Coco v The Queen

[1993] HCATrans 182

.Jal.

~ -.,-~·~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No B21 of 1993

Brisbane

B e t w e e n -

SANTO ANTONIO COCO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

McHUGH J

Coco(2) 1 1/7/93

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 1 JULY 1993, AT 2.38 PM

Copyright in the High Court of Australia

MR C.E.K. HAMPSON, OC:  May it please the Court, I appear

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

applicant. (instructed by Gilshenan & Luton)

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

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

on behalf of the respondent. (instructed by the

Commonwealth Director of Public Prosecutions)

DEANE J:	Mr Hampson?
MR HAMPSON:	If the Court pleases. The applicant was

convicted on 6 June 1992 -

DEANE J:  Mr Hampson, you can take it we have read the

papers other than the most recent bundles and we

are aware of the points involved as they appear

from the papers, which means you should primarily

and really be concerned with indicating why we

should grant special leave to appeal. Having said

that, I notice other counsel in Court, I hope they

also might treat it as having been said before each
application.

MR HAMPSON:  Thank you, Your Honour. I would like to hand

to the Court, because I do not know that you have

Invasion of Privacy Act contains some other statute and a couple of cases

the statute, the 1971.

which were not on our list. The point arises, what

is referred to in the papers, because of the

existence, of course, of the Act and section 46 of

the Act. Section 46 imposes a prohibition of

admitting evidence in proceedings:

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 -

There is no doubt that the conversation was a

private conversation and the point, of course, that

was raised here was whether the approval which was

given, which appears at pages 30 and 31 of the

application book, whether that particular approval

and what was done under it - and the Court will

appreciate that under the approval there was an

entry that was surreptitious by the officers of the

Australian Federal Police Force disguising

themselves as Telecom operators so that they could

put the listening device upon the premises,

pretending to the people in lawful control of the

premises that they had gone there for the purpose

of repairing a fault in the telephone line.	The
question that arose, then -

Coco(2) 2 1/7/93

DEANE J:  To what extent in the material at the time of the

order was it apparent that there would be either

trespass or some form of misleading involved

in - - -

MR HAMPSON:  If Your Honour looks at page 36 of the

application book, you will see there paragraph (6)

of an affidavit which was made by one of the

police officers, Scanlan, who was the only

Queensland police officer who made an affidavit.

In paragraph (5) he says:

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 from the date of the

installation for recording, overhearing,

monitoring -

and then (6), the next paragraph, is the one which really should have made it clear, one would think,

that it was likely - putting it no higher than

that - that some form of subterfuge or some other

unlawful means to obtain entry would obtain.	In
other words, it was not thought that they were
going to obtain the permission of somebody who

could lawfully give them permission to go upon the

premises.

DEANE J: Well, the second sentence in relation to the

residence is probably the clearest, is it not?

MR HAMPSON:  Yes, that is so.

DEANE J: Well, now, the order made it clear that it related

to a listening device installed in the premises,

did it, as distinct from -

MR HAMPSON:  Yes, that is so. The order, in fact, and

section 43, which is the provision that allows an

exception to be made from the prohibition otherwise

imposed by the Act, in the book that I handed to

the Court, 43(1) is the prohibition and

subsection (2):

Subsection (1) of this section does not

apply -

and 2(c) is the one under which it was sought to

come. Of the things that may be done by a judge in

giving his approval in writing once a Queensland

police officer - and Queensland police officers are

going to use this method - is under (3). He is to

consider certain things, and they are set out there

(a), (b) and (c), I do not read them, and:

Coco(2) 1/7/93

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.

What His Honour purported to do in that order,

as the Court will see, His Honour said:

such approval being as follows: -

now this is the approval -

That Kenneth Charles SCANLAN of the Queensland Police Force ..... use any such listening device

or devices ..... to be installed in premises -

and they are the two premises of Coco, at his

home -

and premises occupied by COSCO Holdings Pty

Ltd -

his company -

at the corner of Antimony and Emery Streets,

Carole Park ..... this authorisation -

and there was only one, it was the authorization to

do that at those two premises -

is to continue until 12.00 noon .....

AND I DO ORDER THAT SUCH APPROVAL BE SUBJECT

TO THE FOLLOWING CONDITIONS:

That any authorized Police Officer or person

engaged in, or assisting the investigation of

the said offence, to enter and remain upon the

said premises for the purpose of installing,

maintaining, servicing and retrieving the said

listening devices.

There was an exception, of course, with legal

conversations, with legal advice, and the only
other limitation, probably, was by 4, that the

procedures that were set out in those two

affidavits - there is one of Scanlan to which I

have earlier referred, that is the one commencing

at page 34 and there is another one which starts at

page 38, by John William Adams - be adhered to.

DEANE J: Is condition 1 accurately reproduced, or does

it - - -

MR HAMPSON:  That is the way it was, Your Honour, yes.

DEANE J: It is ungrammatical in the original?

