Author: Christopher Craigie SC, Date: 08/09/2011 Venue: AIJA Criminal Justice in Australia and New Zealand - Issues and Challenges for Judicial Administration Conference
The purpose of this paper is to examine the role of my Office as the prosecuting authority for the Australian Commonwealth in lengthy and complex counter terrorism prosecutions; several of which have been completed during my term as Director to date. After the events of September 11 2001 there was a prompt and concerted legislative response by all our National, State and Territory heads of government to ensure that terrorism offences be met with a coordinated national response. It was decided that whether or not the activities of people engaged in terrorist activities might in former times have been encompassed within the laws of the States and Territories as crimes of murder or conspiracy, they should now be covered by additional provisions enacted by the National Parliament as Commonwealth offences. The provisions inserted in the Commonwealth’s Criminal Code after 2001 create a number of new indictable offences against the law of the Commonwealth. This entails that they are prosecuted by my Office and that they must be tried before juries, this being a requirement under the Australian Constitution for Commonwealth offences. Recent counter terrorism prosecutions within Australia have certainly been characterised by their size, convolution and a propensity to raise unpredictable and intricate legal challenges. This paper outlines the nature of the prosecutions, the issues faced by my prosecutors and by the courts, and the way in which those issues were addressed and resolved. While the particular subject matter of counter terrorism trials is the focus of this presentation, the challenges described, and the solutions discussed, will be of relevance more broadly to other types of criminal proceedings. It is to be acknowledged from the outset, that some of the issues which have arisen in the Australian trials, may not surface in other national jurisdictions, due to differences between our criminal justice systems, investigative approaches and the evidentiary provisions as to the kind of material that may be adduced as evidence during a trial. The most notable point of variation, that I have often discussed with our United Kingdom colleagues is the use of telephone intercept and listening device material. In the Australian context such material is often an important part, if not the core of the evidence in the cases that present. It is also the case that such evidence is frequently seen, not just in Commonwealth prosecutions but in all Australian jurisdictions as evidence commonly relied upon in the prosecution of a wide variety of serious offences. In my Office it is a common feature of most drug importation cases but it is at least as common as a feature of matters prosecuted under State law, particularly in relation to drug trafficking, down to the level of street dealing. I do note however that this is a class of evidence which may not be available elsewhere for a number of reasons that are understandable for reasons pertaining in those jurisdictions, although in the material obtained from listening devices and telephone interceptions otherwise have a very important, if not vital role as an investigative tool. I might briefly outline the functions of my Office, the recent history of Australian counter terrorism offences, and the arrangements put in place within my Office to build prosecutorial capacity for these matters.
As the Commonwealth Director of Public Prosecutions, I am with the State and Territory Directors one of ten independent principal statutory office holders within Australia, charged with prosecuting suspected criminal offenders. Each Australian State and Territory, as well as the Australian Defence Force, also has an independent principal statutory prosecutor. Under Australian federalism, the legislative power in relation to criminal law, ordinarily resides with the States and Territories. However, the Commonwealth also has the power to create criminal offences, when doing so would be part of or incidental to a head of power allocated to the Commonwealth Parliament. The remit of the Commonwealth Director of Public Prosecutions is, in the main, limited to Commonwealth offences, created under Commonwealth legislative power. Accordingly, my Office traditionally dealt with matters of Commonwealth significance, such as fraud on the Commonwealth Government and its agencies, border control offences and drug importation offences. While there were national security and defence related Commonwealth offences on our statute books, history had been kind to us, and there were few occasions which required prosecutions of such offences. The prosecutions relating to large scale drug importation were the gravest prosecutions we would usually see and, on occasion, were accompanied by the maximum penalty of life imprisonment. My Office also had an established role in litigating proceeds of crime applications, consistent with the Commonwealth Government policy of seeking to deprive offenders of the proceeds and benefits of their criminal activity. The Office of Commonwealth Director of Public Prosecutions was established to create an ‘independent prosecutor’, vested with responsibility for making prosecutorial decisions in a manner that could be seen as entirely separated from the political process and related solely upon assessment of the objective merits in each case. The Office was also established to create a ‘consistent prosecutor’, charged with the responsibility of making coherent prosecutorial decisions for Commonwealth matters across the various State and Territory courts, where criminal proceedings are litigated within Australia. In order to meet those responsibilities, earlier Directors have incorporated the virtues of the ‘rule of law’ into the decision making aspect of the Office, by adherence to a document which articulated the principles upon which prosecutorial decisions would be made. Those principles were defined in advance of any particular matter, and applied equally to all matters which were referred to the Office. Those principles involved the objective assessment of matters. That document was and is the Prosecution Policy of the Commonwealth. Consistent with the transparent nature of this process, that document has been tabled in the Parliament of the Commonwealth of Australia by various Attorneys-General, and made available to the public. The document can be found on our website. Prosecutorial decisions have, and continue to be made on the basis of the tests and principles contained within the Prosecution Policy of the Commonwealth. The record in relation to the application