NSW Police Force v McKellar, Nerida; NSW Police Force v Knight, Mark

[2015] NSWLC 8

Local Court

New South Wales

Medium Neutral Citation:	NSW Police Force v McKellar, Nerida; NSW Police Force v Knight, Mark [2015] NSWLC 8
Decision date:	01 June 2015
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	Application granted.
Catchwords:	CRIMINAL LAW - public interest immunity claim - surveillance device warrant - use of assumed identity - purpose of installation - methods of installation - illegally obtained evidence - improperly obtained evidence - procedural fairness - interests of justice - confidential affidavit - legitimate forensic purpose
Legislation Cited:	Evidence Act 1995 (NSW), ss 130, 138 Surveillance Devices Act 2007 (NSW), ss 21, 23, 42
Cases Cited:	Attorney General for NSW v Stuart (1994) 34 NSWLR 667 R v Saleam [1999] NSWCCA 86 Sankey v Whitlam (1978) 142 CLR 1 Young v Quin & Ors (1985) 59 ALR 225
Category:	Procedural and other rulings
Parties:	NSW Police Force (Applicant) Nerida McKellar (Respondent) Mark Knight (Respondent)
Representation:	Crown Solicitor's Office (Applicant) Mr J C Thompson (Counsel for the Respondents)
File Number(s):	2012/314330; 2012/345059
Publication restriction:	s 42(5), Surveillance Devices Act 2007 (NSW)

​J​​UDGMENT

1. On 14 August 2012, a surveillance device warrant for premises at 33 Tudor Street, Bourke, was issued. On 16 August 2012, police installed a listening device and an optical device in those premises.

2. The respondents were subsequently charged with serious drug-related offences to which they pleaded not guilty.  For reasons not relevant to the present application, the hearing of those charges is yet to take place.

3. Counsel for the respondents foreshadowed an intention to challenge the admissibility of the surveillance device product. The Commissioner of Police made an application for public interest immunity pursuant to s 130 of the Evidence Act 1995 (NSW) ("Evidence Act") to prevent two police officers from having to answer questions in cross-examination which could reasonably be expected to reveal details of surveillance device technology, or methods of installation.

4. Upon the Court being closed, the application proceeded and the following items were tendered:

1. Statement of Leading Senior Constable T Tenkate (Ex 1)

2. Statement of Senior Sergeant M Hayes (Ex 2)

3. Copy of Surveillance Device Warrant SD12/0502 (Ex 3)

4. Open affidavit of Assistant Commissioner M Lanyon (Ex 4)

5. Confidential Affidavit of Assistant Commissioner M Lanyon (Ex 5) [over objection]

5. The applicant submitted that there is a three stage process in relation to a claim of public interest immunity.  The first step is for the respondents to establish a legitimate forensic purpose, and that it is “on the cards” that cross-examination would materially assist their case. This step is in fact the test from R v Saleam [1999] NSWCCA 86 at [11] which dealt with subpoenas rather than oral evidence, however has application in this type of matter.

6. It was said that if a legitimate forensic purpose is demonstrated, the next step is to establish a claim of immunity.  I note however that a claim of public interest immunity is not limited to the Crown and could be made for example by the Court: see Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 690 per Smart J; Young v Quin & Ors (1985) 59 ALR 225 at 227 per Bowen CJ; Sankey v Whitlam (1978) 142 CLR 1 at [44] per Gibbs ACJ. Accordingly, a court might step in without waiting for a legitimate forensic purpose being demonstrated so as to prevent disclosure. So much is also evident from ss 130(2) and (3) of the Evidence Act.

7. Finally, the Court must balance the public interest in withholding access to documents or information, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence: Sankey v Whitlam (supra) at [37] - [50]. I note that the remarks in Sankey v Whitlam (supra) were confined to the application of principles to documentary evidence, though they “apply in relation to oral as well as to documentary evidence”: at [36]. Section 130(1) of the Evidence Act sets out the relevant test [see below].

8. The statements of police (Exs 1 and 2) did not provide any detail of what happened between the time of attending the premises and the commencement of installation of the surveillance device. Cross-examination was sought to obtain that detail. It was submitted that there was subterfuge by police in a manner not contemplated, nor allowed, by legislation, giving rise to a challenge to the admissibility of evidence on grounds of illegality or impropriety under s 138 of the Evidence Act.

Legislation

Surveillance Devices Act 2007 (NSW)

9. Section 21 of the Surveillance Devices Act 2007 (NSW) ("the Act") prescribes the following:

"21   What a surveillance device warrant authorises

(1)  A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following:

(a)  the use of a surveillance device on or in specified premises or a vehicle,

(b)  the use of a surveillance device in or on a specified object or class of object,

(c)  the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown,

(d)  the use of a surveillance device on or about the body of a specified person.

