Coco v The Queen

[1993] HCATrans 351

•

.

JA

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B33 of 1993

B e t w e e n -

SANTO ANTONIO COCO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

Coco(3) 17/11/93

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 NOVEMBER 1993, AT 10.20 AM

Copyright in the High Court of Australia

MR C.E.K. HAMPSON, QC:  I appear with my learned friend,

MR H.B. FRASER, QC, for the appellant. (instructed

by Gilshenan & Luton)

MR M.S. WEINBERG, QC: If the Court pleases, I appear

together with my learned friend, MR G.A. THOMPSON,

on behalf of the respondent. (instructed by the

Commonwealth Director of Public Prosecutions)

MASON CJ: Yes, Mr Hampson.

MR HAMPSON:  If it please the Court, might I hand up our

outline. There are really three matters before the

Court, and for that reason we hand up ten copies.

When the Court reads that I would like to remark,

as an introductory matter, on the three matters

which are before the Court. This outline relates

to the appeal.

MASON CJ: Yes, Mr Hampson.

MR HAMPSON: That is the appeal which raises matters under

the Invasion of Privacy Act. Notices pursuant to

section 78B were circulated and an affidavit by

Michael Patrick Quinn was filed on 15 November

showing that no States wishe to intervene in

relation to the matter. There are also before the

Court, in addition to that appeal, an application

for special leave to appeal from the decision of
the Full Court in Coco v Shaw, which decision was

given before the appellant's criminal trial; that

was numbered B13 of 1991. This Court refused an

application for special leave to appeal from that

decision on 26 June 1991 on the basis that those

civil proceedings were fragmenting the criminal

process.

Very similar issues were raised in those

proceedings as are raised in the current appeal and

the application for special leave is renewed only

to avoid any suggestion of res judicata. At the

time when the Court granted special leave in

Brisbane in relation to this present appeal, there

was some discussion of the possibility of someone

raising a suggestion of res judicata and the Court

intimated that if the applicant wished, it might

renew that application for special leave to avoid

any such possibility. That is the reason why that

application for special leave is before the Court.

The third matter is an application to renew

the application for special leave to appeal heard

on 1 July 1993 in this matter in order to raise special leave, when special leave was granted on

questions under the principle of Bunning v Cross.

Coco(3) 17/11/93

the invasion of privacy matters, the Court

indicated that if the applicant was so advised, he

might be at liberty to renew the application for

leave to appeal on the Bunning v Cross point to the

Court hearing this appeal.

The determination of the appeal, in one way,

might affect the argument with respect to the

application for special leave to appeal on the

Bunning v Cross ground. Chief Justice Macrossan in

dealing with that ground, the Bunning v Cross

question, adverted to the consideration that the

trial judge had earlier concluded in his reasons

that the police officers were acting lawfully,

having regard to the terms of the approval that had
been provided under the Invasion of Privacy Act.

In the appeal book, at page 73, the Court will see

that Mr Justice Pincus agreed with the

Chief Justice's reason in that respect.

The trial judge had, in fact, delivered his

ruling that the device was not used in

contravention of the Invasion of Privacy Act on

ruling on Bunning v Cross does not take into

7 May 1992, and he delivered his reasons on the the

account the effect upon the exercise of discretion
of a finding that there had been, if this is the
case, if the appeal so finds, a serious and illegal
invasion of privacy leading to the statutory

exclusion of part of the evidence sought to be

excluded under Bunning v Cross.

It may be thought that for that reason it is

appropriate for me to proceed with submissions on

the appeal first and to leave the question of

renewing the application for special leave to

appeal for Bunning v Cross till later.

MASON CJ: That seems the appropriate course to follow,

Mr Hampson.

MR HAMPSON:  Thank you, Your Honour. As our outline shows,

we start off with the first three paragraphs which

really show what the history of the matter was. It

is important for the Court to know that Mr Coco was

the managing director and the principal shareholder

of the company, Coco Holdings Pty Ltd, which is

mentioned in the authorization that the judge gave.

In paragraph 3 we point out that the trial judge

found that the recordings were private

conversations within the meaning of the Act. He

found that at page 18 - the ones that were

monitored by the police were private conversations.

So the issue is whether those recordings

resulted from the use of a device in contravention

Coco(3) 17/11/93

of section 43. In the appeal book the evidence is

fairly short really which deals with the actual use

of the device. The Court will see

Detective Inspector Scanlan's evidence at page 10.

There is a statutory declaration or an affidavit

from him. He says he is a State officer, he has

been instructed by the Acting Commissioner of

Police to assist.

(2) Subject to an approval being granted I

will be involved in supervising the
installation of the listening devices and the

monitoring of conversations which take place

during the period which the listening devices

are installed.

(3) The following members of the Australian

Federal Police Technical Unit authorised in writing by me will assist in the installation of the listening devices at the premises

occupied by Santo Antonio COCO at

11 Anzac Road, Carina -

that is identified elsewhere as his home -

and premises occupied by COSCO Holdings Pty

Ltd, at the Corner of Antimony and

Emery Streets, Carole Park in the State of

Queensland.

That is identified as the factory premises of that

company where Mr Coco had an office as managing

director.

And then follow the names of a number of

policemen, three policemen who are going to assist

in the installation of the listening devices. Then
in (4) follow the number of persons who would be

authorized in writing to monitor and to listen and to record. And there is 11 names given there. It

does say that additional persons would only be

authorized if circumstances require. There is some

investigating members, a further four persons and

then some transcribers who apparently were not

police officers.

He goes on, on page 12 of the appeal book in

paragraph (5):

If an approval is granted, a period of 7 days is sought to enable installation of the

listening devices in the said premises.	A
further 21 days is sought ..... for recording ..... listening to a private
conversation -

Coco(3) 4 17/11/93

(6)	The period of 7 days sought may be required to
install the listening devices as the premises of COSCO Holdings Pty Ltd, at Corner of
Antimony and Emery Streets, Carole Parke,
operate on a twenty four hour basis with
employees being present at all times. The
residence at 11 Anzac Road, Carina is occupied
by COCO and his family and surveillance will
be necessary to establish a period when all
family members are absent from the residence.

So we would submit that it is quite a clear inference that it was proposed that the, and it was

made clear to His Honour the judge who heard the

application, that the listening devices were not

going to be installed with any proper authority,

but rather surreptitiously from that material.

He goes on then to the detail, what is to

happen and what will be done with the material and

what will be done with any of the irrelevant

material.

At page 14 there is John William Adams, a

detective superintendent of the Australian Federal

Police Force. He says in paragraph (2) that he has

been told by another AFP officer Shaw:

that since 31 August 1989 the Australian

Federal Police have been investigating a

complaint ..... that two of its auditors had

been approached by Santo Antonio coco ..... who

offered remuneration -

He goes on on 15, paragraph (4). He has -

been informed by ..... SCANLAN ..... that he is an

applicant for the issue of an approval ..... in

respect of premises -

the same premises. In (5), he swears broadly to

the issue that:  Should an approval be issued I am

satisfied the use of the listening devices

will or are likely to assist Police in, or in

connection with enquiries that are being

made .....

(6) I am informed by SCANLAN that if an

approval is granted for the use of listening

devices then all original tapes made in

accordance with the approval will be held

under my control in a secure area within the

Australian Federal Police Headquarters,

Brisbane.

Coco(3) 17/11/93
The next matter perhaps that the Court should

look at is in page 17. The Act requires that the

Commissioner of Police has to notify the Registrar of Commercial Acts of the making of such approvals,

and on page 17 you will a letter of 27 October

which purports to comply with that requirement,

showing that the approval was sought to:

overhear and record private conversations in

premises -

in the two premises already been mentioned -

was sought in connection with investigations

into corruption offences, state and

commonwealth.

The dates during which:

The conversations will be recorded -

and so, that is the compliance with that.

The next page, interesting enough, is 18 and

that is where His Honour makes the finding that
they were private conversations, that is about

line 5. But, it is pretty clear from the police

material that was put before His Honour

Mr Justice Carter that the police also accepted that they were private conversations.

TOOHEY J:  Mr Hampson, could you direct us to the section of

the Act that requires notification to the Registrar

of Commercial Acts? Could you tell us what is the

role of that officer?

MR HAMPSON:  It is really the same officer who, I think, was

the officer for business names and things of that

kind, Your Honour. This is just an extra and

rather extraneous duty which is cast upon him.	The
provision is - - -

DAWSON J: Section 43(5).

MR HAMPSON:  Thank you, Your Honour:

The Commissioner of Police shall -

(a) as soon as practicable but not later than

seven days after the granting of an

authorization ..... cause the Commissioner to be

informed of such authorization.

He has to keep a record, and so forth. It deals

with the machinery of that there. "The

Commissioner" is the Commissioner for Corporate

Affairs in the definitions section, section 4:

Coco(3) 6 17/11/93

appointed under the Securities Industry Act:

The term includes an Assistant Commissioner for Corporate Affairs appointed under that

Act.

Of course, the other part of the Invasion of

Privacy Act relates to credit reporting agents,

private inquiry agents and things of that kind, in

relation to which you would have thought that the

Commissioner has a much greater contact, and it

just seems he was given this extraneous duty of

actually logging in the cases where approvals had

been given, Your Honour. It is pointed out to me

that it was originally the Commissioner for

Corporate Affairs. He ultimately became the

registrar, but I do not think anything turns on

that. It is still the same general function which

is being performed by the officer, Your Honour.

So that was the background really to the matter and His Honour granted the approval which

appears in the appeal book on page 6. The approval

shows that upon hearing counsel and reading

affidavits - I have referred to, in fact, the

Scanlan affidavit and the Adams affidavit already:

I HEREBY APPROVE pursuant to Section 43 of the

Invasion of Privacy Act 1971-1988, the use of listening devices in connection with the

matter of police investigations relating to
corruption including an offence of corruptly
influencing Commonwealth Officers under
Section 73(3) of the Crimes Act 1914 -

so, although it was said on the basis that it was obtained for State and Commonwealth offences, the

only one that is specified in the order is that

particular Commonwealth offence but, of course, it

is quite clear it is not exhaustive.

such approval being as follows:-

1. That Kenneth Charles SCANLAN of the

Queensland Police Force by himself or by means

of any other person engaged in or, assisting
the investigation of the said matter, use any

listening device or devices -

and so on -

premises occupied by COSCO Holdings Pty Ltd,

such listening device or devices to be

installed in premises occupied by Santo

at corner of Antimony and Emery Streets,

Carole Park in the State of Queensland.

Coco(3) 17/11/93

2.        That this authorisation apply until

12 noon on the 23rd day of November 1989 or

until further order.

Now, in the Act the Court will see that it is

section 43 under which this type of approval may be

applied for and given, and in section 43(3), the

light is thrown on what the judge, before whom the

application comes, should do. He has to regard to:

(a)	the gravity of the matters being investigated;
(b)	the extent to which the privacy of any

person is likely to be interfered with;

and

(c) the extent to which the prevention or detection of the offence in question is

likely to be assisted.

So they are the three matters that he expressly

required to have regard to. And it goes on:

and the judge may grant his approval subject

to such conditions, limitations and

restrictions as are specified in his approval

and as are in his opinion necessary in the

public interest.

Now, what in fact happens, as the Court will see,

the approval at page 7 of the appeal book goes on

to add conditions to the approval. Now, one would

no doubt agree that condition number 2 falls within

the sort of thing that the Act has in mind, for

example, the extent to which the privacy of a

person is likely to be interfered with.	The
prohibition against using the device as -

to record any conversation between Santo

Antonio COCO, and his legal advisers.

GAUDRON J:  How is that implemented?

MR HAMPSON: Well, it just that they are told they are not

to do it, but, in a practical sense, as the

material comes over or through the loudspeaker or

whatever they are using, I suppose they are

supposed to just close their ears and open them

when they believe it has passed. I do not know,

Your Honour.

McHUGH J: But it is the so-called condition 1 which is the

critical one, and this is why I raise the question

with you on the special leave application as to

whether or not this warrant was void.

Coco(3) 17/11/93

MR HAMPSON: Exactly, Your Honour, but I just wanted really

to refer to 2 only to show that that is something that obviously the legislature had in mind. That

in the course of giving the warrant, the judge,

having regard to "the gravity", "the extent" and so

forth, as appears in subsection (3)(a), (b) and

(c), he is then going to grant an approval:

subject to such conditions, limitations -

and so forth. But here, unlike 2, we find in 1 not

a limitation - in no way it is a limitation - but

it is an authorization. It is, in effect, an

authorization to the police officers as to how they
are to install the device. His Honour, obviously,

has picked up - we do not know what was said orally

in the way of submissions before him, of course,
there is no transcript but, quite obviously, from

the passage in the affidavit to which I earlier

referred the Court, it was clear that the devices

were going to be installed during a period of seven

days without the knowledge, and therefore the

authority, of Coco, at his residence and at the

factory of which he was the manager and the

principal shareholder.

What His Honour here has said:

That any authorised Police Officer or person

engaged in, or assisting the investigation of

the said offence, to enter and remain upon the

said premises -

that is the house at 11 Anzac Road, Carina, and the

factory premises at the corner of Antimony and

Emery Streets, Carole Park -

for the purpose of installing -

that is the first thing, it is the most critical,

no doubt, but also for:

maintaining, servicing and retrieving the said

listening device or devices.

So what His Honour's order has done, under what is

said to be a condition, in effect, has authorized a

trespass by the officers, initially to put the

instrument in place but also, of course, to go
further, to commit further trespasses if they are
necessary, for the purpose of maintaining,

servicing and ultimately retrieving the listening

device or devices.

The approval, on it terms, was until

23 November, but on 20 November it was extended and

the Court will see on page 8 of the appeal book

Coco(3) 9 17/11/93

that approval - it is called extension of

approval - on 20 November until 7 December 1989.

If I could just shortly flesh out the rest of the history of the matter, on 27 October

Mr Redmond, who was then Acting Commissioner of

Police for Queensland, issued an authority to

Scanlan, and that appears at page 9:

I ..... HEREBY AUTHORISE

Kenneth Charles SCANLAN ..... in the use of

listening devices under and in accordance with

an approval given in writing by

Mr Justice W. CARTER, a Judge of the Supreme

Court of Queensland at Brisbane on the

twenty-sixth day of October 1989, in
connection with the investigation referred to
in the said approval.

A copy of the said approval is attached hereto.

This authority extends as from the time and

date of this Authority until the conclusion of the Investigation in connection with which the said approval has been given pursuant to the

said section.

It is dated 27 October 1989. This was obviously

intended to be the appointment by the Commissioner

of Scanlan as the officer to authorize other police

to use the device under section 43(2)(l)(b) of the

Act. Scanlan then issued authorities to Australian

Federal Police officers and others - there were

some typists there and some politicians, I think,

in fact - to use a device. That appears at

page 27, line 25, of the appeal book.

DAWSON J:	On page 9, Mr Hampson, it refers to approval given by Mr Justice Carter on 26 October, and the
approval on page 8 is dated 20 November.
MR HAMPSON:	The one on page 6, Your Honour, is 26 October.

Page 6 was the first one. Then that was extended.

If you go over to page 8, that is an extension of

the first one.

DAWSON J: Yes, I follow.

MR HAMPSON:  On page 27, about line 25, there is

His Honour's finding:

Mr Scanlan purported to authorise 31

other persons to use the listening device.

They included Federal police officers. The

challenge to the efficacy of those

authorisations is based on the contention that

Coco(3) 10 17/11/93

Mr Scanlan, being a Queensland police officer

above the rank of Inspector, had not himself

been "appointed -

They go on with that. I just refer to that to show

the number of police officers who actually got an

authorization. There is an example of the sort of

authority that was used at page 41. Just the one

has been put in - I think they were all in pretty

much the same form. At page 41 of the appeal book

is the sort of thing that Scanlan issued, Invasion

of Privacy Act authority. It appointed

Constable Keryn-Louise Elizabeth Reynolds:

to use a listening device under and in

accordance with an approval given in writing

by MR JUSTICE CARTER ..... on the 26th Day of

October 1989 in connection with the

investigation referred to in the said

approval.

The actual findings that were made on how the

device was installed appear in the appeal book at

page 1 in His Honour's reasons for the ruling that

he made, right at line 10:

Two Federal Police Officers installed

listening devices -

Sorry, this is really in the case stated, but

anyway it was what His Honour found in any event:

Two Federal Police Officers installed

listening devises on 6 November 1989 at the

premises of Cosco Holdings, Brisbane.

The said Federal Police officers gained

entrance to the premises by subterfuge. They

impersonated Telecom employees and falsely

claimed to employees of Cosco Holdings that

they had come to investigate a fault in

telephone lines.

Cosco Holdings electricity was used, without

knowledge or consent to power the listening

device.

The listening devise monitored almost 200

hours of private conversations which took

place at the premises of Cosco Holdings,

including private conversations on 13th, 14th,

21st, 23rd, 24th, 27th and 28th November 1989,

and 6th and 7th December 1989.

The listening device transmitted signals of

the said private conversations to a device

which recorded the said private conversations.

Coco(3) 11 17/11/93

Then the next paragraphs really go on to repeat

evidence that I have already pointed out to the

Court down to paragraph 12, the letter by the

Acting Commissioner of Police to the Registrar of

Commercial Acts, paragraph 12 of the case stated.

On page 18 to 19 it is the passage really

where His Honour makes the findings. I will not

read that out, but commencing on page 18 of the

appeal book is His Honour's ruling and it goes over

about half-way down page 19:

The Full Court, by majority, overturned those declarations -

He sets out the history of the matter and the findings there.

Also relevant on page 39 of the appeal book

about line 10 is the passage which states in his

ruling that:

The police officers who entered the premises of Cosco Holdings to install the device were

therefore trespassers.

And nobody has withdrawn - nobody has contended to

the contrary anywhere else that they were not
trespassers, subject of course, to whatever comfort
they might get from the authority under the

Invasion of Privacy Act.

Cosco Holdings' electricity was used without

Cosco Holdings' knowledge or consent to power, the

listening device and the listening device itself

having recorded those some 200 hours of private

conversations was again removed in the clandestine

way on 4 January 1990. So shortly, that then is

the picture, and one then has to turn to the Act to

see just what the Act authorized in the way of the

approval that was given. It is our first submission, and it has been

since this litigation commenced before

Mr Justice Lee some time ago in the Queensland

Supreme Court, that in fact the Act, section 43,

did not empower a supreme court judge to authorize

a person, such as Scanlan, to commit a trespass

upon Cosco Holdings premises by entering and

installing, doing whatever had to be done on the

premises to install the device, or to abstract

electricity from Cosco Holdings' electricity supply

for the purpose of powering the device during the

overhearing and monitoring of the conversations.

There is no provision in the Act which

expressly excuses any unlawful activity by police.

Coco(3) 12 17/11/93

That is a provision one sees in quite a number of

Acts where, for one reason or another, legislature

thinks that the police might go a little too far,
or something of that kind, there is some protective

provisions built in. There is nothing of that kind

in relation to this matter.

Section 43(2), we would submit, has quite an

effective area of operation without any implication

that it would be ineffective unless you read it as

impliedly authorizing a judge to authorize
expressly police to commit trespass and the like
for the purpose of installing devices of this kind.

After all devices could be installed with the

permission. One could think of the situation where

some listening device is required to be put at a

place of work, one has the owners of the buildings

permission to have it there. There could be lots

of occasions where, in fact, permission could be

obtained, and it is our submission that that

possibility renders unnecessary any implication

that, based on the fact, "Oh, well the police would

not be able to use it, it would be a power that

would be useless to them unless, in fact, they were

entitled to go on the premises, they had a right to

go on the premises."

In any event, of course, there is authority

from this Court that such an implication is not

readily made. Indeed, there is a presumption

against such an implication, and that appears in
Plenty v Dillon, 171 CLR 635, the passage to which

I wish to refer Your Honours is at page 639, in the judgment of the Chief Justice and Justices Brennan

and Toohey. It really probably starts at the

bottom of 638, the last couple of lines:

Thus the issue for determination is

simply whether a police officer who is charged

with the duty of serving a summons is

authorized, without the consent of the person

in possession or entitled to possession of

land and without any implied leave or licence,

to go upon the land in order to serve the

summons.

The starting point is the judgment of

Lord Camden L.C.J. in Entick v Carrington:

"By the laws of England, every invasion of private property, be it ever so minute, is

a trespass. No man can set his foot upon my

ground without my licence, but he is liable to
an action, though the damage be nothing ... If

he admits the fact, he is bound to show by way

of justification, that some positive law has

empowered or excused him.

Coco(3) 13 17/11/93

Without reading the next citations, if I could come

to Halliday v Nevill where Justice Brennan

said - there are other passages in Halliday v

Nevill I would like to come to later, but here this

is approved by the other members of the Court:

"The principle applies alike to officers of

government and to private persons. A police

officer who enters or remains on private

property without the leave and licence of the
person in possession or entitled to possession

commits a trespass and acts outside the course

of his duty unless his entering or remaining

on the premises is authorized or excused by

law."

The proposition that any person who "sets his foot upon my ground without my

licence ... is liable to an action" in trespass

is qualified by exceptions both at common law

and by statute.

Then the Court went on to deal with some of the

grounds sought to be relied on as to justify an

exemption to that particular rule.

In Freeman v Roberts, 37 FCR 399, at 401, this

is a judgment by Mr Justice Ryan in the Federal

Court, and right at the bottom of page 401 - - -

MASON CJ: Before you leave Plenty v Dillon, should you not

be referring to pages 644 and 645 where the Court

dealt with the suggested argument that you could

imply into the statute an authority to commit what

otherwise would have been a trespass?

MR HAMPSON:  I was going to come back to that, but it is

probably quite an appropriate place to deal with it

at the moment, Your Honour.

MASON CJ:  I do not think there is any occasion for you to

read out what is on those two pages. It just seems

to me that that is the passage where the judgment

deals specifically with the proposition that you

should be implying into the statute an authority to

commit the trespass.

MR HAMPSON:  I was proposing to come back to that when

talking about Halliday v Nevill where the same

argument is made, but seeing that we have reached

it, yes indeed, I wanted to rely upon that passage.

That is quite inconsistent with a number of

Canadian authorities that were referred to in the

courts below, and I notice in our learned friend's

list of cases here are going to be relied upon by

them.

Coco(3) 14 17/11/93

We would submit that the authority in this

land sets its face against making implications of

that kind, particularly in statutes such as this.

This is a statute which starts off as an effort to

preserve and maintain the privacy of the citizen,

and therefore, whatever exceptions are to be made,

and they are carefully made - when the Court comes

to look at the section there is an effort to make

them carefully - are not to be further eroded and

magnified by the drawing of these implications

which, as Your Honour the Chief Justice points out,

are inconsistent with what this Court has said, the

approach to be made in Plenty v Dillon.

In Freeman v Roberts - it is just a short

passage from Mr Justice Ryan's decision at

page 401 - he really mentioned there some of the
cases, but he really tried to sum up the competing

policy considerations in relation to search warrants which is somewhat analogous matter:

Competing policy considerations operate

whenever a search warrant is sought by police.

On the one hand, there is the presumptive

inviolability, consistently recognized and

jealously guarded by the common law, of a
person's private domain. Legislation which is

said to infringe this basic freedom is

examined critically, and its scope is confined

to the extent necessary to give effect to the

will of Parliament. The right to individual

privacy is one of the cornerstones of the

common law. The weight accorded to it as an

aspect of public policy in the interpretation of legislation and the resolution of specific

legal disputes is profound.

Then he goes on to show a number of authorities.

In the next paragraph he goes on to balance that, saying that is has to be balanced against -

the legitimate interests of the Executive in

investigating and prosecuting crime -

and so forth. That is the only basis for looking

at that. Another decision of this Court is George

v Rockett, (1990) 170 CLR 104. This was a case of

search warrants also as to whether a requirement of
section 679 of the Queensland Criminal Code

relating to the issue of a warrant by a magistrate

after a sworn complaint had been complied with or

whether the warrants were void.

Without reading the next citations, if I could come

to Halliday v Nevill where Justice Brennan

said - there are other passages in Halliday v

Coco(3) 15 17/11/93

Nevill I would like to come to later, but here this

is approved by the other members of the Court:

"The principle applies alike to officers of

government and to private persons. A police

officer who enters or remains on private

property without the leave and licence of the

person in possession or entitled to possession

commits a trespass and acts outside the course

of his duty unless his entering or remaining

on the premises is authorized or excused by

law."