of the Prosecution Policy has not been flawless. There was a notably unfortunate incident from which we and our partner agencies learnt a great deal. I mention it now, if only to dispel any suggestion that we only speak of our successes. Some here may recall that in 2007, immediately following two terrorist incidents in the United Kingdom in late June of that year (one at Glasgow Airport, followed by a related incident in London), an Australian investigation of Dr Mohamed Haneef, suspected to have been linked to those involved in the UK, drew international media interest and public attention, and was ultimately criticised by an administrative inquiry conducted by Mr M.J. Clarke QC, a former New South Wales Supreme Court judge. In that case an officer from my Office gave advice, that while limited and qualified to some degree, was interpreted in a particular way and contributed to a decision by the Australian Federal Police to charge Dr Haneef with the offence of providing support to a terrorist organisation, contrary to s102.7 of the Criminal Code. Shortly after Dr Haneef was charged by the Australian Federal Police with that offence, my predecessor personally assessed the matter, in accordance with the Prosecution Policy of the Commonwealth and discontinued the prosecution. It is fair to say that; although the episode as reviewed by Mr Clarke QC disclosed no systemic failure, it emphasised the need for care in keeping to the discreet functions allotted to investigators on one hand and prosecutors on the other.
The Impact of large and complex trials:
Due to the size of counter terrorism prosecutions and the resource demand they place upon all elements of the criminal justice system, it is certainly the case that a well-resourced, organised and focused prosecution process should play a major role in contributing to the overall efficient conduct of these proceedings. As Dr Chris Corns observed in his 1997 AIJA report Anatomy of Long Criminal Trials:
One criminal trial which occupies a courtroom and a judge for six or more months has a very significant impact on the ability of the higher courts to hear and determine other, shorter cases.1
Dr Corns noted that these mega-trials also have a disproportionately large impact upon other aspects of the criminal justice systems, such as: legal aid funding; disruption to the lives of jurors, victims and witnesses; and in the impact on public perceptions of justice. To that list I would add that these mega-trials also have a disproportionate impact upon the budgets and workloads of the agencies, charged with investigating, prosecuting and otherwise supporting the forensic process. For those reasons it is obvious that most actors within the criminal justice system have an interest in the effective and efficient management of lengthy and complex trials, including counter terrorism trials. However, as criminal trials are brought before the court and presented by the prosecutor, the effective and efficient management of these proceedings is difficult, if not impossible, unless the prosecution of the matter is managed and conducted effectively and efficiently. The quality of the prosecution is in turn dependent on the focus and effectiveness of the investigation. To put it another way, whatever one’s goals with respect to improvements in lengthy and complex criminal trial management, be it the minimisation of delays, the reduction in the length of proceedings, the narrowing of issues, the appropriate disclosure of and access to evidence and unused material, the preparation of counsel, the clarity of pleadings and cases, the management of exhibits, or the administration of the jury; your objective is much more difficult to achieve without the foundation of a prudent investigation and an effective and efficient prosecution. Of course, to do that, both investigators and prosecutors need to be adequately skilled and resourced.
The Commonwealth’s Counter-Terrorism Provisions
Before the terrorist attacks in the United States of 11 September 2001, Australia did not have a suite of offences specifically designed to outlaw the actions of terrorists. Those actions would have attracted criminal liability under the traditional State or Territory offences, of homicide, causing injury and or damaging property. Such offences could also have been augmented by the common law extensions of criminal responsibility of ‘attempt’ and ‘conspiracy’. Australia had not been entirely untouched by politically motivated crime before 2001 but, tragic though some of those occasional events were, none have challenged us in the way that we are now challenged by the nature, scale and potential of the current threats. As even the calmest assessment would conclude the world certainly did change somewhat in the wake of the events of 11 September 2001. In addition to the impact on those Australians lost or bereaved by the World Trade Centre Attack, any suggestion that distance rendered us immune from the threat of terrorism motivated by religious extremism was certainly dispelled by the losses we sustained in the Bali bombings of 2002 and 2004, followed by the 2005 bombing of the Australian Embassy in Jakarta. The source of the Australian Commonwealth’s legislative response to the emerging terrorist threat after 9/11 was the United Nations Security Council Resolution 1373, which followed 17 days later. This caused the Commonwealth to re-assess the adequacy of existing arrangements. The Security Council resolution relevantly read:
The Security Council, … Recognizing the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism, … Decides … that all States shall … Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts …
The Commonwealth Government responded to Resolution 1373 by enacting Div72 and Pt5.3 of the Criminal Code. The new provisions created a range of lethal and explosive device offences and terrorism related offences, which came into being in July 2002. During the Second Reading Speech of the related Security Legislation Amendment (Terrorism) Bill 2002, the then Attorney-General, The Hon. Daryl Williams AM QC MP outlined the purpose of the new counter terrorism provisions:
The [Bill] is part of a package of important counter-terrorism legislation designed to strengthen Australia’s counter-terrorism capabilities. Since 11 September there has been a profound shift in the international security environment. This has meant that Australia’s profile as a terrorist target has risen and our interests abroad face a higher level of terrorist threat… This package, and other measures taken by the Government, are designed to bolster our armoury … against terrorism and deliver on our commitment to enhance our ability to meet the challenges of the new terrorist environment.
