John Anile v The Queen
[2016] VSCA 226
•19 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0091
| JOHN ANILE | APPELLANT |
| v | |
| THE QUEEN | RESPONDENT |
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| JUDGES: | REDLICH, OSBORN and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 September 2016 |
| DATE OF JUDGMENT: | 19 September 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 226 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions v Anile (Unreported, County Court of Victoria, Judge Coish, 13 May 2016) |
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CRIMINAL LAW – Money laundering – Interlocutory appeal – Whether s 41Q of the Crimes (Confiscation of Profits) Act 1986 requires prosecution to prove a specific predicate offence – Appellant charged with laundering $400,000 cash when purchased a property with cash he knew or believed was derived or realised, directly or indirectly, as the result of the commission of a serious offence – Trial judge determined prosecution not required to prove a specific predicate or antecedent offence – Requiring prosecution to prove specific predicate offence would be illogical and unduly onerous – Appeal dismissed – Crimes (Confiscation of Profits) Act 1986 s 41Q – HSKAR v Wong Ping Shui (2001) 4 HKCFAR 29, Director of Public Prosecutions v Marell (2005) 12 VR 581, R v Allison [2006] 1 NZLR 721, Director of Public Prosecutions v Bholah [2012] 1 WLR 1737 considered
CRIMINAL LAW – EVIDENCE – Surveillance Device – Interlocutory appeal concerning admissibility of covert recordings – Witness covertly recorded conversations with accused – Police fitted and turned device on and off – Whether police had installed, used or maintained listening device – Trial judge ruled that recordings were not improperly or illegally obtained – Word ‘install’ not concerned with fitting electronic device to person – Police did not ‘use’ device as witness had control of device at time of recording – Police did not ‘maintain’ device – Appeal dismissed – Surveillance Devices Act 1999 s 6 – WK v R (2011) 33 VR 516
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Billings with Mr G Boas | — |
| For the Respondent | Mr C Boyce SC with Mr M Fisher | Mr J Cain, Solicitor for Public Prosecutions |
THE COURT:
The appellant has been arraigned on his trial on one charge of money laundering contrary to s 41Q of the Crimes (Confiscation of Profits) Act 1986, and one charge of obtaining a financial advantage by deception contrary to s 82 of the Crimes Act 1958. By way of interlocutory appeal the appellant seeks to challenge two rulings of the trial judge made prior to the empanelment of the jury.
The first ruling relates to one of the elements which must be established by the Crown in making out a charge under s 41Q Crimes (Confiscation of Profits) Act. The trial judge concluded that the Crown is not obliged to prove a specific offence (the predicate offence) in order to satisfy the element that the money or property has been derived or realised as a result of the commission of a serious offence.
The second ruling relates to the admissibility of certain covert recordings sought to be led as evidence against the appellant in the trial. The trial judge found that police had not installed, used or maintained a listening device in contravention of s 6 of the Surveillance and Devices Act 1999 (‘SDA’) or that, if their conduct was illegal, the recordings should not be excluded under s 138 or s 90 of the Evidence Act 2008.
Ruling 1 – What is required as proof of the predicate offence[1]
[1]Director of Public Prosecutions v Anile (Unreported, County Court of Victoria, Judge Coish, 13 May 2016) (‘Ruling 1’).
Section 41Q of the Crimes (Confiscation of Profits) Act 1986 provides that:
(1)A person who engages in money laundering is guilty of an indictable offence and liable, if a natural person, to a fine not exceeding 1200 penalty units or to level 3 imprisonment (20 years maximum), or to both and, if a body corporate, to a fine not exceeding 6000 penalty units.
(2)A person engages in money laundering if, and only if—
(a)the person engages, directly or indirectly, in a transaction that involves money, or other property derived or realised, directly or indirectly, by any person as a result of the commission of a serious offence; or
(b)the person receives, possesses, conceals, disposes of or brings into Victoria any money or other property derived or realised, directly or indirectly, by any person as a result of the commission of a serious offence—
knowing or believing that the money or property was so derived or realised.
