R v BURNS & ORS No. SCGRG-99-85 Judgment No. S493

R v BURNS & ORS
[1999] SASC 493

OLSSON J (Ruling)

The nature of the proceedings

In this matter the accused are jointly charged with the offence of being knowingly concerned in the importation of a prohibited import, contrary to the provisions of s 233B(1)(d) of the Customs Act 1901 (“the Act”). There is a second charge, which is alternative to the first. This asserts that one of the accused, Savenkoff, was guilty of the offence of possessing a prohibited import, contrary to the provisions of s 233B(1)(c) of the Act. The present accused were originally jointly charged, as to the primary offence, with a person named Thompson. However, he pleaded guilty and has now been sentenced. A third charge against a person named Bell (to whom reference will later be made) has been severed.
Prior to the empanelment of the jury, certain of the accused made application, pursuant to rule 9 of the Criminal Proceedings Rules, inter alia, seeking the exclusion from evidence of material procured by means of certain search warrants and listening devices. By agreement with counsel the issues arising in relation to evidence gathered by means of listening devices were argued first. This ruling is confined to those issues.
The rule 9 applications relating to this lastmentioned type of evidence focused on evidence gleaned as a result of the execution of four warrants issued pursuant to the provisions of s 219B(5) and (7) respectively of the Act (“s 219B(5) and (7)”).
Two separate warrants were issued on 28 October 1997 by von Doussa J of the Federal Court of Australia. One related to "Unit 3/30 Jacobsen Crescent, Holden Hill, South Australia", while the other was in respect of "the shipping container number MSCU 2291154 (Australian Customs Service Bill of Lading number 1262627 refers)".
Each of these warrants recited that:-
“(a) there are reasonable grounds for suspecting that those premises are likely to be used in connection with the commission of a narcotic offence within the meaning of that Division; and
(b) the use by officials of the Australian Federal Police within the meaning of that Division of such a listening device to listen to or record words spoken by or to the persons in those premises will, or is likely to, assist such officials in, or in connection with, inquiries that are being made in relation to the use, or likely use, of those premises in connection with the commission of such a narcotics offence."
The reference to the word “Division” was to Division 1A of Part X11 of the Act, within which s 219B (“s 219B”) appears.
Each warrant specifically authorised the officials of the Australian Federal Police who, under s 219(D)(1) of the Act (“s 219D(1)”), may exercise the authority conferred by it to use a listening device for the purpose of listening to or recording words spoken by or to any person while that person was in the relevant premises.
A third warrant was issued, on application of the Australian Federal Police, by Deputy President Burns, of the Administrative Appeals Tribunal, on 24 February 1998.
This recited that the accused Burns was suspected, on reasonable grounds, of being likely to commit a narcotics offence and that the use by officials of the Australian Federal Police of such a listening device to listen to or record words spoken by or to him “will, or is likely to, assist such officials in or in connection with inquiries that are being made in relation to the likely commission, by that person, of such a narcotics offence”.
The warrant authorised the relevant officials approved under s 219D(1) to use a listening device for the purpose of listening to or recording words spoken by, to, or in the presence of the accused Burns "anywhere in Australia". It further sanctioned the entry upon any premises occupied, or likely to be occupied, by the accused Burns for the purpose of placement or recovery of a listening device.
The first two warrants were directed to remain in force for a period of 60 days, commencing on 28 October 1997. The third warrant was to remain in force for a period of 90 days, commencing on 24 February 1998.
The fourth warrant was issued by Mr Kiosoglous, a nominated member of the Administrative Appeals Tribunal, on 5th June 1998. This was expressed in terms essentially similar to those of the third warrant which, by then, had expired. The fourth warrant was to remain in force for a period of 90 days commencing on 5 June 1998.

Relevant background

The primary charge relates to a consignment of plywood and storage boxes imported from South Africa by a company known as Intracon Pty Ltd (“Intracon”), of which the accused Sexton is said to be a director. The plywood constituted portion of the contents of a container which was consigned to Intracon, for delivery at warehouse premises known as Unit 3, 30 Jacobsen Crescent, Holden Hill, leased by it. It is asserted by the prosecution that the container arrived in Adelaide on 29 October 1997.
The material before me indicates that, from some time in late 1996, as a result of intelligence received, the Australian Federal Police (“AFP”) commenced investigations of the activities of the accused Burns and persons thought to be associated with him. Prior to 29 October 1997, in the course of that exercise, the AFP had become interested in a series of fiscal transactions which had come to light through the so-called AUSTRAC financial transactions reporting system and were considered suspicious. It was suspected that Burns and others were possibly involved in illegally importing narcotics into Australia.
As a consequence of ongoing investigations initiated by it, the AFP had become aware that the container referred to above, was in transit from South Africa to the container terminal at Port Adelaide.
On its arrival Federal agents and officers of the Australian Customs Service (“ACS”) attended at the terminal. ACS officers opened the container, and examined its contents in the presence of the Federal agents. They ascertained that, in essence, its contents fell into two separate categories. First, there was a substantial number of plastic folding crates packed in 137 cardboard cartons marked "Collapsible Storage Boxes". Second, there were also a significant number of resin coated plywood sheets. Some of these were loosely packed, whilst others had been loaded onto pallets and tied down with steel belts or straps.
One of the lastmentioned pallets was located towards the rear left hand side of the container. This had on it a tightly bound quantity of 30 sheets of brown resin coated plywood measuring 2440 mm x 650 mm x 19 mm. A careful examination of this plywood revealed that, commencing about 15 sheets from the top and being five sheets deep, there was a cavity within the bound plywood, in which there had been inserted a box measuring 1510 mm x 650 mm x 95 mm. The box had a lid screwed on to it.
The Federal agents noted that, within the box, there were 18 clear plastic tight packages bound with brown packing tape, which contained compressed green vegetable matter later identified as cannabis head. The total weight of this matter was of the order of 35 kgs. Samples were taken from each package for later analysis. The packages were then restored to their original condition and individually marked with a UV fluorescent marker pen. Each of the blocks of compressed vegetable matter was also covered with a quantity of a fluorescent ultraviolet tracer powder. This was a white crystalline powder which fluoresces strongly under ultraviolet excitation.
The whole pack of plywood was restored to, as nearly as may be, its original condition on its pallet and re-placed in the original position within the container. The container was also re-packed with all of the other remaining items which had been removed. Listening devices were installed both within its structure and also in the plywood pack containing the box of compressed vegetable matter. The door of the container was closed and resealed to resemble the pre-examination condition. It is said that a series of photographs was taken and a video record was made during the examination of the container and its contents.
The prosecution asserts that, at the conclusion of these activities, the shipping agents were requested to deliver the container and its contents to the Holden Hill premises leased by Intracon, in accordance with the original shipping documentation. It arrived there at approximately 2.26 pm on 30 October 1997.
The prosecution evidence will be to the effect that the container was opened and at least partly unloaded by two of the accused, Burns and Savenkoff, at the Holden Hill premises, commencing at about 2.44 pm on the same day. They had received it on arrival.
It is the prosecution case that Burns and Savenkoff were under constant general surveillance by Federal agents whilst this activity was occurring, although each of them could not be seen all of the time. A video record was made of certain of their activities.
Two listening devices were installed at Holden Hill, in the warehouse and rear workshop areas respectively, in the early hours of 29 October 1997. As I understand the evidence, video equipment was also erected outside the premises on 30 October 1997, prior to the arrival of the container. This was integrated with one of the listening devices on or in the container and also with the other listening devices installed in the building.
It is proposed to lead evidence to establish that, in initially unloading items from the container, Burns and Savenkoff focused immediate attention on gaining access to the pallet of plywood which contained the hollowed out compartment.
The accused Savenkoff was seen to drive his car away from the Holden Hill premises shortly after 4.00 pm on 30 October 1997. So far as I can determine from the documentation tendered at the committal, it will be said that the accused Burns departed the Holden Hill premises in his motor vehicle at approximately 4.20 pm the same afternoon.
The prosecution case is that Federal agents attempted to follow Burns when he left the Holden Hill premises, but contact was lost at about 5.51 pm. However the vehicle which had been driven by him was again located, a short time later, parked in the driveway of premises at 2 Sage Court, Parafield Gardens. The vehicle was then unoccupied. According to the records of the Federal agents, Burns was seen to drive the same vehicle to other locations later that evening. At times he was followed by the Federal agents and, at other times, contact was broken.
Surveillance of the Holden Hill premises continued on the following day. Burns was observed unloading further items from the container, commencing shortly prior to 3.00 pm. His activities were recorded on video tape and snatches of some conversations which he had on his mobile telephone were captured by listening devices and also recorded.
Federal agent O’Riley testified that, at some point, it was apparent that the accused Burns had become aware of the presence of the listening device in the container. It seems that this must have occurred on 31 October 1997, at or about 4.00 pm, when he was involved in the unloading of items still remaining in the container, following the earlier removal of the hidden contents of the pallet of plywood, to which reference has been made.
In retrospect this discovery must have caused some consternation. On the evening of 31 October 1997, Burns drove to the Holden Hill premises with another person named Phillis, who was well-known to the Federal agents as being equipped to scan premises for the presence of electronic devices. Also present in the vehicle were two other persons, namely, the offender Thompson and one James Weston, who was also known to the Federal agents as being a person involved in the illicit drug trade.
Shortly after 9.00 pm that evening all of the four persons in the car were arrested, at a location not far from the Holden Hill premises.
Late in the evening of 31 October 1997 a Federal agent, who had been directly involved in initially searching and then re-packing the container at the terminal, attended at the Holden Hill premises. He observed the container in an opened condition, with a significant quantity of its contents removed. He particularly noted various sheets from the opened bundle of plywood which had been on the pallet. These were in the warehouse. The hollowed out portions were clearly apparent. There was no sign of the packages of cannabis.
The Parafield Gardens premises, which proved to be occupied by a person named Howard Bell, were raided by Federal agents during the early hours of 1 November 1997. The prosecution says that, at that time, 10 of the original 18 packages of vegetable material were there located. Each weighed about 2 kilograms. They could be identified not only because of their weight, shape and nature, but also because they were in the original wrappings, bearing the fluorescent markings which had been put on them. The fluorescent powder which had been sprinkled over them was also detected. When questioned Bell said that he was holding the packages “for a mate”. He later signed a declaration to the effect that he was acquainted with the accused Burns; and that Burns had brought the packages to his home in late afternoon 30 October 1997, to be stored there for a short time. He claimed that this had not been pre-arranged, but stated that he had had prior cannabis dealings with Burns and expected to be given some cannabis in return for agreeing to hold the packages.
Two additional packages, which were at least consistent, in shape and content, with those which had originally been detected in the container, were said, in the prosecution declarations, to have been found in Victoria at a later time. However, it is not clear to me, at this stage, as to what is asserted to have been the situation with the remaining packages originally seen in the container.