The proposition that any person who "sets his foot upon my ground without my

licence ... is liable to an action" in trespass

is qualified by exceptions both at common law

and by statute.

Then the Court went on to deal with some of the

grounds sought to be relied on as to justify an

exemption to that particular rule.

In Freeman v Roberts, 37 FCR 399, at 401, this

is a judgment by Mr Justice Ryan in the Federal

Court, and right at the bottom of page 401 - - -

MASON CJ: Before you leave Plenty v Dillon, should you not

be referring to pages 644 and 645 where the Court

dealt with the suggested argument that you could

imply into the statute an authority to commit what

otherwise would have been a trespass?

MR HAMPSON:  I was going to come back to that, but it is

probably quite an appropriate place to deal with it

at the moment, Your Honour.

MASON CJ:  I do not think there is any occasion for you to

read out what is on those two pages. It just seems

to me that that is the passage where the judgment

deals specifically with the proposition that you

should be implying into the statute an authority to

commit the trespass.

MR HAMPSON:  I was proposing to come back to that when

talking about Halliday v Nevill where the same

argument is made, but seeing that we have reached

it, yes indeed, I wanted to rely upon that passage.

That is quite inconsistent with a number of

Canadian authorities that were referred to in the

courts below, and I notice in our learned friend's

list of cases here are going to be relied upon by

them.

We would submit that the authority in this

land sets its face against making implications of

that kind, particularly in statutes such as this.

Coco(3) 16 17/11/93

This is a statute which starts off as an effort to

preserve and maintain the privacy of the citizen,

and therefore, whatever exceptions are to be made,

and they are carefully made - when the Court comes

to look at the section there is an effort to make

them carefully - are not to be further eroded and

magnified by the drawing of these implications

which, as Your Honour the Chief Justice points out,

are inconsistent with what this Court has said, the

approach to be made in Plenty v Dillon.

In Freeman v Roberts - it is just a short

passage from Mr Justice Ryan's decision at
page 401 - he really mentioned there some of the

cases, but he really tried to sum up the competing
policy considerations in relation to search

warrants which is somewhat analogous matter:

Competing policy considerations operate

whenever a search warrant is sought by police.

On the one hand, there is the presumptive

inviolability, consistently recognized and

jealously guarded by the common law, of a
person's private domain. Legislation which is

said to infringe this basic freedom is

examined critically, and its scope is confined

to the extent necessary to give effect to the

will of Parliament. The right to individual

privacy is one of the cornerstones of the

common law. The weight accorded to it as an

aspect of public policy in the interpretation of legislation and the resolution of specific

legal disputes is profound.

Then he goes on to show a number of authorities.

In the next paragraph he goes on to balance that, saying that is has to be balanced against -

the legitimate interests of the Executive in

investigating and prosecuting crime -

and so forth. That is the only basis for looking

at that. Another decision of this Court is George

v Rockett, (1990) 170 CLR 104. This was a case of

search warrants also as to whether a requirement of

section 679 of the Queensland Criminal Code

relating to the issue of a warrant by a magistrate

after a sworn complaint had been complied with or

whether the warrants were void.

It is interesting to observe, of course, that that provision was in the Criminal Code a long time

before this Act, the Act with which the Court is

presently concerned, the Invasion of Privacy Act,

was passed in 1971.

Coco(3) 17 17/11/93

Now, it is at page 110 and 111, I think, that

the important consideration of the Court which, in

fact was comprised of the same Justices who

comprise the Court today, started a passage:

A search warrant thus authorizes an invasion of premises without the consent of persons -

It is really the rest of that page and down to the

end of the first paragraph on page 111 on which we

would rely; the requirement that the conditions of

availability of a matter such as a search warrant

be scrupulously complied with.

So one really has an attitude in Australian

law which says two things about these matters:

really, they must be complied with quite strictly,

this type of invasion of privacy, I mean, by means
to search warrant or whatever it is, whatever the

requirements for their usage may be; and, secondly,

in relation to these invasions of privacy and

things of that kind, the Court sets its face

against it - there will be a presumption against

making implications in the statute that there are

permissions to be implied.

So section 43 really is a code here which

provides for cumulative requirements on a number of

people. There is the requirement of the approval

by a judge. The Commissioner of Police has to, in

fact, also approve it and then the police officer -

whatever police officer there - has to be acting in the performance of his duty. Those matters are all spelled out in the provision here and we would say, of course, that a police officer is not acting in

the performance of his duty, no matter what he may
think, if in fact he is controverting the criminal

or the civil law. Authority for that is Morris v

Beardmore, (1981) AC 446, at page 464 - actually

there are two where that was referred to.

Lord Scarman's quotation is referred to in

also a similar quotation which came from another of	Halliday v Nevill, which we come to. But there was
the Law Lords - it was Lord Edmund-Davies - to like
effect. His speech is at page 458F:

Now why should that be so? ..... although policemen have been vested by statute with

powers beyond those of other people, they are
exercisable only by virtue of the authority

thereby conferred upon them and in the

execution of their duty. A policeman as

such - in or out of uniform - has no powers or

authority beyond those of the ordinary citizen

on occasions or in matters which are

unconnected with his duties.

Coco(3) 18 17/11/93

My Lords, I have respectfully to say that

I regard it as unthinkable that a policeman

may properly be regarded as acting in the
execution of his duty when he is acting
unlawfully, and this regardless of whether his
contravention is of the criminal law or simply

of the civil law.

He goes on somewhat to the same effect, really,

relating to trespass at the top of the next page,

page 459.

In Halliday v Nevill, 155 CLR 1, there is a

number of passages to which I would like to direct

the Court. First of all at page 10 is a passage in

the judgment of Justice Brennan which in fact

refers to Lord Scarman's dictum to which I gave the

reference.

McHUGH J:  Mr Hampson, where are we going in terms of the

appeal? What is this directed to in terms of the

appeal?

MR HAMPSON: This is directed, if Your Honour pleases, to my

making a submission - I could make the submission

first if one liked, but the submission is that

His Honour had no power - there is no power present

expressly or by implication to authorize people to

commit a trespass, that in so far as His Honour

then made an order which in effect said, "You may
go to these premises and commit a trespass",

His Honour's approval was void. It just could not be made under the Act.

McHUGH J: Is that a point you can take in this appeal?

MR HAMPSON: Yes, Your Honour. It was taken before the

trial judge in the actual trial.

McHUGH J: What, that the warrant was void?

MR HAMPSON:  Yes, Your Honour. It appears at page 39 of the

appeal book, question 10:

The question then arises whether the invalidity of the "condition" authorising entry (etc) invalidates the whole of the

approval, or whether it may be severed from

the rest.

If you look a little bit above that, Your Honour,

you will see that His Honour finds in effect:

It follows that the principle of London

Corporation v Cox does not apply, and the

order authorising entry was invalid because

beyond power.

Coco(3) 19 17/11/93

So he acceded to the argument that it was invalid

as beyond power:

The police officers who entered the premises of Cosco Holdings to install the device were therefore trespassers.

Then he comes on to the second question:

The question then arises whether the invalidity of the "condition" authorising entry (etc) invalidates the whole of the

approval, or whether it may be severed from

the rest.

Now in the Court of Appeal, however, the

matter went back the other way and you had
expressions of opinion there. For example,

Mr Justice Pincus said that it was proper to imply in the statute, in section 43, a power in the judge

to authorize such an entry. But if one came back, if you did not have the Court of Appeal in between
times, we are appealing straight from what

His Honour had found, we would start off with the

proposition, in fact, that he had correctly found

that the order, or approval, was invalid and we

would then be saying you cannot sever it. That is
where we would be, but I am going a little longer

way around unfortunately because of the opinions

that were expressed in the Court of Appeal.

TOOHEY J: Could I just ask you this, Mr Hampson? On your

argument is there any way in which a listening
device may be lawfully installed other than with

the consent of the owner or occupier of premises?

MR HAMPSON:	Not in enclosed premises which are locked or closed, Your Honour, no.
GAUDRON J:	Does this Act extend to the situation where you

wire yourself up and meet somebody at a restaurant

or something?

MR HAMPSON: There is an exemption in favour of that,

Your Honour. The Act provides, in fact, that

although that conversation is a private
conversation, the prohibitions against using the

listening device disappear because the party who is

wired up is a party to the conversation. So if you

have a party to the conversation that person is

entitled to record even without the knowledge of

the other parties to the conversation. I will give

you the reference to the section in a moment,

Your Honour.

McHUGH J: It is subsection (2)(a).

Coco(3)	20	17/11/93
MR HAMPSON:	Yes, (2)(a), that is right, thank you.	So that

really does not cause a problem under the Act.

Although that is true, Your Honour, that consent is

needed, that is only another way of saying that

trespass is not allowed, and there must be many,

many occasions when. listening devices are able to

be used with consent.

TOOHEY J: Yes, I understand that. I just wanted to test

the breadth of the proposition. Absent consent, on your argument, there is no way in which a listening

device may be lawfully installed, whether with the

authority of a judge or without that authority?

MR HAMPSON:  And, the answer to it, again - I mean in the

absence of any implications which are to be made in

this area - the answer is a very simple one. I

mean our learned friends cite passages from the

minister in introducing this legislation in the they are quite equivocal, they do not really assist this, or throw any light upon this present question

at all as to what Parliament might have meant, as

is usually the case with speeches of that kind.

But, there is nothing, we would submit, in the Act

itself, and this would have been so easy to

provide, when you are talking about the judge

giving conditions and limitations and all that sort

of thing, and to authorize people to enter, and the

conditions upon which they would enter.

I mean, the very fact that it is not there,

this seems to be one of those real cases where one

could say, "Well, the draftsman quite knew that it

was not going to be there, he did not intend to put

it there."

McHUGH J:  When was 48A put into the Act, which makes it an

offence for an unlawful invasion of a dwelling

house?

MR HAMPSON: It was amended in 1976, I think, Your Honour.

McHUGH J: But, there is nothing on a quick reading of

Part IVA which seems to tie it in with the

listening device exception.

MR HAMPSON:  No, no Your Honour. No, it is necessary to

bear in mind that you are dealing with a lot of
other aspects of invasions of privacy from the type
of private inquiry agent, things of that kind that

are to be licensed under the Act. So,

unfortunately, one could not get any guidance from

that. On Halliday v Nevill I was just going to go

and say that on - it goes over, the passage we
would rely on, on to the next page - I shall not

read it - over on to page 11.

Coco(3) 21 17/11/93

Also then, on page 17, while the Court has

that book, His Honour Justice Brennan went on, in

the first full paragraph there:

The powers conferred by ss. 458 and 459

were not novel statutory powers, such as the

power to require the provision of a sample of

breath. The presumption that a statute

creating general powers of arrest intends to

confer a power of entry corresponding with the

common law is not applied to a statute

creating a novel power of a different nature.

The common law presumes that when Parliament

creates a novel power, it does not intend

thereby to authorize the commission of a

trespass to facilitate its exercise. The

general protection which the common law

accords to persons in possession of private

property is undiminished by the creation of the novel power unless Parliament expressly

provides otherwise.

And, over on to page 18, in the first full

paragraph:

In cases falling outside s459A, the

statutory powers to arrest - shorn of any

power of entry - stand in no different

position from those novel statutory powers

that cannot be exercised on private property

without the leave and licence of the person in

possession of the property or the person

entitled to possession. The statutory powers to arrest are no longer effective to diminish

the common law rights of persons in possession

of land except in the circumstances specified

in s459A. Those powers cannot now be

construed as authorizing an arrest which can

be effected only by trespassing on private

property. If a purported arrest is made in

circumstances where the power is not intended

to be exercised, the arrest is invalid. The

arrest is not struck with invalidity because

the person arrested is not liable to arrest

under s458 or s459 but because the power

conferred by those sections can be exercised

only if it is otherwise lawful to act in

execution of the power. If a police officer

could validly arrest by entering a place which he has no power to enter and which he is given

no permission to enter, the statutory

limitation on the power of entry would be

nugatory and the protection of individual

privacy which Parliament intended would be

denied in practice.

Coco(3) 22 17/11/93

MASON CJ:  Mr Hampson, there is one statement in Plenty v

Dillon to which you have not referred which strikes

me as perhaps the best statement of the principle

on which you rely. That is. in the joint judgment

of Justices Gaudron and McHugh at pages 648 to 649

where, five lines from the hottom of 648,
Their Honours say:

But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what

would otherwise be tortious conduct. That is the principle on which you rely.

MR HAMPSON:  Yes indeed, Your Honour. I am sorry,

Your Honour, that was an oversight obviously. I

was referring to the judgment of the three Justices

and I overlooked that. But that is exactly so, and

in fact it expresses the principle very succinctly

in that passage.

MASON CJ: Yes. It ties in with other statements that have

been made in other judgments that deal with

statutory authority to interfere with private

rights that you are looking for a clear and

unambiguous expression of statutory intention.

That may call for words that are not merely general but are specifically directed to the authority that is sought to be created.

MR HAMPSON:  Yes. It is often put on the basis, not only is

it because of the infringement with the common law

rights, the cutting down of those, but also on the

basis of the citizen, when it is done, he is

entitled to know what, in fact, is happening. Now

that might not be so important in this case because

he usually does not know that this approval has

been made or anything of that kind but, still, the

judge who is exercising the power to approve or not

approve really should be very careful to see - and

the legislator wants him really to see, to have a	look at those very issues, because that is in the
(a), (b) and (c) that I referred the Court to
before.

MASON CJ: But the importance of expressing the principle or

presumption in that way is it tends to provide you

with some answer to the contrary case, namely, "How

is this going to work?", unless it works on the

basis that there is authority given for committing

a trespass.

MR HAMPSON:  Yes, well we put it also on the basis that I

put to Justice Toohey really that there is an

ambit. It is not one of those cases where it is

rendered futile and stupid, it is not that sort of

Coco(3) 23 17/11/93

case, but as Your Honour says and we accept, with

respect, that that statement of principle clearly

puts at nought that utility argument, as it were, "Oh, the words might not say that", but it is not going to have the effect, surely, that was intended

unless you do. It is up to the Court now to read

it in and amend the legislation so that what is

achieved is what the police really want.

McHUGH J:  I do not know about the position in 1971, but

certainly for more than a decade there have been in
existence listening devices which could pick up
conversations at very considerable distances away

from the participants in the conversations.

MR HAMPSON:  Yes, I think that is one of the things that you

get from the minister's speech. He is talking

about the new technology and all these sorts of
things, and he is bewailing the fact that the

criminals have access to them and now the police

should be able to have access to them too. So,

without it working as an issue of popular mechanics

to tell you exactly what was available, it does

seem there was a recognition in Parliament that

quite sophisticated devices were in 1971 available,

Your Honour.

BRENNAN J: 

Mr Hampson, is it common ground that the power

which Justice Carter was exercising was an
administrative power and not a judicial power?

MR HAMPSON:  I think so. I think it has been common ground

in the last series anyway, of proceedings in

relation to this, Your Honour.

BRENNAN J:  So the scope of his authority is to be

ascertained by reference solely to the terms of the

Act?

MR HAMPSON:  Yes, Your Honour. I think that there might

have been an early stage - my learned junior - I

was not at the trial and neither was he, but he has

a recollection it might have been argued on behalf

of the prosecution at the trial, something

inconsistent with what certainly has been common

ground since the Court of Appeal.

MR WEINBERG:  I was at the trial. It was argued but the

order in question was a hybrid order, namely it

combined judicial order and an administrative

order, but that argument was not advanced before

the Court of Appeal. His Honour rejected that

before the Court of Appeal. It was common ground

that the order in question, in the light of the

authorities of this Court, seem to have the

characteristics of an administrative order rather

than a judicial order.

Coco(3) 17/11/93

MR HAMPSON:  Thank you. That makes it quite clear then.

The approval of Mr Justice Carter then, we are

saying, was not an order, he was acting in an
administrative capacity and so his approval has to
be construed not to authorize trespass or other
unlawful conduct, section 28 of the

Acts Interpretation Act. We also refer to

Love v AG for NSW. I shall not read that. 169 CLR

307, which was the latest decision on that and

there had been earlier expressions of opinion. I

think Mr Justice McHugh, in an earlier case - I
think it was Peters - had the view that it was an

administrative order even though the parties agreed

to treat it as a judicial order. The court

certainly came down on that view, for that

New South Wales legislation, and the parties here

are at one in treating it as an administrative

order.

Mr Justice Carter approved a use by Scanlan of

a device that was installed in defined premises by

authorized persons entering for that purpose. That

is quite clear when one reads the approval.

Paragraph 1 shows that at page 6 and the condition

at page 7, reading them together, they are

inextricably mixed up. In fact, if you go to the

approval, you will see the way it has been drafted

is that the approval pursuant to section 43 and:

the use of listening devices in connection with the matter of police investigations -

and so forth is approved, and such approval being

and now this is the approval. That Scanlan may:

by himself or by means of any other person

engaged ..... use any listening device or

devices -

for the hearing of private conversations -

simultaneously with its taking place, such

listening device or devices to be installed in

premises -

So, it is "to be installed". It is in the very

part of the order. There has been an installation,

and the only installation that was suggested to

His Honour was a surreptitious installation.

McHUGH J:  Your argument seems to deal with the result of

what he did, rather than saying, well did he act

beyond power in granting a listening device

authorization because he misdirected himself in
thinking that he could also authorize an entry into

the premises to install it.

Coco(3) 25 17/11/93

MR HAMPSON:  Oh no, our argument is very definitely the

second, Your Honour, but perhaps I should test it a

different way. When they came before His Honour

with their evidence saying, "Now we are

investigating a complaint and so forth; we say it

would help us if we could listen to private

conversations, either at Coco's home or at Coco's

factory; it is going to take us seven days to

install it; so far as the home is concerned we

would have to have a lot of surveillance to make

certain the family is out, and so far as the

factory is concerned, they work very long hours

there and it will take time to get it in".

His Honour should have said, "Well now, wait a

moment, I mean, are you suggesting that you do not

have approval of anybody to put this in; that you

do not have the owner's approval or something of

that kind? How are you going to get in?" And they

say completely clearly, "Well, what we propose to

do is masquerade as Telecom employees or Santa

Claus and come down the chimney", whatever they are

going to do, it will be a trespass.

McHUGH J:  I am not clear; are you saying his exercise of

power was void or that the end product of what he

did is void? Now it may come to the same thing,

but once you look at end product you get into

questions of severability.

MR HAMPSON:  He should have said, Your Honour, once it

became clear to him if it was not - we would submit

it was clear to him - he should have said, "I have

no power to do what you want me to do; I just do

not have power and I cannot make any sort of

approval of that. Now, I will approve you if you

can tell me that you have got a long-range

listening device that you can stand in a public

place and listen to the conversations in the

courtyard of the factory, or something of that

kind, because it is not a trespass, you do not have

prove certain things for you, but the proposal you	to go there". Whatever; he could have said, "I can
make to me, I have no power to approve it". And
that is what we submit His Honour should have done
and the matter would never have arisen. If
His Honour had not misdirected himself as to his
powers, he would not have issued an approval, and the whole circumstance would not have come about.

So, in that sense, I suppose, what he does at

the inception, deciding whether he will make an

approval and what happens, in fact, that approval comes, is inextricably tied up, I suppose, but we

would say that he had no jurisdiction; he should

not have entered on making such an approval. But

they put up a very precise proposal to him: they

said, two premises, one is a family home; one is

Coco(3) 26 17/11/93

inhabited by himself and his family are often
there; the other one is the factory and, of course,

the material shows that he is the managing

director, the principal shareholder, and so on, and

they say to him, "it is very difficult to get them

in in both those places", so it obviously was a

case where it was necessary to obtain a

non-consentual entry - you either had to trespass

directly or by some pretext or fraud, gain entry.

McHUGH J:  How far can you go in making implications?

Supposing they had said, "We want authority to put

a listening device in the premises because the next

time the taxation officers are there, they want to

slip a listening device under the desk and leave it

there." Could he have approved that?

MR HAMPSON: That is a different proposal.

McHUGH J: 

I know it is a different proposal.

MR HAMPSON: 

Supposing they put the proposal to him, he

would have to say, "No, wait a minute, that is a
trespass. They would be going there without

permission and leaving this device upon the

premises.  I do not have power to - - -"

McHUGH J: 

No, I am assuming they have permission to go

there authorized by Coco Holdings, but during the

course of their visit they plant a listening device

in the building.

MR HAMPSON:  That is a trespass, Your Honour. Once they do

that, that is a trespass. So it is a simple line

you can draw. The judge is quite easily able to

say, "If you are proposing that they go in wired

for sound, you don't need my approval.	The Act
lets them do it.	If you propose that they take in

with them a listening device which is going to

transmit somewhere else, I can give you approval

for that only if, in fact, it doesn't constitute a

trespass, which it will if you take it in and tell	them lies that you don't have such a thing, but
more importantly" - and this is the important
one - "if you are going to leave it behind under a
desk or something, that is a trespass. You leave
that behind, that's a trespass and I can't approve
it". The whole chain of events would never have happened if His Honour had correctly identified his
lack of power at the time the application was first
made.

we submit that when one looks at it, it is

just not possible to separate this out in any

sensible test. Supposing you are going to try and

say, "Well, it is void. Now, can we read this in a

way that is severable? Can you possibly do it?"

Coco(3) 27 17/11/93

We would say the answer is clearly no, because

although one might say textually you could cross
out condition 1, it still means that under

paragraph 1 on page 6, Scanlan is authorized to

listen by himself, to use a listening device -

such listening device or devices to be

installed in premises -

So in other words, the approval is given on the

basis that is "to be installed in premises", and

one can construe that in the light of the material

before His Honour only as meaning that it is going

to be surreptitiously installed there. So even in that part of the order without trying to sever and
taking out condition 1, you have an approval, as it

were, of an installation which is unlawful. You

cannot sever that. Suppose you take that out, it

then becomes - suppose you take out "such listening

devices to be installed in premises", suppose

textually you say, "Well, we will sever that",

Scanlan is authorized -

by means of himself or by means of any other

person engaged in or, assisting the

investigation of the said matter, use any

listening device or devices capable of

recording, overhearing, monitoring or

listening to a private conversation

simultaneously with its taking place.

The matter is just left completely at large.

So, I mean, that would be, if you tried to sever it

that way, it is just a completely meaningless

authority. It would be of no assistance at all.

We would submit that very real and difficult problems come, once it is correctly identified as

an approval, which should not have been given in

that form because there was no power so to give it,

to try to see on what basis some part of it could

be saved by severability. The problem, of course,

is that it is so completely mixed up. It is the

approval of the person for use, at a particular

place, into which - into which - the listening

devices are to be introduced. Now, you just cannot

leave parts of those out without making the whole

approval, in our submission, nugatory.

It is perfectly clear that that condition,

really, one could not really sever it. I mean you

could in a textual sense - that condition 1 - but,

that is clearly part of the approval. That any

authorized police officer, or person engaged in, or

assisting the investigation of the said offence, to

enter:

Coco(3) 28 17/11/93

AND I DO ORDER THAT SUCH APPROVAL BE

SUBJECT TO THE FOLLOWING CONDITIONS

It has made a "condition of approval" that he:

enter and remain upon the said premises for

the purpose of installing, maintaining,

servicing and retrieving the said listening

device or devices.

McHUGH J:  The Victorian and South Australian legislation

gives an express right of entry, does it not?

MR HAMPSON: Yes. That was done later. It was not in the

original Act, as I can remember it, Your Honour.

The Victorian Act, Listening Devices Act. It is

section 4A. It is a warrant which is given, a

complaint:

On complaint made by a member of the

police force that he or she suspects or
believes -

(a) that an offence has been ..... committed

and so forth:

the Supreme Court may, if satisfied that there
are reasonable grounds for that suspicion or

belief, authorise, by warrant, the use of a

listening device.

And then subsection (3) says:

If a warrant granted by the Supreme Court

under this section authorises the installation

of a listening device on any premises, the

Court must, by the warrant -

(a) authorise and require the retrieval of the

listening -

warrant. And, in subsection (2) it says that it

has to have regard to what should be done.

