The Queen v Law & Ors [2008] NTCCA 4

PARTIES:	THE QUEEN

	v

	LAW, Bryan Joseph
	DOWLING, James Joseph
	GOLDIE, Adele Margaret
	MULHEARN, Donna Maree

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	CA 8 of 2007 (20529991, 20529976, 20529975 & 20529995)

DELIVERED:	19 MARCH 2008

HEARING DATES:	20 - 22 FEBRUARY 2008

JUDGMENT OF:	MARTIN (BR) CJ, ANGEL AND RILEY JJ

APPEAL FROM:	THOMAS J

CATCHWORDS:

APPEAL – CRIMINAL LAW
Appeal against conviction – Crown appeal against sentence – prohibited area – statutory construction – discovery in criminal proceedings – miscarriage of justice – appeal against convictions allowed – Crown appeal against sentence abandoned – no retrial – acquittal.

Crimes Act 1914 (Cth); Criminal Code 1983 (NT) s 411 and s 413; Evidence Act 1995 (Cth), s 153 and s 153(2); Judiciary Act 1903 (Cth), s 78B; Supreme Court Rules (NT) O 81A.28.

Air Canada v Secretary of State for Trade [[1983] 2 AC 394; R v Young (1999) 46 NSWLR 681; Thompson v Goold & Co [1910] AC 409; Vickers, Sons & Maxim Ltd v Evans [1910] AC 444; Wentworth Securities v Jones [1980] AC 74; Wills v Bowley [1983] 1 AC 57; Koufos v Czarnikow Ltd [1969] 1 AC 350; Director of Public Prosecutions (VIC) v Selway (2007) 172 A Crim R 359; Felice v County Court of Victoria [2006] VSC 12; Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154; R v Saleam (1989) 16 NSWLR 14; Burmah Oil Co Ltd v Bank of England (1980) AC 1090; Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR; Ragg v Magistrates’ Court of Victoria [2008] VSC 1; R v Spizzirri [2000] QCA 469, applied.
R v Harm (1975) 13 SASR 84, cited.
Alister v The Queen (1984) 154 CLR 404; Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Trenerry v Bradley (1997) 6 NTLR 175, Hudson v Branir Pty Ltd (2005) 15 NTLR 35; B v The Queen (1992) 175 CLR 599, followed.
Fitzgerald v Magistrates’ Court of Victoria (2000) 34 MVR 448; Sankey v Whitlam[(1978) 142 CLR 42. referred to.

REPRESENTATION:

Counsel:
	First Respondent & Cross Appellant:	Self Represented
	Second Respondent & Cross Appellant:	Self Represented
	Third & Fourth Respondents
 	 and Cross Appellants:	R Merkel QC, R Orr and R Goldflam

	Appellant &Cross Respondent:		P Usher and A Cooper

Solicitors:
	Appellant & Cross Respondent:		Office of the Director of Public Prosecutions
	Respondents & Cross Appellants:		Northern Territory Legal Aid Commission

Judgment category classification:	A
Judgment ID Number:	Mar0804
Number of pages:	75

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Law & Ors [2008] NTCCA 4
No. CA 8 of 2007 (20529991, 20529976, 20529975 & 20529995)

	BETWEEN:

	THE QUEEN
	Appellant and Cross Respondent

	AND:

	BRYAN JOSEPH LAW
	First Respondent and Cross Appellant

	JAMES JOSEPH DOWLING
		Second Respondent and Cross Appellant

	ADELE MARGARET GOLDIE
		Third Respondent and Cross Appellant

	DONNA MAREE MULHEARN
		Fourth Respondent and Cross Appellant

CORAM:	MARTIN (BR) CJ, ANGEL AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 19 March 2008)

Martin (BR) CJ:
Introduction
[1]	The cross appellants (“the defendants”) were convicted by a jury of offences against the Defence (Special Undertakings) Act 1952 (Cth) (“the Act”) and the Crimes Act 1914 (Cth).  The convictions were based upon their entry on 9 December 2005 into the grounds of the Joint Defence Facility at Pine Gap in the Northern Territory (“the Facility”) and damage caused to perimeter fences in order to gain access.  The learned trial Judge imposed fines upon each of the defendants and the Director of Public Prosecutions (“the Director”) appealed against the sentences on the basis that they were manifestly inadequate. 
[2]	There was no appeal against the convictions under the Crimes Act relating to damage caused to the perimeter fences.  Initially only two of the defendants, Ms Goldie and Ms Mulhearn, cross appealed against their convictions under the Act for the offences based on entry into the grounds of the Facility.  Their grounds alleged errors by the trial Judge in preliminary rulings which the defendants contended led to other errors and to deficiency in the proof offered by the Crown in support of the charges.  In addition the defendants complained that the trial Judge erred in refusing applications for discovery of documents which in turn led to a denial of procedural fairness. 
[3]	At the early stages of the trial when preliminary issues of law were argued before the trial Judge, all defendants were represented by counsel.  However, the defendants were unrepresented during the trial before the jury.  On appeal, Mr Law and Mr Dowling remained unrepresented, but Ms Goldie and Ms Mulhearn were represented by senior counsel who argued the preliminary issues before the trial Judge.
[4]	During the hearing of the appeal the Court drew the attention of counsel to the terms of the directions to the jury and questioned whether the trial Judge had erred in failing to leave for determination by the jury a fundamental question of fact comprising an element of the offences charged.  This observation led to the addition, with leave, of a ground of appeal complaining that a miscarriage of justice occurred by reason of the failure of the Judge in that regard.  Mr Law and Mr Dowling then applied for leave to appeal against their convictions for offences under the Act based upon entry into the grounds of the Facility and leave was granted. 
[5]	At the conclusion of hearing counsel as to the appeal against convictions, the Court indicated that the appeals would be allowed.  The Director then abandoned the appeals against sentences.  The Court ordered that the convictions be quashed and that verdicts of acquittal be entered.  The Court declined to order a retrial and indicated that it would deliver written reasons for its decision.
[6]	I now set out my reasons for allowing the appeals and declining to order a retrial.  As will be apparent from the reasons, in my view errors occurred in the trial which resulted in the wrongful exclusion of evidence and a failure to leave a relevant question for determination by the jury.  These errors resulted in a miscarriage of justice.
Background
[7]	The defendants were charged with unlawfully entering a prohibited area, namely, the Facility, contrary to s 9(1) of the Act.  They were also charged with using a camera in the same prohibited area contrary to s 17(1) of the Act.  Sections 9 and 17 are as follows:
“9	Unlawful entry etc.
(1)	A person is guilty of an offence if:
(a)	the person is in, enters or flies over an area; and
(b)	the area is a prohibited area.
Maximum penalty:	Imprisonment for 7 years.
17	Use of cameras etc.
(1)	A person is guilty of an offence if:
(a)	the person is in or is passing over a prohibited area; and
(b)	the person has in his or her possession, carries or uses a camera or other photographic apparatus or material.
Maximum penalty:	Imprisonment for 2 years.”
[8]	It was common ground that the defendants cut perimeter fences surrounding the Facility and entered onto the premises where cameras were used by all defendants except Mr Law.  In addition to other defences not relevant to the appeal, one of the issues raised by the defendants concerned the evidence upon which the Crown intended to rely as proof that the Facility was a “prohibited area” for the purposes of s 9 and 17 of the Act.  The defendants were seeking to challenge the Crown case that the Facility was a prohibited area in December 2005 when the defendants entered the premises.
Prohibited Area
[9]	The Act provides two mechanisms by which an area may become a “prohibited area” for the purposes of the Act.  Through the operation of s 7 of the Act, a place used or occupied for the purposes of “special defence undertaking” is a prohibited area.  Exceptions are identified in s 7(2).  Section 7 is as follows:
“7	Prohibited areas
(1)	A place (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) used or occupied for the purposes of a special defence undertaking is a prohibited area for the purposes of this Act.
(2)	Subsection (1) does not apply to:
(a)	a railway, tramway, roadway, wharf, pier or jetty, or a work or structure which is part of or connected with a means of transport by land, water or air;
(b)	the area on which is erected or situated a searchlight, lighthouse, buoy or other navigational aid;
(c)	a public building, fire station, aerodrome, air station or runway for aircraft;
(d)	a signal, telegraph, telephone, radar or wireless station or office; or
(e)	a place used for gas, water or electricity works or other works for purposes of a public character;
unless it is used or occupied exclusively for the purposes of a special defence undertaking.”

[10]	The term “special defence undertakings” is defined in s 6:
“6.	Special defence undertakings
	A work or undertaking which:
(a)	is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for or in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
(b)	is declared by the Minister, by notice in the Gazette, to be a special defence undertaking:
is a special defence undertaking for the purposes of this Act.”

