rnar890089

IN THE FULL COURT OF THE SUPREME COURT OF THE
NORTHERN TERRITORY OF AUSTRALIA No. 48 of 1988
IN THE MATTER of Section 21 of the Supreme Court Act

AND IN THE MATTER of the
Reference of certain appeals under the Juitices Act to the Full Court of the Supreme Court
BETWEEN:
LENIN LIMBO
Appellant	,

AND:
JOHN ROBERT LITTLE
Respondent

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. AP15 of 1989

BETWEEN:

LENIN LIMBO
Appellant

AND:
JOHN ROBERT LITTLE
Respondent

CORAM:	KEARNEY, RICE and MARTIN JJ.

REASONS FOR JUDGMENT
(Delivered 27 November 1989)

KEARNEY J.

I have had the benefit of reading the opinion of Martin J.	I respectfully concur in his Honour's conclusions and the orders he proposes, for the reasons he has stated, and have nothing to add.

RICE J. 

The question posed for consideration on a reference to the Full Court by Nader J. in its amended form is:-

"Whether a judge or magistrate has an obligation to answer questions of a litigant concerning matters which may disqualify him if the litigant knew about them, for example military, defence or intelligence connections."

In my judgment, the answer is simply, "No".	That is not to say, however, that a judge or magistrate is entitled to sit back where the circumstances might possibly indicate that a perception of bias is present, and not make appropriate disclosure in order to remove any suggestion of bias.	It is the fundamental duty of a judge or magistrate to do so, consistent with the oath ·of office which is based on the concept of judicial integrity.	It requires no reaffirmation since the complete absence of bias is inherent in the judicial role.	In my opinion, it would be an affront to judicial integrity for a judge or magistrate to be

subjected to any obligation to answer questions of a litigant.	This proposition is so fundamental that no authority is needed to support it.

A litigant remains protected against any abuse of this principle by the power of an appellate court to review and remedy the conduct of any judge or magistrate who might transgress it.

In my opinion it would undermine the administration of justice for a judge or magistrate to be subject to questioning by a litigant on this or, indeed, any other topic.

The appellant was given a free rein to ventilate his grievances before the Full Court and the Court of Appeal.	He was allowed every indulgence to put his case without the usual stringencies of procedural adherence.	In my view, it was important that an appellant so imbued with the cause he was championing so dedicatedly, should be accorded every opportunity of airing his grievances as he perceived them.		It soon became apparent during the proceedings before us, however, that the appellant was intent upon using the judicial process as a means of courting national as well as international publicity in aid of his fervent belief that global nuclear destruction was close at hand.	His broad challenge to the impartiality of

those whose decisions might be_adverse to him on the ground of their "military, defence or intelligence connections" was, in my opinion, symptomatic of the fervency of his beliefs.	A zealot, no less than any other person, is entitled to give vent to the free expression of opinion without the intervention of bias or prejudice.

Martin J. has dealt extensively with the multifarious matters which have made their way to the Full Court, and the Court of Appeal.	I am in agreement with everything he has said, including the orders he proposes.

1-"iARTIN J. 

Backaround

There are before the Full Court and the Court of Appeal, constituted by the same bench, a large number of issues.	They were either referred to the Full Court under
s. 21 of the Supreme Court Act, or are the subject of applications for leave to appeal to the Court of Appeal.	It was agreed by both parties that all issues would be dealt with at the one hearing, which lasted 5 days.	All of the matters for consideration arose at the instance of the appellant, who calls himself by the name given in these proceedings.	For some other purposes he is known as Leonard John Lindon.	He is a qualified legal practitioner, admitted

to practise in that name in South Australia, and is upon the roll of practitioners of the High Court of Australia.	He appeared unrepresented.

On 19 October 1987 he was charged under s. 89(1) of the Crimes Act (Commonwealth) for that on that day he did without lawful excuse trespass upon prohibited Commonwealth land, namely the Joint Defence Space Research Facility, an establishment near Alice Springs, commonly known as "Pine Gap".

On 14 April 1988, he was convicted of that offence by the Court of Summary Jurisdiction sitting at Alice Springs and fined $250.	From that conviction he appealed to the Supreme Court, which allowed the appeal in March 1989 and remitted the matter to the former Court for re-hearing. The appeal was allowed upon the ground that the appellant had not had a fair hearing.	The appellant then set about securing the attendance of witnesses before that Court upon the re-hearing, which was set down for 2-4 August 1989.	It is largely the decisions made in the course of that exercise that gave rise to these proceedings.	During the course of various preliminary applications other questions arose and they also found their way to the Full Court and the Court of Appeal.	In the Full Court the appellant raised a number of preliminary matters.

Because of the number of issues, the manner in which they arose and the considerations applying to them, it is difficult to prepare these reasons in an orderly fashion. The best approach is to proceed in chronological order.

The Kerr Warrant

On 28 March 1989 the appellant arranged to have issued summonses to appear at the August re-hearing, directed to the Prime Minister, Peter Woodruff, (who it is alleged is the "Australian Deputy-Head of Pine Gap") and Glen Kerr ("U.S. boss of Pine Gap").	I do not decide the question, which is not before the Full Court, as to whether service of those summonses was effective.	In any event, on
30 March 1989, the appellant applied to Mr Hook, Stipendiary Magistrate, for the issue of a warrant for the arrest of Mr Kerr upon the ground that it was probable that Mr Kerr would not attend to give evidence on the date specified in the summons.	The appellant gave evidence upon oath as to the service of the summons and as to his belief that Mr Kerr was about to leave Australia, and his grounds for so believing. The application was refused by the learned Magistrate upon the ground that he had no power to order that a warrant for arrest issue in those circumstances.	He so found by reference to the relevant provision of the Justices Act.
The following day that application was renewed, the appellant indicating that he had further evidence going to

Mr Kerr's intended departure.	I note in passing that His Worship had already held that he had no jurisdiction to issue such a warrant, and, if he was right, then it would
not matter what further evidence might be available on that point.

It was on this occasion that the appellant sought to address the Magistrate on "the question of the Nuremberg Principles".	His Worship declined to hear him on that, or to entertain his application unless it was brought by the "proper procedure", referring to the Justices Act and Recrulations in a general way.	There is no prescribed form for an application such as the appellant sought to make.
Later on that day he did, however, file an application in writing which sought orders that a warrant be issued, that the summons be withdrawn, and that Mr Kerr be brought before the Court for contempt in permanently leaving the jurisdiction after being served with a summons, and for costs.	Those applications were also dismissed, as best I can make out because of the provisions of the Justices Act, and because there was no evidence, or proposed evidence, that Mr Kerr would not attend on the return date of the summons even if it were shown that he was about to leave Australia.

The appellant filed a Notice of Appeal against those decisions.	It is doubtful that an appeal lies from

such a decision of a Justice•. The right of appeal (see	•
163) is given only from a conviction, order or

adjudication of the Court, which by definition (s. 4) means "Justices forming the Court for the purposes of hearing and
adjudicating upon any case or matter which they have power

to determine in a summary way

.....".	The distinction is

between the Court so comprised and performing that duty, and a single Justice exercising ministerial functions.	That issue was not argued before this Court and I should say no more about it.

The "appeals" came before Justice Nader on 12 April 1989 and he ordered that they be referred to the Full Court, "sitting at Darwin".

The first substantive issue is whether in the circunstances the learned Magistrate wrongfully declined to issue the warrant.

Sections 23-25 of the Justices Act provide as

follows:

"23. SUMMONS TO WITNESS
If a Justice or the clerk is satisfied that a y person is likely to give material evidence or to have in his possession or power any article (which term includes any document, writing, or thing) required for the purposes of evidence upon behalf of either party to any information or complaint, the Justice or clerk may issue a summons to the person requiring him to appear, at a time and place

mentioned in the summons, before such Justices as shall then be there, to testify what he knows concerning the matter of the information or complaint, or to produce the article, or to testify and produce as aforesaid (as the case may be).
ON REFUSAL WARRANT TO ISSUE

If any person summoned neglects or refuses to appear, and no just excuse is offered for such neglect or refusal, then any Justice before whom the person should have appeared may issue a warrant to bring and have such person, at a time and place therein mentioned, before such Justices as shall then be there, provided that it is proved to the satisfaction of the Justice -

that the summons was duly served; and

(if the summons relates to a complaint) that a reasonable sum was paid or tendered for the costs and expenses of attendance.

WARRANT IN FIRST INSTANCE

If a Justice is satisfied, by evidence upon oath, that it is probable that any person will not attend to give evidence or to produce any article without being compelled to do so, then, instead of issuing a summons as provided by section 23, he may issue his warrant in the first instance."