The evidence sought to be impugned

It has been foreshadowed that the prosecution will attempt to place before the jury various categories of evidence, much of it of a circumstantial nature. This is designed to establish that all of the accused were involved, in various ways, in a joint criminal enterprise to import a succession of consignments of cannabis, with a view to its resale in Australia; and that the importation of the container was but part of that enterprise.
Certain of this material was procured by execution of various search warrants issued to agents of the AFP.
Other evidence proposed to be adduced comprises audio tapes and the sound channels of associated video tapes containing conversations captured by the listening devices installed by Federal agents, pursuant to the warrants referred to above. These related to:-
the Holden Hill premises;
the relevant container; and
the visits area at Yatala Labour Prison, where the accused Collins was serving a sentence of imprisonment and was visited, on a number of occasions, by the accused Burns and the offender Thompson.
It is common ground that, acting in pursuance of the above warrants, Federal agents, by means of listening devices installed in the locations to which I have earlier referred, recorded various conversations which took place at Holden Hill on 30 and 31 October 1997 and at Yatala Labour Prison on 27 February 1998, 18 March 1998, 8 April 1998, 8 May 1998, 21 May 1998, and 5 June 1998, respectively.
I have already made the point that, at all relevant times, whilst the relevant conversations were being recorded, various activities were simultaneously being video taped at the Holden Hill premises. This also occurred on one occasion at the Yatala Labour Prison, where, on 5 June 1998, a video camera had been installed in the visits area and integrated with the listening device.

The nature of the challenges

On the hearing of the rule 9 applications the exclusion of the conversations so recorded was sought on multiple grounds. Certain of these were common to more than one accused.
The relevant challenges were mounted by the accused Burns, Collins and Savenkoff. Counsel for Sexton objected to certain content which included references to his client in the absence of the latter. I defer consideration of that aspect until a later occasion, as discussed with counsel.
Burns was first interviewed by Federal agents at about 9.25 pm on 31 October 1997. The relevant transcript of the interview indicates that this occurred at the corner of Ardtornish Street and Grand Junction Road, Holden Hill, when he was found in the company of Phillis, Thompson and Weston. Having verified the identity of the accused Burns and ascertained that his residential address was 61 Wilpena Street, Eden Hills, the agents informed him that they were making inquiries about the importation of between 30‑40 kilograms of compressed cannabis head. They then cautioned him.
At that time Burns made it perfectly clear that he did not wish to answer any questions and simply wanted to know what he would be charged with. He was told that he would be charged with the offence of being knowingly concerned in the importation of a quantity of compressed cannabis head. The agents thereupon arrested him. He was then conveyed to the AFP headquarters in a police vehicle. I infer that, following a search of his person and a physical examination of his hands, Burns was later granted bail.
Savenkoff was arrested on 4 November 1997 at his home in Rosewater. When cautioned he exercised his right of silence.
Collins does not appear, formally, to have been arrested. He was interviewed by Federal agents at Mobilong Prison on 25 November 1997, where he was serving a sentence of imprisonment. On that occasion he was cautioned and agreed to answer questions put to him. He was, ultimately, told that the facts would be reported for consideration by the appropriate authority and that he may, or may not, be charged.
As to the two warrants issued on 28 October 1997, Mr Barrett QC, of senior counsel for Burns, contends that such recorded phraseology as can be made out, on a playing of the various tapes, is incomplete and disjointed. He says that it is difficult, if not impossible, to discern what, if any, of it relates and is relevant to the offence charged against the accused. It, thus, cannot be admitted, because relevance has not been demonstrated by the prosecution. He further contends that, because the material is open to considerable interpretation as to its meaning and significance, individual jurors may well arrive at different conclusions as to what they hear. This, he said, could lead to the result that not all of the jurors would be approaching the matter on the same factual basis and inappropriate pressure could be applied by some jurors to others who had not heard the same thing. This could give rise to a flawed process which strikes at the heart of the fundamental requirements of jury deliberations. It ought not to be permitted.
The challenge to certain of the evidence garnered in pursuance of the third and fourth warrants is also attacked on a similar ground.
However, there are other grounds of challenge to the evidence gathered pursuant to the warrants as well.
First, it is argued that all of the warrants are, in terms, limited to obtaining evidence of prospective narcotics offences. It is contended by Mr Barrett QC that, prima facie, this was not their purpose at all. The listening devices were, he contended, intended to procure evidence either as to a then past narcotics offence or, at best, an unrelated prospective passport offence; and not a narcotics offence at all.
Next, it was originally said that, on the face of the declarations and other documentary material, there was simply nothing to demonstrate that the relevant Federal agents were persons approved, for purposes of s 219D(1) to execute the relevant warrants. In the case of the specific conversations taped on 30 October 1997, Mr Barrett QC argues that the evidence indicates that the Federal agent who operated the equipment had not been authorised to do so at the time. The situation appears, he contends, to have been no different in relation to what occurred on the following day.

Finally, Mr Barrett QC submitted that, having regard to all relevant circumstances, the gathering of the evidence was unfair. This should lead to an exclusion of it, on the principles discussed in The King v Christie (1914) AC 545 at 559 (“Christie”) and The King v Lee (1950) 82 CLR 133 at 151 (“Lee”).
His submission in this regard was based, in part, on the premise that, by the time of the Yatala conversations, Burns had already been arrested and declined to answer questions. It was, Mr Barrett QC argued, simply an impermissible and inappropriate strategy, designed to circumvent the effect of the exercise by his client of the right of silence. The submission was also founded on the footing that the conversations recorded (and the circumstances in which they were recorded, in gaol) contain, or tend to put before the jury, irrelevant information (including material suggestive of an intention to commit other offences) of a nature which is highly prejudicial to Burns. Mr Barrett QC submitted that what is said in those conversations gives rise to a degree of prejudice which far out weighs any probative value of the material.
In this lastmentioned regard he sought to obtain comfort from authorities such as Rv Pfennig (No 1) (1992) 57 SASR 507 (“Pfennig”), R v Smith and Turner (1994) 63 SASR 123 (“Smith”), and R v Swaffield and Pavic (1998) 192 CLR 159 (“Swaffield”).
More specifically, Mr Barrett QC contended:-
that, not only must the prosecution prove that it has procedurally complied with the requirements of the Act, but it must also demonstrate that the material recorded is admissible by being relevant. The Crown must identify what conversations it says are relevant; and it must be able to point to conversations which have some meaning. This involves identification of the topic being discussed and proof that such topic is relevant for purposes of the inquiry. It would, he said, not be sufficient to show that the parties, or any one of them, involved in a particular conversation, were engaged in some sort of criminal activity generally;
that the terms of the warrants did not authorise other than the recording of conversations concerning prospective offences. Furthermore, they did not authorise the recording of any type of future offence, but only narcotics offences to which Burns was a party. The primary charge in the instant case was not of that type, because it was not a prospective offence;
that there is a real question as to whether, given that listening devices were activated, bona fide, for the purpose of detecting future offending, any conversations coincidentally implicating a speaker in relation to a past offence are properly admissible by virtue of the use of the relevant listening devices. Alternatively, as an exercise of discretion, the material ought to be excluded, particularly as it tended to circumvent the right of silence; and
that a perusal of the transcripts of recorded conversations indicates that, in many instances, it is far from clear what is being discussed and, thus, how it is relevant to the charge against Burns. Moreover, the prejudicial nature of what is being said from time to time "far out weighs any substantive or probative value".
In his final submissions he did not expand on some aspects of these propositions, but it is necessary that I address all of them for the sake of completeness.
On behalf of the accused Collins, Mr Ibbotson (and, later, Mr Di Fazio) adopted the contentions advanced by Mr Barrett QC. They added that it was apparent that the real underlying purpose of the warrants used at Yatala Labour Prison was to record information in relation to the potential for Thompson to leave the jurisdiction - an irrelevant and impermissible purpose. They could not, and were not intended to, be used for the purpose of gaining evidence as to past offending. What was ascertained by means of them then led to what was asserted to be a situation in which search warrants were obtained and executed for the purposes of proving an offence to which they did not and could not relate. Mr Di Fazio also raised a number of other issues specific to the accused Collins, to which I shall come in due course.
Mr Tremaine emphasised that any references which could be construed as relating to Sexton had not been made in the context and for the purposes of furtherance of any joint enterprise leading to the offence charged and were, accordingly, hearsay as against his client and not admissible. This proposition was not challenged and Mr Rice did not seek to rely on any such evidence apropos Sexton.
Mr Wyatt adopted all of the above conceptual arguments on behalf of Savenkoff.

