R v Coco

[1993] QCA 185

IN THE COURT OF APPEAL [1993] QCA 185

Q UEENSLAND

C.A. No. 196 of 1992

Brisbane

[R v. Coco]

T H E Q U E E N

(Respondent)

v.
SANTO ANTONIO COCO

(Appellant)

C.A. No. 205 of 1992

CASE STATED PURSUANT TO
ORDER OF de JERSEY J.

─	───────────────────────	──────────────────	────────────────────
The Chief Justice Mr Justice Pincus

Mr Justice Derrington

──────────────────────────────────────────────────────────────

Judgment delivered 27/5/93.
The Chief Justice, Pincus J.A. and Derrington J. all delivering
reasons. All agreeing as to the order to be made.

──────────────────────────────────────────────────────────────

APPEAL AGAINST CONVICTION DISMISSED AND APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED. IT IS UNNECESSARY TO ANSWER
THE QUESTIONS IN THE CASE STATED. A WARRANT FOR APPREHENSION TO
ISSUE, THE WARRANT TO LIE IN THE REGISTRY FOR SEVEN DAYS.
──────────────────────────────────────────────────────────────

CATCHWORDS: EVIDENCE - ADMISSIBILITY AND RELEVANCE - Appct convicted of offering to bribe Cwth officers - Wh evidence obtained by listening device contra s. 43 Invasion of Privacy Act - Wh inadmissible per s. 46 - Wh ought to have been excluded per Bunning v. Cross.

Counsel:	C.E.K. Hampson Q.C. with him H. Fraser for the appellant. M. Weinberg Q.C. with him G.A. Thompson and A. Gates for the respondent.
Solicitors:	Gilshenan & Luton for the appellant. D.P.P. for the respondent.
Hearing Dates:	2 and 3 December, 1992.

IN THE COURT OF APPEAL

Q UEENSLAND

C.A. No. 196 of 1992

B risbane

Before The Chief Justice Mr Justice Pincus Mr Justice Derrington

[R v. Coco]

T H E Q U E E N

(Respondent)

v.

SANTO ANTONIO COCO

(Appellant)

C.A. No. 205 of 1992

C	ASE STATED PURSUANT TO
ORDER OF de JERSEY J.

JUDGMENT - THE CHIEF JUSTICE

Delivered the twenty-seventh day of May, 1993

The appellant was convicted on 6 June, 1992 of an offence of offering to bribe named Commonwealth officers, this being an offence under s. 73(3) of the Crimes Act 1914.

On 9 June, 1992 he was sentenced to a term of imprisonment of eighteen months, it being ordered that he be released on his own recognisance after serving six months of the term. In the particular circumstances of the case, influenced by the fact that there had been critical questions of admissibility of evidence involved, the trial judge granted bail pending the determination by the Court of Appeal of the appeal which has been brought. Questions of law have also been reserved for the consideration of the Court of Appeal by the trial judge and these are similar to those argued on the appeal against conviction. In the event that his appeal against conviction does not succeed, the appellant seeks leave to appeal against his sentence.

The appellant had originally been charged jointly with his brother-in-law, Mr Angelo Vasta, on an indictment containing a number of counts. Only one of the counts, that which alleged a conspiracy between the appellant and Mr Vasta, related to both accused. The remainder of the counts charged the appellant alone with a number of offences of offering to bribe and of threatening Commonwealth officers. Different times, alleged as being between 31 July, 1989 and 14 November, 1989 were stated for these various offences.

After the trial on the original indictment commenced evidence was taken on the voir dire and extensive argument was addressed to the trial judge. The outcome was that an order was made for separate trials of the two accused and a new indictment containing just four counts was presented against the appellant alone. At the commencement of the trial of the appellant on the new indictment the trial judge adopted a convenient course, accepted by the parties, of repeating certain of the rulings which he had already made on questions of law raised during proceedings on the first indictment.

