Chonka v Palmer

Case •

[1999] FCA 763

•

3 JUNE 1999

FEDERAL COURT OF AUSTRALIA

Chonka v Palmer [1999] FCA 763

CRIMINAL PROCEEDINGS  )

TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 ) – telephone interception warrant – whether designated warrant information could be put in evidence in proceeding for declaration of invalidity of a warrant – whether the proceeding was under s 107A of Telecommunications (Interception) Act – allegation that application for warrant was made in bad faith – whether police officer was an officer within s 5B(f) – definition provisions referring to “officer” – construction of s 6G(2) and (3) – construction of s 107A – effect of the principle of non-fragmentation of criminal proceedings.

Telecommunications (Interception) Act 1979 (Cwth), ss 5B, 6EA, 6G, 7, 39, 42, 63, 74, 75, 76A, 107A
Crimes Act 1900 (NSW), ss 61O, 61N, 62N

Kizon v Palmer (1997) 142 ALR 488 applied
Kizon v Palmer (No 2) (1998) 82 FCR 310 applied
Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) ATC 4054 referred to
Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 referred to
Ousley v The Queen (1997) 71 ALJR 1548 referred to
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 applied
Seymour v Attorney-General(Cth) (1984) 4 FCR 498 applied
Lord v Commissioner of the Australian Federal Police (1997) 47 ALD 301 referred to
Johnson v Holmes (Wilcox, Tamberlin and Merkel JJ, unreported, 18 November 1998) referred to

MICHAEL CHONKA v MICHAEL JOHN PALMER (COMMISSIONER OF AUSTRALIAN FEDERAL POLICE) & ORS

NG 546 of 1998

Burchett J
9 June 1999
Sydney


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 546 of 1998

BETWEEN:

MICHAEL CHONKA
Applicant

AND:

MICHAEL JOHN PALMER (COMMISSIONER OF AUSTRALIAN FEDERAL POLICE)
First Respondent

PETER RYAN (COMMISSIONER POLICE SERVICE NSW)
Second Respondent

THE HONOURABLE JUSTICE COLLEEN ANN MOORE
Third Respondent

GLEN MARTIN RATJENS, DETECTIVE SENIOR CONSTABLE, NSW POLICE
Fourth Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)
Fifth Respondent

JUDGE:

BURCHETT J

DATE OF ORDER:

3 JUNE 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

(1)The applicant’s application stand over until after the final termination of the criminal proceedings in the District Court of New South Wales presently pending against him.

(2)       Costs reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 546 of 1998

BETWEEN:

MICHAEL CHONKA
Applicant

AND:

MICHAEL JOHN PALMER (COMMISSIONER OF AUSTRALIAN FEDERAL POLICE)
First Respondent

PETER RYAN (COMMISSIONER POLICE SERVICE NSW)
Second Respondent

THE HONOURABLE JUSTICE COLLEEN ANN MOORE
Third Respondent

GLEN MARTIN RATJENS, DETECTIVE SENIOR CONSTABLE, NSW POLICE
Fourth Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)
Fifth Respondent

JUDGE:

BURCHETT J

DATE:

9 JUNE 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is a motion brought by the second and fourth respondents (whom it will generally be convenient to call “the respondents”), pursuant to Order 20 rule 2(1), for the summary dismissal of a proceeding on the grounds that no reasonable cause of action is disclosed by it, that it is frivolous or vexatious, and that it is an abuse of process.  Alternatively, under a prayer for “[s]uch further order as the Court [might] see fit” to make, a stay is sought pending the completion of a criminal prosecution.  The other respondents are content to submit to the orders of the Court.  For the reasons which follow, I ordered, on 3 June 1999, that the proceeding stand over until after the resolution of the prosecution.

  2. The background to the proceeding in which the motion is brought is an investigation by the New South Wales Police Department that led to the applicant Michael Chonka being charged at Hornsby Local Court with a number of offences of inciting acts of indecency towards children contrary to ss 61O, 61N and 62N of the Crimes Act 1900 (NSW), as well as other offences. The prosecution was initiated on 8 July 1997, after which the matter came before the Hornsby Local Court on numerous occasions. Finally, on 14 April 1998, Mr Chonka was committed for trial at the District Court at Sydney. He entered a plea of not guilty on 25 September 1998, and a trial date was fixed for 7 June 1999, the length of the trial being estimated at four weeks. The Crown case involves a substantial amount of evidence obtained by telephone interceptions, pursuant to warrants issued under the Telecommunications (Interception) Act 1979 (Cwth), to which I shall refer as “the Act”. 

