Jackson v Wells

[1985] FCA 110

Re: HOWARD HILTON
And: CHRISTOPHER WELLS; THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE;
JAMES EDWARD LOOMES
Nos. NSW G455 of 1984 and G11, G26, G27 of 1985
Telecommunications (Interception) - Evidence
59 ALR 281 / 5 FCR 296

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Telecommunications (Interception) - Validity of Warrants authorizing interception - Form of warrants - Necessity for specification of individual addressees - Necessity for specification of narcotics offence - Recital of issuing judges satisfaction - Evidence to support application for warrant - Necessity for satisfaction of the issuing judge as to the matters contained in s.20(1)(a) and (b) - Evidence on information and belief - Unsound hearsay - Whether 'use' of service is relevantly limited to outgoing calls - Necessity to disclose to judge the result of previous intercepts - Necessity for Court itself to scrutinise material not made available to parties. Sydney.

Evidence - Public interest immunity - Disclosure of identity of informants - Prejudice to continuing police investigations - Whether investigations relevantly confined to investigations of narcotics offences - Importance of disclosure to applicants defence of criminal proceedings - Importance of disclosure to applicants defence of criminal proceedings - Importance of public scrutiny of telephone intercept operations - Desirability of permitting access to documents restricted to legal representatives.

Telecommunications (Interception) Act 1979 ss.7, 20.

Telecommunications (Interception) Regulations

Evidence - Warrant authorising interception of telephone services - Whether particular offence suspected need be specified - Telecommunications (Interception) Act 1979 (Cth), ss 7, 20.

Evidence - Public interest immunity - Telephone interception warrants - Possible disclosure of identity of police informants - Prejudice to continuing investigations including of State offences - Whether access to be granted to legal advisers only - Telecommunications (Interception) Act 1979 (Cth), ss 7, 20 - Telecommunications (Interception) Regulations 1980 (Cth).

HEADNOTE

Held: (1) Where access to documents the subject of a public interest immunity claim is sought in relation to criminal proceedings, the court will be more prepared to inspect the documents itself than it would be if access were sought in relation to civil proceeding.

(2) Access to documents relating to telephone interception should be denied only upon powerful grounds, which may include the likelihood of identification of police informers.

(3) Public interest immunity may be claimed by any person or may be raised by the court. The grounds upon which it is raised cannot be limited to the subject matter in relation to which the telephone interceptions were authorised.

(4) Evidence in support of the public interest immunity claim should not be given on information and belief.

(5) Warrants which complied with the form set forth in the Telecommunications Regulations 1980 (Cth), reg 3(1) were valid, notwithstanding that they did not specify the particular offence in relation to which they were issued and were not addressed to named persons.

R. v. Tillett; Ex parte Newton (1969) 14 FLR 101; Crowley v. Murphy (1981) 52 FLR 123; Australian Broadcasting Corporation v. Cloran (1984) 4 FCR 151, distinguished.

(6) Although the judge who issued the warrant must himself be satisfied of the matters referred to in s 20(1)(a) and (b) of the Telecommunications (Interception) Act 1979 in relation to a particular narcotics offence relating to a particular person, the fact that a senior and responsible police officer with a comprehensive knowledge of the investigation has a particular belief has probative value in determining whether there are reasonable grounds for suspecting an offence.

(7) Observations upon the practice of the Federal Court judges in relation to applications for warrants.

(8) Observations concerning the difficulties of access being limited to legal representatives of the parties.

(9) Observations concerning pendent jurisdiction in circumstances where the cause of action which attracted jurisdiction failed.

(10) Observations upon the nature of the suspicion referred to by s 20(1)(a) of the Telecommunications (Interception) Act 1979.

HEARING

Sydney, 1985, March 29. #DATE 29:3:1985
APPLICATIONS

Applications challenging the validity of warrants issued by two judges of the Federal Court purportedly pursuant to s 20 of the Telecommunications (Interception) Act 1979.

W. G. McNally (solicitor), for the applicant Jackson.

R. V. Gyles QC and G. Crawford, for the applicant Harris.

P. Roberts, for the applicant Hilton.

M. P. Stern, for the applicant Hakim.

Sir Maurice Byers QC and T. K. Tobin, for the first and second respondents.

L. P. Robberds QC and H. G. Murrell, for the third respondent.

Solicitors for the applicant Jackson: W. G. McNally & Co.

Solicitors for the applicant Harris: Sly & Russell.

Solicitors for the applicant Hilton: Horowitz & Bilinsky.

Solicitors for the first and second respondents: Australian Government Solicitor.

Solicitor for the third respondent: State Crown Solicitor.

GFV

ORDER

1. The application be dismissed.

2. The applicant pay to the respondents their costs of the application.

3. That, if no appeal be lodged within 21 days in any of the matters nos. G.455 of 1984, G.11 of 1985, G26 of 1985, G.27 of 1985 the exhibits be handed out, exhibit KA being returned to the solicitor for the first and second respondents.

Applications dismissed with costs

JUDGE1

By consent, I have heard together four Applications - made respectively by Howard Hilton, Frank Hakim, Rex Frederick Jackson and Keith Godfrey Harris - which challenge the validity of certain warrants issued by two Judges of this Court, St. John and McGregor JJ, in reliance upon s.20 of the Telecommunications (Interception) Act 1979 and which authorized the interception of communications made to and from certain telephone services. Section 20 provides:

"20 (1) Where, upon application being made to a Judge by a member of the Australian Federal Police for the issue of a warrant under this section in respect of a telecommunications service, the Judge is satisfied, by information on oath, that -

(a) there are reasonable grounds for suspecting that the telecommunications service is being, or is likely to be, used by a person who has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a narcotics offence; and

(b) the interception by members of the Australian Federal Police of communications made to or from the telecommunications service will, or is likely to, assist members of the Australian Federal Police in, or in connection with -

(i) inquiries that are being made in relation to a narcotics offence that the person has committed or is reasonably suspected of having committed; or

(ii) if there are circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence - inquiries that are being made in relation to the likely commission, by the person, of that offence,

the Judge may, by warrant under his hand in accordance with the prescribed form, authorize persons approved under section 22 in respect of the warrant to intercept, subject to any conditions or restrictions that he sees fit to specify in the warrant, communications that are being made to or from that service and such a warrant may authorize entry on any premises specified in the warrant for the purposes of installing, maintaining, using or recovering any equipment used to intercept such communications.