The Commonwealth Parliament accepted the view that traditional criminal offences, even with the extensions afforded by conspiracy and attempt, were not adequate to address the threat posed by terrorism, before terrorist acts actually occurred. Consistent with the Security Council resolution which required the outlawing of conduct such as the planning or preparation of terrorist acts, Part 5.3 of the Criminal Code was enacted. That Part contained offences relating to terrorist organisations, such as membership, directing, recruiting, training, funding, supporting and associating with terrorist organisations. The Part also contained offences relating to terrorist acts, such as committing, training connected with, possessing things connected with, collecting or making documents likely to facilitate, and other acts done in preparation for, or planning of, terrorist acts. Such offences established criminal liability in circumstances where the traditional offences of conspiracy and attempt might not have arisen. That effect of the legislation was recognised by Chief Justice Spigelman, as he was then, in his Court of Criminal Appeal of New South Wales judgment of Lodhi v The Queen (2006) 199 FLR 303 at  and  where he said:
 Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. ...  Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise earlier than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect the legislative policy.
The preparatory nature of these new offences allowed Australian investigative authorities to take action against persons who were involved only in the preparatory stage of terrorist activities. That aspect, the circumstantial nature of these cases and the effect of both upon the quantum of evidence and length of the trials will be discussed further.
Following the introduction of the Commonwealth terrorism offences and with the referral of terrorism briefs to our Office, my predecessor, Damian Bugg AM QC, marshalled resources to increase the Office’s capacity to appropriately deal with these matters. As a Commonwealth prosecuting authority, we have offices in every State and Territory, and an initial step was the training and designation of specialist counter-terrorism prosecutors in each of those regional offices. Additionally, with large briefs of evidence being received by our Melbourne and Sydney Offices, Counter-Terrorism Branches were established within those offices, and staffed with very senior prosecutors and led by Senior Executive Service officers. A Deputy Director within our Head Office was tasked with maintaining oversight of these counter-terrorism prosecutions. That is, the Deputy Director was and is to maintain an active watching brief over all counter-terrorism prosecutions, ensuring that relevant issues are considered and to facilitate the making of important decisions at the appropriate level. This oversight provides a dispassionate and strategic re-assessment of our approach to these matters, ensures consistency of approach across the various matters and jurisdictions, and importantly in these days of significant fiscal pressure, manages our scarce resources and any inadvertent functional creep by the Office. Commensurate with the above and the Deputy Director’s seniority, the Deputy Director is also expected to actively liaise with other agencies, at a national and international level, with respect to Australian counter-terrorism investigations and prosecutions. We have also drawn upon the expertise of experienced senior counsel at the private bar, who in turn developed specific experience and insight into the nuances of these challenging matters. It is appropriate that in this regard I acknowledge the massive contribution Richard Maidment SC, now his Honour Judge Maidment of the County Court of Victoria, has made as lead counsel in several of our most challenging CT trials. I am kept informed about the progress of these prosecutions through a consolidated weekly report. Additionally, I personally settle significant and controversial prosecutorial decisions and advice to investigating agencies. The Office has found that the approach of having specialist senior prosecutors who are familiar with the counter-terrorism offence provisions and the specific evidentiary and procedural requirements of their local State Supreme Courts, where in the main, these prosecutions are brought, in combination with Head Office oversight and co-ordination, has proved successful. These arrangements have ensured that appropriate experience and resources are applied to these matters and that the best preparation is undertaken by my Office before these matters reach court. My Office, at both regional and national levels, has maintained ongoing conversations and training with relevant government agencies to promote the better understandings of our various roles and the critical issues that may arise during these matters; and to encourage an efficient and effective response to these matters. I have re-affirmed my view about the critical importance of this early contribution, by encouraging the same to continue within our counter terrorism practice, notwithstanding the impact on our resources. We continue to contribute to counter terrorism law reform. That engagement involves identifying and making proposals to the Attorney-General’s Department, responding to policy and legislative drafts, and contributing submissions to the various reviews and inquiries into national security legislation which occur from time to time.