  3. During the course of the criminal proceedings, and as a result of a contested ruling by a magistrate in respect of a subpoena to produce documents, Mr Chonka’s solicitor came into possession of some material relating to the applications for the warrants.  Mr Chonka alleges that this material reveals defects in those applications, and, more particularly, that the Detective Senior Constable who provided evidence in relation to them acted in bad faith.  The proceeding in this Court was then initiated very promptly on 5 June 1998.  Although Mr Chonka acted promptly at that stage, the subsequent conduct of the matter proceeded in a quite leisurely fashion.  It was not until 25 September 1998 that the further amended application which is now pursued was filed.  That document, unlike the original application, is not headed “APPLICATION FOR AN ORDER OF REVIEW”.  In substitution for that heading, it is headed “AMENDED APPLICATION [FOR DECLARATIONS RE INTERCEPTION WARRANTS]”.  It sets out, as grounds, allegations that “preconditions for issue of the warrants … did not exist at the time of the application”; that there were alleged deficiencies, alleged to have been “apparent before the third respondent” (the judge who issued the warrant); that the police officer in question, the fourth respondent, “in the affidavit which supported the application … deliberately misled the third respondent and misrepresented ‘dangers’ to ‘victims’ of the applicant”; that s 60 of the Act was not complied with; that the “warrants were obtained, as is apparent from the affidavit, for an ulterior, collateral and therefore unlawful purpose (of obtaining assistance in the detection of any future harassing and offensive telephone calls)”; that the last mentioned “unlawful purpose … was apparent on the face of the application (including the affidavit) to the third respondent”; and that statutory requirements had not been complied with in the identification of the telephone services the subject of the warrants.  The relief sought was the making of declaratory orders that the warrants were illegal and invalid, and that various steps taken in the investigation of the matter were also “illegal and invalid”; an order that the warrants be set aside; injunctions restraining the Commissioners of Police, Federal and State, who are, respectively, the first and second respondents, the investigating police officer, who is, as I have said, the fourth respondent, and the Director of Public Prosecutions of New South Wales from making any use of the information obtained pursuant to the warrants and interceptions; and an order that the second and fourth respondents pay to the applicant damages in the sum of $250,000-00 “for the invasion of his privacy constituted by the illegal tracing and intercepts”.  It is in relation to this application, as amended, that the second and fourth respondents have brought the motion the immediate subject of these reasons.

  4. The scheme of the Act revolves around s 7, subs (1) of which in terms forbids telephone interception, but, by subs (2), does not apply to various instances of interception, such as interception relating to installation or maintenance of equipment, or, crucially for present purposes, under a warrant.  Section 7(1) and (2) provide (inter alia):

    (1)      A person shall not:

    (a)       intercept;

    (b)       authorize, suffer or permit another person to intercept; or

    (c)do any act or thing that will enable him or her or another person to intercept;

    a communication passing over a telecommunications system.

    (2)       Subsection (1) does not apply to or in relation to:

    …

    (b)       the interception of a communication under a warrant… .”

    Provision is made in ss 39 et seq for applications to eligible judges or nominated members of the Administrative Appeals Tribunal for the issue of warrants, and s 42 prescribes certain matters which must be set out in an affidavit to accompany the application for a warrant.

  5. Where a warrant is utilized for the investigation of serious criminal activity, it is obvious that there are powerful reasons to insist on the security of the information provided to the eligible judge or nominated member of the Administrative Appeals Tribunal.  Section 6EA embraces, in a definition of “designated warrant information”, material of this kind.  The section provides:

    “A reference in this Act to designated warrant information is a reference to:

    (a)      information about any of the following:

    (i)        an application for a warrant;

    (ii)       the issue of a warrant;

    (iii)      the existence or non-existence of a warrant;

    (iv)      the expiry of a warrant; or

    (b)      any other information that is likely to enable the identification of:

    (i)        the telecommunications service to which a warrant relates; or

    (ii)a person specified in a warrant as a person using or likely to use the telecommunications service to which the warrant relates.”

    Section 63 then provides:

    “(1)     Subject to this Part, a person shall not, after the commencement of this Part:

    (a)communicate to another person, make use of, or make a record of; or

    (b)       give in evidence in a proceeding;

    lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).

