Regina (C'Wealth) v Baladjam [No 17]

[2008] NSWSC 1439

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 17] [2008] NSWSC 1439
HEARING DATE(S):	13/05/08; 14/05/08
JUDGMENT DATE :	27 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	1. Decline to make the declarations sought. 2. Notice of Motion dismissed.
CATCHWORDS:	CRIMINAL LAW - Interception of telecommunication servces - Telecommunications (Interception) Act 1979, ss 9 and 9A - Evidentiary Certificates under s 18(1) - CONSTITUTIONAL LAW - s18(2) of Telecommunications (Interception) Act 1979 does not violate the separation of powers inherent in Chapter 111 of the Constitution - does not violate the accused's right to a jury trial guaranteed by s 80 of the Constitution
LEGISLATION CITED:	Crimes Act 1914 Criminal Code Act 1995 ss 11.5 and 101.6 Customs Act 1901 Evidence Act 1995 (NSW) Telecommunications (Interception) Act 1979
CASES CITED:	Attorney General v Breckler (1991) 197 CLR 83 at (53) Bass v Permanent Trustee Co Limited (1999) 198 CLR 334, 359 at (56) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ CEO of Customs v El Hajje (2005) 224 CLR 159 Cheatle v The Queen (1993) 177 CLR 541, 549 Commissioner of Taxation v Price [2006] 2 Qd R 316 Cornwell v The Queen [2007] 81 ALJR 840 Granger v The Queen [2004] HCA 478 Kable v DPP (1996) 189 CLR 51, 16-117 per McHugh J Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 27 per Brennan, Deane and Dawson JJ Liyanage v The Queen (1967) 1 AC 259-289 per Lord Pierce Lodhi v The Queen [2007] NSWCCA 360 at (71) - (72) per Spigelman CJ Nicholas v The Queen (1998) 198 CLR 173, 200 per McHugh J Ng v R [2003] 217 CLR 521 at (9) Silbert v DPP (WA) [2004] 217 CLR 181. 189 at (20-(21) Thomas v Mowbray [2007] ALR 194 R v Deng (1996) 136 FLR 201; 91 A Crim R 80 R v Bunting & Wagner [2003] SASC 253 R v Granger [2004] SASC 156 Williamson v Ah On (1926) 39 CLR 95 at 117 per Isaacs J
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 17] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	G. Bellew SC; ; Ms S McNaughton - Crown H. Burmester QC; Ms K Richardson - C'Wealth Attorney General M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	Commonwealth DPP Australian Government Solicitor Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: TUESDAY 27 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 17]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Constitutional validity of s 18(2) of Telecommunications (Interception) Act 1979 – infringement of separation of powers doctrine, s 71 Commonwealth Constitution; s 80 trial by jury

1 HIS HONOUR: This is an application by Khaled Cheikho. The application is dated 13 May 2008 and seeks, relevantly for present purposes, 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."

2 Khaled Cheikho was represented on the argument by his counsel Messrs Charles Waterstreet and Peter Lange. By arrangement between the two lawyers, there was a division of functions in the presentation of the argument. Mr Waterstreet painted the background and landscape against which the constitutional issues were said to arise. Mr Lange presented the constitutional argument itself. The Crown was represented by Mr Bellew of Senior Counsel. Leave was granted to the Attorney-General to intervene in the proceedings. The Attorney's submissions were presented by Mr Henry Burmester QC and Kate Richardson of counsel.

The nature of the case

3 Khaled Cheikho is one of nine men accused of conspiring with each other to do acts in preparation for a terrorist act or acts. The charge in the indictment is made pursuant to the provisions of ss 11.5 and 101.6 of the Criminal Code Act 1995 (“the Code”).

The Law

4 Section 101.6(1) of the Code makes it an offence to do an act in preparation for or planning a terrorist act. Section 101.6(2), provides that the offence will be committed even if a terrorist act does not occur, or the act in preparation or planning is not done in respect of a specific terrorist act, or is done in preparation or planning for more than one terrorist act. These sections are in the following terms:

“(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:


(a) a terrorist act does not occur; or

(b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or

(c) the person’s act is done in preparation for, or planning, more than one terrorist act.”

5 The definition of “terrorist act” is set out in section 100.1(1) of the Code as follows:

“ Terrorist act means an action or threat of action where:


(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State or Territory or foreign country, or part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

6 Sections 100.1(2) & (3) further define the concept of a terrorist act as follows:

“(2) Action falls within this section if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person’s death; or

(d) endangers a person’s life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3). Action falls within this section if it:

(a)

is advocacy; protest, dissent or industrial action; and

(b)

is not intended:

(i)

to cause a serious harm that is physical harm to a person; or

(ii)

to cause a person’s death; or

(iii)

to endanger the life of a person, other than the person taking the action; or

(iv)

to create a serious risk to health or safety of the public or a section of the public”.

7 The offence of conspiracy is set out in section 11.5 of the Code as follows:

“A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed”.

8 Section 11.5(2) of the Code stipulates the following three requirements before a person can be guilty of conspiracy under s 11.5 of the Code.

“(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement”.
The Crown case

9 The accused are nine men who are said by the prosecution to be parties to the conspiracy involved in the charge contained in the indictment. The prosecution case is that each of the conspirators considers himself to be a devout Muslim; each held certain beliefs in common relating to their interpretation of the Muslim faith. These common beliefs included the following: -

(a) Islam throughout the world was under attack and there was a religious obligation to come to the defence of Islam and other Muslims;

(b) “Jihad” was the primary means by which this religious obligation should be fulfilled;

(c) a significant and legitimate aspect of the fulfilment of this obligation was violent Jihad, which involved the application of force and violence, including in certain circumstances the killing of “infidels” or “kuffir” (that is, persons who do not have the same fundamentalist beliefs).

10 These views are evidenced by, amongst other things, the finding of a large volume of material supporting such views (“extremist material”) at the premises of each accused upon the execution of search warrants. That extremist material was found in the form of electronic media including videos, DVDs, CD’s and material from websites downloaded and saved on each of the accused’s computer or computers.