McHUGH J:  What year was that Act passed in?

MR HAMPSON:  That amendment, Your Honour, it is 4A. The Act

itself was 1969 and, I think, by looking at it

textually, I think it is probably the progenitor of

the Queensland Act. The amendment is 1986. So,

the amendment that we are referring to was not made

in 1986. I think it is 96. I think it is 4A

inserted by No 96 of 1986, section 7.

BRENNAN J:  Mr Hampson, I am just have a little bit of

difficulty following the present aspect of your

Coco(3) 29 17/11/93

argument. If one accepts that 43 does not confer

upon a supreme court judge any power to authorize a

trespass, and that it is limited to the authorizing

of the use of a listening device, the question then

is, by looking at pages 6 and 7, has

Mr Justice Carter authorized the use of a listening

device? Well now, in terms he has, although the

listening device which he has authorized is one

which is to be installed in premises. Now, why is it that his authority does not relieve against the prohibition in 43(2), merely because it identifies the listening device as one which is to be

installed, understanding, in accordance with your

first argument, that such an installation would be

a trespass?

MR HAMPSON:  Because he thereby is impliedly authorizing a

trespass.

BRENNAN J: But he cannot.

MR HAMPSON:  I know; exactly. But neither can he expressly

do it. He has expressly done it elsewhere.

Your Honour is dealing with a severance problem as

if he cut off condition 1 - - -

BRENNAN J:	No, it is not a question of severance. Accepting entirely that it is one authority, the
question is whether it is an authority for the
purpose of section 43. We know from the
construction of 43, according to your first argument, that there can be no authority for a
trespass.  However it may be expressed, is it none
the less an authority for the purposes of 43?
MR HAMPSON:	No, Your Honour, it is not an authority for the

purpose of 43 because part of the matter in 43 is

the prohibition is against using a device unless
you come within subsection (2). Subsection (2)(c)

is the one that we are interested in at the moment:

(i) a member of the police force acting in the

performance of his duty if he has been

authorized -

The problem that is going to come there - and I am

staying outside the warrant at the moment - no

policeman could be acting in the course of his duty

with such an approval.

BRENNAN J: Not by entering, but what about listening?

MR HAMPSON:	He cannot listen unless he enters.
BRENNAN J:	Why not?

Coco(3) 30 17/11/93

MR HAMPSON:  Because of these devices that were actually

used. What they said was they had to be installed.

BRENNAN J: But let us assume that they were already there.

There would be nothing wrong then with this

warrant.

MR HAMPSON:  Yes, Your Honour, because if they are already

there, there is a continuing trespass being

committed. It is no less a trespass because

someone put them there yesterday before they

approached Mr Justice Carter.

McHUGH J: But assume they were there lawfully.

MR HAMPSON:  If they had already been there lawfully for

some reason, yes.

McHUGH J:	The owner had allowed them to be put there.
BRENNAN J:	Then there would be nothing wrong with the

warrant except that the first condition, on your

argument, would be obviously otiose. Why is it

that the trespass by which they were put there
makes any difference to the operation of this order

for the purposes of 43?

MR HAMPSON:  Your Honour is putting to me a case of course

where they do not have to be installed. I would

accept a case - if you are using a long-range type

of case, you do not have to install it because you

can listen at a distance, but, unfortunately, we

are concerned with a case where it has to be

installed.

DAWSON J: What happens if, say, the foreman at the factory

who had authority to do so let the police in to

install it?

MR HAMPSON:  I have already conceded. I mean, that is quite

appropriate. There is no question that -

DAWSON J:	A warrant would be effective then, the authorization?
MR HAMPSON:	The authorization would say, "You can listen at

these particular premises", yes. The problem, of

course, is really - I mean, this is, with respect,

a little ingenuous because there is a particular

proposition that is put to His Honour and what we

are now imagining are variations of it. The police

came up with a particular proposal, "This is our

proposal", and His Honour approved that proposal.

Now, in testing whether His Honour's approval of

that proposal is valid or invalid, it is not really

right to put that approval against other proposals

whereby they come up to His Honour and say, "Well,

Coco(3) 31 17/11/93

look, there has already been one lawfully put there

for some time ago", or "The foreman has got -

DAWSON J:  What I am saying to you is the installation need not necessarily involve a trespass and, if that is so, the authority covers the situation.

MR HAMPSON: That is so, and I have already conceded that

if, in fact, the proposition that the police put

up, did not involve a trespass, if they came along

and they said, "Look, there is the foreman at this

particular factory.	He has the power to say
whether - - -"

DAWSON J:  The point that Justice Brennan is putting to you:

if it can be a valid authority in certain

circumstances, the fact that it is exercised in a

particular way which involves a trespass does not

mean that it is invalid so far as the listening is

concerned.

MR HAMPSON: Well, with respect, you can take an authority

which is given on a particular proposal and you can

imagine facts which would make that authority

valid. But that is not the case. We are concerned

with a real case here where the police made a

particular proposal, and that was what was

approved. The validity of His Honour's approval

has to be measured by what His Honour said in
relation to the proposal that was made to him, not

in relation to some other proposal that might have

been made to him.

McHUGH J: But that must be because in some way the

authority to listen becomes void because he

misdirected himself in law and misunderstood the

nature of the power he was exercising, so that

there was no effective exercise at all. That is

why I was seeking to draw a distinction between

process and result. Your argument seems to

concentrate on result and, for the reasons that

Justice Brennan has put to you, it does not seem to

me to necessarily lead to the invalidity of the

listening part of the warrant.

MR HAMPSON:	The existing part?
McHUGH J:	The listening - the authorization concerning

listening.

MR HAMPSON:  I would submit that it does lead to that

result.

McHUGH J:  I understand what you are putting.

Coco(3) 32 17/11/93

MR HAMPSON: That is a separate way of putting it, from the point of view of just a complete absence of power.

He just thought he was - - -

McHUGH J:  I am not saying it is good or bad, but it just

seems to me at the moment that is the only way you

can put your argument.

MR HAMPSON: There are two separate ways of putting it

obviously, Your Honour. As far as

Justice Brennan's way of putting it, I would submit

that what he does has got to be measured by what he

is supposed to be approving. It is an approval,

after all. There is an application made and there

is an approval given. You must look at the

approval in the light of that application, not of

some other application. If in fact the approval

that is given is invalid in relation to that

application, it does not matter that the very same

words in the written approval if made - if given in

relation to a different factually constructed

application, it would have been a valid approval.

BRENNAN J: That seems to me to take it back to what

Justice McHugh was putting to you in terms of the

miscarriage of the power. In other words, if you

examine what Mr Justice Carter did on this

application, it may be possible to say he

misunderstood the nature of the power that he had,

that he took into account considerations that were

irrelevant to the exercise of the power or other

such arguments which might, in administrative law

terms, lead to the avoiding of a voidable decision.

Then the question becomes whether, if the decision

has not been avoided, you can attack it by

collateral attack in the criminal trial.

MR HAMPSON:  I think I have already made the submission that

when faced with the application that they made -

first of all, His Honour clearly has power to act

under the section. Presumably there could be lots

of applications made to him which he would have
power to approve.	So what one has to start off in

this case is to look at the application that is

made to him and test his jurisdiction in relation

to that application.

I have already made the submission that when

they came along to him with material that said, "We

are surreptitiously going to have to install this

device", that he should have said, "I don't have

power", and that would have been the end of the

matter.	He said, "I don't have power to do it; I
can't approve it.	Come back with a different

proposition. I'll examine it but I can't approve

that; I just don't have power", if he had correctly

Coco(3) 33 17/11/93

interpreted what the statute said and empowered him

to do.

Really it seems to be tested even more so by

the fact that that power, the authorization to

actually enter, misunderstanding the jurisdiction,

is incorporated in the approval - the approval

itself is subject to the following condition, which

is an authorization to enter. Of course, there is

absolutely no basis upon which His Honour could

have found that anywhere in the Act.

So what we really say - and I have said it

before - is that His Honour was wrong in entering

on it at all. He had no power to approve that

application in whole or in part because it

proceeded - part of the proposal was that there was

to be a trespass committed.

Now if they amended their application and

said, "Ha ha, we make a different application and

it is one that is based on the fact that the

foreman or somebody has power to let it in or that

there was already a lawfully put listening device

there", something of that kind, that would fall to

be considered on completely different grounds, but

they are not the grounds here, and we can only
consider what was done in the light of, in fact,

the application that was made and we submit, as our

first submission, that he was quite wrong in

entertaining it, giving any approval whatsoever,

and that the approval consequently is void, and

that it is not possible to save any part of it.

I had mentioned shortly - - -

McHUGH J:	I may be a bit old fashioned about these things, but without some form of proceedings by way of
certiorari to quash, I mean, how can you challenge
the validity of the warrant in any way?

MR HAMPSON:  Good question, Your Honour, when you do not

know about it. Excellent question if you do not
know about it until at trial suddenly starts to

produce the fruits of the illegal phone taps or

listening device; you do not know at that stage.

At that stage you are probably out of time for everything, so what you do is you go off to the

supreme court and you seek a declaration from the

judge that there has been a breach of the Act and

things of that kind; you try to challenge it and

you argue that the approval was void. That is what
you do, that is what Mr Coco did, and he succeeded

before the trial judge. He said, "This was an

exceptional sort of case" and for those reasons he

was prepared to make a declaration and did so.

Coco(3) 34 17/11/93

But then, of course, what happened was it then

went to the Court of Appeal and things of that

kind, and then you got more and more differing

views, but he did, Your Honour, he was old

fashioned enough to seek, as soon as he was aware of it, he went to the courts and said, "I want to

challenge this", and the way he was advised to

challenge it, of course, was in the widest way, to

seek a declaration and also, I think there was a

mandatory injunction to deliver up whatever it was,

and things of that kind, but he did make the

challenge, Your Honour, and he made it as soon as

he could know about it. In the ordinary course of

events, a citizen will never know about these matters, unless in fact he is charged and the prosecutor is trying to use the tapes, or else, if

there is no charge brought for years and years, he

might never know. I mean, it may well be, years go

by, well out of time before - - -

McHUGH J:	Were there not committal proceedings?
MR HAMPSON:	Well that is when the tapes first came up in

the course of the committal proceedings, yes,

Your Honour. Then after he was charged and then

the knowledge of the tapes first came to him then.

So what more really could he do at that time? At

that time, in fact - speaking from recollection, we

did not have a Judicial Review Act in Queensland

and my recollection was, for certiorari, there was

a time limit of six months or something of that

kind; I think he probably would have been out of

time. But anyway, be that as it may, he did seek a

declaration which is as good as obviously seeking

prerogative relief.

We would submit that the approval of the use

is not severable from the approval of the entry.

They are inextricably mixed up in this particular

occasion. It might be argued, "Well, the approval

to use should be construed as conditioned upon

lawful entry", it should be said in some way, you

affect the severability by cutting out the other

authorizations or reading in that it should be

lawful entry, to get back to the foreman situation

or the listening device already in place. We would

submit unless you could do that, unless the
approval is conditioned on lawful entry, then the

approval would have to be wholly void but, of

course, now you have to look at the events that

happened in this case, if the approval was so

construed, because we know there was not a lawful

entry, and so therefore the approval would fail if

it were construed to be conditioned upon lawful

entry, because we know it was a tortious entry that

was made.

Coco(3) 35 17/11/93

So, whichever way one looks at it, we would

submit there is no approval to satisfy and fit

within the power of section 43(2)(c).

MASON CJ:  Now, Mr Hampson, on a question raised with you by

Justice Brennan as to whether you can, in these

proceedings, make good a collateral attack on the

validity of Justice Carter's order, or the warrant,

there does seem to be authority in this Court that,

on the face of it, is against you, and that is

Murphy v The Queen in 167 CLR 94, particularly in

the joint judgment of Justice Toohey and myself at

pages 105 to 106, and I will just read you one

sentence at the top of 106:

Where a warrant can be issued by the

appropriate authority only upon its being

satisfied of prescribed matters to be shown by

the applicant for the warrant, the validity of
the warrant is not open to collateral attack

merely on the ground that the material laid

before the authority was insufficient to

satisfy it of those matters.

And that was a warrant authorizing the use of a

device. Of course the attack sought to be made

there was different from the attack that you are

seeking to make here, but none the less that is

what is said in that case.

MR HAMPSON:  Your Honour, I would like to read it before I

reply to that.

MASON CJ: Yes, I realize that.

MR HAMPSON:  I am familiar with the case but not so familiar

that I would like to take it up immediately,

Your Honour.

If I can leave that, the different aspects of

trying to sever the matter and look at a further

alternative argument. If, in a further

alternative, the approval was construed as an

approval only of the device, the use of the device

to monitor the private conversations without any

reference to the presence and upon the device, then section 43(2)(c) was not complied with, because the police officers were not acting in the performance

of their duty. They were acting, no matter what

they might have thought, they might have taken

comfort from the fact that their superior officer

said what they were doing was approved by a supreme

court judge, but the fact of the matter was that

they were acting unlawfully because they had to

illegally obtain entry for the warrant to be

effected.

Coco(3) 36 17/11/93

So we would submit that an approval, as it

were, severed down to a mere approval, will be

insufficient to be relied on. It cannot be valid

because, in fact, what is required by the section
is a warrant wherein the police officers are acting

in the course of their duty.

TOOHEY J:  I do not follow that. I thought that when you

began the argument you were really taking two quite

independent steps, that is, an approval which did

not in terms refer to installation or to entry on

premises, which therefore might be saved on the

argument that you have been presenting thus far.

But I understood you then to go on to say

nevertheless, a member of the police force

purporting to give effect to that approval would

not be acting in the performance of his duty if he

went unlawfully on to premises. That is not an

argument that brings down the approval, is it?	I
mean, I thought it accepted the efficacy of the approval, but said nevertheless the conversation

was inadmissible because the police officer was not

acting in the performance of his duty once he

unlawfully went on premises.

MR HAMPSON: That is so, Your Honour. It is an argument

really which says that the prosecution cannot

escape from the fact that there has been a

contravention of the section. They have not been
able to bring themselves within the exception even

if the warrant is severed down to such general terms as Your Honour has in mind, such general terms as that, because the problem then will be

there will be a contravention of the section

because the police officers who use, pursuant to

that warrant, will not have been acting in the

course of their duty.

TOOHEY J: If you get away from this particular form of

warrant and just conceive of a warrant issued in

general terms authorizing the use of a listening

device in relation to private conversations carried

on in identified premises, but not in terms

referring to installation or entry upon premises, I

take your argument to be, nevertheless if, in

pursuance of that approval, a member of the police

force unlawfully goes on premises to give effect to

the approval, then the section has been breached,

not because of the terms of the approval, but

because of the way in which effect has been given

to it.

MR HAMPSON: That would be so, Your Honour. It is obvious

the way that the section goes there is a

prohibition against using; the prohibition does

not apply if you fall within the section, and an

important part of that is -

Coco(3) 37 17/11/93

this section does not apply -

(c) 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 -

and then it goes on -

under and in accordance with an approval in

writing given by a judge -

so it would not be a way of saving the warrant.

The warrant technically, I suppose one could argue,

would be good if it was put in such general terms,

but it would not save it because it would not then

be capable of constituting an exception. The

reason probably is, when one looks at it, that the

Parliament has tried to spell out a pretty detailed

code as to what is required before an exception

will arise. It is a reasonably elaborate system

that the member of the police officer has to be
"acting in the performance of his duty"; he has to
be "authorized in writing" to use a device "by the

Commissioner of Police" - I will leave out the

possibility of the other one -

under and in accordance with an approval in

writing given by a judge ..... in relation to
any particular matter specified in the

approval. There is obviously an effort to bring it down with

some particularity, not just approval at large.

Then the matters in subsection (3) that the judge

has to consider are further directed to asking the

judge to consider the limitations that should not

be put on because having directed him to have

regard to those matters in (3)(a)(b) and (c) -	the judge may grant his approval subject to
such conditions, limitations and restrictions
as are specified in his approval and -

and the "and" is important -

as are in his opinion necessary in the public

interest.

That condition, of course, 1, is very hard to see - I think I said before, how you could think

that that is a condition in the public interest.	I
mean, what the legislature thought about,
obviously, were building into the written approval all sorts of protections such as could be built in

Coco(3) 38 17/11/93

to balance the invasion of the person's rights, on

the one hand, with the necessity of the police to have the information because of the importance of the investigation, or whatever it was.

MASON CJ:  Mr Hampson, could I give you some good news about

Murphy v Reg? When you look at the judgment, it is

clear enough that the conclusion reached by the

Court that no collateral attack could be made in

that case, was predicated upon the fact that the
warrant was granted by a judge of the supreme court

and, being an order of a superior court, its

validity was to be presumed, indeed, until it be

set aside or corrected on appeal or by other due

process of law. So you are not confronted with the

basic foundation on which the conclusion was

reached in that case.

MR HAMPSON:  Yes, I have been immune from that since, in the

Court of Appeal, it was accepted that it was an

administrative decision, not a judicial order by a

superior court.

MASON CJ: Yes, but I was going to say to you that, of

course, the order made by Mr Justice Carter was set

aside by Mr Justice Lee, was it not, on the ground

that it was invalid?

MR HAMPSON:	Yes.
MASON CJ:	And then the Full Court held that it was valid.

Now, how do you get rid of that order made by the

Full Court?

MR HAMPSON:  We sought special leave to appeal to this Court

here, and that is an application for special leave

which was declined at the time on the basis,

really, it was premature.

MASON CJ:  I see. So, in other words, it is covered by

this outstanding special leave application?

MR HAMPSON:  That is why we bring that before the Court,

lest somebody says, "Ah, you are cut out, there is

res judicata there", and we would say to the Court,

"No, please give us special leave. We are no

longer premature; reactivate that old application
for special leave", and therefore there is no

question of res judicata.

TOOHEY J: But what was the fate of that other application?

It was not simply adjourned, was it? It was

refused?

MR HAMPSON:  No, the application was dismissed but on the

ground that it was premature to interfere with the

criminal processes at that stage.

Coco(3) 39 17/11/93

TOOHEY J: Yes, but my question really was - and you have

given me the answer - there is no proceeding still

pending before this Court?

MR HAMPSON:  No, no. When I say we have sought to

reactivate it, what we have done is we have refiled

all that material, as it were. I am sorry, we have

filed an affidavit, in which affidavit we refer to

all the previous material without refiling it, and

sought to rely on it, Your Honours. That is the

machinery by which we have tried to bring it back

before the Court.

MASON CJ: But you have not actually got an application for

special leave before the Court at the present time?

You think you have?

MR HAMPSON:  I think the affidavit seeks to rely on - I do

not know quite what the machinery is, Your Honour.

I take that under advisement, Your Honour.

MASON CJ: Well, you will find out and let us know.

MR HAMPSON: We were advised not to refile it, but

apparently it was sufficient to file an affidavit

saying, "We wish to rely on the earlier application

and the material filed in support of the earlier

application." That is what I am told its position

is, Your Honour, but if the Court thinks it is

necessary I certainly would undertake to file a
fresh application, but I think an effort was made

in the course of these rather interminable

proceedings to try to limit the amount of paperwork

and material that was being put before the Court.

DEANE J: Apparently, on the application for special leave,

the last one, you indicated that you wished to

renew the application for leave to appeal from the

earlier judgment.

MR HAMPSON: That is so, yes, Your Honour.
DEANE J:	I note what was said - made a note of that and

said you were free to -

MR HAMPSON:  Yes. That arose out of this very discussion

that we were having just a little while ago on the

basis of whether there may or may not have been a

res judicata back there because of the earlier

proceedings.

I could perhaps give the references: in the Full Court, two of the Justices, the Chief Justice

and Mr Justice Derrington, treated the use - that

is the actual use being made of the machinery, the

device when it was in ..... as something which could

be severable. The actual ideal of the use was

Coco(3) 40 17/11/93

severable from the trespass involved in the use and

we submit that that really is a too rarified

approach; it is an incorrect approach. Where

Their Honour said it is at page 59 of the appeal

book, starting at about line 29, going over to
page 61, about line 20 - that is the Chief Justice;

Mr Justice Derrington at page 89 and then on to page 90 at about line 21.

And that was rather similar to what the trial

judge had said, in effect, when he at page 39, in a

ruling that he made.	He deals with the matter
under the heading:

Question 10: Validity of approval

notwithstanding invalidity of authority to

enter.

The question then arises whether the
invalidity of the "condition" authorising

entry (etc.) invalidates the whole of the

approval, or whether it may be severed from

the rest.

And he goes on to, really, sever it; he is severing

the illegal entry. Perhaps I should show the

reasoning. It goes over to page 40, line 5:

In my opinion the defence has failed to

establish that the approval is wholly invalid.

I am not satisfied that "condition" 1 "forms

part of an inseparable context" or that

severing the invalid "condition" from the rest

"would produce a different result from that

which was intended" ( Peters v Attorney-General

for New South Wales) .

It is important to note, as I have done,

that the approval as such may be lawfully -

relied on:

The "conditions" would ordinarily be regarded

as of subsidiary significance to the formal

approval. It would be surprising were the

invalidity of one such condition to lead to
the invalidity of the whole of the approval in

circumstances like these. The rest of the

approval may operate sensibly notwithstanding

the deletion of the condition.

we have already made submissions, of course, that

are completely contrary to that and we just

reiterate that the reasoning there, in our

submission, is incorrect.

Coco(3) 41 17/11/93

The result, then, is that the listening device

was used in contravention of section 43(1) of the

Act because the Crown has failed to establish that

the matter is brought within section 43(2)(c),

which is the only relevant exemption that was

relied upon. That is either because the approval

itself was void or the approval imposed a condition

of lawful entry - if you construe it that way - and
that, in fact, did not occur. That Scanlan, and

the Australian Federal Police officers, were not

acting in the performance of their duty when using

the listening devices because the use involved the

continuing trespass of the device remaining there

on the premises and the continuing unlawful

abstraction of the electricity for which Cosco

Holdings was paying.

In our paragraph 15 we make the alternative

submission that the trial judge was correct in

finding, as he did at page 22 and 23, that

section 43(2)(c)(i) did not apply to exempt the application of section 43(1), and what we are

talking about there, of course, is we are talking

about "a member of the police force":

in relation to the use of any listening device

by -

(i) a member of the police force - - -

DEANE J:  Mr Hampson, could I divert you altogether back to

an earlier matter?

MR HAMPSON: Surely, Your Honour.

DEANE J:  And that is, how do you read condition 1 on

page 7? I mean, what do you do to it grammatically

to produce an intelligible condition?

MR HAMPSON:  I would have thought, Your Honour, that what is

intended is to insert the words "is hereby

authorized" or something like that after the word

"offence" and before "to enter" in the second line.

In other words, I think - - -

DEANE J:  Why read it that way? Another possibility would

be to read it as saying "otherwise have authority".

MR HAMPSON:	It would amount to the same but there is - - -
DEANE J:	No, it would amount to the opposite.
MR HAMPSON:	I am sorry, I should have asked Your Honour, where does Your Honour suggest - - -

Coco(3) 42 17/11/93

DEANE J: Before "to enter", you can either insert "is

hereby authorized" or you can insert "otherwise
have authority" in the sense have authority under

some other legislative authorization such as a

warrant to enter or something like that. I can see

the way you read it is the easy way of reading it,

but why should one read it in a way that has the

result that Justice Carter was purporting to do

what he could not do instead of reading it as

meaning what he should have said?

MR HAMPSON:  Then it would read, if I could just fill it

out:  "That any authorized Police officer or person

engaged in, or assisting the investigation of the

said offence, who otherwise has lawful authority".

DEANE J:	Or "have legal authority".
MR HAMPSON:	Are you using the imperative, Your Honour?
DEANE J:	I am saying a condition that says, "This isn't

authorizing entry".

MR HAMPSON:  But that he have authority - - -

DEANE J: It is on the condition that he have legal

authority to do it.

MR HAMPSON:	From somewhere else?
DEANE J: Yes.
MR HAMPSON:	I follow what Your Honour means.
DEANE J:	I do not think it helps you at the end of the day.

At first sight it does, but I am not sure whether

it helps you.

