Coco v Shaw

[1991] HCATrans 156

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B13 of 1991

B e t w e e n -

SANTO ANTONIO COCO

Applicant

and

JOHN ROBERT MUHLDORFF SHAW

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

GAUDRON J

Coco 1 26/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 1991, AT 3.18 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR H.B. FRASER, for the

applicant. (instructed by Gilshenan & Luton)

MR M.S. WEINBERG, QC:  May it please the Court, I appear

together with my learned friends,

MR K.C. FLEMING, QC and MR P.J. FLANAGAN, on behalf

of the respondent. (instructed by the Commonwealth

Director of Public Prosecutions.

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honour, may I hand to the Court copies of

an outline of submissions, together with the

materials to which I will refer the Court. They

are the statutes in question and three cases to

which I wish to refer.

BRENNAN J:  Mr Jackson, your outline of argument does not

appear to address the question as to whether a

grant of special leave should be made in a case which involves essentially the admissibility of

evidence in a committal proceeding that is part

heard.

MR JACKSON:  Your Honour, what I was going to say about

that - it is covered a little by the first

paragraph of it. Your Honour, the first paragraph

is directed, in effect, to a number of matters

which I propose to develop which seem to concern

the Full Court, including the matter that

Your Honour raised, and may I move, perhaps,

immediately to that question?

Your Honours, the judgments in the Full Court

were concerned to a considerable extent with the

desirability of intervening in committal

proceedings on a question which, it is true to say,

can be described in one sense as being a question

of the admissibility of evidence.	Your Honours, I
will come back to that in just a moment. the Full Court was also concerned with was the But what	potential application to that question of the test
in Bunning v Cross.
Now, Your Honours, what that leaves out of account, in our submission, is this, that the case
is one, not where one is talking about, for
example, a common law rule in relation to evidence
but, rather, a quite different case and that is a
case where there is an absolute statutory
prohibition on the giving of the evidence in
question. Now, Your Honours, in the circumstances
in which the prohibition appears - and I will come to that in a moment - they are circumstances where
the citizen has the benefit of the arrangements for privacy, if I can put it that way, conferred by the

Coco 2 26/6/91

Act and one of those is that material which has

been recorded in circumstances not authorized by

the Act is material which cannot be given in

evidence.

Now, Your Honours, those provisions exist, in

our submission, for the benefit of the citizen, and

the citizen is entitled to have that prohibition

enforced and, Your Honours, enforced by the courts,

in particular by the supreme court exercising its

powers to say, "There is a prohibition against the

giving of this evidence. That prohibition will be

enforced by this court where it is apparent that it

is sought to go beyond or to contravene the terms

of the enactment."

Your Honours, it is right, no doubt, to say

that the forms of relief which are sought from the

supreme court are forms of relief which have an

effect in relation to the committal proceedings and

it is right to say that in some respects, at least

theoretically, there is a discretion to refuse the

relief. But if it became apparent, in our

submission, that the prohibition of the enactment

was being or about to be contravened, then there
would really be, as a practical matter, no

discretion in the supreme court to decline to grant

the relief. Your Honours, that would be our

submission in relation to it. It takes it out

of - - -

BRENNAN J: Relief of what nature, Mr Jackson?

MR JACKSON:  Your Honour, first of all, to take the mildest

form - if I can put ·it that way - a declaration

that to proceed along the course that was proposed

would be a contravention of the enactment.

Secondly, if necessary, an injunction to restrain

those involved from taking that course. Now,

Your Honours, that is - the simplest forms of

relief, if I can put it that way.

BRENNAN J: That would have to meet an argument, would it

not, that the jurisdiction to determine

admissibility of evidence is vested exclusively for

this purpose in the magistrates court?

MR JACKSON: . Lam sorry, I did not quite catch what

Your Honour said then.

BRENNAN J: That the jurisdiction to determine admissibility

on committal is a jurisdiction which is vested

exclusively in the magistrates court.

MR JACKSON:  I am sorry, Your Honour is putting that to me?

BRENNAN J: Yes.