In this case the appellant had secured the issue of a summons directed to Mr Kerr requiring him to appear on the date fixed for the commencement of the re-hearing of the charge, at the Court House at Alice Springs.	It had apparently been properly served by the indirect means provided for ins. 27(b).	Information then came to the notice of the appellant that Mr Kerr was about to leave Australia and he sought a warrant for his arrest.	Looking at s. 24 there was no evidence or proposed evidence to the effect that he would neglect or refuse to attend as required

by the summons.	In any event-the day for his appearance had not arrived and it is only if the person summonsed "neglects or refuses to appear" at that time that a warrant may be issued, and then only by the Justice "before whom [he] should have appeared."

Section 25 does not apply.		It provides for the alternative to the issue of a summons, that is, the issue of a warrant in the first instance, if the Justice is satisfied by evidence on oath that it is probable that a person will not attend if a summons is issued.	The warrant (Form 6 to the Regulations) provides for the person to be brought before the Justice and to be bound over to appear on the date of the hearing.	There is no express provision authorising the issue of a warrant after a summons has been issued, or to "withdraw" a summons whether served or not, even if it were shown - which was not the case here - that it was probable that the person summonsed would not attend in obedience to the summons.	Assuming that an appeal is available, it has not been shown that the learned magistrate erred in declining to issue a warrant for Mr Kerr's arrest, and the appeal should accordingly be dismissed.

The statutory provisions may be inadequate, but they are binding on the Justice or clerk.

10

On 3 April 1989 the appellant went before Nader J. upon an oral application, seeking an injunction to restrain Mr Kerr from leaving the country or for an order in the nature of mandamus directing the magistrate to issue a warrant for his arrest.	Those applications were refused and nothing further arises from those decisions of His Honour.

May a litigant question a Maoistrate or Judoe as to his backoround?

On 5 April 1989, the appellant again went before Mr Hook SM.	He said that his application concerned a question of disqualification for bias and he asked His Worship to declare that he "had no military, defence or intelligence connections".	His Worship responded by informing the appellant that if there were grounds for claiming that he may be biased then the appropriate course was to wait till the hearing to make an application.	It was not clear at that stage that His Worship would be hearing the case in August, but the appellant persevered in seeking the disclosure upon the basis that it would be better to have that issue disposed of before the date fixed for the hearing; if His Worship did disclose any such connection, then the application for disqualification should be dealt with earlier, so that first of all, if His Worship declined to disqualify himself the decision could be reviewed in the Supreme Court, and secondly, so that the hearing should not be delayed whilst the issue was resolved.
il

His Worship declined-the invitation to disclose any such connections.	In effect, he told the appellant that it was up to him to make out his grounds for an application for disqualification.	In his successive appearances before another Magistrate, Justice Nader, the Chief Justice, the Full Court and the Court of Appeal, the appellant has sought to have each judicial officer disclose whether he had any military, defence or intelligence connections.	Some have chosen to make a disclosure along those lines as part of discussion, others have posed hypothetical situations, none has acceded to a request that he disqualify himself on that basis.	Some have specifically refused to answer the question.

When certain so-called appeals were before
Nader J., and the question put to him, His Honour referred the matter to the Full Court.	The question as amended in the Full Court, by consent, is in the following terms:

"Whether a Judge or Magistrate has an obligation to answer questions of a litigant concerning matters which may disqualify him if the litigant knew about them, for example military, defence or intelligence connections.n

I consider it can be reformulated in more general, and perhaps in more accurate terms, as follows:

····-············ ---- ---------

<Y
,

"Whether a litigant may seek to ascertain by direct questioning of a Magistrate or Judge any facts concerning him or her which, if so disclosed, might lead to an application that he or she disqualify himself or herself upon the grounds of reasonable apprehension of bias based upon the facts sought to be disclosed".

I have already mentioned that the appellant raised this issue in a more direct way by requesting the specific disclosure by each member of the Full Court.	After consideration the Court unanimously held that no such request ought to be made and said it would give reasons later.

I do not understand the applicant to be suggesting that a disclosure pursuant to such a question would necessarily lead to an inference of actual bias, but rather that such a disclosure may give rise to a reasonable apprehension that fair minded persons, taking into account all the circumstances, could consider that the judge might not resolve the question before him with a fair and unprejudiced mind.

Usually, the facts upon which it might be thought a reasonable apprehension of bias could arise, are known to the litigants or at least one of them.	Sometimes the Judge, as a matter of judicial integrity, makes facts known to the

parties which he considers ought to be disclosed, so that the parties or either of them can consider whether a reasonable apprehension of bias could arise.	Even in such a case it is necessary that an application be made that the Judge disqualify himself, and it is a matter for the exercise of the Judge's discretion as to whether he should accede to the application.	The facts which a Judge might disclose are generally facts which are known to some members of the public, not necessarily to the parties or their advisers, but it is for the Judge to decide for himself whether a disclosure should be made, not for a litigant to venture upon a "fishing expedition" with a view to ascertaining whether there is something personal to the Judge, and not known to him, which could found an application that the Judge disqualify himself.	Judges are capable of putting aside personal predilections arising from life's experiences.	We all, I suspect, have views, opinions and attitudes moulded by a variety of factors.		Rigorous training in the discipline of the law and in particular the requirement of objectivity, together with the public insistence upon judicial integrity, mean that unless some material matter is raised by a litigant, or voluntarily disclosed by the Judge, it is accepted that there can be no suggestion of reasonable apprehension of bias.		Edmund Burke spoke of "The cold neutrality of an impartial Judge".	That is what is expected.		If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident

sooner or later, but it is no"t for the litigant to pry into the Judge's background.	It is for the Judge to disclose a fact if it seems to him that it may be thought to have a bearing upon his neutrality.	An extensive and, with respect, most useful guide to the principles applicable to judicial disqualification is to be found in the reasons for decision of Kirby P. in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at pp. 367 to
373.

The answer to the question referred to the Full
Court   is;	"No 0 •

Recording of proceedinos by a litigant

Endeavouring to ensure that the case against him would proceed on the date in August previously  fixed  and upor. his terms, the appellant went before Ms Thomas, the Chief Stipendiary Magistrate on 6 April 1989, with an application that she hear the charge commencing on the date fixed.	As to the dates, he reminded Her Worship that it was important that they be confirmed since it was the day before "Hiroshima  and Nagasaki Day".	He also ensured that the learned Chief Magistrate was aware that there might be interlocutory  matters to be resolved  in the High Court and it was important that that be done before the date fixed for the commencement  of the hearing.	Her Worship quite sensibly

replied that the dates for the re-hearing had been fixed and there was no need to confirm them.	Quite rightly, she was not then prepared to indicate whether she or another Magistrate would then constitute the Court.	Her Worship was also asked to make orders pursuant to s. 16 of the
Service and Execution of Process Act, for leave to serve the Ministers for Defence and Foreign Affairs with summonses to appear.	It is not a matter before the Full Court, but although Her Worship gave that leave the followino day, it may not have been properly given since the transcript discloses that the summonses had not then been issued (see
s. 16(1) Service and Execution of Process Act).

What became an issue, after Her Worship's decision announced on 7 April, and referred by Nader J. to the Full Court on a so-called "appeal" to the Supreme Court, was Her Worship's refusal of an application to allow the appellant the opportunity to record the proceedings on the re-hearing of the charge by video and audio equipment.	She gave no reasons.

The appellant sought to preempt the decision, the subject of this reference, by seeking to be permitted to videotape the proceedings in this Court.	No ruling was made on that application.	I suspect his thinking was that if this Court allowed him to record what happened here, then it would be bound to find that Her Worship was wrong in

rejecting his application that he be allowed to do so in the proceedings listed for rehearing on 2 August.

The Chief Stipendiary Magistrate's decision not to permit the re-hearing of the charge to be recorded by him was not a judicial decision.	It was a decision relating to the internal management and control of the Court.	It did not arise under any statute.	There was no need to aive reasons.	I would hold that no appeal lies against Her Worship's decision and, although the question is now redundant, I am not persuaded that permission to record the proceedings before this Court on video ought to have been granted.	The feasibility and desirability of televising court proceedings in general has yet to be examined; see the discussion in "Counsel", May - June 1989, at pp. 5 - 17.

Waiving costs of transcripts and Court fees

The proceedings before Her Worship resumed on
7 April.	She announced her decision regarding service of the summonses directed to the Ministers and her refusal to permit the appellant to record the proceedings in August.

