Thomas v The Queen & Anor

[2008] HCATrans 259

[2008] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M46 of 2008

B e t w e e n -

JOSEPH TERRENCE THOMAS

Applicant

and

THE QUEEN

First Respondent

DIRECTOR‑GENERAL OF SECURITY

Second Respondent

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 22 JULY 2008, AT 9.30 AM

Copyright in the High Court of Australia

MR J.H. KENNAN, SC:   I appear with MR M.J. CROUCHER for the applicant.  (instructed by James Dowsley & Associates)

MR. N.T. ROBINSON, SC:   I appear with MR M.J. GIBSON for the first respondent.  (instructed by Director of Public Prosecutions (Cth))

MR S.P. DONAGHUE:   I appear for the second respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Kennan.

MR KENNAN:   Your Honour, we have come to the view that we do wish to seek to add to the application book some material that is classified and that material is the affidavits, three of which seek ‑ ‑ ‑

HIS HONOUR:   Are you able, without difficulty, to identify more particularly the affidavits of which we speak, or does the identification of the affidavits present a difficulty?

MR KENNAN:   I do not think it does.  There is an open affidavit of Mr Alan Masling, your Honour, sworn on 12 March 2008.

HIS HONOUR:   Yes.

MR KENNAN:   The classified affidavits are one sworn on 12 March 2008, another sworn on 12 March 2008 and another affirmed on 7 April 2008.  Exhibited to the affidavit of the first is the material that was discovered by ASIO pursuant to the subpoena which is the central material on which the argument of knowledge of ASIO of the conversations with the ABC was based.

HIS HONOUR:   Now, why is the inclusion of any of those documents necessary, as distinct from some lesser expression, for the proper determination of the application for special leave, for that is the requirement of rule 41.09.7, to demonstrate necessity?

MR KENNAN:   Yes, your Honour.  Your Honour, ordinarily one might have expected that the judgment would have canvassed the factual matters in some detail, but the judgment itself does not descend to any significant detail as to those matters and, in particular, for instance, your Honour, at paragraph 10 of the judgment there is a reference to knowledge on the part of an officer of ASIO being aware there was an attempt by an ABC TV journalist to interview the applicant with a view to preparing a story.

HIS HONOUR:   Now, is that not a complete statement of the relevant fact to the issue that must be determined on the application for special leave, that is to say ‑ ‑ ‑

MR KENNAN:   No.

HIS HONOUR:   Well, let me finish.  The Court of Appeal has proceeded, has it not, on the footing, if you like, upon a finding of fact, though that may be putting it rather highly, but has proceeded on the footing that ASIO knew certain matters.  Is that right?

MR KENNAN:   The extent to which they found that ASIO knew certain matters is not clear, we would say, your Honour.  Certainly, in paragraph 10 they found a conversation in April 2005.

HIS HONOUR:   But be it so, there is, I would have thought – or it is at least recorded in paragraph 10 that it is not in dispute that the fact of the ABC interviews was unknown to the DPP and relevant officers of AFP at the time of trial.  That is step one.  Step two is that from as early as April 2005 an officer of ASIO knew, said to be “was aware” of the fact that ABC was “attempting to interview” Mr Thomas and that “Then and subsequently, ASIO became aware of a number of conversations”.  Now, what further factual matter than that is necessary for the determination of the application for special leave?  I say at once I do not ask you to describe in open court what you say might be identified as those further facts, on the contrary.  But what more do you need than the fact that ASIO knew that there was at least some talk of Mr Thomas being interviewed by the ABC?

MR KENNAN:   Well, we say it is relevant that if there is knowledge that the interviews had in fact been carried out and that there was, for argument’s sake, discussion on the intercepted telephone conversations concerning, for instance, the applicant’s parents wanting to see what was going to be shown, that that takes the argument and the facts further than is elucidated.

HIS HONOUR:   Why?

