R v Bunting & Wagner (No 5)

R v BUNTING & WAGNER (No 5)
[2003] SASC 253
Criminal: Reasons for Rulings

MARTIN J John Justin Bunting and Robert Joe Wagner are jointly charged with eleven counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting is charged with a further count of murder alleged to have been committed in 1992 with Mark Ray Haydon and Wagner is charged with Assisting Offenders in connection with that crime of murder. Haydon has been granted a separate trial with respect to that and other charges of murder.
The facts are set out in detail in R v Bunting and Others (No 3) [2003] SASC 251. The evidence that the Crown proposes to lead includes evidence of conversations recorded through the use of telephone intercepts. The interceptions occurred after warrants were issued under the Telecommunications (Interception) Act 1979 (“the Act”). The accused challenged the admissibility of the conversations recorded through use of the intercepts. I ruled that the evidence should be admitted. I now set out my reasons for that ruling.
The submissions were presented by counsel for Wagner and were adopted by Bunting. Counsel for Bunting also presented brief submissions. Initially, counsel advanced the proposition that the warrants were invalid. However, subsequently that submission was corrected and the validity of the warrants was accepted. It was contended that although the warrants were validly issued, failure by the South Australian Commissioner of Police (“the Commissioner”) to comply with an administrative responsibility imposed by the Act rendered inadmissible evidence obtained through use of the intercepts.
It would not be unkind to describe the provisions of the Act as somewhat convoluted. However, for present purposes the essence of the scheme of the Act appears to be as follows.
Section 7(1) expressly prohibits the interception of a communication passing over a telecommunications system. Subsection (2) provides that subsection (1) does not apply to an interception of a communication made under a warrant.
Provision is made for Judges and nominated Members of the Administrative Appeals Tribunal to be persons eligible to issue warrants (“issuing authority”). Section 39(1) provides that an agency may apply to an issuing authority for a warrant in respect of a telecommunications service or a person. It is accepted that an officer of the South Australian police force was able to apply for a warrant. Sections 40-42 relate to the form and contents of the application and to the requirement that an affidavit accompany the written application setting out the facts and other grounds on which the application is based.
Section 45 of the Act is in the following terms:
“Issue of telecommunications service warrant in relation to class 1 offence
45Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a)    Division 3 has been complied with in relation to the application;
(b)    in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c)    there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d)    information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and
(e)    having regard to:
(i)the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;
(ii)how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and
(iii)how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason; some or all of that information cannot appropriately be obtained by such methods;
the Judge or nominated AAT members may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service.”
Murder is a class 1 offence. In each instance, the warrant recites that the issuing authority is satisfied of the relevant matters identified in s 45.
After the warrant is issued, a further step is required before the warrant comes into effect and authorises the interception. Section 47 requires notification of the issue of the warrant:
“Limit on authority conferred by warrant under section 45 or 46
47A warrant under section 45 or 46 does not authorise communications to be intercepted while they are passing over a telecommunications system operated by a carrier unless:
(a) notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60(1); and
(b) the interception takes place as a result of action taken by an employee of the carrier, and by the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police, for the purpose of enabling the warrant to be executed.”
It is agreed that there was compliance with s 47(b). As to compliance with s 47(a), the Crown relied upon certificates issued pursuant to s 61 of the Act. It is agreed that the certificates were properly issued and that, by virtue of s 61(2), I am to receive the certificates as “conclusive evidence” of the matters stated in the certificates.
Two carriers were involved, Telstra and Optus. Each certificate was issued by the Company Secretary of those carriers. The first certificate from the Company Secretary of Telstra was as follows:
“TELECOMMUNICATIONS (INTERCEPTION) ACT 1979
CERTIFICATE UNDER SECTION 61(1)
I … the Company Secretary of Telstra Corporation Limited, trading as Telecom Australia, (being a carrier as provided in section 5 of the Telecommunications (Interception) Act 1979) do hereby certify pursuant to Section 61 of the Telecommunications (Interception) Act 1979 the following facts being facts which I consider relevant with respect to acts or things done by or in relation to employees of the said Corporation for the purpose of enabling the execution of a warrant issued under Section 45 of the said Act, a true copy of this warrant(s) is hereunto annexed and marked with the letters ‘MM1’ and ‘MM2’.