11 In accordance with the holding of those common beliefs, the accused entered into an agreement to obtain the capacity or capability to prepare for a terrorist act (or terrorist acts). This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act (or terrorist acts). In furtherance of the agreement the accused amongst other things:

(a) obtained or attempted to obtain chemicals and other relevant materials which could be used (directly and/or indirectly) in the construction of an explosive device;


(b) obtained or attempted to obtain weaponry and ammunition;

(c) possessed large amounts of extremist and instructional material.

Possession of bomb making recipes and other material relating to terrorist activity

12 The following are some examples of the nature of the instructional material accessed by the accused and/or located at their premises. It is not intended to be an exhaustive list.

13 On 8 July 2004, a computer which was located at the premises of Khaled CHEIKHO accessed and downloaded from a website 3 documents in Arabic, 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 document in Arabic containing instructions on various types of explosives (including the speed, force, ferocity and sensitivity of explosives), how to construct a detonator and manufacture improvised explosives from commonly available products.

14 On 27 June 2005, during the execution of a search warrant upon ELOMAR’S vehicle and premises, the authorities seized 4 boxes of compressed hexamine and a USB memory stick which contained a 60 page document in Arabic entitled “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two”. The document is in the form of a series of written lessons, accompanied by photographic illustrations of matters relating to the text and contains a session in the form of “Questions and answers”. The document contains step-by-step instructions on the manufacture of a series of chemical mixtures/specific explosives and detonating devices. It includes details and advice on: how to source ingredients or precursors, on chemical properties, on how to extract, prepare, store, dispose of and use the explosives described. It provides alternate ingredients and advises how these may be sourced from non-laboratory/scientific sources, such as chemist shops. The document outlines information about car bombs, with reference to “the Riyadh explosions” and “explosions in Bagdad”, and includes material from “one of the Jihadist Encyclopaedias” concerning placement of explosive devices and selection of targets for car bombs.

15 The document contains instructions for the manufacture of Tri-Acetone Tri-Peroxide (“TATP”) using various commercially available items, including hydrogen peroxide, sulphuric acid and acetone. The instructions and images relating to the manufacture of TATP found in this document were consistent with items obtained, or attempted to be obtained, by the accused. The process of manufacturing TATP requires various chemicals to be cooled continuously while mixing. TATP must also be kept cool after manufacture. By relying on the recipe contained in the “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two” and only using the chemicals and equipment sourced (or attempted to be sourced) by the accused, TATP could be manufactured.

16 On 27 June 2005 also located during the execution of the search warrant on ELOMAR’S premises was a CD containing a 1,064 page document in Arabic. Moustafa CHEIKHO’s fingerprints were on the CD cover. The document is entitled “Security and Intelligence”. The document contains chapters including, “Security and Islam”, “Sabotage and Counter Espionage”, “Surveillance”, “Audio and Visual Taping”, “The Hierarchy of the Security Department of a Jihad Organisation”, “Secret Communication”, “Topography” and “The Primary Rules of Sabotage”. Again this document contains instructions relating to the manufacture and detonating of various improvised explosive devices. As with the previous document, it contains step-by-step instructions on how to manufacture explosives from commercially available products, with details and advice on how to source the ingredients, extract and prepare them for use. The requirements specify the use of beakers, thermometers, pipettes, etc. One of the types of explosive devices in these instructions is TATP. This document also provides instructions on how to manufacture Hexamethylene triperoxide diamine (“HMTD”) using various commercially available items including hexamine, hydrogen peroxide and citric acid.

17 On 27 July 2005 and on 12 August 2005, ELOMAR’S niece Oula AWAD asked the authorities to return various items, including the USB drive (the item containing The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two). She said: “...and I really importantly need that memory card, I really need it, there is like um, my uncle has got stuff on it, drawing and that he has to submit it to people, that’s work for him”. The USB drive (which still contained The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two) was returned to ELOMAR on 19 August 2005. Upon the execution of a further search warrant at ELOMAR’S premises on 8 November 2005, the USB drive was seized again. Analysis of the USB drive showed that The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two had been removed on 19 August 2005. This was the only item deleted from the USB drive.

18 The above documents are only illustrations of very large number of instructions/documents/manuals, which were located in the possession of the accused. Such instructional material covered topics, which included the production and use of explosives, firearms and covert methods to thwart detection by the authorities, and dealing with the authorities in the event of detection or arrest. Where such instructional material was found on an accused’s computer or computers, invariably material of an extremist nature was also found on that computer or computers. Other examples of such instructional material include the following:

(a) A document showing a diagram of an electrical circuit involving a mobile phone and explosive material was found on Moustafa CHEIKHO’S computer. This document was obtained through a Jihadi forum website which invites the reader to have a look at a way to explode objects by using an Ohmmeter and a mobile telephone.


(b) A document providing specific instructions on how to make the following explosive devices: Molotov cocktails, eagle fireballs, eagle cocktails, towed charge, pole charge, and satchel charge. This document was found on HASAN’S computer. In order to construct some of these devices, the document states that it is necessary to know how to prime charges electrically and non-electrically.


(c) A document providing information on how to construct an M14 Antipersonnel Mine was found on HASAN’S computer.

(d) Document identifying the 11 steps required to prepare a non-electric firing system was found on HASAN’S computer. This document refers to the non electric firing system in the context of demolition work such as breaching minefields, breaching wire obstacles, clearing landing zones, blowing holes in walls of buildings and blowing down trees to create obstacles.

(e) A number of documents relating to surveillance tactics was found at Khaled CHEIKHO’S premises. This included a book entitled: “The Layman’s Guide to Electronic Eavesdropping: how it’s done and simple ways to prevent it” by Tom Larsen. [This book was also located at Moustafa CHEIKHO’S premises];

(f) A video containing instructions on how to build and detonate a remote anti-personnel explosive device was found at SHARROUF’s premises.