Contribution to the Investigations
During the course of the various counter terrorism investigations and prosecutions, the relationships between my Office and the investigative and security agencies have continued to mature. The Operation Neath matter, which involved the investigation and prosecution of five accused in relation to a planned attack on the Holsworthy Army Barracks in Sydney, is an example of where those relationships are at and the contribution my Office may make during the course of a counter terrorism investigation. I should make the important qualification, that notwithstanding a contribution by my Office during these investigations, it is my unwavering assessment that there is significant merit in my Office maintaining a degree of prosecutorial independence from investigations and the operational decisions made during the course of such investigations. Those decisions remain matters for police and security agencies and, in turn, the prosecution remains available to cast an objective eye over the evidence obtained during the investigation, assess that evidence in accordance with the Prosecution Policy of the Commonwealth and conduct the proceedings consistent with the obligations and duties bestowed upon a prosecutor as an officer of the court. My Office has made considerable efforts to ensure that relevant agencies understand this requirement and the consequential limits of our services during these investigations. That understanding is reflected within a number of inter-agency operational agreements and guidelines, designed to guide our officers during the course of these matters. In the Operation Neath matter, we were engaged early in the multi-agency investigation. Our Melbourne Counter-Terrorism Branch was approached to provide legal assistance in the form of general advice, support for electronic warrant applications and advice regarding evidence gathering powers and procedures. We were well briefed on the background to the investigations and kept informed of important developments during its progress. This early involvement provided our prosecutors with the opportunity to have a much fuller understanding of the evidence, both its strengths and weaknesses, and that in turn facilitated timely advice about the merits or otherwise of prosecuting various offences, provided of course in accordance with the Prosecution Policy of the Commonwealth. Early collaboration with the investigative agencies allowed our prosecutors to actively encourage the effective analysis, sorting and structuring of evidence and disclosable unused material, during the course of the investigation, with the view of guiding the lead investigative agency to produce a focused and well referenced brief of evidence for prosecution. This was particularly important, given the potential quantum of material that may have been added to the brief and the ease of adding data to an electronic brief. Early involvement also facilitated relevant disclosures by a security agency to our prosecutors about a number of important facts. While I am not at liberty to say much about those facts, the disclosure of those facts, was very helpful and enabled the Crown case to be framed while alert to those issues. The involvement of security agencies in these matters, and the perennial concerns regarding possible disclosure of their methods, capabilities and people, adds a degree of complexity to these matters, particularly given the tension between those security imperatives and the noble common law tradition of natural justice manifested in an open and fair trial. Our early notification of these issues has allowed us, at times, to consider the formulation of the Crown case in ways that tend to avoid the controversy altogether and thus reduce the issues to be litigated during the pre-trial hearings.
Prosecuting the Counter Terrorism Trials
In order to provide a better appreciation of the scale of the counter terrorism trials my Office has conducted, I will briefly outline two relatively recent matters, one from Sydney and one from Melbourne. Each trial involved the charge of conspiring to do an act in preparation for a terrorist act. The New South Wales trial in relation to Operation Hamerli was concluded in February 2010, more than five years after the investigation commenced. Guilty verdicts were returned against all five accused who went to trial. The pre-trial hearings consumed eight months of the Supreme Court’s time, and the trial before the judge and jury took 11 months. Police intercepted 127,000 telephone calls and included 30,000 of those calls within the brief of evidence. The prosecution process resulted in a pre-trial decanting of those 30,000 calls down to the 448 calls which were played to the jury. The jury in the Victorian trial in relation to Operation Neath returned their verdicts in December 2010, 506 days after the arrest of the five accused. Three accused received guilty verdicts. That trial concluded approximately two and a half years after the commencement of the investigation. Pre-trial hearings took approximately two months, and the trial before the judge and jury unfolded over a period of just under two months. In this matter police intercepted 142,000 telephone calls, 29,000 SMS messages and 7,500 hours of listening device material. Only 361 such items were included within the brief of evidence, and ultimately only 343 items were played to the jury. This latter case illustrates the impact of early involvement by the prosecutor, and the critical evaluation of the evidence by the police. In short, this early and contemporaneous distillation of the evidence dramatically reduced the size of the brief and, in turn, the length of the criminal proceeding. I will address the detail of those processes shortly.
