  It is not appropriate for a case stated procedure to be used, or appear to be used, to give advisory opinions or determine any question of law other than that directly arising in a particular matter[1]. That general principle is affirmed by the very language of s 350 of the Criminal Law Consolidation Act 1935. The District Court judge could only properly “reserve for consideration and determination by the Full Court a relevant question on an issue … antecedent to trial or … relevant to the trial”[2].

[1]               WorkCover Corporation v Fogliano (2000) 76 SASR 192 at 196 [9]; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 [47] - [53]

[2] s 350(1)

2 Thus the only question which can be answered at all in this case is the first question as it applies to the agreed facts. This is not a case where any order has been made by this Court under s 17 of the Witness Protection Act 1996. It is not appropriate to answer any question with respect to that section. With respect to s 24, the question properly arising is whether, in the circumstances as disclosed to the District Court, the order made by a judge of this Court relating to the disclosure of information to the defendant or his legal representative is an order incompatible with the integrity, independence and/or impartiality of this Court as a court in which Federal jurisdiction has been invested under Chapter 3 of the Australian Constitution.

3      In my view, no compromise of the institutional impartiality of the Supreme Court can be properly identified in the proceedings which gave rise to the order said to be invalid.  No exercise of judicial power in a manner inconsistent with traditional judicial processes is involved[3].  The particular function carried out by this Court, in this case, is not an integral part of or, closely connected with the functions of the Legislature or the Executive Government.  Therefore, no constitutional incompatibility appears[4].  In this case, the order made by a judge of this Court cannot be identified as judicial participation in criminal investigation or any compromise of the judiciary’s essential separation from the Executive Government[5]. 

[3]      Lloyd v Snooks (1999) 9 TAS R 41 at 47

[4]               Wilson & Ors v Minister for Aboriginal and Torres Strait Islander Affairs & Anor (1996) 189 CLR 1 at 17

[5]      Grollo v Palmer (1995) 184 CLR 348 at 365

4      The first question should therefore be answered no.  It is inappropriate to answer the second and third questions at all.  It is neither necessary nor appropriate to answer the fourth.

OLSSON J

Background

5      This is a case stated by a District Court Judge in which he has reserved four questions bearing on certain provisions of the Witness Protection Act 1996 (SA) (“WPA”) for the consideration of the Full Court.  I will turn to the detailed questions in due course.

6      However, I first summarise the relevant factual circumstances.

7      One Gary Nixon has (inter alia) been charged on the Information of the Director of Public Prosecutions (SA) (“the DPP”) with the offence of taking part in the sale of cannabis (Controlled Substances Act 1984, s 32(1)(d)).

8      The prosecution asserts that, in the course of 1997 and 1998, Nixon was engaged in the trafficking of cannabis from South Australia to New South Wales.  It is alleged that, in particular, on 6 January 1998, he knowingly took part in the sale of 9.609 kgs of cannabis at Bolivar to a person who has simply been identified in the declarations as “Jim”.

9      The Crown will seek to prove that this occurred when “Jim” attended at a pre-arranged meeting with Nixon at The White Horse Inn at Bolivar on the day in question and exchanged an amount of cash in return for cannabis provided to him by the accused.

10     The person “Jim” was arrested and also charged on 6 January 1998.  He has since been sentenced in the District Court for his part in the alleged offence.

11     It is conceded by the prosecution that its case against Nixon depends substantially on the Court accepting, beyond reasonable doubt, that the witness “Jim” is a witness of truth.

12     The witness “Jim” has been accepted by the Commissioner of Police (“Commissioner”) in the “State Witness Protection Programme”  established by the WPA.

13 It is to be noted that there is no material before the Court which suggests that any orders have been sought or made pursuant to s 17 of the WPA.

14     All that has occurred to date is that the proposed witness has been assigned the pseudonym “Jim”, by which it is proposed that he be known for the purposes of the trial of Nixon.  His present location has been kept secret.  No steps have been taken to establish a new identity for him, nor is it apparent that any such steps are necessarily contemplated.

15 In accordance with the provisions of s 24(1) of the WPA the Commissioner duly disclosed the information mandated by that section to the DPP.  In turn, the DPP disclosed that information to this Court, constituted of Debelle J, as required by s 24(5) of the WPA.

16     Having considered the material before him, Debelle J ordered that the DPP disclose to Nixon and his advisers:-

(a)     the fact that the witness “Jim” is an informer;

(b)the criminal record of the witness “Jim” in a form settled by the learned Judge;  and

(c)the fact that the witness is a participant in the State Witness Protection Programme.