In the trial which followed on the new indictment the appellant did not give evidence. At its conclusion he was found guilty of offering to bribe two named Commonwealth officers, Feeley and Savatovic, between 4 October, 1989 and 24 November, 1989, not guilty of conspiring with Mr Vasta to defraud the Commonwealth between 31 July, 1989 and 24 November, 1989 and not guilty of threatening a Commonwealth officer in the performance of his function on 14 November, 1989. On a further count of offering to bribe the same two Commonwealth officers who were involved in the count on which the appellant was found guilty, but at an earlier time, viz. between 31 July, 1989 and 5 October, 1989, the jury were unable to reach agreement.

At the trial evidence admitted against the appellant had been obtained by the use of both hidden tape recording and transmitting equipment to record and transmit conversations which took place between the appellant and the two Commonwealth officers, Feeley and Savatovic. Further evidence had been obtained by "tapping" telephone conversations taking place between the appellant and Savatovic by means of a device which enabled the conversation to be recorded at Savatovic's end of the line. Other evidence came from the use of what was called a "listening device", which had been secretly put in place on 6 November, 1989 in the appellant's office situated in the premises of a company, Cosco Holdings Pty. Ltd., of which he was Managing-Director. The placing of the listening device had been effected by police officers who posed as Telecom officers to gain entry to the premises of Cosco Holdings. The implanting of the listening device was done purportedly pursuant to an order made by a Supreme Court judge, Carter J., on 26 October, 1989. The authorisation given by the terms of that order was subsequently extended on 20 November, 1989 for a further period by order of the same judge. Part of the evidence coming from the telephone tapping of conversations between the appellant and Savatovic was duplicated by evidence of the spoken words picked up by the use of the listening device placed in the appellant's office.

The argument for the appellant was that the evidence obtained as a result of the listening device when it was not duplicated from other sources was wrongly admitted, it being said that the effect of ss. 43(1) and 46 of the Invasion of Privacy Act 1971 was to exclude it. The exclusion was said to result because the legislation introduced a general ban on the use of evidence and this particular evidence did not fall within the exceptions provided for in s. 43(2). There were a number of matters which, it was argued, had the effect of excluding the evidence obtained by the use of the listening device. They included the following: the terms of the authority given by the order of Carter J.; the limits placed by s. 43(2) on the judge's right to grant an approval; the manner in which police officers gained entry onto the private premises of Cosco Holdings to fix the listening device and the manner in which, once it was fixed, it operated, viz. in a way which, unknown to the occupier, consumed electric current for which the occupier was left to pay. It was contended that the order made by the judge did not purport or was not competent to justify some or all of these irregularities which had occurred: the trespass said to be involved in installing the device; the deception of those entering in pretending to be Telecom employees, thereby, as it was claimed, involving themselves in the commission of a criminal offence under s. 75(b) of the Crimes Act 1914; and the unauthorised abstraction of power at the expense of the appellant's company. It was said that if the judge's order, on its proper construction, did purport to authorise these actions it was beyond power. In addition, the police force members who acted in the matter were said not to be acting within the further strict limits on their authority as police officers laid down by s. 43(2)(c)(i).

It was also argued that if the allegedly illegal or unlawful actions associated with the use of the listening device did not result in a statutory exclusion of the evidence obtained by its use, the evidence should, in the circumstances, have been excluded in the exercise of the discretion referred to in the familiar line of cases which includes Bunning v. Cross (1978) 141 C.L.R. 54.

The questions involving admissibility of evidence require consideration to be given to a number of provisions of the Invasion of Privacy Act. The following are of particular relevance.
Section 4 contains a definition of "listening device" which, unless the contrary intention appears, means:

"any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place."

Section 4 also contains a definition of "private conversation" which, unless the contrary intention appears, means:

"any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so".

Part IV of the Act carries the heading "Listening Devices" and ss. 41 to 48 inclusive fall within that Part. Section 42(2) says:

"A reference in this Part to a party to a private

conversation is a reference -

(a)  to a person by or to whom words are spoken in the course of a private conversation; and

(b)  to a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words."

Section 43, in its subss. (1) to (6), reads as follows:

" 43. Prohibition on use of listening devices. (1) A person is guilty of an offence against this Act if he uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a penalty not exceeding $2,000 or to imprisonment for not more than two years or to both such penalty and imprisonment.