1.A certified copy of warrant ‘MM1’ aforesaid which warrant was numbered F9918/0 was received by an employee of Telstra Corporation Limited from the South Australian Police Department by facsimile transmission on 05 February 1999 the original certified copy of the said warrant ‘MM1’ being received on 12 February 1999, and
A certified copy of warrant ‘MM2’ aforesaid which warrant was numbered F9918/1 was received by an employee of Telstra Corporation Limited from the South Australian Police Department by facsimile transmission on 05 May 1999 the original certified copy of the said warrant ‘MM2’ being received on 10 May 1999, and
2.On receipt of the warrant dated 05 February 1999 employees of the Corporation, in accordance with a system previously established within the Corporation for such purposes, did such acts and things of a professional and technical nature as were necessary to bring about, between the telephone service stipulated in the said warrant and the monitoring centre of the agency to which the said warrant was issued, a connection of such a nature and in such a manner as to permit:-
(a) A person, or suitable equipment, within that monitoring centre and monitoring the said telephone service to be aware of or, in the case of equipment, be activated by any communication upon such service; and
(b) Conversations upon and other communications to or from the said telephone service to be listened to and recorded (automatically or otherwise) by persons and or equipment within that monitoring centre.
3.The acts and things done by employees of the Corporation and referred to in Paragraph 2 were done and completed so as to permit the matters referred to in sub-paragraphs (a) and (b) of Paragraph 2 to be done for the whole of the period from and including 05 February 1999 to 26 May 1999.
4.The telephone service hereinbefore referred to is a telecommunications service provided by Telstra Corporation Limited.
Dated this 20^th day of September 1999
(Signed)
Company Secretary
Telstra Corporation Limited”
With one exception, the certificates issued by Telstra were in identical terms. In respect of warrant no. F9927/0, paragraph 1 of the certificate states that the certified copy sent by facsimile transmission was received by an employee of Telstra “on behalf of the Managing Director”.
Two certificates were issued by the Company Secretary of Optus. For present purposes, they were in identical terms. The first certificate was as follows:
“TELECOMMUNICATIONS (INTERCEPTION) ACT 1979
CERTIFICATE UNDER SECTION 61
I, … the Company Secretary of Cable and Wireless Optus Limited (ACN 052 833 208) being the holding company of Optus Mobile Pty Ltd (ACN 054 365 696) (being a carrier) (“Optus”) certify pursuant to section 61 of the Telecommunications (Interception) Act 1979 (“Interception Act”) the following facts which I consider are relevant to acts or things done by or in relation to employees of Optus Administration Pty Ltd (ACN 055 136 804) (being the employer of all staff of Optus Group Companies) (“Optus Employees”) in order to enable the execution of a warrant issued under section 45 of the Interception Act. A true copy of this warrant, dated 10 February 1999 and numbered F9920/0, requiring the interception of a telecommunications service provided by Optus, is annexed and marked with the letters POB 1. (“Warrant”).
1.A faxed copy of the Warrant was received by an Optus employee from Detective Inspector Malcolm Leonard Schluter on behalf of the South Australia Police (“Agency”) on 11 February 1999. The original copy of the Warrant was received by that employee on 17 February 1999.
2.Between the period commencing on 11 February 1999 and ending on 06 May 1999 Optus Employees did acts and things of a professional and technical nature that were necessary to connect the telecommunications service specified in the Warrant with the monitoring centre of the agency to permit a person or equipment located at that monitoring centre:
(a) to be aware of or, in the case of equipment to be activated by, any communication over that telecommunications service; and
(b) to listen to and record communications over that telecommunications service.
3.In this certificate, the words “carrier”, “interception”, “equipment”, “communication” and “telecommunications service” have the same meanings given to those words in section 5 of the Interception Act.
Dated 1 September 1999
(Signed)
Company Secretary
Cable and Wireless Optus Limited”
Section 61 also provides for a certifying officer of an agency to issue a written certificate setting out facts considered by the officer to be relevant with respect to certain matters identified in s 61(4). Sub section (5) provides that the certificate is prima facie evidence of the matters stated in the document. In each instance a certificate was issued by either the Commissioner or the Acting Commissioner who it is accepted were certifying officers for the purposes of s 61. In each certificate, the following statement is made:
“5Forthwith upon the issue of the Warrant a person acting on behalf of the Managing Director of Telstra Corporation Limited/Chief Executive Officer of Cable and Wireless Optus Limited was notified of the issue of the Warrant.”