17     The DPP duly complied with that direction by supplying the requisite information to Nixon’s solicitors.

18     By letter dated 15 October 1999 Nixon’s solicitor transmitted an alibi notice to the DPP.  That notice asserted that Nixon was at Mintabie at the time of the alleged offence and, therefore, could not have committed it.

19     It is stating the obvious to say that, if such alibi is made good, the true identity of “Jim” becomes irrelevant.  If it is not, and there was some relevant interaction between the two men, then the true identity of “Jim” will readily become obvious to Nixon.

20     Nixon pleaded not guilty to the alleged offence when first arraigned.

21     On 27 June 2000 an application seeking a permanent stay of the prosecution was filed on behalf of Nixon.  This was supported by an affidavit sworn by his solicitor.  In that affidavit it was complained that, although further information concerning the criminal history of the witness “Jim” had been sought from the DPP, this had not been supplied.  It was said that, absent such information, Nixon’s case could not properly be prepared for trial, because it was not possible to make independent inquiries concerning matters relevant to the credibility of “Jim”.  It was further asserted that “the [WPA], to the extent that it permits the prosecution to proceed against the Accused with the involvement of the Supreme Court on the basis outlined above is incompatible with the integrity, independence and impartiality of the Court and is contrary to the Constitution of the Commonwealth and invalid under the principles laid down by the High Court in Kable v DPP [1995-1996] 189 CLR 51”.

22     A subpoena was later issued by the solicitor for Nixon addressed to the Commissioner of Police.  This sought production to the Court of documents in the possession of the Commissioner which contain all information presently in his possession “which relates to the witness ‘Jim’”.

Questions posed for the consideration of the Full Court

23     Against that background this Court is now asked to consider and respond to the following four questions, namely:-

“1..... Whether s 24 of the Witness Protection Act 1996 (SA) (‘WPA’) is invalid on the ground that the exercise of the powers thereby conferred on the Supreme Court of South Australia (‘Supreme Court’) is incompatible with the integrity, independence and/or impartiality of the Supreme Court as a court in which federal jurisdiction has or may be invested under Chapter III of the Australian Constitution (‘Constitution’) or whether the said section is otherwise invalid as being inconsistent with the ability of the Supreme Court to exercise the judicial power of the Commonwealth under Chapter III of the Constitution?

2.Whether ss 13, 17, 18, 21 and 24 of the WPA or any one or more of them is or are invalid on the ground that they authorise the fabrication of false or misleading evidence and make it lawful to give or tender false or misleading evidence in Chapter III Courts (or courts in which the Constitution contemplates that the judicial power of the Commonwealth may be reposed) or otherwise promote the ability unlawfully to give or tender such evidence and are thus inconsistent with Chapter III of the Constitution?

3...... Whether ss 13, 17, 18, 21 and 24 of the WPA or any one or more of them is or are invalid on the ground that they are inconsistent with the obligation implied in s 118 of the Constitution that the States not be permitted to compromise the integrity of the public records and judicial proceedings of any State by legislation which authorises the making of false or misleading entries in public registers, the issue of false documents, certificates, licenses and authorities and the conduct of judicial proceedings on false or misleading evidence?

4.If any such provision or provisions of the WPA is or are invalid, is it or are they severable and, if so, to what extent?”

The WPA Scheme

24     The WPA was assented to on 24 April 1996 and came into operation on 13 January 1997.

25     In essence it is complementary to the Witness Protection Act 1994 (Cth) and follows a scheme somewhat akin to the process erected by that statute. It constitutes a portion of what is a more or less uniform national legislative scheme.

26     The key features of the WPA, for present purposes, may be summarised thus:-

(1)The statute formally establishes a Program under which the Commissioner is to arrange or provide protection and other assistance, inter alia, for persons who have given, or who agree to give, evidence on behalf of the prosecution in criminal proceedings.

(2)Prior to inclusion in the program the proposed witness must provide certain prescribed information to the Commissioner and subscribe to a memorandum of understanding which sets out the basis and terms and conditions of inclusion in the Program.  That memorandum of understanding must comply with quite detailed requirements set out in s 10 of the WPA.

(3)The Program envisages the taking of steps, as necessary, to establish a new identity for or otherwise protect the witness, relocating and providing accommodation for the witness, providing various forms of financial support and assistance, and assisting the witness to obtain employment or access to education.

