Love v The Attorney-General for New South Wales & Anor; Peters & Anor v The Attorney-General for New South Wales

[1989] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S222 of 1988

B e t w e e n -

MALCOLM JAMES LOVE

Applicant

and

THE ATTORNEY-GENERAL IN AND FOR

THE STATE OF NEW SOUTH WALES

First- Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry

Sydney No S224 of 1988

B e t w e e n -

BRENT RICHARD PETERS

KATHLEEN MAREE PETERS

Love

Applicants

and

THE ATTORNEY-GENERAL IN AND FOR

THE STATE OF NEW SOUTH WALES

First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Applications for special leave to

appeal

SlT 3/1 /SDL 1 12/5/89

MA.SON CJ

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1989, AT 10.01 AM

Copyright in the High Court of Australia

MR K.R. HANDLEY, Q8: Your Honours, in the

matter of Peters, I appear for the applicants

with my learned friend, MR N.C. HUTLEY. (instructed

by Rosemary Freeman and Associates)

MR K.G. HORLER, QC:

Your Honou,r,; in the application by. Love,. I aepear for that applicant, and with me, MR A. V. FI~HER.

(instructed by Marsdens)

MR K. MASON, QC, Solicitor-General for New South Wales:

In each matter I appear with my learned friend,

MR L.S. KATZ, for the respondents. (instructed

by the Crown Solicitor for New South Wales and

the Director of Public Prosecutions for New South

Wales)

MASON CJ:	Yes, Mr Handley.
MR HANDLEY:	Your Honours, may I hand up slightly reformulated

grounds of appeal and some other -

MASON CJ: This seems to be a characteristic of your applications.

MR HANDLEY:  Yes. I do not ask Your Honours to look at

the new grounds of appeal at the moment. They

are within the four corners of the earlier grounds

but - - -

MASON CJ:  Without taking us to them in detail, can you

just very briefly indicate what is the relevant

change as a matter of substance?

MR HANDLEY:  Your Honours, we have separated out two alternative

attacks, both on the ex parte orders of the supreme

court and the decision of the Court of Appeal.

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The first says that these were ex parte orders

prejudicial to the present applicants and which,

when the applicants applied to set them aside,

having regard to the extent to which the State

statute was inconsistent with a federal statute

and the resulting diminution in the supreme court's

powers to issue the warrants and make the orders,

they were entitled ex debito justitiae to have

those ex parte orders set aside. That is a separate

point from the view taken by Mr Justice McHugh

that section 109, as it were, operates directly

on the orders of the supreme court to render

them partly invalid.

So we separate out the two grounds of attack:

one is that these orders having been made ex

parte, and properly without notice to us, once

we drew the court's attention to the questions

of power flowing from the federal act, the court

was bound to set them aside, that brings down

the warrants and you never get into the area

of severance. There is only one order and once

you set aside that order the warrant necessarily

goes with it and then one gets into the area

of restitution.

The other view was the one taken by the Court of Appeal that section 109 directly invalidates
these orders in part but there is no case that they are severable. We say on either view the orders should wholly be set aside or were wholly

invalid because they cannot be severed and one

gets to the point of restitution.

MASON CJ: Mr Handley, and I think I should address this

remark to Mr Horler as well, without in any way

indicating that prima facie the Court thinks

that this is a case appropriate for the grant

of special leave to appeal, it may be convenient

to hear what the Solicitor has to say in opposition
to the application first, and then you will be

able to reply to the grounds of opposition that

he urges.

MR HANDLEY: If the Court pleases.

MASON CJ:	Yes, Mr Solicitor.
MR MASON:	Your Honours, we are treating the application

as it is foreshadowed in the application book

and in broad terms, Your Honours, we say that

the warrant, which appears at page 71, is itself

the order of the supreme court. It is not the

evidence of the order - it is the order. And

that it is, as was common ground below, a judicial

order; tbat flowing from the facts that the

jurisdiction to grant a warrant is conferred

py the LISTENING DEVICES upon the court exercisable

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upon complaint and is referred to in a later section

of the Act as being "proceedings in the court

which are to be in earner a". I understand that some

of those matters were debated in the special

leave application involving the Coby murder of

which this Court has heard but reserved judgment

about.

MR HANDLEY:	They did not call upon the Crown on this question.
MR MASON:	On this question the Crown was not called upon.