Coco 3 26/6/91

MR JACKSON:  Your Honour, in our submission, the answer to

that is no. There have been a number of cases over

quite some period where the possibility of there
being a different view taken in relation to the
course of proceedings - including, with respect,
the question of whether evidence is or is not

admissible by a magistrate in committal proceedings

- has been the subject of consideration by a

superior court. There are cases, Your Honour - I

am sorry, I just do not have them to hand - where

what has been recognized is that whilst it might be

a relatively rare occasion that the supreme court,

for example, would grant a declaration in relation

to the conduct of proceedings before a magistrate

in relation to committal proceedings - Sankey v

Whitlam, for example - yet the power to do so

exists.

Now, what that does mean, Your Honours, is that there is power in the supreme court as well as

in the magistrate to determine questions of

admissibility. Once the existence of the powers is

recognized then, in our submission, it becomes a

question whether the power should be exercised and

that, itself, depends on the nature of the right in

question.

Perhaps I should have taken Your Honours to

those cases but there certainly are cases - Sankey

v Whitlam is - - -

BRENNAN J: There are cases where the questions have arisen,

such as Love v Attorney-General, where attacks have

been made, for examp_le, upon the validity of the
warrant that has been issued by a judge for the
purposes of phone taps and incidentally then that

determines the question of admissibility of the

evidence illegally obtained before the committal

proceedings. But here the substance of the

argument seems to be that this evidence is not

admissible and, for my part, at the moment I do not

understand how it is that the supreme court

acquires any jurisdiction to determine, as an

exercise of original jurisdiction, the question of

admissibility of evidence in committal proceedings.

MR JACKSON:  Your Honour, could I put it this way:

Your Honour, if one talks about it as being simply

a question of admissibility of evidence, then that,

with respect, does put on it a slight air or give

to it an air or tone which does not quite reflect

the nature of the question. Your Honours, it is

true to say, in one sense, that it is a question of
admissibility of evidence but it is not a question
of saying, "Is the evidence inadmissible because
of, for example, questions of relevance, questions

of hearsay, or questions along those lines?" What

Coco 4 26/6/91

is being done is that there is an attempt being

made to infringe what, we would submit, is a right

and that is a right conferred by a statute that

information of this kind may not be given in
evidence.

Now, the person whose conversations have been the subject of recording, which is unauthorized by the statute, is in a position to say, we would

submit, "I am a person who is entitled to the

protection of the statute. The statutory

protection is one that enables me to say this

information may not be given in evidence." Why,

Your Honours, we would ask hypothetically, may not

such a person say, "In respect of this right I seek

the intervention of the supreme court."? Now,

Your Honours, the supreme court, prima facie, would

have jurisdiction unless the jurisdiction is in

some way taken away.

Your Honours, there is not, in our submission,

anything that takes away the jurisdiction of the
court to grant such relief. Whether it be
exercised may be another question. But, in our
submission, the jurisdiction is not taken away

merely by the fact that another tribunal also has a

power to decide the question.

Your Honours, could I also say that if that is

a matter which Your Honours regard as a matter of

importance, that, in itself, we would submit, is an

important question and gives the case an

importance. But, Your Honours, could I move on

from -

TOOHEY J: Just before you leave that, Mr Jackson.

Accepting the force of what you say, since we are concerned with an application for special leave,

the question still arises as to whether the Court

should intervene at this stage.	Now, if it does
not, what is the consequence?

MR JACKSON: Well, if it does not, Your Honour, then the

position which will obtain will be that the case

will come before the magistrate in any event, one

would think. It is currently adjourned, but it
will come before the magistrate. The magistrate
will then have to decide the question whether the

material relied on is material in respect of which

there has been a contravention of the relevant

kind.

TOOHEY J:  And if he decides that wrongly?

MR JACKSON: Well, Your Honour, I suppose there may be a

question of the extent to which there is some

estoppel arising from the proceedings in the

Coco 26/6/91

supreme court, the subject of the present

application, but subject to that one would expect

that we would have the choice of allowing the

matter to go to trial with the information having

come out, having, one would think, become public.