MR KENNAN:   Because it goes further to the extent of the knowledge of ASIO because one of the ‑ ‑ ‑

HIS HONOUR:   The Court of Appeal has acted, has it not, on the footing that what is relevant was the DPP and AFP knowledge and that whatever ASIO knew, it was not to be imputed to DPP and AFP.  Is that right?

MR KENNAN:   They did, your Honour.

HIS HONOUR:   What more, on the application for leave, is necessary than that?  I understand that if leave were to be granted and we get to an appeal, perhaps, perhaps not, the question becomes different, but at leave, what more do you need than the fact that ASIO knew more than AFP and DPP?  The Court of Appeal has proceeded on the footing that whether or not ASIO knew anything more does not matter; their knowledge is not to be imputed to AFP and DPP.

MR KENNAN:   Your Honour, there is the second aspect of the argument which is the section 18(3) aspect which is the question as to whether or not it could be said that the material that they had reasonably could be inferred to appear to relate to the commission of an indictable offence and, therefore, could be handed over.  Therefore, we would say the extent of the knowledge, the full extent of the knowledge as disclosed by the subpoenaed material is relevant in considering whether the Court of Appeal was correct, which we challenge, in saying that it could not be said to appear to relate to the commission of a criminal offence.

HIS HONOUR:   Now, that relates, does it, because you will need to take me through this a little more slowly I fear because I do not think I am quite following the intricacy of the argument – if you go to paragraph 52 of the Court of Appeal:

In our view, there is no reasonable argument that ASIO was authorised by s 18(3)(a) to communicate to the AFP the information in its possession . . . The fact that [Mr Thomas] was speaking to a journalist . . . was itself unremarkable . . . the fact that [Mr Thomas] was to be - or had been - interviewed was not information which ‘related, or appeared to relate’ to the commission of an indictable offence.  On the contrary, this activity was, on the face of it, entirely lawful.

What is the argument that would be advanced on leave to which the detail of what ASIO knew would be necessary for the development of the argument?

MR KENNAN:   Simply because we say, your Honour, that what appears to relate to the commission of an indictable offence flowing from the conversations as recorded by ASIO to some extent depends on the understanding and knowledge of and reference to the full extent of what was recorded and noted by ASIO.

HIS HONOUR:   Sorry, I am being slow, Mr Kennan.  The fault is mine, not yours.  Do you mind repeating it?

MR KENNAN:   Yes, your Honour.  That insofar as we are seeking to agitate that this material, that is the discovered material, which is recordings with some annotations by ASIO of conversations between the journalist and the applicant, we say that that appears to relate to, or ought to have been inferred as appearing to relate to the commission of a criminal offence.  To make good that proposition, or to argue it as best we may, your Honour, we need therefore to be able to refer, at least in passing, to, and for the Court to know what it is that we say that ASIO had recorded and their notations about that recording.

HIS HONOUR:   I am just trying to articulate in my own mind the way in which the argument might run, Mr Kennan, and I am anxious not to put you in a difficult position, which is a position I should not – let it be assumed for the purpose of argument, regarded to where the truth lies, that this material would reveal that ASIO knew that the interview that was proposed or had occurred had Mr Thomas talking about past activities outside Australia which would constitute an offence against Commonwealth law.  Let that be assumed and let us not stay to identify whether that is or could be or might be the position.  The argument for leave becomes, does it, the Court of Appeal should have, but did not, find as a fact that ASIO had in its possession material relating to the commission of a past offence against a law of the Commonwealth.  Is that step one of the argument?

MR KENNAN:   Had in its possession, your Honour, material that might appear to relate to.

HIS HONOUR:   Let us wrap it up and let us put it at what might be the highest from your point of view.  Let it be assumed that the material ASIO had was material that related to the commission of a past offence by Mr Thomas.  Where does the argument go from there?

MR KENNAN:   That then it was permissible, your Honour, for ASIO to have, in the words of the Court of Appeal, tipped off the AFP about it and further inquiries to have been made.  It is at that point in paragraph 52 that the Court of Appeal said that suggested inference because of action.  They go on in paragraph 53, your Honour, to say was “offensive to fundamental notions of privacy and freedom of speech, and ignores the express limitations on ASIO’s activities”.