Evidence relevant to the Listening Device Warrants

Mr Rice called evidence as to the circumstances in which the four warrants issued pursuant to s 219B(5) and (7) were sought and obtained and the motives of the AFP in applying for them.
I do not find it necessary, for present purposes, to attempt a definitive analysis of all of that material. Suffice it to say that such evidence was compelling. I have no difficulty in accepting the substance of it, the thrust of which was that, at all material times, the intention of the Federal agents was to attempt to secure evidence of what, at those times, were thought to be probable prospective narcotics importation offences.
As at 28 October 1997, the Federal agents had a wealth of solid intelligence which indicated that the container, still then in transit, probably contained prohibited narcotic drugs.
The inquiries to that point had revealed the existence of quite extensive communication between a series of people considered to have been involved in the illicit drug scene, as well as a highly suspicious series of movements of substantial amounts of money, some of which had already been expended to finance the import of a previous container from South Africa. This had arrived in Adelaide during early September 1997. It had been consigned to Intracon by the same consignor as had despatched the container to which the present proceedings relate. The earlier container had been landed in Western Australia and brought to Adelaide by road transport.
Those inquiries also revealed that the second container consignment was in transit and imminently due to arrive at Port Adelaide.
As already appears, the arguments advanced on behalf of the accused were to the effect that the essential purpose of the installation of the listening devices in the container and the Holden Hill premises was not to gather evidence with regard to the commission of then prospective offences. Rather, it was to obtain evidence to link the various accused to the offence which was allegedly committed by the importation of the second container itself. In other words, it was asserted that it must have been clear, when the application was made to von Doussa J, that the relevant offence would already have been committed when the warrants were actually executed (assuming that the container did in fact contain narcotic drugs as suspected).
The lastmentioned suggestion was refuted by the witness O’Riley, who pointed out that, from a relatively early point in time, the Federal agents formed the view that a syndicate of persons, including one or more of the accused, appeared to have been engaged in the process of setting up an ongoing importation scheme involving multiple shipments. In their assessment neither of the two containers referred to were landed in Australia as isolated, “one off” enterprises. On the contrary, they were considered to be part and parcel of a much larger, continuing activity. He testified that the primary purpose of installing the listening devices was, in fact, to gather evidence as to likely ongoing offences.
O’Riley presented as an impressive witness and I have no hesitation in accepting the essential thrust of what he had to say.
In particular I accept that the events of October 1997 were but part of a continuing investigation which had, indeed, got underway by late 1996. As events transpired, his evidence is in accord with and was confirmed by the content of the documentation which was procured by the AFP, consequent upon the execution, on 31 October 1997, 1 November 1997 and various dates in the period immediately thereafter, of a series of search warrants issued pursuant to the provisions of s 3E of the Crimes Act 1914.
This documentation, and, specifically, material found in the possession of the offender Thompson, strongly supports the validity of the view which had been taken and was continued by the Federal agents. It rendered it apparent that the importation of the material in the container which was landed on 29 October 1997 was but one of a series of intended transactions of its type.
The documentation graphically illustrates the planned modus operandi for the operation. Not only does it refer to an obvious intention to bring in a series of containers, but it also illustrates the manner in which it was proposed to secrete the drug packages within the cargo. The document which is coded JAS/RMT/04/10 not only spells out the intended method of importation, also refers to a total quantity of 93 blocks. Elsewhere in it there is reference to at least three intended shipments.
True it is that this information postdated certain of the early warrants, but it does serve to indicate, albeit ex post facto, that the initial conclusion of the Federal agents was by no means fanciful. It certainly verifies O’Riley’s evidence concerning later warrants.
The evidence of O’Riley concerning the basis upon which the Federal agents made their assessment is set out in detail in the relevant transcript of his evidence and there is no requirement to retraverse that material in extenso in this ruling.
Not the least of these was the fact that the company known as ZoZo Import Export, which was responsible for exporting the first two containers from South Africa to Australia, was found to be linked to the accused Burns, by reason of the involvement in it of his brother, as a director. It was also thought by the AFP that the name Philip Brown, appearing on documentation issued by ZoZo, as another director of it, may well have been an alias for one of the Australian group. Be that as it may, there was ample reason for the AFP to suspect that the company had specifically been set up as a vehicle to initiate a series of successive narcotics importations into this country.
Another important aspect which the Federal agents were entitled to bear in mind, at least from that time, was that, during the unpacking of the container at Holden Hill, on 30 October 1997, the listening devices recorded a statement by Burns to the effect that “the next one will be a big one, and you will never have to work again”.
An objective appraisal of all of the material which the Federal agents garnered over time readily reveals that it had ample basis for making the assessment expressed by O'Riley. Whilst this material built up progressively, the obvious indications of a major enterprise, involving a series of successive imports, arose from a relatively early date.
The warrants signed by von Doussa J and Deputy President Burns were applied for by O'Riley. Those issued by Senior Member Kiosoglous were applied for by the witness Schrapel, who was also a Federal agent, working with O'Riley. Schrapel gave evidence, which essentially complemented that of O'Riley, as to the beliefs and motives of the AFP. He was taken through the various transcript logs in some detail to illustrate the basis upon which he formulated his opinions. Whilst it may be that I have a difficulty with the logic of certain of his conclusions, nevertheless, I do not doubt his honesty and sincerity. There was a plethora of material, as recorded in the various transcripts, to support his thesis that it seemed apparent to the AFP that Burns, Thompson and Collins were, at all material times, involved in an ongoing, illicit enterprise to import narcotic drugs into Australia; and that this had by no means abated when Burns and Thompson were arrested.
It was a reasonable inference from the content of the various discussions intercepted, as revealed by the successive transcripts, that these persons were, at all relevant stages subsequent to those events, continuing to explore ways in which they could position and use substantial funds to continue the importation strategies. Once again there is no point in traversing, in this ruling, the considerable detail recorded in the transcripts. It speaks for itself.
It is important to note that, in the cross examinations of both O'Riley and Schrapel, no serious attempt was made to impugn their credit. I accept the evidence as to their respective levels of knowledge, understanding and states of mind.
In my view the evidence plainly indicates that the several warrants issued accurately recorded the bona fide purposes which the Federal agents had in mind, on reasonable grounds, when those warrants were in fact issued and executed. Such a conclusion bears on both the validity of the issue of the warrants and also the discretionary issues to which reference was made by counsel. There is simply no solid basis for asserting that what was done was an exercise deliberately designed, by the AFP, to circumvent the right of silence of any of the accused.

Technical evidence related to listening devices

It only remains to refer to the evidence of Federal agent Schneider. She was a technical officer whose task it was, in concert with other technical officers, to deploy the equipment to give effect to the relevant warrants.
Two facets of her evidence are significant for present purposes.
First, she produced documentation which established that she and the other officers who set up the various listening and recording devices were, at all relevant times, approved persons for the purposes of s 219D(1).
As appears from exhibit VD23 and the evidence of the witness Forbes, it is not immediately clear when the approval actually issued in respect of Federal agent Jackson. I have no doubt that Forbes faxed a request for approval to Canberra late during the morning of 30 October 1997, following a prior telephone call by her to the Canberra Office emphasising the urgency of the matter. Jackson was not originally involved in the relevant operation, but was brought in at short notice to assist.
There is also no doubt that the requisite approval was signed at some time on that day.
Counsel for Burns and Savenkoff point to a fax endorsement, which suggests that a copy of the approval was faxed back from Canberra to Adelaide at 9.14 pm on the evening of 30 October 1997.
However, I do not take that, necessarily, to indicate that the approval was not given until then. Indeed, it would be a strange hour of the day at which to do so on any view, especially as the approving officer had been made well aware of the urgency of the matter, at the time at which the request was transmitted.
On a consideration of all of the material, I am unable to arrive at a positive conclusion as to when the approval was given, other than that it was at some time between late morning and 9.14 pm on 30 October 1997. The evidence is quite non definitive on this aspect. It is possible that the approval was not given until late evening although, as I have said, it would be strange if this was so in the circumstances. I do not regard the time endorsement on the faxed approval as being at all conclusive as to this issue. It seems to me quite possible that the faxing of the approval late that night was no more than a formal administrative confirmation of what had occurred prior to that time.
However, the net result is that the prosecution has not proved that Jackson was approved, for the purposes of s 219D(1), during the afternoon of 30 October 1997.
Second, Schneider described the manner in which the listening device equipment operated. There were two separate systems employed.
The listening device which had been installed in the plywood pack simply captured conversations within its range and re-transmitted them direct to an audio receiver at a nearby listening post - where the conversation was recorded on a standard audio cassette recorder.
All other devices captured relevant conversations and transmitted them into an integrated equipment at the listening post, where an associated video camera, filming a selected area of the front of the Holden Hill premises near where the container was actually off loaded, was synchronised with two sound channels. The sound product was then recorded, both on a master tape and working audio cassette tapes. It was possible to switch the recording mechanism from one listening device to another if desired. Each transmitted on a separate frequency.
O’Riley listened to some of the transmissions at Holden Hill, although the witness Jackson was primarily responsible for operating and monitoring the listening devices. Jackson was in the listening post all of the afternoon, physically operating the equipment. O’Riley was present supervising the operation and personally listening for about 45 minutes from some time shortly after the container had arrived. There is no doubt that he was an approved officer.
Schneider testified that she and her assistant Spooner set up and tested the equipment at Holden Hill and remained present for much of the afternoon. Jackson said that it was he who switched on and activated the recording devices, but that Schneider and Spooner were with him in the listing post for the whole of the time from when the container arrived to when Burns and Savenkoff left the premises about two hours later.
O’Riley personally activated the Yatala equipment on all occasions and monitored the relevant conversations.
All tapes upon which conversations were recorded were handed to other officers of the AFP to be transcribed under O’Riley’s direction. In a number of instances there were several editions of the transcription, to take account of the fact that certain tapes were replayed with more sophisticated equipment to ensure that the transcripts produced were as accurate as possible. O’Riley was personally involved in that activity and settled the most recent transcripts. In all he spent many hours listening to the tapes. He, personally, had, at one stage or another, spoken with all accused and had varying degrees of familiarity with their voices, as at the time of the initial transcription.

The content of the tapes of listening devices

As is to be expected, the quality of the recordings of the inputs of the listening devices used by the AFP is variable and, at times, quite poor.
Moreover, the relevant tapes extend over significant periods of time.
At some points all that can be distinguished are miscellaneous background noises, interspersed with snatches of what are obviously longer conversations or, occasionally, even only single words or short phrases. Further, in certain instances, relevant speech is embedded in the context of a variety of other discussions which are quite irrelevant to any issue in the present case. This is particularly so when one reads some transcripts of recordings made at the Yatala Labour Prison.
Particular difficulty was experienced in extracting relevant speech from the various products of the listening devices installed in the container and the Holden Hill warehouse premises. In part this was - as I have already indicated - obviously due to heavy rain beating on the metal shell of the container and, in part, the existence of a good deal of ambient, extraneous noise from miscellaneous activities in the relevant locations. During the hearing of the present application it became necessary for the prosecution to revise and consolidate relevant transcripts, as well as arrange for provision of appropriately sophisticated equipment with which to play back and listen to the recordings. That equipment markedly improved comprehension of what was being said.