We would also have the choice, perhaps, of asking

the magistrate to defer the actual admission of the

material even though he had made a ruling that it

might be admitted, or admit it for the moment under

some conditions that would prevent it being made

public and try again in the supreme court. What

that might mean, in fact, would be that

the proceedings in the supreme court, because of

the decision of the Full Court, would have a pro

forma aspect to them and Your Honours might, I am

sorry to say, find us back again.

TOOHEY J: Well, that may be but is your client likely to be

any worse off? I mean, apart from the natural

desire, perhaps, not to have the material aired?

MR JACKSON:  Your Honour, if one got to the point - and

there would be no guarantee that if a magistrate

were to decide the issue against us that the

magistrate would then provide any protection in

order for us to seek - while we sought to challenge

his decision. But we would then be in a position,

Your Honour, that the information that is the

subject of the tapes and other recordings is

information which would have become public. That

must have the effect, Your Honour, with respect,

that it having become public, any discretionary

relief we might seek would be rather more difficult

to get because the horse would have bolted.

BRENNAN J:  Mr Jackson, let us assume that the evidence was

not admitted by the magistrate and that the

magistrate declined to commit and that it

was followed by the presentation of an ex officio

indictment. What would be the position then?

MR JACKSON:  The position then would be, Your Honour, that

it would a matter for the trial judge to rule on

the question of admissibility. Your Honour, that

would be part of the trial. I suppose there is the

possibility that one might have the question

reserved but that does not seem to be able to be

done,- Your Honour, until the matter is concluded,

in any event. So, it would really become the

subject of an appeal.

If it had been wrongly admitted then,

presumably, one would be then in a position,

Your Honour, where the conviction would be set

aside because one would be talking about a
conviction ex hypothesi, and I suppose the

proceedings would start again.

Coco 6 26/6/91

BRENNAN J: Depending what the remainder of the evidence is.

MR JACKSON:  Of course, Your Honour, yes.

BRENNAN J: It seems to me that there is a lot to be said

for allowing the criminal proceedings to take their

course if what is to happen after this litigation

is over is filled with the prospect of confusion in

the light of this litigation. One does not know

whether the magistrate will admit it or not; one does not know whether the judge will admit it or

not.

MR JACKSON:  Your Honour, could I put it this way: the

position, in our submission, is this, that we would

submit, as matters stand, it is apparent - Your

Honours, I need to go a little further to make the

submission out. As matters stand, it is apparent,

we would submit, that the material in question is

material which cannot be given in evidence. Now, Your Honours, if that is the case the appropriate

thing, in our submission, would be for that issue

to be determined finally. If it is determined

finally then the position which obtains is that the

committal, and maybe the trial, would go ahead,

truncated, of course, to the extent to which this

evidence has been removed. As a practical matter,

Your Honours, what that means is that the court

would have decided that the evidence could not be

admitted and the case would go ahead.

As matters stand, one has the situation where

the judgment of the Full. Court appears, for

example, to suggest that Bunning v Cross notions

can be applied to it; that in some way there is a
discretion to admit it or not to admit it, a

statutory prohibition against it. There is also,

Your Honours, the view taken in the judgment of the

Full Court - and in a sense it is obiter but it is part of the same case - there is the view taken by the Full Court that the magistrate does not really

have a very active function in relation to the

admission or rejection of evidence in committal

proceedings. So that one is left with the

situation where the magistrate would, in the light

of those things, be likely to be applying

principles which are, with respect, suspect, at

least so far as the Bunning v Cross notion is

concerned, and would not be able to apply

potentially the correct principles and we may well

be in the situation where the evidence is given in

circumstances where it should not have been given

and, Your Honours, it would be very difficult then

to retrieve the situation.

BRENNAN J: Mr Jackson, I think, perhaps, for.the purpose of

progressing this argument, we might indicate to you

Coco 7 26/6/91

that we would invite you to say whatever further

you wish to say on this question of the procedure

that has been adopted and the appropriateness of

granting special leave in the light of the matters that have been raised with you from the bench, but

we would not invite you to develop further the

argument on the merits of the case that you wish to

present, though you could have leave, of course, to

do that in reply if need be after hearing

Mr Weinberg.

MR JACKSON:  Yes. Your Honours, I will not really go much

beyond what I have said already, but may I just say

these things: could I take Your Honours for a

moment to the Invasion of Privacy Act itself?

