Edginton v The Queen

[1998] HCATrans 66

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 1997

B e t w e e n -

JOHN EDGINTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 11.19 AM

Copyright in the High Court of Australia

MR F.J. PURNELL, SC:   May it please the Court, I appear with my learned friend, MR D.H. PEEK for the applicant.  (instructed by Peter Scragg)

MR S.A. MILLSTEED, QC:   If the Court pleases, I appear with my learned friend, MS C.A. JUTTNER for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mr Purnell.

MR PURNELL:   Your Honours, in common parlance, when a sports commentator at a football match speaks of an interception we all know what that means, namely, that when A passes the ball to B he has the ball taken up by an opposing player from the opposite team. 

BRENNAN CJ:   Before it reaches B.

MR PURNELL:   Yes.  The meaning of “interception” in the Telecommunications Interception Act has been so variously dealt with by various State Supreme Courts and upon different bases that special leave, in our submission, is justified by this Court.  We pose too, your Honours, the question posed by Justice McGarvie in Curran and Torney when his Honour said:

The ear hears the sound which the system emits.  The position must be the same when, instead of turning to the sounds emitted by a system, a person records those sounds.

So we say, with respect, your Honour - - -

BRENNAN CJ:   What is the name of this case?

MR PURNELL:   Curran and Torney, your Honour.  It is in the summary of argument at page 122, and it is in the middle of that, at point 5 on that page.

BRENNAN CJ:   Yes.

MR PURNELL:   The question for this Court so far as special leave is concerned is:  what is the purpose of the Act and what is the vice or the mischief that the legislation is directed at?  Your Honours, if we go back to the old Act, Sir Garfield Barwick, when he introduced that in the second reading speech, said that the Act was directed at preventing eavesdropping and that that was something that would horrify ordinary Australians, and the two exceptions in that Act, in the old Act, used to be ASIO and correct intervention by Telecom.  The purpose, we say, of the new Act, in our submission, is still the same; however, there are some extraordinary bases upon which the Act has been justified in its interpretation by State courts.

The most dramatic one, in our submission, would be the Supreme Court in Tasmania, Justice Cosgrove, in the decision of Migliorini, and that particular decision, your Honours, was decided with approval by the Supreme Court of Western Australia in the case of Green (1996) 85 A Crim R 229. Justice Cosgrove said at page 236 at point 6:

“the mischief contemplated by the Act is a recording by means of an apparatus not supplied or controlled by the Telecommunications Commission (Telecom)” and “...the illegality of the recording operation stems not from the invasion of the privacy of the caller (who may be using the system for criminal purposes) but from the use of equipment not installed by Telecom or its agents”.

Now we submit, with respect, that that is an extraordinary justification for this Act and the Supreme Court of Western Australia embraces that, because that seems to say that what legislation is involved with is some sort of monopoly rights by Telecom in relation to communications, which is then prohibited if telecommunications systems is not used.

BRENNAN CJ:   But say the officer in this case, instead of putting the machine next to the receiver, put his ear there and gave oral evidence of what he heard?

MR PURNELL:   That is according to the authorities, your Honour, an interception, and that is the question that we pose by asking the question, what is the difference between putting one’s ear against the receiver and putting the tape recorder?

BRENNAN CJ:   Now let me ask the next question:  and if he is standing in the room and he does not hear what comes through the reception, but he hears what emits from the mouth of the speaker on his end of the line, can he give that evidence?

MR PURNELL:   Well, some authorities would say yes and some authorities would say no, and that is one of the reasons we say that special leave is justified.

BRENNAN CJ:   That they say no, it seems to be nonsense, does it not?

MR PURNELL:   Well, with respect, yes, your Honour, and we would say, with respect, that the decision of the Supreme Court in South Australia, upon which this application is made, leads to a nonsense basically on the same principle because what the court seemed to be involved with is a physical interpretation of what is occurring rather than looking at the purposes of the Act.  If the purposes of the Act, like the State Supreme Court legislation, is to protect the rights of privacy, subject to lawful interception, then we say, with respect, it is a nonsense to go through the formulas of saying, an ear pressed against a receiver is interception, but a tape recorder held next to the receiver, is not interception; which is what happened here.

BRENNAN CJ:   Why is it that both of them are not interception?

MR PURNELL:   With the sound having passed over the system?

BRENNAN CJ:   Why is not the purpose of the Act to provide a secure non‑accessible means of communication, and to give an assurance to those who use that means of communication that there is no interception taking place between the emitted sound on one end, and the sound received on the other?