Different considerations arise in relation to the tapes emanating from Holden Hill, by way of contrast with those produced by the Yatala Labour Prison listening devices.
In the former case, the tapes were generated in the context of contemporaneous activity on the part of Burns and, on 30 October 1997, also Savenkoff, said to be relevant to the primary charge in these proceedings. This activity was, in large measure, captured on the video camera. It was, in any event, activity said by the prosecution to have been directly related to the unpacking of the container and, on 30 October 1997, the extracting from it, by Burns and Savenkoff, of the packets of compressed cannabis head alleged to have been imported within the plywood pack to which reference has earlier been made; as well as the subsequent loading of the cannabis in their respective cars. The snatches of conversation which can be heard on these tapes are to be construed, as to their significance, in such a setting.
There can be no question but that several of the statements made are of very significant potential probative value in relation to the prosecution case. By way of example, reference may be made to a statement said to have emanated from Burns, on 30 October 1997, to the effect that "....you only got to do ten more so the next one ... will be a big one, or pretty big and you will never have to work again.....". There was also reference to backing the car up to the container, and a statement by Burns that is capable of the construction that he had dispatched Savenkoff to Melbourne with some of the cannabis, in the latter’s car. Moreover, a combination of the video record and certain conversation and noises captured by the listening devices in the warehouse strongly suggests that, during the unloading of the container, Burns took one or more packages of cannabis into the building and unwrapped the content.
There is also a statement attributed to Burns on 31 October 1997, with reference to two kilo "lumps" and which goes on, in the context in which it is made, to suggest that Savenkoff may well, at that time, have been delivering some or all of the cannabis in Melbourne in his motor vehicle.
Mr Rice submitted that it was important to consider the impact of the actions of Burns and Savenkoff captured on video tape at Holden Hill in conjunction with the related recorded sounds and snatches of speech, in light of the known fact that the container did, in fact, have the cannabis secreted in it. He argued that the significance arising from the combination of this material was:-
the cannabis was secreted in a pack of plywood in a very specific location within the container;
Burns and Savenkoff were clearly aware of that location and immediately cleared access, apparently direct to it, by moving other contents out of the way;
they were seen removing the cut out sheets of plywood surrounding the hidden box of cannabis packages; and comments made by them suggest that they had found what they had specifically been looking for;
Burns clearly carried at least one package into the warehouse and unwrapped it in the presence of Savenkoff;
the captured words indicated that packages were loaded into one or more cars, including that driven by Savenkoff; and
generally, the presence and activities of both men were indicative of their knowing involvement in the importation, the removal of the cannabis and the dispatch of at least some of it to Melbourne in Savenkoff’s car.
At the end of the day Mr Rice merely sought to place before the jury the video footage (as to which no issue presently arises), complemented by some segments of the audio tape as set out in the content of a typewritten log of events seen in the video footage which, in a finally edited form, has been placed before me. These segments comprise a series of statements made by Burns, either to Savenkoff, or to some other person, to whom he is speaking on a mobile telephone.
In the course of the Yatala intercepts there is no doubt that, at times, conversation between Collins, Burns and Thompson, or some of them, ranged over a variety of topics, certain of which were obviously not relevant to any matters in issue in these proceedings. On the other hand there were exchanges between those parties, or some of them, which, on one construction and when considered in the context of the overall evidence be led by the prosecution, could plainly give rise to an inference of the existence of an ongoing joint enterprise agreed upon between all three; and in which each had a part to play. It would fairly be open to a jury to conclude that references to money transactions and a large credit in a Swiss bank account referred to such a situation. References to ZoZo, South Africa and the container shipment and to possible defence strategies are also capable of giving rise to an inference that the three persons, or some of them, had been involved in the importation of the cannabis. It is true that, taken singly, these may well be equivocal as to their meaning and significance. However, it is equally true that, when considered as a totality and in context they, or most of them, could fairly support an inference that what was under discussion were aspects of a single, ongoing joint enterprise.
It must be accepted that there were specific discussions bearing upon the possible generation of a false passport for Thompson, rather than the importation of narcotic drugs, as such. However, this must be seen as part and parcel of the overall actual and proposed activities of the parties concerned and how that fitted the alleged scenario of a continuing joint enterprise.
Having said that I repeat that there was some material on certain tapes which, on any view, was irrelevant for present purposes. Indeed, by the close of the voir dire on this aspect, Mr Rice intimated that he only sought to rely on certain segments of the audio tapes in proper context; and was quite content to edit out the balance of the material.
There is no question that some of the matters discussed reflect little credit on the participants and are prejudicial, in the sense of indicating actual or proposed criminal activity not charged against them in these proceedings, or other conduct or expressed attitudes which might well be considered inappropriate and/or inconsistent with innocence of criminal conduct. Certain of the statements made may also fall to be considered as deliberately guarded references to particular persons or topics.
On the other hand, significant elements of the relevant discussion and activities adverted to are capable of being construed as part and parcel of what the prosecution say was a continuing joint enterprise between the parties, to import narcotic drugs. It is fair to say, that, if those excerpts of the various conversations which were patently relevant and admissible for present purposes were totally taken out of their overall conversational context, they would present as unreal, disconnected and relatively incomprehensible presentations of what was actually happening at the time, both in terms of the flow of the conversations and also the factual backdrop against which they were occurring.
Once again, I see no point in attempting a detailed analysis of the content of the various recorded discussions at this point in time. It suffices to indicate that, overall, there is a series of statements made by one or more of the accused which is capable of providing substantial support to the case sought to be made out by the prosecution. I will return, in due course, to specific detail, where it is necessary to do so, in discussing particular arguments advanced by counsel apropos the segments of material sought to be relied on by Mr Rice.

The relevant statutory provisions

Section 219B, relevantly, contains two specific bases for the authorisation of deployment and use of listening devices. Subsection (5) is expressed in these terms:-
“(5).. Where, upon application being made to a Judge or nominated AAT member for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to a particular person, the Judge or nominated AAT member is satisfied, by information on oath, that:
(a)the person has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a narcotics offence; and
(b)the use by officials of the agency of a listening device to listen to or record words spoken by or to that person will, or is likely to, assist officials of the agency in or in connection with:
(i)inquiries that are being made in relation to a narcotics offence that the person has committed or is reasonably suspected of having committed; or
(ii)if there are circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence - inquiries that are being made in relation to the likely commission, by that person, of that offence;
......... the Judge or nominated AAT member may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person, and such a warrant may authorize officials of the agency to enter any premises in which the person is, or is likely to be, for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.”
Subsection (7) provides as follows:-
“(7) Where, upon application being made to a Judge or nominated AAT member for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to particular premises, the Judge or nominated AAT member is satisfied, by information on oath, that:
(a).... there are a reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and
(b) the use by officials of the agency of a listing device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officials of the agency in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence;
the Judge or nominated AAT member may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officials of the agency to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device."
Such provisions fall to be read in concert with those of s 219D. This stipulates that:-
“(1).. the Authority conferred by a warrant issued to a Commonwealth law enforcement agency under section 219B shall be exercised only by the chief officer of the agency or by other officials of the agency approved, for the purposes of that warrant or of warrants issued under that section, by the chief officer or by an authorised official of the agency.
(2) in subsection (1), a reference to an authorised official of a Commonwealth law enforcement agency is a reference to an official of the agency appointed by the chief officer of the agency, by writing, to be an authorised official of the agency for the purposes of this section.
It is to be noted that s 219B has the effect that, when a warrant is validly issued pursuant to it and executed, that warrant converts what would otherwise be unlawful into a lawful act.
Prima facie, it is unlawful in this State, intentionally, to use any listening device to listen to or record any private conversation. (s 4 Listening Devices Act, 1972) It is only lawful to do so in a manner specifically authorised by either that statute or some other statute having operative force in this State, in extension of, or substitution for, its provisions.
The Act is such a statute. Section 219B, whilst both recognising (and also actually preserving) the general unlawfulness of listening to or recording private conversations, proceeds to erect a statutory code, for the purposes of narcotics inquiries, which permits such activities, as lawful acts, on compliance with that code.
The scheme of s 219B is somewhat circuitous in its mode of expression. However, its key relevant provisions are to the following effect:-
it is unlawful for an official of a Commonwealth law enforcement agency (or any person acting by arrangement with that official) to use a listening device for the purposes of narcotics inquiries unless:-
(a)the target person is the speaker of words listened to or recorded or is included in a class or group of persons by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or, not being such a person,
(b)the official does so with the consent, express or implied, of such a person; or
(c)that official does so in accordance with a relevant warrant issued under the statute.
notwithstanding any law of a State or Territory:-
“(a) an official of a Commonwealth law enforcement agency does not act unlawfully by reason only of using a listening device as referred to ... in circumstances to which [the above summarised provisions are applicable]”.
As already emerges, the warrants in question in this case were expressed to be in respect of offending conduct which was prospective at the time of issue of each warrant. Each of them was issued either in terms of subclause (5)(b)(ii) or subclause (7)(a) and (b) of s 219B.