Your Honours, when one goes to the warrant there

were six prescribed offences referred to in the

recitals at lines 8 to 17 - - -

MASON CJ:	What page, Mr Solicitor?
MR MASON:	Page 71, the warrant.  Under the LISTENING DEVICES

ACT the Court is required to indicate in the

warrant, which is a prescribed form, the prescribed

offences to which the warrant relates. There

are six recited from about line 7 to about

line 17, four are federal offences and two are

State offences. We are concerned with the State

prosecution and the Court of Appeal held that

the operation of section 109 upon provisions

in the CUSTOMS ACT and provisions in the LISTENING

DEVICES ACT meant that the State judge did not

have State statutory power to grant the warrant

so far as concerned the federal offences. By

a declaration, in effect, struck from the warrant,

the first four offences, being the federal ones

leading the State ones, and the absence of the

federal ones is of no concern to the prosecution
in any event.

Your Honours, what the application raises

is the question whether there is power to make
an order which severs an invalid warrant, a matter

which has been the subject of determination by

the Federal Court in PARKER's case.	May I hand
up to the Court some extracts from that case.	It was a judgment of Mr Justice Burchett, and
on appeal by the Full Federal Court, and at page
321, Your Honours, about point 3, reference is
made to a line of Australian cases, judgments by Justices Northrop and Beaumont allowing the
severance of invalid portions of a warrant.
In the middle of the page:

A line of Canadian cases has established

a doctrine of severance -

and, over the page, the first full paragraph,

the conclusion which we would respectfully adopt

of Mr Justice Justice Burchett, that:

There is nothing about the nature of a warrant to make it inseverable.

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When the matter went to the Full Court, at the very
last page of the extract, in the judgment of

the Court on this point given by Justice Jackson,

on the left-hand side, His Honour accepted that

line of authority and held:

There is no reason why a search warrant

granted under s. 10 may not include .....

matters which -

can be severed.

DAWSON J: It is not really a question of severance, is

it, Mr Solicitor? A warrant is an authority

and if you authorize a number of things the authority

may extend to some of them and not to others?

MR MASON:  Yes. And if the statutory power to authorize

some of those things is taken away, so be it.

The warrant just - - -

DAWSON J: The authorization remains for those for which

it is not taken away - - -

MR MASON:  Yes. And we say, of course, if the warrant

operates, as was common ground,in the form of

a judicial order, then a whole additional set

of principles flow in to have impact upon the

nature of this application. The nature of the

proceedings, as my learned friend has indicated - - -

MASON CJ: Just before you leave that point, I have not

looked in detail at what is said in PARKER V

CHURCHILL, but the references to severance there proceed on the footing, do they, that you just

treat the warrant as valid to the extent that what it authorizes has a source of authority?

MR MASON:  Yes.

MASON CJ: It is not really "severance", as Justice Dawson

pointed out, in the traditional sense at all?

MR MASON:  Yes, I would accept that, Your Honour. And

what I was saying was that the nature of the

application to the supreme court, which was then referred by single judge to the Court of Appeal,

was in the nature of an application under the

inherent power to set aside an ex parte order -

the application being made at the suit of an

interested party. There is nothing in that

jurisdiction which would give to the court the

power to set aside in a way that would declare

ab initio void an order made by a superior court,

the supreme court itself. At the time this application

was made the warrants had been executed and the effect of the order of the court, framed in the

form of a declaration, was a declaration by a

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superior court to itself, to another superior court,

saying that the earlier order was bad.	Now,
Your Honours -

DAWSON J:  How would you get rid of the warrant that was

wrongly issued?

MR MASON: If it was totally wrongly issued and exercised,

then it would still be a valid authority as - - -

DAWSON J: No, even if it was not exercised; prior to it being

exercised?

MR MASON:  You would be able, under the power - since this

was in the nature of a judicial order, to have

it set aside by being able to show that there

was not statutory authority for its issue. But,

having been exercised, even exercised in reliance

upon a statute which was inoperative by virtue

of section 109, it nevertheless remained an order

of a court.

MASON CJ: Is it an order of a court?

MR MASON:  This is a matter in which there certainly is

debate between the parties. Does Your Honour have, in the bundle that my learned friend has

handed up, various provisions from the LISTENING

DEVICES ACT?

MASON CJ:  Yes.

MR HANDLEY: It is common ground, Your Honours, between

us, that it is an order of the court.

DAWSON J:	But not that it is a judicial order?
MR HANDLEY:	No, a judicial order.

DAWSON J: It is, is it?

MR HANDLEY:  Yes. And that is what the Court of Criminal

Appeal dee ided in MURDOCH' s ca·se.

DAWSON J:  Yes.