MR HAMPSON:  Your Honour, in the first instance it would not

help me because, if the matter was read that way,

it is a condition that the person in effect obtain

from other source, if he does not already have it,
lawful authority.	One would say there is nothing

wrong with condition 1 because it in no way at all

constitutes the authorization of a trespass, but of

course the problem is that in the events that

happened then, you still have a breach of

section 43 because the police, as we know, did not

have authority, they have been found to be

trespassers and therefore they were not acting

within the performance of their duty and therefore

the - - -

DEANE J:  I follow all that. The problem from your point of

view on that approach would be that it confines

your argument to the point that you discussed with

Justice Brennan and would defeat your attack on the

Coco(3) 43 17/11/93

validity of the authority, which is why I said down

the line I do not think it helps you.

MR HAMPSON:  No. I accept that, Your Honour, just as I

accept that would be another way really of severing

the authority down to it is just a general

statement that you have leave to use a listening

device.

DEANE J: But you say, anyway, that in the context of the

affidavit, you read 1 as purporting to authorize.

MR HAMPSON:	Yes, Your Honour. With the greatest respect, that would be a very unusual way of reading it,
although it would be in conformity with Mr Justice Carter's powers under the Act.

DEANE J: It would preserve validity.

MR HAMPSON:  But it does not have any regard to the proposal

that the police put up. It really ignores and goes

off on something different, because the police

proposal clearly was not on the assumption that

they were going to get authority dehor the

application to Mr Justice Carter, or that they had

a dehor the application. Their application was

clearly based on the fact that their authority was

going to come, they hoped, from his approval.

DEANE J:  The Chief Justice points out to me that if it were

read that way, it would be arguable that the

authority was subject to an unfulfilled condition.

MR HAMPSON:	Yes, because they never got it.
DEANE J:	Which would affect subsequent reliance on it.
MR HAMPSON:	Exactly, that is quite so, Your Honour, because

the	evidence clearly shows that neither did they
have	existing authority nor did they get authority
from	some source other than Mr Justice Carter.
We then deal, in paragraph 15, with the

argument that was raised about the efficacy of

section 9 of the Federal Police Act. The trial

judge found that the section did not apply to

exempt federal police officers, that they were not

members of the police force. He found that "a

member of the police force", in

section 43(2)(c)(i), referred to a member of the

Queensland Police Force.

We refer to certain sections of the Acts Interpretation Act which justify that view.	The
familiar type of provision that where, in a

statute, a reference is made to an office and so

Coco(3) 44 17/11/93

forth, that is to be a Queensland office unless

other words are used, and so on.

The Court of Appeal, however, reached a

different conclusion: the Chief Justice, at

page 69, 15 and 71, Mr Justice Pincus at 78, 1 and 81, and Mr Justice Derrington at 92, 27 through to

95 10. So they construed "police force", "members

of the police force", as including federal police

officers and, indeed, Mr Justice Derrington would

have seemed to have even gone further that and
anybody who could be described as a police officer

from overseas or wherever would have fitted into

that. Now, we would submit that that is a wrong

construction of the provision.

What was also relied on, though, in the same

context, to say that, "Well, federal police

officers could really avail themselves of the

section", was section 9(2) of the Australian

Federal Police Act. That is, perhaps, a slightly

more subtle point because the provision is in this

form:

Where any provisions of a law of a State apply

in relation to offences against the laws of
the Commonwealth or of a Territory, those

provisions so apply as if:

(a) any reference in those provisions to a

constable or to an officer of police included

a reference to a member; and

(b) any reference in those provisions to an

officer of police of a particular rank

included a reference to a member holding the

rank that is, or is declared by the

regulations to be, the equivalent of that

rank.

Now, of course, the important question is what is

meant by: 

Where any provisions of a law of a State apply

in relation to offences against the laws of
the Commonwealth or of a Territory.

It is not Commonwealth laws applying. It is a case

where the provisions of a law of a State apply in

relation to offences against the Commonwealth or a
Territory.

The obvious case where that happens is in section 68 of the Judiciary Act which provides

that:

Coco(3) 45 17/11/93

The laws of a State or Territory respecting
the arrest and custody of offenders or persons

charged with offences, and the procedure for -

(a) their summary conviction; and

(b) their examination and commitment for trial

on indictment; and

(c) their trial and conviction on indictment;

and

(d) the hearing and determination of appeals -

and so on, all these things:

shall, subject to this section, apply and be

applied so far as they are applicable to

persons who are charged with offences against

the laws of the Commonwealth committed within

that State, or whose trial for offences

committed elsewhere may lawfully be held

therein.

Now, that provision is quite clear when you come to

9 ( 2 ) :

Where any provisions of a law of a State -

so here they are all States really by

section 68, are made to -

apply in relation to offences against the laws
of the Commonwealth or a Territory -

then these consequences of a federal police officer

being in the same position as a State police

officer, as a matter of federal law, of course,

then occurs. So the Commonwealth law gives him the

powers equal to those of a State officer where the
provisions of the laws of a State apply in relation

to offences against the laws of the Commonwealth or

a Territory.

When one comes to the Invasion of Privacy Act,

section 43, it is only necessary to read it to see

that it is not a case where you have any provisions

of a law of a State applying in relation to

offences against the laws of the Commonwealth or a

Territory.

BRENNAN J: Is that not an evidentiary provision, this

section 43? Would it not be picked up on a trial

of a Commonwealth offence by section 79 of the

Judiciary Act?

MR HAMPSON:  No, with respect, Your Honour.

Coco(3) 46 17/11/93

BRENNAN J:	In that case we need not worry about the appeal.
MR HAMPSON:	If section 79 of the Judiciary Act, the State's

evidence - the evidence - what is admissible or not

admissible is determined by the law of the State.

When the Queensland Supreme Court is exercising

federal jurisdiction, you would say that that

provision in section 46 of the Invasion of Privacy

Act which says:

Where a private conversation has come to the

knowledge of a person as a result ..... 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.

that is an evidentiary matter. So the State law

according to section 79 of the Judiciary Act is

competent to deny admissibility to that material

obtained in contravention of the Invasion of

Privacy Act.

BRENNAN J: That has the consequence that the only person

who can be authorized to utilize these listening

devices in the case of an investigation of a

federal offence is a State police officer.

MR HAMPSON: That is so, Your Honour, until - I do not know

whether Your Honour appreciates it, but there has

been amendments recently to the Federal Police Act

whereby now they have their own powers and so

forth. But as at this time that was the case, and that was seen to be the case obviously because, if

you look at section 43, the only two possibilities

on the Commonwealth side are expressly referred to

in section 43(2)(c)(ii) and (iii):

(ii) an officer employed in the service of the

Commonwealth in relation to customs authorized

by a warrant under the hand of the

Comptroller-General -

In those days narcotics offences fell entirely
within the Customs Department; the Australian

Federal Police did not have any significant role in

it. So that was one area of Commonwealth law. The

other Commonwealth law was with security under

(iii). So in both those cases, the State

legislature says that is already an exception, so

that will be admissible. We are not going to make

material gathered as a result of the exercise of
those two Commonwealth laws inadmissible. They
will fall within the exception and therefore not be

obtained in contravention of section 43 in any way

Coco(3) 47 17/11/93

and they will be admissible, so there is no problem

about them.

But as at that time, Your Honour, there was no

way in which - take the passage of this Act. It
was the Commonwealth Police Force anyway, not the

Australian Federal Police Force. But there was no

way in which the police force could of its own

motion use listening devices. There was a

universal law prohibiting; there was an exception
within which they could not come unless you

construed a member of the police force to include

federal policemen, Tasmanian policemen, Thai

policemen - it is a question of how far you go. But the Acts Interpretation Act talks about

officers when used in an Act being officers of

Queensland or, alternatively, you use 9(2). But the problem about 9(2) is that you cannot see of

this Act, the Invasion of Privacy Act in section 43

or elsewhere, that it is a provision of a State law

applying in relation to offences against the laws

of the Territory or a Commonwealth, so that it is
possible the provisions may apply in relation to

the polices.

GAUDRON J:	Does this question arise because the federal police assisted in the installation of the device?
MR HAMPSON:	It was really their operation, yes,

Your Honour. They did the lot except they got the

Queensland policemen to - - -

GAUDRON J: But when you say, "They did the lot", as I read

the authorization, they installed it, but the

monitors and the transcribers seem to be different

people.

MR HAMPSON:	They were all federal policemen - - -
GAUDRON J: All of them?
MR HAMPSON:	- - - apart from two women who would appear to

be not even police. They were in the

administrative services.

GAUDRON J:  The transcribing - - -

MR HAMPSON: Yes, they seemed to be typists or stenographers

or something.

GAUDRON J:  So all these people with the numbers on page 11

are all federal?

MR HAMPSON:  They are all federal police, yes, and they were

all acting on behalf of Scanlan. Scanlan was the

Queensland policeman. The Queensland Commissioner

Coco(3) 48 17/11/93

said Scanlan was authorized; Scanlan applied to the

judge, and he made a proposal to the judge, in

effect, that although it was his application, all

these federal police would do everything and they

would monitor, instal the equipment, monitor the

equipment, type out transcripts, keep the

transcripts in a secure place, keep the tapes in a

secure place and so forth. So the Queensland

approval, if one likes, was that of Scanlan.

GAUDRON J:	Why are the monitors not described as federal police officers?
MR HAMPSON:	To His Honour?

GAUDRON J: In the authority.

MR HAMPSON:  I do not know, Your Honour, but they were

clearly. They were, in fact. It may be, I do not

know, but it may be that by not so describing them

you gave a better flavour of joint

State/Commonwealth co-operation to it - I do not

know - just the same as the letter talked about

investigating State/Commonwealth offences. But the

material and the material at trial - without going

into it, I will just state this from the bar

table - shows, in fact, that apart from Scanlan and

apart from the Queensland Commissioner's part in

authorizing, apart from that, it was entirely an

Australian Federal Police operation.

So that is why we say that section 9(2) of the

Australian Federal Police Act does not apply.

There is another one - paragraph 16 - we did put

this in. Although the Crown had not relied in the
Court of Appeal on section 12 of the Australian

Federal Police Act, and that is why we have put in

our submission the Crown correctly conceded that

section 12 did not apply; in fact, having seen

their outline we see that that is not their present

view.

question of law, but this has been written in too We do not blame them for it, it is purely a

optimistic a way that they now contend that it does

apply.

It is not right, well they do not contend that

it does not apply, but apparently they are not

contending that it does apply. So anyway, I will

just go on to deal with it.

we would say first of all, section 12 of the

Australian Federal Police Act cannot apply to

Scanlan's participation in an authorization of the

use of the device because he was a Queensland

police officer, so he has got to stand

independently, obviously, of the Federal Police

Act. But, section 12 did not protect the federal

Coco(3)	17/11/93 police officers because their use of the device was
not in the exercise of their powers or in the performance of the duties, again, because of the
trespass that was involved that we have dealt with
before.

So, that stands outside section 12. If you

come to section 12 of the Act - - -

BRENNAN J: That does not matter, Mr Hampson, does it? I

mean, on the appeal at the moment we are concerned

with a conviction based upon evidence which you say

was inadmissible. Now, however obtained, and you

might have a Bunning v Cross argument, but leaving

that aside for the moment, why does not 12 provide

for those federal police officers who gave

evidence, I assume that they did, exemption from

the operation of this Act?

MR HAMPSON:  I am just going to submit why it does,

Your Honour, because the question at all times gets

back to whether the material was obtained in

contravention of the section 43 and the only way it

can be obtained without that contravention is to

come within the exceptions that are given there.

Two in favour of Commonwealth, the other one

requiring the judge's approval in writing.	So as
far as section 12 is concerned:

A member or staff member is not required

under, or by reason of, a law of a State or

Territory:

(a) to obtain or have a licence or

permission for doing any act or thing in the

exercise of his powers or the performance of

his duties as a member or staff member; or

(b) to register any vehicle, vessel,

animal or article belonging to the

Commonwealth.

MR HAMPSON:  That is what the provision is, and it is

simply, in our submission, it is simply a provision

that says that the Queensland legislation requires

all persons who have concealable firearms to have a

licence. It means that a federal police officer

does not have to licence his firearm, his service

issued firearm. That is the sort of thing it is

concerned with; not concerned with this type of

situation when you look, first of all, that no

Invasion of

police officer is required by the under or by reason of the law of a Territory to obtain or have a licence for doing any act or thing in the exercise of his powers in the performance of his duties.

Coco(3) so 17/11/93

DAWSON J: But he is, he is required to have a licence to

record a private conversation, and authority and

approval.

MR HAMPSON: Well, with respect, Your Honour, you might say,

"Well, a licence and approval is as wide as a

licence." In a sense that is so, but what really

happens, as here, is he does not get a licence to

record a private conversation because the Act does

not allow him to do that. He cannot apply for a

licence, I mean, section 12 is not going to put him
in that position because what has to happen to get

the exemption, in fact, is that he has got to apply

to a judge and do certain things in the way of

getting an approval. That stands far outside - if

you look at the position where it is in the Act, it

is after 9 and 10 which we have looked at.

11 Where a writ or warrant is issued under

the law of a State or Territory in relation to

an offence or other matter under a law of the

Commonwealth or of a Territory, the writ or

warrant may be executed by a member,

notwithstanding that it is not addressed to a

member -

Then, the next one:

Immunities from certain State and Territory laws

12.       A member or staff member is not required

under, or by reason of, a law of a State or

Territory:

(a) to obtain or have a licence or permission

for doing any act or thing in the exercise of

his powers or the performance of his duties as

a member or staff member; or

(b) to register any vehicle, vessel, animal

or article belonging to the Commonwealth.

Now, in the context, there are Commonwealth

laws that govern this. There are Commonwealth laws

with relation to security, with relation to

narcotics offences which regulate - I am talking at

this time, they have been changed since, of

course - Commonwealth employees' use of listening

devices, and there has been an exception made in
the favour of the Commonwealth people from 1971, up

until the time that we are concerned with. These

things happened in 1989. One has to take the view

that it was open to an Australian Federal Policeman
to go and use listening devices, in Queensland,

without any approval at all.

Coco(3) 51 17/11/93

One is entitled to say, "Well, it does not

matter that there are State laws there." It does

not matter that the Commonwealth has got a code,

and it is quite a complicated code, the Telephonic

Interception Communication Act. The provisions

with relation to Narcotics, Defence and Customs

Act, and so forth, the security service, these things have been looked at carefully, but even

though the Commonwealth has moved in that way to

restrict its operatives in very significant areas,

very important areas, one might have thought,

nevertheless, an Australian Federal Policeman - he

can just go ahead, he does not need a licence, he

can just start employing a listening device.	Now,
in my submission, one would say - - -

DEANE J:  Mr Hampson, does not this all, in one sense, lead

a bit up the garden path? I mean, if you look at

page 6, what Justice Carter has done is to

authorize Mr -

SCANLAN of the Queensland Police Force by himself or by means of any other person engaged in or, assisting the investigation -

Now, that is either within Justice Carter's power

or it is not. If it is within his power, it is on

the basis that for the purposes of the Act,

Mr Scanlan does not have to act personally, but can act through other people.

Well now, if that is so, for the purposes of

section 43(2)(c), it is Mr Scanlan acting

throughout, through these other people. I can

understand an argument that the authority is

invalid, because all that can be done is to

authorize somebody to do something himself, but if

that argument be not right because of the effect of
the provisions of the Act and Mr Scanlan can act by
himself or by all these people designated pursuant

to condition 4, what has it got to do - i mean,

what is the relevance whether they are members of

the Federal Police or, as you say, the Thai Police,

or

MR HAMPSON:	Only because you can only come within the exception, constituted by (c)(i), if in fact you
are a member of the police force, acting in the
performance of your duty.

DEANE J: But that misses the question and that is if, for

relevant purposes, a senior member of the police
force can be authorized to act through other people

for the purposes of section 43(2)(c)(i), it was

Mr Scanlan acting through these other people. That

is what the authority says.

Coco(3) 52 17/11/93

MR HAMPSON:  Yes, Your Honour, but the people who are acting

must, to come within the exception and thereby not

commit a prohibition, which makes the evidence

inadmissible, must be officers of the Queensland

police; that is the argument. First of all,

because under section 43(c)(i), it is a use by:

a member of the police force -

but if you go down further -

an officer of police ..... who has been

appointed in writing by the Commissioner to

authorize the use of listening devices,

under and in accordance with an approval in

writing given by a judge -

So, in other words, there is no power here for

Scanlan to authorize whoever he likes; it is a

limited class of persons. This is part of the idea

of the privacy, no doubt, that it has tried to be

sure it is only police offices, members of the

police force who are doing it and, therefore, if in

fact people are listening, people who are not

members of the police force, let us say, the

Attorney-General or somebody comes and listens to

the tapes, he is not a member of the police force,
well, he would be committing a contravention of
section 43, even though the Commissioner of Police

purported to authorize it, because he falls outside

the class of people who, in fact, can act. So that

is the significance of it.

DEANE J:	I follow the way you put it.
MR HAMPSON:	The only other points we would like to make in

relation to this are that section 43 itself does

not even permit, much less require, federal police

officers to obtain a licence; it is not like what

is envisaged by section 12, where they will come

against some provision of a State statute that will

put them in a position perhaps of committing an

offence, unless you get a licence or something of

that kind. That is not the case here; it is a case

of, if you want, no one can do this, unless you, in

fact, can bring yourself within an exception, and

it was up really to the federal government, if the

two Commonwealth exemptions, provided by (ii) and

(iii) in section 43(2)(c) were insufficient, it was

up to them to make an exemption in favour of the

Australian Federal Police Force and they did not do

so. And that is quite obvious, that the federal police force thought they had no right to go in and

just use listening devices, because they tried to

use the State police force. They came here and

Coco(3) 53 17/11/93

tried to get the State police to do it in a way

that it has already been explained.

Secondly, if section 9(2) was applicable, then

the provisions of section 43 of the Act, the idea

of getting the exemption, as modified by

section 9(2) would take effect as Commonwealth law,

not as State law. The result would be it would not
be a law of a State within the meaning of

section 12; it would really be a law of the

Commonwealth.	So section 12, in our submission,
that is another reason why it cannot apply.	We say
in any event - - -

BRENNAN J:  Am I right in saying that your first argument as

to why section 12 does not apply is because the

only provision of section 43 which does apply to

federal police officers is 43(1), and that does not

contemplate any licence?

MR HAMPSON:  No, Your Honour, I would say that 43(1) - I am

sorry, 43(1) does not mention federal police.

BRENNAN J: That is everyone including federal police.

MR HAMPSON:	Yes, I see, in that sense, Your Honour.
BRENNAN J:	And 43(2) has no application to federal police.

MR HAMPSON: That is so.

BRENNAN J: Ergo you say there is no State law which

requires the federal police to obtain a licence?

MR HAMPSON: That is so.

BRENNAN J: Is that the argument?

MR HAMPSON:  Yes, Your Honour.

BRENNAN J:	I see.
MR HAMPSON:	Looking at sections 11 and 12 of the Police

Act, 12B, in context and so forth, one sees that the Commonwealth legislation which permits the limited use by federal operatives of listening

devices in particular cases has been carefully

worked out. There are codes to it. It is not a

question of, if there is not a Commonwealth Act

carefully prescribing what is to be done by its

operatives in this area of sensitivity in recent

years, you assume that the operative can go off and

do what he likes. That is not the situation,

surely. The inference is that they were not to

have the power unless perhaps State law did give

them the power. But they were not to have it.

Coco(3) 54 17/11/93

That was the inference one would have and we

would say that that legislation under 12B then,
when you weigh it with the Telephonic

Communications Interception Act and the Customs Act provisions to which I referred - what you can see

that 12A licences are really referring to are the sort of personal licences that they might have to

get:  a licence to carry a firearm, a licence to

even drive a motor car, perhaps something of that

kind. I mean, it is a sort of reversal of

Perry v McFarland that is really contained in this particular section here, and it goes no further.

But to use that as a basis for saying that it

allows the, by very virtue of that section, that

section alone, it allows the federal police, as it

were, completely to disregard section 43, when in fact that just means, in our submission, that you

are giving to a section a force which is completely

out of context, and it would be a method of

construction which would, in fact, greatly restrict
State provisions of various kinds in the way, not

of the personal licences I have been talking about, but cases as to whether people get permission to go

on to property and things of that kind. You can

think of a lot of situations where things such as

that would happen.

So, we say then that so far as 12 is

concerned, it does not really apply, and neither 9

or 12, then, of the Federal Police Act really

assists the Crown in relation to this matter. Now,

the course that I thought was commending it to the

Court was that I would not continue with the

appeal, is that correct, Your Honour - with the

application for special leave to appeal - either, that is the res judicata point - salvation point,

if I could call it that way, and the Bunning v

Cross, but to leave those until the courts finalize the actual appeal.

BRENNAN J:  Mr Hampson, I have just one problem which, in a

sense, is a residual problem to your argument. If

one accepts the whole of your argument, are you

none the less faced with the existence of that

decision of the Court of Appeal on appeal from Mr

Justice Lee, and does that present a problem, and

must you therefore agitate your special leave
application? It is, in a sense, almost a
procedural difficulty but I must confess I do not

know the answer to the question whether on the

criminal trial you can agitate an erroneous

exercise of power as distinct from agitating the

question of no power. I just raise that with you

because I do not know the answer to it.

Coco(3)	55	17/11/93
MR HAMPSON:	It was raised in both proceedings.	I can only

say, Your Honour, it was raised at the criminal

trial, and it was raised before Mr Justice Lee.	So
far as the application for special leave went off
on different grounds, there is nothing, of course,
to prevent the Court now from extending time and
giving special leave to appeal from that.	Perhaps

I should formally ask for that to be done if, in

fact, the Court is minded otherwise to allow the

appeal. That might be the most sensible course,

that if the Court were minded to allow the appeal

on the grounds that I have argued but saw a

possible difficulty, without arguing whether there

is a real difficulty, saw a possible difficulty

because of the course that this litigation has

followed, that the Court could then, my having now

applied for it conditional upon that judgment of

the Court, allow an application to extend time and

give leave to appeal against that because the

Court's decision would be the same on that application for special leave as on the appeal that the Court is hearing today and in respect of which

it has given special leave. So perhaps I could

make that application formally now on the material

that has been filed, and what happens with it will

depend upon the Court's judgment in the actual

appeal.

MASON CJ:  You have made the application orally and we can

deal with it on that footing, subject of course to

anything that Mr Weinberg has to say.

MR HAMPSON:  Yes. That leaves the extant application for

special leave on the Bunning v Cross point.

DEANE J:  Mr Hampson, before you go away from the main

point, were all the conversations recorded here

conversations with taxation officers?

MR HAMPSON:  No, Your Honour, some of them were Mr Coco with

other people where taxation officers were not

present.

DEANE J: In so far as the taxation officers are concerned,

or their conversations, if you had got the ruling

you had wanted, why would not 46(2)(a) have

obviously let in evidence of those conversations?

MR HAMPSON:  It would, Your Honour, but of course there was

a big difference in quality and length of time

between the two lots of - - -

DEANE J:  I was only really directing the question to the

statement in your submission to the effect that it

is common ground; if your argument succeeds, there

was no case against your client, or something.

Coco(3)	56	17/11/93
MR HAMPSON:	No, that is not really what we say.	I think

what we say - - -

DEANE J:	I must have misread it.
MR HAMPSON:	There would have to be a new trial because the reception of all that inadmissible material would
have made the trial miscarry.
DEANE J:	I follow.

GAUDRON J:  Was that really directed to that charge, or the other charges? You see, there must have been a

direction as to what charges the evidence related

to?

MR HAMPSON:	No, I think the Crown relied on it in relation to all the charges in so far as it presumably
related back, Your Honour, and things of that kind,
I think. I cannot be very helpful because I was
not at the trial. But, that is the impression I
have from having read it.

GAUDRON J: But, you see, I can well understand why most of

this evidence might have gone in in relation to a

conspiracy charge upon which your client was

acquitted, but when it comes to the charge of

attempt to bribe a Taxation officer, I would have

thought that the evidence was the evidence of the

Taxation officer's, full stop, and that there would

be nothing else relevant to that charge.

MR HAMPSON: Well, at the present moment, Your Honour, it

would be simply this: that the reception of a lot

of inadmissible evidence would be a ground for

quashing the conviction.