Relevant legal principles

It was strongly urged on behalf of Burns, Savenkoff and Collins that, even if it could be said that any conversations listened to in pursuance of the s 219B warrants were relevant and lawfully recorded, nevertheless the circumstances and manner in which this was done rendered the process unfair and contrary to established policy. It was submitted that a proper exercise of the discretion adverted to in Christie and Lee (supra) mandated that evidence of the content of the conversations be excluded.
A convenient commencement point for consideration of the defence submissions is a consideration of the reasoning in cases such as Swaffield, The Queen v Goncalves (1997) 99 A Crim R 193 (“Goncalves”) and The Queen v Davidson (1996) 92 A Crim R 1 (“Davidson”), given that such cases arose from rather different factual scenarios.
In Swaffield the High Court considered two separate, but conceptually related, factual situations.
The first concerned the respondent Swaffield. He had been charged with the offence of arson. He was questioned after the occurrence of the fire and cautioned. He exercised his right of silence. Initial charges against him were not proceeded with at the committal hearing. Some time later an undercover police officer had a conversation with Swaffield, during which that officer pretended that his brother-in-law was in trouble for burning a car. Swaffield made admissions to him of his involvement in the fire which was the subject of the original charge against him. Evidence of the admissions was allowed by the trial judge, but excluded by the Court of Appeal. The Crown appealed to the High Court.
In the course of their reasons the judges of the High Court reviewed the relevant authorities. Toohey, Gaudron and Gummow JJ took, as a proper statement of the principle flowing from the well settled authorities, the following dictum of Brennan J (as he then was) in Duke v The Queen (1989) 180 CLR 508 at 531:-
“The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.”
Those judges rejected any suggestion that either the fairness or policy discretions were founded on any notion of compulsion to speak, contrary to the right to silence. They said:-
“However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”
They held that Swaffield’s admissions were elicited by an undercover police officer in clear breach of the former’s right to choose whether or not to speak.
Brennan CJ agreed with that conclusion. He held that the Court of Appeal was clearly correct in concluding that it was improper to permit the requirements of the Judges’ Rules to be circumvented by the simple expedient of a police officer donning a disguise and then proceeding to interview a suspect without a caution. Kirby J arrived at a similar conclusion. He said:-
“... To circumvent the free choice to speak or be silent, which the suspect had exercised in favour of silence, by use of an undercover police officer ... was not only productive of the risk of an unfair trial to the accused. It was also, in my view, contrary to the public policy which protects the fundamental rights of suspects and holds police, their agents and other investigating officials in check when they are engaged in the questioning of suspects. A conviction of each accused based on such evidence would have been purchased at too high a price.”
The other situation in Swaffield focused on the circumstances of Pavic, who was the second respondent referred to in the judgment of the High Court.
He was taken into police custody. There was an attempt to interview him concerning the disappearance of a man named Astbury, who had, in fact, been murdered. Pavic exercised his right of silence. He was not charged at that stage. The police then spoke with a man named Clancy, a close friend of Pavic. They persuaded him to speak with Pavic on their behalf and fitted him with a recording device. Clancy then spoke with Pavic, who made admissions of involvement in the killing of Astbury. Pavic was charged with and convicted of murder. The evidence of his statements to Clancy was admitted at trial.
Whilst Toohey, Gaudron and Gummow JJ held that Clancy had acted as an agent of the State, they considered that an important consideration was that his meeting with Pavic, who was not then in custody, had not, directly, been set up by the police. Clancy, personally, had sought Pavic out, albeit at their request. Those judges went on to conclude that, on the occasion in question, there had been no actual interrogation of Pavic by Clancy - he had not positively questioned Pavic to elicit the impugned admissions. They were, on the facts, simply made in the course of conversation which he, admittedly, stimulated.

Brennan CJ saw no public interest to be served by rejecting the admissions. He commented that:-
“In Pavic’s case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy’s consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman’s code of fair play.”
Kirby J was unable to perceive any logical distinction between the Swaffield and Pavic scenarios. He made the point, based on the reasoning in R v Broyles [1991] 3 SCR 595, that the privilege of silence having been claimed by Pavic, the police nevertheless “exploited the relationship between the two close friends in order to extract the statements from Mr Pavic which they needed”. In a compelling dictum he commented:-
“These were not conversationalists who had the relationship of two prisoners in a common cell. They were not new acquaintances engaging in conversation in a social setting. They were close friends, one of whom had been led to believe that he was a suspect and who was motivated to prove his innocence by obtaining for the police as many inculpatory admissions from the other as repeated expressions of anxiety for his own situation could elicit. The police did not remove the fears of Mr Clancy. They sent him to conduct the recording conversation, counting on those fears. They relied, in the language of Broyles, on the relationship between the two men. They would have anticipated that Mr Clancy, as their agent, would set out to exploit the special characteristics of his relationship with Mr Pavic so as to secure inculpatory statements from him. They were not disappointed. They relied on the association of trust between the two men. Because of the protested fears of Mr Clancy, they could have expected that Mr Pavic, as a close friend, would feel obligated or vulnerable. They were not disappointed. The line of questioning which Mr Clancy pursued was clearly directed to bring about the situation where Mr Pavic would be more likely to talk. By the tests in Broyles, these tactics crossed the forbidden line. I would apply those tests here.
I would take this course because, when the police arranged for Mr Clancy to act in this way, they knew that Mr Pavic had already exercised his legal entitlement to refuse to answer further police questions. The course adopted was designed effectively to deprive Mr Pavic of that right. Its purpose was to take away his right freely to choose whether to speak or to be silent in response to the serious accusation of complicity in a crime of which he was suspected.
The evidence of the conversation between Mr Pavic and Mr Clancy ought properly to have been excluded under the judicial discretion. This would not mean that Mr Pavic would walk away from responsibility for the homicide. He had offered to plead guilty to manslaughter. But it would mean that the earlier police caution to him and his refusal to answer questions would be respected. His right to require the Crown to prove its case, otherwise than from his admissions, would be safeguarded. His right to speak in awareness that what he said might be used in court would be upheld and not circumvented. The use of a person whom he trusted, and in relation to whose predicament he was vulnerable, would be discouraged. Securing the conviction of Mr Pavic of murder was important. But if such tactics become the common rule, the police caution and the right to speak or to be silent would be undermined and police would be encouraged to use family and close friends to circumvent the current law where that law proved an obstacle. It has been a common feature of totalitarian societies that police and security forces enlist the aid of family and friends to inform on suspects, overriding the legal rights of the accused. It has not until now been a feature of our society.”

However, that view was not accepted by the other judges.

The decision in relation to the evidence of Pavic’s admissions is along parallel lines with the outcomes in Davidson and in Goncalves.
In Goncalves the appellant had been convicted of one count of arson. He had been interviewed by police two days after the relevant fire and denied any knowledge of how it had started.
The prosecution case was that a friend of the appellant, Frayzer, told the police that, on the day after the fire, the appellant had volunteered to him that he had set fire to the house so that the insurance money could be claimed in respect of it. The appellant and Frayzer fell out, with the result that the latter recounted what had occurred to the police. At their request, Frayzer went to again meet with the appellant, while wearing a concealed tape recorder. He did so on a pretext that he wished to settle a difference which they had had. By something of a subterfuge Frayzer led the appellant into once more making admissions concerning the fire. These were recorded and admitted into evidence by the trial judge. The Court of Criminal Appeal upheld that admission.
Wheeler J, who wrote the leading judgment, considered that the right to silence had, at its heart, the concept of a freedom from compulsion; no one is bound to betray or accuse himself. No occasion for a caution ever arose. The appellant would have had no reason to suppose that he was under any compulsion to speak, as he did, to Frayzer. The learned judge summarised his conclusion in these terms:-
“In the end, it seems that in respect of this ground of appeal, the appellant is left with no more than the proposition that, had he known that the admissions which he made to Frayzer would be reported to police, he may well have thought better of making them. It is often the case that admissions made or other actions taken by an accused person are, when they come to be used at trial, matters of some regret to the accused. In the absence of any threat, duress, inducement, or any misuse by police of their position of authority; in the absence of any other conduct calculated to place unfair pressure on the appellant; and in the absence of any illegality or impropriety, I am of the view that the bare deception of the appellant by Frayzer concerning the purpose of the conversation, at the instigation of police, cannot be regarded as unfair. I note in this context that there was no objection made by the appellant’s counsel to the use of the tape-recorder material.”

Malcolm CJ generally agreed with that approach and held that there had been no substantive procedural unfairness. There had been no infringement of the right of silence. He emphasized that each case had to be considered on merit. Questions of degree were necessarily involved. The ultimate test was not whether the accused was treated unfairly, but whether, in all of the circumstances, the reception of the relevant evidence would be unfair.

In Davidson a girl named Nellis had been murdered. The appellant had been questioned by police and had in fact offered to assist them with their investigations. Whilst in custody serving a sentence for an unrelated matter, the appellant made admissions to a person named Don, who was well known to and trusted by him. Don communicated this to the police.
The police arranged for Don to speak further to the appellant at the prison, while having a recording device hidden on his person. This was specifically aimed at securing more detailed admissions from the appellant concerning the killing. The strategy was successful. The Court of Appeal upheld the admission of the evidence, saying:-
“There should be no difficulty with the proposition that effective police investigation may involve a necessary level of deception or subterfuge but yet not involve what should be regarded as a critical level of unfairness. For example, the use of disguises, undercover agents, covert surveillance and agents provocateurs may be considered. We do not take the judge below in the present case to have refused to exercise his discretion or to have decided in favour of the admission of the evidence on the basis that the occasion for the exercise of his discretion had not arisen although he did remark that the decision of two of the judges in Davidson and Moyle might support the adoption of that approach. Effectively, he decided that no aspect of the police deception and nothing which could be claimed to be unfair should, in the balancing exercise involved in the discretion, result in the exclusion of the evidence.”

Macrossan CJ and Mackenzie J went on to make the point that, had Don, solely on his own initiative, made an approach to the appellant to discuss the matter further and then, in breach of his confidence, offered the information to the police, no occasion for a discretionary exclusion of the evidence would have arisen. Nothing on the facts actually before the court took the circumstances outside that conceptual situation, in a manner which warranted exclusion.