(2) Subsection (1) of this section does not

apply -

(a)  where the person using the listening device is a party to the private conversation;

(b)  to the unintentional hearing of a private conversation by means of a telephone;

(c) to or in relation to the use of any listening device by -

(i)  a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by -

(a) the Commissioner of Police;
(b) an Assistant Commissioner of Police; or an officer of police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorize the use of listening devices,
under and in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval;

(ii) an officer employed in the service of the Commonwealth in relation to customs authorized by a warrant under the hand of the Comptroller-General of Customs and Excise to use a listening device in the performance of his duty;

(iii) a person employed in connexion with the security of the Commonwealth when acting in the performance of his duty under an Act passed by the Parliament of the Commonwealth relating to the security of the Commonwealth.

(3) In considering any application for approval to use a listening device pursuant to subparagraph (i) of paragraph (c) of subsection (2) of this section a judge of the Supreme Court shall have regard to -

(a) the gravity of the matters being

investigated;

(b)  the extent to which the privacy of any person is likely to be interfered with; and

(c) the extent to which the prevention or detection of the offence in question is likely to be assisted,

and the judge may grant his approval subject to such conditions, limitations and restrictions as are specified in his approval and as are in his opinion necessary in the public interest.

(4) An application to which subsection (3) of this section relates shall be made as prescribed by Rules of Court or in so far as not so prescribed as a judge may direct, and shall be heard ex parte in the judge's chambers. No notice or report relating to the application shall be published and no record of the application or of any approval or order given or made thereon shall be available for search by any person except by direction of a judge of the Supreme Court.

(5) The Commissioner of Police shall -

(a)  as soon as practicable but not later than seven days after the granting of an authorization pursuant to subparagraph (i) of paragraph (c) of subsection (2) of this section cause the Commissioner to be informed of such authorization;

(b)  cause a record to be kept of all authorizations granted pursuant to subparagraph (i) of paragraph (c) of subsection (2) of this section;

(c)  furnish to the Commissioner in respect of each authorization at intervals of not more than one month a report containing such particulars as the Commissioner from time to time requires of the use of any listening device by any member of the police force to overhear, record, monitor or listen to any private conversation to which the member was not a party.

(6) A person referred to in paragraph (c) of subsection (2) of this section who uses a listening device to overhear, record, monitor or listen to any private conversation to which he is not a party shall not communicate or publish the substance or meaning of that private conversation otherwise than in the performance of his duty."

Sections 44 and 45 impose certain restrictions upon the
communication of the contents of private conversations and
subss. (1) and (2) of s. 46 then proceed in the following terms:

" (1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43 of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings.

(2) Subsection (1) of this section does not render inadmissible -

(a) evidence of a private conversation that has, in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, if a party to the conversation consents to that person given the evidence;

(b) evidence of a private conversation that has, otherwise than in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, notwithstanding that he also obtained knowledge of the conversation in such a manner; or

(c)  in any proceedings for an offence against this Act constituted by a contravention of, or a failure to comply with, any provision of this Part, evidence of a private conversation that has in the manner referred to in that subsection come to the knowledge of the person called to give the evidence."

The Crown's case at the trial was that the appellant, in early August, 1989, had provided to the Commonwealth officers, Feeley and Savatovic, some indication that he was prepared to resort to corruption to gain access to the taxation returns of named persons whom he apparently considered were involved in the downfall from office of his brother-in-law, Mr Vasta. He indicated that he wanted the returns in order to "dig up dirt" upon those persons as a step in clearing the family's name and securing Mr Vasta's reappointment as a judge of the Supreme Court. Later in the same month the appellant made a further remark to one of the officers reflecting some adherence to this plan. Feeley and Savatovic, at the instigation of the Australian Federal Police, then spoke further with the appellant with the object of obtaining firm evidence of his intentions. The further communication included conversations with him on 4 October at the premises of Cosco Holdings when the two officers were equipped with recording and transmitting devices to cause to be recorded what might pass amongst the three of them. This conversation would be encompassed by the definition of "private conversation" contained in the Act but when the further terms of the Act are regarded it is seen that different considerations apply to it as compared with later conversations which will be referred to. The conversation of 4 October took place amongst three persons who included the two Commonwealth officers and their participation as parties results in an exclusion of the general prohibition on use of listening devices which is imposed by s. 43(1): see the exclusionary term more particularly provided by subs. (2)(a) of s. 43.

