Nicholas v The Queen

[2001] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 2000

B e t w e e n -

DAVID MICHAEL NICHOLAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 FEBRUARY 2001, AT 11.12 AM

Copyright in the High Court of Australia

MR S.A. SHIRREFS:   If the Court please, I appear with my learned friend, MR R. RICHTER, QC, on behalf of the applicant.  (instructed by Galbally & O’Bryan)

MS J.G. MORRISH, QC:   If the Court pleases, I appear with my learned friend, MS L.A. TAYLOR, on behalf of the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Shirrefs.

MR SHIRREFS:   Your Honours, firstly, in accordance with the summary of argument on behalf of the applicant, he formally abandons grounds I, II, V and VI of this application and relies only upon grounds III and IV.

GLEESON CJ:   It is the Bunning v Cross.

MR SHIRREFS:   The two points being the implied prohibition in 219F of the Customs Act and the application of the Bunning v Cross principle.  It is submitted that this application raises two ‑ ‑ ‑

GUMMOW J:   So just tell me what is left in terms of the ‑ ‑ ‑

MR SHIRREFS:   In terms of the grounds, which are to be found in the application book, they are grounds III and IV in the application for special leave, which is at page 142 of the application book.

GLEESON CJ:   Mr Shirrefs, I just want to check on what occurred in the running of the appeal in the Court of Criminal Appeal.  There is a suggestion made somewhere in the papers that the case was argued in the Court of Criminal Appeal on the basis that the court could exercise its own Bunning v Cross discretion, is that right?

MR SHIRREFS:   That is what is contended.  What was, in our submission, argued before the court below was that in the application of the proviso, in that application the application of the Bunning v Cross discretion was a matter to be considered, but this was not an appropriate case for the application of the proviso for the matters for which we contended there and we contend here.  Indeed, that was the way in which it was dealt with in Ousley, I think by her Honour – Justice Gummow.  In the resolution of the matter in Ousley, having found the warrant to be invalid, she invoked the proviso because there was no substantial miscarriage.  We do not argue with that on point of principle but we say here it should not have been invoked because of the circumstances that we contend for.

We say this application raises two important matters, the first being whether or not section 219F(3) of the Customs Act impliedly prohibits the admission into evidence of unlawfully obtained material via a listening device and, secondly, whether in the application of the Bunning v Cross discretion, that extends to a consideration of the conduct of a designated person who, in exercising executive power, issues an unlawful warrant.  In so far as the question of the implied prohibition is concerned, in our submission, the proper construction of section 219F(3) is that there is an implied prohibition on the admission into evidence of unlawfully obtained material.

GLEESON CJ:   Where do we find the Court of Criminal Appeal dealing with that point?

MR SHIRREFS:   They do not, and why we do not know, because it was raised in argument before them as one of the points being raised in relation to the appeal before the court.  There is no reference at all in the judgment of the court to this point, although it was specifically argued in court before all three.  It was argued before the trial judge and it was argued before the Court of Appeal and yet no reference is made to it in their judgment.

GLEESON CJ:   By “an implied prohibition” you mean there is no room for the exercise of a Bunning v Cross discretion?

MR SHIRREFS:   No, it is inadmissible pursuant to the Act.

GLEESON CJ:   Where do you get that from?

MR SHIRREFS:   We get that from section 219F(3).

GLEESON CJ:   Where can we most conveniently see that?

MR SHIRREFS:   Most conveniently your Honours will see that in tab 6 of the book of authorities that the respondent has provided.  We tried to do it in a way that did not duplicate materials.

GLEESON CJ:   Which tab?

MR SHIRREFS:   Tab 5 in the white folder.

MS MORRISH:   Tab 6.

MR SHIRREFS:   Not in mine it is not.  The tab 6 I have is the Telecommunications (Interception) Act.  Tab 5 in mine is the Customs Act and I am dealing with the Customs Act.  It is either 5 or 6 in that case.  Section 219F of the Customs Act sets out those circumstances in which information obtained via a listening device may be disseminated or disclosed or given.  In section 219F(3) ‑ ‑ ‑

GLEESON CJ:   When you say it sets out the circumstances in which it may be disclosed, that is not quite accurate.  It is a prohibition on certain conduct.

MR SHIRREFS:   Yes, it is a prohibition on disclosure except in certain circumstances, and specifically in subsection (3) it provides that:

Without limiting the purposes for which a person may, in accordance with subsection (1), divulge information, a person may divulge or communicate information obtained by using a listening device for the purpose of narcotics inquiries that are being, or have been, made by officials of a Commonwealth law enforcement agency, for a purpose connected with . . . 

