Resolution of the issues
12 On 14 February I indicated that I was satisfied that Mr Boulten had established a legitimate forensic purpose in relation to paragraph 2 of the revised schedule in each case. I declined to strike out those paragraphs and these are my reasons.
13 A powerful aspect of the Crown case against the accused is his relationship with Willie Brigette. I have, in a number of earlier decisions, set out the nature of the Crown case and, in particular, I have identified the type of evidence that will be relied upon by the Crown to establish the association between the two men. There is no need for me to repeat the details of those matters. It is sufficient to say that the Crown will say that the relationship itself provides a powerful circumstantial back drop to the accused's own actions in collecting and making documents and in the possession of the information set out in the charges.
14 On the hand, as I have indicated, the defence case will be that this was an entirely innocent association and, for that matter, a very limited one. The defence will wish to establish that, after nearly two years of investigating and collating evidence, there has been a very small amount of evidence that forges a connection of any type whatsoever between the accused and Brigette.
15 Quite apart from obtaining surveillance evidence, the AFP and especially ASIO have the statutory capacity to obtain evidence by other means. In the case of the federal police, they have the capacity to intercept telephone calls and utilise listening devices. In the case of ASIO, they also may use listening devices and in addition they are able to utilise tracking devices, postal inspection and telecommunication interceptions. The subpoena, in each case, seeks the warrants used for such purposes in the relevant period pursuant to which product was obtained.
16 In my view, to adopt the language used in Alister v The Queen, it is, "on the cards" that the material sought in paragraph 2 of each subpoena is likely to exist and would materially assist the accused. The importance of the association between the accused and Willie Brigette, for the purposes of the Crown case, is obvious. It is likely that the AFP and ASIO would have used the wide range of their powers to discover and assess the full nature of this relationship.
17 That is not the end of the matter. Mr Howe also submitted that the subpoenaed documents, whatever their number, were unlikely to assist the accused in the manner urged by Mr Boulten. Mr Howe posed two alternative responses to the subpoena. For example, he assumed, for the purposes of argument, that virtually no warrants within the terms of the subpoena were produced at all. That situation, he argued, would undermine the defence argument entirely.
18 Mr Howe then proposed an alternative response to the subpoena, namely the assumption that a great number of warrants were produced. In that situation the defence would have to persuade the jury that the absence of product was probative or indicative of innocence. The Crown, however, might well argue in such a situation that the absence of product merely demonstrated that the accused and Brigette had successfully used subterfuge to prevent the depth of their relationship being uncovered.
19 Mr Howe said that, in this situation, he relied upon the well established proposition that an inference of fact is not available on the basis of evidence or material which might reasonably permit a different conclusion (Holloway v McFeeters (1956) 94 CLR 470 at 477, 480). If such material or evidence enables no more than mere speculation or conjecture, it does not allow the drawing of any inference probative of an issue in the proceedings.
20 I do not doubt the legal proposition advanced by Mr Howe. In my view, however, it has to be borne in mind that the onus of proof in this trial falls upon the Crown. It must establish the elements of the offence, in relation to each charge, beyond reasonable doubt. The Crown case is essentially a circumstantial one. No onus will be placed upon the accused to prove or disprove issues even though appropriate directions will be given to the jury as to the manner in which inferences are generally to be drawn. I accept that Mr Boulten SC is correct when he says, based on the facts assumed by Mr Howe's alternative proposition, that the accused would be entitled to point to the fact that a volume of product was not tendered or relied upon in the Crown case because it simply did not go towards establishing an illicit relationship. The Crown, of course, would be entitled to put forward an argument based upon an asserted secrecy in the relationship between the two men and it will be up to the jury to accept or reject arguments advanced by the competing parties, in the light of appropriate directions to the jury as to the onus of proof and the nature of a circumstantial case.
21 Mr Howe also argued that the defence cannot really know whether or not the warrants sought in the subpoenas exist. He argued that it remained at the level of a speculative possibility only. In my view, however, it is "on the cards" that this material exists and that it would assist the defence case to the extent I have mentioned and for the reasons I have given.