(4)The Supreme Court is empowered, on the application of the Commissioner, to make such orders as it considers necessary for the purpose of establishing a new identity for a person accepted into the Program.

(5)The statute contains quite sweeping provisions to ensure non disclosure of the former identity of the witness.  It is a quite serious criminal offence for a person, without lawful authority, to disclose information about the identity or location of a person who is a participant in a Program.  It is permissible to disclose information where it is necessary to do so “to comply with, or [where it] is authorised by, an order of the Supreme Court”.

(6)Section 23 of the WPA stipulates that the Commissioner and other relevant persons or authorities cannot be required to produce in a court any document that has come into the custody or control of that person or authority related to a witness in the Program or divulge any information concerning the witness, otherwise than is expressly provided for in the legislation.

(7)Where a person is to be a witness in criminal proceedings for an indictable offence and is a participant in a Program, and the Commissioner is aware of these matters, they are required to transmit certain specific information concerning that person and his or her identity to the DPP.

(8)Upon receipt of that information the DPP must privately disclose to a Judge of the Supreme Court in chambers both the information received pursuant to s 24 and also any other information within the knowledge of the DPP that may be relevant to the prospective witness’s credibility and which may be relevant to the credibility or safety of the prospective witness, or the integrity of the Program.

(9)Upon the making of the lastmentioned disclosure, if the Court is of the opinion that non-disclosure of any information provided by the DPP under this section might prejudice the fair trial of a defendant in the proceedings, the Court may make such orders relating to the disclosure of the information to the defendant or the defendant’s legal representative and the use of the information as the Court considers necessary in the circumstances of the case, taking into account the need to protect the prospective witness’s safety and the integrity of the witness protection program.

(10)Section 25 of the WPA expressly provides as under:-

“25. (1) If, in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of a person who is a participant in a witness protection program is in issue or may be disclosed, the court, tribunal or commission must, unless it considers that the interests of justice require otherwise -

(a).... hold that part of the proceedings that relate to the identity of the participant in private; and

(b)make such order relating to the suppression of publication of evidence given before the court, tribunal or commission as, in its opinion, will ensure that the identity of the participant is not disclosed.

(2).... In this section -

‘participant’ includes a person who -

(a).... was provided with a new identity under a witness protection program;  and

(b)is no longer a participant but retains that identity.”

The issues

27     Against that background I now turn to a consideration of the specific questions posed in the case stated.

28 The first invites attention to s 24 of the WPA.  It raises the issues as to whether that section is invalid on the ground that the exercise of the powers conferred on the Supreme Court by it are incompatible with the integrity, independence and/or impartiality of that Court, as a court in which federal jurisdiction has been or may be invested under Chapter III of the Australian Constitution, or it is otherwise invalid as being inconsistent with the ability of the Court to exercise the judicial power of the commonwealth under Chapter III.

29     Before seeking to address these issues it first becomes necessary to address a preliminary aspect which is pertinent to all questions posed by the case stated.

30     As the High Court recently stressed in Bass & Anor v Permanent Trustee Company Limited & Ors (1999) 198 CLR 334 (“Bass”), it is inappropriate for a court such as this to pronounce upon facts which have not been found or agreed and are thus purely hypothetical.  (See also Workcover Corporation & Ors v Fogliano (2000) 76 SASR 192.)

31     In the instant case Mr Kourakis QC, of senior counsel for Nixon, sought to advance arguments based on what he asserted was the width of power, inter alia, said to have been conferred on the Supreme Court by the provisions of s 17 of the WPA.  For example, he declaimed that, under such section, it would be open for the Court to order the creation of false birth and death certificates;  and thereby be party to creating what was a manifest lie.

32     All that need be said on that score is that this Court must clearly confine itself to the actual factual scenario which has been placed before it.  Certain of the submissions proffered by Mr Kourakis QC put in issue possible factual scenarios which not only do not arise at this time, but which also beg substantial questions as to the interpretation of the provisions of the WPA that are plainly hypothetical. These must remain for assessment when they directly arise in a case currently under consideration. I approach a consideration of the issues raised by the case stated solely within the four corners of the facts as they actually emerge from it. I am not prepared simply to assume and to accept that s 17 of the WPA does empower the Court to do that for which Mr Kourakis QC contended.

33     That issue aside, Mr Kourakis QC seeks to found his contentions, as above summarised, on the reasoning of the High Court in Kable v DPP (NSW) (1996) 189 CLR 51 (“Kable”).