(g) Material in the form of a number of “lessons”, apparently for the training of someone to join the “military organisation” of an Islamic group to undertake militant Jihad. The lessons covered topics such as “Training”, “Weapons: measures related to buying and transporting them”, “Special Tactical Operations” (which include “assassinations, bombing and demolition”), and “Kidnapping and Assassinations Using Rifles and Pistols” (with detailed instructions on the use of various firearms), “Interrogation and investigation at prison and detention centres”. The material was found at SHARROUF’s premises stapled inside the cover of a booklet entitled “Choice Islamic Stories” [for children] distributed by the Islamic Welfare Centre, which appeared to have replaced the original contents of the booklet. [Khaled CHEIKHO’S fingerprints were located on several pages of the document.]

(h) A VHS Cassette Tape entitled “Sheikh Osama’s Training Course” and a document entitled “Lessons by Al-Qaeda and Taliban in the art of hitting and frightening the Americans” was found on a computer at TOUMA’s premises.

(i) Audio and video files displaying the beheading and execution of Westerners and other captives, attacks on the forces of the United States of America (US) and the Coalition in Iraq, images and desecration of dead soldiers, bombings of buildings and vehicles with Islamic chants and cheers and images of deceased martyrs found at MULAHALILOVIC’S premises. Other items found included songs and speeches urging Muslims to engage in militant Jihad including the killing of “disbelievers”; “Treaties in getting prepared for Jihad” and audio files which include discussing the manufacture and detonation of car bombs.

(j) Military documents relating to sniper training were found on JAMAL’S computer. A number of documents relating to sniper weapons and training, and images of snipers were located on HASAN’S computer.

(k) A number of training documents on topics including the manufacture of silencers for firearms, making grenades and mines, “electronics, explosives and poisons” and “explosives engineering” were found on a thumb drive located at the premises of ELOMAR.

(l) An instructional article relating to the kidnapping of nationals of a “hostile country” as part of Jihad was found on BALADJAM’S computer. A number of other documents relating to sniper weapons, physical training and survival skills in the context of military operations were also found.

19 The accused shared extremist/instructional material. A number of the accused had the same items.

20 A bland summary of the category of matters set out in chronological and extensive detail in the Crown Case Statement is as follows:

(a) the possession by all the accused of documents advocating extremist views and the carrying out of acts of violence in the pursuit of Jihad;

(b) the possession of documents containing instructions for the preparation of violent Jihad, including, but not limited to, instructions on the assembly and use of explosive devices and the use of firearms;

(c) enquiries about and the intended and actual purchase of, components of and equipment related to the manufacture of explosive devices;

(d) the possession of such components of and equipment for, the manufacture of explosive devices;

(e) enquiries about and the attempted and actual attempted purchase of, firearms and ammunition;

(f) the possession of firearms and ammunition;

(g) the use of various techniques and methods in order to protect the operational integrity and security of the objectives of the accused;

(a) the undertaking of other activities by the accused which reveal the accuseds’ terrorist intent, including but not limited to, discussions expressing views as to violent Jihad and attendance at camps; and

(i) evidence of association between the accused and the circumstances of that association.

Scope of the present application

21 The Court has been engaged since February 2008 in responding to a significant number of pre-trial applications brought on behalf of the accused. The present is one such application. Although it is brought on behalf of Khaled Cheikho, it is, in general terms, supported by all the accused. I have earlier referred to a large body of intercepted material said to have been accessed by a number of the accused. This material is to be relied on by the Crown in the trial as part of a large body of circumstantial evidence designed to show that the nine men were willing participants in a wide-ranging conspiratorial ring operating with terrorist intent. The possession or accessing of extremist material is a small but important part of the overall Crown circumstantial case. It is in that context that I turn now to examine the situation which has led to the present application being made.

Background to the present application

22 The Crown, as I have said, wishes to place before the jury, as part of its circumstantial case, material alleged to have been downloaded by Khaled Cheikho from the Internet. This material was alleged to have been intercepted pursuant to a warrant issued under ss 9 and 9A Telecommunications (Interception) Act 1979 ("TIA"). Section 9 of TIA 1979 is in the following terms:

“9. Issue of telecommunications services warrant by Attorney-General
(1) where, upon receipt by the Attorney-General of a request by the Director-General of Security for the issue of a warrant under this section in respect of a telecommunications service, the Attorney-General is satisfied that:
(a) the telecommunications service is being or is likely to be:
(i) used by a person engaged in, or reasonably suspected by the Director-General of Security of being engaged in, or of being likely to engage in, activities prejudicial to security; or
(ii) used for purposes prejudicial to security; and
(b) the intercepts by the organisation of communications made to or from the telecommunications service will, or is likely to, assist the organisation in carrying out its function of obtaining intelligence relating to security; the Attorney-General may, by warrant under his or her hand, authorise persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant, communications that are being made to or from that service and such a warrant may authorise entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications." (underlining added)

23 Section 9A enables the issue of “named person” warrants by the Attorney-General. Section 12 is in the following terms:

“12. Persons authorised to intercept communications for Organisation
(1) the Director-General of Security, or an officer of the organisation appointed by the Director-General of Security, in writing, to be an authorising officer for the purposes of this section, may, by writing under his or her hand, approve officers and employees of the organisation and other persons as persons authorised to exercise, on behalf of the organisation, the authority conferred by Part III warrants."

24 There were, as I understand it, a warrant or warrants executed pursuant to the sections I have mentioned in an endeavour to intercept material downloaded in relation to the service the subject of the warrant or warrants. For the purposes of the trial, the Crown wishes to place reliance on any evidentiary certificate made pursuant to s 18(1) of TIA. The Crown wishes to be able to place reliance on this certificate for the purpose stated in s 18(2) of the Act. The relevant parts of s 18, for present purposes, are as follows:

“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 purported 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."