[11]	In addition to the operation of ss 6 and 7, power is given to the relevant Minister by s 8 to declare that an area is a prohibited area “if it is necessary for the purposes of the defence of the Commonwealth” to make such a declaration.  Section 8 is as follows:
“8	Minister may declare prohibited areas
If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be, for the purposes of this Act, a prohibited area.”
[12]	By notices published in the Commonwealth of Australia Gazette (No 96) dated 9 November 1967 (“the Gazette”), pursuant to ss 6 and 8 of the Act the Minister declared the Facility to be a special defence undertaking and a prohibited area.  In July 1992 the 1967 declaration pursuant to s 6 was revoked and was replaced by a new declaration.
Ruling by Trial Judge
[13]	Prior to trial, the defendant sought particulars as to the evidence upon which the Crown intended to rely in proving that the Facility was a prohibited area.  The Crown having indicated that it intended to rely upon both notices published in the Gazette, the trial Judge was asked first to determine as a preliminary question of law whether the notice published in the Gazette pursuant to s 8 was capable of amounting to proof that the Facility was a prohibited area for the purposes of the Act.  The trial Judge ruled in favour of the Crown that the notice given in 1967 under s 8 was sufficient to prove that the Facility was a prohibited area at the time of entry, namely, 9 December 2005.  As a consequence of that ruling, the Crown eschewed reliance upon the notice pursuant to s 6.  The only evidence adduced by the Crown before the jury as proof that the Facility was a prohibited area was the notice given pursuant to s 8.  
[14]	The notice in the Gazette of 9 November 1967 pursuant to s 8 read as follows:
“DECLARATION OF A PROHIBITED AREA
IN pursuance of the powers conferred on me by section eight of the Defence (Special Undertakings) Act 1952–1966, I, Allen Fairhall, Minister of State for Defence, being satisfied that it is necessary for the defence of the Commonwealth to do so, hereby declare the area of land described in the Schedule hereunder to be a prohibited area for the purposes of that Act.”
[15]	The Schedule to the notice set out the area declared to be a prohibited area which encompassed the Facility.
[16]	The notice in the Gazette declaring that the Facility was a special defence undertaking pursuant to s 6 was as follows:
“DECLARATION OF A SPECIAL DEFENCE UNDERTAKING
WHEREAS, by section six of the Defence (Special Undertakings) Act 1952-1966, it is provided that a work or undertaking which –
(a)	is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
(b)	is declared by the Minister by notice in the Gazette, to be a special defence undertaking.
is a special defence undertaking for the purposes of that Act.
      WHEREAS the work or undertaking that is being carried or is to be carried out at Alice Springs in the Northern Territory of Australia for the establishment, maintenance and operation of the Joint Defence Space Research Facility is a work or undertaking that is being and is to be carried out in part for or in relation to the defence of Australia and in part for or in relation to the defence of the United States of America, being a country associated with Australia in preparing to resist international aggression:
NOW therefore, I, Allen Fairhall, Minister of State for Defence, do hereby declare the following work, that is to say, the work or undertaking that is being or is to be carried out at Alice Springs in the Northern Territory of Australia for the establishment, maintenance and operation of the Joint Defence Space Research Facility to be a special defence undertaking for the purposes of the Defence (Special Undertakings) Act 1952-1966.
Dated this second day of November 1967.”
[17]	Pursuant to s 153 of the Evidence Act 1995 (Cth), the Gazette is admissible as evidence of the notices and declarations by the Minister.  Section 153(2)(b) provides that “it is presumed, unless the contrary is proved, that the act [the making of the declarations] was duly done …”.  The Gazette having proved that the declaration was made pursuant to s 8, the Crown submitted that the tendering of the Gazette would prove that the Facility was a prohibited area for the purposes of the crimes charged.  
[18]	The defendants submitted that the Gazette alone was incapable of proving that the Facility was a prohibited area because of the objective precondition in s 8 that the declaration be “necessary for the purposes of the defence of the Commonwealth”.  The defendants contended that the existence of this objective precondition to the valid exercise of the power conferred on the Minister by s 8 required the Crown to prove that the declaration in 1967 was “necessary for the purposes of the defence of the Commonwealth” (“defence purposes”).
[19]	In response to the defendants’ contentions the Crown advanced the proposition that the precondition to the valid exercise of the power conferred by s 8 was not an objective precondition that the declaration was, in fact, necessary for defence purposes.  The Crown submitted that the precondition was subjective and required the Minister to be satisfied that the declaration was necessary for defence purposes.
[20]	At the conclusion of submissions, in determining whether, as a matter of law, the tender of the Gazette amounted to sufficient evidence to establish that the Facility was a prohibited area for the purposes of the Act in December 2005, the trial Judge accepted the Crown contention that the precondition to the exercise of the power conferred by s 8 is subjective and s 8 “should be read as meaning”:
“Where the Minister is satisfied that it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may … declare an area … to be … a prohibited area”.
[21]	As will appear later in these reasons, in my opinion it was not necessary for her Honour to deal with the competing contentions as to the construction of s 8.  The tender of the Gazette established at least a prima facie case that the Facility was a prohibited area.  In my view the precondition is objective, and the Judge erred in this regard, but in order to establish a prima facie case it was not necessary for the Crown to prove the objective fact that the declaration in 1967 was necessary for defence purposes or remained necessary for such purposes in 2005. 
[22]	The Judge delivered written reasons for her decision.  Her Honour identified the preliminary question of law in the following terms:
“[W]hether, on the totality of the evidence that the Crown has particularised as evidence upon which it proposes to rely, the Crown can establish, as a matter of law, that the area on which each of the defendants are alleged to have committed offences under [the Act], was a ‘prohibited area’ under s 8 of the Act, at the time the offences were allegedly committed.”
[23]	In the context of the debate as to whether the precondition to the exercise of power was objective or subjective, and whether the words “where the Minister is satisfied” should be read into s 8, her Honour cited the following observations of Spigelman CJ, with whose judgment Abadee and Barr JJ agreed, in R v Young (1999) 46 NSWLR 681 at [5] – [8]:
“5	The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law.  It is no part of the function of any judge to amend legislation.  The task of the courts is to determine what parliament meant by the words it used, not to determine what Parliament intended to say: see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; [1978] 1 All ER 948 at 952; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459.
6	In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words.  This is not, however, to introduce words into the Act.  This involves the construction of the words actually used.  Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.
7	The most frequently cited formulations are:
‘… It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’
Thompson v Goold & Co [1910] AC 409 at 420, per Lord Mersey; and
‘… we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.’
Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445, per Lord Loreburn LC.
To similar effect is the following formulation:
‘Additional words ought not to be read into a statute unless they are required in order to make provision intelligible.’
Wills v Bowley [1983] 1 AC 57 at 78B.
8	The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used.”
[24]	The Judge accepted the submission by the Crown that as the Minister is in charge of administering the Act, the Legislature intended that the Minister should make the decision as to whether the declaration is necessary for defence purposes.  Her Honour expressed the view that the construction for which the Crown contended promotes the purpose of the Act “and is necessary to make the section intelligible”.  She observed that to construe s 8 otherwise “would result in a farcical situation where the Crown would have to call evidence on matters of national defence which presumably the defendants could seek to rebut”.
[25]	The last observation of the Judge concerning the calling of evidence appears to be based upon a view that if the precondition is an objective fact, the tendering of the Gazette could not amount to proof that the area was prohibited.  In my opinion such a view is not correct.  
[26]	On the basis of her views, the Judge expressed her conclusion as to proof that the area was a prohibited area in the following terms:
“[29]	On the evidence on which the Crown proposes to rely, section 8 of the Defence (Special Undertakings) Act 1952 (Cth) establishes that the subject area of the land as set out in the Schedule and known as Pine Gap was a ‘prohibited area’ within the meaning of the Act at the time the offences were allegedly committed.”
[27]	On the hearing of the appeal, counsel for the Director, who was not counsel at the trial, eventually conceded that the trial Judge erred in her construction of s 8.  That concession was properly made.  The words of s 8 are not ambiguous and the ordinary and natural meaning of the words must prevail.  The existence of an objective precondition to the making of the declaration does not detract from the fundamental purposes of the Act, namely, the ability to protect areas from entry by unauthorised persons when it is necessary to do so in the interests of the defence of Australia.  Nor does such a precondition render the section unintelligible.  In view of the objective precondition to the making of a declaration pursuant to s 6, it is not surprising that the Legislature intended to require the existence of an objective precondition to the valid exercise of the power to make a declaration pursuant to s 8.  There is no basis for a conclusion that the words “Where the Minister is satisfied” were omitted from s 8 by inadvertence.  
[28]	As to the principles to be applied, it is sufficient to refer to the observations of Spigelman CJ in Young cited by her Honour, together with the additional remarks of his Honour which followed immediately after the cited passage [9] – [12]:
“9	The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107:
‘My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act.  But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it.  Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied.  First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law.  Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.  Such an attempt crosses the boundary between construction and legislation.  It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.’
10	The passage has been adopted and applied in this Court ...
11	The three conditions set out by Lord Diplock should not be misunderstood.  His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature.  Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.
12	As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute.  The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate.  However, the words which actually appear in the statute must be reasonably open to such a construction.  Construction must be text based.” (citations omitted)
[29]	In my opinion, neither of the second and third conditions identified by Lord Diplock exist.  The words of s 8 are not open to the construction favoured by the trial Judge.  The precondition to the valid exercise of the power conferred by s 8 is the objective fact that the declaration is necessary for defence purposes.
[30]	For these reasons, in my view the trial Judge erred in her construction of s 8.  However, it does not follow from the error that the Gazette was not capable of amounting to proof that the Facility was a prohibited area for the purposes of the Act at the time of entry in December 2005.  
[31]	Section 8 confers a power on the Minister, the exercise of which has a consequence, namely, that the area declared by the Minister is a prohibited area for the purposes of the Act.  In the absence of challenge to the validity of the exercise of the power, and in the absence of any material suggesting that the exercise of the power may not have been valid, the Court is entitled to act upon the declaration and to accept it as at least prima facie proof of the consequence of the exercise of the power, namely, that the area was a prohibited area.  In my view, the Legislature cannot have intended otherwise.  The construction for which the defendants contended would mean that in every prosecution involving an area declared prohibited pursuant to s 8, the Crown would be required to adduce evidence that at the time the declaration was made it was necessary for defence purposes to make the declaration.  In addition, if the declaration was made under s 6, on that construction in every prosecution based on a s 6 declaration it would be necessary for the Crown to prove that, at the time of the declaration, a work or undertaking was being carried out, or was to be carried out, “for or in relation to the defence of Australia …”.  The Legislature cannot have intended such consequences.
[32]	The exercise by the Minister of the power conferred in either ss 6 or 8 brings with it a presumption that the power was properly exercised.  The presumption of regularity was concisely stated by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164:
“… where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions are necessary to the exercise of that power or the doing of that act have been fulfilled …”. 
[33]	In my opinion, therefore, although the trial Judge erred in her construction of s 8, the tendering by the Crown of the Gazette established at least a prima facie case that, as from 9 November 1967, the Facility was a prohibited area.  Further, in my view the tendering of the Gazette established at least a prima facie case that the Facility was a prohibited area at the time the defendants entered the premises on 9 December 2005.  There may or may not be good reason for doubting that 38 years after the declaration it remained necessary for defence purposes that the Facility be declared a prohibited area, but the declaration of 1967 remains in force and has effect until revoked or declared invalid by a court.  Again, if the defendants are correct that by the effluxion of time the declaration ceases to be prima facie proof that the area is prohibited, theoretically the declaration could cease to have effect within a few days of it being made.  The defendants were unable to identify any principle or authority to support their contention.  The continuing effect of the declaration does not deny the possible existence of grounds for challenging the continuing validity of the declaration, but in the absence of such a challenge and material to support the challenge, the declaration remains at least prima facie proof that the area is prohibited.
