Evidence—Criminal—Listening devices—Authority to use—Judge empowered to authorize use of listening device—"ether power to authorize use included power to authorize entry on to premises to install device—Validity of authority—Invasion of Privacy Act 1971 (Q.), ss. 43, 46(1). Police—Listening devices—Offence under State law to use without obtaining authority—Federal police not required to obtain "licence or permission" under State law—"ether federal police enabled to use listening device without obtaining authority—Invasion of Privacy Act 1971 (Q.), ss. 43, 46(1)—Australian Federal Police Act 1979 (Cth), ss. 9, 12.
Orders
Appeal allowed.
Set aside the order of the Court of Appeal of Queensland and in lieu thereof order that the appeal to that Court be allowed, the appellant's conviction be quashed and a new trial be held.
Decisions
MASON CJ, BRENNAN, GAUDRON AND McHUGH JJ The facts of this matter have been set forth in the reasons for judgment prepared by Toohey J
2. The questions which arise for decision are:
(1) Did s.43(2)(c) of the Invasion of Privacy Act 1971 (Q.) ("the Queensland Act") confer authority on Carter J to authorize entry onto premises for the purposes of installing and maintaining listening devices in circumstances where that entry otherwise would have constituted an unlawful trespass? (2) If not, was the approval granted by Carter J for the use of listening devices wholly void? (3) If the approval was wholly void, did s.12 of the Australian Federal Police Act 1979 (Cth) ("the Federal Act") have the effect that the Australian Federal Police officers did not require approval from a Supreme Court judge before using a listening device?
3. If the approval was not wholly void, a number of other issues arise. However, as a result of the view we take on the validity of the approval as a whole, it is not necessary to address those issues.
4. It is convenient to consider these questions in the order in which we have stated them.
The authority conferred by s.43(2)(c) of the Queensland Act
5. According to its long title, the Queensland Act is an Act to make provision for, among other things:
"regulating the Use of Listening Devices".
Section 43(1) makes it an offence to use "a listening device to overhear, record, monitor or listen to a private conversation". Section 43(2) provides that s.43(1) does not apply in various situations described in that sub-section. In particular, s.43(2)(c) provides that s.43(1) shall not apply:
"to or in relation to the use of any listening device by - (i) a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by - (a) the Commissioner of Police; (b) an Assistant Commissioner of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Coco v the Queen [1994] HCA 15
Case
[1994] HCA 15
Decision Date
CaseChat Overview and Summary
In *Coco v The Queen*, the High Court of Australia considered an appeal against a conviction for conspiracy to import a prohibited import contrary to s 233B(1)(b) of the *Customs Act 1901* (Cth). The appellant, Mr Coco, had been convicted on the basis of evidence obtained through the use of a listening device.
The central legal issue before the High Court was whether the use of the listening device, which intercepted private conversations without the appellant's consent and without a warrant, was lawful. This raised questions concerning the common law right to privacy and the interpretation of statutory provisions relating to the use of listening devices in criminal investigations.
The Court held that the common law does not recognise a general right to privacy that would render the use of a listening device unlawful in the absence of statutory authorisation. However, the Court affirmed that the common law does impose limitations on the exercise of executive power, including the use of listening devices, requiring such actions to be authorised by law. In this instance, the Court found that the relevant provisions of the *Customs Act* and the *Crimes Act 1914* (Cth) did not authorise the use of the listening device in the manner it was deployed. The Court reasoned that while statutes may authorise intrusions into privacy, such authorisation must be clear and unambiguous. The absence of such clear authorisation meant the interception was unlawful.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered that a verdict of acquittal be entered.