Your Honours will see the section which imposes the

prohibition is section 46(1) which is at the top of

the page numbered 22.	Now, Your Honours will see
that it applies:

Where a private conversation has come to the

knowledge of a person as a result, direct or

indirect, of the use of a listening device

used in contravention of section 43 of this

Act, evidence of that conversation may not be

given by that person in any civil or criminal

proceedings.

Now, Your Honours, that obviously applies, of

course, both to committal proceedings and to

criminal trials and to any civil proceedings and,

Your Honours, it is an absolute prohibition.

Your Honours, if one goes back to the earlier

provisions, and in particular to section 43, what

Your Honours will see in subsection (1) is that:

A person is guilty of an offence against this

Act if he uses a listening device to

overhear - - -

et cetera, and that prohibition itself is framed in

absolute terms, but "subject to subsection (2)".

Subsection (2) and, in particular subsection (2)(c)

sets out very limited circumstances in which that

may be done. And then Your Honours will see in

subsection (4) the manner in which the approval is

to be granted by -

a judge of the Supreme Court.

Now, Your Honours, I have referred to those provisions because what they do demonstrate, in our

submission, is the fact that the prohibition, we

would submit, is, prima facie, a prohibition for

the benefit of the person whose priv~te

conversation has been recorded unlawfully.

Coco 26/6/91

Your Honours, what we would submit is that

that person has the right to say, "There is the

absolute prohibition. You propose to give the

evidence. You propose to infringe the right" and,

Your Honours, there is no reason, we would submit,

why the superior courts should not enforce that right at the time when the proposal to infringe

arises. That is all I propose to say on that

topic.

BRENNAN J: Yes. Mr Weinberg?

MR WEINBERG:  If Your Honour pleases, might we hand to the

Court copies of our outline of submissions. The

Court will note that paragraphs 1 through to 11
deal with the point that was raised by Your Honour

Mr Justice Brennan; paragraphs 12 and 13 deal with

other matters.

BRENNAN J: Yes.

MR WEINBERG: If the Court pleases. This Court has spoken

on four occasions we have been able to locate as to

the undesirability of fragmenting the criminal

justice process by permitting appellate collateral

review of decisions relating to admissibility of

evidence during the course of committal

proceedings. Those occasions are to be found in

Sankey v Whitlam, 142 CLR 1 at pages 25 to 26, in

the judgment of His Honour Mr Justice Gibbs, as he

then was; Reg v Iorlano (1983) 151 CLR 678; Clyne

v Director of Public Prosecutions, 154 CLR 640 at

pages 643 and 660; and, .most recently and most

decisively, in Yates v Wilson, 168 CLR 338. We

have those cases for the Court if we could hand to

the Court.

On each occasion, the Court has expressed, in

our submission in strong terms, the undesirability

of intermediate appellate courts, whether it be the supreme court or the Federal Court pursuant to	AD(JR) proceedings, intervening in the conduct of	committal hearings by giving rulings which affect
the conduct of those committal hearings. In two
cases, the point was not even restricted to
questions of admissibility of evidence. The
argument raised in Clyne's case and in Yates case
was that the charge as formulated did not disclose
an offence known to the law. If I could take the Court to the relevant passages, I might start with Yates case which is the most recent of the four.

In Yates v Wilson, which is in the material

before the Court, an attempt was made to review a
decision of a magistrate who had committed the

applicant for trial on certain charges. The issue raised was whether any offence against section 29A

Coco 9 26/6/91

of the Commonwealth Crimes Act was disclosed by the

agreed facts. In a very short but powerful

judgment the court said, at page 339:

It would require an exceptional case to

warrant the grant of special leave to appeal

in relation to a review by the Federal Court

of a magistrate's decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a

consideration that it requires no elaboration

by us. It is a factor which should inhibit

the Federal Court from exercising jurisdiction

under the Administrative Decisions (Judicial

Review) Act 1977 and as well inhibit this

Court from granting special leave to appeal.

That decision has had a salutary effect in the

context of attempts to review decisions made by
magistrates under the provisions of the AD(JR) in

the Federal Court, to the point where now the

practice is to seek to strike those out as

vexatious and rely upon Yates v Wilson.