Adequacy of Notice
[34]	During submissions, counsel for the defendant pointed out that the notice in the Gazette did not contain a statement that the declaration was “necessary for the purposes of the defence of the Commonwealth”.  A somewhat faint argument was developed that the absence of those words affected the validity or adequacy of the notice.  This was combined with reference to the words in the notice stating that the Minister was satisfied that the declaration was necessary for the defence of the Commonwealth.
[35]	In my opinion, the absence of words that the declaration was “necessary for the purposes of the defence of the Commonwealth” does not affect the validity of the notice or the operation of the declaration.  Section 8 provides that the Minister may, by notice, declare an area to be a prohibited area.  The fundamental requirement is that the notice comply with s 8 by declaring an identified area to be a prohibited area.  That fundamental requirement was met by the terms of the notice.  It is not an essential requirement that the notice itself state that the declaration is necessary for defence purposes. 
[36]	As to the words in the notice that the Minister was “satisfied that it is necessary for the defence of the Commonwealth” to declare the area prohibited, in my view the presence of those words does not affect the validity of the notice or the operation of the declaration.  As was pointed out during submissions, the words are surplus to the requirements of the notice, but they have no effect upon its validity.  
Course of Trial
[37]	The ruling by the trial Judge that the precondition to the exercise of the power under s 8 was satisfaction by the Minister that the declaration was necessary, rather than the objective fact that the declaration was necessary for defence purposes, significantly altered the course of the trial to the detriment of the defendants.  
[38]	 First, it influenced her Honour’s approach to a preliminary question concerning discovery of documents by the Secretary of the Department of Defence (“the Secretary”).  Secondly, as a consequence of the erroneous rulings and views formed by the trial Judge as to admissibility of evidence, the defendants were denied the opportunity of pursuing legitimate forensic issues and lines of defence.  The defendants were seeking to challenge the Crown case that the Facility was a prohibited area.  They sought to mount that challenge on the basis that the 1967 declaration was invalid because, at that time, the declaration was not necessary for defence purposes.  In turn, the defendants sought to establish that in 1967 the Facility was not being used for defence purposes.  In addition, the defendants sought to advance their case that the Facility was not a prohibited area in 2005 on the basis that, in 2005, the Facility was primarily used for the purposes of aggression rather than defence and, therefore, the continuation of the declaration was not necessary for defence purposes.  The trial Judge ruled that evidence as to these issues was inadmissible.
[39]	It is appropriate to note that following the ruling by the trial Judge, in the conduct of the trial it appears to have been overlooked that in challenging the validity of the declaration, the defendants were entitled to attack the basis upon which the Minister in 1967 reached his state of satisfaction that the declaration was necessary for defence purposes.  If, as an objective fact, the declaration was not necessary for defence purposes, that fact could be used by the defendants to mount an argument that in the absence of a factual basis for the declaration the Minister could not reasonably have been satisfied that the declaration was necessary for defence purposes.  This was a way in which the defendants could seek to attack the validity of the declaration under the terms of her Honour’s ruling.  However, as I have said, this basis of relevance appears to have been overlooked.
Use of Facility in 2005
[40]	As to the question of a change in the purpose and use of the Facility since 1967 the trial Judge noted the submission of counsel for the defendants:
“He submitted that the purpose of the Facility may have changed considerably since 1967 and may have become a Facility less relevant to the defence of Australia.  If that has occurred then it is argued for the defendants that this is very relevant to their defence as the documents may show that the Facility at Pine Gap is no longer necessary or relevant to the defence of Australia.”
[41]	This submission, also advanced on the appeal, was based upon the contention that if in 2005 the Facility was not relevant to defence purposes, the declaration made in 1967 would no longer be valid.  Counsel urged that this conclusion follows as a matter of proper construction of s 8 and also because the constitutional underpinning of the exercise of the power would no longer exist.  The latter proposition involves the interpretation of the defence power contained in s 51(vi) of the Constitution.  As notice has not been given under s 78B of the Judiciary Act 1903 (Cth), counsel agreed it would be inappropriate for this Court to deal with the constitutional question.
[42]	The trial Judge expressed the view that the only time at which the Minister needed to be satisfied that the declaration was necessary for the purposes of the defence of Australia was the time at which the declaration was made.  Acting on that view, it appears that her Honour rejected the proposition that the declaration of 1967 would not be valid in 2005 if, in 2005, the Facility was no longer required for defence purposes.  In addition, her Honour found that there was “no evidence” that the Facility had ceased to be used for defence purposes.
[43]	Although the constitutional underpinning of s 8 is clearly relevant to the construction of s 8 in this context, in my opinion, as a matter of construction of s 8 without recourse to constitutional considerations, there is a strong argument that a declaration under s 8 remains valid only while it remains necessary for defence purposes.  
[44]	As I have said, the purpose of s 8 and other provisions concerned with prohibited and restricted areas under the Act is to enable the relevant authorities to protect land and facilities used for defence purposes from unauthorised entry and inspection.  The basis of the powers conferred by the Act is protection of special defence undertakings and other areas, including land and water, where it is necessary for defence purposes to establish the protection.  Significantly, the protection by prohibition or restriction of entry is accompanied by significant criminal sanctions, including imprisonment for a maximum period of seven years.
[45]	The Legislature must be taken to have understood the potential for interference with rights of passage and rights to enjoy land as well as the significance of the criminal sanctions.  It is unlikely that the Legislature intended that a declaration founded on necessity for defence purposes should continue to be in force and effect after that foundation has ceased to exist.  The evident purpose of the legislative scheme is achieved by the operation of the declaration throughout the period during which the declaration is necessary for defence purposes.  Beyond that period, at a time when the declaration is no longer necessary for defence purposes, interference with rights and the existence of criminal sanctions would exist for no useful purpose.
[46]	As a matter of construction of s 8, therefore, in my opinion there are strong arguments in favour of the view that while a declaration under s 8 remains valid until revoked or declared invalid by a court, the ongoing validity of the declaration may be challenged on the basis that at the relevant time the declaration was no longer necessary for defence purposes.  On this construction, if in 2005 the declaration that the Facility was a prohibited area was no longer necessary for defence purposes, the declaration would have been invalid and the Facility would not have been a prohibited area.  On this view it would be open to the defendants to challenge an essential element of the Crown case, namely, that as at the date of entry onto the premises of the Facility, that area was a prohibited area.
[47]	As I have concluded that there are other reasons why the trial miscarried, and in view of the lack of a notice given under s 78B of the Judiciary Act and the inability of the Court to address the constitutional question, it is neither necessary nor appropriate to reach a final conclusion as to the construction of s 8 in this regard.
Discovery/Production
[48]	Following the ruling by the Judge as to the operation of the notice pursuant to s 8, the defendants sought an order under O 81A.28 of the Supreme Court Rules requiring the Secretary to make discovery of documents relating to the declarations pursuant to s 6 and s 8.  Discovery was also sought from the Commonwealth Director of Public Prosecutions and the Commissioner of the Australian Federal Police.  Although the order sought “discovery”, the ultimate purpose of the defendants was to obtain production of the documents, at least for inspection by the trial Judge and, hopefully, for subsequent disclosure to the defendants.
[49]	It is unnecessary to set out in full the details of the documents sought by the defendants.  Essentially, they sought all documents relating to the 1967 declarations under ss 6 and 8 together with all documents relating to the revocation of the declaration under s 6 in 1992 and the further declaration made under s 6 on 22 July 1992.  In addition, the defendants sought discovery of “the agreements or arrangements that evidence or record the defence or other purposes for which the area … was being used or were intended to be used …” in November 1967, July 1992 and December 2005.  In other words, the defendants sought documents directed to the purpose of the Facility in those years with a view to addressing the objective question of whether the declarations were necessary for defence purposes in 1967, 1992 and December 2005.
[50]	The application for discovery was supported by affidavits from Mr Law and the solicitor for the defendants.  The latter deposed to a view, based on advice from counsel, that “serious issues concerning the validity of the s 8 declaration” existed.  The trial Judge noted that “such issues primarily concerned whether the s 8 declaration was invalid” by reason of being “ultra vires or affected by jurisdictional error because the Minister, inter alia, failed to address the correct question, erred in law in the consideration of the preconditions for the exercise of the power conferred by s 8, failed to take into account relevant considerations or otherwise constructively failed to exercise the power conferred by s 8 in making the s 8 declaration.”  Her Honour found, correctly in my view, that the affidavits amounted to speculation.
[51]	The trial Judge declined to order discovery and delivered written reasons for her decision.  In the context of her Honour’s ruling as to the construction of s 8, a reading of her Honour’s reasons in their entirety leads me to the conclusion that her Honour did not consider whether the documents sought might be relevant to a defence that in 1967 the Facility was not used for defence purposes and, therefore, the declaration was not necessary for defence purposes.  In my view, her Honour erred in that regard.  It must be said, however, that on the material before her Honour it seems unlikely that her Honour would have reached any different view had she addressed the correct question.  Her Honour rejected the application on the basis that it amounted to no more than a fishing exercise and it seems likely that she would have taken the same view in relation to the objective question.
[52]	In rejecting the application for discovery to the extent that the documents related to the Minister’s state of satisfaction in 1967, the trial Judge relied upon the well known passage in the judgment of Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 414 in which his Honour used the oft quoted expression “on the cards”.  The relevant passage is set out in para [65] of these reasons.  Counsel for the defendant submitted that her Honour erred in her application of Alister.  The submissions raised important questions as to the proper interpretation of Alister and the correct approach to applications for discovery in criminal matters.  Before dealing with these questions, however, it is appropriate to consider the application in the context of the Northern Territory Supreme Court Rules which govern such an application.
[53]	As a general rule, there is a “long standing principle that there is no discovery in criminal cases”: R v Saleam (1989) 16 NSWLR 14 at 19.  It is unnecessary to explore the limits of that principle as it has been modified by the Supreme Court Rules.  Order 81A.28(1) provides as follows:
“81A.28	Discovery, inspection and preservation of property
(1)	If it appears that a person (other than the accused) has or is likely to have, or had or is likely to have had, in his or her possession or power a document that relates to a question likely to be raised at the trial of the accused, the Director or the accused may apply to the Court for an order that the person make discovery to the applicant of the document.”
[54]	The balance of O 81A.28 concerns procedures to be followed in respect of discovery.  If the Court does not specify a method of discovery, it may be completed by delivering a list of documents or producing the original documents for inspection.  If a list is provided, the applicant may apply to the Court for an order that the documents or some of them be produced to the applicant for inspection.
[55]	There are many authorities concerning discovery in the civil context which discuss the type of circumstances in which an application for discovery amounts to an abuse of process and the general principles applicable to questions of discovery.  It is unnecessary to embark upon a discussion of those authorities and principles.  
[56]	Order 81A.28 is concerned with discovery of documents “relating to” a “question likely to be raised at trial”.  The first issue to be considered is the nature of the “question” that is “likely to be raised at the trial”.  In the case of the defendants, the ultimate question was whether, in December 2005, the Facility was a prohibited area.  At the heart of this question was the validity of the declaration.  In turn, the question as to the validity of the declaration necessarily involved the purpose or purposes of the Facility and whether, in 1967 (and probably 2005), the declaration was necessary for defence purposes.
[57]	Next, O 81A.28 required the Court to consider whether the Secretary was or previously had been in possession of such a document or was “likely” to be or have been in possession of a document that “related to” such a question.  The answer to that question must be positive.  Plainly it was likely that the Secretary had been in possession of, and was currently in possession of, documents “relating to” the purposes of the Facility.
[58]	Order 81A.28 does not expressly require that before discovery will be ordered the applicant must satisfy the Court that the document sought is likely to materially assist the applicant.  Nor does the rule expressly require an applicant to establish that it is “on the cards” or reasonably possible that the document will materially assist the applicant.  Order 81A.28(1) requires only that the applicant make it “appear” to the Court that the document “relates to a question likely to be raised at the trial”.
