Kontorinakis, K. v National Crime Authority

[1992] FCA 362

JUDGMENT No. ........ ......., --- 362 j9Z

IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOUTH WALES DISTRICT REGISTRY ) NO G144 of 1992

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GENERAL DIVISION 1

BETWEEN:  KOSTAS KONTORINAKIS
Appellant

m:	NATIONAL CRIME AUTHORITY
First Respondent
STEPHEN JOHN TURNBULL  (A
Detective Sergeant of  the
Australian Federal Police)
Second Respondent
JOHN KENNETH BEVERIDGE ( A Detective Senior Constable of the Australian Federal Police)
Third Respondent
ANTHONY DENIS CRAMERI (An officer of the National Crime Authority)
Fourth Respondent
BRADLEY KERR (A Detective Constable of the Australian Federal Police)
Fifth Respondent
CRAIG PAUL SPENCER (An officer of the National Crime Authority)
Sixth Respondent
SUSAN LYNETTE BRENNAN (An officer of the National Crime Authority)
THE HONOURABLE TREVOR REES MORLING (A Judqe of the Federal Court of 'Australia)
Eighth Respondent

m: BEAUMONT, LEE & HILL JJ
PLACE: SYDNEY
DATED: 22 MAY 1992

* .

REASONS FOR JUDGMENT

THE COURT:

T h i s i s a n a p p e a l f rom o r d e r s made by Dav ie s J

d i s m i s s i n g a n a p p l i c a t i o n for j u d i c i a l r e v i e w i n the f o l l o w i n g

c i r c u m s t a n c e s . O n 14 February 1991 , M o r l i n g J s i g n e d a

w a r r a n t i n the f o l l o w i n g fo rm:

" TO :  O f f i c i a l s o f the N a t i o n a l Cr ime

A u t h o r i t y who, u n d e r s u b s e c t i o n 219D(1) o f

the Cus toms Act	1901 , m a y exercise	the
a u t h o r i t y c o n f e r r e d by	t h i s	w a r r a n t .
WHEREAS a p p l i c a t i o n h a s been made	t o me	on

b e h a l f o f the N a t i o n a l Cr ime A u t h o r i t y by

Detective S e r g e a n t S t e p h e n John TURNBULL a

member o f the s t a f f o f the N a t i o n a l Cr ime

A u t h o r i t y u n d e r section 219B o f the

Cus toms Act 1901 a u t h o r i s i n g the u s e o f a

l i s t e n i n g d e v i c e w i t h i n the m e a n i n g o f

Division 1A o f Park ( s i c ) X I I I o f t h a t Act

i n	r e l a t i o n	t o	p a r t i c u l a r	p r e m i s e s	i n
A u s t r a l i a ,	n a m e l y	S u i t e	2 ,	51-53	S p r i n g

Street, Bondi J u n c t i o n i n the S t a t e o f New

S o u t h W a l e s :

AND WHEREAS I , TREVOR REES MORLING, a Judge o f the F e d e r a l C o u r t o f A u s t r a l i a am

s a t i s f i e d by i n f o r m a t i o n on o a t h , t h a t :

( a ) there a r e r e a s o n a b l e g rounds f o r

s u s p e c t i n g	t h a t	those	p r e m i s e s	h a v e
been	(OR	there	a r e r e a s o n a b l e	grounds
for	s u s p e c t i n q	t h a t	those	p r e m i s e s

a r e l i k e l y t o b e ) u s e d i n connection

w i t h	the	commiss ion	o f	a	n a r c o t i c s
offence	w i t h i n	the	m e a n i n g	o f	t h a t

Division; and [ e m p h a s i s a d d e d ]

( b ) the u s e by o f f i c i a l s o f the N a t i o n a l

Cr ime A u t h o r i t y w i t h i n the m e a n i n g o f

t h a t	Division	o f	s u c h	a	l i s t e n i n g
d e v i c e	t o l i s ten	t o	or	r e c o r d	words

s p o k e n by or t o the p e r s o n s i n those

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p r e m i s e s	w i l l ,	or	i s	l i ke ly	t o ,
a s s i s t	s u c h	o f f i c i a l s	i n ,	or	i n

c o n n e c t i o n w i t h , i n q u i r i e s t h a t a r e

b e i n g made i n r e l a t i o n t o the u s e , or

l i k e l y use, o f those premises i n connection with the commission o f such a narcotics offence:

I HEREBY AUTHORISE p U use a l is tening device within the meaning o f that Division for the purposes o f l is tening t o or recording words spoken by or t o any person while the person i s i n those premises subject t o the following conditions or restr ict ions:

A N D I FURTHER AUTHORISE you	t o enter on
those premises	a t any time o f the d a y or

night for the purpose o f instal l ing, maintaining, using or recovering such a l i s tening device or a part o f such a l is tening device without permission first being sought or demand f i r s t being made:

AND I HEREBY AUTHORISE the following measures that I am sat is f ied are necessary for that purpose:

NIL

AND t h i s warrant shall remain i n force for

the period o f 6 months commencing on the

14th d a y o f February 1991 " .

