Kontorinakis, K. v National Crime Authority

[1992] FCA 417

Re: KOSTAS KONTORINAKAS
And: NATIONAL CRIME AUTHORITY; STEPHEN JOHN TURNBULL a Dectective Sergeant,
JOHN KENNETH BEVERIDGE a Detective Senior Constable and BRADLEY KERR a
Detective Constable of the Australian Federal Police; ANTHONY DENIS CRAMERI;
CRAIG PAUL SPENCER and SUSAN LYNETTE BRENNAN (Officers of the National Crime
Authority) and THE HONOURABLE TREVOR REES MORLING (A Judge of the Federal
Court of Australia)
No. G144 of 1992
FED No. 417 Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont(1), Lee(1) and Hill(1) JJ.

CATCHWORDS

Statutes - interpretation - warrant issued pursuant to s.219B(7) of Customs Act 1901 - whether Judge issuing warrant was required to choose between two alternatives given in prescribed form - whether warrant expressed on its face the relevant satisfaction.

Customs Act 1901: 6.219B(7)

Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523

HEARING

SYDNEY

#DATE 22:5:1992

Counsel and Solicitors for Appellant: J.S. Coombes QC and R.H.

MacReady instructed by T.W. Nyman and Co.

Counsel and Solicitors
for 1st to 7th Respondents: P. Hastings instructed by

G.E. Sase of National Crime Authority

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with cost.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from orders made by Davies J dismissing an application for judicial review in the following circumstances. On 14 February 1991, Morling J signed a warrant in the following form:

TO: Officials of the National Crime Authority who, under subsection 219D(l) of the Customs Act 1901, may exercise the authority conferred by this warrant.

WHEREAS application has been made to me on behalf of the National Crime Authority by Detective Sergeant Stephen John TURNBULL member of the staff of the National Crime Authority under section 219B of the Customs Act 1901 authorising the use of a listening device within the meaning of Division lA of Park (sic) XIII of that Act in relation to particular premises in Australia, namely Suite 2, 51-53 Spring Street, Bondi Junction in the State of New South Wales:

AND WHEREAS I, TREVOR REES MORLING,

Judge of the Federal Court of Australia am satisfied by information on oath, that:

(a) there are reasonable grounds for suspecting that those premises have been (OR there are reasonable grounds for suspecting that those remises are likely to be) used in connection with the commission of a narcotics offence within the meaning of that Division; and (emphasis added)

(b) the use by officials of the National Crime Authority within the meaning of that Division of such a listening device to listen to or record words spoken by or to the peron in those premises will, or is likely to, assist such officials in, or in connection with, inquiries that are being made in relation to the use, or

likely use, of those premises in connection with the commission of such a narcotics offence:

I HEREBY AUTHORISE you use a listening device within the meaning of that Division for the purposes of listening to or recording words spoken by or to any person while the person is in those premises subject to the following conditions or restrictions:

AND I FURTHER AUTHORISE you to enter on those premises at any time of the day or night for the purpose of installing, maintaining, using or recovering such a listening device or a part of such a listening device without permission first being sought or demand first being made: AND I HEREBY AUTHORISE the following measures that I am satisfied are necessary for that purpose:

NIL

AND this warrant shall remain in force for the period of 6 months commencing on the 14th day of February 1991.

1. The warrant was purportedly issued pursuant to s.219B(7) of the Customs Act 1901 as follows:
   

(7) Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of listening device in relation to particular premises, the Judge is satisfied, by information on oath, that:

(a) there are reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and

(b) the use by officials of the agency of a listening device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officials of the agency in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence; the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officials of the agency to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device. (emphasis added)

1. The prescribed form of the warrant is as follow:
   

"AND WHEREAS I, (full name) , a Judge of the Court of am satisfied, by information on oath, that:

(a) there are reasonable ground for suspecting that those premises have been (or there are reasonable grounds for suspecting that those premises are likely to be) used in connection with the commission of a narcotics offence within the meaning of that Division; and

(b) the use by officials of the National Crime Authority within the meaning of that Division of such a listening device to listen to or record words spoken by or to the persons in those premises will, or is likely to, assist such officials in, or in connection with, inquiries that are being made in relation to the use, or likely use, of those premises inconnection with the commission of such a narcotics offence: ....

1. 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.

2. 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 for us is whether Morling J expressed his satisfaction in accordance with these requirements.

3. 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) there are reasonable grounds for suspecting that those premises have been (OR there are reasonable grounds for suspecting that those remises are likely to be) used in connection with the commission of a narcotics offence within the meaning of that Division;" (emphasis added)

1. 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 bracket 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.

2. 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.