At that time the appellant raised with the learned Chief Magistrate matters which he had foreshadowed the previous day.	The first involved reference to the High Court Rules "about declaring someone a pauper", (see Part

III of Order 16 of those Rule·s) , followed by a request that he be relieved of the costs involved in obtaining transcript and payment of fees for filing documents in Court and for the issue of summonses.	The High Court Rules have no application to the Court of Summary Jurisdiction, or this Court.	Her Worship said she had no power to do what was requested of her.	That matter was also later referred to the Full Court by Nader J.	There is no express power in a Magistrate to waive court fees and costs.	So far as I am aware the only person with power to waive the payment of monies due to the Territory is the Treasurer, pursuant to
73(2)(a) of the Financial Administration and Audit Act. Fees are prescribed by Regulation 6 of the Justices Requlations for the filing of certain documents including applications to a Magistrate or Court, and for the issue of summonses.	Regulation 8 exempts mew ers of the Police Force and public servants, acting as such, from the payment of those fees.		There are no other exemptions.	There is nothing in the Justices Act or Regulations expressly requiring that applications be in writing and it thus appears that if an oral application is made to a Magistrate or the Court, no fee is payable.	No fee is prescribed for an application made to a Justice or the Clerk.	I mention these matters only to distinguish between circumstances where there is no fee prescribed, as opposed to the absence of power in a Magistrate to waive fees otherwise payable.
It seems that transcript is provided to litigants at a cost,

by contract, not regulation.	The practice has developed in this Court of sometimes ordering that unrepresented litigants be provided with transcript free of charge.	The power of the Court to so order may be doubtful, but there the matter rests.

Her Worship was correct.

Miscellaneous applications to the Supreme Court

The appellant then made an undated application in writing to the Supreme Court in the following terms:

"IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
No?	of 1989

Re:	LITTLE V LIMBO
Summary Court, Alice Springs APPLICATION TO SUPREME COURT JUSTICE
For the following orders
That the appeal against "interlocutory" order of Hook SM be heard before Nader J. leaves Alice Springs next week.

That the appeal against "interlocutory" order of Thomas CSM be heard at the same time.

That the applicant have free copies of all transcript since the appeal in Little v Limbo and until the end of the August trial set for 2nd, 3rd and 4th August 1989.

That the applicant need pay no front-counter fees for lodgement of applications, issuing of summons to witness, etc.

··-------

A declaration that the applicant is a poor person within s. 26 et seq. HIGH COURT RULES.

This application lodged by Lenin Limbo, 18 Leichardt Tee, Alice Springs."

These first came before His Honour Justice Nader at Alice Springs on 10 April.	There was general discussion between His Honour and the appellant.	The Notices of Appeal instituting the two appeals referred to in the application were not then placed before the Court.		However, the appellant opened briefly on the need for the appeal against one of the decisions of Mr Hook SM being dealt with urgently.	It appears that the learned Magistrate had had a discussion in Chambers with the appellant and counsel for the respondent a few days previously, but after he had declined to disqualify himself on the appellant's application to which reference has been made above.
Consequent upon that discussion His Worship was said to have announced in open Court that he was disqualifying himself from the re-hearing of the charge in August, but not from entertaining any interlocutory application.

There are two Magistrates normally sitting in Alice Springs, Mr Barritt SM and Mr Hook SM.	Mr Barritt had heard the charge against the appellant which was the subject of the successful appeal in March 1989 and had apparently disqualified himself from dealing with any matter in relation to the re-hearing.	Mr Hook apparently felt that

although he should not sit on- the re-hearing he need not necessarily disqualify himself from hearing interlocutory matters.	He adopted a practical approach, no doubt bearing in mind that there may be no other Magistrate available to entertain any such application, and reserving to himself the right to decide whether he should step aside if the nature of any application warranted his doing so.	The appellant wished that decision to be reviewed on appeal, and quickly. That issue also made its way into the Pull Court.	I do not consider that in all the circumstances, and on the facts known to us, His Worship was wrong in not automatically disqualifying himself from hearing interlocutory applications.	Reference was also made to the Hiqh Court Rules and the appellant's financial difficulty.	His Honour suggested he should make another application for assistance from the Australian Legal Aid Office, the appellant having said that an application had been refused.	The application was adjourned to 11 April, but time did not permit its being disposed of then and it was further adjourned to 12 April.
On that occasion counsel appeared amicus curiae by arrangement with the Attorney-General for the Commonwealth. His Honour said that it would not be possible for him to hear the "appeals" the following week because of his prior court commitments.	Again, the Notices of Appeal were not before the Court on 12 April although the appellant told His Honour they had been filed on the previous Friday (7 April).

During the course of-a wide ranging exchange between His Honour and the appellant, the appellant mentioned the application of the "Nuremberg Principles" to his defence to the trespass charge, the witnesses he proposed to call, and the difficulty he perceived in bringing an application for leave to serve summonses out of the jurisdiction before Mr Hook SM.	His Honour took the view that the issues which the appellant said were raised by the "appeals" should be referred to the Full Court and ordered accordingly.	The application that the appellant be given copies of transcript free of charge in the Magistrates Court and the Supreme Court was granted.

On the face of it, the Notice of Appeal against the decisions of Mr Hook SM, had not been filed when the application was first made to His Honour on 10 April.		The copy made available to this Court is dated 15 April.	The Notice of Appeal against the decision of Ms Thomas CSM is dated 7 April.

On 17 April the appellant was back before Nader J. again, upon applications as follows:

"IN THE SUPREME COURT
OF THE NORTHERN TERRITORY ALICE SPRINGS REGISTRY

No?	of 1989
RE:	LITTLE v LIMBO (Alice Springs Court of Summary Jurisdiction) and the Nurenberg

Principles
APPLICATION BEFORE JUSTICE NADER SITTING AT ALICE SPRINGS

l.	That the appeal against Hook SM's refusal to bring the witness Glen Kerr before the Court to obtain information and undertakings about his return to the jurisdiction be referred to the Full Court.

That the costs of the first trial awarded by Kearney J. be fixed at $2,700 plus interest at 20% from April '87.

That the sum of $3,240 be paid to the defendant within seven days from this order.

That Lenin Limbo be admitted without fee as a Barrister and Solicitor of the N.T. for the purpose of conducting the defence in Little v Limbo.
That Lenin Limbo be appointed by the Court to act for the defendant in Little v Limbo.
That Lenin Limbo be paid $300/wk by the Court for his legal services until the 4th day of August 1989.
That Lenin Limbo be given leave to appear before N.T. Courts in ordinary clothes.

That the Solicitor for the complainant be directed to accept reverse charges phone calls from Lenin Limbo.
The costs of this application fixed at$ TO:	The solicitors for the complainant
(Attorney-General of Australia, Darwin Office)
Attention: R Andruszko
And to:	Their Agents, N.T. Crown Law, Alice Springs.

This application lodged by Lenin Limbo, 18 Leichardt Tee, Alice Springs, Messages 5267	(?)"

His Honour simply referred all of those
applications to the Full Court.	They can be dealt with summarily.

As to the application in paragraph 1 that the appeal against the decision of Mr Hook SM be referred to the Full Court, His Honour so ordered.

As to the orders sought in paragraphs 2 and 3, we were told that the question of the costs awarded by Kearney
had been resolved by agreement and the agreed amount paid.

The law relating to the admission of legal practitioners is contained in the Legal Practitioners Act. None of its provisions have been complied with.	In so far as the application in paragraph 4 is properly before the Full Court I would dismiss it.

The application in paragraph 5 that this Court appoint the appellant to act for the appellant is incomprehensible.	The application in paragraph 6 that he be paid $300 per week by the Court for his legal services alonq with his application in paragraph 8, that the respondent accept reverse charge telephone calls from him may be dealt with together.	There is no express power in the Supreme Court to make any such orders.

As to paragraph 7, seeking leave to appear before the Court in ordinary clothes is, I suppose, sometimes a matter of courtesy where, for instance, counsel before a superior court, for some valid reason, is not able to be properly attired.	I can make no sense of the application in this case, unless the appellant had anticipated that his application for admission would be successful and he did not have court attire readily available.	In the circumstances the question does not arise.

As will appear later, and as the reference to the High Court Rules shows, the appellant says he is a poor person.	Coupling that proposition with what he says are the effects of applying the "Nuremberg Principles" and other matters of international law, he says the Courts have inherent power to make all kinds of orders, for which no express provision is made by law, to ensure he is given every facility to present his case.	It will be necessary to return to that proposition, which underlies all his approaches to the Courts.

