The Queen v Law

The Queen v Law & Ors [2008] NTCCA 4
PARTIES:THE QUEEN

v
LAW, Bryan Joseph
DOWLING, James Joseph
GOLDIE, Adele Margaret
MULHEARN, Donna Maree

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 8 of 2007 (20529991, 20529976, 20529975 & 20529995)
DELIVERED:  19 MARCH 2008
HEARING DATES:  20 - 22 FEBRUARY 2008
JUDGMENT OF:  MARTIN (BR) CJ, ANGEL AND RILEY JJ
APPEAL FROM:  THOMAS J
CATCHWORDS:
APPEAL – CRIMINAL LAW
Appeal against conviction – Crown appeal against sentence – prohibited area – statutory construction – discovery in criminal proceedings – miscarriage of justice – appeal against convictions allowed – Crown appeal against sentence abandoned – no retrial – acquittal.
Crimes Act 1914 (Cth); Criminal Code 1983 (NT) s 411 and s 413; Evidence Act 1995 (Cth), s 153 and s 153(2); Judiciary Act 1903 (Cth), s 78B; Supreme Court Rules (NT) O 81A.28.
Air Canada v Secretary of State for Trade [[1983] 2 AC 394; R v Young (1999) 46 NSWLR 681; Thompson v Goold & Co [1910] AC 409; Vickers, Sons & Maxim Ltd v Evans [1910] AC 444; Wentworth Securities v Jones [1980] AC 74; Wills v Bowley [1983] 1 AC 57; Koufos v Czarnikow Ltd [1969] 1 AC 350; Director of Public Prosecutions (VIC) v Selway (2007) 172 A Crim R 359; Felice v County Court of Victoria [2006] VSC 12; Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154; R v Saleam (1989) 16 NSWLR 14; Burmah Oil Co Ltd v Bank of England (1980) AC 1090; Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR; Ragg v Magistrates’ Court of Victoria [2008] VSC 1; R v Spizzirri [2000] QCA 469, applied.
R v Harm (1975) 13 SASR 84, cited.
Alister v The Queen (1984) 154 CLR 404; Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Trenerry v Bradley (1997) 6 NTLR 175, Hudson v Branir Pty Ltd (2005) 15 NTLR 35; B v The Queen (1992) 175 CLR 599, followed.
Fitzgerald v Magistrates’ Court of Victoria (2000) 34 MVR 448; Sankey v Whitlam[(1978) 142 CLR 42. referred to.
REPRESENTATION:
Counsel:
First Respondent & Cross Appellant:    Self Represented
Second Respondent & Cross Appellant:   Self Represented
Third & Fourth Respondents
and Cross Appellants:  R Merkel QC, R Orr and R Goldflam
Appellant &Cross Respondent:            P Usher and A Cooper
Solicitors:
Appellant & Cross Respondent: Office of the Director of Public Prosecutions
Respondents & Cross Appellants: Northern Territory Legal Aid Commission
Judgment category classification:      A
Judgment ID Number:  Mar0804
Number of pages:  75

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Law & Ors [2008] NTCCA 4

No. CA 8 of 2007 (20529991, 20529976, 20529975 & 20529995)
BETWEEN:

THE QUEEN

Appellant and Cross Respondent

AND:

BRYAN JOSEPH LAW

First Respondent and Cross Appellant

JAMES JOSEPH DOWLING
Second Respondent and Cross Appellant

ADELE MARGARET GOLDIE
Third Respondent and Cross Appellant

DONNA MAREE MULHEARN
Fourth Respondent and Cross Appellant

CORAM: MARTIN (BR) CJ, ANGEL AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 19 March 2008)
Martin (BR) CJ:
Introduction