Coco(2)	1/7/93
MR HAMPSON: Yes, Your Honour, yes, it is. DEANE J: What does it mean, do you think?
MR HAMPSON:	Your Honour, it is not really a condition, in

any event, we would submit. It is really an

augmentation, it is an effort to augment the

authority beyond what the Act says. There is no

provision in this Act unlike, for example, in the

Victorian and South Australian Acts, for the person

giving the warrant to allow an entry, to say in the

warrant that entry may be effected to the premises.

Although one member of the Court of Appeal found an

implication that the legislature intended that, in

fact that the person giving the warrant, in spite

of any words to that effect in the Act, was indeed

entitled to give power to enter. In other words,

to excuse a tort which would otherwise be

convicted.

DEANE J: But what do you read 1 as intended to say?

MR HAMPSON:  The way it was really argued, Your Honour, I

must say first, was that this was conferring a

power of entry upon any police officer who was

authorized by the commissioner or the superior

police officer considered in that section 43(2)(c),

to enter and remain upon the premises. This was an

authorization to go upon COSCO's premises, the

Proprietary Limited's premises.

DEANE J:  I am just concerned that the words - you would

imply the words "have authority" or something like

that, before the words "to enter"?

MR HAMPSON:  Yes, that is right, yes. Because nowhere in

the Act is there such an express provision,

Your Honour. So it was really - contrary to the

cases that are mentioned in the affidavit such as

Plenty v Dillon and so forth, those types of cases

- it was a case, really, where it was said that the

police officers could go on the premises, they

would be acting in the execution of their duty with

that particular authorization. Of course, that

raises a very important question for Queensland

alone.

While you have these matters, orders such as

this which are made without the - looking out of the court - that is to say, they are the sort of orders which are being made secretly; the person

against whom they are made does not really know of

them, does not know of the fact that they have been

made; and, as was pointed out by

Mr Justice Dowsett, in fact, in a case here of R (A

Solicitor) v Lewis, (1987) 2 QR 710, line 25, on to

the next page, 714, he was saying that these things

Coco(2) 1/7/93

are made ex parte~ there is no appearance, for

example, by the Attorney-General, which is done

under some of these sorts of statutes, it is

completely ex parte. Naturally the person against

whom the surveillance is wanted is given no notice

of it and therefore one would hope - because it is

not likely, very often it might not even come out
in court and be subject to challenge - it is a

matter, we would submit, that it is of the greatest

importance that at the stage when the authority is

actually being given that it is being given

according to law and it does not include with it a

permission to commit a trespass if that is what the

statute does not allow. And we say that it does

not allow.

McHUGH J: Is this order a judicial order or is it a power

conferred on the judges personae designatae?

MR HAMPSON:  The latter, Your Honour. We would think that

the reasoning in Love's case, for example, really
applies here and the way we would read that is that
the judge here is persona designata and it is not a

judicial order. Indeed, I do not think -

McHUGH J:	So what is your point, that the warrant is void?
MR HAMPSON:	Yes, Your Honour, yes. Because what has been

put into it - it was sought to get over the
illegality of the trespasses, the abstraction of
the electricity, things of that kind, and the
continuing trespass, by reading the word "use" in
the Act so narrowly that you are only using - this

is the Court of Appeal held this - you are only

actually using the instrument, the listening

device, at the very moment when you could hear what

was coming through it, and by that narrow meaning

the court said it was then possible to sever any

illegality through the abstraction of the

electricity or the fact that there was the

continuing trespass and, indeed, that the

trespasses which had been committed, and the

subterfuges, to get the device in the property in
the first place could be looked at.	The former

because it was just something that was very small,

very trifling, the latter because it was quite

collateral to, and in fact that illegality had been

spent, it was said, before the actual user took

place.

DEANE J:  There is nothing in the documents before the

judge, or in the form of the order, that indicates

any authorization in relation to electricity,

though.

MR HAMPSON:  No, Your Honour, no. Nothing at all.

Coco(2) 6 1/7/93

DEANE J: Which means that only becomes relevant in the

subsequent point.

MR HAMPSON: Except that one knows that this listening

device can only operate with electricity, one has

to - - -

DEANE J: Well, you know. I would not.

MR HAMPSON:  No, no. The judge might not have known but

that, no doubt, would have been something that I am

sure he would have asked. The statute says that he

has to have regard to those matters that I pointed

out to the Court before and therefore a query - - -

DAWSON J: That is of some importance because you are using

the device when you are using the electricity: to

overhear, record, monitor or listen.

MR HAMPSON:	Yes.
DAWSON J:	But when you are trespassing to get the thing in

place you are not using the device to overhear.

MR HAMPSON:  To overhear, that is so.

DAWSON J: Well, you are not, are you?

MR HAMPSON: Well, it depends on what construction - the

Court of Appeal, they took a narrow view that you

read - - -

DAWSON J:  It is not a narrow view, you simply are not using

the device to overhear before you have installed

it.

MR HAMPSON: For the purpose of. listening.

DAWSON J: Yes. Well, that is what the offence is: using a

listening device to overhear, record, monitor or

listen.

MR HAMPSON:  Yes, but of course not only do you use the

electricity at any moment, every moment, that you in fact listen, not only that, of course, but you

do have the physical continuation of this presence

of the trespassing article. That is, that

continues the whole time and you cannot use to

listen unless you have that trespass there, unless

you have it in place, apart altogether from the

electricity, unless it is physically in place,

trespassing, it is impossible to use it by actually

listening.