[59]	Although the submissions of the parties before the trial Judge recognised that the application was based on O 81A.28, and the tests posed in various authorities could not be substituted for the test posed by O 81A.28, the defendants accepted that decisions in other contexts were of assistance to the Court.  The Secretary submitted that the ordinary principles applied by courts in relation to civil discovery and subpoenas should guide the Court in the exercise of the discretion.  
[60]	In substance the arguments proceeded on the basis that the discretion to order discovery under O 81A.28 was governed by those principles which apply to an application for discovery or a subpoena for production of documents in jurisdictions where such applications are not governed by the content of Rules.  As a consequence, before the trial Judge and on the appeal the parties did not address the interaction between O 81A.28 and those principles applied in other jurisdictions.  Nor did the parties address possible constraints on the exercise of the discretion to order discovery once it “appears” to the Court that the person from whom discovery is sought is likely to have or have had in their possession a document that “relates to” a question likely to be raised at the trial.  These issues are discussed further later in these reasons.
[61]	I return to the decision of the High Court in Alister and the issues raised by the defendants as to the proper interpretation of Alister and the correct principles to be applied to questions of discovery and production in criminal matters not governed by O 81A.28.  
[62]	In Alister, the Court was concerned with a claim for public interest immunity over documents held by the Australian Security Intelligence Organisation (“ASIO”).  Alister and others (“the applicants”) had been convicted of conspiracy to murder and attempted murder.  It was the Crown case that the applicants belonged to an organisation called Ananda Marga and had discussed their plans with the principal Crown witness, Richard Seary, who had pretended to join the applicants, but had informed the police of their activities.  The defence claimed that the entire prosecution case was a “fabrication and frame-up”.  The conduct of Seary and his credibility were of critical importance.
[63]	It was public knowledge that Seary had joined Ananda Marga as an undercover agent for ASIO and the subjects of his enquiries were Ananda Marga and the previous bombing of the Hilton Hotel.  The applicants sought production of all notes and reports made by Seary concerning Ananda Marga and the applicants.  Gibbs CJ noted that it was not known whether Seary made reports to ASIO concerning the applicants, but it was “not unreasonable” to suggest that Seary made reports to ASIO concerning Ananda Marga and the applicants.  Further, Gibbs CJ observed that there was “not the least ground to suppose that any such reports were favourable to the applicants’ case” and that “if one were to speculate, one would guess that any reports made by Seary would be adverse to the applicants” (414).  
[64]	At trial, and on appeal, the Attorney-General had resisted the application on the basis of public interest immunity.  The assertion was made that the public interest would be harmed by disclosure of the fact whether the documents existed and, if they did exist, by their production.  The trial Judge initially determined to examine the documents, but after further consideration of relevant authorities upheld the claim for public interest immunity.
[65]	It was in this context, that Gibbs CJ addressed the principles to be applied in determining whether the Judge should look at documents in respect of which a claim for public interest immunity had been made.  His Honour said (414 and 415):
“Both Burmah Oil Co Ltd v Bank of England [(1980) AC 1090] and Air Canada v Secretary of State for Trade [[1983] 2 AC 394] support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade [[1983] 2 AC at p 439], he must have ‘some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition’.  In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view.  In both cases the proceedings were civil and not criminal.  Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam [(1978) 142 CLR at pp 42, 62]), so in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings.  Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.  If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused.  To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done” (my emphasis).
[66]	The ordinary and natural reading of the passage cited, particularly those parts I have emphasised, leads to a conclusion that Gibbs CJ was applying the “on the cards” test that the documents “will materially assist the defence” to consideration of “whether to inspect documents for the purpose of deciding whether they should be disclosed”.  If the process is regarded as a two stage process in which the Court must first decide whether to inspect the documents, on an ordinary reading of his Honour’s words he was applying the “on the cards” test at the first stage.  Counsel for the defendants submitted, however, that a close consideration of the facts reveals that the Chief Justice must have been applying the test to the second stage after the Court has inspected the documents and is determining whether the documents should be disclosed to the accused person.  The decision in Alister, so it was said, is not explicable if the “on the cards” test applies at the first stage of determining whether to inspect the documents.  Counsel contended that this conclusion was inevitable because it was unknown if the documents sought existed or, if they did exist, it was likely that they would not assist the applicants’ case.  Against that background the High Court ordered the production of documents for inspection by the Court.  Hence, it was suggested, Gibbs CJ cannot have intended that before production for inspection would be ordered it must appear to be “on the cards” that the documents “will materially assist the defence”.  Similarly, it was contended that the application of the “on the cards” test as to whether to order inspection does not sit well with his Honour’s observation that “if it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused”.  In this context the Chief Justice added that to refuse discovery for that reason alone would leave the accused “with a legitimate sense of grievance, since he will not be able to test the evidence of the witness by comparing it with the report …”.  How could it be said, asked the defendants, that it was “on the cards” that the documents would materially assist the defence if there were no grounds for thinking that a report, if it existed, could assist the accused and, quite the contrary, it was more likely that a report would have been unfavourable to the applicants?
[67]	Having analysed the decision of Gibbs CJ in this way, counsel urged that special considerations apply in criminal matters.  This was the view taken by Gibbs CJ in Alister.  Counsel contended that inspection should be ordered if the documents “appear to be relevant to a bona fide issue in the trial”.  However, counsel was unable to refer the Court to any authority supporting his analysis of the decision of Gibbs CJ and he did not refer to any authority to support the test for which he contended.  Unfortunately, counsel for the Director did not address these important questions.  
[68]	In Alister, Murphy J expressed his conclusion in the following passage (431):
“The authorities which have been reviewed by the Chief Justice persuade me that the trial judge should have inspected the documents subpoenaed to ascertain if they contained anything which tended to show that the case against the accused was fabricated (or otherwise tended to assist the accused in their defence, either directly, for example, by providing a basis for cross-examination, or indirectly, by pointing to the existence of other material which might assist).”
[69]	Brennan J agreed that the trial Judge erred in setting aside the subpoena and declining to inspect the documents (if they existed) to determine whether they were relevant.  His Honour reached that conclusion in circumstances where, in his Honour’s view, the trial Judge did not know whether there were any documents to be produced, “but there were good grounds for suspecting that there were”.  In addressing the competing interests raised by the claim for public interest immunity, and whether inspection should be ordered, Brennan J said (455 and 457):
“But how should the balance be struck, if there were a document upon which ‘the innocence of a person accused might depend’, a document which showed that the defence case was right in alleging that the Crown case was a ‘fabrication and a frame-up’?  Should the court inspect the ASIO documents to ascertain whether such a crucial document existed?  If there were an ASIO file of documents answering the description in the subpoena and if it contained a document showing the Crown case to be a fabrication and a frame-up, it is impossible to suppose that every consideration – of national security and justice to the accused alike – would not demand its inspection by the accused and, if admissible, its production in evidence.  Unless the trial judge inspected the ASIO documents (if there were any), it was impossible to discover whether such a crucial document existed.
That circumstance shows the subpoena to have been merely the hook cast in a fishing expedition in the hope of catching something worthwhile to the defence case.  When the defence undertakes a fishing expedition, should the court abstain from inspecting documents in the possession of the Crown for which public interest immunity has been claimed?  In Air Canada v Secretary of State for Trade [[1983] 2 AC 394], a case in which an objection to production was taken in proper form, it was accepted that the court would inspect documents with a view to ordering their production if, to cite Lord Wilberforce’s criterion there were ‘some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition’ [[1983] 2 AC at p 439]; some concrete ground for believing that the documents contained material substantially useful to the party seeking discovery.  Air Canada v Secretary of State for Trade was concerned with discovery in a civil action.  This is a criminal case.  The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause.  In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court.  The more liberal approach is required to ensure, so far as it lies within the court’s power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law.  The procedural safeguards are neither easy to devise nor simple to apply.  On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest.  It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty.  But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man’s liberty, and the balance must tilt that way: cf. Sankey v Whitlam [(1978) 142 CLR at pp 42, 61 – 62].
The power of a criminal court to compel the production of government documents on the application of an accused person is a safeguard of individual liberty, but the power must be carefully used.  The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents.  In the present case, the charges against the accused stand high in the calendar of crimes, the central issue was whether the accused had been framed by security forces and the affidavit was unsatisfactory since it claimed a blanket immunity from disclosure.  In these circumstances, the learned trial judge ought to have inspected the documents sought by the subpoena (if any documents existed) to ascertain whether one or more documents showed the alleged fabrication and frame-up” (my emphasis).
[70]	In a joint judgment, Wilson and Dawson JJ dissented.  Their Honours observed that a “bare unsupported assertion that on inspection something may be found that is helpful to the defence is not enough” (439).  In their Honours’ view, the case for the applicants broke down because even if it was assumed that ASIO was in possession of reports from Seary, the applicants had “no idea what they would contain”.  Their Honours referred with apparent approval to the observation of Lord Fraser of Tullybelton in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436 that a court “should inspect documents only where it has definite grounds for expecting to find material of real importance to the party seeking disclosure”.  Having referred to those observations, their Honour noted that it might be “contended that in a serious criminal case a court should apply a lower standard where an accused person seeks the production of documents for which immunity is claimed, at least in deciding whether to inspect the documents for itself”.  Their Honours added, however, that they doubted “whether a satisfactory criterion [could] be found which falls between the requirement that a likelihood be shown and a mere hopeful anticipation” (439).  
[71]	I have been unable to identify any authority in which the interpretation of the remarks by Gibbs CJ in Alister for which the defendant contended has been discussed.  Numerous authorities concerned with criminal trials have applied the “on the cards” test at first stage of determining whether the documents should be produced for inspection by the Court.  In particular, in the leading authority of R v Saleam (1989) 16 NSWLR 14 Hunt J, with whose judgment Carruthers and Grove JJ agreed, spoke of the criterion identified by Gibbs CJ in Alister “as that which had to be satisfied before a court should inspect the documents in relation to which a claim for public interest immunity had been made” (18).  His Honour went on to say that the same criterion “is appropriate to be applied also when the trial Judge has to determine whether access should be granted to the document subpoenaed …” (18).
[72]	In my opinion, the defendants’ interpretation of Alister cannot be sustained.  However, in Alister Gibbs CJ did not discuss whether the “on the cards” test involved an assessment of a probability or a possibility.  The circumstances in which his Honour ordered production for inspection by the Court strongly suggest that he had in mind a possibility, and not a probability, that the documents would materially assist the defence.  
[73]	Single Judges have recently expressed dissatisfaction with the metaphor and applied a test based on possibility.  In Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR, after referring to the decision of Balmford J in Fitzgerald v Magistrates’ Court of Victoria (2000) 34 MVR 448 in which her Honour adopted a dictionary definition of “on the cards” as meaning “within the range of probability”, Adams J expressed the view that “this area of the law is bedevilled with metaphors” [12].  His Honour continued:
“I think the essential notion is that there is a reasonable chance that the material sought will assist the defence.  If it is reasonable to infer that the material sought exists, and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely.  Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified.”
[74]	In Hudson v Branir Pty Ltd (2005) 15 NTLR 35 the Court of Appeal was concerned with the decision of a Judge dismissing an application to set aside a subpoena in the context of an application to stay civil proceedings.  In a judgment with which Riley J agreed, on the basis that a legitimate forensic purpose existed, I noted the remarks of Adams J to which I have referred and said [41]:
“[41]	In my view, there is considerable force in the remarks of Adams J.  There may be little difference between the ‘on the cards’ test and a test expressed as ‘a reasonable chance that the documents in question will serve the purpose so specified.  Excessive refinement should be avoided.  The court must apply a practical test which is sound in principle and fair to the parties.  In my view, either formulation satisfies those criteria.”
[75]	Osborn J discussed the appropriate test to be applied in Felice v County Court of Victoria [2006] VSC 12.  His Honour was concerned with a subpoena seeking production of affidavits relied upon to obtain warrants authorising telephone intercepts.  After referring to Alister, his Honour noted the observations of Adams J to which I have referred and, while acknowledging that there is “much to be said for these observations”, specifically stated that “the test to be applied remains that stated by Gibbs CJ in Alister”.  Later in his judgment his Honour’s view as to the meaning of the test propounded by Gibbs CJ became clear [52]:
“[52]	It is sufficient in a criminal proceeding if the material before the court gives rise to a possibility which is not merely hypothetical, but sufficiently reasonable having regard to the circumstances as a whole, to justify production of documents because it is ‘on the cards’ they will materially assist the defence.”
[76]	Next in chronological order is the decision of Cummins J in Director of Public Prosecutions (VIC) v Selway (2007) 172 A Crim R 359.  His Honour undertook a very helpful review of the judicial genesis of the expression “on the cards”.  His Honour’s review included the decision of the House of Lords in Koufos v Czarnikow Ltd [1969] 1 AC 350 in which three of their Lordships disapproved of the expression because it is too imprecise.  
[77]	Cummins J noted that the first use of the expression in the area of public interest immunity was by Lord Edmund-Davies in Burmah Oil Co Ltd v Bank of England (1980) AC 1090 at 1126.  In the view of Cummins J, it is evident that his Lordship used the expression as meaning a possibility rather than a probability.  Cummins J observed that although Gibbs CJ did not define the expression in Alister, the Chief Justice “was astute to the analysis of Lord Edmund-Davies in Burmah and there is no reason to think that the Chief Justice did not draw the distinction made by his Lordship” (365).
[78]	After noting that the expression has frequently been used without definition in the area of public interest immunity, Cummins J referred to the meaning in an insurance context as equivalent to a “real possibility” and in the medical context as equivalent to “a serious or distinct possibility”.  His Honour continued [10]:
“The above demonstrates the frailty of metaphor and the danger of applying a dictionary definition thereto.  I agree with Adams J in RTA v Connolly who stated that ‘this area of the law is bedevilled with metaphors’.  Legal definition should not be measured by the company one keeps when fishing or playing cards.  On the basis of the above authorities, I consider that the true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence.  Probability is too high a standard.  Mere possibility is too low.  The adverb ‘reasonably’ gives proper scope to the judge to determine the issue responsibly and objectively.  Such a standard also is consonant with the principles of open justice” (footnotes omitted) (my emphasis).
[79]	The view of Cummins J as to the appropriate test has received emphatic approval from Bell J in Ragg v Magistrates’ Court of Victoria [2008] VSC 1.  The defendant was facing six charges of tax evasion and issued summonses to the chief investigating officer for the production of various categories of documents.  The proceedings had not reached the committal hearing and the Magistrate refused an application to strike out most of the paragraphs of the summonses.
[80]	Noting that, “for better or for worse, there is no process of discovery in a criminal trial” [84], a proposition which does not apply in the Northern Territory by reason of O 81A.28, Bell J summarised a number of points of principle relevant to claims for production of documents.  As to the meaning of the expression “on the cards”, Bell J observed that it was used “as a metaphor to explain the applicable test”.  His Honour added that, “as a way of explaining that test, perhaps it has outlived its usefulness”.  His Honour continued [92]:
“As Cummins J showed convincingly in DPP v Selway, it can certainly mean different things in different contexts.  But there is no doubt in my mind that Gibbs CJ did not use the metaphor to explain that the test was one of probability – that the accused had to show it was probable the documents would be useful to the defence.  His Honour was contemplating something less, as the example he immediately gave (see above) would indicate.  How should the courts state with greater certainty the test given to us by Gibbs CJ?” (footnote omitted).
[81]	Bell J observed that in order to answer the question it was necessary to balance two competing considerations.  Her Honour identified the considerations as “ensuring the fair trial of the accused by giving the defence access to material documents” and, secondly, “protecting the prosecution, and prosecutorial agencies, from unjustified summonses to produce” [93].  Her Honour continued [93]:
“In determining an objection to a summons to produce in the criminal law context, the court is really determining, after balancing those competing considerations, what a fair trial between the prosecution and the accused requires the defence to be given.”
[82]	Bell J then referred to the views of Adams J and Osborn J in the authorities to which I have referred, following which she expressed complete agreement with the test enunciated by Cummins J in Selway.  In his Honour’s view, the “reasonable possibility’ test expresses in more certain language what Gibbs CJ probably had in mind when he used the ‘on the cards’ metaphor in Alister and such a test “gives proper effect to the underlying fundamental duty of the court to ensure a fair trial and is consistent with international human rights and principles that Australia recognises” [95].
[83]	Bell J summarised his views as follows [96] and [97]:
“[96]	In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought.  When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought.  A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence.  That is a low threshold, but it is a threshold.
[97]	The ‘reasonable possibility’ test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value.  It is necessary to consider ‘the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue’ and, more generally, ‘the circumstances as a whole’.  In doing so, it is necessary to give a ‘broad interpretation’ to the issues in the case or, to put it another way, the ‘parties’ respective cases should not be restrictively analysed.’  It is also important to pay due regard to the fact that ‘[d]efence lawyers are in a better position than a judge to make an appraisal of the value of information contained.’  Lastly, as Pincus JA said in R v Spizzirri: ‘courts should be careful not to deprive the defence of documents which could be of assistance to the accused.’” (footnotes omitted)(my emphasis).
[84]	With respect, I agree with Cummins J and with Bell J.  In his analysis, Cummins J exposed the vagaries attached to the metaphor and the undesirability of applying it without appropriate analysis.  I agree with the rationale for the test of “reasonable possibility” and with the application of the various factors to which Bell J drew attention.
[85]	Having indicated my agreement with a test based on a reasonable possibility that the documents will materially assist the applicant for discovery, it remains to consider whether that test applies to an application made under O 81A.28.  As I have said, neither this question nor other issues arising from the operation of O 81A.28 were addressed by the parties.  
[86]	I am inclined to the view that the threshold created by O 81A.28 is a lesser threshold than a test based on reasonable possibility.  Furthermore, it appears that O 81A.28 does not require an applicant to establish a reasonable possibility that the documents will materially assist the applicant.  While the question whether it appears reasonably possible that the documents will materially assist an accused person will be a factor of significance in the exercise of the discretion, the fundamental requirement is that the documents “relate” to a question likely to be raised at the trial.  In the exercise of the discretion, a trial Judge will be required to weigh a range of circumstances, including the importance of the question to be raised at the trial.  Factors such as those discussed by Bell J in Ragg will also be relevant.  Beyond these observations, in the absence of submissions it is not appropriate to endeavour to lay down any principles to be applied or finally determine the various issues raised, including the meaning and ambit of “relates” in the context of O 81A.28.  
[87]	The trial Judge noted that there appeared to be no reported cases dealing specifically with discovery in criminal matters under O 81A.28.  Her Honour said she had “sought guidance” in the exercise of her discretion by reviewing the principles applicable to discovery and production of documents in civil cases and that she had borne in mind the principle “that in criminal cases the public interest in the administration of justice and enabling the defendants to have a fair trial may outweigh the public interest in the confidentiality of documents relevant to the declaration …”.  It was after these observations that her Honour stated that she had “come to the conclusion that it does not appear to be ‘on the cards’ that the documents will materially assist the defence”.  
[88]	Although the trial Judge recognised that the application was made under O 81A.28, it appears that her Honour applied the “on the cards” test.  Bearing in mind the way in which the debate had unfolded before her Honour, it is not surprising that she applied that test.  What is unknown, however, is whether her Honour treated that test as requiring that the defendant establish a probability or a reasonable possibility that the documents would materially assist the defence.  In addition, the ruling by her Honour that the precondition in s 8 was subjective and concerned only the Minister’s satisfaction that the declaration was necessary for defence purposes, effectively prevented the defendants from addressing the objective question in any meaningful way.  In these circumstances, notwithstanding that the material presented to the trial Judge was far from persuasive as to the existence of a possibility that the documents would materially assist the defendants, and was correctly classified by her Honour as speculative, this Court cannot reach the positive conclusion that the proviso can be safely applied.  
[89]	Before leaving the question of discovery, I add the following observations.  The duty of disclosure that rests on the prosecution is well known and it is well established that the duty extends beyond the individual prosecutor to encompass investigating police officers.  While the full reach of that duty into the various arms of the “Crown” remains a matter for debate, it is far from clear that the Secretary would accept that the prosecutorial duty of disclosure extends to the Secretary.  In the matter under consideration, the Director did not know whether the Secretary was in possession of any documents that the Director would, ordinarily, disclose to the defendants in discharge of the prosecutor’s duty of disclosure.  In these circumstances the Court is deprived of the comfort that in the general run of cases comes with knowledge that the prosecutor is aware of all relevant documents and will have discharged the duty of disclosure with integrity.  This circumstance further enhances the case for a liberal approach to an application for discovery, particularly at the stage of determining whether to require both discovery and production for inspection by the Court. 
Trial Evidence
[90]	By way of background to the trial evidence and rulings by the trial Judge, throughout the preliminary applications the Crown maintained that evidence “as to the purpose and use of the Facility from time to time” was irrelevant to the question of whether or not the Facility was a prohibited area.  That position was taken on the basis that the declaration pursuant to s 8 involved satisfaction by the Minister and not the objective question of whether the declaration was necessary for defence purposes.  Contrary to the Crown approach, counsel for the defendants put to the trial Judge that the defendants were approaching the matter on the basis that the Facility “is not a defence Facility at all but rather has been used for aggression and that if it not be a defence Facility, then they are entitled to enter upon it …”.  Counsel for the defendants also noted that even if a declaration under s 8 was preconditioned by a state of satisfaction, such a precondition “cannot operate to prevent the Court from investigating whether the facts justify the decision made”.  
[91]	It was against that background that the issue of the purpose of the Facility first arose in the presence of the jury through evidence led by the Crown from the first witness, Mr Michael Burgess, who described his position as:
“The Deputy Chief of Facility and the Officer in Charge of the Prohibited Area at the Joint Defence Facility at Pine Gap working for the Department of Defence”.
[92]	On the Crown case, and in accordance with the rulings of the trial Judge, the purpose of the Facility was irrelevant.  The Crown was setting out to prove only that the Facility was a prohibited area.  However, the Crown chose to lead evidence as to the purpose of the Facility to which no objection was taken by counsel for the Secretary.  In response to questions by counsel for the prosecution, Mr Burgess gave the following evidence:
“Q.	What is Pine Gap?
A.	Pine Gap is the – is a joint Facility.  It’s a joint Facility between the Australian and United States Government.  It’s involved in Treaty Verification and Arms Control and provides … .
Q.	(inaudible) bear in mind might not … .
A.	Certainly.  So it’s a joint Facility intelligence collection Facility that provides intelligence on treaty verification and arms control and monitors military developments world wide.  It also provides early warning information on ballistic missiles.”
[93]	The Crown having chosen to lead evidence as to the purpose of the Facility, the defendants were entitled to test and challenge that evidence, but they were not permitted to do so.  In addition, as I have said the purpose of the Facility was relevant to the defence that the defendants sought to advance.  
[94]	The defendants were unrepresented before the jury.  Mr Law was the first defendant to cross-examine Mr Burgess.  It is tolerably clear from the questions and statements by Mr Law that he was seeking to explore the current use of the Facility with a view to establishing that it was a Facility used for purposes of aggression rather than defence.  Objections were taken to a number of questions by Mr Law and counsel for the Secretary raised the issue of public interest immunity.  Unable to explore the objective question of whether the declaration was necessary for defence purposes, Mr Law sought to justify his questions on the basis of relevance to a defence based upon his beliefs as to the purpose of the Facility.  The trial Judge determined that it was not “on the cards” that the evidence from prosecution witnesses concerning the operations of the Facility would materially assist that defence.  In addition, her Honour ruled that “information from prosecution witnesses as to the operations of the Joint Defence Facility at Pine Gap is not relevant to any issues in this case”.  
