Kontorinakis v National Crime Authority

[1992] HCATrans 366

~ ~ -, ... ,1.6

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S71 of 1992

B e t w e e n -

KOSTAS KONTORINAKIS

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

Kontorinakis 1 11/12/92

CRAIG PAUL SPENCER

Sixth Respondent

SUSAN LYNETTE BRENNAN

Seventh Respondent

THE HONOURABLE TREVOR REES

MORLING

Eighth Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1992, AT 2.15 PM

Copyright in the High Court of Australia

MR P. HIDDEN, QC:  May it please the Court, I appear with my

learned friend, MR P.M. STRICKLAND, for the

applicant. (instructed by Trevor Nyman and Company)

MR P.S. HASTINGS, QC:  May it please the Court, I appear

with my learned friend, MS L.N. ROBINSON, for the

first to seventh respondents (instructed by

G.E. Sage, Solicitor for the National Crime

Authority)

BRENNAN J:  The Deputy Registrar advises that she has been

advised by the Australian Government Solicitor, the

solicitor for the eighth respondent, the Honorable

Mr Justice Trevor Rees Merling, that he does not

intend to appear on the hearing of the application

for special leave to appeal, and will submit to any

order of the Court save as to costs.

Yes, Mr Hidden?

MR HIDDEN:  Your Honours, the applicant sought the review in

the Federal Court of the issue of a listening

devices warrant by His Honour Mr Justice Merling on

the basis that the warrant was invalid on its face.

The application was heard by Mr Justice Davies of

that court, who dismissed it, and an appeal from that decision to the Full Federal Court was also

dismissed. Special leave is sought from this Court

to appeal against that decision.

Your Honours, before turning to the form of

the warrant, it is necessary perhaps to look at the
enabling legislation under which the warrant

purported to be issued. Your Honours, that was

subsection (7) of section 219B of the Customs Act

and Your Honours, the subsection is set out in the

Kontorinakis 2 11/12/92

judgment of the Full Court, commencing at page 16

of Your Honours' application books.

Your Honours will see that the matters which

must be established for the purpose of the issue of

a warrant under the section are:

(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 -

et cetera:

are 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;

In that event, the judge is empowered to issue a

warrant in accordance with the prescribed form.

Now, Your Honours, in examining the scheme of the section, it is our submission that it creates

two bases upon which a warrant might be issued.

One is, that premises have been used for the

commission of a narcotics offence, another is that
the premises are likely in the future to be used

for the commission of such an offence.

Subparagraph (b) of the section is consonant

with those two bases for the issue of the warrant,

in so far as subparagraph (b) requires the judge to

be satisfied that the:

inquiries that are being made in relation to

to the use -

meaning the past use -

or likely use -

meaning the future use -

of the premises - - -

DAWSON J:	Why can it not be satisfied of one or the other?
MR HIDDEN:	Your Honour, it is our submission that normally

a judge would be satisfied of one or the other, or

both. The difficulty is this warrant does not

specify any of those things. It does not specify

that His Honour was satisfied of one of those

Kontorinakis 3 11/12/92

things or the other, nor does it specify that

His Honour was satisfied of both of them.

Now, Your Honours, the prescribed form which

the warrant should follow is set out at page 17 of

the book in the judgment of the Full Court, and

Your Honours will see that the prescribed form

reproduces, in effect, subparagraphs (a) and (b) of

the subsection. The relevant part, of course, is

subparagraph (a) in the prescribed form, which

says:

there are reasonable grounds 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 -

Now, Your Honours, in short, it is our

submission that this is clearly a "strike out

whichever does not apply" prescribed form. Now,

the warrant in fact, the terms of which are set

out in the first page of the Full Court's judgment,

at page 15 of the application book, simply

reproduces paragraph (a) as it appears in the

prescribed form with the addition, for what

significance it may have, of the word "OR" being in

capital letters and, indeed, reproduces for the

purposes of the warrant paragraph (b) of the
prescribed form which itself follows

subparagraph (b) of the subsection.

So that all the warrant discloses is that

His Honour was satisfied that there were reasonable

grounds for suspecting that those premises have

been, or, there are reasonable grounds for

suspecting those premises are likely to be so used.

DAWSON J:  What is wrong with that?

MR HIDDEN:  Simply that it suggests, on its face, that no

thought has been given to which alternative is

applicable.

DAWSON J: Perhaps he does not know that one or the other

is.

MR HIDDEN:  Your Honour, the difficulty is this: in our

submission, the clear intendment of the	section is
that the judge must be satisfied of one	or the
other.