DAWSON J: Yes.

Coco(2)	1/7/93
MR HAMPSON:	So, they are factors there, and we say that it

is quite an important matter because this is an Act

which is supposed to protect privacy and it should

not be read in such a way as to authorize trespass

unless it expressly says that. This implication

that the court drew that trespass can be

authorized, it is not only contrary to the policy
of the Act but contrary to long-standing statements
in the law, such as Morris v Beardmore, Halliday v

Nevill, Plenty v Dillon and other cases to which

are referred in the affidavits. We point out that

one Justice of Appeal, Mr Justice Pincus, found

expressly - and that is at page 86 of the book in

his reasons, commencing at line 1 and going over to

line 2 on page 87 - that there was such an

implication in the Act.

Two of the other judges - the Chief Justice,

at page 86 line 5 and over on to 70 line 17 and

Mr Justice Derrington, 95 line 24 through to

page 96 line 16 - discussed the question but did

not come to any view on the matter. The trial

judge, as a matter of fact, he did not hold that

the Act authorized Mr Justice Carter's approval of

a trespass, that is at page 19 line 25 through to

22 line 12. And there are other judicial decisions

on this matter. For example, the Full Court

considered these questions before in a case of

Shaw v Coco, (1991) 102 ALR 95, and I can hand up

copies for the Court if they are not here, but

there is quite a difference of judicial opinion in

and among the Queensland justices on that point.

DEANE J: Well now, that is your primary point that you say

is of public interest. What other points would be

involved in an appeal?

MR HAMPSON:  Just on the evidence here, it falls outside the use, in any event, for another reason. It was

being used by all sorts of persons, not just the

people who were monitoring and recording that
private conversation, whom you might call the

monitors, but also the senior police, and so forth.

So if you take it on what I call the narrower meaning - I understand Your Honour Justice Dawson

does not regard it as that - - -

DAWSON J: No, no.

MR HAMPSON: - - - - but in the course of argument, it was

talked of a narrower meaning and a broader meaning.

DAWSON J: No, no, I was not expressing any view, I was just

putting the words of the section.

MR HAMPSON:  Yes, exactly, but there was also put this other

view, and just for shorthand let me call it the

Coco(2) 1/7/93

broader view, it is quite clear that the police did

use it in that particular way. So, in any event,

which is quite important, and I suppose this is

another public policy point of view on a statute

such as this kind, the very approval that was given

here has been upheld, of course, by the court, by
the highest court in Queensland, but it did not

approve the use of the recording. This approval approved quite a number of other things, it went

quite beyond that and it is now held by the Court

of Appeal here that an approval in this form is

valid and that evidence obtained as a result of it

is not excluded pursuant to section 26 of the Act.

Therefore, there is a continuing problem, we

would see, in so far as the Queensland police want

to use this particular provision so far as

Queensland is concerned. We just submit that that

is contrary, the conclusions that have been made by

the court here are contrary, really, to what the

Act would have had in mind. So the authority is a

package authority, as it were, approving some

things which cannot be approved, even if one tries

to read it down to say, well, it meant to approve

lawful entry but not unlawful entry. Even if one

did that you have the difficulty of that

paragraph 6 of Scanlan's affidavit to which I

referred the Court earlier. So it is very

difficult to see whether that has been done and

that would suggest that there was really a

deliberate approval by His Honour Mr Justice Carter

approving an unlawful entry, thinking that he had

power to do so and that was invalid.

DAWSON J:  But you are going back to your first point now,

are you not? I thought you were on to the second

point, which was that the approval was an excess of

power because it authorized or, rather, that the

people who actually used the device were not

authorized to do so. That is the second point, is

it?

MR HAMPSON: That is so, Your Honour, and I am just saying

how difficult it is to read it down, Your Honour.

Even if you try to use Love's case to read it down,

it is very difficult to do it because of the

presence of the other material in the affidavit.

DAWSON J: Is there a third point?

MR HAMPSON:  Yes, there is another point with relation to it

because the court gave much too wide an exemption

to section 2. The court was of the view, really,

that where it talks of:

Coco(2) 9 1/7/93

a member of the police force acting in

performance of his duty if he has been

authorized ..... by the Commissioner of Police -

and so forth, that that would apply in this case to

federal police, but also to any police.

For example, Mr Justice Derrington expressed

that there is such a thing as a police force. A

police force which, in other words, consists of

national and State elements. It is a police, one

and indivisible, in a sense, and that is the way

you construe that section there. So on that

reading, the NSW police force, a NSW police officer

could say, "Well, I fall within this."

Now, we would say that that is quite a wrong

way. One has to look at Commissioner of Police,

bear in mind the way it is set out there, and bear
in mind, of course, our Acts Interpretation Act,

section 30 - if I can just pass up copies of that.

DEANE J: Mr Hampson, if you do not get leave on your first

point, or your first two points, subject to what

you say of course, I cannot see you getting leave

so that this Court could express a view on what the

police force means in the particular provision of

this Act when, as the judgments below make plain,

both views are arguably open.	But do not let me
stop you, I am discouraging you.