The cross appellants (“the defendants”) were convicted by a jury of offences against the Defence (Special Undertakings) Act 1952 (Cth) (“the Act”) and the Crimes Act 1914 (Cth). The convictions were based upon their entry on 9 December 2005 into the grounds of the Joint Defence Facility at Pine Gap in the Northern Territory (“the Facility”) and damage caused to perimeter fences in order to gain access. The learned trial Judge imposed fines upon each of the defendants and the Director of Public Prosecutions (“the Director”) appealed against the sentences on the basis that they were manifestly inadequate.
There was no appeal against the convictions under the Crimes Act relating to damage caused to the perimeter fences. Initially only two of the defendants, Ms Goldie and Ms Mulhearn, cross appealed against their convictions under the Act for the offences based on entry into the grounds of the Facility. Their grounds alleged errors by the trial Judge in preliminary rulings which the defendants contended led to other errors and to deficiency in the proof offered by the Crown in support of the charges. In addition the defendants complained that the trial Judge erred in refusing applications for discovery of documents which in turn led to a denial of procedural fairness.
At the early stages of the trial when preliminary issues of law were argued before the trial Judge, all defendants were represented by counsel. However, the defendants were unrepresented during the trial before the jury. On appeal, Mr Law and Mr Dowling remained unrepresented, but Ms Goldie and Ms Mulhearn were represented by senior counsel who argued the preliminary issues before the trial Judge.
During the hearing of the appeal the Court drew the attention of counsel to the terms of the directions to the jury and questioned whether the trial Judge had erred in failing to leave for determination by the jury a fundamental question of fact comprising an element of the offences charged. This observation led to the addition, with leave, of a ground of appeal complaining that a miscarriage of justice occurred by reason of the failure of the Judge in that regard. Mr Law and Mr Dowling then applied for leave to appeal against their convictions for offences under the Act based upon entry into the grounds of the Facility and leave was granted.
At the conclusion of hearing counsel as to the appeal against convictions, the Court indicated that the appeals would be allowed. The Director then abandoned the appeals against sentences. The Court ordered that the convictions be quashed and that verdicts of acquittal be entered. The Court declined to order a retrial and indicated that it would deliver written reasons for its decision.
I now set out my reasons for allowing the appeals and declining to order a retrial. As will be apparent from the reasons, in my view errors occurred in the trial which resulted in the wrongful exclusion of evidence and a failure to leave a relevant question for determination by the jury. These errors resulted in a miscarriage of justice.
Background
The defendants were charged with unlawfully entering a prohibited area, namely, the Facility, contrary to s 9(1) of the Act. They were also charged with using a camera in the same prohibited area contrary to s 17(1) of the Act. Sections 9 and 17 are as follows:
“9     Unlawful entry etc.
(1)A person is guilty of an offence if:
(a)the person is in, enters or flies over an area; and
(b)the area is a prohibited area.
Maximum penalty:       Imprisonment for 7 years.
17Use of cameras etc.
(1)A person is guilty of an offence if:
(a)the person is in or is passing over a prohibited area; and
(b)the person has in his or her possession, carries or uses a camera or other photographic apparatus or material.
Maximum penalty:       Imprisonment for 2 years.”
It was common ground that the defendants cut perimeter fences surrounding the Facility and entered onto the premises where cameras were used by all defendants except Mr Law. In addition to other defences not relevant to the appeal, one of the issues raised by the defendants concerned the evidence upon which the Crown intended to rely as proof that the Facility was a “prohibited area” for the purposes of s 9 and 17 of the Act. The defendants were seeking to challenge the Crown case that the Facility was a prohibited area in December 2005 when the defendants entered the premises.
Prohibited Area
The Act provides two mechanisms by which an area may become a “prohibited area” for the purposes of the Act. Through the operation of s 7 of the Act, a place used or occupied for the purposes of “special defence undertaking” is a prohibited area. Exceptions are identified in s 7(2). Section 7 is as follows:
“7 Prohibited areas
(1)A place (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) used or occupied for the purposes of a special defence undertaking is a prohibited area for the purposes of this Act.
(2)Subsection (1) does not apply to:
(a)a railway, tramway, roadway, wharf, pier or jetty, or a work or structure which is part of or connected with a means of transport by land, water or air;
(b)the area on which is erected or situated a searchlight, lighthouse, buoy or other navigational aid;
(c)a public building, fire station, aerodrome, air station or runway for aircraft;
(d)a signal, telegraph, telephone, radar or wireless station or office; or
(e)a place used for gas, water or electricity works or other works for purposes of a public character;
unless it is used or occupied exclusively for the purposes of a special defence undertaking.”
The term “special defence undertakings” is defined in s 6:
“6. Special defence undertakings
A work or undertaking which:
(a)is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for or in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
(b)is declared by the Minister, by notice in the Gazette, to be a special defence undertaking:
is a special defence undertaking for the purposes of this Act.”
In addition to the operation of ss 6 and 7, power is given to the relevant Minister by s 8 to declare that an area is a prohibited area “if it is necessary for the purposes of the defence of the Commonwealth” to make such a declaration. Section 8 is as follows:
“8 Minister may declare prohibited areas
If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be, for the purposes of this Act, a prohibited area.”
By notices published in the Commonwealth of Australia Gazette (No 96) dated 9 November 1967 (“the Gazette”), pursuant to ss 6 and 8 of the Act the Minister declared the Facility to be a special defence undertaking and a prohibited area. In July 1992 the 1967 declaration pursuant to s 6 was revoked and was replaced by a new declaration.
Ruling by Trial Judge
Prior to trial, the defendant sought particulars as to the evidence upon which the Crown intended to rely in proving that the Facility was a prohibited area. The Crown having indicated that it intended to rely upon both notices published in the Gazette, the trial Judge was asked first to determine as a preliminary question of law whether the notice published in the Gazette pursuant to s 8 was capable of amounting to proof that the Facility was a prohibited area for the purposes of the Act. The trial Judge ruled in favour of the Crown that the notice given in 1967 under s 8 was sufficient to prove that the Facility was a prohibited area at the time of entry, namely, 9 December 2005. As a consequence of that ruling, the Crown eschewed reliance upon the notice pursuant to s 6. The only evidence adduced by the Crown before the jury as proof that the Facility was a prohibited area was the notice given pursuant to s 8.