The warrant was purportedly issued pursuant to

s.219B(7) of the Customs Act 1901 as follows:

" ( 7 ) Where, upon application being made t o

a Judge for the issue o f a warrant t o a

Commonwealth l a w enforcement agency under th i s section authorizing the use o f l i s tening device i n relation t o particular premises, the Judge i s sa t i s f i ed , by information on oath, that:

(a) there are reasonable grounds for suspecting that the premises have been, or are l i k e l y t o be, used i n connection with the commission o f a

' narcotics offence; and

(b)	the use by o f f i c i a l s o f the agency o f a l i s tening device t o l i s t e n t o or record words spoken by or t o persons i n those premises w i l l , or i s l i k e l y to , ass is t o f f i c i a l s o f the agency i n , or i n connection with, inquiries that are being made i n relation t o the use, or l i k e l y use, o f the
premises i n connection with the

conlmission o f a narcotics offence;

the Judge may, b y warrant under h i s hand i n accordance with the ~rescribed form, authorize o f f i c i a l s o f the agency, subject t o any conditions or restr ict ions that he sees fit t o speci fy i n the warrant, t o use

a l is tening device for the purpose o f

l i s tening t o or recording w r d s spoken b y or t o any person while the person i s i n those pren~ises, and such a warrane may authorize o f f i c i a l s o f the agency t o enter

those premises for the purpose o f

ins ta l l ing , maintaining, using or

recovering a l i s tening device or a part	o f
a l is tening device. " [emphasis added]

The prescribed form of the warrant is as follows:

"AND WHEREAS I ,	( f u l l name)	l	a
Judge o f the Court o f

am	sa t i s f i ed ,	b y information	on	oath,
that:
(a)

been (or there are reasonable grounds	suspecting that those premises have	there are reasonable grounds for
for suspecting that those premises are l i k e l y t o be) used i n connection
offence within the meaning o f that with the commission o f a narcotics
Division; and

(b) the use by o f f i c i a l s o f the National Crime Authority within the meaning o f that Division o f such a l is tening device t o l i s t e n t o or record words spoken by or t o the persons i n those

, premises w i l l , or i s l i k e l y to ,

ass is t such o f f i c i a l s i n , or i n connection with, inquiries that are being made i n relation t o the use, or l i k e l y use, o f those premises i n

connection with the commission of
such a narcotics offence: ...".

Before Davies J and before us it was submitted on behalf of the appellant that the warrant was invalid because it failed to state on its face a necessary condition of its validity, that is whether Morling J was satisfied, inter alia, that there were reasonable grounds for suspecting that the premises had been or were likely to be used in connection with the commission of a narcotics offence. We interpolate the appellant conceded that the warrant could also have been expressed in a cumulative fashion but this does not arise in this case.

As a matter of statutory construction we agree with Davies J that s.219B(7) requires that the judge be satisfied of either or, if it be the case, both of the existence of the alternatives mentioned in the legislation. ( Compare Beneficial Finance Corporation v Commissioner of Australian

Federal Police (1991) 31 FCR 523 per Burchett J at 531.) The

real question fox us is whether Morling J expressed his
satisfaction in accordance with these requirements.

It will be noted that the warrant adopted the format of the prescribed form, in particular the warrant in para. (a) read as follows:

" ( a ) t h e r e a r e r e a s o n a b l e grounds f o r

s u s p e c t i n g t h a t t h o s e premises have

been (OR t h e r e a r e r e a s o n a b l e urounds

f o r	s u s p e c t i n u	t h a t	t h o s e	premises
a r e	l i k e l v	t o b e )	used	i n connec t ion

w i t h	t h e	commission	o f	a	n a r c o t i c s
o f f e n c e	w i t h i n	the	meaning	o f	t h a t

D i v i s i o n ; " [emphasis added]

On behalf of the appellant, reliance is placed upon the presence in para.(a) of the warrant of the brackets and of the fact that the word "OR" appears in upper case. It is said that an inference should be drawn from these circumstances that the prescribed form has been utilised without discriminating properly between the two alternative situations mentioned in para.(a) of s.219B(7). We have difficulty in accepting the contention. We do not think that either the presence of the brackets or the use of the upper case can properly be relied on as a basis for the inference suggested. Rather we would read the warrant as expressing on its face a relevant satisfaction by the judge in respect of either of the conditions stated in s.219B(7). In our view that was

sufficient.

One condition looks to the past the other looks to the future. There is no contradiction in expressing a satisfaction as to these matters in the alternative. The appeal is dismissed with costs.

I certify that this and the
preceding five (5) pages
are a true copy of the Reasons
for Judgment herein of The Court.

Associate:  Y'

Date: 22 May 1992

Counsel and Solicitors	J.S. Coombes QC and
for Appellant:	R.H. MacReady instructed by T.W. Nyman & Co.
Counsel and Solicitors	P. Hastings instructed by

for 1st to 7th Respondents: G.E. Sase of National Crime

Authority

Date of Hearing:	22 May 1992
Date Judgment Delivered:	22 May 1992