MR HAMPSON: Well, I would just submit it is something that

is very much bound up with this question again,

this public question of privacy. It is an

important question of construction here. If, in

fact, what is one looking at is whether, right at

the inception of this, the proper authority was

given so that it could. flow on to properly

admissible evidence and so forth, it is important

also, we would respectfully submit, that this Court

should pass judgment on the question of whether the

Act is referring to - in fact, Mr Justice McPherson in one of the other collateral cases in the Full	Court, talked about it applying to international
police who might come to Queensland. But there was
some - I do not know - the police force of Thailand
or something like that.

DEANE J: But the decision in this case is that it

encompasses the Federal Police.

MR HAMPSON:  It encompasses the Federal Police, and that is

truly the ratio, yes, Your Honour. But there are statements made that it does encompass interstate

police and other police.	We would submit that that
is a significant matter.

Coco(2) 10 1/7/93

The other point on which it was relied - well, the Crown did not rely upon it - that is section 12

of the Federal Police Force Act - they relied on

section 9 of the Federal Police Force Act but not

12 and we would submit that both of those - again,

9 is quite important in the application that that
has with relation to laws of the States.

The court, here, took the view that, in fact, section 9 was competent - not all the judges - in

fact to require section 43(2) to be read as though

"police" there meant "AFP". For example,

Mr Justice Pincus decided that at page 85 of the application book, 17 to 25. The Chief Justice, on

the other hand, at page 74, line 23, on to page 75,

line 19, doubted that proposition.

Now, we would submit that that is a matter

that is very, very difficult to argue successfully

because one finds that section 9(2) of the

Australian Police Force Act, lodged comfortably

between 9, which deals with their powers, and

matters such as 11, which gives them powers with

relation to the execution warrants. If a warrant

in a State or territory is in the name of some

other person, that a Commonwealth law is involved,

section 11, for example, allows the Australian

federal policemen to execute the warrant.

Section 9(2) in like manner, we would submit, where

by State or territory law there is a general
provision open to a constable - something of that
particular kind - well, then the federal policeman

is able to pick that up and stand in the same

position, whether to execute a warrant or do

something else of that kind.

And to read section 9(2) as highly as has been

done here, as it were, to make interchangeable the

Queensland police for Australian federal policemen,

in our submission, is to go far too far with

relation to that section. So we submit that they

are inter-tangled really to some extent, those

points, and we would submit that leave should be
granted with relation to the lot of them.	The

matters involved are privacy, and freedom of the
individual from eavesdropping, a matter of

considerable importance, the rights of - - -

Your Honours, those questions of section 9 and

section 12 of the Australian Police Force Act

really do touch the respective boundaries in the

interrelationship -

DAWSON J: Well, it would be very hard to separate out the

questions if you were granted leave, would it not?

Coco(2) 11 1/7/93

MR HAMPSON:	Yes, Your Honour, and they do touch these important interrelations between the State and the
other States too, in fact.  Then we have -
obviously we would submit the Court would have seen
from the paper - there is a considerable division of opinion among the Queensland Supreme Court
judges as to just what is authorized by the
invasion of privacy.

There are similar questions that can arise

under other State legislation. Although Victoria

and South Australia have amended their Act, our Act

seemed originally to follow the Victorian Act,

since our Act has not been amended in any relevant person, the judge giving the warrant, to authorize access. Those statutes, the relevant parts of them are included in the little book which we handed up
sense, but the Victorian Act and the South

to the Court. However, in Western Australia that

amendment has not been made so there is an area

there where the position of the other courts are
interested.

It is true, for example, that the presence of the AFP in all this is of less moment than it was

when this case first started because new sections,
12B through to 12L, of the Australian Federal

Police Act set up, as it were, a code for the Australian Federal Police Force for their own

listening device applications and so forth.	So it
is less important than it used to be.

We submit that all those matters are

justified. They show this is an important point of

justice, a matter that is in doubt, a matter that

should be resolved and that, prima facie, the

decision below is quite removed from what the
statute required and that the order, the authority,

of Mr Justice Carter, which founded all this, is in

fact one that one that could not have been given

under the Act. We also seek to raise - and I regret in fact	that this added the extra material that the Court
has there. The Court has the application book, the
first book, in which there is one affidavit from
Mr Michael Patrick Quinn, which sets out a number
of matters. There is a second affidavit which
stands by itself with no exhibits. Those two
affidavits and the application book deal with the matters that I have dealt with so far.

Now, in addition, we seek in the third

affidavit by Michael Patrick Quinn, together with

the exhibits that are mentioned there, special

leave to try to have reversed the rulings of

Coco(2) 12 1/7/93

His Honour the trial judge, - they commence at page

9, exhibit C to that particular affidavit - on the

application of the principle of Bunning v Cross,

together with the concept of entrapment and actions

by the Taxation officers at the instigation of the

police.