(2)  A surveillance device warrant authorises:(a)  for a warrant of a kind referred to in subsection (1) (a):

(i)  the installation, use and maintenance of a surveillance device of the kind specified in the warrant on or in the specified premises or vehicle, and

(ii)  the entry, by force if necessary, onto or into the premises or vehicle, or other specified premises adjoining or providing access to the premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and

(b)  for a warrant of a kind referred to in subsection (1) (b):

(i)  the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object or an object of the specified class, and

(ii)  the entry, by force if necessary, onto or into any premises or vehicle where the object, or an object of the specified class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and

(c)  for a warrant of a kind referred to in subsection (1) (c):

(i)  the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on or in premises or a vehicle where the person is reasonably believed to be or likely to be in the future, and

(ii)  the entry, by force if necessary, onto or into the premises or vehicle referred to in subparagraph (i), or other premises adjoining or providing access to those premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and

(d)  for a warrant of a kind referred to in subsection (1) (d)—the use of the surveillance device of the kind specified in the warrant on or about the body of the person specified in the warrant.

(3)  Each warrant also authorises:

(a)  the retrieval of the surveillance device, and

(b)  the installation, use, maintenance and retrieval of any enhancement equipment in relation to the surveillance device, and

(c)  the use of an assumed identity for the purpose of the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment, and

(d)  the disconnection of, or otherwise making inoperative, any security system for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment, and

(e)  the temporary removal of an object or vehicle from premises for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object or vehicle to the premises, and

(f)  the breaking open of anything for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment, and

(g)  the connection of the device or enhancement equipment to an electricity supply system and the use of electricity from that system to operate the surveillance device or enhancement equipment, and

(h)  the connection of the device or equipment to a telecommunications system or network and the use of that system or network in connection with the operation of the surveillance device or enhancement equipment, and

(i)  the provision of assistance or technical expertise to the law enforcement officer named in the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment under the warrant.

...

(5)  A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant.

..."

10. Section 42 prescribes the following:

"42   Protection of surveillance device technologies and methods

(1)  In any proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices.

(2)  If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, he or she may order that the person who has the information not be required to disclose it in the proceeding.

(3)  In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information:

(a)  is necessary for the fair trial of the defendant or to ensure procedural fairness in any disciplinary or civil proceeding, or

(b)  is in the public interest.

(4)  Subsection (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information.

(5)  If the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices, the person must make any orders prohibiting or restricting publication of the information that he or she considers necessary to ensure that those details are not revealed.

(6)  Subsection (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.

(7)  In this section:

proceeding includes:

(a)  a proceeding before a court, tribunal, Royal Commission or special commission of inquiry, or

(b)  a proceeding before any other body or authority having power by law to require the production of documents or the answering of questions."

Evidence Act

11. Section 130 of the Evidence Act prescribes the following:

"130   Exclusion of evidence of matters of state

(1)  If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2)  The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3)  In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4)  Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

(a)  prejudice the security, defence or international relations of Australia, or

(b)  damage relations between the Commonwealth and a State or between 2 or more States, or

(c)  prejudice the prevention, investigation or prosecution of an offence, or

(d)  prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or

(e)  disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or

(f)  prejudice the proper functioning of the government of the Commonwealth or a State.

(5)  Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a)  the importance of the information or the document in the proceeding,

(b)  if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c)  the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d)  the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e)  whether the substance of the information or document has already been published,

(f)  if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.

(6)  A reference in this section to a State includes a reference to a Territory."

12. Section 138 prescribes the following:

"138   Exclusion of improperly or illegally obtained evidence

(1)  Evidence that was obtained:

(a)  improperly or in contravention of an Australian law, or

(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)  Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)  the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth."

13. Mr Thompson properly indicated that no challenge was made to the validity of the surveillance device warrant. He noted that s 21(2) of the Act contemplates the use of force if necessary for the purpose of the installation of a surveillance device. Further, that s 21(3)(c) authorises specific actions, including the use of an assumed identity for the purpose of the installation of a surveillance device, though it does not allow for conduct amounting to subterfuge. He submitted that the Act must be read narrowly as it is a draconian piece of legislation giving significant powers to police and the ability to rely upon confidential affidavit material in support of public interest immunity arguments, which placed the defence (here, the respondents) at a significant disadvantage.

14. Mr Thompson submitted that, in any event, the purpose of cross-examination was not aimed at s 42(1) of the Act as it was not at all concerned with “methods of installation”. It was said that if s 42 was not enlivened, then the application must necessarily fail. It was further submitted that s 42 was concerned with technology rather than the methodology. The heading above s 42 is instructive in answering the submission that s 42 was concerned with disclosure of information in relation to technology – “Protection of surveillance device technologies and methods”. [Emphasis added].

15. It is necessary to examine whether the method used by police to enter premises and what occurred inside the premises formed part of the “methods of installation” or whether installation had a restricted meaning limited to the installation of the physical device.