    (2)      Subject to this Part, a person must not, after the commencement of this subsection:

    (a)communicate designated warrant information to another person; or

    (b)       make use of designated warrant information; or

    (c)       make a record of designated warrant information; or

    (d)give designated warrant information in evidence in a proceeding.”

    There are, of course, as is indicated by the opening words of s 63(1) and (2), provisions for the communication of information as required for purposes regarded by the statute as legitimate.  In particular, s 74 provides:

    “(1)A person may give lawfully obtained information (other than section 11A information) in evidence in an exempt proceeding.

    (2)For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities.

    (3)A person may give designated warrant information in evidence in an exempt proceeding.”

    What is an “exempt proceeding” is to be ascertained from s 5B, which lists a large number of such proceedings (lettered (a) to (m)), in particular (a) “a proceeding by way of a prosecution for a prescribed offence”, and (f) “any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State”.

  6. The respondents say s 63 would prevent them answering, in this Court, Mr Chonka’s allegations by adducing evidence concerning the application for the warrant, because that would be designated warrant information covered by s 63(2)(d).  The proceeding brought by Mr Chonka, it is asserted, is not an exempt proceeding within s 74 and s 5B.  There is no dispute that the only paragraph of s 5B which could possibly apply is paragraph (f).  According to the respondents’ argument, that paragraph cannot apply because the alleged misbehaviour or improper conduct was not “of an officer of the Commonwealth or of a State”.  The solicitor for Mr Chonka makes the retort that the police officer concerned was an officer of the State of New South Wales.  But the respondents then draw attention to s 6G(2) and (3), which provide:

    “(2)     A reference in this Act to an officer, in relation to a State or Territory, includes a reference to:

    (a)a person holding, or acting in , an office (including a judicial office) or appointment, or employed, under a law of the State or Territory; and

    (b)a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the State or Territory, or is an officer or employee of such an authority or body.

    (3)      Subsection (2) does not apply in relation to a reference to an officer of the Police Force of a State.”

    The respondents contend that subs (3) has the effect of removing a State police officer from the scope of s 5B(f).  I do not agree.

  7. In my opinion, the proper construction of s 6G(2) is that it includes a police officer of a State, who is an officer of an authority established for a public purpose (see s 5(1), definition of “authority” paragraph (d)).  I do not think subs (3) affects this conclusion.  Rather, its function is to ensure that the full breadth of the definition of an “officer”, when that word stands alone, is not dragged in whenever the Act refers, in specific terms, to “an officer of the Police Force of a State”.  An officer of a police force is an officer of a particular kind, and that expression does not include, for instance, a person holding judicial office who may be embraced by a simple reference to “an officer” by virtue of the terms of s 6G(2)(a).  It should be borne in mind that s 6G(2) is not an exhaustive definition; it is a statement that a reference to an officer includes a reference to certain persons, and subs (3) avoids that inclusion in the particular case to which it refers.  Various provisions of the Act illustrate why this was necessary, or at least desirable.  For example, s 5 contains a definition of “police disciplinary proceeding” in which there is a reference to “officers of a Police Force of a State”.  Plainly, it would not be convenient to apply s 6G(2) to give an expansive meaning to that expression in the definition of “police disciplinary proceeding”.  Similarly, s 5 contains an extensive definition of “permitted purpose”, paragraph (c)(iia) of which refers (inter alia) to a purpose connected with “the making … of a decision in relation to the appointment … of an officer … of [the Police Force of a State]”.  In the same definition, there is a contrast provided by paragraph (c)(i) which refers to a purpose connected with “an investigation of, or an enquiry into, alleged misbehaviour … of an officer of [a] State”, where the reference to an “officer” in relation to a State would clearly call for the application of s 6G(2), and not for removal from the operation of that provision by s 6G(3).

  8. But to reject the respondents’ argument in respect of the meaning of the expression “an officer of … a State” in s 5B(f) is not to put an end to the matter.  Section 5B(f) has been construed by a Full Court in Kizon v Palmer (1997) 142 ALR 488. Lindgren J (with whom Jenkinson and Kiefel JJ agreed) said (at 509):

    “In my view, s 5B(f)’s … reference to a proceeding relating to alleged misbehaviour, or alleged improper conduct, of an officer … of a State, is a reference to alleged misbehaviour or improper conduct of a kind commonly associated with disciplinary action against an employee or office-holder, such as dismissal, removal from office or other sanction.  The alleged non-disclosure by Drew in breach of the pleaded duty [of] uberrima fides incumbent upon him as applicant for a TI warrant, to make full and frank disclosure to the third respondent by disclosing that he had no reasonable or proper basis for believing that the applicant had been or was involved in the offence or offences referred to on the face of the warrant, belongs, in my opinion, to a different realm of discourse.”