(b) the conduct of a relevant proceeding.

GLEESON CJ:   Just a moment.  Subsection (3) is a qualification on the prohibition in subsection (1).

MR SHIRREFS:   Yes.

GLEESON CJ:   Is it your submission that by implication, unless you can bring yourself within that qualification, there is no other way in which information of this kind can be used in evidence before a court?

MR SHIRREFS:   Essentially so.  The reference there to “information obtained” is a reference to information lawfully obtained by use of a lawful listening device obtained via a warrant lawfully issued.  The provision there is without limiting the other circumstances covered by 219F.

GLEESON CJ:   But that seems to attribute a very large purpose to the legislature of cutting across the well‑known discretions that can apply in circumstances where use is sought to be made in criminal proceedings of evidence that was obtained in some fashion which involved a contravention of a law.

MR SHIRREFS:   It is a construction, your Honour, that found support and was held to be the appropriate construction by Justice Mason, as he then was, and Justice Deane in Hilton v Wells.

GUMMOW J:   Yes, but they were dissenting.

MR SHIRREFS:   Yes, but in relation to that, your Honour, the decision of the majority in Hilton v Wells was obiter.  It was an obiter decision and it was an advisory opinion which was unnecessary for the resolution of the case.

GUMMOW J:   Advisory opinion?

MR SHIRREFS:   It is in the nature of an advisory opinion and it is made quite clear by their Honours at page 74 in expressing their view.  At page 74 – and that is to be found at tab 5 ‑ ‑ ‑

GUMMOW J:   What do you then say about Jones v Commonwealth?

MR SHIRREFS:   Pardon, your Honour?

GUMMOW J:   Do you say Jones v Commonwealth is another advisory opinion?

MR SHIRREFS:   Jones v Commonwealth was not in relation to this point.  Jones v Commonwealth was considering issues concerned with the characterisation of judges, as was Grollo v Palmer.  There were two issues that came before the Court in Hilton v Wells.  The substantive issue was the character of the judge as the issuing officer for a warrant under the Telecommunications (Interception) Act as it then was.

GUMMOW J:   Yes, I know; I remember it well.

MR SHIRREFS:   Yes, I am sure the Court has had opportunities to read it on numerous occasions.  The second question concerned whether or not within section 7 of that Act there was an implied prohibition on the admission of evidence.  That decision was unnecessary for the outcome of that case.  Their Honours at page 74 made that quite clear when they said:

We turn now to the second question, which is whether s 7 of the Act prohibits the admission into evidence, in proceedings for an offence of the description in par 7(6)(c) of the Act, of information obtained by an illegal interception of a communication ‑ ‑ ‑

GUMMOW J:   Look, dicta or ratio, it has been acted on for 15 years, as I understand it.

MR SHIRREFS:   It has never come back to this Court and has never been argued, that I can find, in any intermediate court.

GLEESON CJ:   What did you mean by this “advisory opinion” expression?  I am just looking at page 75 of 157 CLR.

MR SHIRREFS:   At page 74.

GLEESON CJ:   Where should I look on page 74?

MR SHIRREFS:   The paragraph commencing:

We turn now to the second question, which is whether s 7 of the Act prohibits the admission into evidence, in proceedings for an offence of the description in par 7(6)(c) of the Act, of information obtained by an illegal interception of a communication passing over a telecommunications system. Since we hold s 20 to be valid, this question can arise in the present case only if it is held that the warrants were wrongly issued, and that in consequence the interceptions were illegal. Those matters have not been resolved, but since the present question has been fully argued we express our views on it.

Their view was that the equivalent provisions under the Telecommunications Act, as it then was, because in subsection (6) there was no express reference of dealing with the question of the admissibility of evidence, that there was no implied prohibition.  On the contrary, Justice Mason, as he then was, and Justice Deane held that in their opinion, unless it was given that construction, the section served no useful purpose.  That is to be found ‑ ‑ ‑

GLEESON CJ:   When was the legislation enacted in its present form?

MR SHIRREFS:   The legislation under the Customs Act was enacted in 1979, as was the legislation under the T(I) Act, as it then was.  As a direct consequence of Hilton v Wells, in 1987 amendments were made to the Telecommunications (Interception) Act, firstly, to clarify the designation of judges as designated persons to issue warrants and, secondly, expressly amended section 7 to deem inadmissible illegally intercepted material.  I can provide to the Court three copies of the second reading speech with respect to that amendment.  In that second reading speech the Attorney‑General makes it abundantly clear on the second page, page 2308, of the photocopy that I have provided to the Court – this was on 30 April 1987 – in the left‑hand margin, last paragraph.  He points out:

The important matter of regulating the use and communication of intercepted information is at present dealt with in section 7 of the Act.  Extensive amendments of the present provisions are necessary as a result of the decision of the High Court of Australia in Hilton v Wells . . . to the effect that the present provisions relating to the use and communication of intercepted information do not cover illegally obtained information and do not make such information inadmissible in any court proceedings . . . 