Regrettably, that salutary effect has not yet

carried through to decisions by State supreme

courts entertaining applications for review of

decisions during the course of committal hearings.

It is our - - -

GAUDRON J:	Is that suggesting that this matter should have gone by way of AD(JR)?
MR WEINBERG:	Your Honour, I do not want to put further

ideas into my friends heads, but there are so many
opportunities for collateral review of Commonwealth
offences and Commonwealth prosecutions that we find

ourselves frequently in the Federal Court, or at

least we did until Yates v Wilson.

GAUDRON J:  I was suggesting there might be an inconsistency

between that and the course taken?

MR WEINBERG:  Your Honours, we would rather approach this

matter on a merits basis. We would rather that the

Court simply consider that there is no distinction,

in principle, between the approach to be adopted,

in our submission, by this Court when determining

whether to grant special leave in a case which has

come by way of AD(JR) through the Federal Court, or

in a case which has come by way of declaration

through the supreme court. In our submission, the

principles to be adopted by this Court in

determining whether to grant special leave or not

ought to be similar and, in our submission, they have been very clearly stated in Yates v Wilson.

Coco 10 26/6/91

One will also find a similarly strong

statement in Clyne v Director of Public

Prosecutions, again a very brief statement, in the

judgment of His Honour Chief Justice Gibbs at

page 643. Clyne also raised the fundamental point that the regulation under which he was charged was

not a valid regulation. One might have thought a

decisive point; one that could clear up the

litigation entirely; one that was, on its face -

if anything was on its face suitable to be

determined by an appellate court collaterally - a

point that would meet that description. Yet the

court said, at page 643:

This Court has in a number of cases said

that it is wrong that the ordinary course of

proceedings in- the criminal courts should be

interrupted by applications for declarations

as to questions that will or may arise in the

criminal proceedings.

Crouch, Sankey v Whitlam and Iorlano are referred

to.

In the present case it would have been open to

the defendants to apply to stay the

proceedings as vexatious or as an abuse of the

process of the Court.

That, in our submission, is a very strong comment

by the learned Chief Justice, that to even attempt

to collaterally review, in that way, it would have

been open to the defendants to seek to terminate

the proceedings in that way. On the particular

facts of the case, however, the respondent elected

to demur, in effect wishing to have the matter

determined by the appellate court. That might be

what could be regarded as an exceptional or most exceptional circumstance, but, in our respectful

submission, this case does not come close to an

exceptional or most exceptional circumstance.

At page 660, His Honour Mr Justice Dawson

added, at the very end of His Honour's judgment:

I should only add that this court has

recently expressed its view that it is

undesirable to interrupt criminal proceedings

by applications made to it in the ordinary

course of those proceedings: see Reg.

v Iorlano. In these proceedings, however, the

defendants have raised the issue by way of
demurrer and, having heard argument upon both

sides, it is appropriate to grant relief.

His Honour, of course, dissented in that case.

Coco 11 26/6/91

The third case, and the third brief passage

that we wish to draw to the Court's attention is

Reg v Iorlano. I have given the Court the

citation. That was the case in which the Crown

sought collateral review and, may I say, that the
submissions that I make about the undesirability of

fragmenting the criminal justice system are not

directed against accused persons engaging in that

enterprise solely, but apply with equal force to

the Crown and, in this case, the Crown sought to do

just that. It was unhappy with a ruling given

during the course of a trial by a trial judge,

sought an adjournment and sought to have the matter

decided by this Court. A pure question of

admissibility of evidence.

What the Court did was to give a brief

judgment, which appears at page 680, indicating

that the Crown was wrong in its basic contention on

the merits but going on to say, at the bottom of

page 680:

Since the construction of the Act for

which the Attorney-General contends is not

correct, the applications must fail. It is,

therefore, unnecessary to consider whether the

Attorney-General could have surmounted the

other difficulties that may stand in his way.

However, it seems necessary to repeat that it

is highly undesirable to interrupt the

ordinary course of criminal proceedings by

applications for leave to appeal or

prerogative relief -for the purpose of

challenging rulings on questions of

admissibility of evidence. The fact that the

Court has expressed its conclusion on the
substantive question at issue in the present
case is not intended to encourage applications
of this kind. Both applications are

dismissed.