The Crown’s case is that the appellant laundered $400,000 cash when he purchased a property in Kororoit Creek Road (‘engaging in a transaction’), and that he knew or believed that the $400,000 cash was derived or realised, directly or indirectly, as a result of the commission of a serious offence. The Crown relies, in part, upon the content of the covertly recorded conversations during which, over a lengthy period of time, there are said to be significant admissions made by the appellant that he knew that the money was derived or realised from the commission of a number of offences, but does not refer to the commission of a specific predicate offence.
In Ruling 1 the trial judge noted that the parties were in agreement that the following are the elements of the offence:
1- The accused engaged in a transaction;
2 - The transaction involved money or property;
3- The money or property was derived or realised, directly or indirectly, by any person as a result of the commission of a serious offence;
4 - The accused knew or believed that the money used in the transaction was derived or realised, directly or indirectly, by any person as a result of the commission of a serious offence.[2]
[2]Ruling 1, 211.
The issue raised was whether, under element 3, proof of the commission of a serious offence meant that the prosecution must prove the commission of a specific predicate offence. The trial judge determined that the prosecution was not required to prove a specific predicate or antecedent offence. His Honour said:
The section itself is expressed in broad terms. The money must be derived or realised directly or indirectly by any person as a result of the commission of a serious offence. A serious offence is defined to mean an indictable offence against the laws of Victoria. The mental element is that the accused know or believe that the money was so derived or realised. There is no justification, in my opinion, to import into the section the additional requirement of proof that the money be derived from a specific predicate or antecedent offence.
Whilst I accept the distinction between s 41Q and the other statutory provisions the subject of decisions in the cases to which I have referred there is a clear line of judicial authority that proof of a particular antecedent offence is not necessary in these money laundering cases. I have, as I have stated, taken into account the distinguishing feature of these cases. I do not accept that there is any reversal of the onus of proof or requirement upon the accused to give evidence by virtue of this interpretation of s 41Q. I do not understand how this could be so. The prosecution does at all times and in relation to all issues bear the onus of proof. This is not reversed in any way by the determination that proof of a specific predicate or antecedent offence is not required. [3]
[3]Ruling 1, 213-214.
Grounds of Appeal
The appellant relies on two related grounds:
1.On its proper reading s 41Q of the Crimes (Confiscation of Profits) Act 1986 requires the Crown to establish that the money the subject of the allegation of money laundering:
a) was derived or realised from a specific serious crime; and
b) proof of that fact is an essential element of the charge; or
c) in the alternative, an essential element of proof to the charge.
2.That the learned trial Judge erred in ruling that the money, the subject of the allegation of money laundering under s 41Q of the Crimes (Confiscation of Profits) Act 1986 only required the Crown to prove that the said money was derived or realised from a serious crime or any serious crime without the need to specify that serious crime.
Submissions
The appellant submits that on a plain reading of the text the Crown must prove a particular serious offence from which the money was derived or realised. The appellant submits that in the absence of any legislative intent to the contrary, the requirement to prove the specific predicate offence from which the money was derived formed part of the actus reus and the mens rea (the requisite knowledge or belief) of the offence.
The appellant further relied on sections 121, 122 and 123 of the Confiscation Act 1997, which replaced section 41Q of the Crimes (Confiscation of Profits) Act 1986 when the Confiscation Act was introduced.[4] Section 122 relevantly provided:
[4]These provisions were then repealed, and were inserted into the Crimes Act 1958 by the Crimes (Money Laundering) Act 2003, as a new Division 2AThose are the current provisions covering money laundering offending.
(2) A person engages in money laundering if, and only if—
(a)the person engages, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of crime; or
(b)the person receives, possesses, conceals, disposes of or brings into Victoria any money, or other property, that is proceeds of crime—
and the person knows, or ought reasonably to know, that the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity.[5]
[5]Emphasis added.
