Kontorinakis, K. v National Crime Authority

[1992] FCA 173

JUDGMENT No. .!..z2./ -... ?z

IN THE FEDERAL COURT OF AUSTRALIA ) )

)) NO G 50 05 1992

)

GENERAL DIVISION )

BETWEEN:  s - K

Applicant

AND:  NATIONAL CRIME AUTHORITY

First Respondent

STEPHEN JOHN TURNBULL

Second Respondent

JOHN KENNETH BEVERIDGE

Third Respondent

ANTHONY DENIS CRAMERI

Fourth Respondent

BRADLEY KERR

Fifth Respondent

CRAIG PAUL SPENCER

Sixth Respondent

SUSAN LYNETTE BRENNAN

@X TEMPORE

Seventh Respondent

THE HONOURABLE TREVOR REES

- M

Eiahth ReS~ondent

Coram:	Davies J.
Date :	11 March 1992

Place: Sydney

PEASONS FOR JUDGMENT

This is an application seeking to set aside a

warrant issued by the Honourable Mr Justice T R Morling under subsection 219B(7) of the Customs Act 1901 (Cth) ("the Act"). That subsection reads:-

"(7) Where, upon application being made to a Judge

for the issue of a warrant to a Commonwealth law
enforcement agency under this section author~zingthe
use of a 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 premlses 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 l~stening device to listen to or record words spoken by or to persons in those premises will, or 1s likely to, assist officials of the agency in, or in connection with, ~nquiries 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 flt to specify in the warrant, to use a listening devlce for the purpose of listening to or recording words spoken by or to any person whlle 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 lrstenlng device."

A prescribed form is set out in the Customs (Narcotics Inquiries) Regulations (SR No 328 of 1980), as amended by Statutory Rules Nos 199 of 1988 and 131 of 1990. The warrant issued by Mr Justice Morling read as follows: "COMMONWEUTH OF AUSTRALIA

CUSTOMS ACT 1901

WARRANT UNDER SUBSECTION 219B(7) IN RELATION TO

PARTICULAR PREMISES

TO:	Officials of the Natlonal Crlme Authority who, under subsection 219D(1) of the Customs Act 1901, may exercise the authority conferred by thia warrant.
WHEREAS application has been made to me on behalf of the National Crime Authority by Detective Sergeant Stephen John TURNBULL a member of the Australian Federal Police who is a 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 1A of Park (sic) XI1 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 WHBREAS I, TREVOR REES MORLING, a Judge Of the Federal Court of Australia am satisfied by information on oath, that:
(a) there are reasonable grounds for suspecting that those premlses have been (OR there are reasonable grounds for suspect~ng that those premises are likely to be) used an connection wlth the commission of a narcotics offence within the meaning of that Div~sion;

and

(b) the use by officials of the National Crime Authority within the meaning of that Divlsion of such a listening device to listen to or record words spoken by or to the persons in those premises will, or as likely to, assist such offlcaala in, or in connection with, inquiries that are being made in relatlon 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
withan the meaning of that Divis~on 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 recoverrng such a listening device or a part of such a liatenlng aevice 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 thia warrant shall remain rn force for the period of 6 months commencrng on the 14th day of February 1991"

The form as set out in Schedule 2 to the 1988 Regulations relevantly reads:-

. . .

AND WHEREAS I,	(full name)	, a Judge of the
Court of

am satisfied, by informat~on	on oath, that:
(a)	there are reasonable grounds for suspectrng that those premises have been (or there are reasonable grounds for suspecting that those premises are llkely to be) used in connection with the commassion 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 offic~als 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 narcotic6 offence:

...

The challenge is brought on the basis that his Honour did not state in paragraph (a) of the recital to the warrant whether he was satisfied by information on oath that there were reasonable grounds for suspectingthat the premises hadbeen used in connection with the commission of a narcotics offence, or whether on the other hand he was satisfied that there were reasonable grounds for suspecting that the premises were likely to be so used.