MR MASON: Section 16, Your Honours-:

Upon complaint made by a person that

the person suspects or believes -

certain things -

the Court may, if satisfied -

the "Court" is defined to be the supreme court

so it is not the personae designata situation

that HILTON V WELLS involved.

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MASON CJ: Mr Solicitor, I think I ought to say that

notwithstanding that Mr Handley has asserted that

it is common ground between the parties that

it is an order of a court and it is a judicial

order, the Court, at this stage, would not be

prepared to proceed on that firm foundation.

MR MASON: If it is not, or not necessarily, a judicial

order, it would be some - - -

DAWSON J:  The only reason why you say it is a judicial

order is because	it is made by a court, is it
not, otherwise it	would quite clearly not be
a judicial order.	It would be a ministerial
act?	Am I wrong?

MR MASON: Certainly it has traditionally been exercised

in a ministerial way but the LISTENING DEVICES

ACT has been framed so as to bring down upon

it such benefits as flow from it being an order

of a court. That is my submission. But I am prepared to argue on the assumption that the.

Chief Justice has put to me, that it is to be treated as an administrative order.

MASON CJ:  I did not put that assumption to you. I can

understand that, for the purpose of putting an argument, you may make that assumption, but it

is not an assumption that the Court is making.

The Court regards the question as an open question.

MR MASON:  I have put the statutory material, and the fact

that it was common ground below and the case was

fought on that basis as being the primary and

sufficient basis upon which it should be treated

as a judicial order, but if it is to be perceived

perhaps as an executive order, then all of the

earlier case law about what I have losely called

"the severability of warrants" applies without

any of the difficulties which my learned friend,

Mr Handley, sought to put in his argument.	He
wishes to have it treated as judicial in order

to call in aid a doctrine which he has argued

in the affidavit, namely that a judicial order

that is made without authority is either totally

good or totally bad and, if bad - if lack of

authority taints part of it - it must be set

aside in toto ex debito justitiae.

As to that proposition, our submission is that there is clear legal authority for the proposition

to the contrary, and may I give the Court copies

of the judgment of the Court of Appeal in HOBAN

V DAVEY. The relevant judgment is at page 71

in the judgment of Mr Justice Asprey, with which

Your Honour Mr Justice Mason agreed, towards

the bottom of the page:

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Where part of a decision is made without powei and is distinct and severable from

the remaining, certiorari will go to quash

that part only.

A number of cases are cited. The court, in its

discretion, chose not to issue certiorari even

though it held that a portion of the judgment

of the district court judge in that case was

made without authority.

A similar proposition is stated in DE SMITH,

if I may hand Your Honours copies of pages 580

and 581 of that. The relevant passage is the

last sentence on page 580 and going over to the
top of page 581.

Your Honours, there is nothing in the nature of a warrant, be it treated as a judicial order

or as an administrative order, that makes it

inappropriate that the doctrine which I have

loosely called '·'severability" should apply to

it.

DAWSON J:  What do you say about the point that the judge

may not have made the order at all had he been

aware of this circumstance?

MR MASON:  His Honour Mr Justice McHugh said that the

onus question was critical but was resolved in

the government's favour by the application of

the section of the ACTS INTERPRETATION ACT which

refers to instruments, and he held that a warrant

issued under this Act was an instrument. That

decision was, in my submission, clearly correct.

I think Mr Handley has handed up in his bundle

the relevant provision of the ACTS INTERPRETATION

ACT, section 32, which states that:

An instrument shall be construed as operating

exceed, the power conferred by the Act under

to the full extent of, but so as not to

which it is made.

GAUDRON J: That rather does worry me, though, in this

context, Mr Solicitor. All persons to whom the

warrant was issued were, were they not, either

members of the federal police or working by

arrangement with the federal police?

MR MASON:  In substance that is correct. It was issued

to a single State police officer but a number

of persons working under him, all of whom were

held to be in those categories, yes.

GAUDRON J:  And, indeed, the purpose of the warrant was

for the investigation of a narcotics inquiry?

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MR MASON:	No, not entirely.	The warrant had a dual purpose;

it was to investigate four federal offences,

which were narcotics inquiries, and two State

offences, which were not.

GAUDRON J:  Were they not narcotics inquiries?

MR MASON:  Not as defined in the CUSTOMS ACT. The CUSTOMS

ACT defined "narcotics inquiry", I think it is

section 21 913(2), as an inquiry in relation to

defined offences under the CUSTOMS ACT.