The notice in the Gazette of 9 November 1967 pursuant to s 8 read as follows:
“DECLARATION OF A PROHIBITED AREA
IN pursuance of the powers conferred on me by section eight of the Defence (Special Undertakings) Act 1952–1966, I, Allen Fairhall, Minister of State for Defence, being satisfied that it is necessary for the defence of the Commonwealth to do so, hereby declare the area of land described in the Schedule hereunder to be a prohibited area for the purposes of that Act.”
The Schedule to the notice set out the area declared to be a prohibited area which encompassed the Facility.
The notice in the Gazette declaring that the Facility was a special defence undertaking pursuant to s 6 was as follows:
“DECLARATION OF A SPECIAL DEFENCE UNDERTAKING
WHEREAS, by section six of the Defence (Special Undertakings) Act 1952-1966, it is provided that a work or undertaking which –
(a)is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
(b)is declared by the Minister by notice in the Gazette, to be a special defence undertaking.
is a special defence undertaking for the purposes of that Act.
WHEREAS the work or undertaking that is being carried or is to be carried out at Alice Springs in the Northern Territory of Australia for the establishment, maintenance and operation of the Joint Defence Space Research Facility is a work or undertaking that is being and is to be carried out in part for or in relation to the defence of Australia and in part for or in relation to the defence of the United States of America, being a country associated with Australia in preparing to resist international aggression:
NOW therefore, I, Allen Fairhall, Minister of State for Defence, do hereby declare the following work, that is to say, the work or undertaking that is being or is to be carried out at Alice Springs in the Northern Territory of Australia for the establishment, maintenance and operation of the Joint Defence Space Research Facility to be a special defence undertaking for the purposes of the Defence (Special Undertakings) Act 1952-1966.
Dated this second day of November 1967.”
Pursuant to s 153 of the Evidence Act 1995 (Cth), the Gazette is admissible as evidence of the notices and declarations by the Minister. Section 153(2)(b) provides that “it is presumed, unless the contrary is proved, that the act [the making of the declarations] was duly done …”. The Gazette having proved that the declaration was made pursuant to s 8, the Crown submitted that the tendering of the Gazette would prove that the Facility was a prohibited area for the purposes of the crimes charged.
The defendants submitted that the Gazette alone was incapable of proving that the Facility was a prohibited area because of the objective precondition in s 8 that the declaration be “necessary for the purposes of the defence of the Commonwealth”. The defendants contended that the existence of this objective precondition to the valid exercise of the power conferred on the Minister by s 8 required the Crown to prove that the declaration in 1967 was “necessary for the purposes of the defence of the Commonwealth” (“defence purposes”).
In response to the defendants’ contentions the Crown advanced the proposition that the precondition to the valid exercise of the power conferred by s 8 was not an objective precondition that the declaration was, in fact, necessary for defence purposes. The Crown submitted that the precondition was subjective and required the Minister to be satisfied that the declaration was necessary for defence purposes.
At the conclusion of submissions, in determining whether, as a matter of law, the tender of the Gazette amounted to sufficient evidence to establish that the Facility was a prohibited area for the purposes of the Act in December 2005, the trial Judge accepted the Crown contention that the precondition to the exercise of the power conferred by s 8 is subjective and s 8 “should be read as meaning”:
“Where the Minister is satisfied that it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may … declare an area … to be … a prohibited area”.
As will appear later in these reasons, in my opinion it was not necessary for her Honour to deal with the competing contentions as to the construction of s 8. The tender of the Gazette established at least a prima facie case that the Facility was a prohibited area. In my view the precondition is objective, and the Judge erred in this regard, but in order to establish a prima facie case it was not necessary for the Crown to prove the objective fact that the declaration in 1967 was necessary for defence purposes or remained necessary for such purposes in 2005.
The Judge delivered written reasons for her decision. Her Honour identified the preliminary question of law in the following terms:
“[W]hether, on the totality of the evidence that the Crown has particularised as evidence upon which it proposes to rely, the Crown can establish, as a matter of law, that the area on which each of the defendants are alleged to have committed offences under [the Act], was a ‘prohibited area’ under s 8 of the Act, at the time the offences were allegedly committed.”
In the context of the debate as to whether the precondition to the exercise of power was objective or subjective, and whether the words “where the Minister is satisfied” should be read into s 8, her Honour cited the following observations of Spigelman CJ, with whose judgment Abadee and Barr JJ agreed, in R v Young (1999) 46 NSWLR 681 at [5] – [8]:
“5The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what parliament meant by the words it used, not to determine what Parliament intended to say: see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; [1978] 1 All ER 948 at 952; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459.
6In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.
7The most frequently cited formulations are:
‘… It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’
Thompson v Goold & Co [1910] AC 409 at 420, per Lord Mersey; and
‘… we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.’
Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445, per Lord Loreburn LC.
To similar effect is the following formulation:
‘Additional words ought not to be read into a statute unless they are required in order to make provision intelligible.’
Wills v Bowley [1983] 1 AC 57 at 78B.
8The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used.”
The Judge accepted the submission by the Crown that as the Minister is in charge of administering the Act, the Legislature intended that the Minister should make the decision as to whether the declaration is necessary for defence purposes. Her Honour expressed the view that the construction for which the Crown contended promotes the purpose of the Act “and is necessary to make the section intelligible”. She observed that to construe s 8 otherwise “would result in a farcical situation where the Crown would have to call evidence on matters of national defence which presumably the defendants could seek to rebut”.

