Regina (C'Wealth) v Baladjam & Ors

Separation of powers argument 32 I shall first outline the submissions of Mr Lange in relation to the separation of powers argument. Section 71 of the Australian Constitution provides: "The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia, and such other Federal Courts as the Parliament creates, and in such other Courts as it vests with Federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other justices, not less than two, as the Parliament prescribes." 33 Mr Lange's arguments commenced with a general statement of principles, none of which are in issue. First, although the legislature may impinge upon the separation of powers embodied in Chapter III of the Constitution by conferring upon a non-judicial body, or officer, a power which calls for the exercise of judicial power, there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature (Liyanage v The Queen (1967) 1 AC 259-289 per Lord Pierce). The prohibition has been expressed in the following terms: "Grants of legislative powers (do not) extend to the making of a law which requires or authorises the Courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a Court or with the nature of judicial power." 34 (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR, 27 per Brennan, Deane and Dawson JJ) 35 Secondly, the nature of the "judicial process" which is to be exercised by Courts vested with the judicial power as described by the Constitution's requirement, has been described in the following terms: "The process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined ( R v Trade Practices Tribunal ; ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR 361, 374 per Kitto J.)" 36 More recently, in Bass v Permanent Trustee Co Limited (1999) 198 CLR 334, 359 at (56) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, this was said: "Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case." 37 Against the background of these well established principles, Mr Lange argued that, dealing specifically with the question at hand, in order for a process to be a "judicial process" as mandated by Chapter III of the Constitution, the following three rules must be observed: · A party must be in a position to meet the case brought against him; · the tribunal of facts must itself ascertain what the relevant facts are; and · the relevant facts must, as far as possible within the process, correspond with those facts which actually existed. 38 Mr Lange argued that, against the background of these "principles" it was plain that s 18(2) of TIA infringed the need for a judicial process and, accordingly, infringed Chapter III of the Constitution. As to the first matter, Mr Lange said that, even if the accused were in a position to contradict the assertions made in the certificate, such evidence could not be adduced since the facts had been proved conclusively by the certification. Consequently, the accused would be unable to meet the case brought against him. 39 As to the second point, the certification procedure effectively delegated the finding of facts to another person or party. The effect of the section, Mr Lange argued, was that the prosecution ultimately determines whether the tribunal of fact must find the fact proved or whether the tribunal may itself investigate the existence of those facts. 40 As to the third point, Mr Lange submitted that a judicial system which operates upon the basis of facts which are demonstrably different from the true facts must be perverse. Such a situation indicates that the institutional integrity of the Court and its process has been damaged. Part of the institutional integrity of a Court is its duty to act, and to be seen to be acting, impartially. 41 In the context of the last matter, Mr Lange argued that a basic principle underlying the distinction between judicial or legislative or executive powers, and the doctrine the separation of powers, premised on that point of distinction, "is that judges of the Federal Courts must be, and must be perceived to be, independent of the legislature and the executive government". Nicholas v The Queen (1998) 198 CLR 173, 200 per McHugh J citing Kable v DPP (1996) 189 CLR 51, 16-117 per McHugh J. 42 Mr Lange then referred to the remarks of Mr Bowen the then Attorney-General for the Commonwealth (Hansard, House of Representatives of 1980 (9 May 1995) when the legislation was introduced.) The Attorney had said: "The matters which will be contained in the certificate are formal matters of evidence only and do not go to any issue before the Court." 43 Mr Lange took issue with the correctness of this. First, he argued that the Crown must prove the admissibility of any evidence which it intends to lead. For this reason, absent the legislation, it would have to prove that the intercepting agency intercepted the correct telecommunication service. Counsel maintained that s 18(2) relieved the Crown of this burden since, presumably, the certificate explicitly certificates that the telecommunication service, as specified in the warrant, was the one intercepted. In that context, Mr Lange referred to the annual reports of the Inspector- General of Intelligence and Security which referred to occasions where ASIO had inadvertently provided a telecommunications carrier with an incorrect telephone number. Secondly, Mr Lange argued that the certificate mechanism appeared to preclude certain arguments concerning the lawfulness or unlawfulness of any particular interception. A comparison of the certificates originally issued and subsequently revoked, in the present case with those which have been recently issued, demonstrates, he argued, the potential to immunise irregular or unlawful conduct by a conclusive certificate. Moreover, the certifier may not have first-hand knowledge of the facts contained in the certificate. 