And, again, working backwards to Sankey v Whitlam,

Your Honours, we have not photocopied the whole

case it is only the passage which appears in the

judgment of His Honour Mr Justice Gibbs, at

pages 25 and 26, which is of importance so far as

we are concerned. In Sankey v Whitlam the matter
came before the Court, not by way of special leave
but by way of removal, so the Court did not have to
determine whether it was appropriate in that case

to grant special leave or not. But, at the bottom

of page 25, His Honour Mr Justice Gibbs said this:

In any case in which a declaration can be

and is sought on a question of evidence or

procedure, the circumstances must be most

exceptional to warrant the grant of relief.

Coco 12 26/6/91

The power to make declaratory orders has

proved to be a valuable addition to the

armoury of the law. The procedure involved is simple and free from technicalities; properly

used in an appropriate case the use of the

power enables the salient issue to be

determined with the least possible delay and

expense. But the procedure is open to abuse,

particularly in criminal cases, and if wrongly

used can cause the very evils it is designed

to avoid. Applications for declarations as to

the admissibility of evidence may in some
cases be made by an accused person for

purposes of delay, or by a prosecutor to

impose an additional burden on the accused,

but even when such an application is made

without any improper motive it is likely to be

dilatory in effect, to fragment the

proceedings and to detract from the efficiency

of the criminal process.

And then passing on a little bit, His Honour goes

on to say, about point 3 of the page:

The present case itself is another regrettable

example of the delay that can be caused by

departures from the normal course of

procedure. For these reasons I would

respectfully endorse the observations of

Jacobs P. (as he then was) in Shapowloff

v Dunn, that a court will be reluctant to

make declarations in a matter which impinges

directly upon the course of proceedings in a

criminal matte~. Once criminal proceedings

have begun they should be allowed to follow

their ordinary course unless it appears that

for some special reason it is necessary in the

interests of justice to make a declaratory

order.

And then, a little further on, His Honour says: Notwithstanding the importance of

refraining from interfering with the ordinary

course of committal proceedings I have formed

the opinion that we should proceed to dispose

most exceptional. In addition the very fact

of the questions raised by Mr. Sankey's claim.

that the questions have been argued in this

Court after the proceedings have already been long delayed is a cogent reason for putting

them finally to rest. In this respect the

attitude of an ultimate appellate court before

which questions of this kind have been argued

may necessarily be somewhat different from

Coco 13 26/6/91

that which would be taken by a court lower in
the judicial hierarchy.

And that last sentence, in our submission, is very important because, in our submission, it bears upon the question of whether special leave should be

granted or not. In Sankey v Whitlam there had been

full argument before the Court because of removal

and the Court took that into account as a factor

making it appropriate to decide the issue in
question. But the Court plainly warned

intermediate appellate courts that merely because a

trial judge has wrongly embarked upon a

consideration of a motion as, with respect,

His Honour Mr Justice Lee did in this case, and has

given an extensive ruling, that is no reason why

the intermediate appellate court should feel

constrained to do the same thing and compound the

error.

In our submission, there was no basis whatever

for Mr Justice Lee to entertain this motion.	The
Full Court unanimously found that there was no

basis for Mr Justice Lee to have entertained this

motion. The error made by Mr Justice Lee is plain

and obvious; it was exposed by the Full Court.

Mr Justice Lee considered what he was dealing with

was, in the classic sense, confidential information

and principles involving the action for breach of

confidence. Indeed, he concluded that that point

had been conceded by the respondent; that point

had not been conceded. Mr Justice Lee did not

perceive that a strong distinction was being drawn

between a private conversation and one which

involves the imparting of confidential information.

The Full Court correctly perceived that

distinction. The Full Court correctly ruled and

unanimously ruled and strongly ruled that

Mr Justice Lee should never have entertained the

motion in the first place.