(2) A Judge may grant a warrant under sub-section (1) in respect of a telecommunications service situated anywhere in Australia.

(3) Information furnished to a Judge for the purposes of sub-section (1) -

(a) may be given orally or otherwise; and

(b) shall include the facts and other grounds on which the applicant considers it necessary that the warrant should be issued.

(4) Where a warrant under this section authorizes entry on premises, the warrant shall state whether entry is authorized to be made at any time of the day or night or only during specified hours, and may, if the Judge thinks fit, provide that entry may be made without permission first being sought or demand first being made, and authorize measures that he is satisfied are necessary for that purpose.

(5) A warrant under this section shall specify the period for which it is to remain in force, being a period that does not exceed 6 months.

(6) Sub-section (5) shall not be construed as preventing the issue of a further warrant in accordance with this section in respect of a telecommunications service in respect of which a warrant has, or warrants have, previously been issued."

1. The relief sought in each Application is substantially similar, falling within four separate categories: a declaration that s.20 of the Telecommunications (Interception) Act 1979 is ultra vires the Constitution, a declaration that certain material obtained in the course of interceptions pursuant to the warrants issued by St. John and McGregor JJ was obtained illegally, orders setting aside or quashing those warrants and an order prohibiting the respondents, Christopher Wells, a Detective Inspector in the Australian Federal Police, the Commissioner of the Australian Federal Police and James Edward Loomes - in one case Frederick Joseph Parrington - the informant in certain criminal proceedings against the applicants, from utilizing the material, or disseminating the information, obtained as a result of the interceptions. The practical significance of the matter is that the four applicants are currently subject to a Local Court charge that they did conspire together and amongst themselves -
   
   

"that money should be corruptly given to Rex Frederick Jackson in his official capacity, he then being a public officer, to wit, the Minister for Corrective Services and that the said money should be accepted by the said Rex Frederick Jackson in his official capacity as inducement to him to act corruptly in the discharge of his public duty in the release from prison on licence of persons serving terms of imprisonment and the said Keith Godfrey Harris, Howard Hilton, Fayez Hakim and Rex Frederick Jackson then knowing the said acts to be in violation of the public duty of the said Rex Frederick Jackson."

1. In affidavits filed on behalf of the various applicants the claim is made that the evidence alleged to implicate the various applicants consists either solely or substantially of conversations alleged to have been intercepted by officers of the Australian Federal Police and recorded on tape recorders. The applicants seek to obtain orders in this Court which will preclude the admission against them in the criminal proceedings of the tape recordings of the conversations, or transcripts made from those tape recordings, or alternatively to obtain declarations of invalidity upon which they may rely in support of a submission to the Local Court that that Court, in the exercise of its discretion, should refuse to admit the tape recordings or transcripts of their contents.
   
   The High Court Proceedings
   
   

2. As I have mentioned, the first category of relief sought is a declaration that s.20 is unconstitutional. On 14 February 1985, in Mr. Hilton's matter, the High Court of Australia removed that issue, and an associated question arising under s.7(6) of the Telecommunications (Interception) Act, for consideration by it. Section 7(6) provides as follows:
   
   

"7(6) Without limiting the application of sub-section (4), a person may give information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21, in evidence in a proceeding -

(a) by way of a prosecution for a narcotics offence;

(b) by way of a prosecution for an offence against the Telecommunications Act 1975 or a regulation or by-law in force under that Act;

(c) by way of a prosecution for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years;

(d) by way of an application for an order under sub-section 243B(1) of the Customs Act 1901; or

(e) for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 203 of the Customs Act 1901 in connection with the commission of a narcotics offence."

1. The High Court heard argument on these questions on 7 and 8 March 1985. On 15 March the Court made orders as follows:
   
   

"Answer the questions as follows:

Question: Is section 20 of the Telecommunications (Interception) Act 1979 (Cth) beyond the power of the Parliament of the Commonwealth of Australia?

Answer: No.

Question: Does section 7 of the Telecommunications (Interception) Act 1979 (Cth) prohibit the admission into evidence, in proceedings for an offence of the description in paragraph 7(6)(c) of the said Act, or information obtained by an illegal interception of a communication passing over a telecommunications system.

Answer: No.

Remit the matter to the Federal Court.

No order as to costs."

1. On 26 March the reasons for judgment of the members of the High Court were delivered. They show that the Court was divided in relation to each question. The majority (Gibbs C.J., Wilson and Dawson JJ.) in a joint judgment held that s.20 conferred power to authorize intercepts upon members of this Court, and upon judges of the other courts referred to in s.18 of the Act, as designated persons. No power was conferred upon the Court, as such, so that the section did not infringe the constitutional rule referred to in the Boilermakers' Case (1956) 94 C.L.R. 254; (1957) 95 C.L.R. 529 that the Parliament may not validly confer non judicial power on any court established under Ch.III of the Consitution. Mason and Deane JJ. disagreed, holding that the function of issuing warrants was imposed upon the members of this Court not as designated individuals but as a task to be performed by them in their capacity as judges of the Court. The minority refrained from a definitive answer to question 1 because of the course taken, during argument, of reserving the question whether the Court should allow re-argument as to the correctness of the Boilermakers' Case.