HIS HONOUR:   Yes.

MR KENNAN:   They go on to say why they say that section 18(3) is not satisfied.

HIS HONOUR:   Yes.  Now, that chain of reasoning of the Court of Appeal is right or wrong, it is good or bad, it is relevant or irrelevant and those are debates that will occur later.  For the purposes of the argument on leave, why do we need to go beyond the factual footing that is revealed in the Court of Appeal?  In particular, why is it necessary for your side of the argument to be able to do more than make the argument, “Look, ASIO had all this information.  The detail of it is not before you.  For all you, the Court, knows, that information was information revealing, not only material relating to a past offence, but revealed the commission of a past offence and the Court of Appeal has said – see paragraph 53 – that ASIO could not, should not have tipped off.  That is the error of which we complain.”

MR KENNAN:   Your Honour, the difficulty as we saw it was that the Court of Appeal had said, after reading the very material, that the inference was not made out.

HIS HONOUR:   Yes, I understand that and you want to challenge that.

MR KENNAN:   We are asking this Court, without this Court having the advantage of seeing that material, to say that the Court of Appeal was in error.

HIS HONOUR:   Yes.  Anything you would wish to add, Mr Kennan?

MR KENNAN:   Not on that matter, your Honour, but we also wanted to refer to the evidence of the informant, some of which was classified, not all of which is in the judgment and we do so simply on this basis.  Part of our special leave in (No 4) is that there was co‑operation in the investigation and prosecution between ASIO and the AFP such that it could be said, or should be said, that ASIO, for purposes of evidence, fresh evidence and, by analogy, disclosure, was part of the prosecution.  We refer to the English case of Blackledge in our outline of argument in that connection.

Now, that was held not to be correct by the Court of Appeal.  They said in essence that the ASIO work was not overlapping but running in parallel with the AFP, that ASIO was not a prosecuting authority and it could not be said in any relevant sense that it was part of the prosecution.  In order to establish and found the argument that they were, your Honour, we rely on what was said in the judgment of Thomas (No 2), that is the judgment of the Court of Appeal setting aside the conviction on the basis of the record of interview being inadmissible together with Thomas (No 3)and Thomas (No 4) but in addition, your Honour, there was specific evidence given by the informant in pre‑trial hearings relating to issues concerning co‑operation between ASIO and AFP in this very prosecution that again we would want to refer to in support of the special leave point regarding the question of was ASIO, for relevant purposes, deemed to be part of the prosecution.

HIS HONOUR:   Yes.

MR KENNAN:   The other matter is, your Honour, we say that we would want to put in the affidavits of ASIO because one of our complaints about the Court of Appeal is the denial of cross‑examination of those deponents and in order to make good that point, over and above the fact of the denial ‑ ‑ ‑

HIS HONOUR:   It is going to be a jam‑packed 20 minutes, is it not, Mr Kennan?

MR KENNAN:   It is, your Honour.

HIS HONOUR:   Yes.

MR KENNAN:   That, obviously, the contents of the affidavits together with material from the informants’ evidence that might be relevant for cross‑examination, we say are relevant.

HIS HONOUR:   Yes, thank you, Mr Kennan.  Now, Mr Robinson, what is the attitude of the first respondent to the application?

MR ROBINSON:   Your Honour, the first respondent’s position is this, that should your Honour have been persuaded by my friend that the matters he seeks to put are relevant on the question of special leave ‑ ‑ ‑

HIS HONOUR:   It is not a question of relevance, it is question of necessity.

MR ROBINSON:   Yes.  If your Honour is satisfied of the necessity, the Crown would accept, your Honour, that unless there are section 22 orders in place, my friend, under the provisions of section 24, would be required to serve notice on the Attorney‑General with the consequence, subject obviously to the Court construing it differently, of the proceedings being adjourned.  In those circumstances, the Crown would consent to such orders as are proposed to allow the matter to proceed rather than be delayed.