DAWSON J: It does not say so.

MR HIDDEN:	The judge may be satisfied of both.
Kontorinakis	11/12/92

DAWSON J: Or, he may not know which one but be satisfied

that one or the other applies.

MR HIDDEN:  Your Honour, with great respect, it is difficult

to imagine the situation where that is what the

evidence would establish.

BRENNAN J: That is the very situation, I would have

thought, which would be classically established

where the information would be that there is to be

a drug drop at a place and it is not known whether

it has got there yet or not.

MR HIDDEN: In that situation, Your Honours, one wonders

whether there would be reasonable grounds for

suspecting one or the other. One would think the

better view would be there are reasonable grounds

for suspecting the future rather than the past.

McHUGH J: Supposing the information before the judge was,

"We have information that drugs are to be delivered

at premises at such-and-such a place some time

today. At the moment, we don't know whether
they're being delivered or they're going to be

delivered." Now, the judge could not be satisfied

of either, could he, on that basis? It would be in

a state of equipoise. But he could be satisfied

that it is one or the other and issue his warrant.

MR HIDDEN:  Yes. Well, Your Honour, that may be so. Maybe

in that situation it is open to him to be satisfied

of both. The difficulty here, of course,

Your Honours, is that we had no idea of what the

information was before His Honour. In other words,

Your Honours, that would be an appropriate

situation, perhaps, to use the word "and" rather

than "or".

McHUGH J:  Why? He would not be satisfied that they had

been and he would not be satisfied that they are

likely to be. He would not know. He would know it

is one or the other. I mean, if you put "and"

there, he has to be satisfied of both limbs.

MR HIDDEN: Yes, that is so, Your Honour.

McHUGH J:  I think your junior has led you astray,

Mr Hidden.

MR HIDDEN:  One wonders, in that situation, whether he could

be satisfied of either.

BRENNAN J: Quite, and that would mean that the section

would be a dead letter in the situation where it is

most likely to be of importance.

Kontorinakis	11/12/92
MR HIDDEN:	Your Honour, presumably the simple answer would be the police just delay the issue of the warrant
until their inquiries confirmed whether the goods
have arrived or have not yet but are likely to.
McHUGH J:	By that time the bird may have flown.
BRENNAN J:	We understand the point, I think.
MR HIDDEN:	Your Honour, that may be so but, Your Honour,

that may be bad luck, with respect.

BRENNAN J:  Your point is, I take it, that that is what the

statute says.

MR HIDDEN:	Yes, Your Honour.
BRENNAN J:	And whether you like it or not, whether it works

or not, that is the construction which you think

should be placed upon it.

MR HIDDEN: 

Indeed, Your Honour. Further, Your Honour, the

reasons for judgment of the Full Court seem to rest
purely upon the basis that the warrant was in

accordance with the prescribed form. Now, in our

submission, Your Honour, that is clearly in error.

The warrant is not in accordance with the prescribed form where it simply reproduces the

prescribed form and the prescribed form is one

which actually requires the judge to make an
election between alternative bases for the issue of

a warrant or specify cumulatively that he is
satisfied of both bases. For that reason,

Your Honour, it is our submission that the

reasoning of the Full Federal Court is clearly in

error.

McHUGH J: 

I suppose as a matter of grammar, if the judge can put it in the alternative, you would expect to

would say, "That there are reasonable grounds for find the word "that" appearing after "OR". So, it

suspecting that they have been or that there are
reasonable grounds for suspecting that they are

likely to be"?

MR HIDDEN: Yes, I appreciate that, Your Honour.

Your Honour, it is probably unnecessary to refer to

authority, but this Court emphasized the need for

justices issuing warrants - - -

McHUGH J: That is in George v Rockett.

MR HIDDEN: In George v Rockett, Your Honours, yes.

McHUGH J: Surprisingly, that does not seem to have got a

mention, does it, in the courts below?

Kontorinakis 6 11/12/92

MR HIDDEN: Yes, Your Honour. Well, it is obviously

unnecessary to take Your Honours to that decision.

We have copies if it would assist Your Honours.

BRENNAN J:	we are familiar with it.
MR HIDDEN:	The significance, Your Honours, is that there is

reference to the common law safeguards concerning
persons, the immunity and seizure of papers and

possessions which is seen, in modern times, as a

common law protection of privacy. Indeed, there is

reference in George v Rockett to what fell from

Mr Justice Burchett in Parker v Churchill about the

necessity for a justice issuing a warrant to give

real attention to the question of whether the

information proffered does justify the intrusion

sought.

