Punch v Council of the NSW Bar Association
[2007] NSWCA 93
•26 April 2007
NEW SOUTH WALES COURT OF APPEAL
CITATION: PUNCH v COUNCIL OF THE NSW BAR ASSOCIATION [2007] NSWCA 93
FILE NUMBER(S):
40439/2006
HEARING DATE(S): 26 March 2007
JUDGMENT DATE: 26 April 2007
PARTIES:
John Patrick PUNCH
Council of New South Wales Bar Association
JUDGMENT OF: Mason P Tobias JA Bell J
LOWER COURT JURISDICTION: Administrative Decision Tribunal
LOWER COURT FILE NUMBER(S): ADT 022041/2004
LOWER COURT JUDICIAL OFFICER: Karpin ADCJ
COUNSEL:
Claimant: D Fagan SC/ P Bolster
Opponent: S Odgers SC/ P Brereton
SOLICITORS:
Claimant: Verekers
Opponent: Hicksons
CATCHWORDS:
APPEAL AND NEW TRIAL – General principles – right of appeal – where appeal lies – from interlocutory decision – leave to appeal – whether appealable decision – where no formal order made – appeal from decision on admissibility of evidence in disciplinary proceedings in the Administrative Appeals Tribunal – doubt expressed on whether appeal lies
EVIDENCE – Admissibility – general – evidence unlawfully or irregularly obtained –pursuant to warrant – whether obtained inadvertently or unexpectedly – whether it follows that information is obtained inadvertently or unexpectedly when it is obtained while investigating an unrelated offence – ss 12, 13, 14, Listening Devices Act 1984
STATUTES – Acts of parliament – interpretation – permissive provision – expressio unius est exclusio alterius – where statute permits use of evidence in criminal proceedings but is silent on prohibiting use in civil proceedings – s 14, Listening Devices Act 1984
LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Legal Profession Act 1987
Legal Profession Act 2004
Listening Devices Act 1984 (NSW)
Supreme Court Act 1970
CASES CITED:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Bunning v Cross (1978) 141 CLR 54.
Director-General of Social Services v Chaney (1980) 47 FLR 80
Federal Commissioner of Taxation v Rowe (1997) 187 CLR 266
Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68
New South Wales Bar Association v Punch [2006] NSWADT 191
R v Haddad & Treglia [2000] NSWCCA 351
R v Ireland (1970) 126 CLR 321
Western Australia v The Commonwealth (1975) 134 CLR 201
DECISION:
Leave to appeal refused and summons dismissed with costs
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40439/2006
ADT 022041/2004MASON P
TOBIAS JA
BELL JThursday 26 April 2007
John Patrick PUNCH v COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION
In 1994 the police were investigating the murder of Andre Rahme. Two persons were charged with the murder and two others, Haddad and Treglia, were suspected of being involved. Haddad and Treglia had been arrested and charged with respect to an unrelated armed robbery. They were in custody and remanded to appear in court on 14 December 1994.
On 13 December 1994 a Warrant under the Listening Devices Act 1984 was granted by the Supreme Court. The Warrant specified murder as the proscribed offence to which it related and authorised the use of a listening device in the cell of Haddad and Treglia at Bankstown Police Station.
A report on the use of the Warrant was prepared pursuant to s 19 of the Listening Devices Act 1984. The report stated that, in addition to the private conversations between Haddad and Treglia, a conversation between Haddad, Treglia and the claimant was also recorded. The recorded conversation involving the claimant did not relate to the murder investigation.
Haddad and Treglia were tried in the District Court in mid-1995 on the armed robbery charges, were represented by the claimant and were acquitted. Subsequently the police became aware of the earlier intercepted conversation. Both accused were then charged with perverting the course of justice and perjury.
The opponent commenced disciplinary proceedings against the claimant. It was alleged that while he appeared as barrister for Haddad and Treglia, the claimant adduced evidence which he knew to be untrue. The informant sought to tender in the Tribunal evidence of the intercepted conversation. The Tribunal made a preliminary decision that s 14 of the Listening Devices Act 1984 did not prohibit the use of the transcript of the intercepted conversation in the disciplinary proceedings.
The claimant sought leave to appeal from the decision of the Tribunal. The claimant submitted that since the proposed evidence concerned a private conversation that inadvertently and unexpectedly came to the knowledge of the person to be called to give evidence, s 14 of the Listening Devices Act 1984 implicitly prohibited the giving of such evidence in civil proceedings. The opponent did not dispute that the evidence was obtained inadvertently or unexpectedly. The opponent did dispute that s 14 implicitly prohibited the giving of such evidence in civil proceedings.