HIS HONOUR:   Let me follow the way that submission works with the Act, Mr Robinson.  It is an Act which has its own curiosities.

MR ROBINSON:   It does, your Honour.

HIS HONOUR:   Section 22 contemplates arrangements.

MR ROBINSON:   Contemplates arrangements, your Honour, which may be made by order of the court subject to there being agreement between the parties.

HIS HONOUR:   Yes.

MR ROBINSON:   The effect of the proposed orders is that the regime as to storage and the like, but more particularly as to notice requirements under section 24, which place an obligation upon the prosecution or the defendant as described, where that person knows or believes that, in (1)(a), “he or she will disclose” ‑ ‑ ‑

HIS HONOUR:   Now, why would there be disclosure of such material if the application book upon which the application proceeds does not include such materials?

MR ROBINSON:   The application book would not disclose and there would not be, your Honour.  The question would be whether, if in oral submission, which my friends have sought in the outline filed, if there was reference to that material in any oral submission, your Honour.

HIS HONOUR:   Yes, I understand that, but it would be an unusual course to take in any application for oral submissions to go beyond what is within the application book.

MR ROBINSON:   I would accept that, your Honour.  I do not seek to argue my friend’s case for him.

HIS HONOUR:   No, I understand that, but I think that, for present purposes, we have to proceed on the basis that if I am persuaded that the inclusion of these documents, or any of them, is necessary in the application book, one set of consequences follow.  If I am not persuaded that the inclusion of these documents, or any of them, is necessary, then the conclusion that follows is that the application goes forward on the material within the application book.

MR ROBINSON:   With respect, we would agree, your Honour.

HIS HONOUR:   Yes.  Thank you, Mr Robinson.  Dr Donaghue, what do you say?

MR DONAGHUE:   We agree with that analysis, your Honour.  We do not seek to be heard on the question that Mr Kennan has raised about whether any of this material is necessary, but if your Honour agrees that it is necessary and so it goes in the application book, we support what Mr Robinson said about the consequences under the NSI Act and we have

some draft orders that we can provide the Court if that would assist, if your Honour gets to that point.

HIS HONOUR:   Yes.  Now, Mr Kennan, necessity – I understand, I think, the footing on which you would say each of the documents to which you have referred would be relevant.  What presently troubles me is why inclusion of these documents is necessary.  Is there anything further you would add in relation to necessity to include them in the application book?  Leave aside questions of national security, leave aside the issues that follow from the classification of these documents, ordinarily speaking in an application for leave in a criminal matter, none of this evidence would get within 20 metres of the application book, would it?

MR KENNAN:   Well, it may not, your Honour, but we say the peculiar thing here is that we are appealing against the judgment that we say, with respect, is spartan on these relevant facts, probably by reason of the Court’s concern for national security, that is, it did not want to descend into anything other than the most ‑ ‑ ‑

HIS HONOUR:   It is also spartan on the question of the jurisdiction that has been exercised by the court, which would, I thought, have been an issue to which a deal of attention might have to be directed at the application for leave.

MR KENNAN:   We have put in a paragraph relating to that, your Honour.  We are slower than ‑ ‑ ‑

HIS HONOUR:   The matter can be dealt with in a paragraph.  I am delighted to hear that, Mr Kennan.

MR KENNAN:   We did retreat from this Court last week, your Honour, and give it earnest consideration.

HIS HONOUR:   There is no point my beating around the bush with you, Mr Kennan.  It seems to me that there are lively issues in these applications for leave about (1) what the jurisdiction of the Court of Appeal was to give any judgment in Thomas (No 4) and, (2) why this Court would intervene in what, on its face, is a retrial that has already commenced and commenced when your client was arraigned and entered his plea.

MR KENNAN:   Yes.  We accept that those are issues.  Your Honour, we have endeavoured to address each of them.