His Honour Justice Nader was alive to that general background, and undoubtedly took the view that it would be better if those matters, which the appellant regarded as being of such fundamental and predominant importance, be agitated before the Full Court, rather than for His Honour to decide them and then there be an appeal, whichever way he

determined it.	The reference to the Full Court provided an expedient way in which those issues could be determined by a full bench.

Application for Directions

The appellant then made application to His Honour the Chief Justice, sitting in Alice Springs, in the nature of an application for directions in regard to the conduct of the proceedings before the Full Court.	That application dated 24 April 1989, reads:

"APPLICATION TO THE DUTY JUDGE (NUREMBERG PRINCIPLES)

BY THE NOMINAL DEFENDANT, PINE GAP PUBLIC INQUIRY
For the following orders:

That certain appeals and applications (concerning video, disqualification-of­ Maaistrates-for-bias, abscondina-witnesses, defendants-in-person, etc) as referred to the Full Court recently be heard at a Full Court sitting in May 1989.

That the Full Court sitting be at Alice Springs (or, that the N.D. have pre-paid expenses of attendance incl. return airfare, accommodation, office).

That the Commonwealth of Australia be appointed amicus curiae through the officers/offices of the Attorney-General and Solicitor-General.

That the nominal complaint be represented by a non-aoverrunent law-firm (or, that the Commonwealth of Australia represent both nominal parties).

That the nominal defendant be paid the costs of his preparation in any event (hereby fixed at $1,000 to the date of this application as an interim assessment and to be paid within 7 days).

TIMETABLE

That the N.D. lodge all written submissions and any further applications (an application to amend the appeals and applications is hereby foreshadowed) by Friday 5th May 1989.
That the N.A. and the amicus curiae lodge all written submissions and applications by Friday 19th May 1989.
That the F.C. sitting be listed for Saturday 27th May 1989 at 10 am (- 1pm, 2pm - 5pm).

That the N.D. be permitted (and is hereby authorised) to enter with reasonable notice
Pine Gap

Alice Springs Court

with video equipment, cast and crew in order to prepare two video tapes for the Full Court.

B.	That the amicus curiae attend to all procedural requirements (lodging orders for settling, preparation and copying of appeal books, etc l •
9 • That a Duty Judge be appointed to hear this application in Alice Springs on Friday 28th April (or, that N.D. have pre-paid costs of attendance).

10.	That the Duty Judge disclose any military, defence or intelligence connections.

This application lodged at Alice Springs on Monday 24th April 1989 by Citizen Limbo, Nominee Defendant for the PINE GAP PUBLIC INQUIRY.
Alice Springs Public Interest Advocacy Mob
("ASPIAM").
Note:	ASPIAM is the sole authorised representative of the Pine Gap Public Inquiry."
(The emphasis is that of the appellant)

It will be noted that by this stage the appellant was describing himself as "The Nominal Defendant, Pine Gap Public Inquiry" (at the head of the document); see also the wording at the foot thereof.	No objection was taken, and His Honour heard the appellant and counsel for the respondent on 11 May 1989.

His Honour rejected all of those applications and the appellant seeks leave to appeal to the Court of Appeal from those decisions.	There are some jurisdictional and procedural difficulties about the applications made to and dealt with by the Chief Justice and I will turn to them later.	The Court of Appeal agreed, by consent, and as a matter of convenience, that the grounds for a grant of leave be argued contemporaneously with the hearing of the matters referred.	At the conclusion of all argument the members of the Full Court reconstituted themselves as the Court of Appeal, and by consent the arguments going to matters thought to be in that jurisdiction, which had already been advanced, were adopted by the parties in that Court.

His Honour declined to order that the matters before the Full Court be listed for hearing in May 1989 (1) and at Alice Springs (2).	He did not consider that the matters referred should have priority or that the expense of having the Court sit in Alice Springs was warranted.	He found that the Court had no express power to order that:

the appellant have pre-paid expenses to enable him to attend before the Full Court in Darwin (2);

the Commonwealth be appointed amicus curiae (3);

the appellant be represented by a non-government law firm or that the Commonwealth represent both parties (4);

the appellant be paid his costs of preparation (5).

the appellant be permitted to enter Pine Gap and the Court Rouse with video equipment, cast and crew (7).	It may be noted that only the Minister or his delegate has power to permit entry to Pine Gap; see Defence (Special Undertakings) Act 1952 (Commonwealth) s. 11;

an amicus curiae attend to all procedural requirements (8);

He left it to the parties to agree as to a timetable for lodging and exchanging written submissions ( 6)•

As to the application that the duty Judge hear the applications on 28 April (9), His Honour pointed out that that date had passed.

His Honour declineq to order that the duty Judge (who happened to be himself) disclose any military, defence or intelligence connections, noting that the question of such disclosure was the subject of a reference to the Full Court (10).

His Honour also refused an application that arose in the course of argument, namely that he order that the Clerk of Court and Attorney-General make available for inspection by the appellant all files concerning arrests, charges and disposition of cases in the Alice Springs Court arising from actions at or about Alice Springs for the past ten years concerning trespass at Pine Gap.

An order was made that the appellant pay the respondent's costs.

It is not necessary for me to go into all of His Honour's reasons.	Clearly His Honour was right in holding there was no express power to make many of the orders sought; other decisions were of an administrative, not judicial, nature and not appealable.

Application for Witness Summons

on 27 June the appellant went before Mr McGregor SM, then sitting in Alice Springs, seeking the issue of

summonses to secure the attendance of persons at the rehearing in August, and leave to serve out of the jurisdiction in respect of some of them.

The power of a Justice to issue a summons is relevantly predicated upon his being satisfied that the person proposed to be summonsed is "likely to give material evidence" on behalf of either party to a complaint (s. 23 Justices Act - see above).	Before hearing those applications, however, the learned Magistrate was confronted by applications by the appellant that a crew from a national commercial television broadcaster be allowed to videotape the proceedings, and that the appellant be permitted to record the proceedings on an audio tape recorder.
Acknowledging that his Worship had power to regulate proceedings in his Court, the appellant urged that his applications be granted upon the grounds of public interest in that there was "literally a life and death issue here concerning not just one murder, not just five o.r six murders, but the murder of a complete civilian population both here and in other cities which is pretty serious I think".	He went on to assert that "a nuclear disaster is imminent because of human error and mechanical failure" and referred to "expressions of concern in opinion polls in the 'Bulletin' in September of. '88 by a reputable opinion poll firm, that fifty one per cent of Australians do not want foreign  bases on their soil".	His Worship adjourned to

consider those applications and after giving reasons decided that the television crew would not be permitted to video record the proceedings, but that the appellant could use his audio recorder.	The appellant quibbled at the decision regarding the video recording, but to no avail.	Insofar as those decisions may be properly before the Full Court by reference, for the reasons already given I would hold that they may not be questioned here.

During the course of these preliminary applications the appellant complained that the Clerk of the Court at Alice Springs had refused to issue the summonses which he then sought to have issued by the Magistrate.	His Worship said that he had no power over the Clerk and in that I consider he was right.	Remedies might be available in the Supreme Court arising from an improper failure of a Clerk to do his duty, but a Magistrate has no such power.

The appellant then proceeded with his applications regarding the many summonses.	He presented His Worship with a written outline of his defence argument and a proposed timetable for the calling of the witnesses he sought to summons.	I will not go into all that now, except to say that he referred to questions of "international human rights law", "imminent threat of loss of life", "U.S. global nuclear warfare strategy" and "raising the international terror level".	He proposed to call the witnesses to prove

those points; all going, he said, to his defence that he had lawful excuse to trespass upon Pine Gap.	He indicated he proposed to call many of the witnesses to give evidence via satellite, the cost of which would be borne by the Commonwealth, he asserted.	Reference was again made to the "Nuremberg Principles"; to the existence, deployment and use of nuclear weapons as being illegal; and he advanced his argument as to what he said was the role of Pine Gap in support of the various wrongs he perceived.