HELD:
(Per Mason P, Tobias JA and Bell J agreeing) Section 14 of the Listening Devices Act 1984 does not implicitly prohibit the giving of the evidence in civil proceedings (at [45]). A permission to do something in criminal proceedings is not a prohibition on doing it in civil proceedings (at [47]).
Obiter
Per Mason P (Bell J agreeing, Tobias JA not expressing an opinion): It does not follow that evidence disclosing information about an offence derived from the use of a listening device installed for the investigating a different offence is necessarily obtained “inadvertently or unexpectedly”. More may need to be shown than that the proposed evidence discloses an offence other than that for which the warrant is granted (at [35]-[36]).
ORDERS: Leave to appeal refused and summons dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40439/2006
ADT 022041/2004MASON P
TOBIAS JA
BELL JThursday 26 April 2007
John Patrick PUNCH v COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION
JUDGMENT
MASON P: By Information filed on 24 December 2004 the opponent sought removal of the claimant’s name from the Roll of Legal Practitioners on the ground of professional misconduct. It is alleged that in June 1995, whilst appearing as a barrister for defendants in criminal proceedings in the District Court, the claimant adduced evidence which he knew to be untrue.
The complaint is to be determined under the Legal Profession Act 1987 (LP Act) as it stood at the time the proceedings were instituted (see Legal Profession Act 2004, Schedule 9, cl 15). The Administrative Decisions Tribunal (the Tribunal) is required to conduct a hearing into each allegation particularised in the Information (LP Act, s167(2)). The Tribunal is to observe the rules of law governing the admission of evidence (s168(1)). The Tribunal’s powers to make various orders if satisfied that the practitioner is guilty of professional misconduct are set out in s171C.
In the instant case the Tribunal was constituted by a judge of the District Court sitting as a Deputy President of the Tribunal (Acting Judge Karpin). In that circumstance, the appeal from an order or other decision made by the Tribunal is brought to this Court (LP Act, s171F(2); Supreme Court Act 1970, s48(1)(a)(viii)). The appeal may be made on any question of law, although (with the leave of this Court) may extend to a review of the merits of the order or decision concerned (LP Act, s171F(3)).
The claimant seeks leave to appeal from a decision on a preliminary matter given on 22 June 2006 (New South Wales Bar Association v Punch [2006] NSWADT 191). In her reasons, the learned Deputy President records (at [3]) that the parties agreed that there was an interlocutory issue fundamental to the ability of the informant to make out the complaint. 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.
The judge answered the question posed on the interlocutory application: No.
May and should leave be granted?
The opponent did not resist the grant of leave to appeal. That, of course, would not arm this Court with jurisdiction if we lacked it. Nor would it bind the Court to grant leave if we thought the case inappropriate or doomed to fail.
There are significant inadequately explored issues both as to jurisdiction and as to the appropriateness of leave in the particular case.
As to jurisdiction, there is a question whether the determination was itself a “decision”. The word has an indeterminate meaning that may, in context, extend to a “determination on any question of substance or procedure” (see Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335).
The Administrative Decisions Tribunal Act 1997 contemplates the making of interlocutory decisions (eg s113(2A). See also Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 at [23]). But no formal order ensued in the present case.
The Tribunal is not given express power to state a separate question (if that is what happened). The power to determine the Tribunal’s own procedure (Administrative Decisions Tribunal Act 1997, s73(1)) permits evidentiary issues to be addressed in the manner that occurred, but it does not necessarily follow that the outcome is an appealable “decision” within the scope of s171F of the LP Act.
As to the appropriateness of leave, the matter comes to this Court as a challenge to the admissibility of particular evidence. Yet neither party put that evidence before the Court nor addressed its content.
We were informed that it is common ground that the evidence falls within s14(1) of the Listening Devices Act 1984 (LD Act). I indicate below why I have reservations about that matter. To say the least, there are unexplored legal and factual issues touching the engagement of that provision. They include the question as to the identity of the person or persons who will be called to adduce the intercepted evidence and the state of his, her or their mind(s) when the intercepted private conversation came to their knowledge (cf LD Act, s14(1)).
There is also concern about the appropriateness of intervention at this stage of the proceedings to allow appellate review of what at its highest is an interlocutory ruling favourable to the admissibility of certain evidence.
In the upshot, it is unnecessary to resolve these questions and unwise to do so given that they were not fully debated before us. Leave to appeal should however be refused because the determination, whatever its status and whether or not appealable, was correct, for reasons that follow.