GAUDRON J: But you have got a trial of several charges.

MR HAMPSON:  Yes, that is so, Your Honour, yes, and he was

convicted only on one charge.

GAUDRON J: Yes.
MR HAMPSON:	Is Your Honour asking me, "How can we be sure

that the evidence that I am saying here is

inadmissible was significant to his conviction?"

GAUDRON J: But I am asking whether it was even admitted in

relation to the charge on which your client was

convicted.

MR HAMPSON:  Yes, and it was said by the Crown in the Court

of Appeal that it was significant with relation to

the charge on which he was convicted, yes,

Your Honour. So there is no question of the fact

that this evidence, if it was otherwise admissible,

Coco(3) 57 17/11/93

was evidence relied upon by the Crown in relation

to the charge on which my client was convicted,

with the consequence that if it should not have

been admitted, there was relevant and material

evidence which was inadmissible, and the result is,

we are entitled to have the conviction quashed.

Now what happened after that is a lot of other

problems, because if that was the case there could

then be, with relation to the Bunning v Cross
question, further matters for a trial judge to

consider, which have not hitherto been considered,

because he ruled that the evidence was admissible

and that they were not acting outside their duty

and things of that kind. So that puts another

flavour on the Bunning v Cross and that is why I

was earlier raising to the Court whether it was not

better to, as it were, get the appeal out of the

way before one really looked at what should be done

about the application of Bunning v Cross.

MASON CJ: Yes, well that might be an appropriate course to

pursue. We will adjourn now until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

MASON CJ: Yes, Mr Weinberg.

MR WEINBERG:	If the Court pleases, if we could commence our submissions by answering a question that was
troubling Your Honour Justice Gaudron just before
lunch.  It related to the reason why the Crown has
made the concession that if the evidence obtained
by the use of the listening device was inadmissible
a new trial would have to be ordered,
notwithstanding the fact that there was a lot of
evidence that would still be available involving
the conversations between the tax officers and the appellant.

The answer lies in the fact that in the later

conversations which were overheard by use of the
listening device, the appellant and his

brother-in-law are talking about the way that they

can present the earlier conversations in such a way

as to provide him with a defence. What they are

saying, in effect, is "Why don't we say that they

approached you and you pretended to go along with

the corruption offer?" So if the Crown were left

Coco(3) 58 17/11/93

without the later tapes there would be a different

complexion that could be placed upon the material

that would on any account be admissible, and the

later tapes obtained as a result of the use of the

listening device cast a different light upon the

earlier conversation.

GAUDRON J:	And I take it the tapes went in.
MR WEINBERG:	They did.

GAUDRON J: It was not a question of anyone giving evidence

about what they heard on the tapes?

MR WEINBERG:  No, the tapes were played to the jury and they

were tendered as an exhibit, and indeed the jury
were given copies of transcript whilst the tapes
were being played and by consent were permitted to

have the transcript in the jury room and play the

tapes if they wished to during the course of their

deliberations. That is a composite tape consisting

of both the listening device product pursuant to

the provisions of the Act and the earlier

conversations which had also been recorded by

different means because the tax officers had been

there and were talking with the appellant.

The second preliminary point which we would

wish to clear up is the question of the status of

the special leave application from the order of

Mr Justice Carter. There has been, with respect, a

little bit of confusion about that. If we could

just set the matter clear, the original proceedings

before His Honour Mr Justice Lee, which are

reported in 97 ALR 419, were conducted in March of

1990 and no attack was made upon the orders of

Mr Justice Carter in those proceedings, none at

all.

Proceedings were brought against the members

of the Australian Federal Police and various other

persons seeking injunctions, declarations, mandamus

and so forth, but there was no attack at all upon

the actual order of Mr Justice Carter. So much

becomes clear from pages 421 and 422 of the

judgment of Mr Justice Lee. Before the Full Court

of the Supreme Court of Queensland in Shaw v Coco,

the judgment being reported in 102 ALR 75, which is
the appeal from the decision of Mr Justice Lee,

again there was no attack made upon the order of

Mr Justice Carter. So much appears at page 78 at

about line 35, where Mr Justice McPherson said:

The orders were made ex parte; but they have

not been the subject of appeal, as I am
inclined to think that under s 10 of the

Judicature Act 1876 (Qld) they might have

Coco(3) 59 17/11/93

been ..... even if in character such orders are

not judicial but administrative.

The orders of Carter J approving the use

of listening devices by persons not members of

the Queensland Police therefore remain

unchallenged.

And what happened then was that an application was

made to this Court for special leave to appeal from

the decision of the Full Court of the Supreme Court

of Queensland, and this Court refused special leave

upon the basis that the application in the exercise
of discretion should be refused, it having a

tendency to fragment the adminstration of criminal

justice.

So again, before this Court, the order of

Mr Justice Carter was not the subject of the

application for special. What subsequently

happened after the decision of this Court refusing

special leave to appeal was that an application was

then made for the first time to Mr Justice Dowsett

by originating summons on 13 January 1992, shortly

before the trial was to commence before His Honour

the trial judge, Mr Justice De Jersey, and the

application to Mr Justice Dowsett sought an

extension of time within which to appeal against the order of Mr Justice Carter and an order nisi for certiorari upon the assumption that

Mr Justice Carter's order was administrative in character and therefore could not be the subject of

an appeal.

Mr Justice Dowsett refused to make either

order and what happened then was that there was an

appeal from Mr Justice Dowsett's refusal to make

those orders to the Full Court of the Supreme Court

of Queensland, and what we have is a copy of the

relevant documentation. That is, the notice of

appeal to the Court of Appeal, I should have said,

of Queensland from the decision of
Mr Justice Dowsett.	We have the two notices

seeking to appeal against each of those decisions. That is, the refusal to extend time and refusal to

grant the order nisi for certiorari.

What happened after that was that the

appellant withdrew the appeal initially, and
subsequently, I think this is the order, consented

to an order that the appeal be dismissed. So it

was never heard, and there has never been, prior to

this time, heard by the court a challenge to the

order of Mr Justice Carter. I have the documents

available. Perhaps, if it were convenient I could

either hand them to the Court at this time or make

them available to the Court for later inspection.

Coco(3) 60 17/11/93

MASON CJ: Well, you might do that.

MR WEINBERG:  Yes, if the Court pleases. Did Your Honour

want me to hand those documents to the Court now,

or?

MASON CJ:  No, there is no occasion to hand them to the

Court now, we can look at them later.

MR WEINBERG:  Well, that is the history of the matter. Can

I say this, that if the Court is of the view that

the evidence in question was inadmissible then, so

far as the respondent is concerned, the respondent

accepts that there should be an order quashing the

conviction. The procedure by which that is to be

achieved is, in our submission, of less importance

than the acceptance of the fact that if that

evidence was not admissible, not properly

history of the matter.

admissible, that the conviction ought not to stand. actual

Might we also say, Your Honour the

Chief Justice drew attention to some observations

in the case of Murphy at pages 105 and 106, and

then said there was some good news for our learned

friend because that case had proceeded upon a

certain assumption. There is probably some better

news for our learned friend because this Court cast

some doubt upon the passage in question in a later

case of Love v the Attorney General, 169 CLR 307,

and at page 322 in the joint judgment of the Court,
which Your Honour the Chief Justice and

Justices Brennan, Dawson, Toohey and Gaudron

joined. The bottom paragraph at page 322 referred

to the passages in question in Murphy's case and

this passage appears:

Although the appellants relied on the comments

of Mason C.J. and Toohey J. in Murphy v The

Queen to support the view that a warrant

issued under the State Act is a judicial
order, the precise issue now under
consideration was not argued in that case and
we do not consider that the comments made in

that case govern this issue.

It is, in fact, pages 105 and 106, in the entire

context in which those comments were made. So I am

not sure that one would say that the comments, as a

whole, were doubted, but certainly the observations

to the effect that judicial power was being

exercised in Murphy's case seem to have been

doubted by this Court in Love's case subsequently.

Those are the preliminary matters.

Coco(3) 61 17/11/93

Might we then address the principal matters of concern so far as the appeal is concerned and say

this right at the outset. The question of whether

or not the observations of this Court in Plenty v
Dillon and the earlier observations of

Your Honour Justice Brennan in Halliday v Nevill in

some way constitute a basis for saying that this

evidence was inadmissible, in our respectful
submission, upon proper analysis those observations
do not raise any such impediment or difficulty. We

say so for this reason.

We draw the attention of the Court to what was

said in Plenty v Dillon, (1991) 171 CLR 635, and I think Your Honour the Chief Justice drew attention to the observations of two members of the Court, in

particular, which appear in the joint judgment of

Their Honours Justice Gaudron and Justice McHugh at

pages 648 and 649.	The passage in question at the
bottom of page 648:

A number of statutes also confer power to

enter land or premises without the consent of

the occupier. But the presumption is that, in

the absence of express provision to the

contrary, the legislature did not intend to

authorize what would otherwise be tortious

conduct.

Morris v Beardmore are cited, and Colet's case in

Canada is cited, and so is the decision of

Clowser v Chaplin. In addition to that, the

Court's attention was drawn to a passage in the

joint judgment of Your Honour the Chief Justice, Justice Brennan and Justice Toohey, at pages 644

and 645 - the bottom of 644 and the top of 645.

What we desire to submit to the Court is that in

that passages at pages 644 and 645 in which three

members of the Court joined there is talk about

whether the provisions of section 27 of the

Justices Act of, I think it was South Australia,

were sufficient:	to create an implication that a process-server availing himself of either of the options
acquires a power to enter upon private land
without the leave or licence of the person in
possession or entitled to possession thereof.

In other words, the case turned upon whether the

particular statute was sufficient to raise an

implication.

Now, unless the principle is that a statute

can, by implication, in appropriate cases,

authorize what is not expressly authorized in the

statute by way of trespass, then there would be no

Coco(3) 62 17/11/93

cause to talk of implications, there would be no

cause to talk of presumptions at all, and what we

say, with great respect, is that the two members of

the Court who wrote the narrower judgment, which
actually used the word "express", must be taken to

have understood by that term something like express

or unambiguously, or express or by necessary

implication, but there was not a new principle

being laid down by the Court to the effect that

unless a statute says, expressly and in terms that

some additional power can be exercised by the

authorities in addition to the powers specifically

enumerated, then no such power can be implied.

If there were such a principle, then we say, for one thing, the Court would have to consider

considerations of convenience. One classic example

would be the provisions of the Commonwealth Crimes

Act, section 10. As the Court will well recall,

that section provides for entry and seizure; it has
never provided for search. It is a very curious
provision because it deals with search warrants,

but it does not empower search, yet the cases going

back quite a long way have always said, "Well you

have to imply into a statute which says that you

can enter and seize a power to search", and there

are decisions of the Federal Court to that effect

and saying that, as a matter of common sense, such

an implication must be drawn.

If the literal requirement that the statute

must expressly say that there is a power to search

before such a power can in fact be held to exist

were true, then probably every search that has been

executed since the year 1910 by members of the
Australian Federal Police or the Commonwealth

Police or their predecessors has been unlawful.

Now, that is just an observation that we make,

that for a very long time courts have, in

appropriate cases, been prepared to draw necessary

implications, even in these sorts of cases where

existing common law rights would be denied by such

an implication being drawn.

We say it was not the intention of this Court

in Plenty v Dillon, and certainly not a majority of

this Court in Plenty v Dillon, to alter that

longstanding approach to statutory interpretation.
We do, of course, accept that there are
presumptions at play and a presumption necessarily,

we submit, means a presumption that can be

rebutted. If one starts with a presumption that

you do not read the statute that way, but you have

to find the implication and affirmatively be

satisfied that that is the proper way to read the

statute, that is fine and we will happily accept

Coco(3) 63 17/11/93

that burden, but we say that the wider principle, which emerges from a requirement that the statute

expressly and in terms set out that entry is

permitted, is not one that has thus far been

sustained by this Court.

We hope to make good our submission to the

Court that on a proper reading of these provisions,

section 43, there is an implication to be drawn to

the effect that entry is permitted for the purpose

of installing a listening device. In order to make

good that argument, we are going to rely upon

primarily two decisions, one a decision of the

Supreme Court of Canada in the case of Lyons et al

v Reg, 14 DLR (4th) 482. It is a decision of the

Supreme Court of Canada handed down in 1985.	We
hope to take the Court to that for just a few
moments and then to move to a decision of the
United States Supreme Court in Dalia v United
States, 441 US 238, that decision having been
handed down in 1978.

In Lyons' case the situation that confronted

the Supreme Court of Canada was essentially not

dissimilar to that which is raised before this
Court. There was a provision in the Canadian

Criminal Code which authorized the interception of private conversations and the Act was silent as to

whether or not entry could be effected for the

purpose of installing the relevant devices. There

were some differences. The statute talked about

"interception" rather than "use" of a listening

device, which is the formulation that we are

concerned with in the Queensland Invasion of

Privacy Act, and there was a definition of

"listening device" as including something like

electromagnetic, acoustic or other devices of that

kind, whereas a wider definition of "listening
device" appears in the Invasion of Privacy Act. It

is simply a device that is capable of being used to

record or overhear or monitor private

conversations. Putting those two minor distinctions, we would

say, aside, the fundamental question of principle
that confronted the court was the same as the

question of principle that confronts this Court.

The court decided by a majority of four to two that

an implication should be drawn from the history,

the context, the background, the subject-matter,

the purposes of the legislation to the effect that

it was proper for a judge to order that a listening

device as defined could in fact be installed,

though installed as a result of covert entry or
surreptitious entry or what would otherwise be

trespassory entry.

Coco(3) 64 17/11/93

It was Justice Estey who provided the decision of the majority of the court. His Lordship's

judgment commences at page 492. If I can just take

the Court to a few selected passages. The Court

will see at the bottom of page 493 the definition
of "listening device" that was used in the Canadian

legislation, which I should say was introduced in about 1973 or 1974 in Canada; about the same time as the legislation that we are talking about here -

I think a couple of years after the Queensland

legislation. The definition was:

means of any electromagnetic, acoustic,

mechanical or other device.

That was the kind	of device that was spoken of in
the legislation.	Your Honours will see that at
page 495 when one	turns to section 178.11(1) of the
Code:

Every one who, by means of an

electromagnetic, acoustic, mechanical or other

device, wilfully intercepts a private

communication is guilty of an indictable

offence and liable to imprisonment for five

years.

The statute has the same format. It provides a

prohibition, a criminal offence followed by either

an exception or a situation where the criminal

offence did not arise. Your Honours will see at

page 497 at about point 2 of the page that these

provisions were -

introduced into the Criminal Code by the

Protection of Privacy Act, 1973-74.

Your Honours will see also at the bottom of page 497 the Justice Estey notes:

The plan of Part IV.l, the "Invasion of

Privacy" provisions of the Criminal Code, is

directed both to protecting, and to invading,
the privacy of the individual.

That is a very important point, we submit, because

the same point can be made about the provisions of

the Invasion of Privacy Act of Queensland. The Act

does provide protection through the creation of a
criminal offence under section 43. It provides
further protection through the enactment of an
exclusionary rule of evidence in section 46, but it
also provide and empowers police to use these

devices in particular circumstances for proper purposes. It achieves both objectives. It is designed to protect privacy, but also, we submit,

designed to enable the police to utilize these

Coco(3) 65 17/11/93

devices in support of law enforcement, proper

objectives properly authorized, and so forth. The

court, as I say, recognized both those factors as

being implicit in the Canadian legislation.

The court noted at page 498 that the Manitoba

Court of Appeal in an earlier case in Dass, had taken a narrow view of the word "interception" and

had said that interception did not extend to
installing the device, and the court rejected that

narrow view of the word "interception" and said

half-way down page 498:

With respect, I do not accept the reasoning

which leads to this conclusion. The process

of interception is a single undertaking
carried out under the authorization orders of
the court and cannot be segmented into legally

consequential and legally inconsequential

steps.

If I can stop there, we will be submitting to the

Court that there is a clear distinction between a

term like "interception" which involves a process

which can properly encompass the earlier steps, the

installation of the device as a process of

interception, and the actual words of this statute

which talk about "using a listening device".	We
will be submitting to the Court the proper interpretation of "use" is the narrow

interpretation that His Honour the trial judge and

the members of the Court of Appeal agreed was the

correct interpretation, and that has certain

profound consequences so far as the outcome of the
appeal are concerned even if we are wrong in our

primary submission about implications being drawn

from the statute.

It was said, at page 499, point 6, by

Justice Estey that:

It was not argued that the transmitter

planted by the police in the premises of the
appellant Lyons was not "an

electromagnetic ... device" -

within the meaning of the relevant statute, and at

page 500 His Lordship went through an excursus on

the history of the law of trespass, including the
various forms of trespass, historically, and

pointed out how, in modern law, causing objects to

go across property, including radio waves, could,

in His Lordship's view, constitute a trespass.

That is of some importance because as we go on from

page 501 onwards there is a reference to

Semayne's case, and the well known principles in

Coco(3) 66 17/11/93

that case, and His Lordship recognized, at

page 501, half-way down the page, that:

The invasion here is of privacy and this concerns both the personal aspects and the

property aspects of privacy. The inviolable

nature of the private dwelling is a basic part

of our free society.

And, His Lordship went on to encapsulate all of the

full width of the importance of the principles in

Semayne's case. It cannot be said that the

judgment of the majority of the Supreme Court of

Canada, in any way, undervalued the important, fundamental principles laid down in that case, and

subsequently applied.

None the less, what His Lordship said at the

bottom of page 501 is important, in our submission:

The law has long recognized many compromises

and outright intrusions on the literal sense

of this concept: for example, the right of
the community to search on proper
authorization; the right of pursuit; the right

of eminent domain; the right of the community

in applying zoning restrictions and safety

standards -

and so forth, and His Lordship said at 502 that:

" ... there are occasions when the interest of a

private individual in the security of his

house must yield to the public interest, when

the public at large has an interest in the

process to be executed". The community

interest in crime detection and suppression
also inevitably entails intrusion on the
castle concept. Part IV is a recognition of

the technical realities of the age of

communications as they affect crime detection

and prevention in particular, and the right to

privacy in general. It represents a balance

selected by Parliament of these conflicting
concepts and interests. Intrusion into

privacy is an obvious and inevitable

concomitant of an authorized crime detection
procedure. Explicitness is a requirement

before legislation may properly be found to be

intrusive of these basic rights. However, the

need to express the obvious is not present in

the canons of statutory interpretation.

Could we, with respect, submit to the Court

that that is a line that we would wish to submit

accurately encapsulates part of our submission.

Coco(3) 67 17/11/93

The need to express the obvious is not part of the canons of statutory interpretation.

His Lordship then goes on to talk about the

different kinds of interception of private

conversations that were regarded as available in

Canada when this decision came out in 1984, and he

talked about the distinction between different

kinds of devices - wire-tapping and eavesdropping.

wire-tapping involving tapping into telephones,

either on or off premises. Eavesdropping using

listening devices of the kind that His Lordship was

referring to, and he spoke about the most

sophisticated devices, including all forms of

eavesdropping, as His Lordship said:

passive acoustic eavesdropping by means of

parabolic and other like microphones) -

His Lordship said all of these:

entail either the personal entry into the

premises by the interceptor or his

collaborators for the purpose of installing

equipment; or the invasion of the premises in
question by directing at those premises energy

in the form of electromagnetic waves.

His Lordship was saying it does not matter whether

you enter and install the device or whether you

project these waves through a device, it is still a trespass either way. And he is saying, in effect,

that virtually all the devices that are available

have one or other of these effects, although
His Lordship does exclude what he calls "passive

acoustic eavesdropping" which, as I understand it, simply means a capacity to listen through an open

window by a supersensitive device. There is no

question but that there are devices that do not

actually require electromagnetic waves to intrude

upon premises. There are devices, as the case

glass, and therefore do not actually require itself indicates, which pick up vibrations off intrusion.

But there is a number of pages of this

discussion of the different kinds of devices, and

it is taken from a number of scientific sources

that His Lordship actually refers to in the course

of the judgment, the various books and so forth

that His Lordship has referred to.

Finally, we come to page 506 where

His Lordship notes towards the bottom of page 506 and the top of 507:

Coco(3) 68 17/11/93

Part IV.1 contemplates at least three

fundamental processes or devices which may be
employed in the interception of a private
communication: electromagnetic (radio,

telephone and optical), acoustic and

mechanical devices. There is no particular

provision relating to each of these special
types or forms of communication. All are
embraced in the same general provisions. It

is therefore clear that Parliament, in Part

IV.l, is legislating with reference to the

employment of any equipment or procedure

relating to the electromagnetic spectrum

(ranging as it does through the spectrum from

radio waves to light waves), the acoustic

vibrations above or below and including the

range of the human ear, and to mechanical

devices, for the purpose of intercepting oral

(and other) communication occurring anywhere.

This is broad legislation embracing in these

extensive provisions the use of a wide range
of radio, telephone, optical and acoustical
devices for listening to and recording private

communications as broadly defined. It is not "wire-tapping" legislation, nor eavesdropping

legislation, nor radio regulation. It is the regulation of all these things and "any other

device" that may be used to intercept

intelligence reasonably expected by the

originator not to be intercepted by anyone

other than the intended recipient. The scheme

of regulation includes the judicial

authorization to intercept issued in response

to a request for permission to intercept

personal communications by any device

contemplated by the Code supported by the

requisite information as specified in the

regulation. Part IV.l has authorized the use
of all such procedures. They involve the
invasion of property by directed energy for

the purpose of extracting private

communications occurring therein or thereon,

yet no express authorization of the essential

"entry" on to the premises under surveillance

is to be found in the provisions. Parliament

should not be taken to have authorized the use

of procedures and equipment without, at the

same time, supplying the public officials

undertaking these duties with the appropriate

means and authority to carry them out. This,
in my view, Parliament has done by authorizing

the employment of apparatus, some of which necessarily entails such forms of "entry".

BRENNAN J:  The entry that he is referring to there is -

Coco(3) 69 17/11/93

MR WEINBERG:	Both sorts of entry we say His Lordship is referring to; that is, entry by actually entering
and installing and the entry constituted by
projecting electromagnetic fields and other such
impulses through the property.
BRENNAN J:	I may have missed something, but I did not see

the former of those anywhere in His Lordship's

references.

MR WEINBERG:	The form of the latter.
BRENNAN J:	The physical entry by a person with a piece of machinery.
MR WEINBERG:	His Lordship does address that as one method by which, I think he deals with it under radio
communications; the entry and installation of
device. That is what occurred on the facts of this case. The facts were that there had been an entry
by those who had installed the relevant device; it
was not a case where they had used something
super-sophisticated. There had actually been an
entry and the issue in the case was whether or not that so-called trespassory entry, as it was argued,
vitiated the admissibility of the evidence and the court, by majority, held it did not, thereby holding that the entry in this case was authorized
by the legislation.
McHUGH J:	I must say the thing I find surprising about this

case is that the order itself simply authorized

interception and allowed the people to whom it was

addressed to enter in such a way as they thought

fit.

MR WEINBERG:  Yes, that is so, Your Honour.

McHUGH J: That strikes me as extraordinary. If you apply

that decision to this case, what does it mean, that

there was no need for condition 1, that the police

officers involved, they could have knocked down

some walls or done what they wanted to do.

MR WEINBERG:  We are going to take Your Honour to an

observation of His Honour Justice Stephens in the
judgment of Dalia, the very next case, where

His Honour actually reads the legislation with that distinction in mind and says, "I will draw the

implication that covert or surreptitious entry is

OK, but not that forcible entry is OK". So, the

point that Your Honour raises precisely has been

the subject of consideration. Certainly His Honour
does not in terms or by implication say, "You can

knock walls down" or anything of that kind, but he

does say what he said in condition 1.

Coco(3) 70 17/11/93

What we had intended to do from the judgment

of Justice Estey was to point out to the Court that

at least the majority decision did consider this

question of principle on legislation that we say

was relatively close to the legislation that we are

considering here and did by majority come to the

view that the implication in question should be

drawn, indeed, the language of Justice Estey at

page 514, to find another formulation of it, His

Lordship said at about line 7, used these words: and necessarily entail, by clear and

irresistible implication, the entry into the

premises designated in the order for the

purpose of installing this radio device and

the renewal batteries.