The appellant submitted that the words ‘from some form of unlawful activity’ in s 122 replaced the salient part of s 41Q. This it was said was designed to overcome the problems imposed on the prosecution by the requirement that a predicate offence be proved beyond reasonable doubt as an essential element of the charge under
s 41Q.
Finally, the appellant relied on s 32 of the Charter of Human Rights and Responsibilities Act 2006. The appellant submitted that if the Crown did not need to prove a particular predicate offence, then in effect, the onus of proof would be reversed and the accused would lose the benefit or protection of the need to prove the precise serious offence that had been committed.
Conclusions
As the trial judge observed, s 41Q(2) is expressed in broad terms. The mischief to which it is directed being money laundering, the provision is intended to enable the prosecution of those who facilitate the disguise of the illegal source of the money.
The text requires that the money be derived ‘directly or indirectly by any person as a result of the commission of a serious offence’. It does not require that the precise origin of the source of the money be identified; only that the money be derived from the commission of ‘a serious offence’. That is to say, the provenance of the money must have the character of ‘a serious offence’. As Ribeiro PJ said in HKSAR v Wong Ping Shui,[6] in a passage cited with approval by the Court of Final Appeal in HKSAR v Yeung Ka Sing, Carson,[7] :
... it is wholly implausible that the Legislature could have intended proof of money laundering offences to require proof of the underlying criminal offences that generated the money being sanitised. There is the obvious likelihood that such activities would be cloaked in secrecy and that they may well have taken place in one or more foreign jurisdictions.[8]
[6](2001) 4 HKCFAR 29.
[7][2016] HKCFA 53 (‘Yeung’) at [25].
[8](2001) 4 HKCFAR 29 at [10].
Further, as the appellant accepts, if his construction were correct, the mens reas of the offence would also require proof that the accused, being the person engaging ‘directly or indirectly’ in a transaction, also knew of the precise illegal act from which the money was derived or at least believed it to come from that particular predicate offence. The text does not support such a meaning. The fact that the money may be derived by ‘any person’ and may be derived ‘indirectly’ from the commission of a predicate offence, does not support a construction that the Crown must establish the precise offence and that the accused knew or believed that precise offence to be the provenance of the money.
The appellant’s construction would defeat the purpose of the provision. If as will commonly be the case, the money is derived from many serious offences, the prosecution would have to prove each particular predicate offence and the amount derived from that offence if the words ‘a serious offence’ were assigned the meaning that the precise particular crimes must be proved. That would almost certainly result in the money launderer, who receives the proceeds from an ongoing criminal enterprise involved in drug trafficking or tax evasion, two of the most common forms of illegal activity involving the laundering of funds, could not be successfully prosecuted. Such a meaning as the appellant advances, would make the provision unworkable.
The appellant’s construction would also alter the complexity of the prosecution task in a way unknown to the criminal law. As was recognised in oral argument, no offence on the criminal calendar, save for the case of an accessory to an offence, requires the prosecution to prove another offence as part of its proof of the offence charged. That would require a trial within a trial.
In deference to the submissions raised by the parties we should advert to some of the other arguments raised.
The money laundering provisions, and specifically s 41Q, were introduced to the Act in 1991 in the Crimes (Confiscation of Profits) (Amendment) Act 1991. The amendments followed a request to the Director of Public Prosecutions in 1988 to convene a working party to review the operation of the Act, in the context of drug prosecutions.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 10 October 1991, 1151 (Attorney-General).
The offending here relates to a period said to have occurred between 1994 and 1995. The Crimes (Confiscation of Profits) (Amendment) Act 1991, was repealed on 1 July 1998. Money laundering offences were thereafter governed by sections 121, 122 and 123 of the Confiscation Act 1997. These provisions were then repealed, and, further to the Crimes (Money Laundering) Act 2003, a new Division 2A containing the provisions was inserted into the Crimes Act 1958.