    It will be obvious that the allegation of misconduct in the present case is very similar in nature to the allegation to which Lindgren J directed these remarks.  The later case Kizon v Palmer (No 2) (1998) 82 FCR 310 involved the same proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cwth), in which a warrant was asserted to be unlawful and void, as were involved in the earlier Kizon v Palmer case. The appeal was against an order setting aside a subpoena for the production of the affidavits that had supported the issue of the warrant. Northrop and Branson JJ, in their joint judgment, referred with approval (at 318, 322) to the earlier decision holding the proceeding in which the warrant was challenged not to be an exempt proceeding under s 5B(f). Their Honours also referred (at 321), without expressing any disagreement with it, to the view of the primary judge, Beaumont J, “that neither discovery, nor the subpoena process, may be used in this Court in judicial review proceedings to circumvent the manifest intent of s 63(2) of the Act that designated warrant information is not to be disclosed other than in the course of prescribed criminal proceedings.” They affirmed (at 324) that “the purpose of s 63(2) … is not only the protection of privacy but is also the assistance of law enforcement.” The third member of the Court, French J, agreed with the reasons of Northrop and Branson JJ, but added some further reasons of his own. His Honour adverted (at 326) to the “particular caution [which] should be exercised by the Court” in respect of challenges to investigative processes related to pending criminal proceedings. He cited the remarks of Davies J in Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) ATC 4054 at 4059, and commented (ubi supra):

    “The same general principles should apply to orders for limited discovery, interrogatories and subpoenas in judicial review proceedings which are essentially collateral to the criminal process.  The risk of fragmentation of the processes of the criminal justice system and undue interference in the investigation of criminal offences indicates the need for a significant threshold before the Court accedes to the invocation of its coercive processes in challenges to decisions made in the course of investigations or which are otherwise collateral to criminal prosecutions.”

    (The importance of these remarks for the present case will become clearer when I turn to another aspect of the argument.)

  9. I am, of course, bound by the decisions of the Full Court in each of the Kizon v Palmer cases.  Whether or not this matter falls precisely within the decisions, there can be no doubt that it falls within the reasoning of Lindgren J.  The case pursued by the applicant is in no sense analogous to a disciplinary proceeding against the police officer concerned.  The present proceeding is not an exempt proceeding within s 5B(f).

  10. But Mr Chonka placed his reliance on s 76A, subs (2) of which provides:

    “A person may give designated warrant information in evidence in a proceeding by way of an application under section 107A.”

    His solicitor claimed that the present matter is such a proceeding.  Indeed, he said in argument:

    “The point at which I start is that we concede that … if we cannot convince your Honour that [section] 107A allows us to bring these proceedings then we are doomed in terms of this application.”

    He affirmed that the application depended on s 107A.

  11. Section 107A is the cardinal provision of Part XA of the Act, which is headed “Civil remedies”.  Section 107A, itself furnished with a further heading, reads as follows:

    “Civil remedies – unlawful interception or communication

    When section applies

    (1)       This section applies to an interception of a communication passing

    over a telecommunications system if the interception was in contravention of subsection 7(1).

    Aggrieved person

    (2)For the purposes of this section, a person is an aggrieved person if, and only if:

    (a) the person was a party to the communication; or

    (b) the communication was made on the person's behalf.

    Interception—civil court remedy

    (3)      If a person (in this subsection called the defendant):

    (a) so intercepted the communication; or

    (b) did an act or thing referred to in paragraph 7(1)(b) or (c) in relation to the interception;

    the Federal Court of Australia or a court of a State or Territory may, on the
    application of an aggrieved person, grant the aggrieved person remedial relief in respect of the interception by making such orders against the defendant as the court considers appropriate.

    Note:   Paragraphs 7(1)(b) and (c) deal with the authorisation or enabling of
               interception etc.

    Communication—civil court remedy

    (4)      If:

    (a) information was obtained by intercepting the communication; and

    (b) a person (in this subsection called the defendant) communicated the information to another person in contravention of section 63;

    the Federal Court of Australia or a court of a State or Territory may, on the
    application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.