HIS HONOUR:   I understand that.  Can we come back to the necessity for these documents for you to argue the points that you would seek to argue,

apart from those two matters that I have already mentioned.  Put those aside, why do you have to have these documents?

MR KENNAN:   Because, your Honour, we would want to refer in passing in oral argument – we do not want to read them out unnecessarily but we would want to refer in passing at least, for the reasons that I indicated before as to both the state of ASIO’s knowledge flowing from the contents of the documents and what might be said to be inferred from that and, secondly, the level of co‑operation between ASIO and the AFP, certainly as far as the informants’ evidence is concerned, is a matter that can only, we say, be best illustrated by some reference to what the informants said on oath about the position.

The third point I would make, your Honour, is that if we do not have a section 22 order, we may find ourselves in the position of not being able to reply to a question from the Court about matters relating to the issues that I have mentioned because the answer might be partly contained at least in documents which are classified, and that would put us at a significant disadvantage and we would say that is a matter of necessity.

HIS HONOUR:   Just one matter of information, Mr Kennan.  Your summary of argument has not yet been filed, I think, has it, or has it?

MR KENNAN:   Yes, it has.

HIS HONOUR:   It has been filed, has it?

MR KENNAN:   In each of them.

HIS HONOUR:   In each of them, yes, I see.  The summary of argument does not present an immediate difficulty.

MR KENNAN:   No, your Honour, we have avoided any express description of classified documents.

HIS HONOUR:   And it is not proposed to amend or supplement or vary that summary of written argument?

MR KENNAN:   No, your Honour.  We were simply seeking to attach, in the application book, documents to it.

HIS HONOUR:   Yes, thank you very much, Mr Kennan.

This application for special leave to appeal was instituted on 7 July 2008.  The applicant seeks special leave to appeal from the whole of the judgment of the Court of Appeal of the Supreme Court of Victoria given on 16 June 2008 refusing the applicant’s application to have that court rescind its order of 20 December 2006 that a new trial be had of certain offences with which the applicant had been charged.

The application for special leave to appeal would seek, if leave were to be granted, orders directing the entry of verdicts of acquittal in respect of the charges in respect of which a new trial has been ordered.  The application for special leave to appeal is presently fixed to come before the Court on its motion day on 1 August next.

The proceedings out of which the application for special leave to appeal emerges are proceedings in which there has been reference to some national security information and they are proceedings in which, both in the Court of Appeal and at trial, evidence was adduced which reveals matters in respect of which claims are made for secrecy on account of national security.

The application for special leave to appeal has proceeded to the point where the applicant has filed his summary of argument.  The respondents are due to file their summaries of argument soon.  The Rules of Court provide in rule 41.09 that, for the purposes of an application for special leave to appeal, there shall be an application book and rule 41.09.2 identifies the contents of an application book.  Rule 41.09.7 provides that:

A party shall attach to the summary of argument filed by that party, for inclusion in the application book –

amongst other things –

(a)any document necessary for the proper determination of the application which was tendered in evidence at trial or was tendered in evidence in the court below, and which would not otherwise be included in the application book –

The applicant now seeks to have included in the application book, four affidavits that were filed in the Court of Appeal, together with some documents that were produced in answer to a subpoena issued for the purposes of those proceedings in the Court of Appeal.  In addition, the applicant would seek to have included in the application book certain evidence given at trial by the informant which, so it is submitted, would reveal the degree of co‑operation that was extended between the Australian Security Intelligence Organisation (ASIO), the Commonwealth Director of Public Prosecutions and the Australian Federal Police (AFP) in relation to the investigation of and charging of Mr Thomas.

The applicant submits that the inclusion of these documents, or at least some of them, is necessary for the proper determination of the application for special leave on three separate bases.  First, the applicant submitted that he would want “to refer in passing” to the state of knowledge of ASIO about an interview which Mr Thomas is alleged to have given to an ABC journalist concerning matters relevant to the charges the subject of prosecution.  It is submitted that ASIO’s knowledge of the fact of that interview, the fact that the interview had been proposed and what was said to the journalist concerned about the interview, will bear upon whether the Court of Appeal was right to conclude, as it did, that it should not rescind the order for retrial, which it had earlier pronounced in December 2006.