In Davidson Fitzgerald P expressed views somewhat similar to those of Kirby J in Swaffield. However, they were not to prevail.
It was, of course, of particular significance in Davidson that the trial judge specifically found that, at the time when the admissions were recorded, Don was not in any position of authority over the appellant. There was no particular reason why the appellant would wish to please, or avoid displeasing, him; nor was there any apparent reason for the appellant to fear prejudice, or hope for advantage, from him. The appellant had spoken of his own free will and no pressure had been brought to bear. His will had never been overborne. The fact that his assessment of Don’s loyalty had proved erroneous was not a significant factor.
Fitzgerald P was, once more, in the minority in the case of The Queen v O’Neill (1995) 81 A Crim R 458.
The Crown alleged, in that case, that the appellant had attempted to murder her husband by injecting him with a potentially fatal dose of insulin. The relevant facts were conceptually similar to those in Davidson. The appellant made certain admissions to a friend Lally, who reported them to the police. The police equipped Lally with a concealed recording device and she had a further conversation with the appellant. The latter made incriminating statements, which were recorded and admitted at trial. One issue which arose was that the recording was of poor quality.
The majority of the Court of Appeal held that the recording of the admissions was neither improper nor unfair.
It is instructive to read the foregoing decisions in light of what was said by Cox J in Pfennig. He there rejected evidence of incriminating admissions made by the accused, whilst in custody, to another prisoner who, at the instance of the police, had purported to befriend him solely for the purpose of gaining admissions. This was after the accused had been remanded in custody on a charge of murder and, on legal advice, had exercised his right of silence. Cox J rejected the evidence on the basis that the police had implemented a deliberate strategy to circumvent the accused’s refusal to answer questions, during which their agent specifically embarked on a course of deception designed to win the accused’s confidence and persuade him to make incriminating statements. The person concerned pretended that he, himself, was under police investigation for murder.
Cox J was of opinion that the practical reality of the scheme was that the person who misrepresented himself to the accused was in a position little different to that of an undercover police officer who improperly set out to interrogate someone who had already exercised a right to silence.
In Smith, Perry J adopted an approach similar to that of Cox J. One of several persons said to have been implicated in a cold blooded murder agreed to assist police, in return for immunity from prosecution. At the instigation of the police he engaged in conversation with one of the accused, with a view to catalysing incriminating statements and recording them on a concealed audio device. That accused had not previously been questioned by the police. Perry J excluded the evidence “particularly having regard to the fact that police interrogation of Turner would necessarily have carried with it an obligation to caution” and “the admissions in question ... were elicited by deliberate statements or questions ... which, in one or two instances ... were false”. He also said that, in any event, he bore in mind “the unsatisfactory nature of the quality of the tape-recordings”.
All of the authorities indicate that each case must be decided in light of its own facts. It is, indeed, a question of degree. However, having said that, I am constrained to comment that, with respect, it is difficult to reconcile the reasoning of Cox J in Pfennig and that of Perry J in Smith with that of the High Court in Swaffield and the other authorities adverted to above, although it is certainly lent support by the reasoning expressed in The Queen v Herbert [1990] 2 SCR 151 at 184-185.
The preponderance of relevant authority renders it abundantly clear that the mere use of some lay person with a concealed recording device to engage in conversation with a suspect is not, per se, objectionable, even if it has the practical effect of circumventing the need for a caution. What is objectionable is for such a person to lead a suspect to make incriminating statements by conduct which amounts to deliberate trickery, deception, or inappropriate interrogation of a type that the court cannot condone.
It is not to be forgotten that, for example, in several of the authorities to which I have referred, some level of subterfuge was employed to facilitate the admissions, and this was found to be acceptable. As King CJ said in The Queen v Musico (1990-91) 55 SASR 274, “There is nothing unfair to an accused person in admitting into evidence statements which he has made to a person in the expectation that that person will not disclose them, provided there has been no trickery or impropriety on the part of the persons in authority”. It may, of course, be difficult in some cases, readily, to draw the line between what is and is not acceptable conduct on the part of a lay person, acting in aid of the police, in seeking to elicit information inculpating a suspect in criminal activity.
However, there is simply no evidence in this case of any conduct on the part of the Federal agents which could possibly fall within the ambit of that condemned in any of the leading authorities. The fact that any of the targets of their listening warrants had exercised a right of silence is in no sense conclusive, per se.
I therefore move on to a consideration of the so-called “eavesdropping” cases such as The Queen v Mills (1962) 46 Cr App R 336 (“Mills”) and The Queen v Keeton (1970) 54 Cr App R 267, which are consistent with the reasoning of the majorities in the cases referred to above and apply a conceptually similar logic.
As Winn J said in Mills, it is not the case that where a suspect has been cautioned and has exercised the right to silence, that person is thereafter in “a state of asylum” and, if in custody, the cell into which he is put is his own “castle” - to the point that he should be entitled to feel himself free from any eavesdropping or potential use against him of anything said during his incarceration. On the contrary, any voluntary statements made may be used against that person. This is consistent with the reasoning in The Queen v Buchan [1964] 1 All ER 502 and The Queen v Stewart [1970] 1 All ER 689. It is also in accord with what fell from Jenkinson and O’Loughlin JJ in Barker v The Queen (1994) 127 ALR 280 at 300-301 (“Barker”). See also The Queen v Maqsud Ali [1966] 1 QB 688 (“Maqsud Ali”) and the reasoning of the Supreme Court of Canada in The Queen v Herbert (supra) at 185.
A careful consideration of all of these lastmentioned cases reveals that the overwhelming weight of authority is to the effect that, absent some deliberate trap, deception, trickery or other improper conduct of the investigating authorities, there is no reason why taped intercepts of conversations incriminating accused persons, involving a quite passive role of the investigating authorities (other than actual placement of listening devices), should not be admissible in evidence. The fact that this might follow an exercise of a right of silence is irrelevant.
One overriding circumstance which may have to be considered is, of course, whether the interception and taping of a conversation has lawfully been executed, bearing in mind relevant legislation applicable to the South Australian environment. However, even where police actions are proved not to have been strictly in compliance with relevant statutory provisions, this does not lead to automatic exclusion. (See Barker at 303, Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 287-288), The Queen v Pandeli [1999] SASC 324 at 7-8 (“Pandeli”). As is illustrated in Pandeli, a balancing exercise is necessarily required.
Finally, having regard to the issues ventilated by counsel in the instant case, it is to be noted that the asserted poor quality of any recording made is not, of itself, a proper ground for excluding evidence, otherwise properly admissible, from the consideration of the jury.
There is no doubt that, where recording quality is poor and only fragments of conversation are discernible, the trial judge will need to draw the attention of the jury to that circumstance and give appropriate warnings, including a need to consider the possibilities that, taken out of a full context, the words heard may be capable of misinterpretation. As Marshall J said, in Maqsud Ali at 703, in a situation in which a recording is bad and overlaid with street and other noises, so that much of a relevant conversation is inaudible or undecipherable, those circumstances alone do not warrant exclusion of either the taped conversations or an accurate transcript of at least what can, fairly, be made out from it. That material should be left for the jury to assess, against the background of proper directions by the trial judge. I take this also to have been the view of Dowsett J in O’Neill at 556, especially where the evidence was of the offence, rather than a specific element of it. (See also R v Taylor [1993] 1 NZLR 647 at 650, R v Gordon [1993] 2 NZLR 209 at 216.)
I have dwelt upon the foregoing conceptual aspects in some detail, because they are central to contentions advanced by several of the accused, to which I shall separately come.

Specific issues

It is now possible to turn to a consideration of the specific issues raised in the relevant Rule 9 applications, apropos the s 219B warrants.
Some of these can, I think, be disposed of quite summarily.
Having regard to the evidence led before me I entertain no doubt that each of the warrants was, bona fide, sought and obtained for the purpose of gathering evidence as to possible prospective offences. There was ample material on which the Federal agents could reasonably have concluded that a continuing importation operation was in prospect and, as I have already noted, the principal prosecution witnesses were not, in the event, seriously challenged in cross examination as to the genuineness of their respective mental states.
Equally, there is unequivocal, positive evidence before me to the effect that, save for the issue related to Federal agent Jackson, the relevant Federal agents were persons approved, for the purposes of s 219D(1), to execute the warrants in question. Evidence to that effect apropos O’Riley, Schneider, Spooner and other Federal agents was not attacked.

The assertion that evidence of the conversations at Yatala Labour Prison and of the recording of them ought not to be admitted, because the prejudicial effects of doing so would far outweigh their probative value, is, in large measure, based on the fact that the admission of the material would, necessarily, reveal that:-
Collins was a prisoner and, thus, a person who had committed a serious previous offences of some type;
Burns and Thompson were, over time, associated and continuing to associate with a person who had been convicted of criminal activity; and
Certain of the conversations were suggestive of the fact that the participants were proposing to engage in and/or had already engaged in other criminal activity not charged, or at least other reprehensible behaviour.

All of this, it is said, would be highly prejudicial - to a degree which is disproportionate to the value and weight of any probative material properly emerging from the recorded evidence.

There is no short cut possible in dealing with this evidence. Each area must be examined in turn, although it is important to do so in the context of the overall flow of the conversations. However, there are some preliminary observations which may usefully be made.
In addressing objections to this type of material it is important to identify the basis on which the prosecution seeks to bring it before the court and to assign a proper characterisation to it. If it is merely part of any circumstantial evidence in the case, then a weighing of prejudice against probative value is of considerable moment. However, if it is not adduced as mere propensity evidence, but is essentially led as evidence directly related to the very facts in issue in the case, then it is difficult to perceive how it can be excluded simply because it, incidentally, reveals other criminal conduct on the part of an accused or his associates. (See Harriman v The Queen (1989) 167 CLR 590 per McHugh J at 633 (“Harriman”).)
In the instant case the prejudicial information is not sought to be led by the prosecution, as such, by way of propensity evidence. It is also not sought, primarily, to rely on it merely as part and parcel of the general circumstantial evidence - at least in its entirety.
Generally speaking, viewed as a whole, much of it arises, incidentally, as part of the backdrop of, and context within which conversations pertinent to the charges in these proceedings were listened to. (See the rationale discussed in R v Williams (1987) 84 Cr App R 299 at 301-302.) All of this material is proffered by virtue of the unity principle adverted to in The Queen v Collins (supra). It is virtually impossible to bring the key evidence arising from the taped conversations before the jury in any meaningful fashion without disclosure of the fact that Collins was in gaol at the time, his relationship with those speaking to him and at least some of the background of those persons. In short, portion of the information in question is necessarily inherent in the background of the case (as to which see examples referred to by Cross on Evidence, Australian Edn par 21040.) More significantly, it also throws important light on the relationships between the persons involved.
It is part of the prosecution case that the relevant conversations focused on a scenario which was also part and parcel of a single, ongoing, evolving chain of events in which the relevant accused all participated as a common enterprise, Bell v R (1985-6) 63 ALR 433 at 439, Rex v Bond [1906] 2 KB 389 at 400, R v Herbert (1916) VLR 343 at 346-374; and it can further be supported on the basis that the prejudicial circumstances could not be excluded without rendering the overall flow and context of the evidence unintelligible - at least in significant degree. (See discussion in O’Leary v The Queen (1946) 73 CLR 566 at 577, R v Byrnes and Hopwood (1996) 186 LSJS 106 at 143, The Queen v Thompson (1992) 57 SASR 397 at 409-410 and The Queen v Bayly (1996) 89 A Crim R 542 at 551-552.)
It is the prosecution case that the accused Collins was orchestrating his part of the scheme from prison. His ongoing relationship with Burns and Thompson is said to have been an intrinsic part of the relevant scenario and the financing of a scheme or schemes, to which all were said to be parties. Overall, the evidence is also said to confirm the existence and continuance of the very joint enterprise between the individuals concerned, which is at the core of the prosecution case. (In this regard the type of reasoning adopted by Miles CJ in R v Omar (1991) 58 A Crim R 139 at 142 is apposite.)
In my opinion, subject to a consideration of the need to edit out any plainly extraneous material in the interest of relevance, economy of time and so as to focus attention on the core issues, as earlier adverted to, the core content of the relevant tapes is generally admissible; and its probative value far outweighs any prejudicial effect. I will comment on some detailed submissions made by Mr Di Fazio, on behalf of Collins, and Mr Barrett QC in the course of that process.