2. The view of the majority, in relation to the second question, was summarized in the following passage at the conclusion of their judgment:
   
   

"The question asks whether s.7 prohibits the admission into evidence, in proceedings for an offence of the description in par.(c) of s.7(6) of evidence obtained by an illegal interception. In our opinion, the answer must be in the negative. Neither sub-s.(6) nor for that matter sub-s.(4) has anything to say either directly or by implication to the question. They are not concerned with information obtained in contravention of the Act. To find an implication such as that contended for by Mr. Ellicott would be to read too much in to the Act. The discretion of a court when confronted with evidence which has been unlawfully obtained has been clearly explained in recent decisions of this Court: The Queen v. Ireland (1970 126 CLR 321, at p 334; Bunning v. Cross (1978) 141 CLR 54, at pp 72-77; Cleland v. The Queen

(1982) 57 ALJR 15; 43 ALR 619. No doubt it is true, as Barwick C.J. recognized in Ireland, at p.334, that acts in breach of a statute may more readily warrant the rejection of the evidence as a matter of discretion. But this is to do no more than confirm the existence of the discretion, a discretion which is to be exercised in the light of the competing public interests to which the Chief Justice referred. As we have said, this is not a case such as his Honour contemplated in the same passage at p.334, namely, a case where the statute may on its proper construction itself impliedly forbid the tender in evidence of information obtained in breach of its terms. The question should be answered No."

In contrast Mason and Deane JJ. thought that, although s.7(6) applied, in terms, only to information lawfully obtained it impliedly restricted the admissibility of evidence of information obtained as a result of unlawful telephone intercepting:

"In other words, the effect of sub-s.(6) is that evidence can only be given of information obtained as a result of interception of a communication passing over a telecommunications system or as a result of access to telegrams if the conditions laid down by the sub-section are satisfied, that is to say, if the information is of a kind to which the sub-section refers (viz. information obtained by authorized interception or access) and if the proceedings are of one or other of the kinds described."

1. The decision of the High Court has three-fold significance in the present proceedings. First, it authoritatively disposes of the question whether the issue of the warrants was unlawful because s.20, which purported to authorize the issue, was beyond the constitutional power of the Commonwealth Parliament. Secondly, the decision of the Court - reflecting the majority view - is that the circumstance that information was the product of an illegal interception does not as a matter of law, render that information inadmissible in a prosecution for an offence referred to in s.7(6). It must follow, and contrary to some of the submissions put to me, that there is no legal right vested in a person facing prosecution for such an offence to have destroyed or delivered up to him all the material which evidences the illegally intercepted information. Finally, the High Court has reaffirmed the existence of a discretion in the court hearing the criminal proceedings to refuse to admit the illegally obtained evidence. Although their primary case fails by reason of the decision of the High Court, they seek in these proceeings to obtain a finding that the warrants, or some of them, were invalidly issued as a prelude to an application to the Local Court for exercise in their favour of that Court's discretion.
   
   The Production of Documents
   
   

1. At a directions hearing I was informed by counsel for some of the applicants that their clients wished certain documents to be produced on subpoena. I was further informed that it was likely that an objection to production would be made upon the ground of public interest immunity. As it seemed to me to be desirable, so far as was possible, to clarify the position in relation to production of documents in advance of the hearing, I granted leave to any party to make returnable before me at 2 pm on Tuesday 19 March - the hearing being due to commence on Wednesday 27 March - any subpoena to produce documents which that party wished to issue and to serve. I further directed that any such subpoena should be served not later than 4 pm on Thursday 14 March 1985 and that, in the event of any claim being made for privilege from production or for denial of access, an affidavit in support of such claim should be filed and served by 4 pm on Monday 18 March 1985.

2. In the event three of the applicants, namely Mr Harris, Mr Hilton and Mr Jackson, issued subpoenas. Messrs Harris and Jackson served subpoenas upon the Assistant Solicitor for Public Prosecutions, which subpoenas were answered to their satisfaction and in relation to which no further question arose. In addition, all three of the named applicants served subpoenas upon the Assistant Commissioner, Australian Federal Police. The subpoenas were in substantially similar terms. Indeed paras 1 to 4 inclusive of the Schedule of documents to be produced was in each case identical. Those paragraphs read:
   
   

"1. All documents produced before a Judge to obtain warrants pursuant to Section 20 of the Telecommunications (Interception) Act 1979 in respect of telecommunication service numbers 663-5302 and 698-8915 during the past four (4) years and in particular in relation to the warrants dated 13th January, 1983, 25th March, 1983 and 24th June, 1983.

2. All documents produced before a Judge to obtain warrants pursuant to Section 20 of the Telecommunications (Interception) Act 1979 in respect of telecommunication service numbers 36-7619 and 327-7619 during the past four (4) years and in particular in relation to warrants dated 13th January, 1983, 25th March, 1983 and 24th June, 1983.

3. All documents produced in proceedings before a Judge to obtain warrants issued under Section 20 of the Telecommunications (Interception) Act 1979 in respect of any telecommunication services in the name of or relating to or commonly used by any of the following: Mr. Keith Godfrey Harris, Mr Fayez Hakim, Mr. Rex Frederick Jackson, Mr. Howard Hilton, Mr. Maurice Chapman, Mr. Frank Falvo, Mr. Salvatore Falvo, Mr. Tony Giofrelle and Mr. Angelo Romeo.

4. Any report or reports furnished to the Minister in pursuance of Section 27 (1) of the Telecommunications (Interception) Act 1979 relating to any warrants referred to in 1. 2. and 3. above."

1. The services 663-5302 and 698-8915 were connected to premises, at Kensington and at Redfern respectively, occupied by Mr. Hakim. The numbers 36-7619 and 327-7619 referred to a service - the number being changed at some stage - connected to premises at Point Piper occupied by Mr. Harris.

2. On 19 March the recipient of the subpoena, Mr Raymond John McCabe, the Assistant Commissioner of the Australian Federal Police having command of all Australian Federal Police stationed in New South Wales, swore an affidavit in which he claimed privilege from production of substantial portions of the documents listed in paras 1 to 4 of the Schedule to the subpoena on the ground of public interest immunity. When the matters were called at 2 pm on that day senior counsel appeared for the Assistant Commissioner and sought and obtained leave to file in Court a Notice of Motion in each matter for orders, inter alia, refusing access to the various applicants to the documents listed in those paragraphs on the basis of public interest immunity. The documents themselves were delivered into the custody of the Court.

