Criminal law—Warrants authorising use of listening devices issued under s 4A Listening Devices Act 1969 (Vic)—Whether warrants amenable to collateral review—Whether a warrant issued by a judge of a superior court must disclose jurisdiction on its face—Whether partial disclosure of jurisdiction may be used as evidence that the court has failed to take into account required considerations—Whether partial disclosure renders warrant invalid—Validity of O 7 r 7.05 Criminal Appeals and Procedures Rules 1988 (Vic).
Orders
ORDER
Appeal dismissed.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Decision
TOOHEY J
The appellant was charged on three counts under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He was convicted after trial on count 1, trafficking in a drug of dependence, methylamphetamine. He had earlier pleaded guilty to count 2, involving cultivation of a drug of dependence, Cannabis L. On count 3, involving possession of Cannabis L, a verdict of acquittal was entered.
The trial
The evidence against the appellant on the count on which he was convicted was obtained largely through listening devices installed at premises which the appellant frequented. There were some 50 tapes of recorded conversations. In this appeal the appellant challenged the reception of that evidence. He did so on the ground that the warrants authorising the use of the listening devices were invalid. There were two warrants issued by judges of the Supreme Court of Victoria, one by Marks J on 17 January 1992 and the other by Coldrey J on 6 February 1992.
At the trial, before the jury was empanelled, counsel for the appellant foreshadowed an attack on the admissibility of any evidence obtained by means of the listening devices. The trial judge doubted that he had jurisdiction, during the trial, to entertain a collateral attack on the validity of warrants authorised by the Supreme Court of Victoria. Counsel for the appellant declined an offer by the trial judge to consider an adjournment of the trial so that an application might be made to the Supreme Court for a ruling on the validity of the warrants. The trial judge then held that he had no jurisdiction to determine a collateral attack, the jury was empanelled and the trial proceeded.
Because of the course the trial took, no question arose as to the exercise of any discretion by the trial judge to exclude the recorded material on the ground that it had been procured illegally[1]. If the appellant succeeds in his argument before this Court and there is a new trial, the question of the exercise of the discretion will arise.
The Listening Devices Act
The scheme of the Listening Devices Act 1969 (Vic) ("the Act") is to make it a criminal offence for a person to use a listening device…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ousley v The Queen [1997] HCA 49
Case
[1997] HCA 49
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria concerning the validity of warrants issued under s 4A of the *Listening Devices Act 1969* (Vic). The appellant, Ousley, sought to challenge the admissibility of evidence obtained pursuant to these warrants, arguing they were invalid.
The central legal issues before the High Court were whether warrants issued by a judge of a superior court under the Act were amenable to collateral review, whether such warrants must disclose jurisdiction on their face, and if a partial disclosure of jurisdiction could be used as evidence that the issuing judge failed to take into account required considerations, thereby rendering the warrant invalid. The Court also considered the validity of rule 7.05 of the *Criminal Appeals and Procedures Rules 1988* (Vic).
The High Court held that warrants issued under s 4A of the *Listening Devices Act 1969* (Vic) by a judge of a superior court are not amenable to collateral review. The Court reasoned that the Act confers power on judges of superior courts to issue warrants, and in the absence of any statutory provision to the contrary, the exercise of such a power by a judge of a superior court is presumed to be valid. The Court further held that a warrant issued by a judge of a superior court does not need to disclose jurisdiction on its face, and a partial disclosure of jurisdiction does not render the warrant invalid or provide evidence of a failure to consider required matters. The Court found rule 7.05 of the *Criminal Appeals and Procedures Rules 1988* (Vic) to be valid.