The Queen v Bryan Joseph Law

Case [2007] NTSC 26

R v Law & Ors [2007] NTSC 26

PARTIES:THE QUEEN

v

BRYAN JOSEPH LAW

DONNA MAREE MULHEARN

ADELE MARGARET GOLDIE

JAMES JOSEPH DOWLING

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:20529991

20529995

20529975

20529976

DELIVERED:  18 April 2007

HEARING DATES:  21 March 2007

JUDGMENT OF:  THOMAS J

REPRESENTATION:

Counsel:

Crown:H Dembo

Defendants:R Merkel QC and R Orr

Secretary, Department of

Defence and The Commissioner,

Australian Federal Police:            M Maurice QC

Solicitors:

Crown:Commonwealth Director of Public Prosecutions

Defendants:Northern Territory Legal Aid Commission

Secretary, Department of

Defence and The Commissioner,

Australian Federal Police:            Australian Government Solicitor

Judgment category classification:        C

Judgment ID Number:  tho200703

Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Law & Ors [2007] NTSC 26
No. 20229991, 20529995, 20529975, 20529976

BETWEEN:

THE QUEEN

AND:

BRYAN JOSEPH LAW

DONNA MAREE MULHEARN

ADELE MARGARET GOLDIE

JAMES JOSEPH DOWLING

CORAM:     THOMAS J

REASONS FOR JUDGMENT

(Delivered 18 April 2007)

  1. This is an application by the defendants for discovery pursuant to Rule 81A.28(1) of the Supreme Court Rules. The defendants’ seek the following orders from the Court:

    “1.The Secretary of the Department of Defence make discovery of the following documents:

    (a)all documents that evidence or record the decision made by the Minister of State for Defence on or about 2 November 1967, to declare pursuant to s 8 of the Defence (Special Undertakings) Act 1952 (Cth) (the Act), an area of land described in the Schedule to that declaration to be a prohibited area for the purposes of the Act, as recorded in the Commonwealth of Australia Government Gazette No. 96 published on 9 November 1967 (‘the s 8 decision’);

    (b)the documents prepared for consideration or considered by the Minister of State for Defence for the purposes of the s 8 decision;

    (c)the files and other documents of the Department of Defence prepared for the purposes of the s 8 decision;

    (d)the documents that evidence or record the decision made by the Minister of State for Defence on or about 2 November 1967, to declare pursuant to s 6 of the Act, the work or undertaking described in the declaration to be a special defence undertaking, as recorded in the Commonwealth of Australia Government Gazette No. 96 published on 9 November 1967 (‘the s 6 decision);

    (e)the documents prepared for consideration by or considered by the Minister of State for Defence for the purposes of the s 6 decision;

    (f)the files and other documents of the Department of Defence prepared for the purposes of the s 6 decision;

    (g)the documents that evidence or record the decision made by the Minister of State for Defence on or about 13 July 1992, to revoke the s 6 decision and to declare, pursuant to s 6 of the Act, the work or undertaking described in the declaration to be a special defence undertaking, as recorded in the Commonwealth of Australia…

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AGLC
The Queen v Bryan Joseph Law [2007] NTSC 26
Case
[2007] NTSC 26
Decision Date

CaseChat Overview and Summary

The defendants in this case seek discovery of specific documents from the Secretary of the Department of Defence, the Commonwealth Director of Public Prosecutions, and the Commissioner of the Australian Federal Police. The documents in question relate to decisions made by the Minister of State for Defence under the Defence (Special Undertakings) Act 1952 (Cth), and to agreements or arrangements concerning the use of a specific area for defence purposes. The defendants argue that these documents are necessary for their defence in the proceedings against them.

The legal issues before the court were whether the defendants were entitled to discovery of the specified documents, and if not, whether the counts in the indictments should be permanently stayed or an alternative date fixed for the return of the subpoenas. The court had to balance the defendants' right to a fair trial against the public interest in maintaining the confidentiality of certain documents. The court also had to consider the relevance and admissibility of the documents in question.

The court held that the defendants were not entitled to discovery of the specified documents. The court found that the documents contained sensitive information that, if disclosed, could potentially harm national security and the interests of Australia. The court also found that the documents were not relevant or admissible in the proceedings against the defendants. Accordingly, the court refused the defendants' application for discovery and declined to make any orders for a permanent stay of the counts in the indictments or to fix an alternative date for the return of the subpoenas.