3. The affidavit sworn by Mr McCabe stated that the material falling within paragraphs 1 to 3 of the Schedule consisted of six affidavits of the first respondent, Detective Inspector Wells. The affidavits are dated respectively 10 January 1983, 13 January 1983, 25 March 1983 and 24 June 1983 (three affidavits). In relation to those affidavits Mr McCabe specified a number of reasons for the claim to immunity. The reasons differed as between particular parts of the affidavits but they included the following: that disclosure of the material might assist in the identification of informants and would place at risk the lives of the informants, their family and friends; that the disclosure of the material would identify persons suspected of serious narcotics offences and could prejudice current investigations into such offences; that prejudice in the Local Court proceedings would result from linking a particular person named in the affidavits to one of the present applicants; and that disclosure of the material might prejudice good relations with an overseas police force, the free flow of information between the police forces and the continued co-operation of that police force with the Australian Federal Police.

4. Mr Gyles QC, on behalf of Mr Harris, sought to cross-examine Mr McCabe in relation to the matters stated in his affidavit but I refused leave for him to do so. In refusing leave I had in mind the recent Full Court decision in Special Minister of State v Quin (12 February 1985), which decision Mr Gyles conceded to be relevantly indistinguishable.

5. I indicated to counsel that I proposed to read the documents the subject of the claim for public interest immunity and to consider for myself the validity of that claim. Although, as was pointed out in Quin, the power of the Court to examine documents in relation to which a claim for public interest immunity has been made should be sparingly exercised, this was a case where the applicants sought access in proceedings intimately connected with criminal proceedings pending against them. In Alister v The Queen (1983) 58 ALJR 97 each of the members of the High Court made particular reference to the importance to the fact that access was sought in relation to criminal proceedings in the consideration by a court of the question whether it should itself inspect the documents: see per Gibbs CJ at p 99, per Murphy J at p 107, per Wilson and Dawson JJ at p 110 and per Brennan J at p 118. The present applications are not themselves criminal proceedings and the relevant documents are not capable of supporting the defence of the applicants - in the sense of demonstating innocence - in the criminal proceedings they face. But they are documents of a class appropriate to demonstrate, if they have particular content, that there was insufficient material upon which to base a telephone interception warrant. Although a number of intervening steps in the argument would be required to be made good, the showing of that fact might eventually lead to an exclusion of important prosecution evidence. In that sense, access might assist the defence case by enabling the defendants to weaken the prosecution case. Under those circumstances, it appeared to me desirable to look carefully at the documents themselves rather than to deal with the matter by reference to the class of which they formed part. I invited submissions from counsel as to matters which I should bear in mind whilst perusing the documents. Submissions were put. Amongst other things counsel emphasized the importance of access to the documents to the applicant's chances of success in the present proceedings. As it was said, these documents disclosed the material placed before St.John and McGregor JJ at the time of issue of the warrants. The nature and alleged inadequacy of that material was fundamental to the present proceedings. Counsel also emphasised the age of the affidavits of Detective Inspector Wells. I was asked to consider whether the disclosure of matters known to the police in the first half of 1983 could prejudice investigations being undertaken in 1985.

6. Before I adjourned on 19 March I invited counsel to supplement their oral submissions, as they might desire, by written submissions to be sent to me during the following day. Upon the following day I read the documents. Subsequently, I received written submissions forwarded on behalf of Mr Harris in which it was argued that, unless I was disposed to permit access, I should defer until the hearing of the principal proceedings a final decision upon the claim for public interest immunity. I decided to take that course. On 22 March I announced the view I had formed in these words:
   
   

"When I adjourned the matter on Tuesday until this afternoon I envisaged that I would at this time dispose of the claim for public interest immunity. However, in the written submissions on behalf of Mr Harris the proposition is put that my decision concerning the claim for public interest immunity should be deferred until the hearing of the matter next week, that what counsel calls the balancing task involved in that decision should not be taken without the Court having a full understanding of the issues in the case and the submissions of the parties upon them. In this connection reference is made to the fact that Mr McCabe's affidavit was available only during the hearing on Tuesday.

To postpone a determination of the claim for public interest immunity may involve an otherwise avoidable appearance at the main hearing by counsel for the Assistant Commissioner, with consequential cost, but notwithstanding this disadvantage I have decided that I should accede to the submission for deferral of a final decision. It is desirable that such a decision be made with the benefit of the fullest possible understanding of the facts of the matter and of such further submissions as counsel may wish to make.

It would, however, be most inconvenient to the parties to be placed in the position of filing their affidavits and preparing for trial without having any indication of any view I may have formed in respect of the claim. I have considered the matter carefully and formed a view. I think that the parties may as well know what it is. I am of the provisional but clear view that the claim for public interest immunity ought to be upheld. The view is provisional in the sense that it is subject to reconsideration in the light of any new facts which may emerge or new arguments which may be put. It is clear in the sense that, absent cogent new facts or arguments, it is very likely to be the view which I will finally adopt. Access to the documents will be refused at this stage."

1. In addition to the documents referred to in paras 1 to 4 inclusive of their respective schedules, each of the various subpoenas called for other documents. In the cases of Mr Harris and Mr Hilton, these documents were those relating to the making of the applications for warrants and to the subsequent interceptions. In the case of Mr Jackson, the subpoena called for the log entries in respect of the monitoring of the telephone intercepts. Counsel for the Assistant Commissioner submitted that the requirements of these paragraphs should be set aside as oppressive. He referred to Commissioner for Railways v Small (1938) 38 SR(NSW) 564 and especially at pp 573-575 and to Waind v Hill and National Employees Mutual General Association Limited (1978) 1 NSWLR 372. I rejected the submission of oppression stating that, although in Waind at p 382 Moffitt P said that it was oppressive to place upon the recipient the duty to determine what documents were relevant to the issue joined in the proceedings, he did not exclude the possibility that a subpoena might require production of all documents relevant to a particular matter, act or event sufficiently tightly defined and that, as Moffitt P pointed out, the party issuing the subpoena may not be aware of the nature of the documents relating to that matter, act or event. The documents sought by the applicants' subpoenas were defined by reference to two particular events: the application for the warrants and the interception of telephone calls. The form of the subpoena required no judgment as to the relevance of the documents to the present proceedings. Under such circumstances, I thought that, although the requirements of the subpoenas may involve the production of a large number of documents, those requirements could not properly be described as oppressive.