[95]	The trial Judge also held that with the exception of information that had been publicly released, information as to the operations of the Facility at Pine Gap was not to be disclosed on the grounds that it would prejudice national security.  However, her Honour made that determination on the basis that the proposed evidence was irrelevant to any issue in the trial.  As a consequence, there was error in the balancing process undertaken when considering the claim for public interest immunity.
[96]	During his cross-examination of Mr Burgess, Mr Dowling challenged the original title of “Joint Defence Base Research Facility”.  He raised the question of the Facility being a “space research centre”.  The trial Judge ruled that the questions were not relevant.
[97]	Mr Law was the first defendant to give evidence.  He endeavoured to tender a book concerning the history of the Facility.  Apart from the difficulty associated with the admissibility of the book, the discussions concerning the book were typical of the conduct of the trial in that they were directed to whether the book was admissible in connection with Mr Law’s belief.  Mr Law indicated that subject to national security, he wished to call a witness to give evidence about the “technical capacities of the Base and how it operates …”.  Subsequently the trial Judge permitted the tender of documents concerning the role of the Facility, but instructed the jury that the documents were not evidence as to the truth of their content and were admissible only to the extent that they may have “affected Mr Law’s belief about the situation”.
[98]	The defendants sought to lead expert evidence concerning the role of the Facility, particularly in connection with the war in Iraq.  They advanced an argument based upon relevance to their individual states of mind.  The trial Judge ruled that the defences the defendants sought to raise based upon their states of mind would not be left to the jury and that the expert evidence was irrelevant.
[99]	I have mentioned some features of the evidence to demonstrate that as a consequence of the Crown approach and the ruling by the trial Judge concerning s 8, the defendants were unable to elicit evidence as to the purpose of the Facility with a view to mounting a case that in 1967 and 2005 the Facility was not used for defence purposes.  As I have said, if the Facility was not used for defence purposes in 1967, the declaration would have been invalid and the Crown would have failed to prove that the Facility was a prohibited area.  The relevance of use in 2005 remains to be finally determined.
[100]	The defendants were precluded from eliciting evidence relevant to a complete defence to the charges under the Act.  This Court has no way of knowing whether such evidence existed other than to note the reference to articles concerning the purpose of the Facility and the proposal by Mr Law to lead expert evidence on that topic.  Obviously, if such evidence existed, this Court is not in a position to assess its likely weight.  A miscarriage of justice occurred.
Prohibited Area – Directions to Jury
[101]	As mentioned, during submissions the Court drew the attention of counsel to the directions of the trial Judge with respect to the element of the offence that the area entered was a “prohibited area”.  In a written Aide Memoire relating to Mr Law, the terms of which were identical to the directions with respect to the other defendants, the jury was directed as follows:
“COUNT 3
In order for you to find Bryan Joseph Law guilty of entering a prohibited area without a permit to do so, the Crown must prove EACH of the following elements beyond reasonable doubt:
1.	On 9 December 2005 at the Joint Defence Facility at Pine Gap, Bryan Joseph Law;
2.	intentionally entered an area, namely the Joint Defence Facility at Pine Gap;
3.	reckless to the fact that this was a prohibited area.
If you are not satisfied beyond reasonable doubt that the Crown has proved all of the elements of the offence of entering a prohibited area without a permit to do so, you should return a verdict of NOT GUILTY on the charge against the accused.
If you are satisfied beyond reasonable doubt that the Crown has proved all of the elements of the offence of entering a prohibited area without a permit to do so, you should return a verdict of GUILTY on the charge against the accused.”
[102]	The oral directions repeated the written directions contained in the Aide Memoire.  In effect, the jury was directed that the Facility was a prohibited area at the time the defendants entered the premises in December 2005.
[103]	It is a fundamental feature of trial by jury that determination of questions of fact is the sole province of the jury.  A trial judge is entitled to comment upon the facts, but there is a limit to the discretion of the Judge in this regard that, with respect, was well described by Brennan J in B v The Queen (1992) 175 CLR 599 at 605:
“A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury.  It must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’.  I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse:
‘[T]o use the words of the Privy Council in Broadhurst’s Case, there is a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views’” (footnotes omitted).
[104]	Fundamental facts that comprise the elements of an offence charged are, ordinarily, matters for determination by the jury.  However, as a matter of law, in some circumstances facts declared by regulation or proclamation may be proved to exist solely by the operation of the regulation or proclamation.  For example, in South Australia the Narcotic and Psychotropic Drugs Act 1934 – 1974 provided that by proclamation the Governor could declare a drug to be a drug to which the Act applied.  In R v Harm (1975) 13 SASR 84, the Court of Criminal Appeal held that a proclamation that a particular drug was a drug to which the Act applied could be treated as the Court would treat the contents of a statute.  In other words, whether the particular drug was a drug to which the Act applied was a question of law to be determined by the Judge rather than the jury.  This view was expressed in the absence of any challenge to the validity of the proclamation.  
[105]	In my opinion there is force in the view that in the absence of a challenge to the validity of a declaration under the Act that a particular locality is a prohibited area, a court is entitled to treat the declaration in the same way as it treats the contents of a statute or regulation and direct the jury that the locality is a prohibited area.  However, no submissions were directed to this technical question and, in the absence of reference to relevant principles and authorities, it is not appropriate to finally determine it. 
[106]	As to the particular circumstances under consideration, the defendants endeavoured to mount a case that the Facility was not a prohibited area, but were prevented from doing so.  If the defendants had been permitted to adduce evidence relevant to that issue, the question whether the Crown had proved that the Facility was a prohibited area would have been in issue and a matter for determination by the jury.  In this way the defendants were deprived of their right to have a fundamental question of fact determined by the jury.  
[107]	For these reasons, in my view the trial miscarried and the convictions for offences against the Act could not stand. 
Retrial
[108]	Section 411 of the Criminal Code provides that subject to other provisions, if the Court allows an appeal against a finding of guilt the Court shall quash the finding of guilt and direct that a judgment and verdict of acquittal be entered.  Section 413 empowers the Court to order a new trial “if it considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order that the Court is empowered to make.”  
[109]	The Director submitted that the Court should follow the common practice of ordering a retrial thereby leaving the question of whether the retrial should occur to the discretion of the Director.  However, there were a number of factors that combined to lead me to the view that a retrial should not be ordered.
[110]	The offences charged occurred in 2005 and were at the lower end of the scale of seriousness of offences brought before the Criminal Court.  A lengthy trial had occurred and a retrial was also likely to be lengthy and involve further legal arguments in the context of the purposes of the Facility and questions of public interest immunity.  Each defendant was convicted of offences against the Crimes Act 1914 (Cth) and those convictions stand.  Each had suffered a penalty by reason of being imprisoned for failure to pay the fines imposed, including fines imposed for the offences against the Act.  In essence, the defendants had served periods of custody in respect of convictions they had successfully challenged.  If they were convicted on a retrial, it is unlikely that any new sentence would require that the defendants serve periods of custody in excess of those periods already served.  Ultimately, it appeared that there was little community interest to be served by requiring the defendants to undergo a further trial.  For these reasons I was of the view that the Court should not order a retrial.
Summary
[111]	In evidence during the trial, Mr Law described himself as a “peace and social justice activist”.  That description appears to be a reasonable description of how all the defendants see themselves and their activities.  Throughout the trial the defendants made no secret of their opposition to the Facility at Pine Gap and of their desire to draw the attention of the community to what they perceive are the evils associated with the operation of the Facility.  All defendants seek to apply political pressure to bring the activities of the Facility to an end.
[112]	As I have said, during the trial before the jury the defendants were unrepresented.  Although it is plain from their conduct at the trial and exchanges with the trial Judge and counsel for the prosecution that the defendants are intelligent persons, not surprisingly, at times they did not display a full grasp of issues such as relevance of evidence to questions to be determined by the jury.  This is not to criticise any of the defendants, but to recognise that as lay persons they were at a disadvantage in the course of the trial before the jury.  It is also apparent from the conduct of the trial before the jury that the defendants were seeking to advance their particular social and political causes.
[113]	Against that background, I am concerned that the defendants might view the decision of this Court as a vindication of their social and political protest and stance against the Facility.  It is not.  This Court is not concerned with political issues.  It is concerned to interpret and apply the law given to it by Parliament.  
[114]	Until a court declares otherwise, the declarations under ss 6 and 8 of the Act remain valid and in force.  Until a court finds otherwise, the declared area of the Facility remains a prohibited area and it remains an offence to enter the premises of the Facility without a permit.  Neither the legislation nor the declarations have been found to be defective.  The convictions were quashed because of errors in the trial leading to a miscarriage of justice.
[115]	In order to avoid any misunderstanding, in summary:
•	The Gazette is at least prima facie proof that the Facility was in 1967, and continues to be, a prohibited area for the purposes of the Act.
•	A person charged with an offence based upon entry into a prohibited area is at liberty to challenge the prosecution case that the particular area was, at the relevant time, prohibited under the Act by challenging the validity of the declaration declaring the particular area to be prohibited.
•	Evidence relevant to the issue of whether the Facility was, at the time of the declaration, being used for defence purposes, and whether the declaration was necessary for defence purposes at the time it was made, is admissible because it bears upon the validity of the declaration. 
•	It is inappropriate and unnecessary to determine whether evidence is admissible to establish that, at the time of entry, the Facility was not used for defence purposes or that the declaration was no longer necessary for defence purposes.  Determination of those questions involves the interpretation of s 8 and the defence power under s 51(vi) of the Constitution.
•	The admissibility of evidence directed to the use of the Facility and whether a declaration was necessary for defence purposes are different questions from determination as to whether discovery or production of documents relating to the Facility should be ordered.  The fact that such evidence is admissible is a relevant factor to be taken into account in determining any application for discovery or production of such documents, but the determination of those matters must be made in accordance with O 81A.28 and the principles discussed in these reasons.
Angel J:
[116]	What follows are my reasons for joining in the orders of the court dismissing the Crown appeals, allowing the cross–appeals and acquitting the cross–appellants of the charges under the Defence (Special Undertakings) Act 1952 (Cth).
[117]	Those and other charges arose from the cross–appellants’ entry into the Pine Gap facility in central Australia on 9 December 2005.
[118]	At the conclusion of their trial the cross–appellants were convicted of, inter alia, indictable offences contrary to ss 9(1) and 17(1) of the Act comprising conduct in respect of a “prohibited area”.
[119]	Prior to the commencement of the trial a voir dire was conducted to determine a preliminary question formulated by the learned trial Judge as follows:
“whether, on the totality of the evidence that the Crown has particularised as evidence upon which it proposes to rely, the Crown could establish, as a matter of law, that the area on which each of the (cross–appellants) are alleged to have committed offences under the Defence (Special Undertakings) Act 1952 (Cth), was a ‘prohibited area’, under s 8 of the Act, at the time the offences were allegedly committed.”
[120]	The “totality of the evidence” on which the Crown relied was a notice published in the Commonwealth Government Gazette of 9 November 1967 in which the then Minister for Defence stated that he was “satisfied” as to the matter set out in s 8 of the Act and declared Pine Gap to be a “prohibited area”. The Crown claimed that the notice of itself, rendered the relevant area a “prohibited area” by virtue of s 8 of the Act. The cross–appellants claimed that the declaration was invalid.
[121]	Sections 6 to 9 and 17 of the Act relevantly provide as follows:
“6  Special defence undertakings
		A work or undertaking which:
	(a)	is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for or in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
	(b)	is declared by the Minister, by notice in the Gazette, to be a special defence undertaking;
is a special defence undertaking for the purposes of this Act.
7  Prohibited areas
	(1)	A place (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) used or occupied for the purposes of a special defence undertaking is a prohibited area for the purposes of this Act.