The extrinsic material in relation to the impugned section here, does not provide any assistance in the interpretation of s 41Q.
As Dodds-Streeton J said in Director of Public Prosecutions v Marell,[10] the Acts and provisions governing money laundering in the subsequent legislative amendments provide some guidance as to the purpose of the original 1991 enactments. Division 2A of the Crimes Act, as inserted by the Crimes (Money Laundering) Act2003, is different from the impugned section here. Section 193(2) provides:
(2)For the purposes of the definitions of ‘instrument of crime’ and ‘proceeds of crime’, it is necessary to prove facts that constitute one or more offences referred to in paragraph (a), (b) or (c) of those definitions but the particulars of an offence need not be proven.
[10](2005) 12 VR 581 (‘Marell’).
In the explanatory memorandum to the 2003 Bill it was said:
The bill clarifies that, as long as it is possible to prove that the money was derived from, or used in, an offence falling within certain categories, it is not necessary to prove all of the details of that offence.
The Crown also submitted that having regard to the purpose of the provision, the words ‘a serious offence’ did not require proof of the commission of a specific offence, a general proposition which it said was supported by the decisions in R v Allison,[11] Director of Public Prosecutions v Bholah,[12] and Marell,[13] although these cases dealt with different statutory offences of money laundering.
[11][2006] 1 NZLR 721 (‘Allison’).
[12][2012] 1 WLR 1737 (‘Bholah’).
[13](2005) 12 VR 581.
In our view those cases do not advance the question of construction as they are concerned with distinctly different legislation. In Allison for example, the offender was prosecuted under s 257A of the Crimes Act 1971 (NZ) which sets out that it ‘shall not be necessary for the prosecution to prove that the accused knew or believed that the property was the proceeds of a particular serious offence or a particular class of serious offence.’ Similarly, in Bholah, s 17(7) of the Economic Crime and Anti-Money Laundering Act 2000 relieves the prosecution from the need to specify any particular crime. These were provisions that mirrored article 9(6) of the Warsaw Convention 2005 that parties should ensure that a conviction for money laundering is possible where it is proved the property originated from a predicate offence without it being necessary to establish the precise predicate offence. There are no such analogous provisions in the Victorian legislation.[14] Marell was concerned with s 194 of the Crimes Act 1958 which required only that the prosecution prove there were reasonable grounds for the offender to suspect that the property was the proceeds of crime.
[14]Although a similar section is set out in the Commonwealth legislation, see Criminal Code s 400.11.
The Commonwealth Code provisions similarly provide that it is not necessary for the Crown to prove the predicate offence.[15] The New South Wales Court of Criminal Appeal in Lin v The Queen,[16] found, in relation to the Code provisions, that the Crown was not required to identify the specific ‘predicate’ indictable offence.
[15]See 400.11 Criminal Code.
[16](2015) 297 FLR 457.
We see no error in his Honour’s ruling that it is not an element of the offence that the Crown prove a specific predicate offence. As the second reading speech to the Crimes (Money Laundering) Bill makes clear through its use of examples, it would be illogical and unduly onerous in many circumstances to require the Crown to prove the commission of a specific predicate offence. The interpretation of s 41Q for which the appellant contends is antithetical to the purpose of the legislation as disclosed by the scheme of the Crimes (Confiscation of Profits) Act and cannot have been the meaning intended by the legislature.
Ruling 2 - Were the recordings of discussions between the appellant and Witness U improperly or illegally obtained?
The appellant and Witness U are distant relations and have known one another for about 30 years.[17] Both of them had an interest in the property at Kororoit Creek Road in the 1990s.[18] It will be recalled that the Crown’s case is that the appellant laundered $400,000 when he purchased that property.
[17]Director of Public Prosecutions v Anile (Unreported, County Court of Victoria, Judge Coish, 13 May 2016) (‘Ruling 2’).
[18]Ibid 216.