25 It is accepted, for the purposes of the present application, that the subject proceedings are "exempt proceedings" within the meaning of the Act (see ss 5, 5B(1), 5D TIA 1979).

26 For the purposes of the present argument, the evidentiary certificate sought to be relied on is that of Paul O'Brien, the company secretary of SingTel Optus Pty Limited. The certificate sets out that Mr O'Brien certifies, pursuant to s 18 of TIA, a number of facts which he considered were relevant to acts or things done by, or in relation to, employees of Optus in order to enable the execution of a warrant issued under s 9(1) of the Act. Those facts, so stated by Mr O'Brien, are:

“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 [phone] 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.”

27 The certificate was signed by Paul O'Brien as company secretary and was dated 9 April 2008. Annexed to the certificate tendered before me as part of Exhibit 1 is a copy of the warrant authorising interception of communications to the relevant service number in the name of Amina Cheikho of 29 Myall Street, Punchbowl, NSW 2196.

28 None of the foregoing material appears particularly controversial. Messrs Waterstreet and Lange for Khaled Cheikho complain, however, that the certificate has had the effect of disentitling them from raising a submission they had hoped to make going to the validity of the issue of the warrant or warrants. This concern arises out of the fact that there had been an earlier certificate given by Mr O'Brien in relation to the same warrant or warrants. The material placed before me does not precisely line up in relation to the dates of the warrants, but I understand that it is common ground that there was an earlier certificate, for example, relating to the warrant mentioned in the certificate dated 9 April 2008. The original certificate had paragraphs generally corresponding to paragraphs 1 to 3 inclusive of the certificate I have set out (although as I have mentioned, the dates do not precisely coincide). Paragraphs 4, 5 and 6, however, were differently expressed. They were as follows:

“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 issued 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."

29 This earlier certificate was dated 22 February 2007. It had been the intention of the lawyers for Khaled Cheikho to argue that the facts “conclusively proved” by the earlier evidentiary certificate resulted in an arguable situation of invalidity so far as the relevant warrant or warrants were concerned. It was said that this was so because the certificate suggested that the interceptions were made by Optus employees and not by ASIO. It was suggested that support for this contention was to be gleaned from the combination of the facts stated in paragraphs 4, 5 and 6 of the earlier certificate, and the suggestion emerging from the expression "periodically supplied in a process". This conveyed the impression that the intercepts were sent across to ASIO at a later time.

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.

31 It is essentially for that reason the present application has been made. It argues on the two bases mentioned in the notice of motion that s 18(2) of TIA is invalid. It violates separation of powers inherent in Chapter III of the Constitution, and violates the accused's right to a jury trial guaranteed by s 80 of the Constitution.

Separation of powers argument

32 I shall first outline the submissions of Mr Lange in relation to the separation of powers argument. Section 71 of the Australian Constitution provides:

“The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia, and such other Federal Courts as the Parliament creates, and in such other Courts as it vests with Federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other justices, not less than two, as the Parliament prescribes."

33 Mr Lange's arguments commenced with a general statement of principles, none of which are in issue. First, although the legislature may impinge upon the separation of powers embodied in Chapter III of the Constitution by conferring upon a non-judicial body, or officer, a power which calls for the exercise of judicial power, there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature (Liyanage v The Queen (1967) 1 AC 259-289 per Lord Pierce). The prohibition has been expressed in the following terms:

“Grants of legislative powers (do not) extend to the making of a law which requires or authorises the Courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a Court or with the nature of judicial power."

34 (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR, 27 per Brennan, Deane and Dawson JJ)

35 Secondly, the nature of the "judicial process" which is to be exercised by Courts vested with the judicial power as described by the Constitution's requirement, has been described in the following terms:

“The 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 Breweries Pty Limited (1970) 123 CLR 361, 374 per Kitto J.)”

36 More recently, in Bass v Permanent Trustee Co Limited (1999) 198 CLR 334, 359 at (56) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, this was said:

“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."

37 Against the background of these well established principles, Mr Lange argued that, dealing specifically with the question at hand, in order for a process to be a "judicial process" as mandated by Chapter III of the Constitution, the following three rules must be observed:

· A party must be in a position to meet the case brought against him;

· the tribunal of facts must itself ascertain what the relevant facts are; and

· the relevant facts must, as far as possible within the process, correspond with those facts which actually existed.

38 Mr Lange argued that, against the background of these "principles" it was plain that s 18(2) of TIA infringed the need for a judicial process and, accordingly, infringed Chapter III of the Constitution. As to the first matter, Mr Lange said that, even if the accused were in a position to contradict the assertions made in the certificate, such evidence could not be adduced since the facts had been proved conclusively by the certification. Consequently, the accused would be unable to meet the case brought against him.

39 As to the second point, the certification procedure effectively delegated the finding of facts to another person or party. The effect of the section, Mr Lange argued, was that the prosecution ultimately determines whether the tribunal of fact must find the fact proved or whether the tribunal may itself investigate the existence of those facts.

40 As to the third point, Mr Lange submitted that a judicial system which operates upon the basis of facts which are demonstrably different from the true facts must be perverse. Such a situation indicates that the institutional integrity of the Court and its process has been damaged. Part of the institutional integrity of a Court is its duty to act, and to be seen to be acting, impartially.

41 In the context of the last matter, Mr Lange argued that a basic principle underlying the distinction between judicial or legislative or executive powers, and the doctrine the separation of powers, premised on that point of distinction, "is that judges of the Federal Courts must be, and must be perceived to be, independent of the legislature and the executive government". Nicholas v The Queen (1998) 198 CLR 173, 200 per McHugh J citing Kable v DPP (1996) 189 CLR 51, 16-117 per McHugh J.

42 Mr Lange then referred to the remarks of Mr Bowen the then Attorney-General for the Commonwealth (Hansard, House of Representatives of 1980 (9 May 1995) when the legislation was introduced.) The Attorney had said:

“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."