44 Mr Lange acknowledged that Parliament may promulgate rules to regulate the method and the burden of proof (Nicholas v The Queen, 188-191 at (23-26) per Brennan CJ). Mr Lange acknowledged that this was so, but argued that the present legislation was in truth "an impairment of the curial function of finding the facts and hence a usurpation of judicial power". This was a reference to the remarks of Brennan CJ in Nicholas, referring with approval to Williamson v Ah On (1926) 39 CLR 95 117 per Isaacs J. Mr Lange argued that the ultimate question became one as to whether an evidential rule impairs or rather, hinders, the curial function. Applying that test, it was submitted that the present legislation must be held to be unconstitutional. 45 Mr Burmester QC, by way of introduction, pointed to the fact the New South Wales Court of Criminal Appeal has unanimously accepted that a conclusive evidence certificate issued by a telecommunications carrier conclusively establishes the matters contained in it and that, accordingly, any conflicting evidence to the contrary was irrelevant and therefore inadmissible. (R v Deng (1996) 136 FLR 201; 91 A Crim R 80). A similar view had been taken by Martin J in South Australia in R v Bunting & Wagner [2003] SASC 253. Mr Burmester acknowledged that these were not cases dealing with constitutional issues, but nevertheless he submitted, they provide an acceptable landscape against which to commence an examination of the issue. 46 Mr Burmester then took the Court to an examination of the history and text of s 18(2) of TIA. Senior counsel then scrutinised and commented upon the actual material conclusively proved by Mr O'Brien's certificate, pointing out the very limited nature of the factual matters so certified. He referred to the reasons for the legislation as stated in the explanatory memorandum and the second reading speech. All this demonstrated, Mr Burmester said, that the legislation was introduced primarily to protect telecommunication carriers' employees and that the matters contained in the certificate were formal matters of evidence only and were not intended to go to any issue before the Court. 47 Mr Burmester's essential point was this: He accepted that a law that purports to direct the manner in which Federal judicial powers should be exercised, or one that usurps the exercise of Federal judicial power, is constitutionally invalid as infringing the separation of judicial power affected by Chapter III of the Constitution. However, there is ample authority, he argued, to show that a law that merely prescribes the practice or procedure of a Court exercising Federal jurisdiction does not direct the exercise of judicial power and is constitutionally valid - for example, a law that regulates the reception of evidence or the standard of proof (Nicholas v The Queen at 189 to 190 (23 to 24) per Brennan CJ, at 203 (55) per Toohey J, at 234 to 236 (152-156) per Gummow J). Moreover, modification of judicial procedures by legislation should not be characterised as a legislative usurpation of judicial power unless it affects the integrity of the judicial process. Lodhi v Regina [2007] NSWCCA 360 at (71)-(72) per Spigelman CJ. 48 Mr Burmester examined his primary proposition in the light of the circumstances discussed in Nicholas v The Queen. That case involved, Mr Burmester explained, the consideration of the validity of s 15X of the Crimes Act 1914. This directed that, in determining whether evidence should be admitted that narcotic goods were imported into Australia in contravention of the Customs Act 1901, the fact that an officer committed an offence in importing the narcotic goods was to be disregarded in certain specified circumstances. Thus, s 15X removed a critical element from the discretion which the trial Court otherwise would possess to exclude evidence of that kind. Mr Burmester took the Court to a number of statements from the decision in which there was discussion by the High Court about the circumstances in which legislation affecting the conduct of a criminal trial might so affect the judicial function of determining guilt that it amounted to an impermissible infringement of judicial power. In particular, Mr Burmester referred to Gummow J's decision at 232 (145) and 238 (162). Senior counsel also referred to the decision of Hayne J at 278 (252). 49 Mr Burmester accepted that Nicholas's case dealt with the narrowing of a judicial discretion, rather than a conclusive evidentiary provision. Senior Counsel argued, however, that the statements of principle were sufficiently wide to enable a similar test to be applied to the present legislation. When so applied, the question became whether the present legislation so interfered with the governance of the trial, or so distorted its predominant characteristics, as to involve the trial Court in the determination of the criminal guilt of the accused, otherwise than by the exercise of the judicial power of the Commonwealth. The answer to this question involved the subsidiary question as to whether the legislation asserted to prove conclusively, "any ultimate fact, being an element of the offence with which the accused had been charged". 