Further conversations occurred between the appellant and the officers and they were recorded by the use of the listening device which was installed by police officers in the premises of Cosco Holdings on 6 November, 1989. As has been mentioned, the contents of recordings made by the listening device were duplicated in part by tapping of the telephone line connected to Cosco Holdings' premises carrying conversation between Savatovic and the appellant. Again, since the Commonwealth officer was a party to those conversations (taking place on 13 and 14 November) they were excluded from the provisions of s. 43(1) by s. 43(2)(a). Evidence of all conversations picked up and recorded by the use of the implanted listening device after 6 November up to 7 December, that is, conversations monitored and recorded only through the use of the listening device and not available from other sources, was objected to on grounds said to arise under the Act. Broadly, all of the conversations having some tendency to implicate the appellant, whether established by use of recording, transmission, the telephone tapping or the use of the listening device, were objected to on the discretionary ground said to arise under the Bunning v. Cross principle.

The count of the indictment on which the appellant was found guilty involved the Crown's reliance on offers to bribe said to have been made between 4 October and 24 November. The appellant had been arrested on 23 November and admitted to bail.

The listening device which had been installed continued to pick up conversations taking place in the appellant's office after the date of his arrest and the device itself was not in fact removed until 4 January, 1990.
The original order approving the use of a listening device made by the Supreme Court judge on 26 October, 1989 purported to confer authorisation but its effect was necessarily controlled by s. 43 of the Act. Relevant portions of the order made were in these terms:

"I HEREBY APPROVE, pursuant to s. 43 of the Invasion of Privacy Act 1971-1988, the use of listening devices in connection with the matter of police investigations relating to corruption, including an offence of corruptly influencing Commonwealth officers under Section 73(3) of the Crimes Act 1914, such approval being as follows:-

(1) that Kenneth Charles SCANLAN of the Queensland Police Force by himself or by means of any other person engaged in or assisting the investigation of the said matter, use any listening device or devices capable of recording, overhearing, monitoring or listening to a private conversation simultaneously with its taking place, such listening device or devices to be installed in premises ... occupied by COSCO Holdings Pty. Ltd., at corner of Antimony and Emery Streets, Carole Park in the State of Queensland."

The order was expressed to apply until 23 November, 1989 or further order and was further expressed to be subject to the following conditions amongst others:

"1. That any authorised Police Officer or person engaged in, or assisting the investigation of the said offence, to enter and remain upon the said premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices."; and

"4. That the intended procedures set forth in the affidavits of Kenneth Charles SCANLAN and John William ADAMS both sworn the 26th day of October 1989 be complied with."

Approval on the same conditions as previously and further conditions, which it is unnecessary for present purposes to refer to, was extended by further order until 7 December, 1989.

Action was taken under the judge's order of 26 October, 1989 by the Kenneth Scanlan referred to, he being a Detective Inspector of Police. Scanlan obtained an authority from Mr Redmond, Acting Commissioner of Police, dated 27 October, 1989. It was in these terms:

" INVASION OF PRIVACY ACT 1971

A U T H O R I T Y

I, Ronald Joseph REDMOND, Acting Commissioner of Police for the State of Queensland, HEREBY AUTHORISE Kenneth Charles SCANLAN, Detective Inspector of Police in the use of listening devices under and in accordance with an approval given in writing by Mr Justice W. CARTER, a Judge of the Supreme Court of Queensland at Brisbane on the twenty-sixth day of October 1989, in connection with the investigation referred to in the said approval.

A copy of the said approval is attached hereto.

This authority extends as from the time and date of this Authority until the conclusion of the Investigation in connection with which the said approval has been given pursuant to the said section.

DATED at Brisbane this twenty-seventh day of October,

1989.