34     Kable concerned State legislation which contained provisions empowering a Supreme Court to make an order for the detention of a specified person in prison for a stipulated period, if it was satisfied on reasonable grounds that the person was, more likely than not, to commit a serious act of violence and that it was appropriate, for the protection of a particular person, or the community generally, that the person be held in custody.  The legislation was limited in its potential operation to one nominated person and envisaged the possible committal of that person to prison in circumstances in which no criminal offence had been committed by him.

35     The majority of the High Court held that, within what was a single, integrated national court system for the exercise of the judicial power of the Commonwealth, the exercise by a Supreme Court (being a court invested with federal judicial power) of the jurisdiction conferred by the statute was incompatible with the integrity, independence and impartiality of such a court.  This was because the function to be discharged required the relevant Supreme Court to participate in the making of a preventative detention order, where no breach of the criminal law was alleged and where there had been no determination of guilt in relation to any relevant offences.  In such a situation the performance of the function vested by the statute in it was of such a nature that public confidence in the integrity of the judiciary of the Court as an institution would be diminished.

36     As Gaudron J expressed the position at 107:-

“Public confidence cannot be maintained in the courts and their criminal processes if ... the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that, on the balance of probabilities, they may do so”.

37     In Lloyd v Snooks [1999] 9 Tas R 41, Wright J, commenting on the reasoning in Kable, remarked “... It was the ad hominem nature of the legislation combined with its use of the court to carry out a legislative plan by methods far removed from the judicial processes which, in the majority opinion, led to the conclusion that the Act was invalid”.

38     He went on to say:-

“In Kable, the New South Wales legislature had not only sought to impose non-judicial functions upon the Court, but to do so by establishing proceedings unknown to the law by which it compromised the institutional impartiality of the Supreme Court and required the court to exercise judicial power in a manner which would have been inconsistent with traditional judicial processes.”

39     In the instant case, counsel for Nixon argues that the involvement of the Supreme Court in implementing a scheme of the nature of that contained in the WPA, specifically in relation to the exercise of powers conferred by s 17, s 21 and s 24 is, necessarily, incompatible with the integrity, independence and/or impartiality of that Court, as a court.

40     In this regard emphasis is sought to be placed on aspects such as:-

(a)making orders providing a proposed witness with what is said to be a false identity;

(b)for that purpose, requiring prescribed authorities to make entries in registers and issue new documentation including certificates, licences, permits or other authorities;

(c)vesting in the Court the sole prerogative of determining to whom information of the above types of activity may be released and what information may be released;  and

(d)authorising (where it is essential to do so) the disclosure in private to a judicial officer presiding over legal proceedings under or in relation to a law of the State of South Australia the fact that a person is a participant in a witness protection program or the location and circumstances of a participant in a witness protection program.

41     The issue to be decided, apropos the first question, is, therefore, whether the exercise of the above, admittedly unusual, powers can fairly be characterised as an activity which is incompatible with the integrity, independence and/or impartiality of the Supreme Court, as a court.  However, I emphasize that it is necessary to do so on the basis of a specific, actual set of facts and not some hypothetical situation.  For example, there is simply no suggestion that there has been any activity of the nature of that adverted to in (b) above.

Conclusions

42     In conceptual terms there is, of course, a world of difference between the legislative scheme before the Court in Kable and that erected by the WPA.

43     The gravamen of the objectionable feature in Kable was that the State legislature was, to all intents and purposes, seeking to have the court exercise what was tantamount to executive or legislative power.  It sought to have the court sanction the imprisonment of a specific person who had not been found guilty of any relevant crime, upon relatively informal evidence and on the basis of formation of a conclusion as to the likelihood of the possible future commission of a serious act of violence.  The evil which was perceived arose from the fact that the integrity of the courts depends on their acting in accordance with the judicial process and the maintenance of public confidence in that process.  This would not be so where the effect of legislation sought to be impeached was to so closely identify the Supreme Court with the Government of the State that it would give the appearance that the Supreme Court might well be part of the executive government structure.  Moreover, it was said that public confidence in the courts requires that they act consistently and that their proceedings be conducted according to rules of general application.  The concept of equal justice - rather than palm tree justice - is a fundamental foundation of our system.  The institutional impartiality of the Supreme Court cannot be compromised.