For this reason, the Bill provides for a new Part VII to be inserted –

That part expressly prohibited the admission into evidence of illegally obtained material.

If I can take the Court to the following page that I have handed up, which is a continuation of the debate on 2 June, again in a passage from the Attorney‑General on page 3794 in the last paragraph, he says:

we will not have admitted into evidence illegally obtained material.  The reason for that is that if we have legislation which says that there has to be a proper format, that there has to be a warrant, it would be counter‑productive to use it if the evidence could be obtained in some other way.  It would be counter‑productive because we would still have to prosecute the person under the Telecommunications (Interception) Act for breaking that particular law even though, it may be argued, it might be of some significance in criminal detection.  We have to get the law right.

In the course of debate with respect to this amendment, no reference was made at all to the Customs Act to the provisions that we are dealing with here.  There was complete silence by those appearing for the government and those on the opposition benches, but what is abundantly clear is that Parliament intended that illegally obtained information not be admitted.  The contention of the minority, Justices Mason and Deane, in Hilton v Wells was to the effect that if the section that they were then considering, which deals with lawfully obtained information, was not held to impliedly prohibit the admission of unlawfully obtained information, the section is redundant.  They gave it that construction, which we say is the proper construction.  That is to be found at page 88 in the judgment of their Honours.

GUMMOW J:   When was Division 1A of Part XII of the Customs Act introduced?

MR SHIRREFS:   In 1979.  They both were introduced at the same time in the same year.  Because Parliament in introducing the amendment to the Telecommunications (Interception) Act in the way in which it did and amending it so that they expressly prohibited illegally obtained information, the fact that there is no mention made of the Customs Act, in my submission, does not resolve the question one way or the other.  It may have been an oversight; it may well have been that Parliament intended that it should be given that construction.

The point of contention here is that the majority in Hilton v Wells came to the conclusion of no implied prohibition because they said that section 7 did not deal with the admissibility of evidence.  In the Customs Act, the provisions we are here dealing with, although it in essence is a mirror image or essentially substantially similar to the provisions that they were considering in Hilton v Wells under the T(I) Act, as it then was, there is in addition to that section 219F(4) which specifically confers on a trial judge with respect to the admission of lawfully obtained material a discretion not to admit that material if the court comes to the conclusion that it would be unfair to an accused.  So in section 219F(4) there is an express power conferred on a court to reject lawfully obtained material if, in the balance on unfairness, it would be unfair to an accused.

GLEESON CJ:   Mr Shirrefs, can I take you back to Jones v Commonwealth for a moment, please.  I am looking at 71 ALR 497 at 498.  At the bottom of 497 and the top of 498 the majority refer to two things that they say were decided by Hilton v Wells.  Can I draw your attention to the second of those.  Then they say two paragraphs further down:

the plaintiff submits that the court should reconsider its decision in Hilton v Wells and contends that the minority judgment, which supports the plaintiff on ss 20 and 7, should now be accepted as correctly stating the law. The question therefore is whether the court should reconsider the correctness of its previous decision.

That covers the point that you want to argue, does it not?

MR SHIRREFS:   It covers in so far as section 7 is concerned but it does not cover in so far as the Customs Act, which is different in critical respects to section 7.

GLEESON CJ:   What is the critical difference?

MR SHIRREFS:   The inclusion in section 219F of subsection (4).  In Hilton v Wells the majority considered that section 7 did not deal at all with the question of the admission of evidence.  Justices Mason and Deane notwithstanding, held that unless it was given the implied prohibition, the section was redundant.  In section 219F(4) there is expressly conferred on a court a discretion with respect to the admission of evidence of lawfully obtained material if it would be unfair to an accused.  In our submission, if you look at subsection (3), which permits the circumstances in which lawfully obtained material can be given in evidence, and then in subsection (4) it then goes on to giving to the court an express power to reject lawfully obtained material if it is an unfair to an accused.

GLEESON CJ:   But subsection (4) is just a further qualification on subsection (3) which is, in turn, a qualification on subsection (1).