MR PURNELL:   Well, your Honour, with respect, we would not submit to the contrary in relation to that being the purpose of the Act, but that has not been the basis upon which the decisions for interpreting the word “interception” has been made by some of the courts.

BRENNAN CJ:   Well, in this case where is the error?

MR PURNELL:   The error is this, your Honour, that if Justice McGarvie be right - - -

BRENNAN CJ:   Look, forget Justice McGarvie.  Where is the error in this case?  What is it that took place that constitutes an invalid interception?

MR PURNELL:   The sound system, we say, is still going through the system when it goes into the tape recorder, just as the same as it goes into an ear when it is pressed against the earpiece.  And even if that be wrong ‑ ‑ ‑

BRENNAN CJ:   But that assumes that that is an interception.  My question is why is it an interception?

MR PURNELL:   Your Honour, the court found in South Australia that it was not an interception because the sound had passed over the system.

BRENNAN CJ:   That is right.  Well, what is wrong with that proposition?

MR PURNELL:   Your Honour, it is no different in kind.  The vice, we say, is to protect privacy.

BRENNAN CJ:   Why do you say that?

MR PURNELL:   Because that is what the purpose of the Act must be because it sets up a regime of giving warrants and protecting privacy, subject to certain exceptions.

BRENNAN CJ:   Not protecting privacy, protecting the security of the system and, thereby - and to that extent, protecting privacy.  It is no good saying this ought to protect privacy and then some how or other giving that an umbrella operation and saying anything that takes place within that is covered by the Act.

MR PURNELL:   The way we would put it is this:  it cannot be that the privacy is only protected by monopoly of the system which has been the justification of two courts.

BRENNAN CJ:   By security of the system, not monopoly - security.  Whether it is Optus or whether it is Telecom does not matter.

MR PURNELL:   It is our respectful submission that the courts have not interpreted it that way.

BRENNAN CJ:   It does not matter what the courts have done in other cases.  In this case where is the error?

MR PURNELL:   Your Honour, it is not a matter, in our respectful submission, of saying that there is only an error in this case.  We say that the multiplicity of decisions, of which this is one, calls for this Court to grant special leave so that the matter can be put beyond doubt, because we have different decisions in different courts based upon different processes of reasoning.  In this case, we say that there is no difference in principle to an interception which is the ear listening and from a tape recording listening.  The consequences upon that in terms of what evidence is admissible, and was admissible in this case, are significant but the process of reasoning behind it is based upon dividing in a very minute way the physical differences between an ear pressed against a system and a tape recorder.  We say that from a physical point of view, the sound waves are still emitting over the system when they go into the tape recorder the same way as they do when they go into the ear.

BRENNAN CJ:   Mr Purnell, speaking for myself, unless you can satisfy me that there is some error in the proposition that that which is heard as a result of the sound emitted from the receiver amounts to an interception, then I do not think you have a prospect of getting special leave.

MR PURNELL:   Your Honour, can I put it this way.  If you look at the rationale that was applied in Miller’s Case, there was a conversation between a mother and a daughter and the father was listening to that conversation on an extension.  It was held that that was an interception by Chief Justice Barwick but, because it came within one of the exceptions under the old section 4(2)(b), it was lawful because the father was not a trespasser.

BRENNAN CJ:   In what part of that judgment did Chief Justice Barwick find that there was an interception?

MR PURNELL:   At page 274, section 4 is referred to, and that is similar to the current section 6.

BRENNAN CJ:   Yes.

MR PURNELL:   Then, down the bottom of that page the Chief Justice said:

firstly, that there was a direct inconsistency, listening upon the extension being lawful under the Australian Act and was sought to be made unlawful by the Act.

That is reference to the New South Wales Act.  Then at point 7 reference is made to this:

The question in this case is to be resolved by construction of the Australian Act.  Is the right conclusion, from a perusal of its terms, that the Act intends to be the law only as to interception -

That was answered affirmatively.  At page 276 at point 5 reference is made to section 4, and the Chief Justice said:

Section 4, though it might be thought at first sight to contain a definition of what relevantly constitutes interception, in truth provides an exception from a complete prohibition upon interception otherwise than in pursuance of a warrant issued pursuant to s 6 or s 7.

Just at the last part of that paragraph:

listening to a telephonic message by means of the telephone extension within premises to which a telephone service is connected by a person lawfully on those premises should be lawful.