Between 30 January 2013 and 3 October 2013 the appellant and Witness U met on about ten occasions, usually at the Gravy Train Café in Yarraville. Witness U covertly recorded their discussions. The prosecution contends that in the course of the discussions, the appellant made admissions relevant to the charges against him. The alleged admissions are said to include that the appellant purchased the Kororoit Creek Road land for $955,000 with $400,000 of the price being paid in cash, the appellant knowing or believing that the cash was derived from the commission of a serious offence.
The judge refused to exclude evidence of the covert recordings. The appellant contends that the covert recordings breached s 6(1) of the SDA and were therefore improperly or illegally obtained such that they ought not be admitted into evidence because of the effect of s 138(1) of the Evidence Act 2008. Under that section, evidence that was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of doing so. Alternatively, the appellant contends that the judge should have excluded the recordings in the exercise of the discretion under s 90 of the Evidence Act. Relevantly, that section permits the court to refuse to admit evidence of an admission if, in the circumstances, it would be unfair to an accused to use the evidence.
The judge described how the recording of the conversations was instigated:
Witness U stated the first approach made to him by the police in late 2012 concerned general business transactions. There were further meetings with police and in the end he agreed to use a recording device. Witness U could not recall being told specifically why the police wanted him to wear a listening device. There was no offer made to Witness U by police. Witness U said he had concerns about the matters being raised by police and he agreed to the police request to wear a listening device to covertly record conversations with the accused. Witness U said he did not have a specific briefing by police, rather there was just a general conversation about seeing where the conversations with the accused went. Witness U was not briefed by police as to questions he should ask the accused. He did know the matter of interest was the purchase and development of Kororoit Creek Road and this was also of interest to him. Witness U explained that he was not given specifics by police rather he was aware of rumours and all he did was meet the accused and start a conversation.[19]
[19]Ruling 2 224.
The meetings between the appellant and Witness U generally took place in the outdoor eating section of the Gravy Train Café.[20] The judge summarised the procedure that Witness U followed each time he met with the appellant:
Witness U met the police. The police provided a recording device. They put this device on to the body or person of Witness U. When cross‑examined at the committal hearing on 16 February 2015 Witness U agreed with the proposition that he was ‘fitted’ with the device. He also said the request by police was that he ‘wear’ a listening device. The police turned the device on. Witness U left the police and met the accused, generally at the Gravy Train Café. He engaged in a private conversation with Witness U in that public place. There were occasional interruptions to those conversations. After speaking with the accused Witness U returned to a location to meet the police. The police turned off the device and removed it from Witness U.[21]
[20]Ruling 2 216.
[21]Ruling 2 2164 - 217.
Section 6 of the SDA provides as follows:
6. Regulation of installation, use and maintenance of listening devices.
(1)Subject to sub-s (2) a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party without the express or implied consent of each party to the conversation.
(2)Sub-s(1) does not apply to —
(a)the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or
(b)the installation, use or maintenance of a listening device in accordance with the law of the Commonwealth; or
(c)the use of a listening device by a law enforcement officer to monitor or record a private conversation to which he she or is not a party if —
(i)at least one party to the conversation consents to the monitoring or recording and
(ii)the law enforcement officer is acting in the course of his her duty,
(iii)the law enforcement officer reasonably believes that it is necessary to monitor or record the conversation for the protection of any person’s safety.
It is common ground that the device used by Witness U was a ‘listening device’ and that the discussion between him and the appellant was a ‘private conversation.’[22] It is also common ground that the police did not obtain a warrant so that if it is the police that installed, used or maintained the device, s 6(2)(a) was breached.
[22]Those terms are defined in SDA s 3.
‘Install’ is defined in s 3 of the SDA to include ‘attach.’ ‘Maintain’ is relevantly defined to include adjust, relocate, repair or service the device and replace a faulty device.[23] ‘Use’ of a surveillance device includes use of the device to record a conversation or other activity.[24]
[23]Ibid.
[24]Ibid.