43 Mr Lange took issue with the correctness of this. First, he argued that the Crown must prove the admissibility of any evidence which it intends to lead. For this reason, absent the legislation, it would have to prove that the intercepting agency intercepted the correct telecommunication service. Counsel maintained that s 18(2) relieved the Crown of this burden since, presumably, the certificate explicitly certificates that the telecommunication service, as specified in the warrant, was the one intercepted. In that context, Mr Lange referred to the annual reports of the Inspector- General of Intelligence and Security which referred to occasions where ASIO had inadvertently provided a telecommunications carrier with an incorrect telephone number. Secondly, Mr Lange argued that the certificate mechanism appeared to preclude certain arguments concerning the lawfulness or unlawfulness of any particular interception. A comparison of the certificates originally issued and subsequently revoked, in the present case with those which have been recently issued, demonstrates, he argued, the potential to immunise irregular or unlawful conduct by a conclusive certificate. Moreover, the certifier may not have first-hand knowledge of the facts contained in the certificate.

44 Mr Lange acknowledged that Parliament may promulgate rules to regulate the method and the burden of proof (Nicholas v The Queen, 188-191 at (23-26) per Brennan CJ). Mr Lange acknowledged that this was so, but argued that the present legislation was in truth "an impairment of the curial function of finding the facts and hence a usurpation of judicial power". This was a reference to the remarks of Brennan CJ in Nicholas, referring with approval to Williamson v Ah On (1926) 39 CLR 95 117 per Isaacs J. Mr Lange argued that the ultimate question became one as to whether an evidential rule impairs or rather, hinders, the curial function. Applying that test, it was submitted that the present legislation must be held to be unconstitutional.

45 Mr Burmester QC, by way of introduction, pointed to the fact the New South Wales Court of Criminal Appeal has unanimously accepted that a conclusive evidence certificate issued by a telecommunications carrier conclusively establishes the matters contained in it and that, accordingly, any conflicting evidence to the contrary was irrelevant and therefore inadmissible. (R v Deng (1996) 136 FLR 201; 91 A Crim R 80). A similar view had been taken by Martin J in South Australia in R v Bunting & Wagner [2003] SASC 253. Mr Burmester acknowledged that these were not cases dealing with constitutional issues, but nevertheless he submitted, they provide an acceptable landscape against which to commence an examination of the issue.

46 Mr Burmester then took the Court to an examination of the history and text of s 18(2) of TIA. Senior counsel then scrutinised and commented upon the actual material conclusively proved by Mr O’Brien’s certificate, pointing out the very limited nature of the factual matters so certified. He referred to the reasons for the legislation as stated in the explanatory memorandum and the second reading speech. All this demonstrated, Mr Burmester said, that the legislation was introduced primarily to protect telecommunication carriers' employees and that the matters contained in the certificate were formal matters of evidence only and were not intended to go to any issue before the Court.

47 Mr Burmester's essential point was this: He accepted that a law that purports to direct the manner in which Federal judicial powers should be exercised, or one that usurps the exercise of Federal judicial power, is constitutionally invalid as infringing the separation of judicial power affected by Chapter III of the Constitution. However, there is ample authority, he argued, to show that a law that merely prescribes the practice or procedure of a Court exercising Federal jurisdiction does not direct the exercise of judicial power and is constitutionally valid - for example, a law that regulates the reception of evidence or the standard of proof (Nicholas v The Queen at 189 to 190 (23 to 24) per Brennan CJ, at 203 (55) per Toohey J, at 234 to 236 (152-156) per Gummow J). Moreover, modification of judicial procedures by legislation should not be characterised as a legislative usurpation of judicial power unless it affects the integrity of the judicial process. Lodhi v Regina [2007] NSWCCA 360 at (71)-(72) per Spigelman CJ.

48 Mr Burmester examined his primary proposition in the light of the circumstances discussed in Nicholas v The Queen. That case involved, Mr Burmester explained, the consideration of the validity of s 15X of the Crimes Act 1914. This directed that, in determining whether evidence should be admitted that narcotic goods were imported into Australia in contravention of the Customs Act 1901, the fact that an officer committed an offence in importing the narcotic goods was to be disregarded in certain specified circumstances. Thus, s 15X removed a critical element from the discretion which the trial Court otherwise would possess to exclude evidence of that kind. Mr Burmester took the Court to a number of statements from the decision in which there was discussion by the High Court about the circumstances in which legislation affecting the conduct of a criminal trial might so affect the judicial function of determining guilt that it amounted to an impermissible infringement of judicial power. In particular, Mr Burmester referred to Gummow J's decision at 232 (145) and 238 (162). Senior counsel also referred to the decision of Hayne J at 278 (252).

49 Mr Burmester accepted that Nicholas's case dealt with the narrowing of a judicial discretion, rather than a conclusive evidentiary provision. Senior Counsel argued, however, that the statements of principle were sufficiently wide to enable a similar test to be applied to the present legislation. When so applied, the question became whether the present legislation so interfered with the governance of the trial, or so distorted its predominant characteristics, as to involve the trial Court in the determination of the criminal guilt of the accused, otherwise than by the exercise of the judicial power of the Commonwealth. The answer to this question involved the subsidiary question as to whether the legislation asserted to prove conclusively, “any ultimate fact, being an element of the offence with which the accused had been charged".

50 Mr Burmester argued that "a predominant characteristic" of a criminal trial is that the tribunal of fact determines all "ultimate facts".

51 The third group of authorities which Mr Burmester examined were authorities which demonstrated that laws altering or reversing the burden of proof did not thereby impede the exercise of the judicial power of the Commonwealth (Commissioner of Taxation v Price [2006] 2 Qd R 316; R v Granger [2004] SASC 156 (special leave refused: Granger v The Queen [2004] HCA 478).