Facts
In 1994 the police were investigating the murder of Andre Rahme on 7 November 1994. Two men were charged with the murder and remanded in custody. Two other persons were also suspected of involvement, Tony Haddad and Giovanni Treglia. Haddad and Treglia had been arrested and charged with respect to an unrelated armed robbery committed at Roselands on 18 November 1994. They were in custody, remanded to appear at Bankstown Local Court on 14 December 1994.
On 13 December 1994 a Warrant under the LD Act was granted by the Supreme Court to Detective Senior Constable Gordon. The Warrant specified murder as the prescribed offence in respect of which it was granted. It authorised Detective Senior Constable Gordon and named police officers on his behalf to use a listening device:
by which to record or listen to the private conversations of Tony HADDAD and Giovanni TREGLIA in Cell No. 1 of the Cell Complex of the Bankstown Police Station situated at 18-20 Featherstone Street, Bankstown.
The Warrant fixed the period 5.30pm on 13 December 1994 until 5.30pm on 22 December 1994 as the period during which it was to be in force. It also contained standard provisions as to the installation and retrieval of the listening device and other matters.
The report subsequently issued pursuant to s19 of the LD Act discloses that a listening device was used pursuant to the Warrant. The private conversations of Haddad and Treglia were listened to and recorded in cell 1 at the police station. The report further states:
Also recorded was the conversation between [Haddad and Treglia] and John PUNCH [the claimant].
It is common ground that the claimant’s conversation with the men proposed to be tendered in the Tribunal does not relate to the murder investigation. Nor does any question of client legal privilege arise in the proceedings in this Court.
The intercepted conversation involving the claimant is, or at least forms part of, the very material considered by the Court of Criminal Appeal in the following circumstances.
In mid-1995 Haddad and Treglia were tried in the District Court on the armed robbery charges. They were represented by the claimant. They gave evidence of alibi and were acquitted. Subsequently, police involved in the armed robbery prosecution became aware of the intercepted conversation in the police station cell in December 1994. This led to both men being charged with perverting the course of justice and perjury. When the perjury charges came for trial before Luland DCJ in October 1999, the judge by way of interlocutory ruling held the material obtained through the listening device was excluded under s138 of the Evidence Act 1995. On appeal pursuant to s5F(2) of the Criminal Appeal Act 1912, the Court of Criminal Appeal overturned that ruling, holding that the material in the listening device tapes was admissible against Haddad and Treglia on their prosecution for perjury (R v Haddad & Treglia [2000] NSWCCA 351).
In Haddad & Treglia it was common ground that there had been no contravention of s5(1) of the LD Act. The points that were run and lost in the Court of Criminal Appeal, related to compliance with the reporting requirement in s19 and the destruction of irrelevant records requirement in s22. No such issues are raised in the present case.
The Listening Devices Act
Part 2 of the LD Act (ss5-11) creates various offences relating to listening devices. The key provision, s5, states:
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) the use of a listening device pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth,
(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
(e) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the police force in connection with the commission of an offence by a person suspected of having committed the offence.(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and:
(i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
(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.
Part 4 (ss15-21) provides for the issue of warrants authorising the use of listening devices and related matters. The central provision is s16(1) which states:
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.
….
(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 …
The provisions I have set out show that the use of a listening device pursuant to a warrant requires the applicant to suspect or believe particular information in relation to an identified “prescribed offence”; and to stipulate that offence in the proposed warrant (see also Haddad & Treglia at [59]-[60]).
But it does not follow that intercepted information relevant to other offences is rendered inadmissible by implication. In Haddad& Treglia, Spigelman CJ (with whom Newman J and Greg James J agreed) said (at [65]-[67]):
65 In the course of her reasons [in R v Karageorge (1998) 103 A Crim R 157] Simpson J referred to the structure of the legislative scheme of the Listening Devices Act and concluded that it did not prevent the use of evidence obtained for the purpose other than that which actuated the original application. Her Honour said at 181:
“What s13 does is to render inadmissible evidence obtained by the use of listening device in contravention of s5. It does not render inadmissible evidence obtained by the use of a listening device that is authorised by a warrant validly obtained and used under the Australian Federal Police Act, even if the information or evidence 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 than 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 s13. A simple and obvious example will serve to illustrate the point. If an AFP officer, exercising the rights conferred by a warrant validly issued under the Australian Federal Police Act, for the purpose of obtaining evidence in relation to, for example, a narcotics offence, and properly used for that purpose, incidentally hears an admission of murder, s13 does not preclude the use of that evidence in relation to the murder charge, notwithstanding that that was not the purpose for which, or the suspected offence in relation to which, the warrant was issued. The underlying question is directed to the propriety of the use of the listening device, and not to any collateral benefit or advantage that may accrue by reason of the use of the listening device.”