Section 6(1) of the SDA was considered in WK v R.[25] There, the complainant reported to police that the accused had threatened to publish sexually explicit photographs of her unless she agreed to have sexual intercourse with him twice a month. A police officer told her that, in the absence of corroborating evidence, he could not arrest the accused. The police officer suggested that the complainant could assist by telephoning the accused and engaging him in conversation about the threats he had made to publish the photographs. The complainant said that she was willing to do this. The police officer provided her with a tape recorder and told her how to operate it. The complainant then used the recorder to tape a discussion which she had with the accused. The prosecution sought to admit a transcript of the recorded discussion, contending that it contained relevant admissions. The accused contended that s 6(1) of the SDA had been infringed and submitted that the trial judge should have excluded the transcript in the exercise of the court’s discretion under ss 90 and 138 of the Evidence Act. The Court held that the transcript was admissible and found no error in the exercise of the judge’s discretion.
[25](2011) 33 VR 516 (‘WK v R’).
Maxwell P concluded that the police had not ‘used’ the listening device. He said:
What does it mean to say that a person “uses” a listening device to record a conversation? It means, in my view, that the person is the operator of, and the one who engages, the recording capability of the device at the time when it is put to use for the purpose of recording the conversation. (I will refer to this as “direct” use.) As a matter of ordinary language, a person (A) does not “use” a thing if another person (B) uses it at A’s request, even if A has provided instruction about how to use it. (Nor, as the New South Wales Supreme Court has recently held in a similar legislative context, does A “use” a listening device when it is worn and operated by B in A’s presence, even though A is aware that the device is being used to record a conversation in which he/she is participating.)[26]
[26]Ibid 521 [16] (footnote omitted).
Maxwell P reasoned that:
If a person is in charge… of operating a device so that it records a conversation in which she participates, it is she who “uses” the device for that purpose. It does not cease to be her use merely because she uses the device at the request of, and after instruction from, another person.[27]
[27]Ibid 522 [18]. Maxwell P left to one side the situation where a person, as a true agent of another, uses a listening device.
Applying those propositions to the facts before him, Maxwell P observed:
the officer in the present case did not “use” the device to record [the complainant’s] conversation with the appellant. The only person who did so was [the complainant] herself. Although the device did not belong to her, and although she needed the officer’s instruction as to how to operate it, it was she alone, acting of her own volition, who operated the device — engaged its recording capability — so that it recorded her conversation with the appellant.
[The complainant] was not acting under direction or coercion. She was acting autonomously, just as she was when she took her complaint to police in the first place. The decision to record the conversation was hers, and hers alone. That she did so at the officer’s express request does not make it any the less her own act, in my view.[28]
[28]Ibid 522 [20]-[21] (footnote omitted).
Nettle JA (with whom Harper JA agreed on this point) held that the complainant, not the police, had ‘used’ the tape recorder. He said:
as long as it is the complainant who operates the device and uses it, the recording of the conversation does not contravene s 6. But it would be otherwise if the device used by the complainant were part of equipment being used by the police to listen to and record the conversation remotely. Then, there would be an infringement of privacy of the conversation instantaneously upon transmission of its content to the remote location and, in those circumstances, the police would “use” the recording device to record the conversation within the meaning of s 6.[29]
[29]Ibid 531 [61] (Harper JA agreeing 535 [84]).
The Court also held that the police had not ‘installed’ or ‘maintained’ the listening device within the meaning of s 6(1) of the SDA. The provision of the recorder to the complainant, her use of it and then return of it to the police did not amount to ‘installation.’[30] Merely instructing the complainant as to how to operate the listening device and how to place the earpiece in her ear did not constitute ‘installation.’[31] To establish ‘maintenance’ it is necessary to show a close connection between the ‘maintenance’ of the device and the recording of a particular conversation.[32] The act of the police officer in putting new batteries and a tape into the device before it was given to the complainant ‘amounted to no more than the provision to her of a device in working order, for her to use.’[33]
[30]Ibid 525 [32] (Maxwell P) (Nettle JA agreeing 531 [62]). See also Harper JA 534 [79]-[80].