    Interception—criminal court remedy

    (5) If a court convicts a person (in this subsection called the defendant) of
    an offence against subsection 7(1) constituted by:

    (a) the interception; or

    (b) the doing of an act or thing referred to in paragraph 7(1)(b) or (c) in relation to the interception;

    the court may, on the application of an aggrieved person, grant the aggrieved
    person remedial relief in respect of the interception by making such orders against the defendant as the court considers appropriate.

    Note:   Paragraphs 7(1)(b) and (c) deal with the authorisation or enabling of
               interception etc.

    Communication—criminal court remedy

    (6) If:
               (a) information was obtained by intercepting the communication; and

    (b) the information was communicated to a person in contravention of section 63; and

    (c) a court convicts a person (in this subsection called the defendant) of an offence against section 63 constituted by the communication of the information;

    the court may, on the application of an aggrieved person, grant the aggrieved
    person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.

    Orders

    (7) Without limiting the orders that may be made under this section against a
    person (in this subsection called the defendant) in respect of a particular interception or a particular communication of information, a court may make an order of one or more of the following kinds:

    (a)an order declaring the interception or communication, as the case requires, to have been unlawful;

    (b) an order that the defendant pay to the aggrieved person such damages as the court considers appropriate;

    (c) an order in the nature of an injunction (including a mandatory injunction);

    (d) an order that the defendant pay to the aggrieved person an amount not exceeding the amount that, in the opinion of the court, represents the total gross income derived by the defendant as a result of the interception or communication, as the case requires.

    Terms etc. of orders

    (8) Without limiting the orders that may be made by a court under this section, an order may:

    (a) include such provisions as the court considers necessary for the     purposes of the order; and

    (b) be made either unconditionally or subject to such terms and conditions as the court determines.

    Injunctive relief—variation etc.

    (9) A court may revoke or vary an order in the nature of an injunction made by the court under this section.

    Punitive damages

    (10) A reference in paragraph (7)(b) to damages includes a reference to damages in the nature of punitive damages.

    Minor irregularities in warrants etc.

    (11) Despite subsection (1) of this section, this section does not apply to an
    interception that contravenes subsection 7(1) only because of a defect or
    irregularity (other than a substantial defect or irregularity):

    (a) in, or in connection with the issue of, a document purporting to be a warrant; or

    (b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.”

  1. The first thing to observe about s 107A is that it does not apply to telephone interceptions generally, but only “if the interception was in contravention of subsection 7(1)”. Section 7(1) does not apply, as a result of the express provision of s 7(2)(b), to “the interception of a communication under a warrant”. So s 107A is not intended to replace the procedure under the Administrative Decisions (Judicial Review) Act 1977, which was held to be available in Kizon v Palmer (No 2) at 323. Where there is a warrant, an application may be made to set it aside under s 16(1)(a) of that Act, which confers a discretion as to the date from which the setting aside of the warrant shall operate: Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 at 258-259; and see Ousley v The Queen (1997) 71 ALJR 1548 at 1556 (per Gaudron J), 1578, 1581 (per Gummow J). Section 107A is concerned with such a matter only (as subs (11) makes clear) where there is so substantial a defect or irregularity in the warrant, or in connection with its issue or execution, that it can be said the interception which took place was not “under a warrant”. A comparison with s 75, subs (2) of which uses language identical to that in subs (11) of s 107A, shows that the draftsman considered a case of the kind referred to in subs (11) to be a case of an interception “in contravention of subs (7)(1)” because it was only “purportedly under a warrant”. Section 75 also shows that, even in such a case – much less in a case where the defect leaves the warrant itself intact, at least unless it is set aside by court order – the defect will not necessarily prevent the adducing of evidence of the intercepted communication in the discretion of a court hearing a criminal prosecution.