ACTING COMMISSIONER OF POLICE."
It will be noticed that the Acting Commissioner's authority
referred to had, as an attachment to itself, a copy of the
judge's written approval of 26 October, 1989. The judge's order
in its condition (4) directed that the intended procedures set
out in Scanlan's affidavits be complied with. One of Scanlan's
affidavits sets out that the Acting Commissioner of Police had
instructed him to act; that if the Court granted approval he
would be involved in supervising the installation of listening
devices and monitoring communications taking place; that the
Australian Federal Police Technical Unit members who would be
authorised in writing by him would assist in the installation of
the listening devices at the premises; that named persons would
be authorised in writing by him to monitor the devices and
listen and record; that additional persons would only be
authorised if circumstances required it; that an extended period
might be required for the installation of the device because the
factory premises operated on a twenty-four hour basis and
employees were present at all times; that original tapes would
be held under the control of Detective Superintendent Adams and
that material might be divulged to officers in the offices of
the prosecuting authorities. A supporting affidavit from Mr
Adams, Detective Superintendent of the Australian Federal
Police, had also been filed in support of the application for
the order from the Supreme Court judge. It stated that Adams
was engaged in conducting a police investigation into an offence
of corruptly influencing Commonwealth officers contrary to
s. 73(3) of the Crimes Act 1914.
The position then was that a substantial body of significant evidence admitted at the trial was obtained by the use of the listening device installed in the premises of Cosco Holdings. The argument for the appellant was that it was obtained in breach of s. 43 of the Act. If this argument is correct then the evidence was inadmissible by virtue of s. 46(1) not being removed from the category of non-admissibility by any of the exclusions specified in s. 46(2). The last mentioned subsection allows exceptions where a party to the conversation intercepted by the listening device consents to the evidence being given (subs. (2)(a)) or the evidence of the conversation comes also from a source other than the use of the device (subs. (2)(b)) or under subs. (2)(c), in the case of proceedings for offences against the Invasion of Privacy Act. None of these exceptions were applicable here. The immediate question raised by s. 46(1) then is whether the evidence in question resulted directly or indirectly from the use of a listening device in contravention of s. 43.

The conversations between the appellant and others, including Mr Vasta, picked up through the use of the listening device, were undoubtedly private conversations as defined. This conclusion seems inevitable from the contents of the conversations themselves when examined and from the circumstances in which they occurred and it was not contested. It was also not disputed that the device installed following the making of the order by the Supreme Court judge on 26 October, 1989 was a device of the kind defined in s. 4 of the Act. Its obvious function and the result it produced when installed sufficiently demonstrated this.

One question which must be considered is concerned with the scope of these words appearing in s. 43(1):

"A person is guilty of an offence against this Act if he uses a listening device to overhear, record, monitor or listen to a private conversation ..."

On this aspect, the argument for the appellant was that when the police trespassed either directly or by the use of a deception to gain entry to the premises of Cosco Holdings and installed the device and did so without the knowledge of the occupier so that it consumed mains electrical power for which the occupier was liable to pay, they acted outside the ambit of protection afforded under s. 43(2)(c)(i). It was said that the officers of police when they gained entry by impersonating Telecom employees breached s. 75(b) of the Crimes Act 1914 and in abstracting power breached s. 408 of the Criminal Code. The argument was that the actions of the police officers could not be protected for the reasons that the Court authority given on 26 October, 1989 did not, on its proper construction, authorise or fully authorise such illegal or unlawful acts and if it purported to do so it was beyond the reach of any power which the judge possessed either under the Invasion of Privacy Act or any other source. At the centre of this argument was a submission that the preliminary actions involved in connection with the installation of the device themselves amounted to the "use" of a listening device to overhear, etc. within the meaning of s. 43(1).

It is apparent that there is some ambiguity in the phrase "uses a listening device to overhear, etc.". The infinitive, in its grammatical form in that context, could be taken to mean "for the purpose of" (overhearing, etc.), this constituting what was described in argument as the broad meaning or it could be regarded as conveying "in such a way as to" (overhear, etc.) - the narrow meaning.

Suggesting that in the action of installing the device with a clear purpose in mind of putting it to subsequent use the police and their agents were already engaged in using the listening device, the appellant's argument pressed for the adoption of the broad meaning. It was argued that the consequence was that the "use" exceeded the limits and the possible limits of the authority available to the judge with the result that the use could not be said to be "in accordance with an approval in writing" within the meaning of s. 43(2)(c)(i)(b).

This argument was rejected by the learned trial judge and it

should be concluded that his conclusion was correct.