2. Certain documents were then produced to the Court in compliance with these paragraphs, a full answer being deferred until the commencement of the hearing. Counsel indicated that a claim for public interest immunity would be made in relation to some of the documents. I deferred until the hearing of the principal proceedings consideration of any such claim. I granted leave to counsel for the applicants in the meantime to inspect those documents in relation to which no claim for public interest immunity was foreshadowed.

3. At the commencement of the hearing certain further material was produced, a claim for public interest immunity being made in respect of part of it. Affidavits in support of that claim were filed. After further argument I upheld the claim for public interest immunity in respect of all documents, and all parts of documents, in relation to which it was claimed.
   
   The Claim for Public Interest Immunity
   
   

4. It is not possible fully to express my reasons for upholding the claim to immunity. If I were to do so I would need to disclose matters within the documents which ought not, in the public interest, to be disclosed. However, it is appropriate that I make some general comments regarding my approach to this matter.

5. As I have said, counsel emphasized the extreme importance of their clients, in relation to the criminal proceedings, of being able to demonstrate - if they could - that the warrants were invalidly issued. They pointed to the impossibility of making full submissions as to the material placed before the judges, and the circumstances under which the applications for warrants were made, without access to the material the subject of the claim for public interest immunity. The difficulty is obvious and the fact that counsel have not had the opportunity of considering the material, and searching for defects or inadequacies, places a special burden upon the Court. The Court must undertake this task itself, assisted only by general submissions from counsel.

6. Counsel added to these considerations the argument that there exists a strong public interest in scrutiny of the workings of Part IV of the Act (ss.18-27) providing for the interception of telecommunications and telegrams. They rightly stated that a telephone interception, particularly where the fact of the interception is unknown to the persons using the service, represents a considerable intrusion into personal privacy. It was, they said, in principle undesirable that the power to impose that intrusion on telephone users should not only be exercised in secret but that it should, by reason of denial of access to documents, become effecitvely free from supervision.

7. These considerations have very considerable weight. They justify the view that access to documents relating to telephone interceptions should be denied only in cases in which there are powerful contrary considerations. I would not have been prepared to uphold the claim for privilege on some of the grounds relied upon by Mr. McCabe; for example, the possible prejudice to one of the applicants in the Local Court proceedings - if this is a proper ground, orders could have been made to prevent publicity - or, at least in this case, the possibility of prejudice to relations with an overseas police force. However, weighty evidence was put before me in relation to some of the other grounds. That there will often be a strong case for suppressing documents which reveal the identity of police informants is recognized in numerous authorities. They were collected and referred to by Beaumont J. in Quin at pp.10-11. In relation to that matter, in the present case, an affidavit of Mr. Ian Temby Q.C., the Director of Public Prosecutions, was read. That affidavit disclosed that one of the informants whose identity would be revealed if access were given to the subject material is to be a major witness in a number of prosecutions in relation to offences "of the most serious kind". Mr. Temby deliberately did not go into details but, having read the documents, I have - I believe - a good idea what Mr. Temby means. Mr. Temby went on to voice two fears in relation to the disclosure of the person's identity: to his life or health and to his readiness to co-operate in relation to the giving of evidence. Mr. Temby also voiced apprehension at the possibility that continuing police investigations would be hindered by the identity of an informant being disclosed.

8. The consequences in respect of investigations was referred to in another affidavit, this one being sworn by Detective Chief Inspector George Snape, the acting officer-in-charge of the Internal Police Security Unit of the New South Wales Police Force. This deponent referred to the current use by that Unit of material on the tapes, and transcripts thereof, in connection with the investigation of the activities of approximately 30 people, with a view to preparing briefs for submission to the Solicitor for Public Prosecutions to enable that officer to determine whether criminal charges should be laid against those people. Certain investigations have already been completed and briefs relating thereto are already under consideration by the Solicitor for Public Prosecutions. Detective Chief Inspector Snape expressed concern that disclosure of certain of the material would alert persons whose activities were under current investigation.

9. I should note three submissions which were made to me in relation to the ground for immunity of continuing police investigations. First, as I have mentioned, counsel reminded me that the material in the documents was now about two years old. They asked me to consider whether it could realistically be thought that disclosure of information of that age could impede investigations now being made. I have borne this matter in mind but I am persuaded, not only from the evidence of Mr. McCabe, Mr. Temby and Detective Chief Inspector Snape but also from the nature of much of the material itself, that this result might occur. In cases of complex criminality, involving many people, investigations take some time. Secondly, the submission was put that, in relation to this ground of immunity, I should confine my attention to investigations pertaining to narcotic offences; that being the category of offences in relation to which telephone interception warrants might be issued. In particular, it was said that I should put out of consideration investigations relating to possible breaches of a State law. I reject that submission. Although it is true that interception warrants may only be issued in relation to narcotics offences, s.7(6) itself envisages that information which becomes available as a result of an authorized interception may be used in the prosecution of certain non-narcotics offences, including certain offences against State law. It would defeat the policy behind that provision for a Court to be bound to disregard investigations, arising out of information obtained from interceptions, into possible offences in relation to which that information might be used. Finally, it was said that it was not open to a Commonwealth officer, such as the Assistant Commissioner of the Australian Federal Police, to take as a ground of objection the effect upon investigations into possible breaches of State law, that the objection must be taken by a suitable State officer. This submission overlooks the special nature of a claim to public interest immunity. As was pointed out by Bowen C.J. in Quin at p.6, the immunity does not arise inter partes; the claim may be made by any person, including a person who is not a party to the proceedings. The Court itself may raise the matter. It is, of course, another question whether the Court should act upon evidence given by a person not personally cognizant of the investigation. In the present case information relating to the State police investigations was initially sought to be put before the Court, upon an information and belief basis, in an affidavit of a federal police officer. I rejected the relevant paragraph and indicated that, if this ground were to be pressed, there ought to be direct evidence from a responsible officer involved in the investigations; Detective Chief Inspector Snape's affidavit was the result.