[31]Ibid 534 [80].
[32]Ibid 525 [34] (Maxwell P) (Nettle JA agreeing 531 [62]).
[33]Ibid 525 [36] (Maxwell P) (Nettle JA agreeing 531 [62]). See also Harper JA 534 [81].
Ruling 2
The judge observed that ordinarily a listening device would first be installed, then used and then maintained which accorded with the order of those terms in s 6(1) of the SDA.[34]In the judge’s view, ‘install’ generally involves more than merely placing an article somewhere; it involves some form of building, machine or inanimate object and does not include putting or fitting a listening device on a person.[35] The judge said:
In considering the extended definition whereby ‘install’ includes attach I have taken into account the relevant context. I do not accept that what has occurred here was the attachment of a listening device.
There is, in my opinion, no evidence that the police maintained the listening device.…
In considering ‘use’ in my opinion the context in which this word appears - that is, between ‘install’ and ‘maintain’ - is very important. ‘Use’ is a broad term, but it must be considered in context. As Nettle JA noted at p.531 in WK v R, the Oxford English Dictionary lists 25 meanings of the word ‘use’. This is not the kind of situation envisaged by Nettle JA where the listening device is used by the police to listen to and record the conversation remotely.
In WK it was held the police did not ‘use’ the listening device. The difference here in respect of this aspect of s.6 is the police turned the listening device on and off. I do not consider this to be a ‘use’ of the listening device by police to record a private conversation when it is Witness U who takes the listening device to the meeting place and records the conversation with the accused. The distinction between the facts in this case whereby the device is turned on and off by police and the facts in WK v R whereby the device is given to the complainant with instructions and she turns it on and off is very fine indeed. It seems a surprising result that in the first circumstance a warrant would be required but not in the second circumstance.[36]
[34]Ruling 2 219.
[35]Ibid.
[36]Ruling 2 220 - 221.
Grounds of Appeal
The appellant relies on the following grounds:
1.In the circumstances the covert recordings breached s 6(1) of the SDA and were thus improperly or illegally obtained.
2.The evidence of the covert recordings should not have been admitted applying s 90 or s 138 of the Evidence Act or the common law.
Appellant’s Submissions
The appellant submits that the manner in which the police fitted the recording device on Witness U offends s 6(1) of the SDA. In particular, the appellant submits that Witness U had no role to play in the installation, use or maintenance of the device at all but rather was simply a ‘mule’ for the illegal recordings of the police.
The appellant submitted that ‘install’ includes putting a listening device on or fitting it to a person and is an attachment of a listening device. He also submits that the police ‘used’ the device and that the fact that it was Witness U who took the listening device to the meeting place and recorded the conversations with the appellant did not mean that the police did not ‘use’ the device. Finally, the appellant submits that the word ‘maintain’ in context means ‘cause or enable a condition or situation to continue’ which is what the police did.
Conclusions
The appellant’s submissions must be rejected.
First, the description of Witness U as a ‘mule’ for the police does not assist the analysis. Witness U agreed to use the listening device because he was concerned about protecting himself given he had some connection with the matters that the police were raising with him. He was not briefed by the police nor did they direct him as to what to do or say in the meetings with the appellant. He was not provided with a proposed script for the meetings nor a list of questions to ask the appellant. Witness U voluntarily participated in the meetings with the appellant and used the listening device for his own purposes. In those circumstances, it is wrong to say that Witness U played no role.
As to the appellant’s submissions about the proper construction of s 6(1) of the SDA, it is necessary to consider the text, context and purpose of the provision. Starting with the text, each of the words ‘install, use or maintain’ may have many meanings. Which meaning is to be given to them in s 6(1) is informed by the context and purpose of the provision. In this regard, s 6(2) permits exceptions for the installation, use or maintenance of a listening device where warrants or other authorisations are in place[37] or a Commonwealth law sanctions use of the device,[38] or one party consents and a law enforcement officer is involved.[39] Section 6(1) is directed to protecting people who are having a private conversation from being listened to by a stranger to the conversation without the knowledge of the participants unless the exceptions in s 6(2) apply.