In its reasons for decision the Court of Appeal recorded - see [2008] VSCA 107 at 10 – that:

It is not in dispute that, at the time of the trial, the fact of the ABC interviews was unknown to those directly responsible for the conduct of the prosecution, that is, the relevant representatives of the Director of Public Prosecutions and the relevant officers of the Australian Federal Police (‘AFP’).  From as early as April 2005, however, an officer of the Australian Security Intelligence Organisation (‘ASIO’) was aware that an ABC TV journalist was attempting to interview –

I interpolate Mr Thomas –

with a view to preparing a story for the national current affairs program ‘Four Corners’.  Then and subsequently, ASIO became aware of a number of conversations between [Mr Thomas] and the journalist.

In the Court of Appeal it was submitted on behalf of the applicant that because ASIO had in its possession, before the commencement of Mr Thomas’ trial, information about what was then a proposed ABC interview, the statements made by Mr Thomas in that interview with the ABC TV journalist could not be treated as fresh evidence.  This was so, so the Court of Appeal recorded the argument:

because what was known to ASIO at that time was either known to AFP/DPP or was capable of being ascertained – and, hence, was ‘knowable’ by AFP/DPP.

See [2008] VSCA 107 at 11.

These arguments were rejected by the Court of Appeal and Mr Thomas would seek, on appeal to this Court, to challenge the rejection of those arguments.  The question which immediately arises for determination by me is whether the particular content of information known to ASIO at any particular time in the chronology of events which give rise to this prosecution is a matter necessary for the proper determination of the application for special leave.

On the material advanced this morning I am not persuaded that it is necessary for the proper determination of the application for special leave that the details of what was known or not known to ASIO at any particular point of time is necessary for the proper determination of the application for special leave.  Rather, the determination of the application for special leave will, in this particular aspect, turn upon the correctness of the conclusion reached by the Court of Appeal that what was known to ASIO at a particular time was either known to or knowable by AFP or DPP and the detail of the content of the information in question is not necessary for the proper determination of that aspect of the application for leave.

The second aspect of the argument advanced on behalf of the applicant concerning the inclusion of further material in the application book focused upon the level of co‑operation between ASIO and AFP in the investigation of and prosecution of Mr Thomas for the charges now in issue.  In that respect the applicant seeks to have included in the application book certain of the evidence tendered at trial from the informant, some of which is evidence in respect of which secrecy is claimed on national security grounds. 

Again, the question that will arise on the application for special leave, as distinct from any subsequent appeal, is whether at the level of principle, it is arguable that the acknowledged involvement of ASIO in interviews of Mr Thomas at various stages is a matter that bears upon whether, as the Court of Appeal concluded, a new trial should be had on account of the matters said to be revealed by the television interview which Mr Thomas gave or whether, contrary to the conclusion reached by the Court of Appeal, no new trial should be had because, having regard to the degree of connection between ASIO and the prosecuting authorities, namely the Director of Public Prosecutions and AFP, what was known to or knowable by ASIO included matters of a kind that should have been taken into account otherwise by the Court of Appeal in determining whether or not to order a new trial.

In my opinion, it is not necessary for the proper determination of the application for special leave that the application book include within it the evidence given at trial by the informant.  In this, as in other aspects of the matters urged on behalf of the applicant, it is important to recall certain basic considerations of principle.  An application for special leave to appeal to this Court is an application for leave to commence a proceeding in this Court.  An application for special leave to appeal to this Court is not the occasion for the hearing and determination of the issues that would be tendered for decision by the Court if leave to appeal were to be granted and an appeal were instituted.  Rather, the application for special leave to appeal is the occasion for the applicant to identify for the Court points which warrant the grant of special leave to appeal. 