His Lordship also dealt with a question that I

think was raised by Your Honour Justice McHugh this

morning, half-way down the page, about the possible
methods of getting the device into the premises

without trespassory entry, and he spoke about a

stool-pigeon being used. Half-way down the page:

If the stool-pigeon were a friend or confidant or guest of the person being investigated,

neither a breach of the criminal law nor of

any right in the civil law which would give

rise to a cause of action would appear to have

occurred.

So, the Court was conscious of the fact that

there were possible ways in which the device could

have been installed, so it was said, without a

breach of the civil law or criminal law taking
place. But that did not dissuade the court from

taking the view that the broader implication should

be drawn in these circumstances. At page 516,

again on the broad question of principle and the

test to be applied, His Lordship said, about one

third of the way down the page:

It is unreasonable, in my view, to read

s 178.16 of Part IV.l, a mini-Code of

interception regulation, as rendering the
content of such interception in admissible by

reason of the fact that the use of almost all

of those procedures entails a mode of entry

into the premises amounting in civil law to
trespass.

His Lordship pointed out that there had been a

number of occasions in the late 1970s when this

issue had been debated before the provincial courts

and His Lordship accepted the correctness of the

decision of the Ontario Court of Appeal in

Papalia's case - that is dealt with at the bottom

Coco(3) 71 17/11/93

of page 517 - and cited, with approval, a passage

from the judgment of Mr Justice Brooke speaking on

behalf of the court in that case. This is half-way

down page 518:

Brooke J.A., speaking on behalf of the court,

stated:

... almost all instances of wire-tapping and

electronic surveillance involve conduct in the
nature of trespass and this includes

surreptitious or covert entry. Without the

consent of the owner, to interfere with a

telephone line, telephone receiver or

transmitter or switching equipment is a

trespass.

Then His Lordship, at page 519, referred to Dalia's

case and the decision of the United States Supreme

Court, which I am going to come to, and pointed out

that the Canadian legislation was modelled, in

effect, upon the US legislation. Of course, our

legislation, as can be seen, was closely modelled

upon the same US legislation which was introduced

before the 1971 Invasion of Privacy Act. We will

take the Court to the United States legislation in

a little while. I will not read pages 520 and 521

because they are from the judgment of Dalia and the

earlier decision of the United States Court of

Appeals in Scafidi at page 521.

The court also referred to various sources of

extrinsic material which supported the conclusion

arrived at, including many books, texts, articles -

all set out at pages 523 and 524. Finally, at

page 527, half-way down the page, this passage
appears:

When seeking the proper interpretation of these provisions one should ask if Parliament

must be taken as intending to give an

authority to the investigating forces which

could not be put to use. The invocation of

powers granted under part IV.l in aid of crime
detection serves no purpose if the
authorization granted relates only to isolated
pieces of equipment without any direction or
authorization that it be employed in
association with authorized devices for

interception either by wire-tapping or for
electronic or acoustic surveillance. It is

one thing to leave too much to the discretion of the investigative agency but quite another to stultify the whole undertaking.

In a case where the court was conscious of the fact that there were techniques available for

Coco(3) 72 17/11/93

intercepting without actually entering, these

observations are made.

The decisions of the House of Lords in Morris

v Beardmore were not ignored by the court. They

were noted at page 529, as was the decision of the

Supreme Court of Canada in Colet's case at page 528

which was referred to by this Court in Plenty v

Dillon in the passage that I referred to. The

Court was fully conscious of the approach that had been taken in Colet's case to the construction of

the warrant provisions in that case. We rely

obviously and heavily upon the decision of the

Supreme Court of Canada.

We also rely heavily upon the decision of the

Supreme Court of the United States in Dalia v

United States. If I can take the Court to that.

It is a judgment which was given on behalf of the

majority of the court by Mr Justice Powell

commencing at page 240. The facts again involved

an actual trespassory entry, or what would have

been a trespassory entry, without being able to

rely upon the provisions of the relevant

legislation.

In this case it was the Omnibus Crime Control

and Safe Streets Act of 1968 which was under

consideration. Again it authorized the use of

listening devices, again it was silent on whether entry should be implied as a power concomitant to

the use of the relevant devices.	The timing we say
is significant.	The Act is again broadly

contemporaneous with the 1971 Invasion of Privacy

Act that this Court is concerned with.

Mr Justice Powell, in the course of delivering the

opinion of the court, pointed out at page 249 at

about point 2 or 3 of the page:

Title III does not refer explicitly to

covert entry.	The language, structure, and
that Congress meant to authorize courts - in	history of the statute, however, demonstrate
certain specified circumstances - to approve electronic surveillance without limitation on
the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Title III provides a
comprehensive scheme for the regulation of
electronic surveillance, prohibiting all secret interception of communications except
as authorized by certain state and federal
judges in response to applications from
specified federal and state law enforcement officials. Although Congress was fully aware of the distinction between bugging and
wiretapping, Title III by its terms deals with

Coco(3) 73 17/11/93

each form of surveillance in essentially the

same manner. Orders authorizing interceptions

of either wire or oral communications may be
entered only after the court has made specific
determinations concerning the likelihood that
the interception will disclose evidence of

criminal conduct. Moreover, with respect to

both wiretapping and bugging, an authorizing

court must specify the exact scope of the

surveillance -

and so forth. At the bottom of page 250

Mr Justice Powell said this:

Nowhere in Title III is there any

indication that the authority of courts

under -

the particular paragraph -

is to be limited to approving those methods of

interception that do not require covert entry

for installation of the intercepting

equipment.

And, at page 251, His Honour said:

The legislative history of Title III

underscores Congress' understanding that

courts would authorize electronic surveillance

in situations where covert entry of private

premises was necessary. Indeed, a close

examination of that history reveals that question of covert entries in the Act, only

because it did not perceive surveillance

requiring such entries to differ in any

important way from that performed without

entry. Testimony before subcommittees

considering Title III and related bills

indicated that covert entries were a necessary

part of most electric bugging operations.

And, His Honour referred to a number of sources for

that proposition, including judicial sources. At

page 252, after dealing with that record, His

Honour said:

In the face of this record, -

this is half-way down the page -

one simply cannot assume that Congress, aware

that most bugging requires covert entry,

nonetheless wished to except surveillance
requiring such entries from the broad

authorization of Title III, and that it

Coco(3) 74 17/11/93

resolved to do so by remaining silent on the

subject. On the contrary, the language and

history of Title III convey quite a different

explanation for Congress' failure to

distinguish between surveillance that requires

covert entry and that which does not: Those
considering the surveillance legislation

understood that, by authorizing electronic

interception of oral communications in

addition to wire communications, they were
necessarily authorizing surreptitious entries.

Finally, Congress' purpose in enacting

the statute would be largely thwarted if we
were to accept petitioner's invitation to read
into Title III a limitation on the court's
authority under 2518. Congress permitted

limited electronic surveillance under Title

III because it concluded that both

wire-tapping and bugging were necessary to

enable law enforcement authorities to combat

successfully certain forms of crime.

Absent covert entry, however, almost all

electronic bugging would be impossible.

The citation to that, footnote 14 - Your Honour

Justice McHugh will see that footnote 14 contains

this passage:

Although he cites no authority,

Mr Justice Stevens apparently believes that a

practicable alternative to covert entry would
be installation of bugging devices through

subterfuge ..... Nowhere in the legislative

history of Title III is there any indication

that Congress wished to limit its

authorization to bugs installed through

subterfuge.

Might we say that we could live with

Mr Justice Stevens' dissenting opinion in this case

because what was used in this case was subterfuge.

There was no breaking and entry of the kind that

Justice Stevens would have said was beyond what was

reasonable, and what was done in this case involved

exactly that, subterfuge.

BRENNAN J: That did not apply to installation of the bug in

the house, did it?

MR WEINBERG: In the house?

BRENNAN J: Yes, as distinct from the factory.

MR WEINBERG:  There was no bug installed in the house,

Your Honour.

Coco(3) 75 17/11/93

BRENNAN J:	I see.
MR WEINBERG:	What happened was they were unable to get a

bug into the house at all. There was only one

installed in the factory.

BRENNAN J:	I see.
BRENNAN J:	So we say, in effect, there is a unanimous

decision of the United States Supreme Court if one

treats Mr Justice Stevens and those who dissented

with him as at least supporting the right or the

power or the implication in the American statute

to enable entry to be effected by subterfuge.	Even
Mr Justice Stevens, Mr Justice Marshall and

Mr Justice· Brennan who dissented would have allowed

that much to occur, and we say there is at least a

unanimous decision so far as subterfuge is

concerned. The majority of the court, however,

went further and said covert entry, implying no

subterfuge but actual breaking and entering was a

necessary implication to draw from the statute.

Those are the two cases that we wanted to read

extensively to the Court from and rely upon the

principles enunciated in them.

One other point that we make in relation to

the later legislation, the amendments that were
made in South Australia and in Victoria - one
possible explanation for those amendments, of
course, lies in the fact that by then it was known
that there had been a torrent of this kind of
litigation in Canada and the United States
throughout the 1970s and 1980s, and out of an
abundance of caution Parliament in those States,

when amending this legislation at that time,

decided to grant the power expressly and they did

in Victoria. But it is instructive to note that no

State which introduced this kind of legislation

around the period of 1969 which was when Victoria's

Act was introduced, and I think New South Wales had

an Act in 1969 - again, that Act did not empower

anyone to enter. Queensland in 1971, no power to

enter; West Australia still has the Act in its

original form, no power to enter in the Act even

today.

What we say is that in the context of the

time - and one has to go back 22 or 23 years - it

was true to say, as Mr Justice Pincus said in the

Court of Appeal below, that really, in 1971 the

kinds of listening devices that one was talking

about with all the rhetoric about how things were

becoming more sophisticated and so forth, did not

include as a basic proposition, as a matter of

generality, super powerful laser devices pointed

from 500 metres away, or satellites that could pick

Coco(3) 76 17/11/93

up conversations, or anything of that kind. We

were talking about relatively crude devices at that

time, and Mr Justice Pincus said, and we have set
this out in paragraph 5.8 of our submissions which
I take it the Court has. We apologize for the fact

that they are lengthy, but we thought that by doing it in a lengthy form we could shorten our argument.

In paragraph 5.8 we refer to Justice Pincus's

observations about this, and His Honour observed in

the Court of Appeal:

" ... to my mind the primary consideration

supporting -

the Crown submission -

is that a trespass would almost inevitably

have been involved in any practical use of the

Section at the time when the State Act was

passed, when electronic technology was less

developed than at present. It is hardly
conceivable, particularly if one calls in aid
the explanations given by the Minister

responsible for the Bill, that its passage was

intended to leave any likely use of a

listening device by the police unlawful and

incapable of being made lawful."

My friend says the explanations given in the speech

are equivocal. We would accept that they are not

absolutely clear-cut, but we would not describe

them as being absolutely equivocal either. We say they tend to support the construction that we urge

upon the Court, because one of the things that the

Minister for Justice said was that it was desirable

to arm the police with the same kinds of devices

and capacities to intercept private conversations

as are available to the criminals. And he talked
about how devices were cheap and readily available,

and so forth, and he was not talking about laser

devices that one points from a distance of 500
metres or satellites.	He was talking about

listening devices that are bugs and that are

installed, and he was trying to put the police in

the same position as persons who were involved in

lawbreaking, or in terms of getting access to that

device, and it is actually in the debates which we

have referred to in our written submission and

which Mr Justice Pincus has referred to.

DAWSON J: Where do you get the authority to enter from?

Does it rise from the section or from the approval

given by the - - -?

MR WEINBERG:  It must come from the section, Your Honour, if

the power is administrative in nature, and we

say

Coco(3) 77 17/11/93

DAWSON J:  The section is couched in terms of a prohibition

which does not apply if approval is given.

MR WEINBERG: That is right, Your Honour. It is exactly the

same as the Canadian section and the US

section - - -

DAWSON J:	I am not sure how Justice Estey did it, but -
MR WEINBERG:	- - - and what we say is that the statute, by

implication, having regard to the fact that it
provides for a regime whereby the police, whoever
the police might be, can go to a judge and get an
order for the use of a listening device when, in

1971, the kinds of listening devices that, when the

contemplation of the legislature at that time

plainly included predominantly devices that - - -

DAWSON J: 

I know you say that, but where do you read the

implication into - what particular part of the
statutory provision do you read the implication
into?

MR WEINBERG: 

Your Honour has asked me to read words into the statute as distinct from a general implication.

One can do that by adding a clause to the statute

which would read something like "and may enter for

the purpose of installing such a device" or one may

do it simply by saying, in our respectful
submission, that the Act upon its proper

construction empowers that course to be done

because it is necessarily incidental to the

authorization of using the device.

DAWSON J: But the Act does not empower anyone to do

anything except it empowers the judge to give

approval.

MR WEINBERG:  And, if the approval is given, it empowers the police to do what would otherwise be a crime.

DAWSON J: That is what I am getting at. Do you read it

into the approval - is it in fact the approval

which, by implication, gives the power to enter?

MR WEINBERG:  You read into the Act the power to authorize a

judge to grant the approval, is the way that we

would put it.

DAWSON J:  To enter.

MR WEINBERG:  Yes, Your Honour. And I think that is the way

in which it was so analyzed by the United States

Supreme Court as well, because there was a

double - - -

Coco(3) 78 17/11/93

DAWSON J:  So it is the judge's approval which makes that

lawful which otherwise would be unlawful.

MR WEINBERG:	Yes, and His Honour, although exercising administrative functions, is empowered to grant the
approval. He does not have to. He could, in a given case, say, "I will allow you to listen to
conversations, but I am not going to allow you to
enter a particular premises".  He could do that in
a particular case.  He might say to the police, "Do
you have any alternative to entry? Is there a
device that could be used which does not involve
entry?" And the answer might, in a given case, be
"Yes", in which case he could say, "Well I will
allow you to use the listening device, but not to
enter for the purpose". There has to be the authorization for the purpose of entry and we say, of course, there is. Inelegantly expressed, but we do say there is an authorization by the judge to enter for the purpose of installing the device in
this case and we say it is supported by the statute.

McHUGH J: It does seem strange, though, in this theory of

the section that subsection (3) requires the:

Court shall have regard to -

(a) the gravity of the matters being

investigated;

(b) the extent to which the privacy of any

person is likely to be interfered with; and

(c) the extent to which the prevention or

detection of the offence in question is likely

to be assisted -

but it says nothing about having regard to the fact

that you will be trespassing, perhaps on a total

stranger's property.	I mean, on your theory of the
section, he would authorize entry to an innocent

person's premises.

MR WEINBERG:  Yes, that is so and, Your Honour, we say that

contained within subsection (3)(b), a privacy,
privacy of any person, is the concept of both

privacy of conversation and privacy of property, if

I can so put it, just as the Supreme Court of

Canada said there was that dual notion. But, of course, a judge in considering these criteria would

have regard to that, and did, and Mr Justice Carter

was under no illusion as to how the device was to

be used. We accept what our friends say about the

affidavit material indicating, pretty clearly, that

what was contemplated was a surreptitious or a

covert entry of some kind.

Coco(3) 79 17/11/93

McHUGH J: Could I just ask you on this further question?

Supposing the judge simply authorized the use of a

particular device and said nothing about entry,

what then? Is the person who is given approval

entitled to take such steps as are as necessary to

use the device?

MR WEINBERG:  The US Supreme Court would say that it is a

matter for that person.	We would not press that,
Your Honour.	We say that, for our purposes, it is

sufficient to say that they would not be entitled

to enter in that way and that that is the reason

why the approval was sought in these terms.

McHUGH J:  On that view, you have got to get your

authorization from entry, really, out of the fact

of the approval by the judge.

MR WEINBERG:  You get it because the approval has been given

by the judge in terms to enter. Your get it from

the fact that the act itself allows the judge to

impose conditions, and one of the conditions could

be a negative condition, "You cannot enter."

His Honour has not imposed a condition of that

kind. You get it from a combination of different

sources. There is no doubt, in our submission,
that the judge has purported to authorize what

occurred, in full knowledge of what was happening.

There was nothing withheld from His Honour at all,

and the only question is whether the statute
empowered the judge.

There was an additional question in the United

States case because, in that case, the judge did

not authorize entry in terms. So you had a dual

argument, "Did the statute authorize the judge to

authorize entry?", and "What consequences flow from

the fact that the judge did not authorize entry?"

He was silent as to the means. Now, the majority

of the court said on both questions the implication

is sufficient.	We do not need to go that far
because we have the express authorization of the
judge.	We are concerned with the anterior question

of whether the statute empowered the judge to make

that particular authorization.

Your Honours, that is what we say about the implication point, but there is another way that we

can come at the problem which, in a sense, is even

stronger from the Crown's point of view, and it is

this; it is a question of construing section 46 of

the Invasion of Privacy Act, and if I can invite
the Court to go to section 46 which is the key
provision. It has not yet been drawn to the

Court's attention in terms. It provides that:

Coco(3) 80 17/11/93

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, this whole case is about whether section 46

could and should have been applied by the trial

judge to exclude this evidence. On this aspect of

the case, we are not dealing with Bunning v Cross.

GAUDRON J: Is it?

MR WEINBERG:  Yes, Your Honour.

GAUDRON J: Because you tendered the tapes.

MR WEINBERG:	Yes, we did.
GAUDRON J:	No person gave evidence about the conversations,

did they?

MR WEINBERG: That is not so, Your Honour. There was

evidence identifying the voices on the tapes.

GAUDRON J: All right. But I am wondering if section 46 - I

had a look at it somewhat earlier in this regard -

has any operation in relation to the tender of the

tapes?

MR WEINBERG: 

Your Honour, we would say that evidence of the

conversation was, in effect, given by the playing
of the tapes to the jury once they were tendered as

an exhibit. And if - - -

GAUDRON J: But was it given by a person?

MR WEINBERG:  Given by that person. That would be the

person who used the device, Your Honour.

GAUDRON J:  No, this is a person who has gained knowledge of

the conversation.

MR WEINBERG:  I am sorry, where a private conversation has

come to the knowledge of a person, that is so. It

could be said that I was a person, Your Honour, who

had gained knowledge of the private conversation

directly or indirectly as a result of the use.	I
did not give the evidence, but I tendered the tapes. We took no point about that, Your Honour,
below, and subject only to the Court's view about

the construction of section 46, the case proceeded
on the assumption that section 46 would be a bar to

the admissibility of this tape unless section 43(2)

Coco(3) 81 17/11/93

permitted the evidence to be given. I am not

advancing the argument that Your Honour -

GAUDRON J:  No, I understand that, but I had some difficulty

in making the section do the work that you concede

it does.

MR WEINBERG: All I can say, Your Honour, is that the

evidence was that the private conversation in question - and it is accepted that there were private conversations on these parts of the tapes

that came from the listening devices - did come to
the knowledge of a person directly or indirectly as

a result of the use of this listening device and

they were tendered - they were not just handed to

the jury. They were tendered through a Ltness. I

cannot at this stage recall - - -

DAWSON J:	The tapes themselves were obviously ev., .. ence of the conversations.	Someone gave that evidence, did
they not?
MR WEINBERG:	There was evidence of a police	officer about

having heard the tapes, recognizing	the voices,
having monitored the conversations.	All those
things were done and the tapes were	tendered on
that basis.

DAWSON J:	The tapes are a document, are they not?
MR WEINBERG:	The tapes are a document, Your Honour, yes.

They are a document under the relevant Evidence Act

in Queensland. I must say that we did take the

view that section 46, upon its proper construction,

would have excluded the tender and the evidence

about the conversations but for the operation of

section 43. If we are wrong about that, then it is

not the first time we have been wrong about that or

many other things and will not be the last time,

but that is the view upon which the case has

proceeded to this point at all stages.	We do not
press the contrary argument at this time.

What I was saying to Your Honours was that section 46 is the trigger, that it has this

exclusionary effect but it can only have that

effect if there has been a contravention of

section 43. If there has not been a contravention

of section 43, section 46 has nothing to do with

this case and we are talking about Bunning v Cross

in relation to other matters. In order to

determine whether there has been a contravention of

section 43, one has to go back to section 43. We

have to determine whether the listening device was

used in contravention of that section.

Coco(3) 82 17/11/93

If the word "used" carries the construction

which we urged upon the trial judge - and it was

accepted by the trial judge that this was so and it

was accepted in the Cdurt of Appeal - if the word

"used" is confined more narrowly than the word

"interception" was in the Canadian cases to use in
the sense of using the listening device to
overhear, record, monitor or listen to a private

conversation, if those are the only activities that

can relevantly give rise to using a listening

device within the meaning of section 43, then the

trespassory entry, if there be one, is utterly

irrelevant to the question of admissibility of this

evidence.

It may be relevant to the question of the

Bunning v Cross discretion but it cannot be

relevant to section 46 because section 46 is only

triggered by use in contravention of section 43.

GAUDRON J: But, you still have the problem, do you not, of

a member of the police force acting in the

performance of his duty?

MR WEINBERG:  We will come to that in just a few moments, if

I may Your Honour, in relation to our argument,

that is another aspect of it, and what that means

in the context of "use". But, if we are right

about our primary submission, which is that "use"
is confined to those who are overhearing,
recording, monitoring or listening to a private

conversation, those are the only activities that

can relevantly constitute "use" and they are the

only activities that can give rise to the offence

under section 43, and we test that by asking,

"Could anyone have prosecuted the police officers

who installed the listening device if they had been

captured in the premises, immediately after

installation but before the devices were being

used, could they have been charged with an offence

under section 43?" And, the answer we say,

been, at that stage, "use" in contravention of	self-evidently is, "No," because there has not
section 43. There may have been preparatory acts
towards "use", there may have been a burglary, there may have been any number of other offences, but there has not been "use" in contravention of
section 43. If that is so -

DEANE J: Should not you be focussing more on to overhear,

record, monitor, or listen rather than "use"?

MR WEINBERG:  We are, Your Honour. We are because we are

saying "use" means overhear, record, monitor, or

listen to.

Coco(3) 83 17/11/93

DEANE J:  I mean, it seems to me - I am not suggesting it is

right - that your strongest argument is that in

(c)(i) "Authority to Use" covers installation

because authority to use a listening device means

installing it where it can pick up the conversation

and listening.

MR WEINBERG:  Your Honour is quite correct. That is our

strongest position, if it be right that - - -

DEANE J:  You seem to me to be focussing on a narrow meaning

of the word "use".

MR WEINBERG:  We are focussing on both because we are

seeking to achieve what sociologists call a

"win-win" result. We are saying that irrespective

of whether a wide interpretation or a narrow
interpretation of the word "use" is adopted, the

appellant's contentions must fail. If the wide

interpretation is right then we can live with the

Plenty v
words of· the minority of the Court in authorizes - - -

DEANE J: But that does not involve reading in clauses or

anything?

MR WEINBERG:  No, it does not, Your Honour, because if "use"

means "install" then the power is to install.

DEANE J:	The question is what does "authority to use" mean?
MR WEINBERG:	If "use" means - if for the word "use" one can

insert the words "install and do the other acts",

if that is what can be substituted for the word

"use" - - -

DEANE J: Well, I keep bringing you back. I would have

thought the question is what does "authority to

use" mean?

MR WEINBERG:  I am not resisting that, Your Honour.

DEANE J: Under (c)(i), the query is not what "use" means,

but what "authority to use" means.

MR WEINBERG: 

"Authorized in writing to use" are the words,

and if "authorized in writing to use" means
authorized in writing to install and use for the

other purposes, then the Act - - -

DEANE J: 

You do not really have to add anything; it is the

same as to take an obvious case, and this is not.

Authority to drive a motor car carries with it

authority to get into the motor car to start it,

but you are not reading things into the authority,

you are saying what it means.

Coco(3) 84 17/11/93

MR WEINBERG:  No, we are saying, the Act upon its proper

construction empowers that action. So if "use" or

"authority to use" has the wider connotation then

the Act expressly or clearly or unambiguously

empowers entry; if it does not then there is no

contravention of section 43, and section 46 cannot

be invoked to exclude the evidence and we are back

in the territory of Bunning v Cross. That was the
point that we made in our initial submissions in
dealing with the meaning of the word "use".