Planning a Terrorist Act and Electronic Intercept Evidence
Australia has been very fortunate in that in recent times, terrorist activities within Australia have not resulted in completed terrorist enterprises, accompanied by the associated grief and destruction of property that such incidents bring about. Fortunate though this has been our investigative agencies have discovered a number of individuals engaged in terrorist activities of a particularly grave kind although at the preparatory stage in the continuum between conception and action. It has emerged in the trials that the participants in these conspiracies were determined upon action that would have involved very significant loss of life and massive damage to infrastructure. Rather than needing to link the accused to definitive terrorist acts, our prosecution task at trial has been to establish the intention and purpose of these individuals, and at times that of the organisations to which we say they belong. Evidence of such intentions rarely materialises in unambiguous admissions or confessions, hence our matters have ordinarily involved largely circumstantial cases, reliant upon a mosaic of acts and omissions which extended over prolonged periods. Additionally, some of our most serious matters have involved many accused. As a consequence, the prosecution briefs have been substantial in size. As previously noted, Australian jurisdictions have a long-standing practice of employing telephone and listening device intercept material as evidence lawfully obtained under warrant and admissible at trial. It is perhaps not surprising that such material is used by intelligence agencies to monitor individuals assessed to be a terrorism risk. It is also not surprising, that such material is sought by investigating authorities when attempting to establish the preparatory acts that may constitute the commission of terrorism offences. The quantity of intercept material produce is obviously proportional to the number of intercept arrangements which are put in place and the length of time the intercept arrangements are left in place. In our experience, the investigative agencies have, for any single investigation, intercepted multiple telephone and internet services, and established multiple listening posts. That monitoring and recording, has invariably continued for many months and, as you may imagine, produced an inordinate quantity of product. Ultimately, only a relatively small portion of that material has been relied upon by the Crown. You will see that the way investigators analyse this material, and the choices prosecutors make with respect to its use has a major influence on the effectiveness of the prosecution and nature, complexity and length of the trial.
Traditionally, here as in the United Kingdom, Crown prosecutors kept the investigation, witnesses and brief of evidence at arm’s length, often taking no role in the matter until a formal brief was provided by the police, and meeting the witnesses for the first time when they were called to the witness box. The Australian law enforcement model remains one where there is a clear separation between the functions of investigators and those of prosecutors. That said, there has been considerable modification of that model here, as indeed there has been elsewhere where the complexities of the law and pressing necessity makes it impractical to sustain distance as well as separation. In our case, whilst the operational decisions of the police, including the decision to arrest are plainly outside our function, a strong practice of pre-brief advice and cooperation has grown up as an essential part of preparing for a complex prosecution process. We have found that counter terrorism investigative agencies seek and appreciate assessments and guidance during the course of their investigations, and that guidance can lead to a brief that is more focused, including at such stages as investigative searches in which the volume of material can be greatly reduced by having a reasonably well developed shared concept of likely charges and what will be needed to support them. As suggested at the beginning of this presentation, a well-focused prosecution, with a considered selection of evidence, can have a major impact on the effective and efficient running of a complex and lengthy criminal proceeding. A focused, well-structured brief of evidence, resulting from a prudent assessment of the relevant evidence can set the course for such a prosecution. Due to size of counter terrorism investigations, and perhaps also due to the popularity of computer applications, electronic briefs have become the preferred option in these matters. This form promises a range of benefits, including ease of transmission, storage and duplication. It is also easier for investigators to satisfy themselves that all relevant material has been provided to prosecutors, when they copy and provide to the prosecutor the majority of their electronic holdings. Transmission has become so easy as to sometimes obscure enormous effort involved in collating the sometimes massive quantity of information provided. The process results in electronic briefs containing very substantial quantities of material being provided to my Office and, of course in turn, to defence lawyers. Such large briefs may not always be conducive to a clear understanding of the relevant issues and evidence, particularly when the analysis of parts of the material does not commence until after the brief has been served. Electronic briefs which contain large amounts of unstructured, unrefined and irrelevant material have the potential to produce a number of adverse consequences. These include: a subsequent loss in fidelity on both sides in relation to an understanding of the issues and evidence; a basis for delays in the proceedings; additional pre-trial applications; increased uncertainty in relation to the length of the proceedings; and the frustration of effective and meaningful disclosure. The ease with which material can be included within an electronic brief requires that extra discipline to ensure that the included material remains relevant, manageable and accessible. During our relatively recent experience with counter terrorism matters, we have witnessed a maturing in the quality, focus and economy of the electronic briefs. We have attributed this improvement to the earlier and more thorough assessment of material by the investigative authorities. Where possible, this is done well before the arrest of any suspect. We try to ensure that the work of the investigative agencies has been informed and guided by the advice and assistance provided by my Office during the course of the investigation, as well as through the joint experience of earlier investigations. We see the benefits of an early focus on brief building as including:
- Identification of potential case theories which may assist in guiding the course of the investigation;
- early identification, sorting and indexing of relevant material;
- establishment of consistent and effective naming protocols;
- avoidance of unnecessary and distracting material;
- early and consistent labelling and cross referencing of material;
- common understanding of the elements of the potential offences and the ability or otherwise of the material to establish such elements;
- better access to the material within the brief;
- better assessment of the strength or otherwise of the case;
- earlier service of the brief following arrest of the accused;
- significant savings in time and costs for prosecution and defence counsel; and
- timely preparation by the parties in relation to bail applications.