50 Mr Burmester argued that "a predominant characteristic" of a criminal trial is that the tribunal of fact determines all "ultimate facts". 51 The third group of authorities which Mr Burmester examined were authorities which demonstrated that laws altering or reversing the burden of proof did not thereby impede the exercise of the judicial power of the Commonwealth (Commissioner of Taxation v Price [2006] 2 Qd R 316; R v Granger [2004] SASC 156 (special leave refused: Granger v The Queen [2004] HCA 478). 52 Finally, Mr Burmester returned to an examination of the legislation. He argued that, for a number of reasons, the limited range of matters able to be certified in the legislation, and the matters proved conclusively by the certificate, demonstrated that those matters concerned did not go to the ultimate issues before the Court. Rather they dealt with purely technical issues within the particular expertise and knowledge of the carrier giving the certificate. The certificates did not prevent the accused challenging the accuracy of anything allegedly said on the intercepted communication, including whether it in fact was said or by whom it was said. It did not prevent an accused from meeting the case against him in terms of any evidence obtained as a result of the interception. The certificate was confined to facts in relation to things done by, or in relation to, employees of the carrier. It could not include facts in relation to acts or things done by any other person including, significantly, by the accused. The certificate did not purport to demonstrate that it was the accused who sent the communications. Nor did the certificate say anything about the content of the communications. In this way, s 18 left untouched the elements of the crime alleged against the accused in the indictment. The jury must still determine, based on evidence adduced by the Crown, the facts necessary to find the "ultimate facts" beyond reasonable doubt (Gummow J in Nicholas at 236). 53 Mr Burmester took issue with Mr Lange's "three rules". The second rule could only be an accurate statement of the authorities if the reference to "relevant facts" meant "ultimate facts". Similarly, this was the case with reference to relevant facts in the third rule. Mr Burmester also argued that the United States authorities, referred to by Mr Lange in his submissions, were not to the point. Hence the High Court in Thomas v Mowbray (2007) ALR 194, pointed out that the Court's authorities have not gone so far as to recognise a "due process" requirement in Chapter III of the Constitution. In any event, the accused had not shown any lack of "due process" that distorted or relevantly impaired the criminal trial. 54 Mr Lange made a number of quite lengthy submissions in reply. Indeed, they were lengthier than his principal submissions. I do not propose to set them out in any detail here, but will refer to such of them as necessary when seeking to resolve the issue between the parties. I will add, however, that written supplementary submissions (in addition to reply submissions) were received from Mr Lange on a subsequent date. Those submissions drew the Court's attention to the commentary of the majority of the High Court in Cornwell v The Queen [2007] 81 ALJR 840. That case involved the interpretation of s 128 of the Evidence Act 1995 New South Wales and, in particular, the interpretation of s 128(8) and the phrase appearing therein "a fact in issue". Secondly, Mr Lange raised a new matter. This was an argument that suggested that s 11.5(2) of the Criminal Code Act was an important consideration for the purposes of the arguments which had been advanced by the Attorney-General in the present matter. Dealing with a conspiracy charge, s 11.5(2)(c) provides that, for a person to be guilty, the Crown must prove, inter alia - "the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement". Mr Lange's supplementary written submission pointed to the fact that the act of downloading the material, alleged to have been captured pursuant to the warrants to which the certificate in question relates, was in fact, relied upon by the Crown as an overt act. Therefore, Mr Lange argued, the facts certified are "intimately connected with proof of an element of the offence", that is, connected to "an ultimate fact". For that reason, counsel argued that it could not be said that s 18 leaves untouched the elements of the crime for which the accused is to be tried, as the Attorney-General had submitted. 55 Finally, in these supplementary submissions, Mr Lange referred to an observation by Kirby J in Silbert v DPP (WA [2004] 217 CLR 181, 189 at (20)-(21). In these paragraphs, Kirby J warned that the High Court should be especially vigilant to detect cases of legislative excess or repugnancy. I took Mr Lange to be suggesting that I should show the same vigilance in examining the issue involved in the present application.