Mr R.H. Macready, counsel for the applicant, referred

to the authorities which have discussed what in substance ought to be stated in warrants. Those cases are useful but it must in this case be kept in mind that there is a prescribed form. It seems to me that the principles stated by the common law, although relevant to be taken into account if there is some doubt about a matter, do not govern the Act as implemented by the Regulations, for the Act has stated what will be the form of the warrant.

In any event, it is clear that it is necessary that the person issuing the warrant should express that he is satisfied by information on oath that there are reasonable grounds for suspecting an offence. Mr Macready has put the view that the person must go on to state whether the offence is one that had occurred or alternatively one that was likely to occur. Mr C.A. Porter QC, with whom Mr R.E. Dubler appeared for the Crown, has on the other hand submitted that it is of no significance for the purposes of subsection (7) of s.219B whether the offence had occurred or was likely to occur and that it is sufficient that the judge issuing the warrant state his satisfaction by information on oath that there were reasonable grounds for suspecting the one or the other.

One point that stands clearly in favour of Mr

Macready's argument is that in the warrant set out in Schedule

it is to have some effect, and that the word "or" is not just to

2 the word "or" is printed in italics, the inference being that

be taken as if it read as an ordinary part of the warrant. M r Macready has also pointed out the fact that the words "or there are reasonable grounds for suspecting that those premises are likely to be" are inserted in the warrant in brackets. Clearly the use of the brackets and the use of the word "or" in italics would enable a person issuing the warrant to strike out one of the alternatives. The question remains whether the judge issuing the warrant was required to do so or whether the warrant is invalid if he fails to do so.

~r Porter has put the point that there is nothing in subsection (7) of s.219B makes it significant as to whether the offence had occurred or was likely to occur. If one looks throughout Division 1A in the Act, it seems clear that it makes no difference, so far as the effect of the warrant is concerned, as to whether the narcotics offence had occurred or was likely to occur. It is not necessary in using the warrant to identify a particular of fence. It is sufficient that the warrant authorises officials to enter certain premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device. The use which may be made of that information is dealt with under s.219F. In substance that information may be used for the purpose of narcotic inquiries and for the prosecution of prescribed offences which, of course, include narcotic offences. If the offence is of a particular type and if evidence of a prescribed offence is found, then under subsection (2) of s.219F information with respect to such an offence may be passed to others notwithstanding that the offence is not a narcotics offence.

So it does not seem to be of any significance for the purpose of Division 1A whether the offence had occurred or was likely to occur. It seems to be sufficient that the judge, before issuing the warrant, is satisfied that there are reasonable grounds for suspecting than an offence had occurred or reasonable grounds for suspecting an offence was likely to occur.

That reading is confirmed by paragraph (b) of the recitals in the warrant for that paragraph requires a statement that the judge issuing the warrant is satisfied by information on oath that the use by officials of such a listening device 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 the premises in connection with the commission of a

narcotics offence. The word "or" is not in italics.

Taking into account all the matters that have been put, it seems to me that I should accept the view put by Mr Porter that it is not necessary for a judge to differentiate between the possibilities and that he is not required to state that he is satisfied by information upon oath that there are reasonable grounds for suspecting that the premises have been used in connection with the commission of a narcotics offence on the one

hand or alternatively that he is satisfied from information on oath that there are reasonable grounds for suspecting that the

premises are likely to be so used. I accept Mr Porter's submission that it is sufficient the judge states his satisfaction that either or both of those matters is the position. The difference between them seems to be of no significance for the issue of a warrant.

For those reasons it seems to me that the application must be dismissed. The applicant should pay the respondent's costs.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Davies.

Associate:

Date:  11 March 1992

Counsel for the Applicant:	Mr R.H. Macready
Solicitor for the Applicant:	Trevor Nyman h Co.

Counsel for the First to

Seventh Respondents:  Mr C.A. Porter QC h

S l r R.E. Dubler

Solicitor for the First to

Seventh Respondents:	G.E. Sage, Solicitor for the National Crime Authority
Date of hearing:	I1 March 1992
Date of judgment:	11 March 1992