66 I agree with her Honour’s approach. …
67 In an analogous area, the common law has long accepted that a police officer executing a warrant may seize goods and evidence reasonably believed to relate to a criminal offence, even though the offence is not that for which the warrant was granted. (Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 313; Ghani v Jones [1970] 1 QB 693 at 706; G.H. Photography Pty Ltd v McGarrigle [1972] 2 NSWLR 635 at 645; Malone v Metropolitan Police Commissioner [1980] 1 QB 49 at 58; Inland Revenue Commissioner v Rossminster Ltd [1980] AC 952 at 1010; Reynolds v Metropolitan Police Commissioner [1985] QB 881 at 896; R v Applebee (1995) 79 A Crim R 554 at 556; Cowan v Condon [2000] 1 WLR 254 at 261-262).
Part 3 (ss12-14) of the LD Act deals with admissibility of evidence and provides:
12 Interpretation
In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation.
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.
(3) In determining whether to admit evidence as referred to in subsection (2) (d), the court shall:
(a) be guided by the public interest, including where relevant the public interest in:
(i) upholding the law,
(ii) protecting people from illegal or unfair treatment, and
(iii) punishing those guilty of offences, and(b) have regard to all relevant matters, including:
(i) the seriousness of the offence in relation to which the evidence is sought to be admitted, and
(ii) the nature of the contravention of section 5 concerned.(4) The court before which any proceedings referred to in subsection (2) (c) or (d) are brought may, at any stage of the proceedings and from time to time, make an order forbidding publication of any evidence, or of any report of, or report of the substance, meaning or purport of, any evidence referred to in subsection (2) (c) or (d).
(5) A person shall not contravene an order made under subsection (4).
Maximum penalty (subsection (5)): 20 penalty units or imprisonment for a term of 12 months, or both.
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.The LD Act preceded the Evidence Act 1995 and was thus enacted when the common law principles governing the admissibility of evidence unlawfully, improperly or unfairly obtained was expounded in cases such as R v Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54.A hallmark of that jurisprudence was a judicial discretion to reject such evidence by reference to broadly expressed criteria. Sections 137 and 138 of the Evidence Act altered the common law, but in terms that left avenues open for contestable decisions as to the admission and rejection of evidence. Part 3 of the LD Act addressed the situation by prescribing a more sharply defined regime governing the inadmissibility of evidence of private conversations when unlawfully obtained (s13) and the admissibility of evidence of private conversations when obtained “inadvertently or unexpectedly” pursuant to warrant (s14).
The issues in the appeal
The informant seeks to tender in the Tribunal evidence of the “private conversation” involving the claimant that came to the knowledge of the police as a result of the use of a listening device. Since, however, that use did not contravene s5 of the LD Act (because the device was used pursuant to a warrant: see s5(2)(a)) the prohibition in s13(1) does not apply. This is common ground.
The claimant relies upon s14. He submits (a) that s14(1) applies because the proposed evidence concerns a private conversation that “inadvertently or unexpectedly [came] to the knowledge of” the person to be called to give the evidence; and (b) that s14 implicitly prohibits the giving of such evidence in civil proceedings.
The opponent concedes the former proposition but disputes the latter.
(a) Did the intercepted conversation involving the claimant come to knowledge “inadvertently or unexpectedly”?
The Tribunal held that the conversation between the claimant and the two men in the cell was obtained inadvertently and unintentionally, thus falling within s14 (ie proposition (a) was accepted).
I prefer to express no opinion on that matter for the following reasons.
The reasoning of the Tribunal, supported in this respect by both parties, is based upon the undoubted fact that the Warrant was sought for the purpose of obtaining evidence in relation to the murder and not the unrelated armed robbery charge. In the affidavit supporting the application for the warrant Detective Senior Constable Gordon swore that:
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 respect to the armed robbery offences that HADDAD and TREGLIA are presently charged with.
The concluding portion of s14(1) recognises that a warrant is granted for the purpose of obtaining particular evidence. As indicated, s16(1) requires the application to be based upon suspicion or belief that a prescribed offence has been, or is about to be or is likely to be, committed. The warrant must itself specify the prescribed offence “in respect of which the warrant is granted” (s16(4)(a)). The instant Warrant specified murder.
It does not, however, follow that all evidence derived from the use of a listening device installed for the purpose of investigating one offence that discloses the commission of another offence “inadvertently or unexpectedly [came] to the knowledge of” the person who seeks to give that evidence.