Resolution of the issues 56 There is no essential dispute between the parties as to the question to be determined in this application. It may, however, be stated in two ways, one broadly and the other in a more particular fashion: Is s 18(2) TIA a law which requires the Court exercising Federal jurisdiction to exercise judicial power in a manner inconsistent with the essential character of a Court or with the nature of judicial power? ( Chu Kheng Lim v Minister for Immigration .) Is the fact that the Court is deprived by this law of the power and opportunity to decide the facts dealt with in the certificate, a deprivation of such a character that the Court is robbed of its essential character, or such that its judicial power is impaired in a constitutional sense? 57 In addition, apart from a minor scuffle around the edges of the debate, there is no essential dispute about the principles to be applied to resolve the question at issue. Both Mr Lange and Mr Burmester QC are in complete agreement that a particular piece of legislation may so impair the predominant characteristics of a trial that it will rob the Court of its essential character. Mr Burmester gave an example of legislation that provided that, if a person were found in possession of stolen goods, a certificate from the Commissioner of Police certifying that the person had stolen those goods, was to be conclusive evidence of the fact and could not be challenged. Legislation of this type, both counsel agreed, would travel beyond the Constitutional pale. (See Williamson v Ah On per Isaacs J at 108.) 58 Mr Lange fairly accepted that legislation may conclusively prove some facts to be relied on in a trial without infringing the Constitutional reach. That, in my opinion, was a proper concession. Mr Lange, however, was not prepared to definitively state the limit on this proposition. That again was not, in my opinion, an entirely unreasonable stance. It is, after all, difficult to know precisely "where to draw the line" (Attorney-General v Breckler (1991) 197 CLR 83 at (53).) Mr Lange preferred to examine the nature and extent of the legislation in s 18 rather than to be drawn on the appropriate delineation of a Constitutional barrier. It will be apparent that questions of this kind will often involve an element of degree. They will often require examination of a particular piece of legislation to determine whether, as a matter of impression, the appropriate line has been traversed. 59 On the point of focused principle, however, Mr Burmester placed particular reliance on the High Court's decision in Nicholas v The Queen. In my view, senior counsel's submission in this regard is correct. Nicholas provides an appropriate framework of precise coherent constitutional principle against which to examine the legislation in question. I shall briefly set out the relevant passages: 60 I turn first to the judgment of Gummow J, at 232 (145) said: "The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act . Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?" 61 At 236 (156) Gummow J said: "No such question arises with respect to 15X of the Crimes Act . Nor does 15X deem to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged. A law of that nature, albeit procedural in form, might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt. Section 15X is quite different in form and operation." 62 At 238 (162), his Honour said: "The section in its operation, if not necessarily on its face, deals not with proof, but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried . Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed." (Underlining added.) 63 At 278 (252) Hayne J said: "I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence. The legislation dealt with by the Privy Council in Liyanage v The Queen might be seen to have been of that kind." 64 (See also Brennan CJ at the conclusion of page 187 (19).) "The Court must find the facts and apply the law which, at the relevant time, prescribe those antecedent rights and liabilities. Finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends." 65 Mr Lange argued that Nicholas' case does not, as a matter of principle, extend beyond its application to legislation curtailing or altering a discretion. I accept that the case was one dealing with a discretion to exclude evidence of facts and not precisely with proof. The statement of the principles, however, appears to me to extend to and apply generally to legislation of the type under consideration in the present matter. This appears especially so in the judgment of Gummow J and it is inherently so in the remarks of Brennan CJ and Hayne J. All three judges were part of the majority in Nicholas. 