New South Wales Bar Association v Punch

[2006] NSWADT 191

CITATION:	New South Wales Bar Association v Punch [2006] NSWADT 191
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT John Patrick Punch
FILE NUMBER:	042041
HEARING DATES:	21/04/06
SUBMISSIONS CLOSED:	04/28/2006
DATE OF DECISION:	06/22/2006
BEFORE:	Karpin A - ADCJ (Deputy President)
CATCHWORDS:	Admissibility of evidence obtained pursuant to warrant under the Listening Devices Act 1984
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Legal Profession Act 1987 Listening Devices Act 1984
CASES CITED:	Birmingham v. Corrective Services Commissioner of NSW (1988) 15 NSWLR 292 R. v Haddad & Treglia [2000] NSWCCA 351 R. v. Karageorge (1998) 103 A. Crim. R. 157 R. v. Young (1999) 46 NSWLR 681 Thompson v. Goold and Co [1910] AC 409
REPRESENTATION:	APPLICANT S. Odgers SC RESPONDENT D. Fagan SC
ORDERS:	Evidence obtained pursuant to a warrant under the Listening Devices Act 1984 (NSW), admissible in disciplinary proceedings.

1 By Information filed 24 December 2004, the applicant sought an order that the name of the respondent be removed from the Roll of Legal Practitioners on the grounds that he has been guilty of professional misconduct, and is, accordingly, not a fit and proper person to remain on the Roll of Legal Practitioners.

2 The professional misconduct complained of is constituted by an allegation that in June 1995, the respondent, whilst appearing for a defendant in criminal proceedings in the District Court at Sydney, adduced evidence which he knew to be untrue.

3 The parties agreed that there is an interlocutory issue, fundamental to the ability of the applicant to make out the complaint against the respondent. The parties agreed the issue in the following terms:

Does the Listening Devices Act 1984 (NSW) prohibit use of the transcript that is included in pages 146 to 154 of exhibit PAS2 to the affidavit of Mr. Selth sworn 23 December 2005 and filed by the NSW Bar Association in the proceedings.

4 The essential facts are not in dispute. In December 1994, police were investigating the murder of Andre Rahme who had been shot in the early hours of the morning on 7 November 1994. On 12 December 1994, Detective Senior Constable Paul Joseph Gordon swore an affidavit in support of an application for a listening device warrant under the Listening Devices Act 1984. Paragraph 28 of that affidavit was in the following terms:

Investigating police seek the use of the listening device for the purpose of gaining information and evidence in relation to the murder of Andre Rahme. It is not the intention of investigating police to obtain information or evidence in relation to the armed robbery offences that Haddad and Treglia are presently charged with.

5 Paragraph 30 provided:

30 The privacy of Tony Haddad and Giovanni Treglia and any other person or persons, will be affeceted only to an extent necessary to gain evidence or information in relation to the prescribed offence………

6 The s.17 certificate repeated much of the information contained in Detective Gordon’s affidavit, including the two extracts set out above.

7 On 13 December 1994, Acting Justice Spender granted the warrant, authorising the installation of a listening device in the cell complex at Bankstown Police Station between 13 and 22 December 1994. The warrant specified that the prescribed offence was the offence of murder. It authorized the installation, use and retrieval of the listening device between 5.30pm on 13 December and 5.30pm on 22 December 1994. During that period, it was anticipated that two men, Haddad and Treglia, charged with armed robbery, would be placed in a cell together. Police believed that these men had knowledge concerning the murder of Rhame, and might be expected to discuss that matter.

8 The men did not discuss the murder. There was, however, captured on the listening device on 14 December 1994, other conversation, including conversation with the respondent who attended in the cells as counsel instructed to defend the charges of armed robbery.

9 Acting Judge Spender set 5 January 1995 “as the day by which the person authorised to use the listening device pursuant to this warrant is required to report pursuant to Section 19 of the Listening Devices Act 1984, to the Court and the Attorney General.”