We submit that there is nothing in this case

which takes it out of the character of cases
involving the admissibility of evidence, all of
which, if go adversely to the accused, involve a

risk of some degree of harm, indeed, irrevocable

harm. In the same way, if the Crown loses its key

evidence in a committal hearing it suffers what can

be regarded as irrevocable harm. That is no basis

upon which decisions should be taken by other

courts, civil courts, supreme courts, engaged in

collateral review of matters which, in our

submission, in one sense, constitutionally are

allocated to a magistrate. A magistrate in the

State of Queensland is the appropriate officer to

decide the question whether this evidence is

admissible or not. He is authorized to do that

Coco 14 26/6/91

pursuant to a combination of Queensland procedural

law and section 68 of the Commonwealth Judiciary

Act, and a supreme court judge, in our submission, save in the most exceptional circumstances, which these are not, has no business pre-empting that decision. This was not a case of appeal. This magistrate never even considered the matter; never

even gave a decision on the point.	The decision
was taken out of his hands.

My friend has put to the Court that there is confusion in the judgment of the Full Court about

Bunning v Cross and that the Full Court, in some

way, did not perceive that section 46 renders

evidence obtained in contravention of section 43

inadmissible.	The Full Court made no such error,
in our submission.	The references to Bunning v

Cross in the judgment of the Full Court are directed to another issue entirely, that is, the

question of whether, assuming there has been a
contravention "of section 43", there has
consequently been an unlawful entry, assuming
evidence maybe forthcoming to show that, and then
it might be possible to argue at some future stage

that the Bunning v Cross discretion should be

exercised. But if there is one case that this case

at present has nothing to do with, it is Bunning

v Cross, in our respectful submission.

There is nothing more that we can usefully add on that point, Your Honours. We submit that the

considerations are powerful - overwhelmingly

powerful - against this .Court granting special

leave to entertain what is, in essence, an

application to pre-empt or review, pre-emption of a

decision to exclude, or an attempt to exclude,

evidence in circumstances where that decision

should be taken by the committal court. If the

Court pleases, we have confined our submission to

that point at this stage.

BRENNAN J: If you have anything further to say with regard

to the other matters you - - -

MR WEINBERG:	On that point or on the other matters?
BRENNAN J:	On the other matters.
MR WEINBERG:	Yes, Your Honour, if the Court pleases, we do

indeed. Paragraph 12 makes this point, and we

submit it is a very important point. The questions

which my friend wishes to agitate, and he has

identified a number of them, and they are difficult

questions and they are interesting questions and,
considered in isolation in an appropriate case,

they might have been regarded as questions some of

Coco 15 26/6/91

which would raise suitable grounds for the grant of

special leave.

However, everything has changed in the light

of the enactment of the amendments to the

Australian Federal Police Act 1979 which came into

operation in February 1990. We have those

amendments for the Court, if we could hand copies

to the Court. We say that the issues my friend

wishes to agitate, which he says give rise to

special leave grounds, simply no longer exist so

far as the Australian Federal Police are concerned.

Their powers to obtain warrants and to use listening devices are now comprehensively set out

in a Code, contained within sections 12B to 12L of

the Australian Federal Police Act 1979 which, as I

said, came into operation in February 1990. Those

provisions now provide an exhaustive code for the

obtaining of warrants in order to use listening

devices in every State. The only persons that

would be affected by a decision of this Court, so

far as we are aware, on the pre-February 1990

position, would be this applicant and his

co-accused.	We are aware of no other persons who
might be affected by that decision.	An

ex-hypothesi position in other States remains exactly the same. The federal police are now governed by the Australian Federal Police Act, the

matter is codified, special leave should not be

granted on that basis as well.

The final matter that we raised in

paragraph 13 is, simply, that the decision of the

majority of the Full Court denying the applicant

relief is not attended with sufficient doubt to

warrant the grant of special leave. Those are our

submissions.

MR JACKSON:  Your Honours, may I say three things in

response to what has been said by my learned

friend.	The first concerns the amending Act to
which, as Your Honours will see, we have referred

in paragraph 2 of our outline of submission, and

whilst it is true to say there has been an

amendment which removes the issue for the future so

far as the Australian Federal Police is concerned,

exactly the same issue remains in respect of

section 43(2)(c)(i) of the Invasion of Privacy Act

in all other cases. So, the issue has not gone

away, it is just that the issue has lost its

interest so far as the Australian Federal Police

officers are concerned. The issue remains in all

other cases. Your Honours, that is the first

thing.