The last observation of the Judge concerning the calling of evidence appears to be based upon a view that if the precondition is an objective fact, the tendering of the Gazette could not amount to proof that the area was prohibited. In my opinion such a view is not correct.
On the basis of her views, the Judge expressed her conclusion as to proof that the area was a prohibited area in the following terms:
“[29] On the evidence on which the Crown proposes to rely, section 8 of the Defence (Special Undertakings) Act 1952 (Cth) establishes that the subject area of the land as set out in the Schedule and known as Pine Gap was a ‘prohibited area’ within the meaning of the Act at the time the offences were allegedly committed.”
On the hearing of the appeal, counsel for the Director, who was not counsel at the trial, eventually conceded that the trial Judge erred in her construction of s 8. That concession was properly made. The words of s 8 are not ambiguous and the ordinary and natural meaning of the words must prevail. The existence of an objective precondition to the making of the declaration does not detract from the fundamental purposes of the Act, namely, the ability to protect areas from entry by unauthorised persons when it is necessary to do so in the interests of the defence of Australia. Nor does such a precondition render the section unintelligible. In view of the objective precondition to the making of a declaration pursuant to s 6, it is not surprising that the Legislature intended to require the existence of an objective precondition to the valid exercise of the power to make a declaration pursuant to s 8. There is no basis for a conclusion that the words “Where the Minister is satisfied” were omitted from s 8 by inadvertence.
As to the principles to be applied, it is sufficient to refer to the observations of Spigelman CJ in Young cited by her Honour, together with the additional remarks of his Honour which followed immediately after the cited passage [9] – [12]:
“9The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107:
‘My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.’
10The passage has been adopted and applied in this Court ...
11The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.
12As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.” (citations omitted)
In my opinion, neither of the second and third conditions identified by Lord Diplock exist. The words of s 8 are not open to the construction favoured by the trial Judge. The precondition to the valid exercise of the power conferred by s 8 is the objective fact that the declaration is necessary for defence purposes.
For these reasons, in my view the trial Judge erred in her construction of s 8. However, it does not follow from the error that the Gazette was not capable of amounting to proof that the Facility was a prohibited area for the purposes of the Act at the time of entry in December 2005.
Section 8 confers a power on the Minister, the exercise of which has a consequence, namely, that the area declared by the Minister is a prohibited area for the purposes of the Act. In the absence of challenge to the validity of the exercise of the power, and in the absence of any material suggesting that the exercise of the power may not have been valid, the Court is entitled to act upon the declaration and to accept it as at least prima facie proof of the consequence of the exercise of the power, namely, that the area was a prohibited area. In my view, the Legislature cannot have intended otherwise. The construction for which the defendants contended would mean that in every prosecution involving an area declared prohibited pursuant to s 8, the Crown would be required to adduce evidence that at the time the declaration was made it was necessary for defence purposes to make the declaration. In addition, if the declaration was made under s 6, on that construction in every prosecution based on a s 6 declaration it would be necessary for the Crown to prove that, at the time of the declaration, a work or undertaking was being carried out, or was to be carried out, “for or in relation to the defence of Australia …”. The Legislature cannot have intended such consequences.
The exercise by the Minister of the power conferred in either ss 6 or 8 brings with it a presumption that the power was properly exercised. The presumption of regularity was concisely stated by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164:
“… where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions are necessary to the exercise of that power or the doing of that act have been fulfilled …”.
In my opinion, therefore, although the trial Judge erred in her construction of s 8, the tendering by the Crown of the Gazette established at least a prima facie case that, as from 9 November 1967, the Facility was a prohibited area. Further, in my view the tendering of the Gazette established at least a prima facie case that the Facility was a prohibited area at the time the defendants entered the premises on 9 December 2005. There may or may not be good reason for doubting that 38 years after the declaration it remained necessary for defence purposes that the Facility be declared a prohibited area, but the declaration of 1967 remains in force and has effect until revoked or declared invalid by a court. Again, if the defendants are correct that by the effluxion of time the declaration ceases to be prima facie proof that the area is prohibited, theoretically the declaration could cease to have effect within a few days of it being made. The defendants were unable to identify any principle or authority to support their contention. The continuing effect of the declaration does not deny the possible existence of grounds for challenging the continuing validity of the declaration, but in the absence of such a challenge and material to support the challenge, the declaration remains at least prima facie proof that the area is prohibited.