66 Having regard to these principles, the question for determination may now be formulated more precisely: if the predominant characteristic of a criminal trial, for present purposes, is that it is for the tribunal of fact to determine ultimate facts (that is the elements of the offence), does the subject legislation distort that predominant characteristic? (Or to put the question in terms of Hayne J's remarks in Nicholas, is the language of the statute "so radical and pointed" that it could be seen, in substance, to deal "with ultimate issues of guilt or innocence?") 67 In my view the answer to these questions must be in the negative. I will now turn to the legislation to examine why this is so. 68 The legislation is, it will be seen, very limited in its scope. It enables the Managing Director of a carrier to certify facts "he or she thinks relevant with respect to acts or things done by, or in relation to employees...to enable a warrant to be executed." The actions of the employees of a telecommunication carrier in enabling the execution of a warrant are completely at a remove from the elements of the offence the prosecution will need to prove beyond reasonable doubt in relation to the charge against Khaled Cheikho. 69 The purpose of the legislation was, as is commonly accepted by both counsel, to protect the identity of the carrier's employees engaged in enabling the execution of warrants by police and other agencies. It was designed to save those employees from having to give evidence in Court. It was intended to provide for a certificate going to formal matters of technical evidence only, and not to any issue before the Court (see Explanatory Memorandum and Second Reading Speech - Hansard, House of Representatives 9 May 1995 page 1980). 70 The certificate itself bears out these matters fully. First, it annexes the warrant and records when the carrier was notified of its issue. It also records when it was received by Optus. These are plainly matters of formality only. Secondly, it records "acts or things done" by employees to enable the warrant's execution. They are technical matters, not described in any detail, which demonstrate no more than that those technical steps were such as were "necessary" to enable "the listening to and recording" at ASIO of the communications conducted using the service 02-9707-3250 as they passed through the Optus network. 71 I am unable to see that any of the facts certified conclusively prove any of the "ultimate facts", that is, the elements of the offence charged against Khaled Cheikho. Indeed, they have nothing to say as to those elements. There is no need for me to set out in detail the elements of the offence in this decision. I have done so in earlier decisions. They may be discerned, in any event, from an examination of the statutory provisions I have set out earlier at pages 4 and 5. The relevant sections of the terrorism legislation are also set out at pages 2 to 4. 72 I turn now to consider Mr Lange's principal argument. Mr Lange argued that any circumstantial fact in proof of the elements of the charge cannot be conclusively certified by legislation without impairing the essential character of a Court. Such legislation, he argued, would usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt. Mr Lange submitted that it must be for the jury to find every circumstantial fact. A circumstantial fact here, he argued, is that the accused downloaded material from the Internet over or during a certain period. 73 In my opinion, Mr Lange's proposition is far too broad. It would mean that no facts, however remote from the issue of guilt or innocence, would ever be capable of conclusive certification. Moreover, Mr Lange's proposition is at variance with the principles stated in Nicholas in any event. 74 It needs to be remembered that we are dealing here with circumstantial evidence of a particular kind. In this case, the Crown relies upon a substantial body of circumstantial evidence from which it will ask the jury to infer that it has proved the elements of the offence beyond reasonable doubt. No circumstance in the present trial will prove guilt of itself. Indeed, many of the facts are of an apparently inconsequential kind. It is only when they are assembled with all the evidence in the Crown case that the prosecution asserts a mosaic of guilt is revealed. 75 I will not address the evidentiary circumstances in the present case. But, to take an example removed from the present case, a circumstantial fact may include the name of a street in which a particular house is situated; it may include the presence and identity of other streets nearby; whether they run north or south, or who may be the registered proprietor of a particular house in a street at any time. All these facts might, in a particular case, be circumstantial facts, that is, facts that do not themselves have to be proved beyond reasonable doubt, but which are part of the overall Crown case. Indeed, circumstantial facts may be almost endless in their nature, number and scope. Would certification of any of those facts distort the curial process? I think not. In any event, it needs to be borne in mind that the Crown allegation here is that the accused downloaded material from the Internet on to his computer. This is simply one fact among a multitude of facts. It does not, as I say, suggest guilt of itself. Nor could proof of that fact in the present trial be evidence establishing an element of the offence. 