The list of proposed witnesses the appellant sought to have summonsed was not before the Full Court.	However, some indication can be obtained by looking at the transcript of the proceedings before Mr McGregor SM.	The appellant first mentioned proposed witnesses who would come to the Court of their own accord including medical, scientific, psychological and educational experts.	As to the proposed summonses, the appellant required the following witnesses:-

"The Director of the Alice Springs Emergency Service, as to any emergency plan to meet nuclear attack on Pine Gap.	The Mayor of Alice Springs, relatino to the departure from Alice Springs of Mr Kerr, the "hidden agenda" as to why Alice Springs needs Pine Gap and about the effect of nuclear explosion at Pine Gap.	The Chief Minister
of the Northern Territory; Mr Ede, a member of the

Opposition in the Legislative Assembly; Mr Snowdon, the member for the Territory in the House of Representatives, and Mr Crossin of the Territory Trades and Labour Council - so that they could speak on behalf of the people they respectively represent as to "what would happen in the event of a nuclear explosion, whether they live in terror or under threat or in someway are psychologically numb to the fact that Alice Springs is a nuclear target".
Mr Stallings who was said to have been the first Chief of Facility at Pine Gap and "involved in a secret agreement that was signed with some Australians about what the real purpose of the base was and how it was set up, and to show from its very early days, it was totally for U.S. nuclear strategy, its only recently its been modified into having some role verifying peace agreements".
Donald Kingsby who was said to be "the new head of Pine Gap".
Mike Bush, Peter Woodruff and John McCarthy who

were said to have been Australian defence representatives at Pine Gap, since October 1987. Chuck Barber who was said to be the head of computer operations at Pine Gap, to show that "Australians don't jointly share information, contrary to the agreement on Pine Gap with America

••.• to show that there is a history of lies and deceit about this base".
The director of CIA in Langley, Virginia as to the role of the CIA in setting up the base and "the role it was meant to play in terms of espionage and surveillance, both on internal Australian affairs, for example, the sacking of Gough Whitlam, and on the use of the base for current operations around the world •••".
The 163 Australian citizens said to be employed at Pine Gap "to show they mainly work as gardeners, maintenance people, and have no role in the affairs of the base, to show that in fact it's not a joint facility at all, but its very much a United States facility, it's a foreign base run by a foreign power".
The Alice Springs airport "to get detailed information about the arrivals and departures each Monday of the - either the Galaxy or the Starlifters and their role in which as you know, they are American military aircraft that fly in each week, and I would like to get evidence that the Alice Springs airport has no idea what they carry or what they do, and as to their arrival times and departures over the past few years".
The "U.S. chiefs" at each of "Shoal Bay in Darwin, North West Cape in Western Australia, Nurrungar in

South Australia, Cabarlah in Queensland, Watsonia in Victoria, Richmond in New South Wales and the
U.S. Embassy in the A.C.T•••• to be questioned about the role of those bases in U.S. nuclear war fighting strategy".
President Geor_ge Bush, "Commander-in-Chief of the United States Armed Forces" and Premier Mikhael Gorbachev as to their "current nuclear war fighting strategies and the role of Pine Gap as both nuclear
target and nuclear targeter".
Christopher Boyce, who was said to be in gaol in Seattle, as to "about how Whitlam had to go".
Victor Marchetti, "an ex CIA employee who has written extensively and published on the activities of the CIA, particularly he can give evidence about the role of the CIA in the sacking of Gough Whitlam
"
The President of the Canadian Bar Association - presumably as to a resolution said to have been passed by the Association concerning the illegality of nuclear weapons.
Ken Mant Nath and Lance Best - who it was said had recently been through the ·court defending themselves.	"I mean my point here is that we are talking about defendants in person with no knowledge of the law, raising legal questions and the court not taking any action and not directing

the prosecutors to take action to investigate their allegations" •

His Worship took time to consider the applications and on 28 June 1989 dismissed them.	In summary, His Worship said in his reasons:

The appellant sought witnesses to prove the illegality of Pine Gap;

The lawful excuse he wished to advance, with the evidence of the proposed witnesses, went to his "trespass preventing imminent threat to loss of life where imminence is (a) 30 minutes away from nuclear attack/holocaust (b) human error (c) contributing to U.S. global warfare strategy (d) raising the international terror level."

A further ground of defence was a lawful duty to prevent breaches of international human rights law.

None of the proposed witnesses could give probative evidence, "especially of imminent disaster or that the appellant was engaged in any activity likely to stop, capable of stopping or even designed to stop activity either local or of the law of nations (sic)".

The appellant failed to satisfy him that he had a legal right or duty or privilege to commit petty offences in order to expose great crimes under international law or otherwise.

The appellant did not know what some of the proposed witnesses were likely to say.

Some of the witnesses were out of Australia, others
\	were protected by diplomatic or other privilege, and could not be effectively served with a summons.

There was no power whereby witnesses could be obliged to give evidence by way of satellite television transmission.

It seemed to His Worship that he was being asked to assist the appellant to do something which was frivolous, contrary to law, oppressive and an abuse of process of the Court.

The appellant had also asked His Worship for an order directed to the Clerk of Court to the effect that his direction that Justices of the Peace not issue summonses was beyond the Clerk's power.	His Worship held that he had no power to give any such direction.	In that he was clearly right.

It appears that the appellant sought to appeal against the learned Magistrate's refusal to issue the summonses and give leave to serve those directed to persons outside the Territory.	No Notice of Appeal was before the Full Court.	However, on the morning that the matters previously referred to the Full Court were due to commence being heard, the appellant successfully applied to His Honour the Chief Justice for an order that such appeal be also referred to the Full Court.	I have already mentioned that it is doubtful that an appeal lies from such decisions, but need not decide the point.	If it does lie, it should be dismissed.

Change of rehearing date

On 5 July 1989, the appellant and counsel for the respondent appeared before Mr Hook SM and in light of the pending hearing before the Full Court, by consent, the dates for the rehearing of the charge against the appellant were vacated and the matter set down for mention on 18 September. The appellant did not then object to His Worship dealing
with the matter.

Appellant's submissions

Lest I do any injustice to the appellant's oral submissions to the Court of Appeal, there follows the

as a result of reasonably held beliefs that the Human Race and the Planet are in danger of imminent extinction (i.e. FACT #1 again) and/or that a combination of technological, political, military and pschological (sic) factors are increasing the risk of nuclear world war (i.e. same as FACT #2 - which was a longer way of explaining FACT #1: are you following all this?);

then leave to appeal should be granted forthwith for no other reason that you'd be failing in your common human responsibility (i.e. to protect and preserve life on earth for future generations) if you didn't at least see if its true.	You'd simply have to take these claims very very very seriously and listen to, and act on, such evidence.
REASON TWO

If we're probably right, then there's no time to lose and (b) this is no time to take the risk that we are wrong about these facts even if there is only a possible probability that we can prove these facts.
REASON THREE

This "common human responsibility" in reason one is also an ancient LEGAL DUTY which neither the orders of a Superior Officer nor the Laws of any State and not even a Nation's Constitution can ever extinguish.

REASON FOUR

A correct statement of some of the relevant law to be applied in this matter:

The existence and deployment and use of nuclear weapons is criminally illegal under international/australian/northern-territory/ indigenous law because they cause (and are designed to cause) terror and indiscriminate slaughter to non-combatants and the long-term poisoning and terminal devastation of the indigenous/local/ national and global environment.

This criminal illegality includes complicity (accessories, aiders & abettors, conspiracy, harbouring spies, allegiance to a foriegn (sic) power, stupefying, etc).

Nuclear weapons have been criminally illegal since their first invention and use 45 years ago

and all courts have a duty to enforce the law against them.

The Rule of Law applies particularly to the rich and powerful.

-	Len n Limbo has a_particular legal duty under international, australian and northern territory and indigenous law to develop this case:

legal skills/experience, media/public­ information-&-education skills,

personal legal and factual researches and therefore his personal knowledge of both the legal obligation and the evidence creating this legal obligation - especially given his status as a White Middle-Aged Anglo-Saxon Straight Male (WASMASM) with no dependents and dual Australia/U.S.A. citizenship,

middle-class confidence to create a useful model (for initiating and conducting future Public Interest Litigation by under-resourced low-income people seeking to protect and enforce their legal rights in the courts under the Rule of Law and against the rich and powerful),

the fact that no-one else more suitable has the the (sic) time to do it right now - or, if they had the time they didn't have the particular
cross-over skills and general life-experience to see how to do it successfully or even that it could at all
(etc)
and has at all times acted lawfully as the Nominal Defendant ("Nuremberg Principles") for the PINE GAP PUBLIC INQUIRY.