1. There are four final comments in relation to the claim for public interest immunity. First, Mr. Gyles voiced concern that, in the absence of proper public scrutiny, different judges might exercise their powers under s.20 upon different principles and in ignorance of the approach of other judges. The possibility might arise, it was said, of police officers going to particular judges who were known to have a personal predilection or an idiosyncratic view which made a favourable decision more likely. It cannot be denied that judges may vary in the approach which they take to their function or to the proper construction of the section but it is desirable that I state that it is not, and never has been, the practice of the Court to permit direct access by police to judges for the purpose of making applications for warrants. Police officers do not choose the judge to be approached. The practice is for a senior officer of the Australian Government Solicitor or, more rarely, the Director of Public Prosecutions to contact a senior officer of the Court. That officer, on behalf of the senior judge in the relevant district, then arranges for a judge to be made available. Secondly, Mr Roberts, counsel for Mr. Hilton, contended that the applicants were entitled to see the documents as of right and regardless of any claim for public interest immunity. He referred to a comment in the judgment of Lord Denning M.R. in Inland Revenue Commissioners v Rossminster Limited (1980) A.C. 952 at p.971 - a case concerning documents seized under a search warrant - that the material to justify the warrant which was put before the Common Sergeant, who issued the warrant, was not before the Court but that "if this court were told then, it would follow equally that Mr. Bateson" (counsel for the applicants) "and his clients would be told then also". But, in that case, the Court of Appeal was not concerned with a claim for public interest immunity. Lord Denning was doing no more than expressing the usual rule that, in the absence of a proper ground for refusing access, information placed before the Court and relating to a matter in issue in proceedings is available to the parties to those proceedings and their counsel. Thirdly, Mr. Roberts suggested that, if I were not disposed to grant access to the subject material to the parties, I should at least grant access to the legal representatives of the parties. I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister, although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the content of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the Court if their counsel had been given the opportunity to take the Court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorized disclosure. Weighing the assistance likely to be obtained from counsels submissions against the sensitivity of the material, it seemed better not to accede to Mr. Robert's suggestion. Finally, it was submitted that I should not simply accept the claim for immunity in full; that I should consider for myself whether it extended unnecessarily widely, if necessary re-editing the material so as to reduce the extent of restriction on access. I accept that this approach is proper. I have carefully perused the portions of the documents in relation to which immunity is claimed, and especially the critical material in Mr. Well's affidavits which were used to support the applications for the warrants. Having regard to what is said in the various affidavits in support of the claim for immunity, I am satisfied that the claim is not excessive; indeed the material to be made the subject of the claim appears to have been carefully selected by well informed officers.
   
   Parties and Jurisdiction
   
   

2. By a Notice of Motion filed on 25 March 1985 Mr. Hilton sought leave to amend his Application so as to add as additional respondents the two judges of the Court who issued the warrants authorizing the telephone interceptions. A similar application was made at the hearing on behalf of the other applicants. Counsel for the third respondent, in each matter, objected on the ground that such an amendment would occasion delay. He was anxious to avoid, if possible, any interference with the current arrangements for the committal proceedings to resume next Monday, 1 April. I indicated that I would not accede to the application at that stage but that I would hear submissions as to parties and jurisdiction and that, if it ultimately appeared that the applicants were entitled to relief but that the grant of appropriate relief depended upon the addition of the two judges as additional respondents, I would grant the application for amendment and make appropriate consequential orders.

3. The current applications are not made pursuant to the Addministrative Decisions (Judicial Review) Act 1977. Decisions in relation to the issue of telephone interception warrants are expressly excluded from the operation of that Act: see para.(d) of Schedule I to that Act. The applicants, however, claim that the Court has jurisdiction to entertain the claim by virtue of s.39B of the Judiciary Act 1903, read with s.32 of the Federal Court of Australia Act 1976. Section 39B provides:
   
   

"39B. (1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in sub-section (1) to an officer or officers of the Commonwelath does not include a reference to -

(a) a person holding office under the Conciliation and Arbitration Act 1904, or the Coal Industry Act 1946; or

(b) a Judge or Judges of the Family Court of Australia."

1. Section 32 of the Federal Court of Australia Act confers upon the Court, to the extent that the Constitution permits, jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. The section has been considered by the High Court in a number of cases: see Phillip Morris Inc. v Adam P. Brown Male Fashions Pty. Limited (1981) 148 C.L.R. 457, Fencott v Muller (1983) 46 A.L.R. 41, Stack v Coast Securities (No.9) Pty. Limited (1983) 49 A.L.R. 193. The claim which lies within the Court's jurisdiction must be made bona fide and not merely colourably to attract jurisdiction but once the jurisdiction is thus invoked the Court has accrued jurisdiction under s.32 to determine all aspects of the controversy between the parties - it being a single justiciable controversy - and to grant all relief to which the parties may be entitled.

2. In the present case, the applicants point to their claims for injunctions to restrain the first and second respondents, who are each Commonwealth officers, from utilizing for any purpose whatsoever the material obtained as a result of the warrants and from disseminating the information obtained as a result of the warrants. That claim, they argue, was made bona fide and not colourably to attract the jurisdiction of the Court. I think that this is correct. Had the High Court answered the second question considered by it in Mr. Hilton's case in the opposite way, it is arguable that the applicants would have been entitled to that relief, or to some variant of it. The view of the High Court was not known when the proceedings were commenced. It appears to me that the jurisdiction of the Court was properly invoked by the claim for injunctions against the two Commonwealth officers. That jurisdiction being aroused, the Court has jurisdiction to consider all aspects of the controversy, provided that it is a single justiciable controversy, and to grant such relief as the parties may be entitled to receive; it does not matter that, in the event, the claim for an injunction may fail. Furthermore, the relief which may be granted includes relief against a respondent who would not otherwise be amenable to the jurisdiction of the Court, such as the respective third respondents.

3. I think that it is unnecessary, in the circumstances of this case, to consider whether, if the applicants are entitled to succeed, certiorari will lie to quash the warrants. The grant of certiorari by a Court to quash a warrant issued by a person who is a judge of that Court, although acting - according to the majority view in the High Court - not as a member of the Court but as a designated person may be conceptually sound but would constitute a startling result. The matter need not be further considered because, as it seems to me, the applicants would achieve everything they need by a declaration that the warrants were invalid. So armed, they would be in a position to argue for the exercise in their favour of the discretion vested in the Local Court. And if a declaration would suffice there is no problem in relation to parties. I therefore refuse the application to amend.
   
