[1] On 20 November 1975, during the election campaign which followed the dismissal of the Whitlam government, a Sydney solicitor, Danny Sankey, initiated a private prosecution against Gough Whitlam, Rex Connor, Lionel Murphy and Jim Cairns as a private citizen.

The second alleged that the defendants had conspired to deceive the Governor-General in the performance of his duties.

The Fraser government objected to produce these documents, arguing that they were confidential and were subject to 'crown privilege'.

At all relevant times during the prosecution one of the defendants, Lionel Murphy, was a Justice of the High Court.

Justice Murphy did not sit as part of the Court to hear the appeal from the Magistrate's ruling.