In context, the meaning which has been referred to above as the narrow one should be preferred for the construction of "uses" in s. 43(1). It is a more natural meaning of the word in the larger phrase in which it is found. The police were only using the device to overhear, record, monitor or listen to a private conversation when, following installation, a conversation was being recorded or the words of the conversation were being listened to or at the very least when following installation the device and the connected links in the process were rendered operational and activated for the intended purpose. For these actions involved on the part of the police, the judicial order of 26 October, 1989 provided the necessary approval. It could not validly be argued that the words of the authority would not serve to cover this end product of the overall activity and, equally, it could not be argued that the empowering effect of the words of subs. (2)(c)(i)(b) was not sufficient to cover the activity embraced if the narrow meaning of "uses" is adopted. In deciding that the narrow meaning is the correct one to adopt it is unnecessary to examine in close detail a number of Canadian decisions to which the Court was referred. In those decisions, judges in that jurisdiction expressed opinions either for or against similarly narrow or broad meanings in considering legislation dealing with a similar subject-matter, although differently constructed and employing concepts which depart from those found in the Invasion of Privacy Act. Thus Lyons v. The Queen 15 C.C.C. (3rd) 417 which contains references to other Canadian decisions cited to us and other cases as well includes statements of opinion that the activity comprehended by the expression "wilfully intercepts a private communication", includes an entry made on land to place the device which results in interception. Although Lyons v. The Queen and the decisions referred to in it may be examined for the general enlightenment which they may throw on the present problem, it would be a mistake to consider that the meaning attributed by a court in a different jurisdiction to words in statutes differently phrased should be transposed to place a parallel construction on words in a Queensland statute: cf.

National Mutual Life Association of Australasia Ltd. v. Godrich

(1909) 10 C.L.R. 1 at 13-14 per Griffith C.J.; Humphries v. Smith ex parte Smith (1963) Qd.R. 67 at 75 per Stable J.; and Smith v. Commissioner of Corrective Services (1978) 1 N.S.W.L.R. 317 at 325 per Hutley J.A. In the end, the principal task must be to consider the words of the Queensland section in the wider context of the Act overall and apply the meaning which results from that familiar exercise of statutory construction. Adopting that approach, the meaning which has been referred to as the narrow meaning should be favoured. This result, once adopted, has the consequence that the matters argued concerning the legality of the various collateral acts involved in the installation of the listening device do not demand a conclusion from us in this appeal. If the act of "using" correctly understood was authorised by the judge's order and within the ambit of permitted authorisation under the legislation any illegality involved in earlier actions of the police cannot affect legal admissibility under the statute. This, of course, reserves consideration of any Bunning v. Cross point.

These same considerations already expressed really dispose also of another point that was argued. The use of the listening device if it is to be protected under s. 43(2)(c)(i) must not only be a use in conformity with the written approval of a Supreme Court judge, but must also be a use made by a member of the police force acting in the performance of his duty and with the written authorisation of the Commissioner, an Acting Commissioner or other officer of police in the category specified in the subsection. The first of these additional conditions which must be satisfied is that any police force member using the listening device should be acting in the performance of his duty. It was not and could not on the evidence have been suggested that when listening to or monitoring, etc. the relevant conversations the police officers involved were doing other than discharging their official duties. This separates that activity from the actions occurring at an earlier time in the entry to place the listening device in position and set it up in operating mode connected to the electricity supply of Cosco Holdings. It thus disposes of the argument that the police were at the earlier time acting unlawfully and illegally and for that reason could not be regarded as acting in the performance of their duty. Whether or not the officers could properly be regarded as acting in the performance of their duty when they made entry on the premises and connected the device in operating mode and did so in a manner which was unlawful or illegal (assuming for the purposes of argument that those actions were in fact unlawful or illegal), they were not within the meaning of s. 43 at that time engaged in using the listening device to overhear, record, etc. a private conversation. The use that was relevant within the meaning of the statute commenced only after the actions connected with installation had been fully performed. To the extent that the use may have involved the consumption of some electric power, that should not be regarded as removing the action of the user from a category of one done in the performance of his duty to one done otherwise. There does not appear to have been evidence that the user of the device for listening or recording purposes on each relevant occasion knew of any ongoing abstraction of electrical current or any of the details of the manner in which the device had been installed. An inadvertent or unknowing infringement of someone else's rights in such a minimal way would not, within the scope of any principle explored in cases to which we were referred (e.g. Plenty v. Dillon (supra), Morris v. Beardmore (1981) A.C. 446 and Beer v. McCann 57 A.Crim.R. 101), have the effect of removing the act from the category of one done in the performance of duty if otherwise it fell within that category. When what has been referred to as the "narrow" meaning is adopted for "uses" in s. 43(1), a similar meaning should be applied to "use" where it appears in the opening words of s. 43(2)(c). Preceding unlawful conduct of which the one who uses the device is unaware does not mean that the user cannot be "acting in the performance of his duty".