44     It may fairly be said that the reasoning in Kable was a logical extension of the conceptual approaches formulated by the High Court in the earlier cases of Grollo v Palmer & Ors (1995) 184 CLR 348 (“Grollo”) and Wilson & Ors v Minister for Aboriginal and Torres Strait Islander Affairs & Anor [1996] 189 CLR 1 (“Wilson”).  In Grollo (at p 365), Brennan CJ, Deane, Dawson and Toohey JJ, in holding that no function may be conferred on a judge that is incompatible either with the judge’s performance of his or her judicial functions, or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power, elaborated on the notion of constitutional incompatibility in these terms:-

“The incompatibility condition may arise in a number of different ways.  Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable.  It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired.  Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished.”

45     In the course of their joint judgment in Wilson (at p 17), Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ further dilated on the concept of incompatibility. They said:-

“The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government.  If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears.  Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter ‘any non-judicial instruction, advice or wish’).  If an affirmative answer does not appear, it is clear that the separation has been breached.  The breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function.  If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises:  Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law?  In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests.  An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements.  But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.”

46     Grollo was, of course, concerned with the functions of the federal judiciary in relation to the issue of interception warrants pursuant to the provisions of the Telecommunications (Interception) Act 1979 (Cth).

47     In reviewing the statutory environment created by that statute and the role of the judiciary in relation to it Brennan CJ, Deane, Dawson & Toohey JJ discussed the situation in these terms:-

“If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not be conferred on a judge without compromising the judiciary’s essential separation from the executive government.  The judicial method of deciding questions in controversy has no application in exercising the power to issue an interception warrant.  Not only is the application for an interception warrant made ex parte;  the very issue of a warrant and the identity of the judge who issued it are not disclosed.  Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed.  Unlike a warrant to enter, search and seize,  there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution.  Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge’s decision to issue a warrant.  Nor are reasons given for such a decision.  The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information.  Understandably a view might be taken that this is no business for a judge to be involved in, much less the large majority of the judges of the Federal Court.

Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today’s continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law’s protection of privacy and property (both real and personal), be authorised to control the official interception of communications.  In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other.  It is an eligible judge’s function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement.  It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.”

(The emphasis has been added).

48     The scheme erected by the WPA is fundamentally different to that under consideration in Kable in that:-

(1)It is general in its application and not confined to one specific person;  and

(2)Its aim is to overcome a very serious impediment to the efficacy of our criminal justice system, in that, at times of widespread organised crime - particularly (but not exclusively) in relation to drug trafficking and allied criminal activities - such are the very real threats to the safety and well‑being of potential witnesses prepared to act as informers that strong measures are required to afford them protection against retribution at the hands of offenders.  If this was not so, it may well be impossible to prosecute persons responsible for major crime, because no one would be prepared to take the risk of acting as a key prosecution witness.  Serious crime could therefore go unchecked.

49     The need for legislative schemes such as this has long been accepted and considered appropriate in many common law countries.  The involvement of courts in their practical implementation as entities independent of executive government, has been seen to be important, to ensure both the integrity of the schemes and also in an attempt to keep the conflicting interests of accused or potentially accused persons, on the one hand, and those of the protected witnesses, on the other, in balance.  It is here that we see a strong parallel to the situation adverted to in Grollo, as above recited.

50     It seems to me that right minded members of the community would not only consider the fundamental scheme of the statute appropriate in the public interest, but also they would feel entirely comfortable with the independent role committed by the legislation to the Supreme Court.  That role, viewed as a totality, is, as I have said, to keep in balance the conflicting interests of the potential witness on the one hand and any accused person to whom the evidence of the witness relates, on the other.

51     The essential thrust of the legislative scheme is to enhance the effectiveness of the criminal justice system by creating a proper system of checks and balances concerning the procurement and presentation, in a fair and proper manner, of vital evidence touching on the commission of serious criminal offences, rather than to denigrate it.  The express role of the Judge is to ensure that an alleged offender does, in fact, have a fair trial.

52     I fail to see how it may reasonably be said that the functions of the Judges of the Supreme Court envisaged by the WPA are incompatible with the integrity, independence and/or impartiality of the Court.  There is, as I have said, widespread acceptance, in many countries, of the need for and propriety of properly structured witness protection programs.  The essential legal features of the scheme are mandated by the legislature rather than the Court and the function of the latter, quite appropriately, is to maintain a judicial oversight of its operation to ensure that it is not administered in a manner antipathetic to the proper administration of our criminal justice system, as we know it.