To facilitate this process and the above results, my Office has actively engaged with investigative authorities, before, during and after investigations, and encouraged a clear and coordinated approach to the brief building exercise.
Initially in these counter terrorism proceedings, it was anticipated that electronic briefs of evidence and electronic presentation facilities would operate to assist with the management, understanding and presentation of the evidence. Coincidently and shortly before two particularly large counter terrorism trials, my Office purchased the licence to use court preparation and presentation software. Over time, we found that the long-promised utopia of an electronic prosecution case and courtroom did not always materialise. In our case there have been compatibility and licencing hurdles when attempting to use the electronic briefs we received from investigators, in a form ideally suited to the investigative process but confronting problems of compatibility with the software that we had purchased, and in the provision of the same material to the defence and in a form adaptable for convenient use and display in the courtroom. Additionally, an essential element of criminal jury trials requires certainty and clarity in relation to what material is provided to the jury. The use of sophisticated software did not always provide comfort to all that this certainly and clarity could be guaranteed. This issue occurred in the context of parts of the intercept material being ruled inadmissible, and therefore the audio files and transcripts needing to be reliability redacted. Further, the subject matter of the counter-terrorism trials that we have conducted usually has touched upon the product of our national intelligence agencies, and the subsequent inclusion of national security information. We have needed to be mindful that some information has needed to be handled more carefully and could not be incorporated within a single unclassified electronic system. Ultimately, my Office learnt that while certain commonly available IT tools were of great assistance, such as: data discs and storage devices; pre-defined, searchable and consistent metadata; scanned electronic documents; electronic audio files; and spread sheets; it was better to transmit that material in standard and commonly available formats, and allow the various parties in the trial to choose their own methods of making sense of the electronic material, rather than attempting to employ common litigation support software.
Counter terrorism trials have posed unusual challenges within the courtroom. These matters have, in recent experience, involved an unusually large number of co-accused. Additionally, due to the serious and unusual nature of these proceedings, Senior Counsel have also been briefed by many parties. Further, the existence of national security information within the brief of evidence, and at times the constitutional challenges by the accused, have caused counsel to seek leave to appear on behalf of the Commonwealth. Those factors have in turn led to a large number of counsel attempting to squeeze behind the bar table. This issue caused Supreme Court matters in both Melbourne and Sydney to be moved to alternative courtroom venues. For our purposes, the scale and length of these matters has in the past required my Office to arrange our own accommodation proximate to the venue. In the Hammerli case where an entire floor of a new Parramatta court complex situated in Sydney’s satellite city some 30 kilometres or so from here was used for a 12 month trial, we also established our team in appropriately secure temporary office accommodation adjacent to that court building.
Our early counter terrorism trials, with their novel offences and enormous briefs of evidence, all involved numerous pre-trial applications and hearings. While those hearings were necessary in those cases in that they resolved many issues before the juries were empanelled and minimised the fragmentation of the jury trials, they also added to the overall length of the proceedings and the associated resource impact on the courts, legal aid funding and the prosecution. In the Sydney matter I referred to previously some 8 months were devoted to pre-trial applications resulting in some 60 rulings by the trial judge. In a major Melbourne matter some 70 days were devoted to pre-trial applications leading to 20 plus written rulings. Our experience is that active judicial management of those pre-trial proceedings, including setting and where possible enforcing deadlines, significantly assisted in the progress of those matters. At times those pre-trial applications resulted in interlocutory appeals. Those appeals caused further delay and uncertainty. However, I acknowledge in the case of these particularly long trials, and notwithstanding a degree of fragmentation of the proceedings, that there will at times be merit in having issues ventilated in an appellant court prior to the empanelment of a jury.
The Judicial Approach to Management of the recent CT Trials
What follows below is a distillation of our CDPP lawyers’ notes in the recent major trials. What is notable is that, although both jurisdictions have formal legislative provisions for case management, the trial judges chose their own informal but highly effective approaches to dealing with the challenges presented. In each case this entailed reconciling the fact that a plethora of potential real-time evidence existed with the practical task of facilitating a jury trial that did not compromise the rights of the accused to a thorough and fair trial process.