Adequacy of Notice
During submissions, counsel for the defendant pointed out that the notice in the Gazette did not contain a statement that the declaration was “necessary for the purposes of the defence of the Commonwealth”. A somewhat faint argument was developed that the absence of those words affected the validity or adequacy of the notice. This was combined with reference to the words in the notice stating that the Minister was satisfied that the declaration was necessary for the defence of the Commonwealth.
In my opinion, the absence of words that the declaration was “necessary for the purposes of the defence of the Commonwealth” does not affect the validity of the notice or the operation of the declaration. Section 8 provides that the Minister may, by notice, declare an area to be a prohibited area. The fundamental requirement is that the notice comply with s 8 by declaring an identified area to be a prohibited area. That fundamental requirement was met by the terms of the notice. It is not an essential requirement that the notice itself state that the declaration is necessary for defence purposes.
As to the words in the notice that the Minister was “satisfied that it is necessary for the defence of the Commonwealth” to declare the area prohibited, in my view the presence of those words does not affect the validity of the notice or the operation of the declaration. As was pointed out during submissions, the words are surplus to the requirements of the notice, but they have no effect upon its validity.
Course of Trial
The ruling by the trial Judge that the precondition to the exercise of the power under s 8 was satisfaction by the Minister that the declaration was necessary, rather than the objective fact that the declaration was necessary for defence purposes, significantly altered the course of the trial to the detriment of the defendants.
First, it influenced her Honour’s approach to a preliminary question concerning discovery of documents by the Secretary of the Department of Defence (“the Secretary”). Secondly, as a consequence of the erroneous rulings and views formed by the trial Judge as to admissibility of evidence, the defendants were denied the opportunity of pursuing legitimate forensic issues and lines of defence. The defendants were seeking to challenge the Crown case that the Facility was a prohibited area. They sought to mount that challenge on the basis that the 1967 declaration was invalid because, at that time, the declaration was not necessary for defence purposes. In turn, the defendants sought to establish that in 1967 the Facility was not being used for defence purposes. In addition, the defendants sought to advance their case that the Facility was not a prohibited area in 2005 on the basis that, in 2005, the Facility was primarily used for the purposes of aggression rather than defence and, therefore, the continuation of the declaration was not necessary for defence purposes. The trial Judge ruled that evidence as to these issues was inadmissible.
It is appropriate to note that following the ruling by the trial Judge, in the conduct of the trial it appears to have been overlooked that in challenging the validity of the declaration, the defendants were entitled to attack the basis upon which the Minister in 1967 reached his state of satisfaction that the declaration was necessary for defence purposes. If, as an objective fact, the declaration was not necessary for defence purposes, that fact could be used by the defendants to mount an argument that in the absence of a factual basis for the declaration the Minister could not reasonably have been satisfied that the declaration was necessary for defence purposes. This was a way in which the defendants could seek to attack the validity of the declaration under the terms of her Honour’s ruling. However, as I have said, this basis of relevance appears to have been overlooked.
Use of Facility in 2005
As to the question of a change in the purpose and use of the Facility since 1967 the trial Judge noted the submission of counsel for the defendants:
“He submitted that the purpose of the Facility may have changed considerably since 1967 and may have become a Facility less relevant to the defence of Australia. If that has occurred then it is argued for the defendants that this is very relevant to their defence as the documents may show that the Facility at Pine Gap is no longer necessary or relevant to the defence of Australia.”
This submission, also advanced on the appeal, was based upon the contention that if in 2005 the Facility was not relevant to defence purposes, the declaration made in 1967 would no longer be valid. Counsel urged that this conclusion follows as a matter of proper construction of s 8 and also because the constitutional underpinning of the exercise of the power would no longer exist. The latter proposition involves the interpretation of the defence power contained in s 51(vi) of the Constitution. As notice has not been given under s 78B of the Judiciary Act 1903 (Cth), counsel agreed it would be inappropriate for this Court to deal with the constitutional question.
The trial Judge expressed the view that the only time at which the Minister needed to be satisfied that the declaration was necessary for the purposes of the defence of Australia was the time at which the declaration was made. Acting on that view, it appears that her Honour rejected the proposition that the declaration of 1967 would not be valid in 2005 if, in 2005, the Facility was no longer required for defence purposes. In addition, her Honour found that there was “no evidence” that the Facility had ceased to be used for defence purposes.