10 In accordance with the order, Detective Gordon furnished a report signed on 1 January 1995 which read in part:

(b)(i) The private conversations of Tony Haddad….. and Giovanni Treglia…… were listened to and recorded. Also recorded was the conversation between them and John Punch.”

11 Both accused subsequently maintained alibis before Nash DCJ in a judge alone trial, in which the respondent appeared as counsel, which commenced on 19 June 1995. Both were acquitted on 26 July 1995 of the charges of armed robbery.

12 Subsequently, police involved in the armed robbery prosecution became aware of information relating to the charges of armed robbery, which had inadvertently been recorded on the legally emplaced listening device in the cells at Bankstown Police Station. Both Haddad and Treglia were charged with perjury. When those charges came for hearing before Luland DCJ, in October 1999, his Honour ruled the material obtained through the listening device was inadmissible. On appeal, the Court of Criminal Appeal overturned that decision, holding that the relevant material contained on the listening device tapes, was admissible against Haddad and Treglia on a prosecution for perjury. R. v. Haddad & Treglia [2000] NSWCCA 351 (6 September 2000).

13 In November 2001 Treglia pleaded guilty to an offence under section 319 Crimes Act 1900, doing an act with intent to pervert the course of justice, on which he was sentenced to four years imprisonment with a non parole period of three years. The outcome for Haddad is not available due to a non-publication order currently in force.

14 The present issue is whether that material ruled admissible by the Court of Criminal Appeal in the prosecution of Haddad and Treglia on charges under the Crimes Act, is also admissible against the respondent on the application to have his name removed from the Roll of Legal Practitioners.

15 The relevant provisions of the Listening Devices Act 1984 are:

5 Prohibition on use of listening devices

(1) A person shall not use, or cause to be used, a listening device:

(a) to record or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

(2) Subsection (1) does not apply to:

(a) the use of a listening device pursuant to a warrant granted under Part 4,

(b)…

(c) the use of a listening device to obtain evidence or information in connection with:

(i) an imminent threat of serious violence to persons or of substantial damage to property, or

(ii) a serious narcotics offence,

if it is necessary to use the device immediately to obtain that evidence or information,

(d) the unintentional hearing of a private conversation by means of a listening device, or

(4) Where a listening device is used in the circumstances referred to in subsection (2) (c) and its use would, but for subsection (2) (c), be contrary to this section, the person who used the device shall:

(a) forthwith cause to be served on the Attorney General or a prescribed officer notice of that fact, and

(b) within 7 days after its use, furnish a report, in writing, to the Attorney General:

(i) containing particulars of the circumstances in which the device was used, and

(ii) without affecting the generality of subparagraph (i), containing the same particulars, and specifying the same matters, as are required by section 19 (1) (b) in relation to the use of a listening device pursuant to a warrant granted under Part 4.

6 Prohibition on communication or publication of private conversations unlawfully listened to

(1) A person shall not knowingly communicate or publish to any other person a private conversation, or a report of a private conversation, that has come to the person’s knowledge as a result, direct or indirect, of the use of a listening device in contravention of section 5.

(2) Subsection (1) does not apply:

(a) where the communication or publication is made:

(i) to a party to the private conversation,

(ii) with the consent, express or implied, of all the principal parties to the private conversation, or

(iii) in the course of proceedings for an offence against this Act or the regulations,

(b) where the communication or publication is not more than is reasonably necessary in connection with:
(i) an imminent threat of serious violence to persons or of substantial damage to property, or

(ii) a serious narcotics offence, or

(c) to prevent a person who has obtained knowledge of the private conversation otherwise than in a manner referred to in that subsection from communicating or publishing to another person the knowledge so obtained by the person, notwithstanding that the person also obtained knowledge of the conversation in such a manner.

7 Prohibition on communication or publication of records of private conversations by parties thereto

(1) A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

(2) Subsection (1) does not apply where the communication or publication:

(a) is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation,

(b) is made in the course of legal proceedings,

(c) is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication,

(d) is made to a person who has, or is, on reasonable grounds, by the person making the communication or publication, believed to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made, or

(e) is made by a person who used the listening device to record the private conversation pursuant to a warrant granted under Part 4 or pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.