There are arguments that can plainly be

advanced in support of the narrow and the wider
construction, but it does not matter at the end of
the day which construction is accepted, because the
logic leads inexorably to the conclusion that the

evidence is admissible on either view, in our

respectful submission.

That is really all we wanted to say about the

word "use". Our argument about "use" is covered in

our written submissions and we have referred to

dictionary definitions and definitions in other cases and we have referred the judgments of the various members of the Court and we simply invite

the Court to look at the reasoning, in particular

of the trial judge in this case which, we submit,

was compelling and the decision of the Court of

Appeal on the word "use".

If they were wrong about the narrow

interpretation, then so much the better, from our

point of view, because then the Act itself, upon a
proper construction, allows the judge or authorizes

the judge to permit what occurred in this case.

McHUGH J: What about the other paragraphs? For example,

(c)(ii): the officer employed in the Customs.

Does:

the warrant under the hand of the

Comptroller-General -

can the Comptroller-General authorize the breaking

in?

MR WEINBERG:  To the extent, Your Honour, that we rely upon

the implications arising from the nature of the

listening device, the answer would be yes.	I must
say we have not addressed that question,

Your Honour, but consistency would dictate that,

both in relation to (ii) and (iii), so far as we

rely upon implications, that would be so, and so

far as we rely upon the concept of "use" as having

the wider connotation, then again the statute

authorizes entry and installation if it has the

wider meaning. If it has the narrower meaning,

Coco(3) 85 17/11/93

again there would be no problem because the matter

would be dealt with under the principles in

Bunning v Cross.	I should not say there would be
no problem; it would be a different problem.	One

would have to determine whether one should exclude

the evidence because there had been a trespassory

entry, but that would be a different question.

McHUGH J:  What about subparagraph (3), assuming it is

constitutionally valid?

MR WEINBERG:  It may be, Your Honour, that they are all

governed by the opening words of (2)(c):

to or in relation to the use of any listening

device by -

Which governs each of (i), (ii) and (iii)

thereafter.

McHUGH J: In Queensland is a member of the security forces

authorized to break and enter premises?

MR WEINBERG:  We cannot think of any reason why not,

Your Honour. If the Queensland legislature has

seen fit to authorize a member of the Commonwealth,

putting aside constitutional questions - and I am

not addressing that, and I understand what

Your Honour is saying - but putting aside

constitutional issues, that is what the Parliament

of Queensland has purported to do. They have

certainly empowered him to use listening devices to

listen to private conversations. If they can do

that, why can they not authorize him to enter

people's houses. They have authorized all sorts of

people to obtain warrants to enter people's houses.

Putting aside constitutional matters we say, yes,

as a matter of construction.

Your Honours, that takes us to a separate question, which is the Australian Federal Police,

within the statute, and we have dealt with that at or the meaning of, "a member of the police force" paragraphs 6 and 7 of our submissions. I should

say, eight members of the Supreme Court of

Queensland have passed upon these matters at various times and we have no two judges who have

ever agreed on all matters. One can find a number

of judges in support of every proposition, so we

accept the questions are difficult and not at all

free from doubt. What has been advanced previously

was that the words "a member of the police force"

in the statute as a matter of ordinary
construction, notwithstanding the operation of
section 35 of the Queensland Acts Interpretation

Act which says - - -

Coco(3) 86 17/11/93

DEANE J:  Mr Weinberg, you have not dealt with Mr Hampson's

main argument, have you?

MR WEINBERG:	I am distressed to hear that, Your Honour.
DEANE J:	And that is, that on the narrow approach to the

word "use", Justice Carter simply misapprehended

his function and his powers.

MR WEINBERG:  We are corning to that when we come to deal

with questions of severance towards the end of our

submissions and the consequences of that if that

argument be correct, Your Honour.

DEANE J:	I see.
GAUDRON J:	And similarly, a member of the police force in

the performance of his duty, on the narrow

construction.

MR WEINBERG:  We are corning to that also, Your Honour. That

is on the next page I think, or the page after the

next.

If we could just deal with the meaning of the

words "member of the police force" at this stage

because it has been contended that those words are

not apt to apply to a member of the Australian

Federal Police. Our submission is that they are,

notwithstanding the operation of section 35 of the

Acts Interpretation Act of Queensland which is in

fairly typical form. I think it says something

like where you have a reference in a State Act to

an office or officer, then unless there are

indications to the contrary you construe that as

meaning an office or officer in and for the State

of Queensland. I think there are similar

provisions elsewhere.

The debate is set out in the judgments.

Mr Justice McPherson in the first Shaw v Coco case

appreciated that argument and came to a contrary

view and set out reasons why he was satisfied that
the wider interpretation embracing members of the

Australian Federal Police should apply, and we

cannot improve upon His Honour's reasons.	We
simply adopt them, with respect.	We also adopt the

reasons of the Chief Justice and Mr Justice Pincus

in the Court of Appeal as to why the wider

construction should be preferred, and we do not

address separate submissions about that. We just

incorporate Their Honours' reasoning in our

submissions.

The alternative submission is that

section 9(2) of the Australian Federal Police Act

operates to bring members of the Australian Federal

Coco(3) 87 17/11/93

Police within the exception so that they can

relevantly make the - - -

McHUGH J: Before you go to section 9, section 43(5)(c) does

not fit in well with the notion that it can be any

member in the police force, does it? It tends to

assume that the Commissioner can require some

member of his force to report from time to time.

MR WEINBERG: It certainly does that, Your Honour, and

again, there is no particular reason, in our

submission, why if members of the Australian

Federal Police utilize these procedures, they should not, by statute in Queensland, operating in

Queensland, be required to report to the
Commissioner of the Queensland police as to what has been occurring, because he is given a

particular role under the statute in that regard in

the same way the application is made to a judge of

the Supreme Court of Queensland. It is not made to

a Federal Court judge. It is a State statute

dealing with a State regime. Reports have to be

made to a State functionary, the Registrar of

Commercial Acts. He is not a Commonwealth

official. There is a whole stream of procedural

safeguards provided for in the Act, but there is no

reason why the persons amenable to those

instructions, in our submissions, should not be

required to comply with the provisions of the Act.

It keeps control over what is happening. It has a

recording purpose, and so forth, and the mere fact

that it may seem a little odd that a constable

should be required to report to the Commissioner of

the Queensland Police does not cause us any great

concern as a matter of construction.

McHUGH J:	Do you place any limitation on the "member of the police force"?
MR WEINBERG: Yes, we do, Your Honour.	A limitation can be

placed upon it because, for example, if someone

were to suggest that one could use these provisions

in relation to offences that were not offences

against the law of the Commonwealth or the law of

Queensland but were offences against the law of

Thailand, there might be an argument about whether

or not the statute should be construed so to apply. section 35 of the Interpretation Act of Queensland

which says that when you are dealing with:

localities, jurisdictions, and other matters

and things shall be construed as references to

such localities, jurisdictions, and other

matters and things in and of -

Coco(3) 88 17/11/93

Queensland. So, we do place a limitation upon the

kind of police officer and the kind of offence that

may be picked up by this legislation. We do not

say, for example, and we have recently had a

different case but if I could put this example,

Victoria has a provision which allows for

compulsory fingerprinting. You make an application

to a magistrate and the magistrate can order a

person to give his fingerprints. We do not say

that anyone from another State can come along to

Victoria and say, "We would like the fingerprints of X in New South Wales, could you please make an order to that effect in respect of a New South

Wales offence?". We say that federal offences and

federal police can operate with those provisions.

We note that a supreme court judge in

Queensland has to grant the relevant approval, but

we say that we are talking about either State or

Commonwealth offences committed in Queensland, and

these are the sorts of matters that are properly

picked up within section 35 of the Acts

Interpretation Act. We do not accept the

proposition - we do not have to go so far as to say

that members of other police forces of other

nationalities, or New South Wales police, or anyone

else can come along and make these applications,

but at the very least, we say, members of the

federal police investigating offences under

Commonwealth law allegedly committed in Queensland

can use this Act.

BRENNAN J:	Why do you say that?
MR WEINBERG:	Why do we say that?

BRENNAN J: What is the legal basis for saying it?

MR WEINBERG:  For saying the Act applies to federal offences

committed in Queensland?

BRENNAN J: That the Act applies to federal police. In the

light of the language of 35 - - -

MR WEINBERG:  We say that, Your Honour, because the Act

itself provides indications that - if you look at

subsection (2) and subsection (3), offences against
the Commonwealth are plainly implicit within
section 43(2)(c)(ii) and (iii)?, so you are dealing

with offences against laws of the Commonwealth in

so far as you are dealing with Customs, Customs

warrants and so forth, and activities of the

security forces. We cannot see any reason why, as

a matter of principle, the Australian Federal

Police, who are charged with the activity or

responsibility for investigating offences against

laws of the Commonwealth should not fall within the

Coco(3) 89 17/11/93

ordinary and natural meaning of the words "a member

of a police force".

BRENNAN J:  The ordinary and natural meaning in this Act is

a Queensland policeman.

MR WEINBERG:	Yes, Your Honour.
BRENNAN J:	You have got to find a contrary intention.
MR WEINBERG:	Yes, Your Honour, and we find the contrary

intention through (ii) and (iii) where the

provisions expressly indicate that Commonwealth

offences are within the ambit of this particular

Act and in so far as - - -

McHUGH J: Why do you use the word "offences"? There is no

reference to "offences" either in subsection (i) or

(ii), is there? It is only when you get to (iii),

paragraph (c), that there is any mention of an

offence.

MR WEINBERG:  They plainly embrace offences as well as other things, Your Honour. They are not confined to

offences, but we say upon their proper reading both

(ii) and (iii) are apt to include the use of

listening devices in relation to the matters that

fall within (ii) and (iii) and they include crimes.

One would have thought that they clearly include

crimes against the Commonwealth. If that is so,

there is a legislative indication that the Act is

intended to operate in respect of offences against

laws of the Commonwealth. If that is so, we say
there is the necessary contraindication to the
operation of section 35.

It is clearly established, Your Honour, that State police are perfectly entitled to investigate

federal offences and federal police are perfectly

entitled to investigate State offences, and they

all do and they charge such offences. There is no	provision which prevents a member of the federal
combination of federal or State - - -

police from charging someone with either a

BRENNAN J:  Nobody doubts those propositions. The only

problem is that here is a provision which confers a
particular authority or which may be used to confer

a particular authority on a particular class of

persons.

MR WEINBERG:	Yes, a member of the police force.
BRENNAN J: A member of the police force.	Prima facie that

means Queensland police force. You have got

particular officers of the Commonwealth dealt with

in (ii) and (iii) and, as Justice McHugh points

Coco(3) 90 17/11/93

out, you have got the Commissioner of Police

provided for in subsection - - -

MR WEINBERG:  We do not say that the point does not have a

series of arguments that can be advanced both ways,

and Mr Justice McPherson notes those very points in

coming to his conclusion, as do the majority of the

Court of Appeal in saying, "We note those points."
There is force in that contention but there are
also contraindications in the statute. At the end

of the day it is a matter of weighing the arguments

both ways and coming to a conclusion, having regard

to the operation of section 35. Either that

presumption is rebutted or it is not rebutted. We

say it is rebutted but, at the end of the day, we

say it does not matter because we say we can invoke

section 9(2) in any event as an alternative.

McHUGH J:  Mr Weinberg, was there any organized federal police force when this statute was passed?

MR WEINBERG: It was the Commonwealth police. Section 9(2)

was in existence under a previous statute in the

same form and so was, I think, section 12 going

back to about 1956 and even earlier. I have not

gone back earlier than 1956. No doubt there is a

long history of there being a Commonwealth police

before they were renamed the Australian Federal

Police in, I think, 1979.

GAUDRON J:  The difficulty I am having, Mr Weinberg, is that

the authority was to a member of the Queensland

Police, Mr Scanlan, I think his name is.	Now,
either it was his use or it was not his use.	If he
used it then one set of issues arise.	If it was

used by the federal police, if it was their use

rather than his, then plainly it seems not to be

within the subsection, and to be inadmissible.

MR WEINBERG:	Your Honour says "plainly", we would say nothing is plain about this section.
GAUDRON J: Well, there was no authority to anybody other

than the Queensland policeman.

MR WEINBERG:  We have dealt with the argument that the

person authorized, in fact, to use the device, was

Scanlan. Your Honours will find that dealt with in

9.3 as an alternative submission. This case,

regrettably, has to be conducted on the basis of

"if (a) then (b); if not (a) then (c)" - - -

GAUDRON J: But, what I am saying is "if not (a)" here, if

used by Mr Scanlan, then one set of things.	If not
used, inadmissible - - -

MR WEINBERG:  No, Your Honour.

Coco(3) 91 17/11/93

GAUDRON J: It is irrelevant whether a member of the federal

police is comprehended in the expression "a member

of the police force" because that was not what was

authorized.

MR WEINBERG:  Your Honour, the statute permits the use of a

listening device by:

a member of the police force acting in the

performance of his duty -

provided certain conditions are met. If those

words "member of the police force" are, in context,

apt to include -

GAUDRON J: "If he has been authorized" - - -

MR WEINBERG:  - "in writing to use a listening device

by:

(a) the Commissioner of Police;

we do not say that -

(b) the Assistant Commissioner of Police; or

an officer of police of or above - - -

GAUDRON J:  "under and in accordance with an approval"

MR WEINBERG: That is right, Your Honour.

GAUDRON J: The approval was for Mr Scanlan. If you read

the approval it was:

such approval being as follows:-

That Kenneth Charles SCANLAN ..... by himself or

by means of any other person engaged in or,

assisting the investigation ..... use - Now, it just seems to me that either it was used by

Kenneth Charles Scanlan, or it was not?

MR WEINBERG:  It depends what you mean by "used by",

Your Honour.

GAUDRON J: Well, of course.

MR WEINBERG:  Kenneth Charles Scanlan was named in the

approval as the person who could use a listening

device either "by himself or by means of"

assistance of other persons. That much is clear.

GAUDRON J:  Yes. The approval was not to the use by a

member of the Commonwealth police or the federal

police or the Australian police.

Coco(3) 92 17/11/93

MR WEINBERG: That is so.

GAUDRON J: Except in so far as it was used by

Kenneth Charles Scanlan.

MR WEINBERG: That is so, Your Honour, and we may be going

around in circles because it may be that the short

answer to this is what is set out in paragraph 9.3

of our submissions, and that is, the use of the

listening device "by means of any other person

engaged in or, assisting the investigation" was the

use of a listening device by Scanlan, under and in

accordance with an approval in writing given by a

judge of the supreme court in relation to the
relevant matter. That was one way in which the

case was put, both at the trial and before the

Court of Appeal. An alternative - - -

GAUDRON J:  Was it ever argued that it was not used by

Scanlan?

MR WEINBERG:  Yes. Our opponents contend it was not used by

Scanlan.

GAUDRON J: Yes, I know. Is there a finding in that regard?

MR WEINBERG:  There is no finding in that regard save that

if it was not used by Scanlan it did not matter

because of the operation of the wider construction

of the words "a member of the police force", or

because of 9.2.

GAUDRON J: Well, that seems to me not to follow at all.

That seems to me to be wrong to say, "If it was not

by Scanlan, it does not matter," given the terms of

the approval.

MR WEINBERG:  We understand that, Your Honour, and we

understand what Your Honour says about that.

GAUDRON J:  I am just wondering if there is some finding of

fact?

MR WEINBERG: There is no finding of fact, so far as we are

aware, Your Honour, on the question of whether

Scanlan used or whether members of the Australian

Federal Police used as a matter of fact. The

argument was put both ways and we said it did not

matter, because if Scanlan used, he is authorized to use; if Scanlan did not use and members of the Australian Federal Police used, they are authorized

by virtue of section 9(2) to use the device, but we

understand the point Your Honour is making. I will

not ask Your Honour to repeat the point; I have

understood it.

Coco(3) 93 17/11/93

BRENNAN J:	How does A, being authorized to use something to hear, do it by another?
MR WEINBERG:	I was afraid Your Honour was going to ask me

that question. Your Honour, the language of the

approval, as will be apparent to the Court, is not

what might regard as a model of clarity. What was

intended, we would say, reading the approval fairly

and not perversely, was that it was recognized that

Mr Scanlan would not sit there for 200 hours and

listen to, and personally record, the conversation.

What was intended, we say, was that Mr Scanlan

could appoint persons to carry out that task at his
behest to help him in his task of using the

listening device, if I may so describe it.

This was a device that was plainly going to be

in operation for a very long time and it was beyond

the capacity of any one person to use the device in the sense of listening to, recording, monitoring or

overhearing the conversation throughout the period.

That was the formula that was chosen. Your Honour

Justice Brennan points to a linguistic difficulty,

and I accept there is a linguistic difficulty, but

we say that the approval to Scanlan to use the

device in the designated form was sufficiently

clear and a proper approval, having regard to the

fact that the alternative would have been, I

suppose, to nominate 30 people to use the device or

there might have had to be 30 approvals.

GAUDRON J:  One could well understand that you can use it by

someone else who is operating the machinery and

whatever else is involved in that sense but, as I
understood the submissions in this case, Scanlan

virtually disappeared from the scene once the - - -

MR WEINBERG:  I think the evidence did not quite support

that, Your Honour. He did give evidence that he

maintained an interest in the matter and followed

up to ensure that things were being done properly.

It was not a case of simply using or allowing his

name to be used on an affidavit and then

disappearing. There was evidence that he accepted

that there was a primary role which he had to play,

but that the operation itself was essentially an

Australian Federal Police operation being conducted

in conjunction with the Queensland police.	The
actual wording of the approval was that -

Scanlan ..... by himself or by means of any

other person engaged in or, assisting the investigation of the said matter, use the

listening device or devices capable of

recording -

I suppose it could be said that Scanlan could monitor in a very general sense personally, but

Coco(3) 17/11/93

certainly it could not be said that he could listen

to all conversations or record all conversations

simultaneously with their taking place. It just

could not be done, and this was the formula that

was adopted, and we submit it was adequate in the

circumstances.

DEANE J: If you look at 43(2)(c), should not the judge's order be to authorize the use of -

any listening device by a member of the police

force acting in the performance of his duty -

authorized by? I mean under 43(2)(c) the judge

does not h~ve to give approval to anyone using a

listening device.

MR WEINBERG:  He gives approval for it to be used in

relation to a particular matter specified in the

approval.

DEANE J:  And it is for the Commissioner or an Assistant

Commissioner, and so on, acting under that approval

to authorize individuals?

MR WEINBERG: That is so.

DEANE J:  Which means if you are going to get out of the

problem of the wording, you either have to say, as

you do in 9(3), it is all Scanlan using; or

alternatively, you interpret that authority as

meaning "such persons as Scanlan may authorize", he

being an inspector.

MR WEINBERG:	Yes, he certainly had that rank, a person -
of or above the rank of Inspector who -

was, we say -

appointed in writing by the Commissioner -

although the language of the Commissioner's
appointment is not to say "appointment".	I think
it says "authorization".	We say that

Commissioner Redmond's authorization to Scanlan

did, in fact, constitute an appointment in writing

within the terms of the relevant section.	So we
come at it that way.

Your Honours, I did want to say just one thing

about section 9(2). It has been put by my learned

friend that it cannot be really be said that the

Invasion of Privacy Act is in any relevant sense a

provision of a law of the State which applies in

relation to offences against the laws of the

Commonwealth. For the reasons that we have earlier

Coco(3) 95 17/11/93

advanced, we say it does apply in relation to

offences against the laws of the Commonwealth.	we
say that certainly in so far as offences against
laws of the Commonwealth are encapsulated or

contemplated as being within the ambit of (ii) and

(iii). So we take issue with our learned friend

in seeking to read 9(2) down the way that he does.

We say the words "in relation to" are words of

great width, and that the State Act does apply in

relation to offences against law of the

Commonwealth and, if it does, it has the effect of

enabling members of the Australian Federal Police to fall within the words "a member of the police"

as they appear in the statute.

GAUDRON J:	You still come back to - - -
MR WEINBERG:	I have not forgotten Your Honour's point.

GAUDRON J:  No, I am sorry. I am going back to what

Justice Deane said.	You still come back then to
were they actually authorized.	Was there evidence
of that?

MR WEINBERG:  Yes. The relevant document was tendered. I

think Your Honour was taken to one of them.

GAUDRON J:	The Australian Federal Police officers?
MR WEINBERG:	Yes, each one of them received what was called

an authority from Scanlan. I think page 49 of the

appeal book contains one such document. They are a
series of documents, the first of them is the

approval by the judge and the second of them is a

document produced by Commissioner Redmond which we

say constitutes an appointment in writing but is

headed "authorization" to Scanlan, to use the

device" under and in accordance with" the terms of
the approval which contemplates that Scanlan will

use it himself or through the avenue of others.

Then there is a third level document which is

one that I think is issued by Scanlan to each

member of the Australian Federal Police who is

actually going to be listening to, or recording,

and that is called an authorization. It appears at

page 41 of the appeal book, Your Honour. It is a

document that the Court was taken to earlier this

morning, although it is headed, "Authority", and

Scanlan who says that he has been:

appointed in Writing under the provisions of

the Invasion of Privacy Act by Ronald Joseph

REDMOND - He says he appoints. He should actually say he

authorizes, but we say nothing turns on that:

Coco(3) 96 17/11/93

Constable Keryn-Louise Elizabeth REYNOLDS

to use a listening device under and in

accordance with an approval given in writing

by MR JUSTICE CARTER -

The decisions below in our favour have basically

said, "Some of these documents contain the word

appoint and they should say authority, and some of

them say authorize and they should say appoint, but

we will look at the substance of what is in the

document, rather than by whether or not the actual

word that is contained in the statute exists in the

document", and we urge this Court to adopt a

similar approach.

I do not want to unnecessarily complicate

matters, but we also draw the Court's attention to
section 9(l)(c) of the Australian Federal Police

Act. This is a section that has not yet, we have

to say, found the light of day. Amongst the eight

judges who have considered this matter, no one has,

including counsel, yet picked up the significance

or possible significance of section 9(l)(c) in

relation to this matter. 9(l)(c) provides that in

addition to any other powers and duties, a member,

that is a member of the federal police, has: (c) in relation to:

(i) the laws of the Commonwealth;

(ii) matters in connection with property of

the Commonwealth or of an authority of the

Commonwealth;

(iii) matters arising on or in connection with

land or premises owned or occupied by the

Commonwealth or an authority of the

Commonwealth; and

(iv) the safeguarding of Commonwealth

interests;

the powers -

that is, the same powers -

and duties that are conferred or imposed on a

constable, or on an officer of police -

that is a State constable or a State officer of

police -

of the rank that is, or is declared by the
regulations to be, equivalent to the rank that

the member holds in the Australian Federal

Coco(3) 97 17/11/93

Police, in the place in which the member is acting.

Now, if we are right about our construction of

9(l)(c) and if (i), (ii), (iii) and (iv) are not to

be read conjunctively but disjunctively, as we say

they should be, then that provides another separate

mechanism by which we can say that a member of the
Australian Federal Police has the same power to use

a listening device, the same power to apply for a

listening device, the same powers as any equivalent

State police officer.

The reason we say that they should be read

disjunctively rather than conjunctively,

notwithstanding the position of the word "and"

after (iii), is because of what this Court has said

in Associated Newspapers Limited v Wavish.

I will not take the Court to the case, but it

deals with the canon of statutory construction

dealt with by Pearce at paragraph 2.12 -
circumstances where the word "and" can, and should,

be read not in the conjunctive but in the

disjunctive sense. We point to the fact that there

is almost no sense at all in requiring the four

conditions all to be satisfied before

section 9(1)(c) operates given that almost

within (ii) which is a term of greater amplitude.	everything that falls within (iii) also falls of paragraph (c) which have been held to be words like "includes", dispersive in their operation.
The word is dispersive as Pearce describes it. A
similar section with the same kind of problem was
construed by this Court as having a disjunctive rather than cumulative or conjunctive operation in the Wavish case, which involved the construction of some provisions of the Obscene Publications
legislation in Victoria.

So, although we have not seen that section before, we have had a look at it, and we believe

that the section provides yet another alternative

way in which the Federal Parliament has provided

for members of the Australian Federal Police to be

able to engage the same powers as the State.