GAUDRON J:	I would have thought the State offences of supplying heroin and of conspiracy to supply heroin, which I think are the ones referred to
in the warrant, as being in the context of the
issue of the warrants, capable of being seen
as in relation to narcotics offences. The inquiries
were not being pursued in any sense in isolation, were they?

(Continued on page 10)

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MR MASON:  Well, all I can say, Your Honour, at page 39

there is reference to the definition of

"narcotics offence", which is part of the

definition of "narcotics inquiry".	At line 5,
it:

is defined to mean "an offence
punishable as provided bys 235"

of the CUSTOMS ACT.

GAUDRON J:	So that defines "narcotics offence", yes?
MR MASON:	"Offence"; and, "narcotics inquiry" is defined by 219A(2) which is not reproduced· in the appeal
books and I am sorry, I do not have it.
219A(2) define "narcotics inquiry" as being:

inquiries that are being made -

by members of the Australian Federal Police -

in relation to a narcotics offence.

GAUDRON J:	It is really a question of the meaning of the words "in relation to".
MR MASON:	Yes. Well, I must accept that as the affidavit

makes plain, the joint task force regarded the

question of importation and supply as all - - -

GAUDRON J:	As a separate inquiry?
MR MASON:	No, they did not.
GAUDRON J:	No, that is the problem.
MR MASON:	They regarded each as - - -
GAUDRON J:	As the one inquiry.
MR MASON:	They regarded each as a single inquiry with

evidence in one capable of assisting the

prosecution of the other.

GAUDRON J:  Whereas, 219B focuses on "inquiry"?

MR MASON:  YP~ -Your Honour. As Your Honours know that there

, -

is no appeal or cross-appeal by the State in

relation to the conclusions that were reached by

the Court of Appeal on the section 109 issue but,

equally, it would be my submission, it would

create difficulties if this application were

treated on any basis other than that in which it

was dealt with by the Court of Appeal. And the adverse impact of section 109 to so much of the

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State LISTENING DEVICES ACT as would authorize a warrant to go, with respect, to a customs offence and, with respect, it would be not appropriate to proceed on any broader

assumption than that for the purpose of this

application. So, one has the question whether

what is called the reverse onus on any

severability point which the INTERPRETATION ACT
brings about is capable of applying to a
warrant issued under the State Act. And that,

in turn, depends upon the meaning of the word

"instrument". Mr Justice McHugh held that the

warrant was an instrument; the releva~t portion

of his judgment is at page 53, lines 3 to 5.

I understand that my learned friend Mr Handley

wishes to challenge that. That would, in our

submission, hardly be a matter of great

general importance but it is a matter which has

clearly been decided in our favour in the

judgment of RE LAWLOR of Mr Justice Brennan and

can I hand up portions of the INTERPRETATION ACT

to show why the point is good?

In section 3(1) at the bottom of page 2,

there is a very unhelpful definition of the

word "instrument", something that:

means an instrument (including a

statutory rule) made under an Act.

But, of more relevance, at the bottom of page 10, is the definition of the word "make":

in relation to an instrument, includes

issue and grant.

And "repeal", at the bottom of the next page:

in relation to an instrument, includes

revoke and rescind.

That shows, in our submission, that the word

"instrument" cannot be confined to an

instrument of a legislative nature, that it would

clearly go to an instrument of an administrative

or, we would say, judicial nature.

MASON CJ:  But that obviously is a serious question, is

it not?

MR MASON:  Well, we would say it is not a question of

wide import and it is a question where - - -

MASON CJ:  It is hardly a question which on a special

leave application we can assume to be correctly

decided in so far as it is asserted that

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•

section 32 applies to an instrument which is

a judicial order or which reflects a judicial

order, assuming for the moment, that it is to

be treated as a judicial order.

MR MASON:  Well, Mr Justice Brennan in that passage

in LAWLOR's case - I do have that if

Your Honours would wish to have it - we say

it is a point where the presence of the words -

the relevant passage is at 172, the first full

paragraph on the page. That shows His Honour

had no difficulty in extending the word

"instrument" to an executive or administrative

act. But the process of reasoning was to look

at the word "grant" and, in our submission,

that is capable of application without any

difficulty to a grant whether in a judicial

order or an executive order, if that is the way

one is to regard the issue of the warrant.

MASON CJ:  But, Justice Brennan's observations do not

cover the application of the provision to a

judicial order?