Also, the second matter that was involved

here, it is mentioned in the affidavit, aligned

with that, whether the Australian Federal Police

officer, having obtained a warrant for Mr Coco's

arrest, could then give the warrant back to him so

that further tape recordings might be made with a

view to seeing if, in effect, we would say, Mr Coco

could be induced into committing the offence and

going further in the particular matter.

Unfortunately that, of course, requires a

considerable look at the material because it is

necessary. I cannot make those submissions in

vacuo, as it were -

DEANE J: Well, you can tell us what the point is because,

as you are aware, the Court has recently looked at

Bunning v Cross and that line of territory and I

would think that there is no prospect of the Court
granting leave to look at the facts of this
particular case and dealing with the particular

case simply for the sake of the case.

MR HAMPSON:  Yes. Well, Your Honour, I do appreciate that.

May I just, then, on my instructions, state shortly

what the position is and the position really was

that the applicant says that he was in a position

where he was seriously not going to go ahead with

the matter. He had raised the concept, he was very

interested in the family, and so forth, he had

raised the concept - this is the way the tapes
read - but the taxation officers had shown that

they were not amenable to any offer of corruption.

The police then caused the taxation officers to go back, they in fact said they would go to

Mr Coco and tell Mr Coco what had transpired

already unless they, the taxation officers,

cooperated with the police by wearing microphones

and so forth about their person and going and

speaking with him. That was done and after that

the warrant for his arrest came out but it was

thought that not enough material had been obtained.

So the taxation officers were told by the

police to go back again and this time, in effect,

to solicit money from him to say that they were now

amenable to taking a bribe and to solicit from him

such a bribe to open up the topic again, which had

not been mentioned for some time.

Coco(2) 13 1/7/93

Basically, that is the evidence and it is

taken in context with the return to the magistrate

without any reason of this warrant, something which

was quite unusual in the Queensland practice

because the police knew, as one of them swore, that

if that warrant had been executed, or if there had

been knowledge of the warrant going to Coco, that

would have just been the end of the matter. So in

those circumstances it will be sought to argue that
the conduct oe the police was such that Coco in

fact was induced to commit the offence and that in

those circumstances one had a Bunning v Cross

situation.

McHUGH J: But did the matter not develop: is it not the

case alleged against your client that he then made

a more serious attempt at bribery? In fact it was

a new departure altogether.

MR HAMPSON: 

His Honour the trial judge, that was his

appreciation of it, yes, Your Honour. It would be
necessary, really, to look in detail at the

material to try to induce the Court to see that

His Honour's appreciation was incorrect. But

His Honour said that when they raised the matter

again, "My client embraced it enthusiastically",

and so forth.  That i~ the way that he said it

although, when one looks at the evidence, it goes

on for pages on the tape of almost incoherence on

the part of my client, but they are factual

matters, I appreciate, Your Honour, and we do have

the difficulty that His Honour the trial judge made

an appreciation which does not favour us on this

point and that is something, of course, on which
the Court of Appeal was relying.

But we would submit that there is evidence

there in the course of events whereby it could, and

it should, have been concluded, in effect, that
what had happened was that the federal police,

using the tax agents to induce us in fact to do

something that we had really departed from,

irrespective of the fact that once they had raised

it again and said they were interested in doing it,

we then responded with some enthusiasm.

The last matter, of course, was sentence. appreciate the attitude of the Court on that, but I	I
can very shortly say that exhibit D to Mr Quinn's

third affidavit contains the sentencing remarks of the learned trial judge and we have exhibited E, a

true copy of the applicant's outline of written

submissions in the Court of Appeal. We refer, in

particular, to paragraphs 63 and 64 of that outline

and that refers to the strong - His Honour the

trial judge obviously debated with himself at some

length as to whether a custodial sentence should be

Coco(2) 14 1/7/93

imposed, but he finally says, "Well, it's really

the requirement of deterrence, we've got to send
the signal to public servants that in fact they

have to know that this sort of thing won't be

allowed."

That was the basis, it was the deterrence that in fact impressed him, and we would say that led

him to impose a custodial sentence. But the fact

of the matter was, of course, as we have point out

in those paragraphs, if the Court reads them - I do

not think I can take it any further. It was not a

case that those public servants were likely to be

corrupted. It was quite the contrary and, in fact,

it was not a case of a public servant being

corrupted. It was really a person in the

applicant's place. Now, that point attracted no

response at all from the Court of Appeal when it

was raised, as going to sentence.

I do not know that there is anything I can

usefully add with relation to those matters.

DEANE J: Thank you, Mr Hampson. Mr Weinberg, the Court

need not trouble you in so far as leave to appeal

on sentence is concerned, and I would suggest that

you put to one side, for the moment, the Bunning v

Cross question.

MR WEINBERG:  May we hand to the Court an outline of our

submissions.

DEANE J: Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases. The one proposition

that was advanced on behalf of the application

which, in our submission, could conceivably be said

to raise a question of general importance

sufficient to warrant the grant of special leave,

lies in the question of whether, by necessary
implication, there should be drawn from the

provisions of the Invasion of Privacy Act of

Queensland, a power in the police when using a
device or for the purpose of using a device to

enter premises and install such device by necessary

implication.