(5). The PINE GAP PUBLIC INQUIRY is entitled under international, australian and northern territory law in the Alice Springs Court of Summary Jurisdiction to a "fair and public hearing by a competent, independent and impartial tribunal established by the law" and therefore this Court must apply the Rule of Law that "all persons shall be equal before the courts" and immediately order equality of "fair" resourcing in the form of

offices,
officers,
operating budget, including comparable communications and mode of transport/travel,

similar access to Government Officials & Employees in the preparation of the hearing),
(etc)

by appointing the international/australian/northern
-territory Governments as "facilitators", providing either their own resources (including that of statutory authorities and other semi/quasi­ government bodies like AUSSAT, TELECOM, AUSTRALIAN BROADCASTING COMMISSION, OMBUDSMAN, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, NATIONAL CRIMES AUTHORITY, AUSTRALIAN LEGAL AID OFFICE) or cash
(including pre-payment on invoice) to the Noiiifiial Complainant and Nominal Defendant to each independently employ  legal/public-media­ inforrnation -&-education/governrnent-liason (sic) representatives (e.g. in this case, the PINE GAP PUBLIC INQUIRY has exercised its right of choice by employing the Alice Springs  Public  Interest Advocacy Centre (ASPIAC) as its sole representative in all media (including  the legal system) in exchange for all copyright  (including  TV, Publishing and Merchandising  rights)  in the PINE GAP PUBLIC INQUIRY - this copyright is managed by ASPIAR (Alice Springs Public Interest Advocacy Records) - and the current full-time ASPIAC
Case-worker assigned to work on the ASPIAC representation of the PINE GAP PUBLIC INQUIRY is Lenin Limbo).	(And he is getting very tired and stressed out worrying about money-enough for just one more week - and general fatigue and anxiety from the unbearable posible-abandonment-so-I-can­ survive-financially dilemma).

(6)	There is no reason of morals, public order or national security to exclude the Media and/or the Public from any part of this trial; and such exclusion is not required in the interests of the private lives of the parties and there are no special circumstances here where publicity would prejudice the interests of justice; so it follows that both the PINE GAP PUBLIC INQUIRY and the Media can video-audio record all proceedings and "admit" the public to those proceedings via the electronic/ broadcast/satellite media;	The law of copyright applies.
REASON FIVE

If the law as stated in reason four above is a, or an arguably, correct statement of the law as it currently exists, then the Appeal to the Federal Court is "not bound to fail" (but, in fact and law, it should succeed).

REASON SIX

Without the determination of this Appeal at the earliest opportunity, then logically
nthe Nominal Defendant (and those represented by the Defence Case - i.e. the Human Race and the Planet, life-on-earth, including this Court	you me)	'		'
"will or may (does'nt (sic) matter in this case because you have to weigh up the extent of what would definitely happen to all of us even if it only nmayn happen)
nsuffer (and wer'e (sic) talking pretty serious widespread suffering here!)
""damage for which it would be impossible to compensaten (which, in this case, means nArmageddon" - THE BIG ONE!)".

(The emphasis is that of the appellant).

Later in those papers he referred to "Grounds of Appeal", as follows:

nGROUNDS OF APPEAL

The Chief Justice made errors in exercising his discretion by:

acting upon wrong principles

allowing extraneous or irrelevant matters to guide and affect him
mistaking the facts

not taking into account some material considerations

The Chief Justice made errors of law.
The Chief Justice made errors of fact.n "JUDGEMENTS & ORDERS sought by the appellant:
The existence and deployment and use of nuclear weapons is criminally illegal under international, australian, northern territory and indigenous law because they cause (and are designed to cause) terror and indiscriminate slaughter to non-combatants and the long-term poisoning and

44

inspection (and photocopying by their staff if requested by the Nominal Defendant) all files concerning arrests,·charges and disposition of cases in the Alice Springs Courts arising from actions at or about Pine Gap for the past 23 years (1966).

The Common-wealth (sic) of Australia and the Northern Territory and their governments should investigate, prepare, lay and prosecute informations and indictments for conspiracy/ complicity in threatened/attempted murder and other relevant charges (terrorism, perverting the course of justice, etc) under the Crimes Act, the Criminal Code and other relevant legislation.

This court congratulates the Nominal Defendant (tenacious courage in the face of official/leaal/ judicial inaction) and supports the PINE GAP PUBLIC INQUIRY."

Included in the papers was a "Notice of Motion" by which the appellant sought the following:

"l.	This appeal be given #1 Priority in listing for hearing and decision.
The time for service of docurr.ents for the appeal & this motion be abridged.
Full compliance with formal requirements be dispensed with or o.k.'d.
Court-collected document lodgement/issue & transcript fees be waived (or, payment of fees be deferred until further order).
The PINE GAP PUBLIC INQUIRY and ASPIAR (the Alice Springs Public Interest Advocacy Records) be allowed to make public video-audio recordings of all court and courtroom proceedings in this case (including this motion and the appeal) and to broadcast these recordings on the public electronic
media.
Invitations and leave to intervene in support of these proceedings be directed to the Australian Ombudsman, the Northern Territory Ombudsman, the

Australian Human Rights & Equal Opportunity Commission, the National Crimes Authority, the Northern Territory Department of Law Prosecutions Branch, the Governor-General & Parliament of Australia, the Administrator and Legislative Assembly of the Northern Territory, all Australian State Attorneys-General, the Law Council of Australia (for NT Law Society), the Australian Legal Aid Office, the·Alice Springs Peace Group and the Australian Anti-Bases Campaign Coalition."

The essence of the appellant's argument is that:

Nuclear weapons have always been illegal.

Any strategy for war involving the potential use of nuclear weapons is illegal.

The United States has such nuclear weapons and strategy and it is thus acting illegally.

Pine Gap is a facility, the major function of which is to assist in that strategy and thus it is being used for illegal purposes.

Australia is complicit in that illegality.

Anyone (including Magistrates and Judges) who with knowledge of (or reasonable belief in) such illegal activity and who has an opportunity to do something about it is a potential criminal under

international law, unless he or she takes affirmative measures to prevent the commission or continued commission of that crime.

All of that imposes a duty or confers a privilege on everyone (including Magistrates and Judges) to break domestic law lest their action or inaction be later judged criminal under international law.

He had a lawful excuse for trespassing upon Pine Gap, in that he was acting in compliance with the dictates of international law operating within Australia.

The argument proceeds, so far as Judges and Magistrates are concerned, on the basis that they are not bound by statutes, the common law or rules of practice and procedure, but should use their offices in every way so that the alleged criminal activity is publicly exposed; any person, authority or government who or which is allegedly involved in the criminal activity or who or which might be a criminal for failure to perform the duty to do something about it, must be brought to account and ordered to perform the duty; any person who prays the aid of a Court to exercise such unfettered power to expose and bring to account, especially if that person is poor, must be provided by the Court and if necessary otherwise out of the public

purse by order of the Court, with all resources required to

enable that person to publicly expose the crime.	The duty
upon the Courts is such that their powers in such a case are unlimited.

Nuclear Weapons: Illegality

In 1961, the United Nations General Assembly declared the use of nuclear weapons to be "a direct violation of the Charter of the United Nations", and in 1972 declared the use of such weapons permanently prohibited.

We were not referred to any treaty or convention which expressly addresses the legality of the development and stockpiling of nuclear weapons.	There are some treaties which limit the use of such weapons such as the Antarctic Treaty, the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.
Reference might also be made to the Nuclear
Non-Proliferation Treaty and the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water.	Without having examined these Treaties in detail, it seems to me that they implicitly acknowledge the existence of nuclear weapons and are directed to limiting their use.

The proposition as to the illegality of nuclear weapons is advanced upon the application of the following
{for example):

Declaration of St. Petersburg 1868, which stated that combatants in war may not use weapons to "uselessly aggravate the suffering to disabled men11  •

Fourth Hague Convention 1907 which reaffirmed that the right of belligerents to adopt means to injure the enemy was not unlimited and that causing "unnecessary suffering" was impermissible.	Some commentators include the concept of "indiscriminate" within "unnecessary".

Geneva Gas Protocol of 1925, nuclear radiation and atomic fall out being equated with poisonous gases.

Hague Draft Rules on Aerial Warfare 1923, the Geneva Protocol on Humanitarian Law applicable in Armed Combat and the Geneva Convention 1949 concerning the protection of non-combatants.

International law prohibiting violation by belligerents of the territory of neutral states.

Genocide Convention, authorised to be ratified by Australia pursuant to the Genocide Convention Act 1949, confirming that genocide is a crime under international law.

(I take these examples from the many articles from a variety of sources relied upon by the appellant.	They are not intended to be exhaustive).

Whatever may be the merits of these arqu_ ents, we were not directed to any statute of Australia declaring the illegality of nuclear weapons, or of any strategy for war involving their use.

I pause to mention that serious legal questions arise in this type of debate going to the possible excuse for the use of nuclear weapons in circumstances of military necessity, reprisals and self-defence, using, perhaps, a nuclear device designed to limit fall-out against a legitimate military target in an area where there are no non-combatants.