MR MASON: Correct. So, we would say there is no rational

basis why one would wish to distinguish

executive· and judicial" orders for the

purpose of the application of this

INTERPRETATION ACT provision. Another related

point is that we would say that when one is

dealing with a judicial order, one does not

start with the cormnon law presumption which was

reversed by section 32. One does not start with a presumption that if part is bad, the

whole is bad. Rather, one starts with a

presumption that if it is an order by a superior

court, it is good. until set aside, since it can

be set aside in part. Then there is no reason

for reversing the onus and, therefore, one just

does not get into the need to resort to a

statutory provision such as 32 if one looks at it

as a judicial order. Now, we would also say that even if the

onus is reversed, we would not agree with the

conclusion set out at pages 53 and 54 of

Mr Justice McHugh in point of facts. Now, I

realize that we start to get into some difficulty

on the question of special leave in that there is

a finding in the applicants' favour on that

point but we would put that submission. for special leave is to have this Court entertain

an appeal that goes to the question of

restitution of the tapes. What the applicants

really seek in this case is to have the tapes

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returned. to them, as if it were their property,

in order to prevent them being used in the

trial. But, there has, in fact, been a

committal since the application commenced but

the trial is some considerable time off.

We would say that special leave should not be

granted to deal with that matter for these

reasons. It clearly is contrary to the doctrine

which this Court has consistently adopted in

BUNNING V CROSS and related cases that

illegally obtained evidence is not, per se

inadmissible. Secondly, it would be a fruitless

exercise to return the tapes if BUNNING V CROSS

means that you cannot prohibit oral evidence of

the conversations being given because that would
bring about the situation that the best record

of that evidence would be unavailable. And

thirdly, Your Honours, there is a clear line of

authority which is not, we suggest, capable of

reasonable doubt to the effect that restitution

is not available in this area. Again, in

PARKER V CHURCHILL, this line of authority is

discussed and in the extract that I have given

to Your Honours at page 331, Mr Justice Burchett -
or at 330 he refers to BUNNING V CROSS and how it

would contradict the idea behind BUNNING V CROSS

to allow restitution. At 331, he says that in

Canada, in New Zealand and in an unreported judgment of Mr Justice Hope, the attitude has

been taken that there is no right to

restitution of goods unlawfully - and this is

goods, not even tapes - goods unlawfully taken

in the course of an illegal search and seizure;

that you cannot frustrate the trial by getting

the goods back before the trial.

In addition to those difficulties about the

restitutionary part of the proposed appeal,
the Court does not have the benefit of any

findings or assistance in point of law from the

court below.	The restitution point just fell
away in the light of the conclusion.

Your Honours, for those reasons - - -

MASON CJ:  Just before you conclude, Mr Solicitor.

You have referred to BUNNING V CROSS but, under

the State legislation, the trial court would

have a discretion to admit the evidence in any

event notwithstanding that there was any

illegal use of the listening device.

MR MASON:  Yes, Your Honour, and that does remind me of

an additional point as to, in one sense, what

the whole case about the warrants is really

about, to put it into its proper context. If the

warrants are bad the evidence is still, on our

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submission, clearly admissible. And, one asks,

is it really likely that the Court will

exercise its discretion adverse to the

admissibility of the evidence when the evidence

was obtained pursuant to a warrant given by a

supreme court judge. There is nothing to

suggest that the application was made to the

supreme court rather than the Federal Court in order deliberately to take some advantage and,

as I say, the tapes are to be used in connection

with a State offence, If the federal legislation

is valid, ,and we would contend to the contrary,

that if it is valid it merely operates to

prevent persons acting in connection with federal

police from conducting certain inquiries other

than pursuant to a federal warrant. So, it

really would be the most technical of all

breaches and, therefore, it would be highly

likely, in our submission, that the discretion

will be exercised favourably. That really is

what this case is all about unless the

restitutionary point takes flight.

MASON CJ:  Yes. Now, Mr Handley, the Court at this

stage is minded to think that the questions

which you seek to raise are of sufficient

importance to warrant the grant of special leave

to appeal subject to the last point that

the Solicitor has raised. In other words, is

there any point in granting you special leave to

appeal and taking this case on when it would

appear that on the face of it there are

strong reasons for thinking that the discretion

that the trial judge would have, under the State

legislation, would be exercised against your

client?