The final orders of the court were that the defendants' amended application for discovery and alternate orders was refused. The defendants were not granted discovery of the specified documents, and no further orders were made in relation to the counts in the indictments or the subpoenas.

Orders

Orders of the court

The defendants' amended application for discovery and alternate orders is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is an application by the defendants for discovery pursuant to Rule 81A.28(1) of the Supreme Court Rules. The defendants’ seek the following orders from the Court:“1.The Secretary of the Department of Defence make discovery of the following documents:(a)all documents that evidence or record the decision made by the Minister of State for Defence on or about 2 November 1967, to declare pursuant to s 8 of the Defence (Special Undertakings) Act 1952 (Cth) (the Act), an area of land described in the Schedule to that declaration to be a prohibited area for the purposes of the Act, as recorded in the Commonwealth of Australia Government Gazette No. 96 published on 9 November 1967 (‘the s 8 decision’);(b)the documents prepared for consideration or considered by the Minister of State for Defence for the purposes of the s 8 decision;(c)the files and other documents of the Department of Defence prepared for the purposes of the s 8 decision;(d)the documents that evidence or record the decision made by the Minister of State for Defence on or about 2 November 1967, to declare pursuant to s 6 of the Act, the work or undertaking described in the declaration to be a special defence undertaking, as recorded in the Commonwealth of Australia Government Gazette No. 96 published on 9 November 1967 (‘the s 6 decision);(e)the documents prepared for consideration by or considered by the Minister of State for Defence for the purposes of the s 6 decision;(f)the files and other documents of the Department of Defence prepared for the purposes of the s 6 decision;(g)the documents that evidence or record the decision made by the Minister of State for Defence on or about 13 July 1992, to revoke the s 6 decision and to declare, pursuant to s 6 of the Act, the work or undertaking described in the declaration to be a special defence undertaking, as recorded in the Commonwealth of Australia Government Gazette No. 29 published on 22 July 1992 (‘the further s 6 decision’);(h)the documents prepared for consideration or considered by the Minister of State for Defence for the purposes of the further s 6 decision;(i)the files and other documents of the Department of Defence prepared for the purposes of the further s 6 decision:(j)the agreements or arrangements that evidence or record the defence or other purposes for which the area on which the offences are alleged to have been was being used or were intended to be used:(i)as at November 1967;(ii)as at July 1992;(iii)at the time of the alleged offences;2.the Commonwealth Director of Public Prosecutions make discovery of the following documents:(a)the documents referred to in paragraphs [43] to [46] of the Statement of Facts provided by the Crown on 15 September 2006 and referred to in para [16] of the Outline of Crown Argument dated 10 October 2006;(b)the documents that evidence or record the matters set out in paragraphs [43] to [46] of the Statement of Facts provided by the Crown on 15 September 2006 and referred to in para [16] of the Outline of Crown Argument dated 10 October 2006;(c)the agreements or arrangements that evidence or record the defence or other purposes for which the area on which the offences are alleged to have been committed was being used or intended to be used:(i)as at November 1967;(ii)as at July 1992; and(iii)as at the time of the alleged offence.3.the Commissioner of the Australian Federal Police make discovery of the following documents:(a)all notes, running sheets, memoranda, correspondence, reports and other documents relating to the response of the Commonwealth or its officers including police officers to the proposed inspection of the Pine Gap Joint Defence Facility by members of Christians Against All Terrorism on 9 December 2005;(b)the documents referred to in paragraphs [43] to [46] of the Statement of Facts provided by the Crown on 15 September 2006 and referred to in para [16] of the Outline of Crown Argument dated 10 October 2006;(c)the documents that evidence or record the matters set out in paragraphs [43] to [46] of the Statement of Facts provided by the Crown on 15 September 2006 and referred to in para [16] of the Outline of Crown Argument dated 10 October 2006;4.In the event that the orders for discovery are not made, or if those orders are made and the documents ordered to be discovered are not produced for inspection, an order that each count in each indictment be permanently stayed;5.Alternately a date be fixed for the return of the subpoenas relating to the above matters copies of which have been served on the parties.

Ratio Decidendi

Legal Principle Established

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