52 Finally, Mr Burmester returned to an examination of the legislation. He argued that, for a number of reasons, the limited range of matters able to be certified in the legislation, and the matters proved conclusively by the certificate, demonstrated that those matters concerned did not go to the ultimate issues before the Court. Rather they dealt with purely technical issues within the particular expertise and knowledge of the carrier giving the certificate. The certificates did not prevent the accused challenging the accuracy of anything allegedly said on the intercepted communication, including whether it in fact was said or by whom it was said. It did not prevent an accused from meeting the case against him in terms of any evidence obtained as a result of the interception. The certificate was confined to facts in relation to things done by, or in relation to, employees of the carrier. It could not include facts in relation to acts or things done by any other person including, significantly, by the accused. The certificate did not purport to demonstrate that it was the accused who sent the communications. Nor did the certificate say anything about the content of the communications. In this way, s 18 left untouched the elements of the crime alleged against the accused in the indictment. The jury must still determine, based on evidence adduced by the Crown, the facts necessary to find the "ultimate facts" beyond reasonable doubt (Gummow J in Nicholas at 236).

53 Mr Burmester took issue with Mr Lange's "three rules". The second rule could only be an accurate statement of the authorities if the reference to "relevant facts" meant "ultimate facts". Similarly, this was the case with reference to relevant facts in the third rule. Mr Burmester also argued that the United States authorities, referred to by Mr Lange in his submissions, were not to the point. Hence the High Court in Thomas v Mowbray (2007) ALR 194, pointed out that the Court's authorities have not gone so far as to recognise a "due process" requirement in Chapter III of the Constitution. In any event, the accused had not shown any lack of “due process” that distorted or relevantly impaired the criminal trial.

54 Mr Lange made a number of quite lengthy submissions in reply. Indeed, they were lengthier than his principal submissions. I do not propose to set them out in any detail here, but will refer to such of them as necessary when seeking to resolve the issue between the parties. I will add, however, that written supplementary submissions (in addition to reply submissions) were received from Mr Lange on a subsequent date. Those submissions drew the Court's attention to the commentary of the majority of the High Court in Cornwell v The Queen [2007] 81 ALJR 840. That case involved the interpretation of s 128 of the Evidence Act 1995 New South Wales and, in particular, the interpretation of s 128(8) and the phrase appearing therein "a fact in issue". Secondly, Mr Lange raised a new matter. This was an argument that suggested that s 11.5(2) of the Criminal Code Act was an important consideration for the purposes of the arguments which had been advanced by the Attorney-General in the present matter. Dealing with a conspiracy charge, s 11.5(2)(c) provides that, for a person to be guilty, the Crown must prove, inter alia - "the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement". Mr Lange's supplementary written submission pointed to the fact that the act of downloading the material, alleged to have been captured pursuant to the warrants to which the certificate in question relates, was in fact, relied upon by the Crown as an overt act. Therefore, Mr Lange argued, the facts certified are "intimately connected with proof of an element of the offence", that is, connected to "an ultimate fact". For that reason, counsel argued that it could not be said that s 18 leaves untouched the elements of the crime for which the accused is to be tried, as the Attorney-General had submitted.

55 Finally, in these supplementary submissions, Mr Lange referred to an observation by Kirby J in Silbert v DPP (WA [2004] 217 CLR 181, 189 at (20)-(21). In these paragraphs, Kirby J warned that the High Court should be especially vigilant to detect cases of legislative excess or repugnancy. I took Mr Lange to be suggesting that I should show the same vigilance in examining the issue involved in the present application.

Resolution of the issues

56 There is no essential dispute between the parties as to the question to be determined in this application. It may, however, be stated in two ways, one broadly and the other in a more particular fashion:

Is s 18(2) TIA a law which requires the Court exercising Federal jurisdiction to exercise judicial power in a manner inconsistent with the essential character of a Court or with the nature of judicial power? ( Chu Kheng Lim v Minister for Immigration .)
Is the fact that the Court is deprived by this law of the power and opportunity to decide the facts dealt with in the certificate, a deprivation of such a character that the Court is robbed of its essential character, or such that its judicial power is impaired in a constitutional sense?

57 In addition, apart from a minor scuffle around the edges of the debate, there is no essential dispute about the principles to be applied to resolve the question at issue. Both Mr Lange and Mr Burmester QC are in complete agreement that a particular piece of legislation may so impair the predominant characteristics of a trial that it will rob the Court of its essential character. Mr Burmester gave an example of legislation that provided that, if a person were found in possession of stolen goods, a certificate from the Commissioner of Police certifying that the person had stolen those goods, was to be conclusive evidence of the fact and could not be challenged. Legislation of this type, both counsel agreed, would travel beyond the Constitutional pale. (See Williamson v Ah On per Isaacs J at 108.)

58 Mr Lange fairly accepted that legislation may conclusively prove some facts to be relied on in a trial without infringing the Constitutional reach. That, in my opinion, was a proper concession. Mr Lange, however, was not prepared to definitively state the limit on this proposition. That again was not, in my opinion, an entirely unreasonable stance. It is, after all, difficult to know precisely "where to draw the line" (Attorney-General v Breckler (1991) 197 CLR 83 at (53).) Mr Lange preferred to examine the nature and extent of the legislation in s 18 rather than to be drawn on the appropriate delineation of a Constitutional barrier. It will be apparent that questions of this kind will often involve an element of degree. They will often require examination of a particular piece of legislation to determine whether, as a matter of impression, the appropriate line has been traversed.

59 On the point of focused principle, however, Mr Burmester placed particular reliance on the High Court's decision in Nicholas v The Queen. In my view, senior counsel's submission in this regard is correct. Nicholas provides an appropriate framework of precise coherent constitutional principle against which to examine the legislation in question. I shall briefly set out the relevant passages:

60 I turn first to the judgment of Gummow J, at 232 (145) said:

“The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act . Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?"

61 At 236 (156) Gummow J said:

“No such question arises with respect to 15X of the Crimes Act . Nor does 15X deem to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged. A law of that nature, albeit procedural in form, might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt. Section 15X is quite different in form and operation."