MR SHIRREFS:   It is not a qualification in that sense, your Honour.  It is an express conferral upon a judge of the statutory power to reject lawfully obtained evidence on the basis of unfairness.  It is not in the nature of a qualification.  The submission is that notwithstanding subsection (3) and, more importantly, subsection (4), unlawfully obtained material is prima facie admissible.  The court, of course, having its own inherent powers to reject lawfully and unlawfully obtained material on either grounds of unfairness or illegality in the sense of public policy considerations, then subsection (4) again serves no useful purpose with respect to the scheme embodied in 219F.

The point in relation to Jones, of course, was that at the time of Jones, which was handed down in June 1987, it was at a time when there was the amendment coming before the court that I have taken your Honours to where specific prohibition, express prohibition on unlawful material, was enacted with respect to section 7.  In the course of debate before the House at the time of the introduction of that amendment, reference was made to Jones which was still to be argued, notwithstanding this Bill went through and was ultimately passed.  So at the time that Jones was argued and handed down, the point of contention was to become otiose to this extent, that it had no application.

The effect now is, of course, that Hilton v Wells has no application at all to the Telecommunications (Interception) Act, sections 20 and 7 having been amended to deal with the issues raised therein. It has application with respect to the Customs Act where there are similar provisions but slightly different provisions which, in my submission, support the contention for which Justices Mason and Deane held to be the proper construction.  If this Court does not grant special leave, the effect would be in a practical sense the majority decision in Hilton v Wells will be a binding authority with respect to legislation under the Customs Act that this Court has not considered.  It has certainly not been considered by a Court comprising all seven Justices.

GLEESON CJ:   Thank you.

MR SHIRREFS:   If I can move on to my second point.

GLEESON CJ:   No, you have finished.  Yes, Ms Morrish.

MS MORRISH:   Your Honours, we submit respectfully, unless the Court wishes to reconsider the majority decision in Hilton v Wells, there is no special leave point because the two ‑ ‑ ‑

GLEESON CJ:   What do you say about the argument that because of the presence of subsection (4) the majority decision in Hilton v Wells does not apply?

MS MORRISH:   We submit that as a matter of construction, subsection (4) adds nothing to the argument because subsection (4), which relates back to the general provisions in 219F, is talking about lawfully obtained evidence.  We are both in furious agreement that the provisions only apply to lawfully obtained material, not unlawfully obtained material.  If anything, the existence of 219F(4), we submit, makes it clear, in case there was any doubt after the decision in Hilton v Wells, that even if the material is lawfully obtained, a trial judge still retains a common law discretion to refuse to admit the material if it is unfair to the accused to do so.

GLEESON CJ:   Your proposition is that subsection (4) is about lawfully obtained evidence, not unlawfully obtained evidence?

MS MORRISH:   Yes, correct.  Strange results would follow if 219F(4) were constructed the way our learned friend says, namely, there would be only one circumstance in which you could exclude lawfully obtained material, therefore abrogating all of the other common law rights that a court has to control its own proceedings to ensure that proceedings are fair, namely, as was recently reiterated in Swaffield and Pavic, the right of a court to ensure that if evidence is highly prejudicial and has a limited probative value, there is a discretion to exclude it.  If the construction contended for is right, that discretion goes out the window – the same with the remaining discretion in Bunning v Cross in relation to lawfully obtained material but improperly obtained material.

GUMMOW J:   What do you say about your opponent’s other point?

MS MORRISH:   In relation to the Bunning v Cross discretion as to whether it applies to ‑ ‑ ‑

GUMMOW J:   His other live ground of application.

GLEESON CJ:   The Bunning v Cross discretion.

MS MORRISH:   We say in the first place it cannot apply to an issuing judge and, secondly, we submit that ‑ ‑ ‑

GLEESON CJ:   I do not know what you mean by that.  The Bunning v Cross discretion cannot apply to an issuing judge?  The Bunning v Cross discretion applies to evidence, not to people.

MS MORRISH:   Yes, absolutely.  I submit that the conduct of an issuing judge is irrelevant to the exercise of the discretion in Bunning v Cross.  Firstly, there is no authority for the proposition that the conduct is to be taken into account but, more importantly, in relation to the particular case, even assuming that the judge’s conduct were to be taken into account, then it becomes a question of evidence to support the exercise of a discretion.  The applicant seeking such a discretion to be exercised carries the onus of proof.  There was no evidence at all before the court, although the issue was litigated and agitated before the trial judge, to infer that the judge’s state of mind was anything other than – that he was acting bona fide in dealing with the warrant that was before him.