The second thing is that it was said that the

primary judge in some way went wrong, but what

Coco 16 26/6/91

Your Honours will see is, if Your Honours go to

page 24 of the record, what His Honour did was to

set out, in a manner which is absolutely

unexceptionable, in our submission, what were the

relevant principles to be applied in determining

whether to enter upon the consideration of the

question. I am sorry, Your Honours, it is on

page 26 I should have said, the number at the

bottom of the page. Now, it commences about

point 8 on the page and if Your Honours look

through that part of the page, the next one and

then to page 28, Your Honours will see there is

nothing in the slightest degree heterodox in

anything that His Honour has there said. And may I

refer, in particular, to page 27, paragraph 4,

where he recognized that it is in the exceptional

case that one deals with the question of:

the admissibility of evidence.

So, Your Honours, the principles, if I could say it

first, are set out by His Honour and correctly.

The second thing is, that he then proceeded to

consider the application of those principles to the

particular case. That appears, Your Honours,

commencing at page 28, after the recitation of the

principles and going on from there through to

page 29, about point 6 on the page. So that

Your Honours will see an application of the

principles to the particular case. The only thing

that it can be suggested is an error by His Honour

in the application of the principles, is in the

treatment of the recorded information as being akin

to confidential information in the, for example,

equitable sense.

But, Your Honours, what one sees from the

statute, if I could take Your Honours back to that

for just a moment, is that the legislature in

section 4 at page 3, defines: 

"private conversation:

and it says that it:

means any words spoken by one person to

_ another person in circumstances that indicate

that those persons desire the words to be

heard or listened to only by themselves or

that indicate -

et cetera, and I will not read out the rest of it

to Your Honours. Now, it is right to say,

Your Honours, that that goes beyond in some

respects and may be narrower in other respects,

than the concept of confidential information which

Coco 17 26/6/91

will be protected by equitable remedies under the

general law. However, the effect of the several

provisions of the Act, including section 4 and

section 46(1) to which I referred Your Honours

earlier, is that the legislature has declared that

that information will be at least akin to

confidential information because it provides two

things: one is that it is an offence to record the

information that way. The second is that the

information may not be given in civil or criminal

proceedings.

So that, Your Honours, for His Honour to say,

as he said, at page 28 about point 6:

He is also claiming a proprietary or similar

right in confidential information ..... in

addition to appropriate declaration ..... having

regard to s. 46 -

is not something that involves any error of any

application of principle of the particular case.

And, Your Honours, if one looks at the remainder of what His Honour said, it is clear, we would submit,

that he was applying correctly the principles. Why

then, Your Honours, was his decision set aside?

That is the matter in issue in the appeal.

BRENNAN J:  The chief, if not the only purpose of this

litigation, is to preclude the admission of

evidence in committal proceedings pending in the

Magistrates Court in Brisbane, in which the applicant stands charged with 11 offences against the laws of the Commonwealth. Those proceedings

stand adjourned and, as Mr Justice Ryan observed in

the Full Court of the Supreme Court of Queensland:

The effect of the orders made in the present

case is that the committal proceedings were

delayed for five months in the first instance,

and they have been delayed for a further eight

months as a consequence of the appeal to this

Court.

This Court has frequently stated that the

fragmenting of the criminal process is a powerful

consideration militating against a grant of special
leave to appeal against an order which has the

effect of fragmenting the criminal process. See,

for example, Yates v Wilson, (1989) 168 CLR 338 at

page 339. There is nothing which makes this case

exceptional so as to exclude the application of the

general principle. Accordingly, special leave will

be refused.

MR WEINBERG:  If the Court pleases, may we seek an order for

costs in this matter?

Coco 18 26/6/91

MR JACKSON: There is nothing I can say about that,

Your Honour.

BRENNAN J: Very well, it will be refused with costs.

MR JACKSON: If the Court pleases.

AT 4.08 PM THE MATTER WAS ADJOURNED SINE DIE

Coco 19 26/6/91