Although the constitutional underpinning of s 8 is clearly relevant to the construction of s 8 in this context, in my opinion, as a matter of construction of s 8 without recourse to constitutional considerations, there is a strong argument that a declaration under s 8 remains valid only while it remains necessary for defence purposes.
As I have said, the purpose of s 8 and other provisions concerned with prohibited and restricted areas under the Act is to enable the relevant authorities to protect land and facilities used for defence purposes from unauthorised entry and inspection. The basis of the powers conferred by the Act is protection of special defence undertakings and other areas, including land and water, where it is necessary for defence purposes to establish the protection. Significantly, the protection by prohibition or restriction of entry is accompanied by significant criminal sanctions, including imprisonment for a maximum period of seven years.
The Legislature must be taken to have understood the potential for interference with rights of passage and rights to enjoy land as well as the significance of the criminal sanctions. It is unlikely that the Legislature intended that a declaration founded on necessity for defence purposes should continue to be in force and effect after that foundation has ceased to exist. The evident purpose of the legislative scheme is achieved by the operation of the declaration throughout the period during which the declaration is necessary for defence purposes. Beyond that period, at a time when the declaration is no longer necessary for defence purposes, interference with rights and the existence of criminal sanctions would exist for no useful purpose.
As a matter of construction of s 8, therefore, in my opinion there are strong arguments in favour of the view that while a declaration under s 8 remains valid until revoked or declared invalid by a court, the ongoing validity of the declaration may be challenged on the basis that at the relevant time the declaration was no longer necessary for defence purposes. On this construction, if in 2005 the declaration that the Facility was a prohibited area was no longer necessary for defence purposes, the declaration would have been invalid and the Facility would not have been a prohibited area. On this view it would be open to the defendants to challenge an essential element of the Crown case, namely, that as at the date of entry onto the premises of the Facility, that area was a prohibited area.
As I have concluded that there are other reasons why the trial miscarried, and in view of the lack of a notice given under s 78B of the Judiciary Act and the inability of the Court to address the constitutional question, it is neither necessary nor appropriate to reach a final conclusion as to the construction of s 8 in this regard.
Discovery/Production
Following the ruling by the Judge as to the operation of the notice pursuant to s 8, the defendants sought an order under O 81A.28 of the Supreme Court Rules requiring the Secretary to make discovery of documents relating to the declarations pursuant to s 6 and s 8. Discovery was also sought from the Commonwealth Director of Public Prosecutions and the Commissioner of the Australian Federal Police. Although the order sought “discovery”, the ultimate purpose of the defendants was to obtain production of the documents, at least for inspection by the trial Judge and, hopefully, for subsequent disclosure to the defendants.
It is unnecessary to set out in full the details of the documents sought by the defendants. Essentially, they sought all documents relating to the 1967 declarations under ss 6 and 8 together with all documents relating to the revocation of the declaration under s 6 in 1992 and the further declaration made under s 6 on 22 July 1992. In addition, the defendants sought discovery of “the agreements or arrangements that evidence or record the defence or other purposes for which the area … was being used or were intended to be used …” in November 1967, July 1992 and December 2005. In other words, the defendants sought documents directed to the purpose of the Facility in those years with a view to addressing the objective question of whether the declarations were necessary for defence purposes in 1967, 1992 and December 2005.
The application for discovery was supported by affidavits from Mr Law and the solicitor for the defendants. The latter deposed to a view, based on advice from counsel, that “serious issues concerning the validity of the s 8 declaration” existed. The trial Judge noted that “such issues primarily concerned whether the s 8 declaration was invalid” by reason of being “ultra vires or affected by jurisdictional error because the Minister, inter alia, failed to address the correct question, erred in law in the consideration of the preconditions for the exercise of the power conferred by s 8, failed to take into account relevant considerations or otherwise constructively failed to exercise the power conferred by s 8 in making the s 8 declaration.” Her Honour found, correctly in my view, that the affidavits amounted to speculation.
The trial Judge declined to order discovery and delivered written reasons for her decision. In the context of her Honour’s ruling as to the construction of s 8, a reading of her Honour’s reasons in their entirety leads me to the conclusion that her Honour did not consider whether the documents sought might be relevant to a defence that in 1967 the Facility was not used for defence purposes and, therefore, the declaration was not necessary for defence purposes. In my view, her Honour erred in that regard. It must be said, however, that on the material before her Honour it seems unlikely that her Honour would have reached any different view had she addressed the correct question. Her Honour rejected the application on the basis that it amounted to no more than a fishing exercise and it seems likely that she would have taken the same view in relation to the objective question.