MR HANDLEY:  There are two matters we would put in answer

to that, Your Honour. Firstly, we would submit

that on the basis of this Court's decision in the

COMMONWEALTH V McCORMACK and COMMISSIONER FOR
RAILWAYS V CAVANOUGH, that if these are judicial	orders and the Court has made erronous orders
beyond power, which it will set aside upon
application in the case of ex parte orders, then
the Gour~ as a necessary consequence of setting aside orders which were beyond power made ex parte,
will order restitution. In that case, either
this Court or the Court of Appeal on remission
from this Court could decide, in our submission,
appropriately that one thing that should be restored to us is our privacy and that involves returning to us or destroying the tapes or any copies or any transcripts taken from the tapes. I appreciate that leaves us exposed to oral
evidence but Your Honours appreciate as a

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practical matter that without the tapes or
transcripts of the tapes the oral evidence may he

of little value and little weight. So far as the discretion is concerned, Your Honour, the warrants authorize surveillance by both State

police and federal police. So far as the State

police are concerned, Your Honours, I accept

the substance of what the Solicitor has said,

that as far as the State police are concerned

this would be open to the trial judge - we do

not know the full facts at this stage, but it

would certainly be seen to be a real question -

that the matter so far as the State police were

concerned would be seen as something in the

nature of a technicality, a bona fide mistake

as far as they are concerned, and the discretion

would not be exercised adversely to the

reception of evidence by members of the State

police. But what about members of the federal

police? The Court of Appeal has held that the

CUSTOMS ACT creates a code intended to operate

nationally and tending to lay down the limits

beyond which federal police will not act to

intrude upon the privacy of Australian citizens.

And we have the federal police bypassing -

not as a matter of an oversight - it could not
possibly have been an oversight for the federal

police to bypass the federal code and to act under

State law and,in our submissio~ there is a very

real question as to whether any evidence given

by any federal policeman of what he heard or did,

pursuant to these State warrants, would be

received by a trial court.

Having regard to the nature of the federal

legislation and the implicit command in that
legislation that thus far you will go and no

further and what might be seen as deliberate

evasion on the command of the national Parliament.

DAWSON J:  It was the federal police who made the actual

recordings?

MR HANDLEY:	We do not know, Your Honour.
DAWSON J:	I do not know, that is why I am asking.
MR HANDLEY:	We do not know either because

executive privilege has been claimed for that

material but at the trial it will have to come
out as we understand it. Your Honour, I have

not been involved in the c_omnittal. so if I may

just ask Mr Horler. My learned friend Mr Horler,

who appears for the other applicant,was

involved in the conmtttal and can answer that

question. The .SJlicitor seems to be saying to me

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that each watch comprised one State

policeman and one federal policeman but I will

not guess where I do not know and I will leave

it to others to assist. But, Your Honours,

it is, in our submission, a real question as to

whether any evidence given by federal police of what they heard or discovered as the result

of these warrants would be admitted despite the

doctrine of BUNNING V CROSS. Now, Your Honours,

there would be other things I would wish to say
but I think the Chief Justice's question was
directed just to this issue and,in my submission,

it is not academic if we can get back the tapes

and transcripts of the tapes and copies of the

tapes; and it is not academic if there is a real

question as to whether the evidence by the

federal police would be admitted in the face of

what is possibly a contumelious disregard of

the legislative scheme of the national Parliament.

MASON CJ:  Mr Handley, one other point. There does

seem to be a good deal of authority against you
so far as your restitutionary claim is

concerned. What do you say in response to

submissions made by the Solicitor?

MR HANDLEY: 

Your Honour, this is the importance of the

accept, did not challenge and do not seek to
challenge before Your Honours, the Federal Court
jurisprudence on the approach which the Court
takes when it sets aside an executive warrant
made not by itself, but by justices of the peace

1

·	judicial order point because we acknowledge and
or by some executive authority. But, so far as the Court is concerned, entirely different
principles apply. If these are orders of the Court
then an entirely different principle applies and
could I ask Your Honours to go to the bundle
we handed up?

MASON CJ:  Yes. (Continued on page 17)

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MR HANDLEY (continuing): Firstly, the COMMONWEALTH V McCORMACK,

Your Honours, is the second last case in the bundle - a comparatively recent decision of five Justices of

this Court. Going to page 276, the Court quoted -

it says there in the middle of the page:

"Restitutio in integrum is the right of every

successful appellant",

Now, Your Honours, there is authority which was

cited to the Court of Appeal that there is no
difference between a successful appeal on the one hand,
successful resort to prerogative writs or writs of
error on the other, or a successful application to

set aside an ex parte or default order.

DAWSON J: You are asking for restitution of the tapes,

the transcripts.

MR HANDLEY:  Yes, Your Honour. I mean, I know that the tapes

were not ours - - -

DAWSON J: What you are really askingfor ·is restitution of

a conversation, is it not?