In that respect, as has often been remarked in the Court, it is the written submissions of the parties that represent the chief means for parties to identify the special leave point which is said to arise and the reasons why special leave should be granted.  Oral argument of applications for special leave is principally an opportunity for the Court to examine, with the assistance of counsel, matters which are left in a state of uncertainty when regard is had to the written outlines of argument.

Because that is the nature of the proceedings constituted on an application for special leave to appeal, the papers ordinarily before the Court are confined in the manner identified in rule 41.09.  Chief attention must be given in most applications for special leave to appeal to the reasons given in the courts below.  The jurisdiction of this Court is to make such order as should have been made by the court from which the appeal is brought and it is in the reasons of that court that ordinarily parties are to be expected to identify the error of which they complain.

Of course there are cases in which a party alleges that the error is constituted by omission rather than inclusion or identifiable fault in reasoning within the reasons of the Court of Appeal, but this is not a case in which I would understand the applicant to submit that the Court of Appeal omitted consideration of particular matters.  Rather, the applicant submits that the reasons of the Court of Appeal are necessarily truncated because of the sensitivity of certain of the information with which the court was dealing.  The applicant would seek to have this Court have available to it information otherwise subject of secrecy restrictions on account of national security in order that the applicant might amplify the points which otherwise are made in his summary of argument. 

The final matter to which reference should be made is the applicant’s submission that, if arrangements are not put in place now for the reception of the material in question in accordance with the regimes prescribed by the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), the applicant may be put at disadvantage in answering questions raised by the Court in the course of oral argument because the applicant could not answer those questions without reference to classified material.

It is, of course, necessary to approach the present application on the footing that the applicant is to be given every opportunity reasonably necessary to him to advance his application for special leave to best advantage.  In particular, the Court should not place in the way of the applicant any hurdle that need not be placed in his way in seeking to persuade this Court that, whether in the interests of justice generally, or in the interests of justice in this particular case, special leave to appeal should be granted to this Court.

Nonetheless, I am not persuaded that it is yet demonstrated that reference to any of the evidentiary material which the applicant would seek to have included in the application book is necessary for the purposes of determining the application for special leave to appeal.  But for the overlay that is provided by the national security aspects of this matter, I would unhesitatingly have rejected any application to include the evidentiary material in the application book that would go forward for consideration by the Court.

That rejection of inclusion of the material would, of course, have had available the safety net provided by the possibility of reference in oral hearing to any matter to which the applicant saw fit to refer.  That safety net is not available so readily in this application where the applicant and his counsel are fettered as they are by the provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004, as well also as other considerations bearing upon the secrecy of national security information. Even so, I am not persuaded that it is necessary or desirable that this further material be included in the application book. The application is refused.

Mr Kennan, I should expressly advert to the course of oral hearing.  I have made the decision I have.  So be it.  At the oral hearing it will be a matter for your side of the record to take the course which it sees fit.  As is apparent from what I have said, I do not consider the inclusion of these documents necessary for the proper determination of the argument.  The course you take will, as I say, be a matter for you.  If you were to take a course that, contrary to this ruling, were to see you to attempt to refer to such documents, it would evidently be desirable – I would go so far as to say necessary – that you alert your opponents to that and if it were possible to reach some accommodation about it, so much the better.  If it is not, of course, then the Court will rule on these things as the Court sees fit, but all I am saying is what is blindingly obvious, that if these things are going to emerge again, it is better that they emerge where the parties have had an opportunity to discuss them and consider them rather than emerging like a bolt of summer lightning to other parties before the hearing.  Now, you need make no response to that.  I do not expect you to.

MR KENNAN:   Just that we will give attention to it, your Honour.  We accept what your Honour says and we will give consideration of the oral argument and if matters arise we will certainly speak to our friends in advance.

HIS HONOUR:   Yes, thank you.  Adjourn the Court.

AT 10.33 AM THE MATTER WAS CONCLUDED