16. Section 21(2) of the Act authorizes the installation of the device. Section 21(3)(c) authorizes the “use of an assumed identity for the purpose of the installation…”. "Purpose of the installation" is not mentioned in s 42. Given its ordinary meaning, purpose in this context means "an intended or desired result". It would be absurd to interpret the “use of an assumed identity” as being limited to, by way of hypothetical example, dressing in a particular way or adopting an identity that might assist in gaining entry to premises but having no ability to role play consistent with the assumed identity. The vast range of powers set out in s 23(3) make it abundantly clear that police can act covertly or use an assumed identity – i.e. to conceal the fact of intended or actual installation. The word “use” should be given a broad interpretation.

17. "Method" means a procedure, technique or way of doing something. The methods of installation should be read as including the methods used to gain entry to premises, the use of assumed identity if applicable, and all relevant steps taken for the purpose of, and in the process of, installation. The method to be used may differ depending on, for example, the degree of difficulty in installing the device without being detected. The steps taken by police in the installation of a surveillance device, or the maintenance, retrieval of, or enhancement of equipment are part of the methodology that police wish to protect – they do so by raising objection under s 42(1) of the Act. Sections 21(3), 21(5) and 42(1) demonstrate the legislative intent to give police broad powers of installation once a warrant exists, with a strong degree of protection from their methods becoming publicly known.

18. The applicant relies upon a number of cases dealing with public interest immunity. In Young v Quin & Ors (supra) at 236, Beaumont J cited a passage from D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 232 in which effective policing was listed as a facet of a larger public interest. Beaumont J went on to say:

“the answers might reveal police methods of operation to the prejudice both of future activities of the Australian Federal Police and of relationship with overseas police forces….(and there is) concern that the revelation of information regarding surveillance of drug offenders would be likely to assist those in the drug trade to mount counter surveillance”.

19. I have had regard to the confidential affidavit (Ex 5). I am therefore aware of certain police methodologies used for the installation of surveillance devices, including in the present case. I consider that the disclosure of information relating to surveillance device technology or methods of installation is not in the public interest and that cross-examination of the two officers for the purpose stated by Mr Thompson would result in such disclosure [see s 42(3) of the Act]. Such disclosure would undoubtedly prejudice effective policing strategies in the future.

20. However, s 42(3) of the Act also requires that I take into account whether disclosure of the information is necessary for the fair trial of the defendant (here, the respondents). The prosecution are often in a poor position to anticipate the case to be led by the defence. Mr Thompson was proposing to call witnesses who were said to be at the house at the time of the installation. Presumably, such evidence might establish there was a basis to show it was “on the cards” that cross-examination of the officers would materially assist the defence case.

21. Notwithstanding my findings in relation to the interpretation of the legislation, in the interests of justice and for reasons of procedural fairness, I allowed Mr Thompson to call his witnesses – one nearly 15 and the other 21 years of age.  I note that Mr Hill for the applicant anticipated that such evidence would be given on the voir dire and did not oppose it. 

22. Both witnesses for the respondent gave evidence. It is not appropriate to outline their evidence in this judgment, suffice to say that it added little, if anything, to the matters to be determined on the application. Nothing in their evidence gave rise to illegality or impropriety of the police officers. There is no basis in my view for an argument under s 138 of the Evidence Act. I am satisfied that the disclosure through cross-examination of the police officers is not necessary for the fair trial of the respondents pursuant to s 42(3) of the Act. I am informed by submissions that neither respondent was the lawful occupier of the premises, nor were they aware of the surveillance devices. The evidence of the witnesses called does not demonstrate any wrongdoing by police or any actions contrary to authorisations under the surveillance device warrant.

23. The legitimate forensic purpose of cross-examination on behalf of the respondents was two-fold: firstly, that s 42 of the Act was not enlivened as the proposed cross-examination did not touch upon methods of installation; and, secondly, that the subterfuge by police gave rise to considerations under s 138 of the Evidence Act. For the reasons given above, I am not satisfied that either argument is made out.

24. Having had regard to all of s 130 of the Evidence Act, I am satisfied under subsection (1) that the public interest in preserving secrecy or confidentiality in relation to the information outweighs the public interest in admitting into evidence information that relates to a matter of state.

Orders

25. The application is granted. Officers Hayes and Tenkate are not required to disclose information of surveillance device technology or methods of installation: s 42(2) of the Act.

26. The publication of information given in these proceedings which could reasonably be expected to reveal details of methods of installation, use of or retrieval of surveillance devices, is prohibited: s 42(5) of the Act.

27. Information as to surveillance device technology, or methods of installation, use or retrieval of surveillance devices is not to be adduced as evidence except as is required for the proper conduct of the proceedings: s 130(1) of the Evidence Act.

28. The confidential affidavit of Assistant Commissioner Lanyon is returned to the Crown Solicitor.

P Stewart
Magistrate

Bourke Local Court

1 June 2015

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Decision last updated: 08 July 2015