Nuremberg Principles

Reference has been made to the appellant's reliance on what he terms "the Nuremberg Principles" ("Nuremberg" is the spelling I will adopt since it appears to be the latest

English languaoe version of the name of that German city.
Other versions commencing from 1050 A.D. include Noremberg, Nurburg, Nu"rnberg and Nurenberg).	In Volume 2 of the
Yearbook of the International Law Commission for 1950 appears a lengthy report by Special Rapporteur,
Spiropoulas, entitled "Formulation of Nurnberg Principles".		The author traces the history lying behind the attempts of the Commission, at the direction of the General Assembly of the United Nations, made in 1946, "to treat as of primary importance plans for the formulation in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal".	By the same resolution the General Assembly had affirmed the principles of international law recognized by the Charter and the judgment.	It noted that similar principles had been adopted in the Charter of the International Military Tribunal for the trial of major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946.	On the Nuremberg Charter and trial see generally "Nuremberg" by M Lippman in Law in Context (1988) Vol. 6(2).

The Commission produced a proposed text of the principles, which is as follows:

"A.	The principles "Stricto Sensu"

Principle I.	Any person who commits or is an accomplice in the commission of an act which constitutes a ·crime under international law is responsible therefor and liable to punishment.

Principle II.	The fact that domestic law does not punish an act which is an international crime does not free the perpetrator of such crime from responsibility under international law.

Principle III. The fact that a person who committed an international crime acted as Head of State or public official does not free him from responsibility under international law or mitigate punishment.

Principle IV.	The fact that a person acted pursuant to order of his Government or of a superior does not free him from responsibility under international law.	It may, however, be considered in mitigation of punishment, if justice so requires.

Principle V.	Any person charged with a crime under international law has the right to a fair trial on the facts and law.
The Crimes
Crimes against peace: namely,

Planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances;

Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

War Crimes: namely, violations of the laws or customs of war.	Such violations shall include, but not be limited to murder,
ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

Crimes against humanity: namely murder, extermination, enslavement, deportation and other inhuman acts done against a civilian population, or persecutions on political, racial or religious

grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war
crime."

The alleged duty of a person having knowledge of illegal activity to take affirmative measures to prevent it, is nowhere expressed in the draft text.	The appellant relies heavily upon that obligation, both as providing a lawful excuse for his trespass, and as the foundation for the Courts' powers for which he contends.	According to the article by Mr Frank Lawrence, "The Nuremberg Defence", in The Hastings Law Journal, Vol. 40, January 1989, it was the Tokyo War Crimes Tribunal which introduced this concept.
The author says that the statement is dicta, but nevertheless argues that it is evidence of how expansively incividual responsibility may be interpreted.	In his papers the appellant asserts that the Nuremberg concept is that any person "with actual knowledge that a crime against humanity (or war crime or crime against peace) is being committed, and, having such knowledge, was "in a position to shape or influence the policy that brings about initiation or "continuation" of the crime" to the extent of his ability
•... will be responsible if he could have influenced such policy and failed to do so."	He cites "Trials of War Criminals Before the Nuremberg Tribunals 1946 - 1949, Volume Eleven, pages 448 - 449".	Unsuccessful attempts have been made to locate that cited source.	No other material

available to me indicates that this concept has found its place in international law.

Justice Ryan in his book "International Law in Australia", 2nd edition, commencing at p. 175 traces the so far unsuccessful attempts to have the Draft Code of Offences Against the Peace and Security of Mankind progress through the United Nations.	There is no Commonwealth legislation supporting the appellant's claim that he has a right or duty to trespass upon Pine Gap.

It may well be that crimes against peace, war crimes and breaches of the rules of war are recognised under both customary international law and treaty law.	Australia acceded to the agreement relating to the Nuremberg trials on
5 October 1945, and enacted its own War Crimes Act in that year, which made provision for the trial and punishment of "	violations of the laws and usages of war" committed durinq the second World War (Ryan p. 157).	However, on the material available to me I am not prepared to hold that there is any rule of international law which places a personal responsibility upon an individual, who knows that any such crime is being committed or planned, to do everything possible to prevent it.	A fortiori, if the person only suspects, even on reasonable grounds, that such circumstances exist, I would not be prepared to read into the personal responsibility concept upon which the appellant

relies an obligation that he trespass upon prohibited land, or a privilege from prosecution for doing so,	contrary to Australia domestic law.

If, contrary to that view, the appellant is obliged by international law to do whatever is within his power by way of positive measures to prevent the commission of such a crime against international criminal law, then he will be able to put what he did to the international court or tribunal trying him, and it will be up to that body to determine whether the alleged crime was being planned or committed and whether what the appellant did operated so as to discharge him from criminal responsibility under international law.

Application of International Law in Australia

Though it is not necessary for me to do so, I refer briefly to various authorities of the High Court of Australia which indicate to me that if a defence to a domestic criminal charge is said to arise under international law then, absent competent legislation, such a defence will not be recognised in Australian courts.

First, Polites v The Commonwealth (1945) 70 CLR 60. Although "every statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with

the comity of nations or with the established rules of international law ... all the authorities in English law also recognize that courts are bound by the statute law of that country, even if that law should violate a rule of international law" (per Latham C.J. at p. 68).

"The law of nations, as I understand it, considers that all persons or things within the territory of a State fall under its territorial supremacy and are subject to its jurisdiction, legislative, administrative and judicial" (per Starke J. at p. 75).	See also McTiernan J. at p. 79.

In Chow Huno Ching v The King (1948) 77 CLR 449 at
478 Dixon J. adopted the opinion, with certain exceptions which do not apply here, that a treaty has no legal effect upon the rights or duties of the subjects of the Crown. Barwick C.J. and Gibbs J. did not dissent from that view in Bradley v The Commonwealth (1973) 128 CLR 557 at p. 582; and it was adopted by Stephen J. in Simsek v MacPhee (1982) 148 CLR 636 at p. 642: " ... it is for Parliament, and not for the Executive to make or alter municipal law".

Materiality of the proposed evidence of witnesses sought to be surr onsed

The appellant is charged that he, without lawful excuse, trespassed upon prohibited Commonwealth land.	Proof

of any lawful excuse rests on him (Crimes Act (Commonwealth)
89(1)).	The principles of common law with respect to criminal liability apply in relation to that offence (s. 4).

We were referred by the appellant to the statement of Kirby P. in Jago v Judges of the District Court (1988) 12 NSWLR 558 at p. 569 concerning the possibility that a source of guidance in the statement of the common law as to human rights in New South Wales could be found "in international instruments, prepared by experts, adopted by organs of the United Nations, ratified by Australia and now part of international law".	I refrain from making any comment on this tentative proposition, except to note that the preconditions to its applicability have not been shown to exist in this case, either in relation to the illegality of nuclear weapons as such, or as to personal responsibility to take affirmative measures.

Upon the material and arguments advanced by the appellant, supplemented by further research, and taking into account what was put by senior counsel for the respondent, Mr Riley Q.C., I am quite unable to hold that Mr McGregor SM was wrong in declining to issue summonses for the attendance of the various persons previously referred to, upon the basis that none of them could give evidence material to the appellant's proposed defence based upon the illegality of nuclear weapons, or to his perceived personal responsibility

to take affirmative measures to prevent the commission or continuance of the alleged crimes against international law.

The defence of necessity at common law

The appellant informed us that as a "fall back position" he proposed to rely upon the common law defence of necessity, a defence which appears to have been accepted as being available at common law in Australia.	All of the circumstances in which it may be properly raised have not been defined so far as I can tell, but there are examples of it being pleaded in defence to charges of murder, abortion and escape from prison.	This is not a case in which I think it is necessary or even desirable to explore the limits of the defence, and I will confine my remarks to the general principles which seem to have been accepted and apply them to the circumstances of this case.	In doing so I am prepared to adopt, for the purposes only of this matter, the propositions of fact put forward by the appellant.	In this Territory the Parliament has enacted a Criminal Code.	It has no application in this matter given the provisions of the Crimes Act.	So far as I can tell the common law on necessity has not been the subject of exposition in the Territory.	There are no reported cases and I can not find
any unreported decisions.

The Full Court of the Supreme Court of Victoria in R v Loughnan (1981) VR 443 held that the law recognizes the defence of necessity.	Young C.J. and King J. held at p. 448 that the elements of the defence comprised:

the criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect;

the accused must honestly have believed on reasonable grounds that he was placed in a situation of imminent peril; and

the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

Crockett J. formulated those elements somewhat differently at p. 460:

the harm, to be justified, must have been committed under the pressure either of physical forces or exerted by some human agency so that an urgent situation of imminent peril has been created;

the accused must have acted with the intention of avoiding greater harm or so as to have made

possible "the preservation of at least an equal value"; and

there was open to the accused no alternative, other than that adopted by him, to avoid the greater harm or "to conserve the value".