The inference we say, is this, your Honour, that if it was a trespasser that was doing that, then that would have been found to have been an interception.

BRENNAN CJ:   What you say, it would have been - is there any case that says that listening to what comes over through a receiver is an interception?

MR PURNELL:   Well, Curran and Tormey, I think, your Honour, is the only one which was Justice McGarvie that I took you to initially.  Then there is Justice Olsson in T v Medical Board.  He was of the same view.

BRENNAN CJ:   Where is that?  What is the best passage you can show us?

MR PURNELL:   At page 419 at point 5, a reference was made to ‑ ‑ ‑

BRENNAN CJ:   What is the reference, please, I have to find it somewhere.

MR PURNELL:   I am sorry, your Honour, 58 SASR 382.

BRENNAN CJ:   Do we have it?  What is the name of the case again?

MR PURNELL:   T v Medical Board, it was referred to by Justice Cox in his decision.

BRENNAN CJ:   Yes.  At page what?

MR PURNELL:   At page 419.

BRENNAN CJ:   Yes, whereabouts?

MR PURNELL:   At point 5.  Reference is made to Mr Abbott’s reliance upon Justice McGarvie and his Honour then traces that through until the next page at 420 at point 2 where his Honour said:

Expressed in another way it seems to me that McGarvie J’s reasoning is that the telecommunication system ought to be seen as being the total system, by means of which words are transmitted from the mouth of one speaker to the ear of another.  It ought not to be limited to a direct physical tapping in to a phone line or a phone mechanism - that interception also occurs by picking up and recording the sound passing between the receiving handset and the ear of the person.

We would rely upon that also, your Honour.

BRENNAN CJ:   If one makes the ear of the person the terminus, what does one say about putting ones ear to the other side of the receiver?

MR PURNELL:   That would still be interception.

BRENNAN CJ:   I know that would be your argument but I do not understand why.

MR PURNELL:   Your Honour, I suppose I am thrust back to the vice, we say, of what the legislation intends to ‑ ‑ ‑

BRENNAN CJ:   That is the privacy argument.

MR PURNELL:   Yes.

BRENNAN CJ:   But you have got no textual support for it in the statute, have you?

MR PURNELL:   No, and not in the second reading speeches.  It comes out strongly in what the court said in the two cases of Edelsten, Justice Lee, and the Full Court of Criminal Appeal in the second case of Edelsten and, your Honour, the New South Wales Court of Criminal Appeal in Oliver, Justice Roden at page 549 expressed no opinion and says that the Act requires clarification because there are difficulties:

in determining at what stage the overhearing and recording of the conversation should be regarded -

being interception in that system.

So, your Honours, our real point for special leave is that there is confusion and inconsistency in the State courts in relation to what is meant by “interception” and we do not seem to be succeeding very well in turning your Honour Chief Justice Brennan around in terms of the error in relation to this case because it is the multiplicity of varying decisions and the basis upon which they have been made that we say requires special leave, your Honour.

CALLINAN J:   Mr Purnell, there was quite a lot of evidence, was there not, that you could not say was tainted, even if you could make good your submission?

MR PURNELL:   Yes, your Honour, but I think, with respect, your Honour might be confusing what the system used to be when one was thrown back to the old common law discretion.  If this was regarded as an interception now it would be outlawed by the operation of sections 63 and 77.

CALLINAN J:   No, but there was other evidence that did not involve any allegedly illicit behaviour, as you would put it.  Quite a lot of evidence.

MR PURNELL:   Yes, your Honour, there would be ‑ ‑ ‑

CALLINAN J:   A strong case.

MR PURNELL:    ‑ ‑ ‑a strong Crown case to be met with this evidence absent.  Quite so.  Your Honours, there was one final small point, and it is in the book of argument, that relates to the difference between solicit to murder and incitement to rob and in the English case of Fitzmaurice, bringing into being the principles in possibility, it was held in Fitzmaurice that where it was impossible to rob, there was no crime.  It was raised by us here in argument to say that there is no difference, really, with the crime of soliciting and the crime of inciting and that that, in itself, because it has not been decided by this Court, provides a special leave point.

BRENNAN CJ:   Yes, thank you, Mr Purnell.  We need not trouble you, Mr Millsteed. 

The prospects of success on appeal on either of the grounds advanced by the applicant are insufficient to justify a grant of special leave.  For that reason, special leave will be refused.

AT 11.41 AM THE MATTER WAS CONCLUDED