53     In the course of his submission I took Mr Kourakis QC to at least infer, that, quite apart from the considerations to which I have already adverted, there was some constitutional right in Nixon to a fair trial; and that, in combination, the various provisions of the WPA sought to be impugned in these proceedings operated to deny that right.  Reference was made to in camera activities involving a Judge of this Court, which took place in the absence of an accused, after prosecution proceedings had been initiated.  He complained that attempts of a lawyer representing an accused to obtain information about “Jim” in preparation for the trial could, itself, constitute a breach of the statute.  Moreover, the concealment of the true identity of a key witness was fundamentally inconsistent with the notion of a fair trial.

54     I agree with the submission of the learned Solicitor-General that, in Australia, there is no constitutional right to a fair trial.  (See Dietrich v The Queen [1992] 177 CLR 292 at 307 et seq, 359 (“Dietrich”)).  There is, of course, a common law right to a fair trial.  (Dietrich at 292, Jago v District Court of New South Wales [1989] 168 CLR 23 at 31). The distinction between the two types of right is, potentially, quite critical.

55     Because there is no constitutional limitation to prevent it from so doing, the legislature of this State is entitled to enact such laws pertaining to evidentiary aspects as it thinks fit, and it is not for the courts to say whether the power has been exercised wisely or not.  (cf Williamson v Ah On [1926] 39 CLR 95 at 127). So it is that, if the legislature has enacted statutory provisions which render the non disclosure of the true identity of a witness lawful, then it is the clear duty of the Court to give effect to them (Nicholas v The Queen (1998) 193 CLR 173 at 197). In such a case no question of unfairness can arise.

56     In any event, even absent statutory provisions such as the WPA, the Court would be required to carry out a balancing exercise as to whether the true identity of a witness ought to be disclosed and, if so, on what basis.  (Jarvie & Anor v The Magistrates Court of Victoria at Brunswick and Ors [1995] 1 VR 84 at 99) - a police undercover agent issue - and Witness v Marsden [2000] NSWCA 52 - a pseudonym case).

57     In a case such as this, it is difficult to perceive how any question of not according Nixon a fair trial has arisen at this point, or will arise at all from the circumstances which have given rise to this case stated.

58     In my view there is no substance in the arguments advanced on behalf of Nixon concerning the first question.  I would answer that question in the negative.

59     The second question, as framed, really begs the issues which it seeks to raise.  It asserts that the effect of the section referred to is to authorise the fabrication and potential use of false or misleading evidence and to render it lawful to give or tender false or misleading evidence in Chapter III courts.

60     It may well be argued that the question seeks to characterise the effect of the legislation in a quite erroneous, if not misleading, fashion.  A key purpose of the WPA is to provide safety and protection of a potential witness against reprisals for giving evidence against an accused person, by allowing that witness to adopt a new name, place of residence and lifestyle in a manner which will render it extremely difficult, if not impossible, for some ill intentioned person to track the witness down and occasion harm to him or her.

61     There is much to be said for the proposition that the measures contemplated by the statute do not, in the real sense, involve the fabrication of false or misleading evidence at all.  There is nothing new, unusual or unlawful in the adoption by a person of a new name and thus a new “identity”.  The law has always permitted that.  It is usually accomplished, in a formal fashion, by the deposit and registration of a deed poll, with what is often a lengthy, cumbersome and tedious process of subsequent administrative steps to alter other relevant documentation such as certificates, registration entries, licences and so on.  Of course, all of these steps normally become a matter of public record, which, generally speaking, could be traced by a would be enquirer.

62     What the WPA achieves is a process which does no more than accomplish the same end result.  However, it exhibits two important differences:-

(1)it provides a very simple mechanism to “fast track” the changes in question;  and

(2)it effectively prohibits anyone seeking to trace what has occurred, save and except to the extent that a Judge considers it appropriate to release certain information for specific purposes, so as to ensure that an accused person is not unduly disadvantaged.

63     It is difficult to perceive anything about the process which would otherwise be unlawful, or which would have the effect postulated by the second question.  But this is not really the point.  The issue sought to be raised by the second question simply does not arise as a live issue on the facts disclosed by the case stated.  Consistently with Bass it is inappropriate to give a reply to this question.  I would respond “Inappropriate to answer”.

64     The same response must be given to the third question on the factual scenario before this Court, for the same reason.

65     Having regard to the foregoing, it is unnecessary to respond to the fourth question.

66.............. WILLIAMS J... I agree with Prior J that for the reasons which has given the first question should be answered “no”.  I also agree that the second, third and fourth questions should not be answered.