In rejecting the application for discovery to the extent that the documents related to the Minister’s state of satisfaction in 1967, the trial Judge relied upon the well known passage in the judgment of Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 414 in which his Honour used the oft quoted expression “on the cards”. The relevant passage is set out in para [65] of these reasons. Counsel for the defendant submitted that her Honour erred in her application of Alister. The submissions raised important questions as to the proper interpretation of Alister and the correct approach to applications for discovery in criminal matters. Before dealing with these questions, however, it is appropriate to consider the application in the context of the Northern Territory Supreme Court Rules which govern such an application.
As a general rule, there is a “long standing principle that there is no discovery in criminal cases”: R v Saleam (1989) 16 NSWLR 14 at 19. It is unnecessary to explore the limits of that principle as it has been modified by the Supreme Court Rules. Order 81A.28(1) provides as follows:
“81A.28 Discovery, inspection and preservation of property
(1) If it appears that a person (other than the accused) has or is likely to have, or had or is likely to have had, in his or her possession or power a document that relates to a question likely to be raised at the trial of the accused, the Director or the accused may apply to the Court for an order that the person make discovery to the applicant of the document.”
The balance of O 81A.28 concerns procedures to be followed in respect of discovery. If the Court does not specify a method of discovery, it may be completed by delivering a list of documents or producing the original documents for inspection. If a list is provided, the applicant may apply to the Court for an order that the documents or some of them be produced to the applicant for inspection.
There are many authorities concerning discovery in the civil context which discuss the type of circumstances in which an application for discovery amounts to an abuse of process and the general principles applicable to questions of discovery. It is unnecessary to embark upon a discussion of those authorities and principles.
Order 81A.28 is concerned with discovery of documents “relating to” a “question likely to be raised at trial”. The first issue to be considered is the nature of the “question” that is “likely to be raised at the trial”. In the case of the defendants, the ultimate question was whether, in December 2005, the Facility was a prohibited area. At the heart of this question was the validity of the declaration. In turn, the question as to the validity of the declaration necessarily involved the purpose or purposes of the Facility and whether, in 1967 (and probably 2005), the declaration was necessary for defence purposes.
Next, O 81A.28 required the Court to consider whether the Secretary was or previously had been in possession of such a document or was “likely” to be or have been in possession of a document that “related to” such a question. The answer to that question must be positive. Plainly it was likely that the Secretary had been in possession of, and was currently in possession of, documents “relating to” the purposes of the Facility.
Order 81A.28 does not expressly require that before discovery will be ordered the applicant must satisfy the Court that the document sought is likely to materially assist the applicant. Nor does the rule expressly require an applicant to establish that it is “on the cards” or reasonably possible that the document will materially assist the applicant. Order 81A.28(1) requires only that the applicant make it “appear” to the Court that the document “relates to a question likely to be raised at the trial”.
Although the submissions of the parties before the trial Judge recognised that the application was based on O 81A.28, and the tests posed in various authorities could not be substituted for the test posed by O 81A.28, the defendants accepted that decisions in other contexts were of assistance to the Court. The Secretary submitted that the ordinary principles applied by courts in relation to civil discovery and subpoenas should guide the Court in the exercise of the discretion.
In substance the arguments proceeded on the basis that the discretion to order discovery under O 81A.28 was governed by those principles which apply to an application for discovery or a subpoena for production of documents in jurisdictions where such applications are not governed by the content of Rules. As a consequence, before the trial Judge and on the appeal the parties did not address the interaction between O 81A.28 and those principles applied in other jurisdictions. Nor did the parties address possible constraints on the exercise of the discretion to order discovery once it “appears” to the Court that the person from whom discovery is sought is likely to have or have had in their possession a document that “relates to” a question likely to be raised at the trial. These issues are discussed further later in these reasons.
I return to the decision of the High Court in Alister and the issues raised by the defendants as to the proper interpretation of Alister and the correct principles to be applied to questions of discovery and production in criminal matters not governed by O 81A.28.
In Alister, the Court was concerned with a claim for public interest immunity over documents held by the Australian Security Intelligence Organisation (“ASIO”). Alister and others (“the applicants”) had been convicted of conspiracy to murder and attempted murder. It was the Crown case that the applicants belonged to an organisation called Ananda Marga and had discussed their plans with the principal Crown witness, Richard Seary, who had pretended to join the applicants, but had informed the police of their activities. The defence claimed that the entire prosecution case was a “fabrication and frame-up”. The conduct of Seary and his credibility were of critical importance.
It was public knowledge that Seary had joined Ananda Marga as an undercover agent for ASIO and the subjects of his enquiries were Ananda Marga and the previous bombing of the Hilton Hotel. The applicants sought production of all notes and reports made by Seary concerning Ananda Marga and the applicants. Gibbs CJ noted that it was not known whether Seary made reports to ASIO concerning the applicants, but it was “not unreasonable” to suggest that Seary made reports to ASIO concerning Ananda Marga and the applicants. Further, Gibbs CJ observed that there was “not the least ground to suppose that any such reports were favourable to the applicants’ case” and that “if one were to speculate, one would guess that any reports made by Seary would be adverse to the applicants” (414).
At trial, and on appeal, the Attorney-General had resisted the application on the basis of public interest immunity. The assertion was made that the public interest would be harmed by disclosure of the fact whether the documents existed and, if they did exist, by their production. The trial Judge initially determined to examine the documents, but after further consideration of relevant authorities upheld the claim for public interest immunity.
It was in this context, that Gibbs CJ addressed the principles to be applied in determining whether the Judge should look at documents in respect of which a claim for public interest immunity had been made. His Honour said (414 and 415):
“Both Burmah Oil Co Ltd v Bank of England [(1980) AC 1090] and Air Canada v Secretary of State for Trade [[1983] 2 AC 394] support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade [[1983] 2 AC at p 439], he must have ‘some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition’. In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam [(1978) 142 CLR at pp 42, 62]), so in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done” (my emphasis).