13 Inadmissibility of evidence of private conversations when unlawfully obtained

(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:

(a) evidence of the conversation, and

(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person,

may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail).

(2) Subsection (1) does not render any evidence inadmissible:

(a) if all of the principal parties to the private conversation concerned consent to the evidence being given,

(b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner,

(c) in proceedings for an offence against this Act or the regulations, or

(d) in proceedings for:

(i) an offence punishable by imprisonment for life or for 20 years or more, or

(ii) a serious narcotics offence,

(or in proceedings for or in connection with the grant of bail in any such proceedings) if the court considers that the evidence should be admissible.

14 Admissibility of evidence of private conversation when obtained inadvertently pursuant to warrant

(1) Where a private conversation has inadvertently or unexpectedly come to the knowledge of a person as a result, direct or indirect, of the use of a listening device pursuant to a warrant granted under Part 4:

(a) evidence of the conversation, or

(b) evidence obtained as a consequence of the conversation so coming to the knowledge of that person,

may be given by that person in any criminal proceedings (including proceedings for or in connection with the grant of bail) notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained.

(2) Subsection (1) does not render any evidence admissible if:

(a) the evidence relates to an offence in respect of which a warrant could not be granted under Part 4, or

(b) the application upon which the warrant was granted was not, in the opinion of the court, made in good faith.

15 Definitions

prescribed offence means an offence (including an offence under a law of the Commonwealth or of another State or Territory) that:

(a) is punishable on indictment, or

(b) is of a class or description prescribed for the purposes of this Part (whether or not it is punishable on indictment).

16 Warrants authorising use of listening devices

(1) Upon application made by a person that the person suspects or believes:

(a) that a prescribed offence has been, is about to be or is likely to be committed, and

(b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary,

an eligible Judge may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device.

(3) Where a warrant granted by an eligible Judge under this section authorises the installation of a listening device on any premises, the eligible Judge shall, by the warrant:

(a) authorise and require the retrieval of the listening device, and

(b) authorise entry onto those premises for the purpose of that installation and retrieval.)

(4) A warrant granted by an eligible Judge under this section shall specify:
(a) the prescribed offence in respect of which the warrant is granted,

(b) where practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant,

(c) the period (being a period not exceeding 21 days or, if the offence is a terrorism offence, 90 days) during which the warrant is in force,

16 Section 19 requires persons to whom a warrant is granted, to furnish a written report to an eligible judge and the Attorney General, concerning the use of the listening device and evidence obtained thereby. Section 22 imposes an obligation to destroy irrelevant material.

17 The decision in Haddad & Treglia [2000] NSWCCA 351 dealt with the same recorded material that is the subject of this interlocutory application. The accused in the District Court, successfully sought to challenge the admissibility of the evidence on the grounds, inter alia, that the section 19 report made no mention of the possible use of the evidence in connection with the armed robbery offences. The trial judge excluded the evidence in exercise of the power pursuant to s.138 Evidence Act 1995, holding that there had been a failure to comply with the requirement for an adequate report pursuant to s.19 Listening Devices Act 1984. When the matter came before the Court of Criminal Appeal, reliance was also placed upon an alleged failure to destroy material pursuant to s.22.

18 Spigelman CJ, with whom Newman and Greg James JJ agreed, in overturning the District Court judge’s decision, noted that section 14 is permissive, providing that knowledge obtained “inadvertently or unexpectedly may be given” in any criminal proceedings, “notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained.”

19 Spigelman CJ held that section 19(1)(b)(iv) “does not, however, extend the obligation to report to any use to which the relevant evidence or information is capable of being put.”

20 His Honour, whilst noting the important safeguard provided by the section, held that a person preparing a section 19 report was not obliged to “speculate about use that could be made of the evidence or information obtained.”