McHUGH J:  Yes. One reason for the judge being satisfied of

one or other alternative in most cases would be

because of the provisions of section 219B(l0),

namely, the period that the warrant shall remain in

force. You would think that if it is a past

offence then you might select the much shorter

period than if it was a - - -

MR HIDDEN:  Indeed. Of course, what fell from this Court in

George v Rockett applies all the more so to listening device warrants. Search warrants are

normally executed in the presence of the suspect

who has been informed of his or her rights and who

has seen the warrant and can examine its terms.

Listening devices are necessarily clandestine and

can be in place for months with the suspect having

no knowledge of their existence. It is the most

significant intrusion of privacy known to our law,

and the issue of the warrants must be done with
great care and the right to privacy jealously

preserved. For that reason, of course,

Your Honours, the terms of any section authorizing

listening devices to be strictly complied with.

Your Honours, may I say I am instructed - and I can say no more than this - that the form of the

warrant, the subject of these proceedings, is a
form of warrant now commonly issued by judges of
the Federal Court. It has become virtually the

standard form of warrant in the form in which it

appears here.

May I also say, Your Honours, that I am

instructed that warrants in a relevantly similar

form are being issued by judges of the New South

Wales Supreme Court under the State Listening

Devices Act, although that enabling section creates

alternative bases rather similar to this section

for the issue of warrants.

Kontorinakis	11/12/92
BRENNAN J:	I do not suppose your instructions go to the

extent of saying what kind of information leads to

the granting of warrants im this - - -

MR HIDDEN:  I do not imagine they do, Your Honours. No, of

course not. But it would be difficult to imagine

that it is commonly the situation that the

information proffered is the information of the

type postulated by Your Honours which might

possibly justify the issue of a warrant on the

alternative bases.

BRENNAN J: Yes. One of the problems is that if, with

information of that kind being laid before a judge
or justice, it would be appropriate to grant a
warrant in the form in which it appears in these
proceedings, one may sometimes think, if these
warrants come out very frequently, that the real
problem is not the form of the warrant but the

consideration that is given to the information to

ground the warrant.

MR HIDDEN: Consideration given to it, Your Honour, yes.

Indeed, that may well be the real problem. It remains our submission that that appears to be the

problem here, with great respect to the learned

judge who issued the warrant. To the extent of the

matter postulated by Your Honours, the form in

which the alternative clause appears is of some

significance, that is, with the "OR" in upper case

letters and the whole clause in brackets, rather

suggesting that it is not a situation where

His Honour is genuinely satisfied of one or the

other but, rather, that the alternative postulation

has just stayed there because it is in the form.

The alternative bases in the section,

Your Honours, are consonant with other parts of

Part IA of the Act. Section 219F(2) speaks of

narcotics investigations which either are being

made or have been made. That, again, Your Honours,

is consonant with section 219A(2) which speaks of,

on the one hand:

inquiries that are being made by officials of

of a Commonwealth law enforcement

agency ..... circumstances reasonably giving

rise to ..... a narcotics offence is likely to

be committed -

on the one hand; subparagraph (b), referring to:

inquiries that have been made by officials

of -

the agency, in respect of:

Kontorinakis 11/12/92

a narcotics offence that has been committed or

was reasonably suspected of having been

committed.

The dichotomy pervades the entire Part,

Your Honours, and, in our submission,

section 219B(7) is consistent with that and

requires the judge to give consideration as to
whether one or the other or both of the

alternatives are made out within the terms of the

section.

Your Honours, in our submission, if the point

be seen to have any merit, it is clearly one of

importance. There is, to our knowledge, no

reported decision on the point. We are dealing

with listening devices warrants which, as we have
submitted, are a serious invasion of the citizen's

privacy and if our instructions be correct, then

there is a practice as to the way in which warrants

are issued which requires the correction of this

Court. Those are our submissions, if the Court

pleases.

BRENNAN J:  We need not trouble you, Mr Hastings.

The Court is of the opinion that there is not

sufficient reason to doubt the conclusion in this

case to justify the grant of special leave.

Of course, it is not sufficient for an issuing

judge to issue a warrant in the alternative form

unless the information leaves him satisfied that there are reasonable grounds for suspecting that

the premises have been or are likely to be used in
the prohibited way but is unable to say that the

grounds support suspicion of one to the exclusion

of the other. Special leave will be refused.

MR HIDDEN:  May it please the Court.

AT 2.33 PM THE MATTER WAS ADJOURNED SINE DIE

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