  2. That subs (11) is not a reason to construe s 107A as broadly concerned with attacks on actual warrants - as distinct from a subsection clarifying the reach of the section and of s 7(1) to cases of defects attending the issue or execution of a warrant sufficient to enable it to be described as only a purported warrant - is also confirmed by a comparison between subs (11) and s 6EA, which has been set out above.  The range of matters covered by s 6EA is not confined to those concerned with the issue of the warrant, or its execution, which is really an aspect of its issue; s 6EA is concerned also with “information about … an application for a warrant”.  It is, in my opinion, very significant that the draftsman who used those words in s 6EA did not reflect them in s 107A(11), or indeed in s 75.  The reason seems plainly to be that it would have been inappropriate to do so.  A defect relating to the issue or execution of the warrant might be so serious as to destroy its validity; and a person who issued such a document, so as to “authorize … another person to intercept … a communication” within the meaning of s 7(1), and a person who acted upon such a document so as to intercept such a communication or do one of the other things mentioned in s 7(1), might well have been considered by the legislature to deserve to incur the penalty of liability to damages, including punitive damages, for which s 107A provides.  But a defect in the application might have been quite undiscoverable by any of the persons acting upon a warrant, or indeed by the judge or member of the Administrative Appeals Tribunal who issued it.  It is not to be thought that Parliament intended such liabilities to be incurred by persons who acted on documents the issue and execution of which appeared to be quite regular.  In my opinion, s 107A should be construed bearing in mind that its first subsection confines it to contraventions of s 7(1), and that subs (11) accepts as involving a contravention of s 7(1) only a very limited category of purported warrants, not including warrants questioned only because of some allegation relating to the application for the warrant, but unrelated to the warrant itself.

  3. The restricted scope of the remedy provided by s 107A is also indicated if attention is paid to the identification of the persons made liable by subss (3) and (4).  The person referred to as “the defendant” in subs (3) is a person who has contravened s 7(1), either by intercepting a communication, or by authorizing or enabling the interception.  Applying subs (3) to the present case, neither the Director of Public Prosecutions of New South Wales nor the investigating police officer could fall within this language.  Section 107A(3) says nothing with respect to them.  Specially designated officers of the Australian Federal Police did the intercepting, being enabled to do so by technicians, and a judge authorized their actions by the warrant.  Turning to the other subsection which identifies a defendant, subs (4) refers to a person who communicates information to another person in contravention of s 63, where the information has been obtained by an interception in contravention of s 7(1).  Again, this could have no application to the investigating officer or the Director of Public Prosecutions who are not communicators of the information, but recipients of it; and, in due course, will communicate it, not “to another person”, but to the court hearing the prosecution.  That the Court is not “another person” was expressly affirmed in Kizon v Palmer at 505-506. It is noteworthy that, although subs (4) makes reference to s 63, it singles out, from that section’s prohibitions, communication to another person, and says nothing of making use of the information, making a record of it, or giving it in evidence in a proceeding, all of which are activities specified in s 63.

  4. Should there nevertheless be any doubt as to the scope of s 107A, reference to the Explanatory Memorandum circulated by the authority of the then Attorney-General and the then Minister for Communications and the Arts, when the Bill which introduced the section into the Act was before the Senate, seems to me to confirm the construction I have put on the legislation.  The provision is described as one “to promote privacy” and as “creat[ing] new civil remedies for unlawful interceptions or unlawful communication of information derived from an interception”.  There is nothing to suggest any contemplation by the legislature of a case such as the present, or that proceedings under s 107A would provide an alternative means of attack on a warrant, of the same nature as judicial review or a voir dire hearing during a criminal trial, in order to impugn evidence obtained under the warrant that will be sought to be adduced in a prosecution for an offence.  The applicant’s reading of s 107A would see in it, not a new civil remedy, but an old remedy refurbished.

  5. It will be apparent that the main thrust of Mr Chonka’s allegations is concerned, not with the issue or execution of the warrant, but with the conduct of a police officer in applying for it, and with the contents of the application he made.  These are not matters to which s 107A is directed. 

  6. Summary dismissal is, however, a measure reserved only for cases in which there is no prospect at all that the applicant may succeed.  Although what the solicitor for the applicant himself called “the main question” is bound, in my opinion, to be answered against him, it cannot be said there is no possibility that he may not have some success on some other question.  Once the criminal trial is over, it is likely that the embargo on the giving of evidence concerning designated warrant information imposed by s 63 will cease to operate because the evidence will have been made known to all parties in the course of the prosecution:  Kizon v Palmer at 509-510; Kizon v Palmer (No 2) at 313.

  7. Therefore it is necessary to consider the alternative question, whether the applicant’s proceeding should be stayed pending the completion of the criminal prosecution.  In Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 187 the Full Court of the Federal Court (Beaumont, Ryan and Lindgren JJ) said:

    “The principle is well-established that criminal proceedings should not be fragmented by other courts’ entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal trial … .  This principle has been applied on many occasions by this Court and by State Supreme Courts.”