	(2)	….
8  Minister may declare prohibited areas
		If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be, for the purposes of this Act, a prohibited area.
9  Unlawful entry etc.
	(1)	A person is guilty of an offence if:
	(a)	the person is in, enters or flies over an area; and
	(b)	the area is a prohibited area.
Maximum penalty:	Imprisonment for 7 years.
….
	(2)	A person is guilty of an offence if:
	(a)	the person:
	(i)	makes a photograph, sketch, plan, model, article, note or other document of, or relating to, an area or anything in an area; or
	(ii)	obtains, collects, records, uses, has in his or her possession, publishes or communicates to some other person a photograph, sketch, plan, model, article, note or other document or information relating to, or used in, an area, or relating to anything in an area; and
	(b)	the area is a prohibited area.
Maximum penalty:	Imprisonment for 7 years.
	(3) …
…..
17  Use of cameras etc.
	(1)	A person is guilty of an offence if:
	(a)	the person is in or is passing over a prohibited area; and
	(b)	the person has in his or her possession, carries or uses a camera or other photographic apparatus or material.
Maximum penalty:	Imprisonment for 2 years.
	(2)	…”
[122]	At the conclusion of the voir dire the learned trial Judge ruled as follows:–
“On the evidence on which the Crown proposes to rely, s 8 of the Defence (Special Undertakings) Act 1952 (Cth) establishes that the subject area of land as set out in the Schedule and known as Pine Gap was a ‘prohibited area’ within the meaning of the Act at the time the offences were allegedly committed.”
Although it was unnecessary to do so the learned trial Judge in reaching that conclusion ruled that s 8 should be read as if the opening word “If’ was replaced by the words “Where the Minister is satisfied that”.
[123]	The learned trial Judge said:
“[26]	I am in agreement with the argument advanced for the Crown that it promotes the purposes of the Act and is necessary to make the section intelligible. The Minister must be the person who makes the decision as to whether it is necessary for the purposes of the defence of the Commonwealth etc and accordingly he is the person who must be satisfied that this is so.
  [27]	To have it otherwise would result in a farcical situation where the Crown would have to call evidence on matters of national defence which presumably the defendants could seek to rebut. The evidence would all be about matters that may be subject to privilege on the grounds of national security. Alternately, the decision to declare land to be a ‘prohibited area’ pursuant to s 8 of the Act, must be based on facts that are peculiarly within the knowledge of the government represented by the Minister administering the Act at the time of making the decision. The decision has to be for the government of the day whom the Minister represents. Such decisions can always be revoked by successive governments or be the subject of lawful protest or possibly administrative review. They are not decisions that can sensibly be made elsewhere.”
[124]	As is apparent from the learned trial Judge’s summing up to the jury and prevention of the cross–appellants from adducing any evidence of the conduct of operations at Pine Gap or the necessity for the purposes of the defence of the Commonwealth for the Minister for Defence to have made his declaration the Minister for Defence’s declaration was treated by the learned trial judge as unchallengeable  proof that Pine Gap was a “prohibited area” for the purposes of the Act.
[125]	In my opinion there was no warrant for the learned trial Judge to read words into s 8.  Section 8 is unambiguous. A declaration could only be made “If it is necessary for the purposes of the defence of the Commonwealth so to do …”.  That wording may be contrasted with ss 26 and 31(1) of the Act. Those sections expressly speak of the designated person or institution being “satisfied”. The reading of words into s 8 was neither necessary to make it intelligible nor necessary to remedy legislative inadvertence. It is contrary to principle: Trenerry v Bradley (1997) 6 NTLR 175 at 185, 186; R v Young (1999) 46 NSWLR 681 at 686–687; Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305; Wentworth Securities Ltd v Jones [1980] AC 74 at 105–106; Wills v Bowley [1983] 1 AC 57 at 78B.
[126]	The declaration in any event was not unchallengeable proof that the area was a “prohibited area”. That Pine Gap was a “prohibited area” was an element of the relevant charges to be proved by the Crown against the cross–appellants. It was for the jury to decide whether on all the evidence before them Pine Gap was proved beyond reasonable doubt to be a “prohibited area”.
[127]	The Minister’s declaration, whilst on foot, as a matter of law was proof that Pine Gap was a “prohibited area” for the purposes of the Act. That circumstance however did not preclude the cross–appellants from challenging the declaration and having it set aside. If the Minister’s declaration withstood challenge as a matter of law it constituted conclusive proof that Pine Gap was a “prohibited area”. If the declaration was successfully challenged on the other hand it was for the jury to consider on all the evidence whether the Crown had proved beyond reasonable doubt that Pine Gap was a “prohibited area”. If the Minister’s declaration was set aside the Crown would necessarily have to rely upon ss 6 and 7 of the Act in order to prove that Pine Gap was a “prohibited area”. 
[128]	In my opinion the learned trial Judge erred in both the construction placed upon s 8 of the Act and in the circumstances treating the Minister’s declaration under s 8 as unchallengeable proof that Pine Gap was a “prohibited area”.
[129]	In the course of the proceedings the cross–appellants sought discovery of documents from the Secretary of the Department of Defence and the Commissioner for the Australian Police relating to operations at Pine Gap. The cross–appellants sought such discovery as being relevant to the issue of whether it was necessary for the defence of the Commonwealth that a declaration by the Minister pursuant to s 8 of the Act be made. The overriding issue was whether Pine Gap was a “prohibited area”.
[130]	The learned trial Judge ruled against the cross–appellants and declined to make any order for discovery. 
[131]	In my view the learned trial Judge erred in refusing discovery. An order for discovery ought to have been made under O 81A.28 Supreme Court Rules. In the present case Crown interest immunity is no answer to an order for discovery of the documents sought although if made out it would be to an order for inspection of the documents once discovered.
[132]	The cross–appellants’ application for discovery was no mere “fishing” expedition. There was in the present case, in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439, “some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition”. The Secretary of the Department of Defence and Commissioner for Australian Police would have or be likely to have the documents sought by the cross–appellants. Those documents concerned operations at Pine Gap which related to the cross–appellants’ case that Pine Gap was not a defence facility; that is, the discovery sought related to their contesting the Crown case that the area they had entered was a “prohibited area”. The cross-appellants’ application for discovery served a legitimate forensic purpose.  The documents sought would in all likelihood have solved whether Pine Gap was a defence facility or not and largely determined that issue between the parties.
[133]	The “prohibited area” element of the offences was a bona fide issue sought to be contested by the cross–appellants before and at trial. The learned trial Judge’s rulings prevented them from doing so on the merits.
[134]	That any Crown immunity interest could be adequately protected by the court notwithstanding an order for discovery can be seen from the following passage in the judgment of Brennan J in Alister v The Queen (1983–1984) 154 CLR 404 at 457:
“Accordingly, his Honour made a wrong decision on a question of law in simply setting the subpoena aside without having regard to the contents of the documents sought. The verdicts on both counts in the indictment must be set aside unless the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applies. The Crown bears the onus of showing that the error has not caused a substantial miscarriage of justice: Mraz v the Queen (1955) 93 CLR 493, at pp 514–515. To discharge that onus, which is not to be confused with the onus resting on the Crown at the trial, the Crown must be able to show the appellate court that the applicants have not lost a chance of acquittal that was fairly open to them. In the circumstances of this case, it seems to me that there are three possible ways in which the Crown might be able to discharge the onus of showing that none of the applicants lost a chance of acquittal to which he was entitled when the subpoena was set aside. First, the Crown may show that there were no relevant documents which could have been produced in answer to the subpoena. Secondly, the Crown may show that, although the applicants ought to have been given access to such relevant documents as could have been produced, no substantial miscarriage of justice has occurred by denying them access to those documents. Or thirdly, the Crown may show that on grounds of national security none of the applicants ought to have been given access to such relevant documents as could have been produced. However, in the last–mentioned case, it would be necessary for the Crown to go further. Even if access ought not to have been given to the accused, the documents ought to have been produced for inspection to the trial judge. He would then have seen whether justice would be done by permitting the trial to continue in ignorance of the contents of those documents. As that step was not taken, it would fall to this Court, after inspecting the documents and having regard to their contents, to say whether it is satisfied that the convictions are safe and satisfactory.”
[135]	In summary –
(a)	Although the ruling was not necessary the learned trial Judge misconstrued s 8 of the Act.
(b)	The learned trial Judge erred in treating the Minister’s declaration under s 8 of the Act as unchallengeable proof that Pine Gap was a “prohibited area” and in preventing the cross–appellants from contesting the declaration and whether Pine Gap was a “prohibited area”.
(c)	The learned trial Judge erred in refusing to order discovery of documents.
(d)	The learned trial Judge erred in failing to direct the jury as to an element of the offences, namely whether Pine Gap was a “prohibited area”.
(e)	There was a substantial miscarriage of justice.
[136]	The cross–appellants having wholly or partially expiated their fines by serving periods of imprisonment there should be no retrial. As learned counsel for the cross–appellants said, enough is enough.
[137]	The Crown appeals against sentence were abandoned.
[138]	I concur with what the learned Chief Justice has said in paragraphs [111] – [114] of his reasons for judgment.
Riley J:
[139]	The following are my reasons for joining in the orders of the court made on 22 February 2008.
[140]	The appellant appealed against sentences imposed on the respondents by the Supreme Court of the Northern Territory of Australia in relation to offences of damaging Commonwealth property, entering a prohibited area and using a camera in a prohibited area contrary to the provisions of the Crimes Act (Cth) and the Defence (Special Undertakings) Act (Cth).  The prohibited area was the Pine Gap facility in Central Australia.  The respondents cross-appealed against their convictions.
The Cross Appeals:
Section 8 of the Defence (Special Undertakings) Act
[141]	Prior to the commencement of the trial the then defendants raised a preliminary question of law for the determination of the court.  It was the submission of the defendants that, on the totality of the evidence that the Crown particularised as being the evidence upon which it proposed to rely, the Crown could not establish as a matter of law that, at the relevant time, the area where each of the defendants was alleged to have committed the offences was a "prohibited area" under s 8 of the Defence (Special Undertakings) Act. Section 8 was in the following terms:
“8.	Minister May Declare Prohibited Areas
 If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be, for the purposes of this Act, a prohibited area.”
[142]	By operation of s 9 the Act established an offence of entering a "prohibited area" without the necessary permits.  On 9 November 1967 the relevant area at Pine Gap was declared a "prohibited area" by notice in the Commonwealth of Australia Gazette No. 96.  The notice was in the following terms:
“In pursuance of the powers conferred on me by section 8 of the Defence (Special Undertakings) Act 1952 - 1966, I, Allen Fairhall, Minister of State for Defence, being satisfied that it is necessary for the defence of the Commonwealth to do so, hereby declare the area of land described in the Schedule hereunder to be a prohibited area for the purposes of that Act.”
[143]	The submission made on behalf of the defendants before the trial judge and on behalf of the cross-appellants in these proceedings, is that the evidence relied upon by the Crown to establish that the relevant area was a "prohibited area" did not satisfy the requirement or “precondition” of the Act that the declaration "is necessary for the purposes of the defence of the Commonwealth".  It was submitted that, on a proper construction of s 8 of the Act, the precondition was required and intended to be established as an objective fact which the declaration of the Minister alone was incapable of achieving.  The notice simply revealed the subjective satisfaction of the Minister which could not satisfy the requirement that the precondition be established as an objective fact.
[144]	The learned trial judge rejected the submission and ruled that the section should be read as meaning:
“Where the Minister is satisfied that it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be for the purposes of this Act a prohibited area.”
[145]	The effect of so ruling was said to be that the test became subjective and was capable of being satisfied by the evidence called by the Crown.  In so ruling her Honour acknowledged that she was importing additional words into the section and gave as her reasons for so doing as follows:
 "(I)t promotes the purpose of the Act and is necessary to make the section intelligible.  The Minister must be the person who makes the decision as to whether it is necessary for the purposes of the defence of the Commonwealth etc and accordingly he is the person who must be satisfied that this is so.  To have it otherwise would result in a farcical situation where the Crown would have to call evidence on matters of national defence which presumably the defendants could seek to rebut.  The evidence would all be about matters that may be subject to privilege on the grounds of national security.  Alternatively, the decision to declare land to be a "prohibited area" pursuant to s 8 of the Act, must be based on facts that are peculiarly within the knowledge of the government represented by the Minister administering the Act at the time of making the decision.  The decision has to be for the government of the day whom the Minister represents.  Such decisions can always be revoked by successive governments or be the subject of lawful protest or possibly administrative review.  They are not decisions that can sensibly be made elsewhere."