The appellant contends, on the basis of his readings, that Pine Gap is a nuclear target, that is, that in the event of war the enemy of the United States and/or Australia would seek to destroy that place by nuclear weapons.	Further, that even if a state of war did not exist, human or technological mistake could result in a nuclear weapon being directed there.	In either event, he says, not only would Pine Gap be destroyed, but the people there would be killed along with those in the nearby town of Alice Springs.	He also says that the facilities at Pine Gap can be used so as to direct the nuclear weapons of the United States upon its enemy.	He also relies upon writings which suggest that the period of warning of a nuclear attack on Pine Gap, whether intentional or accidental, would not exceed half an hour.

Through the witnesses he proposes to summons, the appellant hopes to prove as fact the matters which he has read about and which he says motivated his trespass.	That is, he wishes to establish, by proving those facts, the

correctness of his beliefs at the time.	I do not consider that to do so is relevant.	The test of necessity, as formulated by the majority in Louqhnan, is whether he honestly believed on reasonable grounds that he was placed in a situation of imminent peril, as at the time he trespassed.	In attempting to show that I do not consider it is relevant or permissible to attempt to prove facts which were not evident to the offender at the time of the offence.

The learned Magistrate was correct in declining to issue the summonses proposed to be served on people whose evidence was sought to prove facts alleged by the appellant, going to his common law defence of necessity, which alleged facts were not in evidence at the time of the commission of the offence.

I should say nothing further as to the common law defence of necessity as it might be advanced for consideration upon the rehearing of the trespass charge, except to say that the word "certain" in the formulation of the defence by the majority in Loughnan bears the sense of inevitable, something bound to happen or which could not otherwise be avoided, as opposed _to something not named or
specified.

Miscellaneous matters

In addition to the request to videotape the proceedings before the Full Court and the request that each of its members disclose military defence or intelligence connections (already dealt with above), the appellant sought to call before the Full Court an officer of the Australian Legal Aid Office (an instrument of the Commonwealth), with a view to finding out why his application for legal aid had been refused.	That is not a matter justiciable in the Full Court in these proceedings.	Counsel for the respondent (who also announced his appearance for the Commonwealth in so far as any of the orders sought might affect its interests) indicated that there were avenues for internal review of the officer's decision.	Whether such a decision, or a decision upon a review, may be called in question before the Supreme Court of the Territory is not something we are called upon to decide.	The appellant's application to the Full Court was refused.

Coincident with that application the appellant sought an order that the officer of that Office show cause why the appellant should not be represented by senior and junior counsel so as to achieve an equality of representation with those appearing for the respondent and the commonwealth.	The Full Court has no express power to so order.	Whether aid is to be given, and if so what level of

representation is to be provided, is a matter for the Office to determine.	The Commonwealth Parliament has enacted legislation enabling review of administrative acts of Commonwealth instrumentalities and officers of the Commonwealth.	I need not decide whether the Administrative Appeals Tribunal or the Federal Court has any jurisdiction in relation to the decision of the Australian Legal Aid Office.	The appellant declined an invitation extended by the Court to have an adjournment so that he could make further representations to the Office in support of his application for assistance before this Court.

The appellant sought orders that the "Australian Ombudsman, the Northern Territory Ombudsman, the Australian Human Rights and Equal Opportunity Commission, the National Crime Authority, the Northern Territory Department of Law Prosecutions Branch, the Governor-General and Parliament of Australia, the Administrator and Legislative Assembly of the Northern Territory, all Australian State Attorneys-General, the Law Council of Australia (for N.T. Law Society), the Australian Legal Aid Office, the Alice Springs Peace Group and the Australian Anti-Bases Campaign Coalition" be given invitations and leave to intervene in the Full Court.	Apart from his contentions as to the powers and duties of this Court when the question of nuclear weapons and the Nuremberg Principles are raised, nothing was put to show how the determination of the issues before this Court or the Court

of Swnmary Jurisdiction might be assisted by making any such order, nor as to the powers of this Court to so order even if it were of the opinion that such assistance would be helpful.

The appellant has taken it upon himself to categorise the Court proceedings as a public inquiry.	He spoke of the public being enabled to watch a "show trial" on television for the purpose of educating its members as to their responsibilities as he saw them.	He sought declarations and orders from this Court with the intention of drawing those duties to the attention of the Australian Legal Aid Office, the Australian Broadcasting Commission, Aussat and Telecom so that the former would be obliged to provide legal and other resources to enable him to conduct his case at the re-hearing and so that the latter would "allocate resources necessary to provide a continuous (and highlights) live telecast via satellite nationwide/
internationally/and satellite hookups for distance Witnesses
\		here and overseas/for the Pine Gap Public Inquiry".	He casts himself in the role of a "Nominal Defendant", representing he says, in effect, all those who are of the same mind.

Frequent mention was made by the appellant of the International Covenant on Civil and Political Rights, especially Article 14(3), relating to the minimum guarantees

of a person facing a criminal charge.	Standing alone the Declaration does not provide ·remedies under Australian domestic law if it is alleged any of the guarantees have been offended.	There is no power in this Court to enforce the guarantees to be found in the Declaration and we were not referred to any domestic legislation incorporating any of the guarantees which it was suggested had been broken, or which provided a means whereby they might be enforced.

Procedural matters

A Judge hearing proceedings may refer it or any part of it to the Full Court.	It is up to the Full Court to accept or decline the reference and it may make such orders and give such direction as it thinks fit in relation to the procedure to be followed (s. 21 Supreme Court Act).

As to the mode of application to the Full Court,
65.02 (1)(al provides that it shall be in such manner as the Judge who is referring the matter directs.	Justice Nader made orders, in effect, that the application be made by preparation and filing of documents in the nature of appeal books.

The Full Court gave a number of directions during the course of the hearing particularly given the confusing nature of the material before it, as to the order in which the various issues should be dealt with.

With respect, I doubt that His Honour the Chief Justice had jurisdiction to entertain the applications made to him by the appellant, in so far as they were in the nature of directions for the conduct of proceedings before the Full Court.	It is doubtful therefore that any appeal or application for leave to appeal lies from His Honour's decisions; (ss. 51 and 53 Supreme Court Act).

However, the Full Court and Court of Appeal severally entertained all issues raised by the appellant without objection.	For the sake of completeness I would therefore treat the appellant's arguments said to arise from His Honour's decisions as being arguments addressed to the Full Court in the first instance and would waive compliance with the Rules in so far as it is necessary to do so.

Orders

I would make the following orders and declarations:

Full Court

That the "appeal" from the decision of Mr Hook SM refusing to issue a warrant for the arrest of
Mr Kerr be struck out, or if properly instituted, dismissed.

..	2.	That the question "whether a Judge or Magistrate has an obligation to answer questions of a litigant
concerning matters which may disqualify him if the litigant knew about them, for example military, defence or intelligence connections", be answered
"No".

That the "appeal" from the decision of Her Worship · Ms Thomas CSM, refusing to allow the appellant to record the August proceedings in the Court of Swnmary Jurisdiction by video and audio equipment, be struck out.

That the application of the appellant for permission to record the proceedings of this Court by video or audio equipment, be refused.

That there is no power in a Magistrate to make any order waiving fees prescribed by the Regulations to the Justices Act.

That the "appeal" from the decision of Mr Hook SM not to disqualify himself from hearing all interlocutory applications relating to the August hearing be struck out, or if properly instituted, dismissed.

That the appellant's application for admission without fee as a Barrister and Solicitor for the purpose of conducting a defence in the Court of Summary Jurisdiction be refused.

B.	That the appellant's applications that he be appointed to act for himself; that he be paid $300 per week by the Court and that the respondent be ordered to accept reverse charge telephone calls, be refused.

That in so far as there was any "appeal" against the decision of Mr McGregor SM refusing to issue summonses upon the appellant's application to him, it be struck out, or if properly instituted, dismissed.

That the application that the decision of an officer of the Australian Legal Aid Office refusing legal aid to the appellant be reviewed, be struck out.

That the appellant's application that various organisations be given leave to intervene be refused.

That the appellant pay the respondent's costs.

Court of Appeal

That leave to appeal from the decisions of His Honour the Chief Justice of 11 May 1989 be refused.

That the appellant pay the respondent's costs.