    Their Honours went on to refer to “the public interest in the expeditious resolution of accusations of crime”, and to express agreement (at 187-188) with the statement of Fox J in Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501:

    “[H]is Honour determined that he should not exercise the discretionary power to quash the order for committal …  In that conclusion he was in my opinion clearly right.  Against the interest of the appellant in the result of the committal proceeding … according to law must be weighed the public interest in the expeditious resolution of accusations of crime.  The longer such an accusation remains unresolved the greater the risk of serious harm to the community.  Those risks are multifarious:  the fading of witnesses’ [I have corrected an obvious printing error] recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common.  Those considerations of public interest are of great weight and in my opinion constitute a principal justification of the conclusion which was stated by the Full Court of this Court in Lamb v Moss (1983) 49 ALR 533 at 564:

    ‘The power to make an order of review under the Act in respect of committal proceedings should be exercised only in most exceptional circumstances, especially in respect of a decision in the course of proceedings.’”

    Their Honours also expressed the view (at 204 et seq) that “allegations of bad faith and impropriety” in connection with an application for a warrant could be investigated at the criminal trial where, if they were made out, they would give rise to a discretion to exclude evidence obtained under the warrant.  But, their Honours said, any attempt to investigate those questions in this Court “would necessarily involve considerable difficulty and delay in the commencement of the trial in the County Court.  This would contradict the important public interest in the expeditious resolution of criminal charges.”  As to that, the joint judgment makes reference again (at 213) to the “general policy that civil courts should not fragment criminal trials where that would delay the application of the criminal process”.  This decision has been repeatedly followed.  In Lord v Commissioner of the Australian Federal Police (1997) 47 ALD 301 at 317, Lindgren J referred to it as authority for the proposition that “this Court will intervene in the criminal process only in exceptional circumstances”.

  8. In Kizon v Palmer at 519, it was stated:

    “Conformably with what a Full Court of this court said in Flanagan v Commissioner of Australian Federal Police …, a challenge to a warrant directed to the admissibility of evidence in a trial should ordinarily be brought as part of the trial in order to avoid ‘fragmentation’ of the trial.”

    This passage was cited in Kizon v Palmer (No 2) at 313. See also Johnson v Holmes (unreported, Full Federal Court, Wilcox, Tamberlin and Merkel JJ, 18 November 1998).

  9. But Mr Chonka’s solicitor referred me to a passage in Ousley v The Queen (at 1565-1566), where McHugh J was critical of the disruption and delay caused to hearings of criminal cases by collateral attacks on warrants made in the course of a trial. However, his Honour, in the same passage, referred to “[t]he policy of avoiding fragmentation” as applicable to challenges to warrants except “where the facts are few and simple and the point is one of law”. None of the other judges in Ousley expressed any disagreement with the views stated in Flanagan and the other decisions to which I have referred. Indeed, Kirby J, in his dissenting judgment, said (at 1591):

    “This Court has regularly expressed its opposition to the fragmentation of criminal trials.”

    He cited a number of authorities in support of that proposition, and then added a reference to the decision of the Full Federal Court in Flanagan.  However desirable it might be to shorten criminal hearings by heeding and acting upon the remarks of McHugh J, there would be a difficulty in their practical implementation with respect to telephone interception warrants, because the legislature has chosen to place a specific embargo on evidence revealing designated warrant information outside the confines of the trial itself.

  10. What McHugh J called the “policy of avoiding fragmentation” applies peculiarly strongly in the present case.  The matters alleged against Mr Chonka involved a number of young children.  The fragility of children’s memories would be likely to wreak havoc on a full and fair hearing at the trial if further delays were tolerated.  Other considerations mentioned by Fox J in the passage cited from Seymour are applicable.  Accordingly, I reached the conclusion that the proceedings in this Court should be stood over until after the resolution of the criminal proceedings.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:            9 June 1999

Solicitor for the Applicant: Mr D Knaggs
Counsel for the Second and Fourth Respondents: Mr Dean Jordan instructed by the Director of Public Prosecutions (NSW)
Dates of Hearing: 20 April, 14 May 1999
Date of Judgment: 9 June 1999
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Cases Citing This Decision

3

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 549
Chonka v Palmer [2004] FCA 1560
Chief Executive Officer of Customs v Jiang [2001] FCA 145