21 The court held that the “obligation to destroy under s. 22 does not extend to all information, except that concerning the offence for which the warrant was originally obtained. Information about any prescribed offence, within the meaning of s.15, can be retained.”

22 Spigelman CJ cited with approval the approach adopted by Simpson J. in R. v. Karageorge (1998) 103 A. Crim. R. 157 at 181:

What s. 13 does is to render inadmissible evidence obtained by the use of listening device in contravention of s. 5. It does not render inadmissible evidence obtained by the use of a listening device that is authorised by a warrant validly obtained and used……even if the information obtained is incidental to the purpose for which the warrant was issued and the listening device used. The question is not the nature of the information or evidence obtained, but the purpose for, and the circumstances in which, the listening device was used. That the valid use of a listening device produces evidence of an offence other that that in relation to which it was issued does not make that evidence inadmissible. If the listening device is used pursuant to the warrant authorising its use, then evidence of offences other than that which provided the foundation of the issue of the warrant will not be rendered inadmissible by s. 13……………The underlying question is directed to the proprietary of the use of the listening device, and not to any collateral benefit or advantage that may accrue by reason of the listening device.”

23 In light of the Court’s finding that there had been no contravention of the Listening Devices Act, the court held that s. 138 Evidence Act 1995 did not apply.

24 Prior to the hearing of this application, both parties filed an Outline of Submissions, however, at hearing, the respondent extended its objections to include an argument that the evidence had been obtained in contravention of s. 5.

25 The respondent argued that having regard to the foundational material upon which the use of the listening device was approved, lawful use for the stated purpose of obtaining evidence relating to the murder of Rahme, did not extend to recording a conversation between the respondent, Haddad and Treglia.

26 Section 5(1) provides that a listening device shall not be used to record a private conversation. That prohibition, however, does not extend to such a conversation recorded pursuant to a warrant granted under part 4. It is argued that the conversation in which the respondent participated was not one obtained pursuant to the warrant, and was, accordingly, in contravention of s. 5.

27 Section 13 prohibits the use of a private conversation that has come to the knowledge of a person as a direct result of the use of the listening device used in contravention of s.5. Such evidence may not be given in either civil or criminal proceedings. Section 13(2), however, provides exceptions to the blanket prohibition in s.13 (1).

28 Section 14 is permissive in its terms, providing that a private conversation that has “inadvertently or unexpectedly come to the knowledge of a person as a result direct or indirect of the use of a listening device pursuant to a warrant granted under part 4, evidence of that conversation…….may be given….in any criminal proceedings notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained.” Subs. 2 places further limitations on the use of evidence inadvertently obtained.

29 It was argued on behalf of the respondent that there is a tension between the use of the term “pursuant to” as it is used in s.5 as it flows to section 13, and with s. 14.

30 The primary submission on behalf of the respondent was that the conversation recorded, was not pursuant to the warrant. It is not in dispute that a warrant was obtained, pursuant to which a listening device was installed. It is submitted, however, that once the conversation ceased to be between the two men in the cell, and was no longer concerned with the shooting of Rhame (if it ever was), and became a conversation between the respondent, Haddad and Treglia, concerning the armed robbery charges, it was no longer a conversation pursuant to the warrant.

31 The respondent relied upon the decision in Karageorge in propounding its argument that the affidavit seeking the warrant specifically excluded an intention to obtain information relating to the armed robbery charges. The warrant, however, specified as the prescribed offence in respect of which the warrant was granted “murder contrary to the provisions of the Crimes Act…” In Karageorge a different issue arose. The warrant was not issued pursuant to the State Listening Devices Act, but under the Australian Federal Police Act. Simpson J. with whom Sully and Levine JJ agreed, held, in respect of the condition contained in the warrant:

“ ….there is no escaping what the condition is really directed to . That is only conversations relating to the identified subject matter may be recorded. The relevant subject matter is ‘the alleged offence of attempting to pervert the course of justice’. But that is specifically such an offence in relation to the course of justice in the Commonwealth, and not in the State……It is clear beyond question that the material did not concern, and could not have concerned,….any offence remotely resembling in a factual sense that with which the appellant was charged. The Australian Federal Police Act simply could not have authorised the issue of a warrant in relation to such an offence. That …..did not render the evidence inadmissible provided that the listening device was used for the purpose for which it was issued.”