It was conceded that there were no mala fides, so there is no evidence to suggest that he recklessly or deliberately or flagrantly breached the law, which is, of course, one of the significant factors in the balancing of the relevant factors in the Bunning v Cross discretion.  In other words, what the courts look at in the classic Bunning v Cross situation is whether or not the breach is deliberate or whether it is a mistake.  The Court of Appeal in looking at that question on page 89 of the application book in paragraph 95 said this at line 8:

There seems no suggestion that in obtaining the warrant the officers did not act honestly, whatever criticisms were made of the later investigation in the course of cross‑examination at the trial.

GLEESON CJ:   Thank you, Ms Morrish.  Yes, Mr Shirrefs.

MR SHIRREFS:   I can deal in my reply with the Bunning v Cross issues.  Your Honours, it is beyond doubt, in my submission, that the issuing officer here being a designated person was exercising executive power, not judicial power.  As far as the breadth of the Bunning v Cross discretion is concerned, in my submission, there is ample authority which is on principle that executive action can be considered in the balancing exercise when considering whether or not evidence should be excluded.  That was not in the balancing exercised by the court below considered with respect to the question of the application of the proviso.  Their focus was solely here on the conduct of the police officers.  With respect to the circumstances ‑ ‑ ‑

GLEESON CJ:   It may be possible to imagine – and I underline the word “imagine” – executive conduct on the part of a judge which might be of a kind that would require consideration, but here there was no suggestion, was there, other than that the judge was acting in complete good faith?

MR SHIRREFS:   We do not accept what was put by our learned friend to this extent.  The evidence before the court was quite clear in what it disclosed.  It disclosed, firstly, that the warrant that was issued was a general warrant which for two centuries the common law has refused to enforce.  It also disclosed that on the evidence that was available to the issuing officer, that no lawful warrant under this Act could ever have been issued.  That was a matter of considerable significance.  It also indicated that you are here dealing with not a search warrant; we are dealing with the types of warrants that this Court has referred to, been secretive in nature, practically unreviewable exercise of executive power.

It was in circumstances where the issuing officer was told that this warrant is sought for an imminent importation by federal police of a large amount of heroin into Australia so that they could use the listening device in furtherance of that in circumstances where he, being the designated person, who happened to be a judge, in our submission, had a duty to prevent the commission of a serious crime and certainly should not acquiesce or be party to its furtherance.  That information was all before the court below.  In Ridgeway this Court held as a significant matter in the balancing exercise the extent to which the illegal activity was condoned by higher executive authority.  We had that here in relation to this executive action by this issuing officer.

So you had a general warrant that the Act would never allow, you had circumstances where no warrant could ever lawfully have issued for any listening device in relation to this operation under federal legislation and State legislation was not applicable, nor could it be used.  You had circumstances where the Parliament wants to be followed according to the strict terms and, as this Court said in George v Rockett should be insisted upon, was not complied with.  You had the information as to its use for furtherance of a serious grave criminality in the way in which this Court in Ridgeway said the conduct of the police was in that case.  This warrant was sought prior to that importation and in furtherance of it.

All of those circumstances were important matters that should have been considered but were not considered in the exercise of the discretion.  The point being raised here is that by denying consideration of those points and applying the proviso, this applicant has been denied a proper process because these considerations, it could not said, if properly taken into account, would inevitably result in the admission of this evidence.  That is the point.  These were matters that should have been considered by the court below, the appeal allowed so that a trial judge could consider these issues.  He was denied that opportunity by the court focusing only on the conduct of the police and nowhere else, no other part of the executive action

which applied here, and saying no judge in Victoria would ever reject this evidence.

If all the matters raised that we have raised before this Court and should have been considered in the balance are to be considered, that conclusion is not inevitable, and that is the point that is raised by this application.  By applying the proviso in the way that it was applied, it denied to the applicant the opportunity for a trial judge to properly consider in the balance all matters relevant to the exercise of the discretion which went beyond merely law enforcement officers.  I think the error lies perhaps in the way in which their Honours dealt with the warrant.  They referred to it as a judicially‑endorsed warrant and the error may well lie in the incorrect assumption of the court that the judge here exercised judicial power when clearly it was executive power being an administrative action at a federal level.

These were critical matters that needed to be considered that were placed before the court in argument but were not deal with in their judgment and were not weighed in the balance.  For the exercise of the proviso to operate in the way it did here, it has denied to the applicant an opportunity that he was clearly entitled to, to have this matter properly considered.

GLEESON CJ:   Thank you.

In this matter the Court considers that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 11.45 AM THE MATTER WAS CONCLUDED