MR HANDLEY:  We cannot actually perform a lobotomy on the

police officers, Your Honour, for the purposes of -

and we do not seek to do that - - -

MASON CJ: That is reassuring.

MR HANDLEY-: -· - ~ _but, Your Honour, just as - while it is -

insofar as the Court can put us back in the position

we were in before these invalid ex parte orders

were made, I use "invalid" in a very broad sense,

in the sense of improperly made or made in excess

of power, the Court will do so. That principle

applies where ex parte orders are set aside,

although this case does not deal with that. It

may be the Court cannot give us perfect relief,

value, -the Court may not be able to disturb the	for example, if property is being sold under a judicial execution to a bona fide purchaser for
title of that purchaser but it will order refund of the proceeds of sale from the judgment creditor,
for example.

But reading on:

An appellant who has satisfied a judgment for

the payment of money is entitled, on the

reversal of the judgment, to repayment of the

money paid by him with interest.

Now,of course, he has not - the interest is not something which has actually come out of the

judgment debtor's pocket as a sum of money, it

is really a working out of the fact that the

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judgment debt has come out of the judgment debtor's

pocket or from the sale of his property. In the same

way, by analogy here, we submit that we are entitled

to restitutio in integrum m so far as the Court can
give it and that involves returning to us the

tapes and the transcripts. Lord Cairns said:

one of the first and highest duties of all

Courts is to take care that the act of the
Court does no injury to any of the Suitors,

and when the expression 'the act of the Court'
is used, it does not mean merely the act of
the Primary Court, or of any intermediate

Court of appeal, but the act of the Court as a whole, from the lowest Court which

entertains jurisdiction over the matter to

the highest Court which finally disposes of

the case.

and, of course, I need not take the matter any further

there, but can I just take Your Honours to

THE COMMISSIONER FOR RAILWAYS V CAVANOUGH which was

concerned with a successful appeal against a

conviction and what happened to the person who

had been convicted andYnoseconviction was later

the Court, about point 2, line 5:

set aside - it is the last case in our bundle.

But the power given to the Quarter Sessions

includes authority to quash and set aside

convictions. These are familiar expressions -

this is at page 225, I am sorry, Your Honours,

and describe a jurisdiction exercisable at

co1!llllon law by Courts of error. The effect of

the reversal of a conviction by proceedings

in error has long been settled, and the same

effect is produced by quashing it, or setting

it aside upon a statutory appeal.	The
conviction is avoided ab initio.

It is not "void ab initio" but it is "avoided

ab initio", a judgment reversed is the same as

no judgment.

If the conviction were alleged in a pleading,

it would be a good answer that there was no

such record. It is "utterly defeated and
annulled". Acts done according to the
exigency of a judicial order afterwards
reversed are protected: they are "acts done

in the execution of justice, which are

compulsive". And proceedings which, although

based upon a judgment, are brought to completion

before its reversal are not avoided. For

"collateral acts executory are barred, but

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not collateral acts executed". But "upon

reversal of a judgment against any person

convicted of any offence, the judgment,

execution and all former proceedings become

thereby absolutely null and void. If living,

he ..... will be entitled to be restored to all

things which he may have lost by such erroneous judgment and proceedings, and shall stand - - -

DAWSON J:	Well now, really if:y9u .are in the position of saying
that - in effect  you are righ~ there is no
warrant at all.
MR HANDLEY:	Yes.
DAWSON J:	And then you say you are entitled to get back the illegal tapes. But, assume there had not ever
been a warrant, would you have been entitled to sue in some way or another to get back the tapes,
the illegally obtained tapes,
MR HANDLEY:	We may not, Your Honour, but in that situation

there may never have been illegal tapes.

DAWSON J: But assume there were.

MR HANDLEY: But, I mean, the question does not arise, Your

Honour. I mean without a judicial execution

it may be that the judgment creditor would have

trespassed on my property and dispossessed me,

de-seized me, but if he got in under a judicial

order he will be evicted by a judicial order by

way of writ of restitution. The Court does not

inquire as to what might have happened if the

order had not been made, it just looks at what

happened as a result of the order being made, in

my submission.

I need not read Mr Justice Starke's judgment

in CAVANOUGH's case or the rest of what the four

Justices said. In my submission, once.a

judicial order is set aside and the warrant is

set aside with it, if that is the result of this

Court's conclusion, there is a very real question to be tried, an important question of public interest and novelty, as to whether we are not

entitled to restitution. ~t may be this Court

would wish to send it back to the Court of Appeal

to decide, in the light of this Court's view,
that the warrant should be set aside ab initio,

avoided ab initio or just set aside, but either

this Court or the Court of Appeal, in our submission,

could.