   The Hearing
   
   

4. The evidence admitted at the hearing of the principal proceedings themselves consisted of formal affidavits in similar form, read in each of the Harris, Hilton and Jackson matters together with certain documents tendered without objection. The first exhibit consisted of the files of documents produced by Mr. McCabe, and identified respectively as RJMc, RJMc2, RJMc3, RJMc4, RJMc5 and RJMc6, in relation to which I had upheld claims for public interest immunity in respect of the whole of some documents, and some parts of other documents. The tender was made, and the exhibit was admitted, upon the basis that, at least pending further order, the exhibit would not be available to the parties or their representatives. The documents were tendered, sight unseen, in order that I may undertake the task of checking them against what were to be suggested as the necessary preconditions of the issue of valid warrants. In addition counsel tendered the draft opening of counsel for the respective third respondents, the informants in the proceedings in the Local Court, the depositions of the first five days of hearing in that Court and the transcripts of telephone conversations to be relied upon in those proceedings by the prosecution. The purpose of these documents, as I understood it, was to demonstrate the existence of allegations of non narcotic offences combined with the absence of any allegation of a narcotics offence having occurred. There was no oral evidence.

5. At a later stage in the hearing counsel for Mr. Hakim and the solicitor for Mr. Jackson sought to withdraw that part of their respective clients claims that challenged the constitutional validity of s.20 of the Act. It appeared that this was not done in a spirit of acceptance of the High Court decision in Mr. Hilton's case but rather in order to avoid an issue estoppel on the point in these proceedings and to leave open the possibility of a subsequent challenge to the validity of the warrants on the same ground. I declined to permit this course to be taken. Considerable trouble had been taken, both in this Court and in the High Court, to arrange urgent hearings of all matters in contest between the parties so as to interfere as little as possible with the progress of the criminal proceedings. It would be contrary to the intent of those efforts to allow two of the applicants to taken a course calculated to disturb the criminal proceedings at a later date. I took the view that, the issue having been raised in these Applications, it should now be dealt with. That course seemed to me to conform both with general principle and with the specific command of s.22 of the Federal Court of Australia Act that, as far as possible, the Court take steps to ensure that "all matters in controversy between the parties...be completely and finally determined and all multiplicity of proceedings concerning any of these matters avoided."
   
   Form of Warrants
   
   

6. The six warrants the subject of the proceedings were annexed to affidavits filed by the applicants. They were in a similar form; a form which has excited some criticism on behalf of the applicants. Three matters are put. First, the warrants are each addressed: "To: Persons approved under Section 22 of the Telecommunications Interception Act, 1979, in respect of this warrant". No individuals are addressed either by name or by reference to their office. It is said that they should have been, that the warrant should be a speaking warrant not requiring further elucidation. As was pointed out by Mr. Robberds Q.C., for the third respondents, this would be a highly inconvenient result and, therefore, an unlikely intendment. Warrants may be issued to remain in force for a period up to six months: see s.20(5). It would be impossible to know in advance the particular persons whose co-operation in giving effect to the warrant over that period would be required. Secondly, it is said that the warrants are bad because they do not nominate the particular narcotics offence in relation to which the issuing judge has formed the requisite opinion under para.(a) of s.20(1). The recitals, in each case, state that the judge is satisfied, by information on oath that:
   
   

"(a) there are reasonable grounds for suspecting that that telecommunications service is being, or is likely to be, used by a person who is suspected on reasonable grounds of being likely to commit a narcotic offence within the meaning of that Act; and

(b) the interception by members of the Australian Federal Police within the meaning of that Act of communications made to or from that telecommunications service will, or is likely to, assist such members in, or in connection with, inquiries that are being made in relation to the likely commission, by that person, of such a narcotics offence."

1. Counsel referred to the line of authority which establishes that a search warrant issued under s.10 of the Crimes Act 1914 is invalid if it fails to specify the particular offence in relation to which it is issued: see for example The Queen v Tillett; ex parte Newton (1969) 14 F.L.R. 101, Crowley v Murphy (1981) 34 A.L.R. 496 at p.515, Australian Broadcasting Corporation v Cloran, Lockhart J. 21 December 1984, not reported. However, Sir Maurice Byers Q.C., for the first and second respondents, pointed to distinctions between the wording of the relevant provisions. He argued that the purpose and effect of the two types of warrants differ. A search warrant permits the bearer to enter premises not necessarily owned or occupied by a suspect, and to seize and carry away the thing named in the warrant. The purpose of a warrant under s.20 is to permit a telephone service to be intercepted: it permits nothing to be taken, although it may authorize entry onto premises. Sir Maurice also pointed out that the term 'narcotics offence' is defined in s.5 of the Act to refer to what he called the "small cluster" of offences made punishable as provided in s.235 of the Customs Act 1901; the category was not as broad as was the category of offences - any offence against any law of the Commonwealth or of a Territory - referred to in s.10 of the Crimes Act. Finally, counsel for the applicants criticised recital (b) in the warrant because, it purporting to rely upon para.(b)(ii) of s.20(1), it did not refer to the existence of circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence. Counsel conceded that this formula is almost identical to the wording contained in para.(a) - and repeated in recital (a) - but contended that it should have been repeated in recital (b).

2. I think that I would have difficulty in accepting, in any event, the validity of any of the three criticisms as to form which I have mentioned. But there exists a short answer to all three of those criticisms. The section permits a judge "by warrant under his hand in accordance with the prescribed form" to authorize persons approved under s.22 to intercept. The power committed by the section may be exercised only in accordance with the prescribed form; any other form would be ineffective. Regulation 3(1) of the Telecommunications (Interception) Regulations 1980 prescribes a form of warrant. It has each of the characteristics criticized by counsel for the applicants; indeed the warrants used in these cases follow faithfully the prescribed form. This is not a case, as Mr. Gyles suggested, of the regulations contradicting the requirements of the Act. This is a case where the Parliament was content to leave to the Executive the determination of the extent to which the warrant would specify detail; in relation to addressees, offences and opinions formed by the issuing judge. The Executive determined those matters when it prescribed the form. The subject warrants comply with those requirements. It is not to the point to argue that a better view is that greater particularity would be desirable. No implication from the form of the section in favour of the need for greater detail can withstand the express authority to the Executive to deal with this matter.
   