[37]SDA s 6(2)(a).
[38]SDA s 6(2)(b).
[39]SDA s 6(2)(c). For the full terms of s 6(2)(c) see [33] above.
Returning to the text in that setting, ‘install’ is an inapt term to describe fitting a device to a human being. For example, one speaks of heart pacemakers being ‘put in,’ inserted or implanted into a person but one would not naturally refer to the process as the installation of a pacemaker. In context, s 6(1) connotes placing a listening device in or on an inanimate object and connecting it in such a way that it is ready to be used. In this sense, one can readily understand why ‘install’ is defined to include ‘attach;’ a listening device might be attached to a vehicle, building or telephone for example. In context, it is this type of attachment with which the definition is concerned, not with fitting an electronic device to a person.
There is a distinction to be made between the recordings made by the device and use of the device. The police did not ‘use’ the listening device simply because they fitted it to Witness U, switched it on and off and used the recordings made by the device. Once the device was fitted to Witness U, he left the police. They had no control over the device. Rather, Witness U had sole control of the device. He could choose whether or not to meet with the appellant and whether or not to use the device after he left the police; he could have switched it off at any time; he could have discarded the device. But he chose to keep it on; he chose to meet with the appellant; he chose to talk to the appellant about matters concerning the Kororoit Creek Road property; and he chose to return the device to the police. The fact that he did not touch the device makes no difference. It was Witness U who operated the device at the relevant time when the discussions took place; not the police.[40] They were not present and there is no evidence that they listened to the discussions remotely while they were happening.
[40]See Maxwell P’s statement in WK v R at [38] and [39] above and Nettle JA’s observations in WK v R at [40] above.
Finally, the police did not ‘maintain’ the listening device. While ‘maintain’ may in some contexts have the meaning of causing or enabling a condition or situation to continue, that is an inapt meaning in the context of s 6(1). The section is concerned with devices, not conditions or situations. In the context of a device, the word ‘maintain’ is directed to keeping the device in good operating order and repairing it if it breaks down. This construction is supported by the definition of ‘maintain’ as including ‘adjust, relocate, repair or service the device and replace a faulty device.’[41] There is no evidence that the police did anything that would constitute maintaining the device for the purposes of s 6(1).
[41]SDA s 3.
Other matters
Given the conclusion reached, it is not necessary (particularly given the interlocutory nature of the ruling) to consider whether, had the recordings been illegally or improperly obtained they ought to have been excluded in exercise of the discretions under ss 90 and 138 of the Evidence Act. Suffice to say two things. First, there is no apparent appellable error in the exercise of the discretions by the judge. Secondly, the appellant was critical of the judge for failing to draw an adverse inference against the prosecution because no evidence was called[42] to establish that the alleged contravention of s 6 of the SDA by the police was not deliberate or reckless.[43] In this regard, it is relevant that the application before the judge to exclude the recordings proceeded on the basis that the parties would rely on the evidence given by Witness U at the committal, counsel for the appellant did not foreshadow that he would ask the judge to draw an adverse inference of the type he submits before this Court should have been drawn and no submission was made to the judge that he should draw such an inference. In those circumstances, the appellant would have faced a difficult task in persuading this Court that the judge had failed to exercise his discretion properly because he did not draw such an inference.
[42]Jones v Dunkel (1959) 101 CLR 289.
[43]One of the matters the court may take into account in determining whether improperly or illegally obtained evidence should be admitted is whether the impropriety or contravention was deliberate or reckless: Evidence Act s 138(3)(e).
Conclusion
The application for leave to appeal will be granted. The appeal will be dismissed.
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