All of the CT cases prosecuted by the CDPP in Victoria have been heard by the Victorian Supreme Court. Two of these were very large matters. The trial of R v Benbrika and Ors (No.1) involved 13 accused whilst the trial of R v Fattal and Ors involved 5 accused. In each case a trial judge was appointed early to deal with pre-trial issues and hear preliminary legal arguments. Each judge elected to take an active role in setting a timetable for the proceedings and making directions with respect to the filing of applications and submissions. Strong judicial encouragement was given to the parties to work co-operatively together to resolve issues without judicial intervention. On many occasions the parties were encouraged to strike arrangements which could contribute to the more efficient conduct of these trials. Where judicial intervention was required, it was often the case that the judicial reasoning which lay behind one ruling was expressed in such a way so that it could be applied by the parties to resolve a significant number of like issues. Whilst a small number of formal admissions were made by the accused in the Fattal and Ors matter, none of the accused in the Benbrika and Ors (No.1) matter was prepared to make any formal admissions of fact. Nonetheless in both proceedings the Crown was, without objection, permitted by the Court to make effective use of tables, spread-sheets and schedules which enabled one witness to give the evidence of what would otherwise be many witnesses. In both of these trials the Crown also provided the parties with a list of relevant assumptions upon which, unless otherwise informed, the Crown would proceed. These assumptions, which ran for only a page or two, addressed significant matters such as voice identification where it was assumed that, unless otherwise informed, voice attribution in the intercepted conversations would not be challenged. In the absence of formal admissions and with the strong support of the trial judge in each case, these assumptions provided a much needed framework for the more efficient conduct of these proceedings and helped to render manageable what could very easily have become unduly lengthy and unmanageable trial proceedings.
New South Wales
In the most recent and longest of the counter terrorism trials in the Supreme Court of New South Wales the trial judge encouraged the parties to resolve issues that were not in dispute prior to the commencement of the trial. For example, the defence initially indicated that their instructions were to challenge all the surveillance evidence – and therefore the Crown would be required to call every surveillance officer. The case would have been very lengthy if the Crown had to call every surveillance officer.His Honour encouraged defence counsel to obtain proper instructions concerning this issue. His Honour’s approach would be to ask in open court “Does your client dispute the fact that he met with A and B? Isn’t your case that the meeting had nothing to do with terrorism?” His Honour resolved most issues during pre-trial argument prior to the jury being empaneled. Therefore, when the Crown opened, most of the facts in issue had been identified without prejudicing the Accused’s right to silence. This allowed the cross-examination to be more focused. By dealing with issues during pre-trial hearings the Crown and the defence were forced to focus on their respective cases and how they intended to prove their case. In dealing with challenges to the admissibility of evidence, his Honour would express a tentative view without having listened to the argument and encouraged the parties to resolve the issue in light of this view without having to argue the point. His Honour encouraged dialogue between the parties. This was reflected in his Honour’s judgments. For example in R v Baladjam and others [No 19] (28 May 2008) his Honour gave a length opinion about the law and how he intended to apply it to this case and noted at para  “I propose to leave it to the parties, however, to discuss and agree about the form any such editing or cloaking of identity should take. I would expect the parties to agree to a sensible compromise. I will intervene if that is not possible, but that intervention should be left until the appropriate time, if it be necessary.”
Jury empanelment, for such long trials also poses a challenge. As previously indicated, s80 of The Australian Constitution requires that the trial on indictment for offences created by the National Parliament must be by a jury. Although trial by jury is still the prevailing mode of trial for offences against State law there are some limited circumstances in which my State and Territory counterparts can prosecute non Commonwealth offences before a judge sitting alone. Jury trials ordinarily involve a jury of 12 persons. Applicable State procedural provisions allow for enlarged panels of 15, with three reserve jurors being sworn and required to sit through the trial with the usual 12. In long trials this measure is against the contingency that some jurors might become ill or otherwise unavailable prior to the completion of the evidence and commencement of the jury’s deliberations. Clearly, long trials impose a significant risk of this and a considerable impost upon the working and family lives of individual jurors. Many potential jurors would suffer unreasonable hardship, over and above the considerable hardship already inherent in sitting on a long trial, were they required to participate in these trials. Accordingly, these counter terrorism matters have involved the calling of very large jury pools, and extended periods for the judges to consider applications from individuals to be excused from serving on the jury. In one matter in Melbourne, the jury pool involved 1200 individuals, and it took five days to complete the process by which a panel of 12, plus three in reserve, could be sworn in to sit on the case. Extra rooms were used to accommodate the large number of potential jurors and video links facilities were set up with the courtroom. Evidence in support of applications to be excused was received in writing, rather than orally by the judge. An information Power Point presentation was prepared and delivered to the jury pool to explain the process of jury selection.