Counsel did not refer to the certificate issued by the Commissioner. Basing his submission on the certificates issued by each Company Secretary, counsel argued rather faintly that the evidence was insufficient to establish compliance with s 47(a). In my opinion, that submission is without substance. While it would have been preferable for all certificates to have stated that the faxed copy of the warrant was received on behalf of the Managing Director of the carrier, in my view it is apparent from the certificates that the employees were acting on behalf of the Managing Director in receiving the faxed copy of each warrant and in subsequently receiving the “original certified copy” of the warrant. In addition, I cannot discern any reason for rejecting the statements by the Commissioner. By virtue of s 61(5) these statements are prima facie evidence of the matters stated, namely, that forthwith upon the issue of each warrant a person acting on behalf of the relevant Managing Director was notified of the issue of the warrant. In my view, therefore, valid warrants came into effect.
The administrative duty to which I previously referred was a duty of notification imposed upon the Commissioner by s 60. The relevant part of that section is in the following terms:
“Notification to Managing Director of carrier of issue or revocation of certain warrants
60(1)Where:
(a)    a warrant is issued to an agency; and
(b)    it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;
the chief officer of the agency shall cause;
(c)    the Managing Director of that carrier to be informed forthwith of the issue of the warrant; and
(d)    a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to the Managing Director of that carrier.”
Unlike s 47, s 60 does not refer to notification being received “on behalf of” the Managing Director. Counsel submitted that s 60 imposes an obligation on the Commissioner to cause the Managing Director to be informed personally of the issue of the warrant and to cause a certified copy of the warrant to be given as soon as practicable to the Managing Director personally. The certificate from Optus refers to both the facsimile and the original copy of the warrant being received by an employee of Optus. Each Telstra certificate refers to the facsimile being received by an employee, but the identity of the receiver of the original certified copy is not specified. It appears likely, however, that the original would have been received by an employee. As mentioned, par 5 of each certificate issued by the Commissioner refers to notification to a person acting on behalf of each Managing Director. Paragraph 6 states that as soon as practicable after the issue of a warrant, a certified true copy of the warrant was caused to be given to a person acting on behalf of each Managing Director.
Telephone interceptions amount to serious invasions of the privacy of members of our community. The legislature has put in place a regime designed to strike a balance between facilitating the investigation of serious crimes and protecting the fundamental rights of citizens. Strict duties of disclosure are imposed upon agencies which obtain warrants and intend to intercept communications pursuant to those warrants. It is not surprising that the agencies are required to cause notification to be given to the most senior executive officer of the relevant carrier. From a practical point of view, the carrier is required to facilitate interception. From a policy point of view, however, the legislature considered that the most senior executive officer of the carrier should be aware of the existence of the serious invasions of privacy. For similar reasons, the duty is imposed upon the agency to notify the Managing Director of the revocation of a warrant.
In my opinion, the legislature could not have intended that the Managing Director of the relevant carrier become involved personally with the implementation of each warrant. However, the critical question is whether the legislature intended that the Managing Director must receive personally notification of each warrant and a copy of each warrant.
Section 60(1) speaks only of the Managing Director being informed and being given a copy of the warrant, not of anyone receiving on behalf of the Managing Director. However, s 47(a) refers to notification of the issue of the warrant being received “by or on behalf of the Managing Director of the carrier under subsection 60(1) ...”. It appears, therefore, that s 47 contemplates that receipt of notification on behalf of the Managing Director is sufficient for the purposes of s 60(1).
As Gibbs CJ observed in O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11, the answer to the question whether a statute requires a power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case. By a majority, the Court held that the Commissioner of Taxation could exercise his powers of giving notices under s 264 of the Income Tax Assessment Act 1936 (Cth) through an authorised officer. Notwithstanding a power to delegate, the majority were of the view that the legislature must have known that “practical necessity” dictated that the powers conferred on the Commissioner of Taxation should be exercised by officers of the Department “who were acting as his authorised agents” (12). In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J said (38):
“The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by that repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.”
These authorities are of direct relevance to the discharge of the duty of notification by the Commissioner and whether that duty can be discharged by officers authorised by the Commissioner for that purpose. They are also relevant to any duties imposed upon the Managing Directors of the carriers. They do not directly relate to the question whether the legislature intended that the Managing Director of the carrier be informed personally of the warrant and be given personally a copy of the warrant. However, the practical considerations discussed in the authorities to which I have referred can readily be applied in considering whether Parliament intended such personal involvement of the Managing Directors.
I do not have any information as to whether the Managing Directors have powers of delegation and, if so, whether they have purported to exercise those powers with respect to matters arising under the Act. Nor do I have information as to whether the Managing Directors have authorised others to receive notifications and warrants on their behalf. There may be arrangements between the Commissioner and the carriers in respect of these matters about which I have not been informed. The Commissioner purported to discharge the duty imposed by s 60(1) by giving notification and by providing a copy of the warrant to persons the Commissioner understood were acting on behalf of each Managing Director.