Only one judge of the supreme court among the four who considered this case, from the trial to

the Court of Appeal, found that there was such a

power to be derived. That was Mr Justice Pincus in

his judgment.

DEANE J: Except on one approach the authority does

authorize - - -

Coco(2) 15 1/7/93

MR WEINBERG:  It purports to, and Mr Justice de Jersey, the

trial judge, held that so much of the authority as

purported to authorize entry was invalid and beyond

the power, but that had no effect whatever upon the

admissability of this evidence for the purpose of

section 46. The reason that His Honour was able to

come to that conclusion was because of the

interpretation which His Honour placed upon the

word "use" or "uses" in section 46 and in

section 43.

DEANE J: Well, of course, that presupposes that you reach

that stage, does it not? The authority, if it

purports to authorize trespass and limits itself to

a listening device installed by trespass, is a

valid authority.

MR WEINBERG: Well, Your Honour, what Mr Justice de Jersey

did was to say, having considered the various

authorities on the question of necessary

implication, that there was no such necessary

implication and that that part of

Mr Justice Carter's order which was, he said,

personae designatae, could be severed from the

balance of the approval or authorization.

But that in any event it did not matter, it

was entirely unnecessary to determine that question

for the purpose of deciding the one issue that was

in question before His Honour, namely, whether

section 46 of the Invasion of Privacy Act
imperatively required the exclusion of this

evidence, putting to one side questions about

Bunning v Cross. His Honour said, "I will construe

the word 'use' or 'uses'. The circumstances under

which entry was effected have nothing to do with

the use of the device, properly construed", and

both the Chief Justice and Mr Justice Derrington,

in the Court the Appeal, agreed with that approach

and therefore found it quite unnecessary to
determine the question of necessary implication.

Mr Justice Pincus approached the matter in the

other way, and started with the question of

necessary implication and therefore found it

unnecessary to determine the construction of the

word "use", but what we say, Your Honours, is that

this - - -

DEANE J:  I think you have missed the point of my question,

and that is: does not a question arise whether an

authority which purports to say, if it does, you

can unlawfully enter premises and unlawfully

install a listening device and then use the
listening device so installed, is completely void

or is valid in so far as it relates to the use of

the listening device after it has been installed?

Coco(2) 16 1/7/93

MR WEINBERG:  I am sorry I misunderstood Your Honour's

question. I thought I was addressing it in dealing

with the question of severance. Perhaps that is

not the right answer to Your Honour's point.	What
we said - - -

DEANE J: It is a different question of severance, I think.

MR WEINBERG: It may be, Your Honour. What we said was

firstly, that Mr Justice Carter was not - certainly

not in terms purporting to authorize unlawful

conduct. There is nothing in His Honour's order

which says, "I authorize you to do something which

is unlawful". What His Honour was purporting to

do, albeit inelegantly expressed, was to authorize the entry ~pon the premise for the limited purpose of installing the listening device.

DEANE J: Well, it may well be, if His Honour's authority is

interpreted in terms of applying to entry and so

on, but the explanation is that he agreed with your

construction of the effect of the Act, and that is
that the Act did authorize him to authorize entry
on premises without the consent of the owner or

occupier.

MR WEINBERG:  But, what we say is even if that be wrong, if

Mr Justice de Jersey is correct and if the question

to be determined in terms of admissability as

distinct from the exercise of exclusionary

discretion, is one which turns upon whether there

was a contravention of section 43, relevantly -

that is the only thing which can trigger the
operation of section 46, the exclusionary
provision. There must be a contravention of

section 43. How can there be a contravention of section 43 merely by virtue of the fact that the police officers have entered the premises

unlawfully? There cannot be. They could not be

charged, for example, with the events of

contravening section 43 if they have been caught in

the premises installing the device.

DEANE J: But what if Justice Carter's authority is void,

would you deny that there was a contravention of

section 43?

MR WEINBERG:  If the authority is totally void, Your Honour,

then we ask -

DEANE J: Yes, that is what I have been asking you about.

MR WEINBERG:  I understand that point, Your Honour. If the

totally is totally void then, in those

circumstances, the police officers who have used the device for the limited purpose of recording,

listening to, or overhearing, or monitoring the

Coco(2) 17 1/7/93

conversation, could not rely upon the authority.

That must be so, yes.

DAWSON J:  And I think it is put against you too that what

was initially a trespass - the installation of the

device - remains a trespass.

MR WEINBERG:	It is put against us, Your Honour, that there
are a variety of wrongs that have been perpetrated. device there as a continuing trespass, if one can so describe it; thirdly, the fact that the device
is, it is said, using the electricity from the
premises.  We say, as we said below, that the first
of those matters is irrelevant in terms of the
meaning of the word "use" and section 46. We say
that one tests the proposition of whether or not
section 46 can be invoked by asking whether the persons who used the device, that is, those who
were listening to recording, monitoring or
overhearing the conversation, were acting in contravention of section 43.

We say that even if it be the case that a

device is sitting there, thereby constituting a
continuing trespass which was brought about by some

other police officer, the police officers who are

overhearing, listening, monitoring the
conversation, that is using the device, are not

using the device in contravention of section 43

because they are not committing the offence under

section 43. In the same way, they have not caused

the device to use electricity.