We have dealt with the arguments about

authorization in paragraph 9 of our submissions,

and I will not repeat those. Then we come to

paragraph 10 which was the matter concerning

Your Honour Justice Gaudron about performance of

duty. What we say about that is that, if we are

right in our narrow construction of the word "use",

those police officers who used this device were

acting in the performance of their duty, even if

Coco(3) 98 17/11/93

the earlier installation of the device was

trespassory in nature, because they are different

police officers, firstly. The three police who

carried out the trespassory entry were identified,

both in evidence and in the document. We have a

series of other police officers who are using the

device in the strict sense of the word, that is,

they are listening to, recording, monitoring or

overhearing conversations. We say those persons

who are doing that are not, in any relevant sense, acting outside the performance of their duty, even

it be the case - no evidence at all of any

knowledge on their part that there was any earlier

illegal conduct by other police officers who

installed the device. There is nothing to say they

are not performing their duty. So, for two points

which my friend raises, one is abstraction of

electricity, and the other is there is a continuing

trespass of the device.

Abstraction of electricity we say is de

minimis in the context of a factory, a very large factory as the evidence was, the fact that it was

tapped into the electricity in circumstances where

it would have been impossible to say that one could

even have detected the amount of electricity

necessary to power a device of this kind - we say

it is de minimis and would not take police officers

outside the performance of their duty. In any

event, these police officers, there is no evidence

that they are party to or have brought about the

abstraction of electricity. All they are doing is

listening to a device. They are acting in the

performance of their duty.

So far as continuing trespass is concerned,

they did not put it there. It is there; it may be

a source of minor inconvenience, it might be taking

up a few square inches - or even smaller than

that - somewhere in the wall of an office

unbeknownst to anyone, but we say a continuing

trespass is de minimis. It does not constitute a

basis for saying that these police officers who are

using the device, that is listening to, recording,

monitoring the conversations for the purpose of

enabling it to be said that they have used it in

contravention of section 43, we say nothing of that

kind can render them persons who are not acting in

the performance of their duty.

We accept that there are some authorities that

say that if a person or police officer is acting

unlawfully, then he is not acting in the
performance of his duty or he may not be acting in
the performance of his duty. There is another line

of authority - - -

Coco(3) 99 17/11/93

McHUGH J:  Was the court told the nature of the bug or

whatever it was?

MR WEINBERG:	No, never produced.
McHUGH J:	So it may have been one of those where they got a

brick or something and - - -

MR WEINBERG:	It could have been a pin head, Your Honour.
McHUGH J:	A pin head in a brick - substituted brick.
MR WEINBERG:	One would assume, Your Honour, that it was not

a very large device. That is a reasonable
assumption for the Court to make. There was
evidence that it was tapped into the electrical

source of the factory without the consent of the

owner of the factor, who relevantly would have been

Mr Coco.

So certainly it can be said that there was an

abstration of electricity, but I will not say

anymore about that; we just say that is de minimis

and does not take the police who were listening to

the device, particularly when there is no evidence of their knowledge that that is occurring, outside the performance of their duty.

The Court is well familiar with the case of

Canadian 'Pacific Tobacco v Stapleton and the meaning of the word "duty" as being equivalent to

"function", and what the trial judge said in this
case was that the role of this provision really was
to prevent the police from making this application

and saving themselves from prosecution, if they

have gone off on a frolic of their own or done

something which is not properly within the

performance of their duty. We say those police

officers who where listening to these conversations

were relevantly acting in the performance of their

duty. We have said everything we want to say

about that in paragraph 10. Paragraph 11, the valid approval point, we

have already raised with the Court. We have

conceded in paragraph 11.4 that this was an

exercise of administrative power and that takes us

to what I think was put to me as being the heart of

my friend's argument, namely, that if there was no

power in Mr Justice Carter to authorize entry for

the purpose of installing the device - and I think

this was the point that exercised Your Honour Mr Justice McHugh's mind on the special leave

application - does it follow that the approval is

void, and if it follows that the approval was void,

what consequences flow from that?

Coco(3) 100 17/11/93

Now, in our submission, the fact that this is

properly characterized as an order of a

non-judicial kind is significant because there is a

line of authority which suggests that the doctrine

of severance is readily available in relation to

non-judicial Acts, administrative Acts, and that it

may be harder to invoke such a principle in the

case of exercises of judicial power.

So much was either stated or made clear by

implication in Love's case, where it was said that
the particular exercise of power in that case was

non-judicial and the principles of severance were

certainly adopted in the Court of Appeal.

Your Honour Justice McHugh was one of the members

of the Court of Appeal who had considered the

question of severance. On appeal to the High Court

in Love's case, the Court came to a different view

about the matter because it did not see an

inconsistency between the New South Wales Listening

Devices Act and the Commonwealth Customs Act

provisions governing listening devices, and it was

unable to say that, read in a particular way, there

was no inconsistency and therefore no question of

severance actually arose. The Act only had to be

read in that particular way to avoid that question

arising.

Because this was an administrative Act, in the

exercise of power conferred upon a judge of the
supreme court personae designatae probably, but it

does not matter because he is a judge of a

supreme court, we say that one has to look at what

His Honour did and see whether, assuming it went

beyond the terms of the statute, severance can, in

fact, be invoked.

In our submission, this is a case where

severance can and should be invoked if we are wrong

about His Honour's power to do what he did. We

note what my friend said about it being difficult

to textually sever this particular order. We

submit that there is no such difficulty in textual

severance. If I can just take the Court to the

approval itself and indicate how we would blue

pencil to achieve textual severance as the first

stage of a process.

What we submit, if one goes to page 6 of the

appeal book, the last three lines or so of the

first matter under the approval, "such approval

being as follows", one would take out the words

"such listening device or devices to be installed in premises occupied by Santo Antonio Coco", take

those words out, leave the word "at" in and then take out the words "11 Anzac Road, Carina, and".

So that it would then read: "use any listening

Coco(3) 101 17/11/93

device or devices capable of recording,
overhearing, monitoring or listening to a private

conversation simultaneously with its taking place

at premises occupied by Cosco Holdings Pty Ltd at

the corner of Antimony Street". That is a straight

blue pencilling exercise.

One would also blue pencil condition 1 as it

is described. That is textual severance. That is

the blue pencil part of the exercise and we say
there is no particular difficulty about doing that.

The question then arises as to - - -

DEANE J: Well, the way you just did it, it is not because

you changed the meaning of "at".

MR WEINBERG:  I hope I have not changed the meaning of

anything, Your Honour.

DEANE J: Well, you changed the function of "at".

MR WEINBERG:  The function of "at" was to be applicable to

two addresses. One was 11 Anzac Road, Carina. I

have taken that out because it is, in any event,

unnecessary. You could have left those premises

in, it would not matter. For present purposes

11 Anzac Road, Carina is the home address - - -

DEANE J: Well, you have got to leave in, not out.

MR WEINBERG: Well, Your Honour, we say "at" premises is

perhaps less elegant, but permissible.

DEANE J:  No, the point I am making is "at" only qualifies

11 Anzac Road, Carina.

MR WEINBERG:  And at premises occupied

DEANE J: It is the second "at", I am sorry, I had not read

it properly. What I said was quite wrong.

MR WEINBERG:  So, that is the textual side of it. If we go

to substantial severance, would that substantially

have altered the nature of the decision that

His Honour Mr Justice Carter made. In our

respectful submission, "No," and we have drawn

attention to the decision of the House of Lords and

Director of Public Prosecutions v Hutchinson.	I
will not take the Court to the passages from 804

onwards, but it contains a very lengthy analysis of

the decisions of this Court in High Court in

constitutional matters on the principles of

severance. Certainly the House of Lords was very

attracted to the approach taken to severance by

this Court in constitutional matters, and said that

that approach was readily applicable to delegated

Coco(3) 102 17/11/93

legislation, which was under consideration in

Hutchinson's case.

It said that there were these two aspects:

substantial severance. Does it change the meaning,

the real meaning of the approval to take out the

power to enter and install the device? In our

submission it does not, because let it be assumed

that the police had come along and said to

His Honour, "We would like to enter covertly and

install this device", and His Honour had said, "You

cannot", and the police had then said, "Well, in

that case, can we use a super laser device from

500 metres away and listen to the conversations

that way?"	We say His Honour unquestionably would
have said, "Yes."	He would have said yes, because

the greater intrusion must necessarily encompass
the lesser intrusion.

His Honour was prepared, on the material before him, to have authorized an actual

trespassory entry. We say, ex hypothesi,

His Honour would have been prepared to authorize a

less invasive method of listening to the

conversations at those premises, had one been

available.

So the result would have been no different.

Substantial severance is applicable because all you are doing is saying, "No, you cannot go in to the premises in a trespassory way, but you can still

listen to their conversations". Or, he might have

said, "Can you get the tax officers to plant the

device when they are there on some lawful

occasion?". His Honour might have said that. But

to say that His Honour would have said, "You cannot

put a device in there by trespass, therefore no
permission under this Act", we say is just not a

feasible method of construing what His Honour was

asked to do, and what His Honour was prepared to

do.

DEANE J: But he might have said, "provided any installation

of a listening device is lawful".

MR WEINBERG:  He might have said that.

DEANE J: Then one speculates whether he might have imposed

a condition that has not been complied with.

MR WEINBERG:  But, Your Honour, what we say is that if it

has not been complied with, it may be that what one
has is a - we are answering the contention that the

approval is invalid. In meeting that contention we
say it can be severed so as not to be invalid.

His Honour did not say to the police, "You may only engage in a lawful" - - -

Coco(3) 103 17/11/93

DEANE J:  But on your question of severance, if one can only

reach the stage that one speculates whether, if

His Honour had properly understood his powers, he

might have imposed a condition that the

installation of the device be lawful, having been

told that what was proposed was to install it

unlawfully, severance becomes very difficult.

MR WEINBERG:  We do not, with respect, see why, Your Honour,

because the same decision to allow privacy to be

invaded by the use of a listening device would be

made.

DEANE J: Why it becomes difficult is this: His Honour was faced with a situation where what was proposed was

the unlawful installation of a device and the use

of it to monitor conversations. He mistakenly

believed he had power to authorize both the
installation and the eavesdropping. That being so,

if one realizes that he misapprehended his powers, one can only speculate about whether he would have

said, "I authorize the eavesdropping regardless of
whether the installation is lawful or unlawful", or

whether he would have said, "I authorize the

eavesdropping but only on condition that the

installation is lawful." If he reached that

position, it is very difficult to say that is a

matter for severance.

MR WEINBERG:  The difficulty with that formulation,

Your Honour, is that by approving the conduct in

the belief that he had the power to approve the

conduct, questions of unlawfulness would never have

entered His Honour's mind at all. His Honour would

not be asked to approve an unlawful entry.

His Honour would be asked to approve an entry by

the police, and His Honour would know that unless

he approved that entry it would be unlawful, but by

approving it it would not be unlawful. That is the

thought process that His Honour would have gone
through.

DEANE J: All I am trying to suggest to you is that one can

only speculate about what His Honour would have

done if His Honour had fully appreciated the limits

of his power.

MR WEINBERG:	Your Honour, we say that in many cases it is true that one can only speculate about what the
decision maker might have done had he appreciated
that he was being asked to do something that was
beyond power. In this case, however, in our
submission, it is not really speculation, because
what His Honour was prepared to do was to go much
further than what would have been alternatively
required to enable the conversation to be
overheard.

Coco(3) 104 17/11/93

DEANE J: Because of the assumption you make, but I would

have thought the overwhelming likelihood was that if His Honour had properly appreciated the limits

of his powers on the basis we are now dealing with

this, he would have said, "Go away.	Come back with
a lawful proposition."

MR WEINBERG:  We say that His Honour would have done one of

two things. His Honour would have said, "I cannot

authorize you to enter the premises because the

statute does not vest in me the power. If you have

some method whereby you can intercept these

conversations without doing that then I will sign this authorization here and now". And we say the

overwhelming likelihood is that His Honour would

have done just that. He would have signed the

approval, textually severed, as we have

demonstrated it can be textually severed. He might

have put in another condition saying something

along the lines that Your Honour suggested this

morning, "provided you do it lawfully", out of an

abundance of caution.

DEANE J: Well, that is your speculation. My speculation is

that he would have said, "Come back with a properly

thought out lawful application".

MR WEINBERG:  And if they had, he would have approved it.

DEANE J: Well, yes, he may well have.

MR WEINBERG:  Not speculation, Your Honour, we say to the

point of - - -

DEANE J: And they may well have come back with something

that said, "We will not act unlawfully".

MR WEINBERG:  And he would have approved it because

His Honour was prepared to approve something that

was far more intrusive and the greater, we say,

necessarily would have - - -

DEANE J: Well, we are going round in circles.
MR WEINBERG:	We are, Your Honour.  Of course, Your Honour,

we do not adopt the proposition that one should speculate about what decision makers should do.

Indeed, the House of Lords in the particular case, the Hutchinson case, said that that was to be abjured. One should not speculate, one should look

and see whether the character of the decision would

effectively be different.

Your Honours, section 12, our last submission, can be dealt with in one moment. We did not press

the argument in relation to section 12 before the

Court of Appeal and my learned friend says, "We

Coco(3) 105 17/11/93

have changed our mind".	We have not changed our
mind; we just do not know what the answer is.	We

have said to the court, in effect, that section 12

involves a question of interpretation of a statute

and questions of interpretation of statutes are for

the court, no concession made by counsel, no

attitude displayed by counsel towards the proper

construction could, in any way, bind the court.

Our position is that there are respectable views

both ways on the construction of section 12. If

Mr Justice McPherson, Mr Justice Pinkus and, I

think, the learned Chief Justice below are right,

then section 12 solves the entire problem; and, if

they are wrong and Mr Justice Lee is correct and

Mr Justice Ryan is correct and Mr Justice de Jersey

is correct~ then section 12 is not applicable in

these circumstances.

Now, that may sound like an abdication of our

responsibility to the Court to press proper

arguments to the Court about the section, but all

that we can say is, this matter has been considered

by many judges; there are weighty considerations

both ways. We can understand the force of the

submission that the words "licence" or "permission"

are not apt to take the federal police outside the

ambit of what would otherwise be serious criminal

behaviour. All we can do is invite the Court to

read the section, read the judgments and tell us

what it means, because we do not know.	Those are
our submissions.

MASON CJ:	What are we to do about Bunning v Cross?
MR WEINBERG:	Your Honours, there has been no application for special leave presented on Bunning v Cross.
What we would submit to the Court is an appropriate
course is that the Court decide the appeal. If the
appeal is successful, there is no need to come back
for a Bunning v Cross argument. If the appeal is
unsuccessful, my friends could still make an
application for special leave to a Court of three
in the ordinary way. That matter has never previously been properly aired before a Court of
three and we readily accept that they should have
the opportunity to do that, even if they fail on the appeal, and that that would be a more
convenient method of dealing with that point than
trying to deal with it at this time or in some
other way. If the Court pleases, those are our
submissions.

MASON CJ: Thank you, Mr Weinberg. Mr Hampson.

MR HAMPSON: If the Court pleases, I have some short points;

I will be less than 10 minutes.	I am prepared to
put it in writing.	I am in the Court's hands.

Coco(3) 106 17/11/93

MASON CJ:  You may as well take the opportunity of doing it

very shortly if you can, Mr Hampson.	If you find
you cannot, then you can - - -

MR HAMPSON:  I will appeal to the Court, Your Honour, and

they will tell you.	It is mainly in the nature of
a number of points.	We are not going to reply

first, can we say, on these Canadian and United

States authorities. They are on different

legislation and the Court will have appreciated

that in every case there are very strong dissents,
so they do not really represent a like body of

jurisprudence which has in fact firmed in a

particular direction. Finally, of course, they are

inconsistent completely with the principles

expressed by this Court over quite a period of

time.	So we do not want to deal further with them
at all.

On the question of what happened in this

history of the matter, my learned friend stated -
that is to say, where this point has been argued

before as being ultra vires and the like, in the

report of Shaw v Coco, 102 ALR, all the judges

mention this particular point - that is the Full

Court. The passages are - and I will not read

them - Mr Justice McPherson at pages 84 and 85

talks at some length about this not being an

appropriate case to determine the question of

whether the order was valid or not because there is

insufficient known.

He adverts to the question on more than one

occasion of saying that,

Without consent, an entry would have amounted

to the tort or civil wrong of trespass, and

hence, ..... would have been "lawfully

made" ..... If that view -

he is talking about -

the minority view in the Supreme Court of

Canada were to be adopted here -

there would	have been a contravention of
section 43.	He is saying that in terms of the fact
this is not	the appropriate time because we do not
yet know.

That was the fact because the committal proceedings were held up while these proceedings

before Mr Justice Lee and in the Full Court went

ahead, and it was not until the committal

proceedings continued further that it finally

became clear just what was involved in the use of

the hearing device. It was never known exactly

Coco(3) 107 17/11/93

what the hearing device was made.	He goes again at
page 86 at about line 23:

In the present case no attempt has been made

to tender the tape recordings at the committal

hearing. It is not even yet possible to say

who the person is who will be called to

identify them or the voices audible on them;

whether he or she satisfied the description in

s 46(1) of a person to whom knowledge of the

private conversation has come -

and so forth. So it is quite clear that he saw

that as a fatal defect in a consideration of the

validity of the order.	Mr Justice Ryan at page 94
points out:

No appeal was made against the validity

of the approval given by Carter J.

He points out that in Love's case it was an administrative matter, and he says whether there

would be an appeal or not is not known.	But on
page 96 at about line 25:

Before departing from this aspect of the case, it should be observed that the approval given on 26 October 1989 was on the condition

that any authorised police officer or person

engaged in or assisting the investigation of

the offence enter and remain upon the

premises -

and he goes on to talk about the fact that there

could be an unlawful matter there, and we do not

know at the moment what the facts are. And really

to the same effect was a third justice on page 105

of the report:

With McPherson SPJ and Ryan J, I doubt

the validity of the authorisation of access

and the legality of any access pursuant

thereto. Such illegality may be a basis for

the discretionary exclusion of evidence -

I refer to that purely to show that at that particular time the factual situation was not as clear as it was at trial when quite clearly at

trial there is no doubt before the trial judge the

matter was raised and was adjudicated on by the

trial judge here, that is, the criminal trial.

So far as the question of the Commonwealth

police was concerned, His Honour Justice McHugh

mentioned that. In paragraph 15 of our written

submissions we refer to section 26(l)(a) of the

Privacy Act, and it is just interesting that an

Coco(3) 108 17/11/93

express provision is there made in relation to the Commonwealth police. It is not presently relevant the actual one that is made, but they are

mentioned, and it is a case therefore of expressio

unius est exclusio alterius really that the and the security service, that at that stage the

Commonwealth did have a police force.

So far as section 9(1)(c) of the Australian

Federal Police Act, now that is the first time, as our learned friends say, that the matter has been

raised. So far as the section is concerned, it is:

In addition to any other powers and

duties, a member has .....

fc) in relation to:

(i) the laws of the Commonwealth -

and I will not read it all, and the other matters -

the powers and duties that are conferred or

imposed on a constable, or on an officer of

police, of the rank that is, or is declared by

the regulations to be, equivalent to the rank

that the member holds in the Australian

Federal Police, in the place in which the

member is acting.

So, therefore, in relation to "the powers and

duties that are conferred on a constable" under a

law of the Commonwealth, then "the powers and

duties that are conferred" on him serving in

Queensland, conferred on a Queensland policeman

would be the same, provided it is in relation to

the laws of the Commonwealth and so forth.

Now, we would say - I mean it is a very

difficult section, obviously, to construe just what

it all means - we would say that it boils down

simply to this, that the Commonwealth Parliament

has really said there will be certain powers that

we do not know about, that operate in Queensland,

or in a Territory, or in New South Wales. Now, we

are not sure what they are about, but we are going

to say those powers and duties, as a matter of

Commonwealth law, we give them also, in that place,

to the Commonwealth policeman, to the federal

policeman.

That is what the section is saying. So if one

could use the expression "bare powers" or something

of that kind, the section operates to convey those

"bare powers" to the Commonwealth functionaries.

Coco(3) 109 17/11/93

But what our learned friends have to do, is

they are going further than that. They are trying

to say that you can rely on that for an entitlement
for members of the APP to make use of facilities

which are available, not as bare matters to State

and Territory policemen, but as matters of

discretion or special favour and grant, things of

that particular kind. So that this Commonwealth

law has to go further than that and in some way, as

a matter of Commonwealth law, to give to the

Commonwealth policemen the discretionary

privileges, or whatever it happens to be, that a

State member or a Territory member can get.

We submit that that goes just too far in a

method of construction, to read it as widely as

that, because there could be many things that would

be available to say a Queensland policeman as a

matter of grace and favour or special permission,

and to say that by Commonwealth law a Commonwealth

policeman of the same rank of the Queensland
policeman would be entitled to that too, in our

submission, goes far beyond what obviously was

intended, and the matter should be construed, the

section be construed as saying, "Well, it is a

grant of the sort of bare powers where the

Commonwealth is saying, if there is a bare power

that the local man has got in that particular area,

then to the Commonwealth policeman serving in that

area should have a like power."

So it cannot therefore be strained to a stage,

as our learned friends would say, that enables a

member of the AFP to obtain from a supreme court

judge, to come along, using perhaps the

Commissioner of the Australian Federal Police to apply to a supreme court judge, to get members of the Commonwealth Police appointed under this Act, and by bringing them within that exception, make

lawful what the general prohibition against all

persons, police and otherwise, provided by

section 43(i). So we would submit that our learned

friends are really - it is not surprising that they

have not really discovered that provision until so

late in the proceedings, because it is such a wild,

we would submit, interpretation that is required

from the section before it can assist them here.

Prima facie, it is simply this really, that

when one looks at section 43, and the Court has

looked at it more than once, what you have is a

general prohibition against all persons,

prohibition against listening devices and, if that

prohibition is broken, it means the consequence

that evidence cannot be admitted of the fruit that

is obtained by the result of the prohibition. And it is necessary, and the Crown or whoever wants to

Coco(3) 110 17/11/93

use it, has the onus of proof then of bringing

themselves within the exception which was afforded

by subsection (2), and (3) I suppose, onwards.

And, it is necessary to bring themselves within

that exception, to the general prohibition. And it

is not a question of saying, well these things are

equally weighted or this might happen or whatever

it happens to be. It is necessary to be able to

say, we are relieved from the prohibition in

section 43(1), because we can show how we came

within section 43(2)(c)(i) and whatever it is in

that particular code, and we submit the submissions

that are made here do not really show that at all;

they leave it in the air that some of the things

could have been done this way and some might not
have been.

Section 12 - our learned friends also refer to section 12 - what stands really in the threshold at any attempt to rely on section 12 is the fact that

Scanlan, and he was the one who was authorized by

the judge's approval, is a Queensland policeman,

and section 12 can have no affect on a Queensland

policeman; only on Australian Federal Police. So

in so far as you try to fall back on 12, to say

that, in some way, makes unnecessary the grant of a

licence, or approval, if it could be so construed,

the simple fact of the matter is it does not get

over Scanlan and Scanlan is the one, on any view,

who is the one who was using the device, and

whether you say other people were using it as his

agent, or he was always using it by himself or by

his agents, the fact remains that he must always be

using it because he was the person who made the

application and obtained the approval to use it.

So, apart from the other reasons we gave about

section 12 of the Australian Federal Police Act, we

would say that, quite clearly, that fact, the fact

that Scanlan is there, is a Queensland policeman,

makes it really impossible to rely upon section 12

of the Australian Federal Police Act. So far as Murphy's case is concerned, I have	no need to refer to that. As our learned friends
concede and as Your Honour the Chief Justice
pointed out, the later decisions of this Court make
it clear that the way the case has been conducted
here, that is to say, that it is an administrative
decision not a judicial one, is the correct one. I
do not think that there is any other point that I
could usefully add.

MASON CJ:  You are happy to leave the Bunning v Cross point?

Coco(3)	111	17/11/93
MR HAMPSON:	Yes, I should have mentioned that.	I think

there is a lot of logic in that and quite

convenient, yes, Your Honour.

MASON CJ: Yes, thank you, Mr Hampson. The Court will

consider its decision in this matter.

AT 4.29 PM THE MATTER WAS ADJOURNED SINE DIE

Coco(3) 112 17/11/93