76 When one turns to analyse the certified facts here, it will be apparent that they are not circumstantial facts, in any event, going to the proof of the elements of the offence. True it is a telephone service is named and the subscriber of that service is named in the warrant. The facts certified, however, are essentially the "description" of the acts of the employees of the carrier enabling the warrant to be executed. Those facts say nothing about the accused either directly or indirectly. They say nothing about his actions and nothing about whether he downloaded any material from the Internet. It does not appear the service is in his name. In addition, the facts certified are not facts going to proof of guilt but, rather, facts that relate only to the gathering of evidence, that is, a technical question as to what a carrier did in order to allow the execution of a warrant by ASIO. They are precursors to the task of interception. On the other hand, the material intercepted may properly be described as part of the Crown circumstantial case. The technical means to be used to enable ASIO to make the intercept, by way of contrast, are not. 77 Another way of testing Mr Lange's proposition is to ask - in the face of the certificate, what matters could the accused in the trial dispute, or what matters could he raise by way of evidence in contradiction? 78 There are clearly a number of matters the accused could contradict, despite the presence of the certificate. The onus of course would lie on the Crown to prove its case beyond reasonable doubt. The accused might, however, and no doubt will in this trial, contradict the strength of the one circumstance represented by the interception, namely the fact that material was downloaded from the Internet on to Amina Cheikho's computer, if it be hers. First, the accused could bring evidence to show that the subscriber to the service was not at the relevant time Amina Cheikho. He might show, for example, that the subscription had been terminated previously by the Cheikho family and that there was an error in the carrier's records as to the service name. 79 Secondly, he might show that the Cheikho family had moved from the address at 29 Myall Street, Punchbowl, or that they were not in residence there at the time when the downloading occurred. He might show, at the very least, that he was not there at the relevant time. 80 Thirdly, he might deny, in any event, that it was he who had downloaded the material. Other people may have been living in the house at the time, including members of his family. These people may have had access to the computer. 81 Fourthly, he might argue that the material was harmless and said nothing as to a terrorist attempt. He might seek to have it excluded under s 137 of the Evidence Act as unfairly prejudicial. Finally, he might simply argue, for whatever reason, that it was simply impossible to assert that the material came from the intercepted service. In my opinion, the certificate would not preclude any valid argument challenging the relevance of the intercepts. Nor would it preclude any valid argument as to the weight, if any, to be given to the intercepts in the overall evaluation of the Crown's circumstantial case. All that is rendered conclusively proved by the certificate are the acts of the Optus employees certified by Mr O'Brien. Those acts, as I have explained, are not themselves, strictly speaking, part of the circumstantial case. It is true, I accept, that the accused would be precluded from arguing that the intercepts were not transmitted to ASIO. But the issue surrounding that fact is not a circumstantial fact, and it is very far removed from being an "ultimate fact" in the sense of being an element of the offence. 82 Mr Lange raised a number of subsidiary arguments. The first was an argument based on "natural justice". This must be answered by the principal analysis I have already undertaken. If the legislation does not distort the predominant characteristic of a trial and does not impinge upon the Prosecutor's duty and obligation to prove the "ultimate facts" against the accused, it cannot be said that the accused is in any relevant sense disadvantaged in, or precluded from, meeting the case against him. There is, in any event, no infringement of due process. In my opinion, the American authorities referred to by Mr Lange have no real part to play in the present discussion. 