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.