Having regard to the scheme of the Act, the purposes of notification and practical necessities, in my opinion it is unlikely that Parliament intended that the Managing Directors of the carriers would be personally involved in receiving notification and in receiving copies of all warrants. This view is confirmed by s 47(a) which contemplates that notification to a person acting on behalf of the Managing Director will suffice for the purposes of s 60(1)(c). In addition, the legislature having determined that notification to a person acting on behalf of the Commissioner is sufficient notification to activate the warrant pursuant to s 47(a), it is unlikely that the legislature intended to impose the duty of notification personally pursuant to s 60(1).

In my opinion, therefore, the Commissioner complied with the administrative duties imposed by s 60(1). If I am wrong in that conclusion, in my opinion the failure of the Commissioner to discharge those duties would not affect the validity of the warrants. The failure occurred after the valid issue of a warrant. Pursuant to s 47(a), each warrant was activated when notification of the issue was received by or on behalf of the Managing Director of the carrier. There is no suggestion in the Act that a subsequent defect in carrying out the administrative responsibilities imposed by the Act affects the validity of the issue of the warrant or the commencement of the operation of the warrant. In those circumstances, even if the Commissioner failed as suggested, in my opinion the interceptions occurred under valid warrants for the purposes of s 7(2)(b) of the Act. On that basis, the prohibition in s 7(1) does not apply to the interceptions.
Counsel was unable to refer me to any authority for the proposition that where a warrant is validly issued and lawfully brought into operation, a failure to comply with an administrative duty, being a duty that arises after the issue of the warrant, affects the validity of the warrant or renders the evidence obtained pursuant to the warrant inadmissible. Section 7(1) has no application because the interception occurred under the warrant. The information obtained pursuant to the warrant was obtained lawfully. Section 74(1) provides that lawfully obtained information may be given in evidence in these proceedings. In my opinion, therefore, the accused have failed to make out their primary proposition that the evidence is inadmissible.
Reference was made to s 75. That section is in the following terms:
“Giving information in evidence where defect in connection with warrant
75(1)         Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:
(a)    but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and
(b)    in all the circumstances, the irregularity should be disregarded.
(2)A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity);
(a)    in, or in connection with the issue of, a document purporting to be a warrant; or
(b)    in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.”
Section 75 enables a Court to admit evidence obtained through an interception in contravention of s 7(1), but purportedly under a warrant, if the Court is satisfied that but for an irregularity the interception would not have constituted a contravention of s 7(1) and, in all the circumstances, the irregularity should be disregarded. “Irregularity” for these purposes is a defect or irregularity, other than a substantial defect or irregularity, in the document purporting to be the warrant or in connection with the issue of that document or in connection with the execution of the warrant or purported execution of the document purporting to be the warrant. It was said that the defect or irregularity could be viewed as occurring in connection with the execution of the warrant, but that the defect or irregularity was substantial.
If it was necessary to consider the operation of s 75, in my opinion the failure of the Commissioner to strictly comply with the administrative duty imposed by s 60(1) was not a substantial defect or irregularity for the purposes of s 75. It is apparent that the Commissioner was attempting to comply with his duty. I see no reason to doubt that in each instance the persons who received notification and a copy of the warrant did so on behalf of the Managing Director of each carrier. The company secretaries obviously became aware of the issue and the activation of the warrants. Appropriate procedures were then followed for the implementation of the interceptions. In a practical sense, the primary purposes of the Act in ensuring that warrants are validly issued and that appropriate notification is given to the carriers were achieved.
In my opinion, the failure of the Commissioner to strictly comply with the administrative duty was not a substantial defect or irregularity for the purposes of s 75. I agree with the observations of the Victorian Court of Appeal in R v Rich (Unreported Judgment delivered 17 December 1997):
“Whatever meaning is to be attributed to the term ‘substantial defect or irregularity’ where that term is used in section 75(2) of the Act, it cannot in our view extend to circumstances where the alleged defect or irregularity has in no way affected either the process of the issue of the warrant or the process of its execution.”
As I have indicated, s 75 only applies if the defect or irregularity arose in connection with the issue of the warrant or its execution. There is no suggestion that the failure to give notification occurred in connection with the issue of the warrant.