In my opinion, it is at least arguable that a detailed examination of the facts would be required before a court could conclude that the opening portion of s14(1) is engaged. Arguably, more needs to be shown than that the proposed evidence discloses an offence other than that for which the warrant was granted.
For one thing, evidence of other offences may itself be relevant to the prescribed offence for which the warrant was issued. For example, a person who had committed a murder might in the intercepted conversation discuss destroying evidence relevant to that offence in circumstances amounting to the offence of attempting to pervert the course of justice. That evidence may or may not be admissible in a murder trial, but it would be absurd if the LD Act led to its exclusion simply because an additional offence were disclosed. Section 14 does not go that far.
In the present case, the private conversations of Haddad and Treglia were deliberately monitored through the use of the listening device. That was the purpose for which the Warrant had been granted. In Haddad & Treglia, the Chief Justice records (at [43]) that, during the course of the recording, the conversations in the cell were listened to by a detective who maintained a monitoring log which included some reference to the armed robbery charges.
The claimant submitted that the matter of inadvertence or unexpectedness has to be judged by reference to the purpose for which the warrant was granted. If the claimant is correct as to his basic submission touching the scope of s14(1), then this necessarily follows. But it would be fallacious to use such a proposition in aid of the conclusion to which the argument was advanced. An alternative possibility would be to recognise that s14(1) speaks from the perspective of the person seeking to give the relevant evidence. On this approach, one would need to address what was in that person’s contemplation at the time the “private conversation” was intercepted and/or came to his or her knowledge. Section 14(1) would appear to have as its primary focus the bona fide, unplanned interception of intelligence referable to serious criminal activities over and above those intended to be the focus when the warrant was obtained and the monitoring pursuant to it commenced. Its function is to remove doubts and arguments touching the admissibility of such intelligence.
The matters stated above do not represent my concluded views on the first issue. This Court has not had the benefit of a contradictor on this point.
(b) Assuming it is engaged, does s14 prohibit the adduction of evidence in civil proceedings?
A second issue is whether (if engaged) s14 implicitly prohibits the giving of the evidence in civil proceedings.
Disciplinary proceedings against legal practitioners are not criminal proceedings.
The claimant’s argument is that s14 is in the nature of a code that states the outer limit of the statutory permission to admit evidence of a private conversation when obtained inadvertently yet pursuant to a warrant.
This argument was rejected by the Tribunal in the following terms:
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 Evidence Act 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.
I agree with the Deputy President, adding the following remarks.
The claimant points to no mischief, disclosed or undisclosed, that would be addressed by his interpretation of s14. If his argument is correct, the tape could not be used in relation to civil proceedings between himself and his former clients, or by way of defence in the instant proceedings if the key witness for the Informant happened to be Mr Haddad.
The claimant’s submission also finds no support in the text of s14. A permission to do something in criminal proceedings is not a prohibition on doing it in civil proceedings. Courts have on many occasions warned against the weakness of the maxim expressio unius est exclusio alterius and the need to apply it with care (see eg Federal Commissioner of Taxation v Rowe (1997) 187 CLR 266 at 277). It remains the case that “to read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing” (Western Australia v The Commonwealth (1975) 134 CLR 201 at 251 per Stephen J. See generally Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292).
There is in fact plenty of work for s14. As indicated, it was first enacted during the era of Bunning v Cross. It now applies during the currency of s138 of the Evidence Act. In each context, s14 serves to provide its self-contained regime that addresses the admissibility in criminal proceedings of evidence falling within subs(1), provided it does not fall foul of subs(2). It may not be a complete code in that it would not, for example, override some applicable privilege, but that reservation is of no present moment. Section 14 squarely and comprehensively addresses admissibility in criminal proceedings by resolving evidence generally admissible according to its terms, unless subsection (2) applies. Its qualified permission to use intercepted evidence in criminal proceedings is simply silent in its permission or disallowance to use the evidence in civil or other contexts.
In Haddad & Treglia, Spigelman CJ said (at [49]):
Section 14 is permissive in its terms. Knowledge obtained “inadvertently or unexpectedly” within the meaning of the section “may be given” in any criminal proceedings “notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained”.
For these reasons leave to appeal should be refused and the summons dismissed with costs.
TOBIAS JA: I have had the benefit of reading in draft the judgment of Mason P in this matter. I agree with the orders proposed by his Honour and with his reasons for making those orders. However, whilst acknowledging the force of the President’s observations with respect to the first issue upon which he comments in [33] to [39] of his judgment, as the matter was not the subject of argument before the Court, I would prefer not to express either agreement or disagreement with his Honour’s prima facie views on the issue.
BELL J: I agree with Mason P.
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