62 At 238 (162), his Honour said:

“The section in its operation, if not necessarily on its face, deals not with proof, but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried . Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed." (Underlining added.)

63 At 278 (252) Hayne J said:

“I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence. The legislation dealt with by the Privy Council in Liyanage v The Queen might be seen to have been of that kind."

64 (See also Brennan CJ at the conclusion of page 187 (19).)

“The Court must find the facts and apply the law which, at the relevant time, prescribe those antecedent rights and liabilities. Finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends."

65 Mr Lange argued that Nicholas' case does not, as a matter of principle, extend beyond its application to legislation curtailing or altering a discretion. I accept that the case was one dealing with a discretion to exclude evidence of facts and not precisely with proof. The statement of the principles, however, appears to me to extend to and apply generally to legislation of the type under consideration in the present matter. This appears especially so in the judgment of Gummow J and it is inherently so in the remarks of Brennan CJ and Hayne J. All three judges were part of the majority in Nicholas.

66 Having regard to these principles, the question for determination may now be formulated more precisely: if 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), does the subject legislation distort that predominant characteristic? (Or to put the question in terms of Hayne J's remarks in Nicholas, is the language of the statute "so radical and pointed" that it could be seen, in substance, to deal "with ultimate issues of guilt or innocence?")

67 In my view the answer to these questions must be in the negative. I will now turn to the legislation to examine why this is so.

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).

70 The certificate itself bears out these matters fully. First, it annexes the warrant and records when the carrier was notified of its issue. It also records when it was received by Optus. These are plainly matters of formality only. Secondly, it records "acts or things done" by employees to enable the warrant's execution. They are technical matters, not described in any detail, which demonstrate no more than that those technical steps were such as were "necessary" to enable "the listening to and recording" at ASIO of the communications conducted using the service 02-9707-3250 as they passed through the Optus network.

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. There is no need for me to set out in detail the elements of the offence in this decision. I have done so in earlier decisions. They may be discerned, in any event, from an examination of the statutory provisions I have set out earlier at pages 4 and 5. The relevant sections of the terrorism legislation are also set out at pages 2 to 4.

72 I turn now to consider Mr Lange's principal argument. Mr Lange argued that any circumstantial fact in proof of the elements of the charge cannot be conclusively certified by legislation without impairing the essential character of a Court. Such legislation, he argued, would usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt. Mr Lange submitted that it must be for the jury to find every circumstantial fact. A circumstantial fact here, he argued, is that the accused downloaded material from the Internet over or during a certain period.

73 In my opinion, Mr Lange's proposition is far too broad. It would mean that no facts, however remote from the issue of guilt or innocence, would ever be capable of conclusive certification. Moreover, Mr Lange's proposition is at variance with the principles stated in Nicholas in any event.

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.

75 I will not address the evidentiary circumstances in the present case. But, to take an example removed from the present case, a circumstantial fact may include the name of a street in which a particular house is situated; it may include the presence and identity of other streets nearby; whether they run north or south, or who may be the registered proprietor of a particular house in a street at any time. All these facts might, in a particular case, be circumstantial facts, that is, facts that do not themselves have to be proved beyond reasonable doubt, but which are part of the overall Crown case. Indeed, circumstantial facts may be almost endless in their nature, number and scope. Would certification of any of those facts distort the curial process? I think not. 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 the 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.

77 Another way of testing Mr Lange's proposition is to ask - in the face of the certificate, what matters could the accused in the trial dispute, or what matters could he raise by way of evidence in contradiction?

78 There are clearly a number of matters the accused could contradict, despite the presence of the certificate. The onus of course would lie on the Crown to prove its case beyond reasonable doubt. The accused might, however, and no doubt will in this trial, contradict the strength of the one circumstance represented by the interception, namely the fact that material was downloaded from the Internet on to Amina Cheikho's computer, if it be hers. First, the accused could bring evidence to show that the subscriber to the service was not at the relevant time Amina Cheikho. He might show, for example, that the subscription had been terminated previously by the Cheikho family and that there was an error in the carrier's records as to the service name.

79 Secondly, he might show that the Cheikho family had moved from the address at 29 Myall Street, Punchbowl, or that they were not in residence there at the time when the downloading occurred. He might show, at the very least, that he was not there at the relevant time.

80 Thirdly, he might deny, in any event, that it was he who had downloaded the material. Other people may have been living in the house at the time, including members of his family. These people may have had access to the computer.

81 Fourthly, he might argue that the material was harmless and said nothing as to a terrorist attempt. He might seek to have it excluded under s 137 of the Evidence Act as unfairly prejudicial. Finally, he might simply argue, for whatever reason, that it was simply impossible to assert that the material came from the intercepted service. In my opinion, the 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.

82 Mr Lange raised a number of subsidiary arguments. The first was an argument based on "natural justice". This must be answered by the principal analysis I have already undertaken. 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. There is, in any event, no infringement of due process. In my opinion, the American authorities referred to by Mr Lange have no real part to play in the present discussion.

83 I do bear in mind, however, that the accused's real complaint is that he is unable to challenge the facts certified in the April 2008 certificate. This complaint really arises out of a sense of forensic chagrin at being deprived of a challenge to the legitimacy of the warrants. In turn, the thwarted challenge itself was based on a certain view of the facts conclusively certified in the earlier February 2007 certificate. I shall, at the conclusion of this judgment, say something about this aspect of the matter. For the moment, however, I will make two points: First, the legitimacy of a warrant is normally a matter for the Judge and not the jury. Secondly, the legitimacy of the warrant (the argument precluded by Mr O'Brien's 2008 certificate) is not a matter which prevents the full scope of the natural justice rules applying to the trial of the accused and to the determination of his guilt or innocence.