McHUGH J:  Was any action ever taken to quash the order of

Mr Justice Carter?

MR WEINBERG:  There were proceedings early on, Your Honour,

involving various attempts to challenge that

particular decision. It arose, initially, as a

result of an attempt to exclude evidence at a

committal hearing. Declarity relief was sought

claiming, in effect, that the order was invalid.

There was no direct appeal from the order of

Mr Justice Carter and there has never been a firm

determination of the character of that order.

But what we say, Your Honour, is that one has

to test the matter this way,	and there is one very
simple answer to the question.	In order to invoke

section 46, which is the exclusionary provision,

one must answer this question: was any person, any

police officer, who was using this device

committing an offence under section 43? If the

answer to that is: no, they were not, then there

is no basis for invoking section 46, and one is

talking about Bunning v Cross instead.

Coco(2) 18 1/7/93

We say, in answer to Your Honour

Justice Deane's question, that if it be the case

that the authority contains a condition - we
describe it as a condition which goes too far but
does not have the effect, in our submission, of

rendering the entirity of the authorization or

approval to use the device void. That is our

submission in relation to that matter.

So far as the other matters of construction

that have been raised, in relation to section 43,

are concerned, Your Honours, we say that the
question of member - I am sorry, I should say there
never was a challenge to the order, in answer to

the question. There was never a direct challenge

to the order. We say in relation to the attack

upon the concept of member of the police force,

which was also raised before the court, that as far

as the Australian Federal Police is concerned, as

the Court has been told, that is no longer a live

issue at all. There is no a code which deals with

that particular matter.

The interpretation of section 9 of the

Australian Federal Police Act or, indeed, section

12 of the Australian Federal Police Act are

unimportant, in our submission, having regard to

the finding that member of the police embraced,

members of the Australian Federal Police and,

indeed, other police forces. There is a great deal

of dicta in these judgments which, in our
submission, make this case not an appropriate

vehicle for the grant of special leave.

McHUGH J: Mr Weinberg, you seem to be reluctant to, in the

courts below, rely on the provisions of the

Australian Federal Police Act, that they did not

need permission at all.

MR WEINBERG:  We are not reluctant, Your Honour. We relied

on section 9(2). We did not rely on section 12

below, but we said to the Court of Appeal it is a

matter for this Court as to whether this Court

takes the view as a matter of construction that

section 12 operates and two members of the court

said section 12 is a complete answer to the matter.

But, it is fair to say that we did not argue that

point, we did not -

DAWSON J:	Why did you not?
MR WEINBERG:	Because we thought that Mr Justice de Jersey

was right, and we were told by two members of the

Court of Appeal that we were wrong in making that
concession. In effect, as we said to the court, we

cannot concede a point of law, we just do not wish

to press argument upon that matter.

Coco(2) 19 1/7/93

DEANE J:	The Chief Justice took the other view, did he not?
MR WEINBERG:	The Chief Justice and - Mr Justice Pincus

certainly took that view. I think

Mr Justice Derrington did as well, I am not sure if the Chief Justice expressed it.

DEANE J:  I thought that the Chief Justice thought that

section 12 did not - - -

MR WEINBERG: Well, if he did, Your Honour, then all three

members of the court told us that we were wrong

about that.

DEANE J: No, I thought he agreed with you.

MR WEINBERG:  He may have, Your Honour. The matter has been

debated many times before many judges, we should

say, and there are a variety of different views

about section 12. Mr Justice de Jersey was not

alone; Mr Justice Lee, Mr Justice Ryan and, I

think, one other had concluded that section 12 did

not operate. I do not put that forward as an

apology, I simply say we took the view that, on

balance, it seemed to us that there was a great

deal of force in Mr Justice de Jersey's views on

that question, but we did say to the Court of

Appeal, "This is a matter of law. It is a matter

for you. We cannot make a concession about a

question of law".

Your Honours, to finish what I have to say about this matter I have, on many occasions, been

before this Court on the other side and been told

that the particular case that I was seeking to have

special leave granted in relation to was not an

appropriate vehicle. I have never quite

understood, when I werit away dissatisfied, what

that meant, or why the Court had said it was not an

appropriate vehicle but, we say on this side of the

bar table -

DAWSON J: But you now understand it.
MR WEINBERG:	I now understand it, Your Honour, and this is,

in our submission, not an appropriate vehicle
because only one member of the supreme court, in
our submission, has raised, by way of dicta, the

question of necessary implications. That is the

one point which could be said, in our submission,

to give rise to a point of general importance. The

other members of the court did not arrive at that

conclusion.

The question whether the authority can be

severed or not, is not, in our respectful

Coco(2) 20 1/7/93

submission, a matter that warrants the grant of

special leave. That is a matter -

McHUGH J: But none of the judgments below seem to look at

what seems to me, at least, for the moment, to be

the critical question and that is whether or not

the authority was void?