32 Her Honour noted that it was possible the Crown had evidence available that was capable of establishing the recording had been made in compliance with the third condition in the warrant, which set out the specified persons whose conversations might be recorded. The necessary groundwork had not, however, been laid, consequently making the material inadmissible.

33 In this case the listening device was used in accordance with the terms of the warrant authorizing its installation and use. Thus the evidence acquired inadvertently in the course of lawful use of the listening device is not rendered inadmissible. There has been no contravention of s.5 (1), and accordingly, s. 13 is not applicable.

34 The respondent submits that if the evidence is not rendered inadmissible on the first argument advanced, it is nonetheless inadmissible in these proceedings because there is no express provision in the Listening Devices Act that permits a record of a private conversation obtained lawfully, to be used in civil proceedings, and therefore it is inadmissible in disciplinary proceedings under the Legal Profession Act 1987.

35 It is argued, that on a proper construction of the Listening Devices Act, a record of a private conversation obtained pursuant to a warrant can only be used for the criminal prosecution of the offence identified in the warrant, or, in accordance with s.14 (1). Thus, any such material is limited to its use in criminal proceedings, and cannot be extended to civil proceedings .The respondent submits that the words of s. 14 demonstrate clearly that the unstated, but basic proposition in the act, is that material obtained consequent upon a warrant may only be used to prosecute the criminal offence for which the warrant was obtained, unless it gives rise to use in criminal proceedings in the exception provided by s. 14.

36 The respondent submits that the Act establishes an “offence focused regime” for the use of lawfully obtained private conversations pursuant to the purposes stated in the warrant, whilst providing an exception where information is inadvertently obtained which relates to other, unrelated criminal offences. It is argued that the exceptions do not extend to civil or disciplinary proceedings, and, accordingly cannot sanction the admission of the subject material in the current proceedings even if the Tribunal holds that the material was obtained lawfully pursuant to Part 4 of the Listening Devices Act.

37 The respondent relied upon the second reading speeches in both the upper and lower houses. When the Listening Devices Bill was before the lower house on 17 May 1984, the Attorney General noted that the Act was designed to protect citizens from eavesdropping by the State or others; that section 13 would render evidence inadmissible in civil or criminal proceedings if obtained directly or indirectly by the unlawful use of a listening device; whilst s.14 would make admissible, evidence obtained inadvertently or unexpectedly.

38 The respondent argues that the words “pursuant to” as they appear in s.14 require to be preceded by the word “purportedly”. This it is argued, would overcome the asserted tension between the use of the words “pursuant to” as they appear in sections 5 and 14. The basic, albeit, unstated proposition is that material obtained from a warrant may only be used to prosecute the offence named in the warrant, the only exceptions, to the basic premise being those set out in s.14.

39 The circumstances in which a court will be persuaded to imply words into legislation will be rare indeed. As was put bluntly by Lord Mersey in Thompson v. Goold and Co [1910] AC 409 at 420:

It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.

40 In Birmingham v. Corrective Services Commissioner of NSW (1988) 15 NSWLR 292 McHugh JA (as he then was) identified three preconditions which, if satisfied, might permit a court to read words into the legislation “…if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.” Those conditions were:”…the court must know the mischief with which the Act was dealing….must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved….the court must be able to state with certainty what words Parliament would have used to overcome the omission.”

41 Those views were strengthened by Spigelman CJ in R. v. Young (1999) 46 NSWLR 681:”the proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend the legislation.”

42 No cogent argument has been advanced on behalf of the respondent that would support a different meaning for the words “pursuant to” as they appear in each of the subject sections. The words are clearly intended to have the same meaning and to attempt to infer the word “purportedly” in s.14 is to seek to import a meaning that was not intended by parliament.