Approach to the detailed content of tapes and associated transcripts

In approaching the detailed content of the Holden Hill material and, for that matter, the Yatala tapes, I bear in mind the point made by Mr Barrett QC that, as was reiterated in Swaffield, there are two potential bases, related to conduct of the police authorities, upon which a discretion to exclude may be exercised. The two prongs may, loosely, be described as public policy and fairness considerations respectively.
The former arises from a perceived need to constrain law enforcement authorities, so as to prevent their engaging in illegal or improper conduct. Theoretically, the fairness aspect involves a separate conceptual approach, in which a voluntary statement made by an accused is examined by the court to determine whether, in all of the circumstances, it would be unfair to allow it to go to the jury, even if no unlawfulness is involved.
Generally speaking, public policy considerations mainly arise in relation to evidence which is unlawfully obtained (Bunning v Cross (1978) 141 CLR 54). As was pointed out by Brennan CJ in Swaffield there is an overlap between public policy aspects and the concept of unfairness. This is because it will normally be unfair to an accused to permit the authorities to secure a forensic advantage by means of either unlawful conduct or unacceptable impropriety. The pure “fairness” considerations (absent unlawfulness) focus on situations in which conduct inducing statements throws doubt on reliability of evidence. These are the cases in which, having regard to prevailing community standards, it may be concluded that evidence has been obtained at too high a price.
Quite apart from such aspects there remains a separate, overarching third consideration, as to whether it can properly be said that detailed evidence in question ought to be excluded, because its probative value is small and its prejudicial effect is likely to be high. Here, once again, notions of basic fairness to an accused arise.
I proceed to review the detailed evidence adverted to by counsel from all of the foregoing points of view, as relevant.

Holden Hill Logo/Transcripts

I have already addressed the public policy aspects of the Holden Hill material arising in relation to the asserted status of Federal agent Jackson. There is no need to retraverse the same ground. These contentions do not lead to the conclusion that the public interest and associated fairness considerations mandate a general exclusion of the audio tape material.
Of the specific statements of Burns recorded in the two Logs/Transcripts related to Holden Hill, Mr Barrett QC, supported by Mr Wyatt, argued that statements attributed to Burns and related to possible future drug importation activity and to what is said to be the disposition of the cannabis after removal from the container (as recorded at pages 10, 14, 15 and 16 of the document) do not bear on the commission of the offence charged. They are really of the nature of propensity evidence. This is of a gravely prejudicial nature which far outweighs any probative value.
In my opinion there is no force in these criticisms.
It may fairly be said that the statements or noises contained in the combined Logs/Transcripts fall into these categories -

(30 October 1997) -

comments which infer that Burns and Savenkoff were looking for something in a specific area of the container (pages 6, 7);
statements about backing the car up to the container (pages 10, 11);
the statement concerning “the next one” and never having to work again, as earlier recited (page 10);
statements relating to finding items and loading numbers of them in the car boot (pages 10, 11);
unwrapping noises and comments concerning what is unwrapped (pages 11, 12);
Burns’ telephone conversation related to sending “the young fellow off to Melbourne” (page 14);

(31 October 1997) -

Burns’ telephone conversations relating to the 2 kilo lumps and an apparent reference to Savenkoff due to arrive in a canary yellow XE (page 15); and
Burns’ telephone conversation with instructions to go straight up the main highway and take the shortest route home (page 16).
In essence, Mr Barrett QC argued that none of those statements and noises related to the actual importation of the cannabis. At best they touched on the unpacking and distribution of the imported product; and revealed other potentially criminal behaviour, post importation. As such, they were no more than highly prejudicial propensity evidence which was either inadmissible, or ought to be excluded because the prejudice attendant on it far outweighed any probative value. Moreover, questions arose as to the proper interpretation of what were said to be equivocal statements and the extent to which the transcript correctly recorded words actually heard on the tape.
Subject to finally checking the log against the tapes, using appropriately sophisticated listening equipment, the last two points may summarily be disposed of.
I do not consider that individual members of the jury will have difficulty in identifying the words spoken. It is difficult to perceive how individual members of the jury could be operating according to different perceptions. Secondly, it is a classic jury function, on the authorities to which I have adverted, to reflect upon and decide what inferences are to be drawn from the words uttered. Given the assistance of the physical activities shown in the associated video footage and the wider, contextual evidence proposed to be led by the prosecution, it would be surprising if the jury had any real difficulty in attributing very positive connotations to at least the bulk of the words spoken.
True it is that, viewed in isolation, the comments recorded and related activities do, in a physical sense, focus on post importation criminal conduct. However, two points must be borne in mind.
First, the material in question is, in the main, directly relevant to the alternative charge against Savenkoff. It is pitched at establishing how he allegedly came in possession of the cannabis in concert with Burns and how portion of it, at least, continued in his possession when he drove away from the Holden Hill premises in his canary yellow XE car.
Secondly, whilst it also indicates the potential commission of successive offences, it not only serves to debunk any possibility of an innocent relationship between the two men, but also tends to demonstrate that the importation of the cannabis was, indeed, part and parcel of a single continuing joint venture to import and distribute the drug in question. The activity and conversations, in the context of the wider evidence, will tend, directly, to show that Burns and Savenkoff were knowing parties to the importation itself.
Whilst Mr Barrett QC strenuously sought to contend that this was no more than highly prejudicial, propensity type, evidence which should be excluded, such a submission really misapprehends both the purpose of leading the evidence and its real nature. It certainly is not proposed to be led as propensity evidence. Rather Mr Rice seeks to put it before the jury both as direct evidence of the relationship between Burns and Savenkoff and also of their participation in a joint, ongoing enterprise; and to establish the nature of that enterprise and their personal involvement in the specific importation itself. He, in effect, says that, in very real, practical terms, the events of 30 and 31 October 1997 were part and parcel of the importation scheme itself. The exclusion of it would tend to destroy the coherence of the overall evidence as to what occurred and how it came about.
In my view Mr Rice is on solid ground in so contending. His submission derives great force from the reasoning in Makin v Attorney General (NSW) [1894] AC 57 and Harriman.
It is a situation in which the evidence extends far beyond proof of a mere disposition to commit other offences. It possesses strong, direct probative force in relation to involvement in the importation itself, to the point that it would be an affront to common sense not to admit it (Harriman at 593). Indeed it could well be said that the importation itself was not complete until Burns and Savenkoff actually received and took possession of the cannabis for the purpose of its distribution and use in Australia. In reality, the activities of Burns and Savenkoff were part of the relevant res gestae. (See Harriman at 594, 628-630). What occurred was, in truth, “part of the same transaction as that under enquiry”, and part and parcel of a single connected series of events. The fact that it also involved criminal conduct amounting to a separate offence or offences is beside the point.
In such a situation it is unrealistic and not to the point to argue that references to possible future importations and to the actual steps to distribute the cannabis are irrelevant and mere evidence of criminal disposition. The material has high probative value in establishing the nature and scope of the criminal enterprise and the nature and extent of the involvement of Burns and Savenkoff in it.
It follows that the relevant evidence is admissible and no proper ground for its exclusion has been established.

The Yatala Tapes/Transcripts

There is no challenge to the lawfulness of the various intercepts.
What is under challenge is the propriety of admitting evidentiary material which is said to be either irrelevant or highly prejudicial and of small probative value, some of it being said to be no more than evidence of general criminal disposition. Issues further arise as to the quality of some of the material and what is said to be its equivocal nature.
There are numerous excerpts of the transcripts which fall for consideration. Once again, it is helpful to attempt some degree of general characterisation of it.
In doing so it is important to bear in mind, from the outset, the essential purpose for which Mr Rice seeks to lead this material, given that, undoubtedly, some aspects of it clearly indicate the willingness, if not actual intention, of Thompson, Collins and Burns to be party to the commission of future offences of a different nature.
As Mr Rice put it, the exchanges in question are sought to be adduced into evidence to establish what is said to be the obvious nature or character of the relationship between the parties over time. It is also relevant to the nature of their involvement in the importation of the cannabis and the overall joint enterprise of which it is asserted to be a part. He contended that, even insofar as any conversations referred to proposed future activities, those discussions reflected, in an important fashion, on the alleged importation itself. In that regard he invited attention, by way of illustration, to statements indicating a need to take greater care, or do things differently, in the future. He also drew attention to my reasoning in Bayly, at 551-552, and submitted that this was equally applicable to the evidence of the developing scenario in this case, as revealed by the intercepted discussions. There was an underlying unity in the events which took place, or were proposed, within the ambit of the originally agreed joint enterprise. Those events were an integral part of the history of dealings between the three men, of which the alleged importation was a key feature.
In my opinion, there is general validity in those submissions.
I turn to the detailed transcripts. In doing so it is important to view them as a continuum and not review each in isolation, because recurrent developing themes are involved, at least as to some topics.
Moreover, it is a flawed approach merely to view specific statements in isolation and to criticise them, as counsel sought to do, as being highly equivocal and open to interpretation to such a degree that a jury would need to embark upon speculative endeavour, in a quite inappropriate and potentially unfair manner.
With these aspects in mind I will move through the several transcripts in date sequences.
The broad topics which arise are:-
References to past transmission of substantial sums of money sent “away”, or associated reference to what would have happened if we had “brought that little bit of stuff in”; and Collins’ story about the reason for sending money to South Africa. Associated references to Austrac and ZoZo.
References to defective listening devices in the container and the fact that “they” weren’t ready.
Numerous references to a numbered bank account in Switzerland, containing almost $A1m, problems of accessing it due to a code change, the ascertainment of the correct code, the past drawing of $A100,000 from it, the development of arrangements to access the account in future, a possible cover story for the expenditure of past moneys, the projected authorisation of Burns to operate the account on behalf of Collins and the projected use of moneys in the future when the account was accessed.
A reference to the futility of sending 40 kilos, when it could have been a tonne.
A discussion concerning dealings with ZoZo, the payment of $A100,000 and a comment that “we all rushed into it too quickly”.
The use by Collins of a fax and telephone at Mobilong.
The possible setting up of a post office box to receive mail.
Problems which had been encountered in sending money to South Africa and the need for a proper accounting between Collins, Burns and Thompson.
The need to pay up front with any drug deal and the cost of dealing through “drug crowds” in South Africa.