MR WEINBERG: Well, Your Honour, a total of eight supreme

court judges have now looked at this matter. This
is the first time, so far as I am aware, that

anyone has raised that as being the critical

question. If none of those judges appreciate it,

it is f~ir to say that counsel on the other side

and counsel on this side did not appreciate that

that was the critical question.

The applicant did, I am reminded, initially

commenced proceedings to appeal against the order

of Mr Justice Carter but then did not proceed with

that particular exercise. That was abandoned.

But, Your Honours, what we say is that if that is

the pivotal point: is the order a good order or a

bad order; can it be severed? It was not the

subject of argument before the Court of Appeal.	It
is another reason why this case is not a suitable
vehicle for the grant of special leave.

The question of severance was, of course,

raised with the learned trial judge. It was dealt

with Love's case in the New South Wales Court of

Appeal where the court did hold, as I recall, that

severance was possible. Severance has also been

said to be possible in relation to a warrant in

Parker v Churchill and many other cases in the

Federal Court. We can see no reason, in principle,

why a listening device warrant should be treated

any differently from a warrant - a search warrant,

or warrant of apprehension. All those sorts of
warrants have been held to be severable in

appropriate circumstances. That is not a special

leave point, in our respective submissions.

DAWSON J:  It was never argued that the warrant was void, or

that the authorization was void in its entirety.

MR WEINBERG:  It was argued that the argument that we

advanced about severance should not be accepted.

It was never argued that the warrant as a whole was

void for the reasons that have been now advanced

before this Court.

Your Honours invited me not to speak about the

question of Bunning v Cross and the matter of
sentence, so our submission contends itself, at

this stage, with saying this is not a suitable

vehicle for the grant of special leave for that

Coco(2) 21 1/7/93

reason. The argument accepted by the majority of

the Court of Appeal on the question of use is
decisive unless it be the case that the warrant was
not severable and was wholly void. If that be the
case, then I accept that we have a problem, but we

say that is not a special leave point.

DEANE J: But it was argued, was it not, that the placing of

the device had involved unlawful trespass?

MR WEINBERG:  Yes, and found by the trial judge, who ruled

that section 46 was not capable of being invoked,

that that was irrelevant for the purpose of the

section 46 exercise having regard to the question

of construction - to the construction His Honour

gave to the word "use" which was upheld by the

Court of Appeal.

DEANE J: Thank you, Mr Weinberg.

MR WEINBERG:  If the Court pleases.

DEANE J: Yes, Mr Hampson.

MR HAMPSON:	On the question whether it was argued or not - I am just reading from our notes in the Court of
Appeal, "The approval was conditioned upon lawful
entry which did not occur. The approval made
subject the express condition the authorized officers enter and remain" and so forth quoted.
"It should be construed as to be within power: Love
v Attorney-General.  So construed it requires a
condition of power that the police officers lawfully entered the premises" -

McHUGH J: But that is not the same point - - -

MR HAMPSON:  "As the condition was not satisfied, the

approval does not, according to its own terms,

operate as an approval to use the device."

McHUGH J: That is a different point.
Mr HAMPSON:	And, in fact, the same matter was taken earlier

when, on the question of whether it was void or

not, in the proceedings of Coco v Newnham, before

Mr Justice Lee - I have the report here. It went to

the Full Court under the title of Shaw v Coco, and

in that particular one, mandamus and injunctions

were sought on the basis that the approval was
ultra vires and it appears from the headnote:

Judgment and orders - approval to use listening devices granted by a judge - a

determination of approval - whether approval -

ultra vires -

Coco(2) 22 1/7/93

and so forth. That was taken. Those proceedings

were instituted, Your Honour, when for the first

time the applicant came to learn of the existence

of this device and the fact that there had been

eavesdropping during the course of committal

proceedings. So a writ was issued and application

was brought then to Mr Justice Lee in relation to

those matters.

McHUGH J: Well, the matter may be res judicata then. The

point may have been determined against you.

MR HAMPSON:  Then there was an appeal brought from that, I

must say, to the Full Court and, I understand - I

was not in the matter at this stage - that an

application was made to this Court for special

leave from that Full Court decision and this Court

said it was not appropriate at that time - this is

my understanding - that the trial should go ahead

first and then the matter should be looked at. So,

in other words, at that stage it was not an

appropriate vehicle for the investigation of the

questions.

We would submit that the time has come now

that - this having been through the trial and with

the findings and the like, that there is this very

unsatisfactory situation, we submit, on quite a

number of points and that there should be special

leave in relation to them.

DEANE J: Thank you, Mr Hampson.

In this matter there will be a grant of

special leave to appeal excluding not only the

question of sentence but also the Bunning v Cross

point.

Mr Hampson, you will be free to renew the

application for leave to appeal on the

Bunning v Cross point, if you are so advised, to

the Court hearing the appeal.	It will be a matter
for you whether you wish to renew the application

for leave to appeal from the decision on the ultra

vires point to avoid any question of res judicata.

MR HAMPSON:	Thank you, Your Honour.
DEANE J:	Now, as I say, that is completely a matter for

you.

MR HAMPSON:  Yes, thank you, Your Honour.

AT 3.38 PM THE MATTER WAS ADJOURNED SINE DIE

Coco(2) 23 1/7/93