As the warrant is not activated until notification occurs pursuant to s 47, it might be argued that the failure to give notification was an irregularity in connection with the execution of the warrant. If proper notification is not given, the warrant is not in force. As s 47 is linked to the requirement of notification in s 61 by the terms of s 47, failure to comply with the duty of notification imposed by s 60(1) might be argued to relate to the execution of the warrant. However, assuming that s 60(1) requires delivery of a copy of the warrant to the Managing Director personally, it is difficult to see how failure to comply with that particular duty can be said to be an irregularity in connection with the execution of the warrant. If it is not such an irregularity, s 75 has no application.
It is unnecessary for me to decide this issue. Similarly, it is unnecessary for me to decide whether, should s 75 not be applicable because the irregularity did not occur in connection with the issue or execution of the warrant, a Court nevertheless retains the power to admit the evidence in the exercise of the discretion. This question was not addressed in submissions.
If, contrary to my view, the failure to comply with the administrative duty meant that the interceptions were in contravention of s 7(1), I would have no hesitation in being satisfied that, but for the irregularity, the interceptions would not have constituted such a contravention. Further, in my opinion the irregularity should be disregarded. There is no suggestion of any deliberate impropriety on the part of the Commissioner or investigating officers. They endeavoured to comply with their duties. In practical terms, the safeguards envisaged by the Act were observed. The irregularity and subsequent illegality did not affect the cogency of the evidence. The irregularity and illegality did not give rise to any relevant unfairness. The factors identified in Bunning v Cross (1978) 141 CLR 54 strongly favour the admission of the evidence.
A further ground was advanced which was said to require the exclusion of the evidence in the exercise of the discretion. The investigation had reached a stage where had the police sought to interview the accused, a caution would have been necessary. On that basis counsel argued that it was unfair to put in place listening devices or telephone intercepts which, unknown to the accused, recorded their conversations. This was a way of avoiding the requirement to give a caution. If the police intended to use listening devices or intercepts, in these circumstances they were obliged to make it known to the accused that they were under investigation for murder or murders.
Counsel was unable to identify any authority to support his proposition. Reliance was placed on the decisions of Perry J in R v Smith (1994) 63 SASR 123 and Cox J in R v Pfennig (No 1) (1992) 57 SASR 507.
As Cox J later observed in R v Giaccio (1997) 68 SASR 484, Pfennig turned on its special facts. Pfennig had been charged with murder and remanded in custody. He had indicated to police that he did not wish to answer questions. The investigating police set a trap for the accused by arranging for a fellow prisoner to gain the confidence of the accused and to elicit admissions from him. As the trial judge observed, it was as though the police, faced with a refusal to answer, sent in an undercover police officer in disguise to inveigle the accused into making admissions.
In Smith, although the accused had not refused to answer questions, an accomplice had given the police all the evidence they needed to arrest the accused. The accomplice was used by police to elicit admissions through deliberate statements or questions addressed to the accused. The trial judge was of the view that in the circumstances it was unfair to use the admissions against the accused. I note that in R v Giaccio, Cox J indicated that, if necessary, he would not follow the decision in Smith: 498.
In my opinion, the decisions in Smith and Pfennig have no application. Further, there is nothing in the judgments delivered in TheQueen v Swaffield (1998) 192 CLR 159 to suggest that the discretion to exclude is enlivened. In the circumstances under consideration, there is no suggestion that the police sought to make use of the listening devices and telephone intercepts by arranging for friends or accomplices of the accused to engage the accused in conversations which could be overheard by the devices or intercepts. In order to further their investigation, the police engaged in lawful eavesdropping. There was nothing improper or unfair in their conduct. As Cox J observed in Pfennig, (514):
“The eavesdropping cases, such as R v Mills [1962] 1 WLR 1152; [1962] 3 All Er 298; and R v Keeton (1970) 54 Cr App R 267, are distinguishable. There the police were simply putting themselves in a position to overhear the unguarded statements made by a suspect or defendant to someone else.”
For present purposes even if I assume that the police had sufficient information to justify an arrest of the accused, the bodies had not been discovered and police had been unable to locate Haydon’s Toyota Landcruiser. The police were entitled to continue their investigations and to lawfully put in place the means of overhearing unguarded conversations involving the accused. Further, even if the police had discovered the bodies and found the Landcruiser, speaking generally it would not be improper of the police to continue their investigations by making lawful use of listening devices and telephone intercepts prior to the arrest of the accused. Indeed, a number of authorities support the view that after a suspect has been arrested, it is not improper for the police to put themselves in a position to overhear conversations involving the arrested person provided the police do not engage in subterfuge of the type undertaken in Pfennig.
For these reasons, I declined to exclude the evidence of communications recorded through the use of telephone intercepts.

[2003] SASC 253

29 October 2003