Technological Aids in the Trials
In both the Pendennis and Neath trials in Melbourne each jury was provided with a lap top computer when they retired to consider their verdict. This computer was connected to a large flat screen and audio speakers in the jury room. This computer was not supplied during the hearing of evidence. The computer essentially enabled the jury to access the electronic materials (video, audio and PDF transcripts) which had been tendered in evidence during the trial. At the request of defence counsel, all other computer functionality was locked down. This meant that the jury could not use the lap top to make electronic notes etc. The jury in both trials were also supplied with spread sheets of relevant materials prepared by the Crown and tendered in evidence. One spread sheet which was particularly important was that which listed, in chronological order, all of the telephone intercept and listening device product. This spread sheet set out the date, time and parties to each conversation. Whilst in both trials the Crown applied to the trial judge to be permitted to supply a potted summary of each conversation in neutral terms, on each occasion defence counsel took objection to such proposal. In the Neath trial the trial judge formulated her own one or two word “tag” for each conversation to assist the jury remember what the conversation related to. In Pendennis, the jury were also provided, without objection, with other spread sheets such as a spread sheet of extremist materials which had been tendered in evidence. As one would expect, the prosecution ensured that the jury were also supplied with pens, sticky labels and highlighters. In the Sydney Operation Hamerli trial the following IT aids were employed: As in Melbourne, the jury were supplied with a lap top that assisted them to search disks of material admitted into evidence. In all our CT trials this process also reduced the risk of inadmissible material from the great volume being handled in the trial finding its way to the jury by accident. IT equipment was employed to allow video link evidence to be obtained from overseas; (the court sat outside normal hours, given the time difference). IT equipment was also used to facilitate ASIO officers in giving evidence via video link.The court had previously made orders to prevent the accused seeing an image of the ASIO officers.The manner in which the technology was employed meant that the jury, counsel and the judge were able to see the image of the ASIO officer giving the evidence via video link but the accused did not see the image of the officer. The accused could hear the evidence but the jury did not know that the accused could not see the image of the ASIO officer. This arrangement met ASIO’s concerns and reduced the risk of prejudice to the accused. Special speakers were obtained to enhance the quality of listening device recordings. The prosecution team and the defence had the now usual computer access to exhibits and transcript and were also able to link a laptop computer to the audio and video equipment in the courtroom. This allowed permitted swift access to, and the playing of, telephone calls and video recordings in an efficient way. A useful capacity was the ability to identify and fast-forward a recording at the relevant part quickly.
Our experience in counter terrorism prosecutions is that the extensive media interest, national security information content and prejudice concerns arising from related prosecutions necessitated numerous non-publication orders being made by the various courts. At times it was difficult for officers of my Office to assess the precise application of those orders and whether such orders prohibited the unexceptional communications between my Office and other government agencies. This state of affairs was even more problematic when there was a possibility that the orders themselves may be subject to non-disclosure requirements, and or when the court registries broadcast the content of these orders to known media outlets. These orders also often leave a legacy beyond the conclusion of the proceedings and beyond the warrant for such orders. Additionally, these orders often involve references to proceedings in different court jurisdictions. I should say in passing that it is my view that there would be merit in the consideration of a form of a national trial register of non-publication orders, and the use of standard terms to cover off on the detail about how such orders are intended to operate, at the time of their composition and into the future.
Today in the brief time available, I trust that I have provided you with a flavour of our approach to complex and lengthy counter terrorism trials and responses to the challenges we faced within them. I have also outlined a number of the continuing challenges faced by the courts, by those who represent persons accused of committing terrorist offences and by those who are called upon as jurors. In particular, there remains a continuing need to ensure that jurors are not only assisted in their immediate task of serving as tribunals of fact but assisted to withstand the inherent rigours of very lengthy trials. The constitutional constraints of s80 apart; in these important trials, the notion of the citizen-juror is a valuable element in the delivery of credible criminal justice. It represents an assurance of fairness and legitimacy that is to be nurtured carefully if it is to be maintained. My office is committed to a continuing process of assisting in developing and enhancing modes of managing these very important prosecutions, in particular by encouraging the formulation of prudently focussed briefs of evidence, continuing to meet our own stringent standards of disclosure and efficiently presenting effective jury-accessible cases for the Commonwealth. 1. Dr Chris Corns, Anatomy of Long Criminal Trials, 1997, The Australian Institute of Judicial Administration Incorporated, at (1.2.3)