We have a serious question as to whether

we are not entitled to get back our tapes and any

copies thereof. Unless there is any other question

I will ask Mr Horler to deal with the unanswered

question by the Chief Justice.

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MASON CJ: Yes. Yes, Mr Horler.

MR HORLER:  Your Honours, appearing as I do for Mr Love in

this application, I can be brief because the grounds

and points relevant to his application for leave

are identical to those of Mr Handley's client. I

only want to respond to, firstly, the one question

put a moment ago that Mr Handley, involving a

consideration of the practical result in terms

of the trial, and a question or two that came from

Justice Gaudron. Your Honours, and I say that

because I appeared from time to time in this long

committal. Your Honours, in summary, the

investigation - I use it in its wider sense - that

lead to the arrest of these three applicants here

today was a joint State / Federal operation -

their words, I do not know whether it has any

legal sanction. The evidence disclosed that

those who were listening in on the listening devices

over a period of time were both Federal and State

police officers and there seems to be no discernible
pattern as to who was rostered when, people did it,

from the State police and the Federal polic~ from

time to time.

It is convenient, therefore, to point out

that in the one warrant that the Court was directed

to by way of example, tnat is the warrant that

begins at page 71 of the application book,. you

will see there that the warrant appears to authorize

the use by certain nominated police officers and my

recollection, which is imperfect, that all of

those listed on page 71 were State police officers.

You turn over the page and under the heading which

is on page 72 at the top, you will see that there

are there also nominated certain people who are

called Australian Federal Police. I have a recollection

of those officers, some of them who gave evidence

identifying themselves as being Australian Federal

Police officers.

There was no logical or legal pattern whereby

the listerrlng--in was done. So I hope that that might answer just a couple of question that came from the Bench. The only other matter I want to say_ relates

to the sole question that Your Honour the Chief

Justice. put. It is by no means certain that even

if these warrants, and all of them were struck

down and the necessary consequence was that this

evidence was illegally obtained, that the trial

judge would necessarily, in the exercise of his

discretion, admit that evidence even though it may

turn out to have been illegally obtained. With

respect, some of the observations from the Bench
seem to proceed on that assumption and, indeed, what

we would ultimately ask that the High Court do in

relation to the appeal ultimately wootd, of course,

have an effect upon the trial judge when he had to

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enter into, or conduct, that balancing operation,

as required by BUNNING V CROSS and other cases

before and since in the exercise of the discretion,

as to the nature of the illegality, perhaps, in one

pan, and the probative value and so on of the

evidence on the other hand. So that it, with

respect, is not just enough to say that even if we

ultimately make good our contention that the warrants

are struck down and therefore all of the evidence

obtained, or gleaned, as a result was illegally
obtained but, nevertheless, the trial judge would,

more likely than not, accept the evidence and admit

it in any event and that, therefore, this is an

empty exercise.

As Mr Handley has said, and at risk of

repetition, there are important general points relating to warrants and the administration of

criminal justice and they are fairly raised.in

papers. For those reasons and adopting the

arguments of my friend, Mr Handley, we too seek

leave in respect of Mr Love's matter which is on

all fours with Peters' application.

MASON CJ·:·	Mr Horler, it would not be correct to state, as you
did state, that the Court appears to have assumed
that the discretion would be exercised adversely
to your clients in the trial - - -
MR HORLER:	I am sorry,
MASON CJ:	The questions were designed to ascertain from Counsel what the result would likely to be.
MR HORLER:	Well, the result would likely to be -
MASON CJ;	No, you have addressed that question. All I wanted
MR HORLER:	I am sorry, Your Honour, if I have misstated--

yes, I apologize for that.

MASON CJ:~ - - - was to correct that statement that you made.
MR HORLER:	Well then, in short, addressing that question, the

result would likely to be that the trial judge would reject in the exercise of his discretion

this evidence which, we say, in its entirety, has

been obtained as a result of an unauthorized

interception. Thank you, Your Honour.

MASON CJ:	Yes. Thank you, Mr Horler. The Court will announce
its decision in this matter after the adjournment.

-~

AT 10.54 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.15 PM:

:MASON CJ: The Court will grant special leave to appeal in

these two cases.

AT 2.16 PM THE :MATTER WAS ADJOURNED SINE DIE

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