84 The next argument may be described as a "facts in issue" argument. Mr Lange sought to draw some support from the decision of the High Court in Cornwell v The Queen. That decision, in my opinion, has nothing to say in relation to the present controversy. It was concerned with an extremely narrow point, namely the construction of s 128(8) of the New South Wales Evidence Act. The issue of construction turned to a very large extent on a historical analysis of the section and its predecessor in the United Kingdom legislation. The remarks referred to by Mr Lange in the majority judgment are concerned with whether, in the rules of the law of evidence, there is any distinction and, if so, what it is between "facts in issue" (a phrase appearing in s 128(8) and elsewhere in the evidence Act) and "facts relevant to facts in issue". The passage, as I say, has no bearing on the questions of constitutional principle apparent from Gummow J's remarks in Nicholas.

85 A second subsidiary argument derived from Cornwell was a repetition of the argument based on CEO of Customs v El Hajje (2005) 224 CLR 159. This was advanced by Mr Lange in his primary written submissions and repeated in oral submission. In that case, an excise prosecution had been brought against the defendant. The statement of claim contained a number of averments, including that the tobacco in question fell within the description of "manufactured excisable goods". The Court of Appeal had allowed an appeal from conviction on the basis that an ultimate fact in issue was not properly the subject matter of an averment. The High Court upheld the appeal before it on the basis that there was no statutory warrant or useful distinction, in the statutory context, to contrast "ultimate facts in issue" and other kinds of fact or evidence. The averment provision, the Court held, was concerned with "what is to be proved".

86 It may be properly said, as Mr Burmester QC argued, that the analysis in the case of El Hajje, relied on by the accused, relates only to the High Court's rejection of a gloss that the lower courts had read into a particular phrase used in a particular statute. By way of contrast, it seems clear, in my opinion, that Gummow J in Nicholas was intending to convey the importance of a fundamental distinction, for the purpose of his constitutional analysis, between "ultimate facts being the elements of the offence" and other facts. The point of distinction might be described as the very edge of the pathway, to trespass beyond which would be to fall into constitutional invalidity.

87 Neither of the two authorities referred to by Mr Lange in this subsidiary argument undermined, in my opinion, the principles emerging from Nicholas.

88 The final point in reply requiring comment is Mr Lange's analysis of s 11.5(2) of the Criminal Code. It is true, as counsel observed, that an element of the offence is that "the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement". Of course in the present matter, there are eight other accused and the Crown has placed reliance on over 130 overt acts. Nonetheless, the downloading of the extremist material (by all the accused) is said by the Crown to be one overt act. Does this result in a situation where the certificate 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 acts by employees of the 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.

89 There is no need for me to comment on the remarks of Kirby J in Silbert's case beyond noting that those remarks were, as Mr Burmester QC pointed out, obiter in a judgment arguing in dissent that special leave ought to have been granted.

Section 80 argument

90 Section 80 of the Constitution provides that "trial on indictment of any offence against any law of the Commonwealth shall be by jury..." Mr Lange referred to the fact that the High Court had, in its early years, described one of the essential features of the institution of trial by jury in the following terms:

“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. ( Huddart Parker & Co Pty Limited v Moorehead (1909) 8 CLR 30, 375 per O'Connor J.)

91 Mr Lange also drew the Court's attention to the more recent remarks of the High Court in Cheatle v The Queen (1993) 177 CLR 541, 549:

“The 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".

92 Mr Lange's argument was brief and to the point. He argued that, because the jury here will not be permitted to ascertain the truth based upon facts which it finds, it does not act as a jury within the meaning of s 80 of the Constitution. Accordingly, he argued, s 18(2) TIA violates s 80 of the Constitution.

93 Mr Burmester QC pointed out that the High Court has accepted that there are essential features of trial by jury that are guaranteed by s 80 of the Constitution (Cheatle v R at 557-558; Ng v R (2003) 217 CLR 521 at (9) per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ (citing Brownlee v R (2001) 207 CLR 278 at 284-5, 287, 288-9, 291-2, 298, 299-300, 303.)

94 The "essential" features of a trial by jury are to be discerned from the purpose which s 80 of the Constitution serves, and to the constant evolution, both before and after federation, of the characteristics and incidents of jury trial. Mr Burmester argued that only those incidents which are regarded as fundamental are placed beyond the reach of the legislature. Senior counsel submitted that, relevantly here, the purpose which s 80 was intended to serve was that the jury should decide each of the elements of the crime with which the accused is charged, and that they should do so unanimously. Viewed in that way, the legislation could not be said to be unconstitutional.

95 In my opinion, the submissions of Mr Burmester are to be preferred. 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. Accordingly, the challenge to the legislation based on s 80 of the Constitution must fail.

A final observation

96 I remarked earlier that Khaled Cheikho's lawyers' real complaint is that they consider they have been precluded from challenging the warrants because of the 2008 certificate. They say this is unfair. They say it denies them the opportunity of raising a legitimate concern with the warrant process. The resulting situation, they say, is that there will be a tender before the Court of a certificate which may state a falsity. The truth will not be placed before the tribunal of fact. Of course, all this is beside the constitutional point at issue. It was sketched in this way, as Mr Waterstreet made plain, to provide a realistic and perhaps colourful background to enlarge the narrow ambit of an otherwise dry constitutional argument.

97 Of course, I have only heard Mr Waterstreet on the point. I have heard no submissions from the Crown in relation to Mr Waterstreet's complaint. But I must say that my tentative and preliminary reaction to an examination of the difference between the two certificates is that the difference, such as it is, is simply not capable of being of the kind described by Mr Waterstreet. 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 overly specific about the way intercepts are transmitted to ASIO. The dealings of that agency, often for legitimate reasons, are attended with a certain level of secrecy. 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. Although the second certificate is short on technical detail, it makes it clear, consistently with my preliminary reading of the 2007 certificate, that the interceptions went directly to ASIO and not, in any illegitimate way, to Optus employees. Consequently, there does not seem to be anything in the nature of an abuse of process involved in the Crown's proposal to place reliance on the 2008 certificate.

98 For all the reasons set out in this decision, I find that both constitutional challenges to s 18(2) TIA 1979 must fail.

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