83 I do bear in mind, however, that the accused's real complaint is that he is unable to challenge the facts certified in the April 2008 certificate. This complaint really arises out of a sense of forensic chagrin at being deprived of a challenge to the legitimacy of the warrants. In turn, the thwarted challenge itself was based on a certain view of the facts conclusively certified in the earlier February 2007 certificate. I shall, at the conclusion of this judgment, say something about this aspect of the matter. For the moment, however, I will make two points: First, the legitimacy of a warrant is normally a matter for the Judge and not the jury. Secondly, the legitimacy of the warrant (the argument precluded by Mr O'Brien's 2008 certificate) is not a matter which prevents the full scope of the natural justice rules applying to the trial of the accused and to the determination of his guilt or innocence. 84 The next argument may be described as a "facts in issue" argument. Mr Lange sought to draw some support from the decision of the High Court in Cornwell v The Queen. That decision, in my opinion, has nothing to say in relation to the present controversy. It was concerned with an extremely narrow point, namely the construction of s 128(8) of the New South Wales Evidence Act. The issue of construction turned to a very large extent on a historical analysis of the section and its predecessor in the United Kingdom legislation. The remarks referred to by Mr Lange in the majority judgment are concerned with whether, in the rules of the law of evidence, there is any distinction and, if so, what it is between "facts in issue" (a phrase appearing in s 128(8) and elsewhere in the evidence Act) and "facts relevant to facts in issue". The passage, as I say, has no bearing on the questions of constitutional principle apparent from Gummow J's remarks in Nicholas. 85 A second subsidiary argument derived from Cornwell was a repetition of the argument based on CEO of Customs v El Hajje (2005) 224 CLR 159. This was advanced by Mr Lange in his primary written submissions and repeated in oral submission. In that case, an excise prosecution had been brought against the defendant. The statement of claim contained a number of averments, including that the tobacco in question fell within the description of "manufactured excisable goods". The Court of Appeal had allowed an appeal from conviction on the basis that an ultimate fact in issue was not properly the subject matter of an averment. The High Court upheld the appeal before it on the basis that there was no statutory warrant or useful distinction, in the statutory context, to contrast "ultimate facts in issue" and other kinds of fact or evidence. The averment provision, the Court held, was concerned with "what is to be proved". 86 It may be properly said, as Mr Burmester QC argued, that the analysis in the case of El Hajje, relied on by the accused, relates only to the High Court's rejection of a gloss that the lower courts had read into a particular phrase used in a particular statute. By way of contrast, it seems clear, in my opinion, that Gummow J in Nicholas was intending to convey the importance of a fundamental distinction, for the purpose of his constitutional analysis, between "ultimate facts being the elements of the offence" and other facts. The point of distinction might be described as the very edge of the pathway, to trespass beyond which would be to fall into constitutional invalidity. 87 Neither of the two authorities referred to by Mr Lange in this subsidiary argument undermined, in my opinion, the principles emerging from Nicholas. 88 The final point in reply requiring comment is Mr Lange's analysis of s 11.5(2) of the Criminal Code. It is true, as counsel observed, that an element of the offence is that "the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement". Of course in the present matter, there are eight other accused and the Crown has placed reliance on over 130 overt acts. Nonetheless, the downloading of the extremist material (by all the accused) is said by the Crown to be one overt act. Does this result in a situation where the certificate is conclusive evidence of a fact or facts which are elements of the offence? The answer must, once again, be in the negative. As I have explained, a conclusive certificate under s 18 relates to only acts by employees of the relevant carrier. The certificate does not include facts in relation to acts or things done by any other person, including any acts or things done by the accused. The certified facts, in a constitutional sense, leave untouched the elements of the crime for which the accused is to be tried. 89 There is no need for me to comment on the remarks of Kirby J in Silbert's case beyond noting that those remarks were, as Mr Burmester QC pointed out, obiter in a judgment arguing in dissent that special leave ought to have been granted.