(10)Surmise as to how the authorities may have become interested in a shipment to Intracon from South Africa.
(11)Discussion of activities of the police in putting pressure on “Howard” and “Bill” and attempting to access the Swiss bank account details.
(12)Discussion concerning use of Emacord debt, and selling antiques and building products to explain an overseas money transaction. Reference to ZoZo from South Africa as having “popped up the wrong time”.
(13)Reference to rushing into it too much last time and setting up a new system.
(14)Reference to “Bill” and a termination of partnership with him because of his deterioration and problems with the Emacord security for costs requirement.
(15)Detailed arrangements for producing false documentation to lead to issue of a passport, so that Thompson can go to New Zealand and then on to Europe.
[Some of these topics were recurring themes in more than one transcript.]

As at the time of the present application, a fully developed transcript, in finally settled form, had not been produced in respect of an intercept at Yatala on 5 June 1998, in relation to a meeting between Collins, Burns and Thompson, which was also videotaped. I was, however, given what I take to be a first draft of it, in the form of an audio log sheet.
The subject matter of the discussion recorded in it is, in essence, a detailed review of the means of procurement of a false birth certificate to lead to the issue to Thompson of a New Zealand passport, financial contacts of Collins in Europe and to whom Thompson should relate when there, and also some obviously irrelevant material.

Until the transcript is produced in final form it is really impossible to rule, in detail, on the potential use of its content. All that need be said, at this stage, is that, as relevant, the above topics stand on the same bases as (3) and (15) above.
In addressing the submissions as to the topics which I have summarised it is necessary to reflect upon some detailed arguments advanced by Mr Di Fazio on behalf of Collins.
He correctly identified that the prosecution sought to put in this material, as appropriate, on five bases, namely:-

(a)that it established the existence and nature of the relationships between the three men involved, both in the past and in an ongoing nature;
(b)it pre-empted a defence, at least on the part of Collins, of a possible innocent association;
(c)that it assisted in proving the existence of a single ongoing joint enterprise to which the three were parties, the proposal to produce false documentation to lead to the issue of a passport to Thompson being part and parcel of the attempt to continue the enterprise and/or evidenced a consciousness of guilt on the part of Collins and Thompson;
(d)that some of the material involves at least inferred admissions of complicity in the crime charged; and
(e)that the deletion by Collins of material on his computer evidenced a consciousness of guilt on his part.

Mr Di Fazio joined Mr Barrett QC in criticising various aspects of the material as being of an impermissible propensity nature. However, he went on to argue that, in any event, the prosecution has available to it other ample, admissible evidence of an association to import something. The abundance of that evidence is relevant, he said, in relation to a possible discretionary exclusion of what is very prejudicial material. Moreover, he declaimed, the proposed evidence was by no means cogent and discrete. On the contrary, it was far too vague and equivocal. It may not even prove possible to test it in cross examination, dependent on the course of the defence cases.
He went on to suggest that there was no substantial evidence that there ever was a Swiss bank account - Collins may have merely been fantasising. At best, the material indicates shady attitudes on the part of the discussants. Further, he said, the evidence related to the Swiss bank account was so equivocal that it was a matter of pure speculation as to the significance of the evidence bearing on it; and the introduction of the topic of a Swiss bank account to an Australian jury was likely to give rise to serious prejudice.
Mr Di Fazio further joined Mr Barrett QC in criticising what was asserted to be the general vagueness of the evidence, the need to place interpretations on it and the danger of undesirable speculation.
He went on to submit that, bearing in mind the fact that the primary purpose of the warrants was to glean evidence of future offences and that the practical effect of the intercept was to lead to self incrimination in a most undesirable manner, it was unfair to allow the relevant conversations in. He also particularly stressed the fact that the discussion of a plan to fabricate false documentation bore on an unrelated type of offence and was highly prejudicial. This was the more so, as it was by no means clear that it had anything to do with the alleged joint enterprise.
The answers to most of these submissions (of which my summary does not pretend to be more than a brief precis) already emerge from the discussion of authorities contained earlier in this ruling.
There can be no doubt that the nature and extent of the relationships between the three men (and their existence at and prior to the time of the offence alleged against them) is a critical feature of the prosecution case. As Mr Rice pointed out, it is not for the court, in effect, to limit how much evidence as to relationship ought to be called. This cannot be a relevant consideration, the more so as it is impossible to know what weight a jury will attach to specific, or a combination of, items of evidence of that type. Furthermore, although there is, no doubt, a prejudicial effect in one sense, it is important that the jury obtain a proper perspective of the nature of the relationships, as derived from what is to be gleaned as to the past and proposed future dealings between, and collective attitudes of, the parties.
It is true to say that the ultimate ability, or inability, of a particular accused to test the material in cross examination cannot usually be a weighty matter. If it were otherwise the prosecution could often be stultified in the proper proof of its case. That is a matter which will depend on the conduct, by the several accused, of their respective cases. If they do, in the event, give evidence, the problem will not exist.
I also reject the suggestions that the evidence of the Swiss bank account may be the product of mere fantasy and is so equivocal in its nature that it would be likely to lead to impermissible speculation.
In the first place this evidence is to be tested against the wider, independent evidence proposed to be led by the prosecution concerning international fiscal transactions. Additionally, there seems no doubt that the three men were all well aware of and accepted the existence of the account. More importantly, all seemed to have been familiar with an earlier transaction of about $A100,000 involving it, which had, some how, gone wrong.
Doubtless, it is a question of what the jury would make of this material at the end of the day; and how it would fit into the jigsaw with all of the other prosecution evidence proposed to be led. But that is not to say that the exercise would become impermissible speculation. The drawing of proper inferences from the substantial matrix of evidence (of which the Swiss bank account related material is portion) is a typical jury function. I see nothing in this evidence, considered in its overall proposed context, which indicates that it is of such an ephemeral, yet highly prejudicial, nature that it ought to be excluded.
Moreover, this material, considered along with the balance of the proposed prosecution evidence, does constitute evidence which is capable of throwing substantial light on the existence of a joint enterprise; and its nature and ambit.
The proposal to falsify documents and equip Thompson with a means of proceeding overseas, to continue to implement the group plans, also falls into a similar category.
Yet other material sought to be impugned is capable of giving rise to at least inferred admissions of complicity in the offence charged. References to South Africa, transactions involving Zo Zo, Austrac, the sticking to explanatory stories, past money transfers and a failure of money to go to the correct account, the statement that the project was rushed into too quickly, the problem of the identification of Collins with Zo Zo and the like, taken in context, are all capable of being connotations of complicity, as are certain of the references to where things went wrong from the AFP viewpoint. In this regard it is not merely the potential significance of the individual topic discussions which is significant (although this is not unimportant) but the combined impact of them which the jury will need to take into account.
These are all matters which a jury is fairly entitled to have before it and assess in arriving at inferences as to the totality of the circumstantial evidence ultimately under consideration. I reiterate, it is not a matter of taking each discrete item of evidence in isolation and assessing it as to relative probative value and prejudice. Rather it is a question of considering the material as segments of a larger totality and seeing how it fits in, as part of the probative evidence, due regard being had for any associated prejudice.
With all due respect, the exercise essayed by Mr Barrett QC really fell into the former category. It must, in large measure, be characterised as fallacious for that reason. No doubt various of the statements made, taken alone, are susceptible of more than one interpretation and may be of limited weight. However, their apparently equivocal nature may well be considered non-equivocal when taken as part of a much larger picture which, more clearly, indicates the proper construction to be applied to them. Their combined weight may be substantial. The assessment to be made is entirely a function of the jury.
It must be stressed that I do not accept the proposition of Mr Barrett QC that much of the material sought to be impugned is really nothing more than impermissible propensity evidence. It is certainly not proffered by the prosecution as such. Given appropriate directions, I fail to see how a jury is likely to confuse proper relationship evidence and its legitimate use with improper processes of reasoning based on general criminal inclination.
I further indicate that, in approaching this matter, I by no means ignore the point made by Mr Barrett QC that, in admitting material said to be equivocal as to its meaning on a range of topics, there is a serious danger of precipitating, in a most counter-productive manner, a series of trials within a trial to pursue the asserted competing constructions which ought to be accepted. The short answer to that is that, in any major case involving a complex of circumstantial evidentiary matters, such a possibility will always arise and is often well nigh unavoidable. Except, perhaps, in the most extreme cases that cannot be a determinant factor as to admission in evidence.
Having regard to the foregoing considerations, I am of the view that those portions of the tapes and transcripts bearing on topics (1) to (3) inclusive, (5), (8) to (10) inclusive, (12), (13), and (15) should be admitted, subject to a proper detailed review of the final content of the transcript for 5 June 1998. I would exclude the material related to the other topics because, at best, any probative value is far outweighed by related prejudicial effect and, in some instances relevance is questionable, or the references are, on any view, far too equivocal. Any references to Collins deleting material from his computer falls into the excluded category.
Having said that I desire to make it clear that there will be a residual need for the prosecution to produce edited tapes and related transcripts in conformity with this ruling for final review and debate. Clearly the transcripts should be produced first and the tapes edited when the former have finally been settled.
I will need, finally, to determine precisely what context material should be associated with each topic segment. I reserve the right, after hearing counsel, also to edit specific segments within each topic area, where this appears desirable.
When the tapes have eventually been edited I will need to be satisfied that they do accurately mirror the edited content as set out in the settled transcripts; and that the words suggested are a fairly arguable interpretation of what is on the tapes. This will, of course, overcome much of the criticism advanced concerning any possible lack of uniform comprehension of the spoken word.

[1999] SASC 493

18 November 1999