43 The scheme of the relevant sections is designed to make admissible, in certain circumstances, evidence that is inadvertently and unintentionally obtained by means of a lawfully granted warrant under the Act.

44 In this case there was a lawful interception of a conversation pursuant to a warrant. The conversation between the respondent and the two men in the cell was obtained inadvertently and unintentionally pursuant to that warrant and falls within the provisions of s14.

45 Counsel for the respondent submitted that the argument mounted on behalf of the respondent required the consideration of two possible constructions of the legislation, both of which required the addition of a word in either s5 or s14 in order to give to the act the meaning intended by the parliament. The second proposition is that if it is accepted that the subject conversation was obtained legally pursuant to the provisions of s.5, relying upon the words “pursuant to” as they appear in s.5 (2), then, necessarily, in order to make sense of the scheme of the act in dealing with evidence so obtained, the word “only” should be notionally inserted after the word “may” in section 14 (1) (b). It is argued that s.14 should be construed as permitting the use of such evidence only for criminal proceedings.

46 In support of that argument, reliance is placed upon the provisions of s.22 which provides:

22 Destruction of irrelevant records made by the use of a listening device

(1) This section applies to the use of a listening device:

(a) pursuant to a warrant granted under Part 4, or

(b) in the circumstances referred to in section 5 (2) (c).

(2) A person shall, as soon as practicable after it has been made, cause to be destroyed so much of any record, whether in writing or otherwise, of any evidence or information obtained by the person by the use of a listening device to which this section applies as does not relate directly or indirectly to the commission of a prescribed offence within the meaning of Part 4.

47 It is submitted that on one argument, if s. 22 is complied with there would never remain in existence evidence of the nature the subject matter of this argument. It is recognised, however, that in enacting s.14, Parliament contemplated the use of material inadvertently obtained and not destroyed.

48 In Haddad and Treglia, the Chief Justice dealt with the proper construction of the provisions of sections 19 and 22. In dealing with the obligation to furnish a written report to an eligible judge and the Attorney General his Honour, with whom the other members of the court agreed, held that the obligation to provide a section 19 report did not extend to including every possible use that might be made or contemplated in respect of the material obtained, There was no requirement to include the use to which the evidence was merely capable of being put. So far as s22 was concerned, his Honour held that :

The obligation to destroy under s22 does not extend to al l information, except that concerning the offence for which the warrant was originally obtained. Information about any prescribed offence, within the meaning of s15, can be retained.”

49 Spigelman CJ approved the reasoning of Simpson J. in Karageorge set out above at para.22, arguing that her Honour’s analysis reinforced the construction of s22 (2), which he advanced.

50 The applicant argues that the evidence was obtained pursuant to a lawful warrant under Part 4 and submits that Karageorge and Haddad and Treglia provide authority for that proposition. The facts that resulted in similarly obtained evidence being excluded in Karageorge, are clearly distinguishable from the facts in this case.

51 What was relevantly said by Simpson J. in Karageorge, and approved by Spigelman CJ in Haddad and Treglia, was, in each case, agreed with by the other members of the Court of Criminal Appeal.

52 It is submitted by the applicant that Part 2 of the Act contains no express prohibition against using a lawfully recorded conversation for the purpose of making a complaint, as happened in this case.

53 As noted earlier, s.13 has no application as the conversation was recorded pursuant to a lawfully obtained warrant.

54 The critical section therefore is s.14 which is concerned with the admissibility of material obtained consequent upon the lawful use of a listening device. Clearly, however, that section is only concerned with the admissibility of such evidence in limited criminal proceedings.

55 The applicant submits that the Act is not intended to, and nor does it, make unlawful the use in civil proceedings, of evidence of conversations obtained pursuant to the grant of a lawful warrant. The scheme of the Act is to protect those who may be exposed to criminal proceedings, ensuring that evidence inadvertently obtained may only by used if the criteria contained in the Act are satisfied. This, it is argued is a reflection of the distinction between civil and criminal proceedings that is demonstrated in legislation, notably in the EvidenceAct 1995. It is argued that a basic characteristic of the administration of our system of justice is the greater limitations placed on the admissibility of relevant evidence in criminal proceedings as opposed to civil proceedings.

