Citation: Regina (C'Wealth) v Baladjam & Ors [No 17] [2008] NSWSC 1439
Court: Supreme Court of New South Wales
Date: 27 May 2008
Judge(s): Whealy J
Background
Nine men were charged with conspiring to commit acts in preparation for a terrorist act, contrary to sections 11.5 and 101.6 of the Criminal Code Act 1995 (Cth). The prosecution sought to rely on intercepted telecommunications as evidence. Those interceptions had been authorised under the Telecommunications (Interception) Act 1979 (Cth) ("TIA 1979"), and their lawfulness was attested to by evidentiary certificates issued under section 18(1) of that Act.
One of the accused, Khaled Cheikho, brought a Notice of Motion challenging the constitutional validity of section 18(2) of the TIA 1979. His lawyers argued that two certificates produced in relation to telecommunications interceptions were inconsistent with one another, suggesting the earlier certificate may have contained inaccuracies. That factual background was advanced to provide context for what was otherwise a narrow constitutional argument.
The motion sought declarations that section 18(2) was unconstitutional on two distinct grounds, and consequently sought exclusion of evidence given by a prosecution witness regarding specific intercepted telecommunications services.
Legal Issues
- Whether section 18(2) of the Telecommunications (Interception) Act 1979 (Cth) violated the separation of judicial power embodied in Chapter III of the Commonwealth Constitution (particularly the principles derived from section 71).
- Whether section 18(2) violated the right to trial by jury guaranteed by section 80 of the Commonwealth Constitution.
- Whether, as a practical consequence, evidence given by Paul O'Brien in respect of certain telecommunications services should be excluded as irrelevant or inadmissible hearsay.
Decision
Separation of powers challenge
Whealy J rejected the argument that section 18(2) of the TIA 1979 impermissibly usurped a judicial function in breach of the Chapter III separation of powers. Drawing on established High Court authority, his Honour held that the provision did not vest judicial power in a non-judicial body, nor did it direct the outcome of the proceedings in a manner incompatible with the institutional integrity of a Chapter III court. The constitutional challenge on this ground failed.
Trial by jury challenge
His Honour also rejected the argument that section 18(2) infringed the right to trial by jury under section 80 of the Constitution. The court found that the essential and fundamental features of a jury trial remained intact. Provisions of the kind contained in section 18(2), which operate on evidentiary matters, do not deprive a jury of its role in determining the ultimate issues of fact. On that basis, the section 80 challenge also failed.
The certificates
Separately, Whealy J addressed the accused's underlying complaint that the two evidentiary certificates were contradictory, potentially placing a false account before the tribunal of fact. His Honour expressed a preliminary and tentative view that the differences between the two certificates were not of the character described by counsel for the accused. On his preliminary reading, the later certificate was not contradictory of the earlier one; both were consistent with the interceptions passing directly to ASIO through the carrier. His Honour found no basis for concluding that reliance on the 2008 certificate involved any abuse of process.
Orders Made
- Declarations sought by the accused declined.
- Notice of Motion dismissed.
Key Takeaways
- Section 18(2) of the Telecommunications (Interception) Act 1979 (Cth) was held not to violate the separation of judicial power inherent in Chapter III of the Commonwealth Constitution.
- The constitutional guarantee of trial by jury under section 80 of the Constitution was found not to be infringed by section 18(2); the provision did not strip the jury of its function in determining ultimate facts.
- Where a legislative provision operates on evidentiary matters without directing the court's verdict or displacing core features of a jury trial, it will not ordinarily give rise to a Chapter III or section 80 constitutional problem, as this decision illustrates.
- Evidentiary certificates issued under section 18(1) of the TIA 1979 were not rendered inadmissible merely because an earlier certificate was expressed in opaque or general terms, provided the two certificates were not genuinely contradictory on their proper reading.
- The Supreme Court declined to make constitutional declarations sought by an accused in a terrorism conspiracy prosecution where the constitutional arguments were not sustained by the authorities.
Legislation and Cases Referenced
Legislation
- Telecommunications (Interception) Act 1979 (Cth), ss 9, 9A, 18(1), 18(2)
- Criminal Code Act 1995 (Cth), ss 11.5, 100.1, 101.6
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth)
- Evidence Act 1995 (NSW)
- Commonwealth Constitution, Chapter III, ss 71, 80
Cases
- Attorney General v Breckler (1991) 197 CLR 83
- Bass v Permanent Trustee Co Limited (1999) 198 CLR 334
- CEO of Customs v El Hajje (2005) 224 CLR 159
- Cheatle v The Queen (1993) 177 CLR 541
- Commissioner of Taxation v Price [2006] 2 Qd R 316
- Cornwell v The Queen [2007] 81 ALJR 840
- Granger v The Queen [2004] HCA 478
- Kable v DPP (1996) 189 CLR 51
- Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 27
- Liyanage v The Queen [1967] 1 AC 259
- Lodhi v The Queen [2007] NSWCCA 360
- Nicholas v The Queen (1998) 198 CLR 173
- Ng v R (2003) 217 CLR 521
- Silbert v DPP (WA) (2004) 217 CLR 181
- Thomas v Mowbray [2007] ALR 194
- Williamson v Ah On (1926) 39 CLR 95
- R v Deng (1996) 136 FLR 201
- R v Bunting & Wagner [2003] SASC 253
- R v Granger [2004] SASC 156