[146]	The learned trial judge then went on to conclude:
“On the evidence on which the Crown proposes to rely, s 8 of the Defence (Special Undertakings) Act 1952 (Cth) establishes that the subject area of land as set out in the Schedule and known as Pine Gap was a "prohibited area" within the meaning of the Act at the time the offences were allegedly committed."
[147]	The effect of her conclusion was to exclude any consideration of whether the declaration was objectively "necessary for the purposes of the defence of the Commonwealth".  The focus thereafter was limited to whether the Minister was able to be satisfied that the declaration was necessary for the defence of the Commonwealth.
[148]	There was a subsequent application on behalf of the defendants for orders for discovery.  That issue is to be addressed shortly in relation to ground three in this appeal.  At the time of the argument on the issue it was not in dispute that the validity of the declaration of a prohibited area could be contested in the proceedings if there was a proper basis for so doing.  However it is clear from the reasons for decision of her Honour dated 18 April 2007 that she confined her consideration to the question whether the Minister could be satisfied of the relevant need and not whether, objectively assessed, the making of the declaration was necessary for the purposes of the defence of the Commonwealth.
[149]	The cross-appellants contended that her Honour was in error in approaching the matter in this way.  In my view her Honour did err in her approach.  On its face the first precondition in the section provides for an objective test rather than for the subjective satisfaction of the Minister.  The precondition is framed in plain and unambiguous terms. The natural and ordinary meaning of the words is clear.  Further, by way of contrast with s 8, other provisions within the same legislation expressly provide for a test of personal satisfaction e.g. s 26 and s 31 of the Act.
The Declaration
[150]	It is necessary to consider the effectiveness of the declaration purportedly creating the prohibited area.  The preliminary question of law was whether the notice itself could establish that the area upon which the offences were alleged to have occurred was a "prohibited area" for the purposes of the Act.  By operation of the legislation such an area is created by fulfilling the requirements of s 8 of the Act.  Those requirements are, firstly, the existence of the objective fact that the declaration is necessary for the defence of the Commonwealth and, secondly, the publication of an appropriate notice in the Gazette.  In this case the identified evidence revealed that the Minister had published such a notice in the Gazette pursuant to the terms of the Act declaring the land to be a "prohibited area”.  The terms of the section were fulfilled.  It was not a requirement for the notice to state that the declaration was in fact necessary for the purposes of the defence of the Commonwealth. The expression within the notice that the Minister, himself, was satisfied that the declaration was necessary for the defence of the Commonwealth, was mere surplusage.  The requirements of the Act had been fulfilled and the area declared a prohibited area in accordance with the terms of the legislation. 
[151]	The notice in the Gazette was admissible pursuant to s 153 of the Evidence Act (Cth) and, by virtue of s 153(2), it was “presumed, unless the contrary is proved, that the act was duly done ..”.  The notice, together with the presumption of regularity, was sufficient to establish a prima facie case that the relevant area had been declared a prohibited area for the purposes of the Defence (Special Undertakings) Act. Prima facie the land was, and at the relevant time remained, a prohibited area for the purposes of the legislation and the notice in the Gazette could be received in evidence to establish that fact.
[152]	Thereafter, it was open to the defence to seek to rebut the prima facie situation thus created.  
[153]	The concern in relation to the ruling of her Honour was that she regarded the tender of the notice in the Gazette as conclusively establishing the fact that Pine Gap was a “prohibited area” for the purposes of the legislation rather than merely being prima facie evidence of that fact.  She effectively prevented the cross-appellants from leading evidence or presenting submissions to the jury to the effect that, objectively assessed, the declaration of the prohibited area was not necessary for the purposes of the defence of the Commonwealth.  During the course of the hearing the defence sought to lead evidence in this regard but was denied the opportunity.  
[154]	Further, and importantly, the learned trial judge did not leave the issue of whether the facility at Pine Gap was a "prohibited area" to the jury.  It was for the Crown to establish as an essential element of the offence under s 9 of the Act that, at the relevant time, Pine Gap was a prohibited area.  The written aide memoire provided by her Honour to the jury to guide it in its deliberations, proceeded on the basis that the question of whether or not the facility at Pine Gap was a prohibited area was not for their consideration.  Effectively the issue was taken from the jury by the learned trial judge.
[155]	This was truly a jury question and should not have been removed from the jury.  The approach adopted by her Honour deprived the cross-appellants of the opportunity to challenge the declaration and denied the jury the opportunity to consider whether that element of the offence had been established.  
[156]	In my view the learned trial judge erred: (a) in her approach to the construction of s 8 of the Act; (b) in failing to allow evidence to be led as to the validity of the declaration; and (c) by removing the issue of the validity of the declaration from the consideration of the jury.  In the circumstances the cross-appellants lost a chance of acquittal that was fairly open to them.  A miscarriage of justice occurred.
Discovery
[157]	The cross-appellants submitted that as a result of the ruling of the trial judge the only course available to them to question the validity of the Minister's decision to make the declaration was to challenge the decision by way of a collateral attack in the criminal proceedings. Such a course was available to the cross-appellants in proceedings of this kind. The cross-appellants sought discovery from the Secretary of the Department of Defence, the Crown and the Commissioner of the Australian Federal Police (who were jointly referred to in the submissions as the Commonwealth entities) and, in the alternative, for a date to be set for the return of subpoenas directed to, and already served upon, the Commonwealth entities.  In the absence of discovery or the setting of a return date for the subpoenas the cross-appellants sought a permanent stay of the proceedings on the grounds of a denial of natural justice.  The learned trial judge refused the applications applying the test discussed in Alister v The Queen (1984) 154 CLR 404 and other authorities and holding that it was not "on the cards" that the documents sought would materially assist the cross-appellants.  Her Honour concluded that the cross-appellants had embarked upon a fishing exercise.  This conclusion was challenged on appeal with the submission that discovery ought to have been ordered because the Commonwealth entities had or were likely to have in their possession or power documents relating to the issue of whether the Minister committed jurisdictional error.  
[158]	The learned trial judge held that the affidavits provided on behalf of the cross-appellants in support of the application for discovery were each devoid of any evidence as to the invalidity of the declaration and, in the case of the affidavit of Mr Law, was confined to speculation.  There was no challenge to those findings on the appeal. 
[159]	The learned trial judge correctly identified that the cross-appellants sought discovery in order to ascertain whether there may be some material in the possession of one or more of the Commonwealth entities which may support an argument that the s 8 declaration may be invalid.  The ruling of her Honour was made in the context of her earlier ruling as to the construction of s 8 and the rejection by her of the need for an objective approach.  The wrong question was therefore addressed and error occurred.  Whether the ruling of her Honour would have been different had the correct question been addressed cannot be known.  
Retrial
[160]	When the cross-appeal was allowed the Crown sought an order for a retrial.  The Court exercised its discretion to refuse the application.  The cases against the cross-appellants, whilst criminal and therefore serious, were at the lower end of the scale of seriousness in the criminal calendar.  The events which gave rise to the prosecution occurred in 2005.  There had been a substantial trial involving significant cost in terms of both time and expense for the community and for each individual cross-appellant.  At the trial each cross-appellant had been found guilty of other offences and had been dealt with for those offences.  Each had spent time in custody as a result.  In relation to the matters dealt with in this appeal the cross-appellants were convicted and sentenced and had completed serving periods of imprisonment in default of having paid the fines imposed.  It is difficult to see what purpose would be served by a retrial.  In the circumstances it was appropriate to exercise the discretion by refusing to grant a retrial.
[161]	In conclusion I record my agreement with the observations of the Chief Justice regarding the present status of the legislation and the subject declarations following this judgment.
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