56 The Act simply does not make reference to the admissibility or otherwise in civil proceedings of evidence obtained consequent upon the use of a listening device pursuant to a lawfully granted warrant. The Act is concerned with the use, or prohibition upon the use of such material in criminal proceedings. Does that mean, accordingly, that Parliament intended to exclude the use of such evidence in civil proceedings?

57 Essentially the arguments advanced by the respondent are that in the absence of any mention of civil proceedings, the Tribunal should proceed upon an assumption that such evidence is to be excluded from all civil proceedings. That is not a persuasive argument. There is nothing either in the second reading speeches nor in the Act that suggest an intention to create a blanket exclusion in civil proceedings. Nor, indeed, to consider the issues relating to civil matters, other than the reference to unlawfully obtained material in s.13 (1), and the exceptions in s.13 (2) to the blanket prohibition in subsection (1).

58 Parties to civil proceedings are protected by the provisions of the Evidence Act 1995. Section 138 provides for the discretionary exclusion of improperly or illegally obtained evidence. The section sets out the criteria to be taken into account by the court in exercising its discretion. In this case, however, the evidence was not obtained improperly or illegally.

59 Whether or not other exclusionary sections of the Evidence Act might be resorted to, is not a matter that has been ventilated in the preliminary argument as to the admissibility of this material. But without the benefit of submissions, it is difficult to envisage what might persuade the Tribunal to apply the discretionary exclusions under the Evidence Act.

60 The information obtained was incidental to the purpose for which the warrant had been obtained. Additionally, it was information concerning the very matter in respect of which the police officer obtaining the warrant, had indicated that there was no wish or intention to obtain information. The information was not, however, obtained illegally or contrary to the warrant. In the words of Simpson J. in Karageorge there was no contravention of s. 5 “even if the information or evidence so obtained is incidental to the purpose for which the warrant was issued and the listening device used. The question is not the nature of the information or evidence obtained, but the purpose for, and the circumstances in which, the listening device was used.”

61 What was not intended was that the police should obtain information in relation to the armed robbery matters. So far as criminal matters are concerned, the inadvertently obtained evidence was available to ground perjury charges against both Haddad and Treglia.

62 What was obtained was material, the nature of which is contemplated by the scheme of the Act, in providing that where a conversation is inadvertently or unexpectedly recorded pursuant to the grant of a listening device under the Act, that information may be used in accordance with the provisions of the Act. To return to the decision of Simpson J. in Karageorge “If the listening device is used pursuant to the warrant authorising its use, then evidence of offences other than that which provided the foundation of the issue of the warrant will not be rendered inadmissible by s13A.”

63 Despite the stated intention of Detective Gordon, the information concerning the armed robbery charges was obtained lawfully pursuant to a warrant. It was clearly contemplated that not only the two accused might be recorded, but that third parties might also be recorded. There is no merit in the argument that the warrant only related to conversation between Haddad and Treglia. Or, alternatively, that no conversation other than that the subject of the warrant, was lawfully obtained.

64 The Chief Justice’s careful analysis of the relevant sections of the Listening Devices Act 1984 in R. v. Haddad & Treglia is instructive. That decision deals with the same recorded material the subject matter of this decision.

65 So far as the failure to provide a s. 19 report which included the information now sought to be relied upon, the Chief Justice, with whom Newman and Greg James JJ agreed, held that whilst s. 19 obliged the officer to file a comprehensive report, that obligation did not extend to any use to which the evidence was merely capable of being put. That decision is clearly binding on this Tribunal, both as a general statement of principle and in relation specifically to the evidence the subject matter of this decision.