   Material Before the Issuing Judges
   
   

3. A number of submissions were put on behalf of the applicants as to the material which needed to be before the respective judges to enable valid warrants to be issued by them. It was said that the section requires the judge to ask himself whether he is satisfied of the matters set out in paras. (a) and (b) of s.20(1). It is not enough that some other person, such as a police officer, may be so satisfied. It follows that there must be information sufficiently specific for him to form the requisite opinions although, it is conceded, the information need not be within the direct knowledge of the informant on oath; information and belief is enough. Furthermore, it is said that the judge must form the requisite opinion in relation to a particular narcotics offence - it is not enough that he suspect some narcotics offence - identified by reference to the particular provision creating the offence. The judge must also form an opinion relating to a particular person; that person must be, or be likely to be, both a user of the telephone service and a person who has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, the particular narcotics offence.

4. I accept each of the above propositions. I have examined the various affidavits placed before the two judges in support of the applications for warrants. They contain material which, if accepted, would result in the formation of opinions complying with all of the requirements of those submissions. In each case the affidavit sets out, in some detail, the facts which suggest that the user of the telephone service has committed, or is likely to commit, a specific narcotics offence. Some of the facts are stated upon information and belief and, in relation to some facts, the source of the information is unspecified. These are circumstances to which consideration should have been, and no doubt was, given at the time of the applications for the warrants. The greater the dependence of an applicant for a warrant upon hearsay information the less likely it is that the judge will be satisfied of the requisite matters; and this is especially so if the source is unspecified. But it cannot, in my view, be said that the judge is obliged to disregard unsourced hearsay. He is exercising an administrative, rather than a judicial, function; the rules of evidence do not apply. Although it is not sufficient that the judge rely upon the deponent's opinion of the facts, he may take into account that the deponent has a particular belief as to the facts. If the deponent is a senior and responsible police officer with a comprehensive knowledge of the investigation, that belief itself has probative value in determining whether there are reasonable grounds for suspecting an offence.

1. Two other submissions as to the formation of the requisite opinions should be mentioned. First, it is said that there must always be evidence of suspicion by the deponent or some other person; it is said that "is suspected" refers not to the suspicion of the judge but of somebody else. The argument is that under para.(a) the judge has to be satisfied that there are reasonable grounds for him to suspect that the service is being used by a person who has the characteristics either of having committed or of being suspected - by somebody else - on reasonable grounds of having committed, or of being likely to commit, a narcotics offence. I am inclined to the view that this construction is correct. In the present case it does not matter because each of the affidavits of Inspector Wells deposes to the fact of his suspicion, he giving reasons therefor. Secondly, it was contended that the words "used by" in para.(a) are limited to use for outgoing calls. So, it is said, a case in which the suspect was in the habit of ringing in to a particular number, for example to leave messages about drug shipments, would not fall within the paragraph. I see no warrant for this suggested limitation. The paragraph refers to use of "the telecommunications service". That term is defined by s.5 by reference to the definition contained in the Telecommunications Act 1975. That definition includes "a service for receiving...sounds, images or signals that have been transmitted by means of electric or electric-magnetic energy". I should, perhaps, add that in the present case, the point is academic; in each case there was material to support the suspicion that the telephone service would be likely to be used for outgoing calls as well as for the receipt of incoming calls.
   
   The June Warrants
   
   

2. Particular attention has been directed by counsel to the warrants issued by McGregor J. on 24 June 1983. None of the four applicants has ever been charged with, or questioned about, any narcotics offence. On 24 May 1983 the three previous warrants, relating respectively to Mr. Hakim's premises at Kensington and Redfern and Mr. Harris' premises at Point Piper, were revoked. At about that same time there was, apparently, some contact between the Federal and the New South Wales Police forces in respect of non-narcotic matters which had emerged from the intercepts. Subsequently, on 24 June 1983, application was successfully made for fresh warrants in respect of those same three services. In the result the new intercepts, which were terminated in August 1983, yielded no evidence relating to narcotic offences. Under these circumstances, and without access to the whole of the material which was placed before McGregor J., the applicants not unnaturally wonder whether the June applications were the product of genuine suspicions relating to narcotic offences or whether they were made for the collateral, and illegitimate, purpose of seeking evidence in relation to non-narcotic matters. They argue that a proper disclosure of the facts to McGregor J. would necessarily require that he be informed of the fact that there was previously no intercept evidence of the commission by the two men of any narcotics offence. I agree that proper disclosure would necessarily involve an accurate statement of the results of the previous telephone intercepts; those results must be germane to the formation by the judge of the requisite opinions. I have carefully read what was put before McGregor J. in the three affidavits of 24 June, in relation to the previous intercepts. I am of the opinion that it accurately summarizes the position. Furthermore, I have read the material disclosed in those affidavits relating to events which had occurred between 24 May and 24 June. I think that, linked as they were to some earlier and not previously connected matters, they amply explain the decision of Inspector Wells to seek to reinstate the intercepts; a desire related to narcotics matters. I see no basis for the view that Inspector Wells was actuated by any improper purpose or that McGregor J. was mislead in any way.
   
   Conclusions
   
   

3. The constitutional point has been decided by the High Court only in Mr. Hilton's matter. In relation to the three other applications I follow that decision and hold that s.20 is not constitutionally invalid. I hold that the various warrants comply, in their form, with the requirements of the Act and of the regulations. I further hold that upon the affidavits placed before the respective judges, at the time of the issue of the various warrants, it was open to them to form each of the opinions required by s.20(1) of the Act. There is no evidence that any of the warrants was procured for any collateral or improper purpose. Each of the warrants was valid. The information gained from the intercepts made pursuant to the warrants was lawfully obtained.

4. Each of the applications should be dismissed with costs.