The ordinary and natural reading of the passage cited, particularly those parts I have emphasised, leads to a conclusion that Gibbs CJ was applying the “on the cards” test that the documents “will materially assist the defence” to consideration of “whether to inspect documents for the purpose of deciding whether they should be disclosed”. If the process is regarded as a two stage process in which the Court must first decide whether to inspect the documents, on an ordinary reading of his Honour’s words he was applying the “on the cards” test at the first stage. Counsel for the defendants submitted, however, that a close consideration of the facts reveals that the Chief Justice must have been applying the test to the second stage after the Court has inspected the documents and is determining whether the documents should be disclosed to the accused person. The decision in Alister, so it was said, is not explicable if the “on the cards” test applies at the first stage of determining whether to inspect the documents. Counsel contended that this conclusion was inevitable because it was unknown if the documents sought existed or, if they did exist, it was likely that they would not assist the applicants’ case. Against that background the High Court ordered the production of documents for inspection by the Court. Hence, it was suggested, Gibbs CJ cannot have intended that before production for inspection would be ordered it must appear to be “on the cards” that the documents “will materially assist the defence”. Similarly, it was contended that the application of the “on the cards” test as to whether to order inspection does not sit well with his Honour’s observation that “if it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused”. In this context the Chief Justice added that to refuse discovery for that reason alone would leave the accused “with a legitimate sense of grievance, since he will not be able to test the evidence of the witness by comparing it with the report …”. How could it be said, asked the defendants, that it was “on the cards” that the documents would materially assist the defence if there were no grounds for thinking that a report, if it existed, could assist the accused and, quite the contrary, it was more likely that a report would have been unfavourable to the applicants?
Having analysed the decision of Gibbs CJ in this way, counsel urged that special considerations apply in criminal matters. This was the view taken by Gibbs CJ in Alister. Counsel contended that inspection should be ordered if the documents “appear to be relevant to a bona fide issue in the trial”. However, counsel was unable to refer the Court to any authority supporting his analysis of the decision of Gibbs CJ and he did not refer to any authority to support the test for which he contended. Unfortunately, counsel for the Director did not address these important questions.
In Alister, Murphy J expressed his conclusion in the following passage (431):
“The authorities which have been reviewed by the Chief Justice persuade me that the trial judge should have inspected the documents subpoenaed to ascertain if they contained anything which tended to show that the case against the accused was fabricated (or otherwise tended to assist the accused in their defence, either directly, for example, by providing a basis for cross-examination, or indirectly, by pointing to the existence of other material which might assist).”
Brennan J agreed that the trial Judge erred in setting aside the subpoena and declining to inspect the documents (if they existed) to determine whether they were relevant. His Honour reached that conclusion in circumstances where, in his Honour’s view, the trial Judge did not know whether there were any documents to be produced, “but there were good grounds for suspecting that there were”. In addressing the competing interests raised by the claim for public interest immunity, and whether inspection should be ordered, Brennan J said (455 and 457):
“But how should the balance be struck, if there were a document upon which ‘the innocence of a person accused might depend’, a document which showed that the defence case was right in alleging that the Crown case was a ‘fabrication and a frame-up’? Should the court inspect the ASIO documents to ascertain whether such a crucial document existed? If there were an ASIO file of documents answering the description in the subpoena and if it contained a document showing the Crown case to be a fabrication and a frame-up, it is impossible to suppose that every consideration – of national security and justice to the accused alike – would not demand its inspection by the accused and, if admissible, its production in evidence. Unless the trial judge inspected the ASIO documents (if there were any), it was impossible to discover whether such a crucial document existed.
That circumstance shows the subpoena to have been merely the hook cast in a fishing expedition in the hope of catching something worthwhile to the defence case. When the defence undertakes a fishing expedition, should the court abstain from inspecting documents in the possession of the Crown for which public interest immunity has been claimed? In Air Canada v Secretary of State for Trade [[1983] 2 AC 394], a case in which an objection to production was taken in proper form, it was accepted that the court would inspect documents with a view to ordering their production if, to cite Lord Wilberforce’s criterion there were ‘some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition’ [[1983] 2 AC at p 439]; some concrete ground for believing that the documents contained material substantially useful to the party seeking discovery. Air Canada v Secretary of State for Trade was concerned with discovery in a civil action. This is a criminal case. The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court’s power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law. The procedural safeguards are neither easy to devise nor simple to apply. On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest. It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man’s liberty, and the balance must tilt that way: cf. Sankey v Whitlam [(1978) 142 CLR at pp 42, 61 – 62].
The power of a criminal court to compel the production of government documents on the application of an accused person is a safeguard of individual liberty, but the power must be carefully used. The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents. In the present case, the charges against the accused stand high in the calendar of crimes, the central issue was whether the accused had been framed by security forces and the affidavit was unsatisfactory since it claimed a blanket immunity from disclosure. In these circumstances, the learned trial judge ought to have inspected the documents sought by the subpoena (if any documents existed) to ascertain whether one or more documents showed the alleged fabrication and frame-up” (my emphasis).
In a joint judgment, Wilson and Dawson JJ dissented. Their Honours observed that a “bare unsupported assertion that on inspection something may be found that is helpful to the defence is not enough” (439). In their Honours’ view, the case for the applicants broke down because even if it was assumed that ASIO was in possession of reports from Seary, the applicants had “no idea what they would contain”. Their Honours referred with apparent approval to the observation of Lord Fraser of Tullybelton in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436 that a court “should inspect documents only where it has definite grounds for expecting to find material of real importance to the party seeking disclosure”. Having referred to those observations, their Honour noted that it might be “contended that in a serious criminal case a court should apply a lower standard where an accused person seeks the production of documents for which immunity is claimed, at least in deciding whether to inspect the documents for itself”. Their Honours added, however, that they doubted “whether a satisfactory criterion [could] be found which falls between the requirement that a likelihood be shown and a mere hopeful anticipation” (439).
I have been unable to identify any authority in which the interpretation of the remarks by Gibbs CJ in Alister for which the defendant contended has been discussed. Numerous authorities concerned with criminal trials have applied the “on the cards” test at first stage of determining whether the documents should be produced for inspection by the Court. In particular, in the leading authority of R v Saleam (1989) 16 NSWLR 14 Hunt J, with whose judgment Carruthers and Grove JJ agreed, spoke of the criterion identified by Gibbs CJ in Alister “as that which had to be satisfied before a court should inspect the documents in relation to which a claim for public interest immunity had been made” (18). His Honour went on to say that the same criterion “is appropriate to be applied also when the trial Judge has to determine whether access should be granted to the document subpoenaed …” (18).

In conclusion I record my agreement with the observations of the Chief Justice regarding the present status of the legislation and the subject declarations following this judgment.

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[2008] NTCCA 4

19 MARCH 2008

Key Legal Topics

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Criminal Law

Statutory Interpretation

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Appeal

Charge

Statutory Construction