66 Similarly in relation to the asserted obligation to destroy material in accordance with the provisions of s. 22, the judges of the Court of Criminal Appeal held that there was no requirement that all information obtained consequent upon the use of a listening device, should be destroyed, except that relevant to the offence for which the warrant was obtained. That decision, likewise, is binding on this Tribunal, both in relation to the enunciated principle, and specifically, because it related to the same material presently under consideration.

67 The Respondent has submitted that a proper construction of the Listening Devices Act leads to the conclusion that it is an offence focused regime providing for the use of lawfully obtained recording of private conversations, pursuant to the purposes set out in the warrant, but allowing for material concerning other unrelated criminal offences to be used, where such material has been inadvertently obtained, and otherwise falls within the scheme of the act. It is submitted that regime does not extend to civil proceedings.

68 That construction does not take account of the historical emphasis of the judicial system which puts extra protections in place for those accused of criminal offences. The Common Law, and those provisions now codified in the Evidence Act 1995,have traditionally provided the necessary protections to those involved in civil proceedings, and provided additional protections to those charged with criminal offences.

69 It is clear from the scheme of the Listening Devices Act and the reading speeches, that Parliament was primarily concerned to protect those who might be charged with criminal offences as a consequence of information obtained pursuant to use of a listening device. That is in accordance with the historical emphasis of the law. The suggestion that the legislature intended a blanket prohibition on the use of such material in civil proceedings is untenable. The prohibition in s.13 is clearly directed to deterring the use of unlawful listening devices. But even that section is permissive in providing for circumstances in which such illegally obtained evidence may be adduced.

70 Section 13 renders inadmissible evidence obtained by use of a listening device in contravention of s.5 The act then provides a high level of protection in criminal matters where evidence is inadvertently recorded pursuant to a lawfully obtained listening device. It is silent on the issue of the use of such material in civil matters. It is inconceivable that if parliament had intended to extend the same protections under the civil law, it would have failed to clearly legislate that intention. None of the criteria, which were identified by McHugh JA in Birmingham v. Corrective Services Commissioner of NSW for reading into the act, words which are not there, have been met in this case. There is no rational basis for reading into the legislation the words argued for by the respondent. To do so, would be to produce a result for which there is no evidence that parliament intended or contemplated. It would, indeed, offend that fundamental principle of our constitutional law identified by the Chief Justice in R. v. Young. Nothing has been advanced that would persuade this Tribunal to seek to notionally amend the legislation in the manner argued for.

71 There has been argument as to whether or not the material gathered by the listening device is relevantly in the public domain. This material has been tendered in other proceedings, and now, accordingly, constitutes part of the public record. Transcripts were tendered to her Honour Judge Hock in the sentencing proceedings involving Treglia in November 2001. The tapes and transcript of the conversation involving the Respondent were tendered on the voir dire in the District Court proceedings against Haddad and Treglia on 26 October 1999, and the recording involving the respondent was played in open court. That is not, however, in the circumstances of this application, an issue of weight.

72 This material was obtained pursuant to a lawful warrant authorising the use of a listening device. It came lawfully into the hands of the Director of Public Prosecutions. There is nothing in the Act which renders it unlawful for the Director to use material so acquired as the basis for a complaint concerning the professional conduct of a barrister. The provisions of s. 138 Evidence Act do not assist the respondent in circumstances where the evidence was not obtained unlawfully.

73 Whilst it is not a matter which needs to be considered in light of the view the Tribunal has taken on the present application. It would be a somewhat anomalous situation if Haddad and Treglia could be charged with perjury, based upon this evidence, but this Tribunal, concerned, as it is with the protection of the public and maintenance of standards in the legal profession, could not admit the same evidence to be tested in the present proceedings. Given the view the Tribunal has adopted in relation to the admissibility of this evidence on other grounds, in the circumstances of this case, the public policy issues do not require to be considered further.

74 On a proper construction of the Listening Devices Act the evidence is not excluded by any provisions of that Act, and is prima facie, relevant and admissible in the present proceedings. The question posed on this interlocutory application should be answered: No.

75 The issue of costs was not addressed. Costs should be reserved pending the outcome of the substantive proceedings.