Section 80 argument 90 Section 80 of the Constitution provides that "trial on indictment of any offence against any law of the Commonwealth shall be by jury..." Mr Lange referred to the fact that the High Court had, in its early years, described one of the essential features of the institution of trial by jury in the following terms: "It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process. ( Huddart Parker & Co Pty Limited v Moorehead (1909) 8 CLR 30, 375 per O'Connor J.) 91 Mr Lange also drew the Court's attention to the more recent remarks of the High Court in Cheatle v The Queen (1993) 177 CLR 541, 549: "The statement correctly draws attention to the representative character of a jury and to the fact-finding function which a jury traditionally served in civil litigation and in criminal committal and trial processes". 92 Mr Lange's argument was brief and to the point. He argued that, because the jury here will not be permitted to ascertain the truth based upon facts which it finds, it does not act as a jury within the meaning of s 80 of the Constitution. Accordingly, he argued, s 18(2) TIA violates s 80 of the Constitution. 93 Mr Burmester QC pointed out that the High Court has accepted that there are essential features of trial by jury that are guaranteed by s 80 of the Constitution (Cheatle v R at 557-558; Ng v R (2003) 217 CLR 521 at (9) per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ (citing Brownlee v R (2001) 207 CLR 278 at 284-5, 287, 288-9, 291-2, 298, 299-300, 303.) 94 The "essential" features of a trial by jury are to be discerned from the purpose which s 80 of the Constitution serves, and to the constant evolution, both before and after federation, of the characteristics and incidents of jury trial. Mr Burmester argued that only those incidents which are regarded as fundamental are placed beyond the reach of the legislature. Senior counsel submitted that, relevantly here, the purpose which s 80 was intended to serve was that the jury should decide each of the elements of the crime with which the accused is charged, and that they should do so unanimously. Viewed in that way, the legislation could not be said to be unconstitutional. 95 In my opinion, the submissions of Mr Burmester are to be preferred. The s 18 certificate procedure provides only that certain formal and technical facts are conclusively proved. They are not ultimate facts for the reasons I have analysed in relation to the first principal argument. The legislation does not take away from the jury its role of determining all or any of the ultimate issues of fact. In accordance with the established authorities, the "essential" features, the fundamental features, of a trial by jury are unaffected by the legislation. Accordingly, the challenge to the legislation based on s 80 of the Constitution must fail.

A final observation 96 I remarked earlier that Khaled Cheikho's lawyers' real complaint is that they consider they have been precluded from challenging the warrants because of the 2008 certificate. They say this is unfair. They say it denies them the opportunity of raising a legitimate concern with the warrant process. The resulting situation, they say, is that there will be a tender before the Court of a certificate which may state a falsity. The truth will not be placed before the tribunal of fact. Of course, all this is beside the constitutional point at issue. It was sketched in this way, as Mr Waterstreet made plain, to provide a realistic and perhaps colourful background to enlarge the narrow ambit of an otherwise dry constitutional argument. 97 Of course, I have only heard Mr Waterstreet on the point. I have heard no submissions from the Crown in relation to Mr Waterstreet's complaint. But I must say that my tentative and preliminary reaction to an examination of the difference between the two certificates is that the difference, such as it is, is simply not capable of being of the kind described by Mr Waterstreet. I accept that the first certificate is rather opaque. I suspect that there may have been a certain wariness on the part of the certifier to be overly specific about the way intercepts are transmitted to ASIO. The dealings of that agency, often for legitimate reasons, are attended with a certain level of secrecy. I do not, however, read the earlier certificate as negating the fact that the interceptions went directly through the carrier to the agency. Read in that way, the second certificate is not contradictory of the first at all. Although the second certificate is short on technical detail, it makes it clear, consistently with my preliminary reading of the 2007 certificate, that the interceptions went directly to ASIO and not, in any illegitimate way, to Optus employees. Consequently, there does not seem to be anything in the nature of an abuse of process involved in the Crown's proposal to place reliance on the 2008 certificate. 98 For all the reasons set out in this decision, I find that both constitutional challenges to s 18(2) TIA 1979 must fail.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.