The discussion so far puts to one side a more difficult question which it has not been found necessary to resolve in this case, namely whether the jurisdiction given by the Act to a judge to authorise use carries with it perhaps by necessary implication a jurisdiction to authorise and so make lawful by force of the statute a class of activities which otherwise could not be regarded as lawful. Without expressing any final opinion it can be said that there is force in the contention that such jurisdiction by implication may exist.

The matters referred to in s. 43(3) might support such a contention. That subsection envisages that grave matters may be under investigation concerned with the commission of offences calling for detection and even prevention and also that the privacy of persons may have to suffer some inevitable interference with the occasion reasonably calling for the imposition of conditions, including conditions necessary in the public interest. The whole of the language is more consistent with a draftsman's contemplation that private rights beyond the rather basic one of engaging in a private conversation may be intruded upon. The observations of the Minister for Justice in the course of moving the introduction of the bill in the Legislative Assembly on 13 October, 1971 were drawn to our attention: see Hansard of that date at p. 1063. Although the Minister's remarks are not specific enough to provide a definite indication of intention, his reference to penetrating the privacy of homes by technologically advanced forms of surveillance, might be regarded as contemplating that acts of what would otherwise be trespass could be carried out under cover of the bill. Perhaps the most that can be said is that there is nothing in his remarks which discourages the adoption of such a meaning.

Even if under the Act it were to be held that a judge is given certain authority to authorise incidental actions which would otherwise be unlawful or illegal, it could be expected that there would exist a distinct limit on the extent of the authorisation which could be given. While the granting of any approval in respect of incidental actions otherwise unlawful would be a discretionary matter for judgment by the judge, if he has such a power at all, the limit to that discretion would necessarily be reached at the point of what was not only necessary to overhear conversations but also was reasonable to that end. While relevant conversations might take place in a variety of circumstances, the limits upon the judge's authority might be found in what was both reasonable and necessary in terms of the object of the statute. The intention of the statute is to preserve the opportunity in appropriate circumstances for conversations to be overheard by law enforcement officers and minimal activity of a kind which would otherwise amount to trespass or damage to property might be considered reasonable and necessary but it could hardly be suggested that injury to persons or serious damage to property would fall within that category and so be capable of authorisation by a judge. However, nothing in the nature of a definite conclusion calls to be expressed on this occasion and the matter can be left without attempting to reach one. A salutary reminder of the presumption against a construction giving implied authorisation of an illegality is to be found in Plenty v. Dillon (1991) 171 C.L.R. 635 and in considering whether an implication arises, it has to be conceded that s. 43(2)(c) would not be deprived of all application if it were to be held that it does not authorise the commission of what would otherwise be a trespass. In some circumstances, e.g. when the conversation occurs in a public place, a "private conversation" may be overheard by the use of a "listening device" without any trespass being committed, although to limit the application of the subsection to situations not involving entry on private premises would be to limit it very much indeed.

Some helpful discussion showing the difficulty of sketching policy limits in this area when they must be found by implication is shown by the cases referred to in Lyons v. The Queen (supra).

A further aspect of the necessary authority which the Crown was obliged to argue for under s. 43(2)(c)(i) is the existence of authorisation in writing by the Commissioner or an Assistant Commissioner of Police or a police officer "of or above the rank of Inspector who has (himself) been appointed in writing by the Commissioner to authorise the use of listening devices". The contention of the Crown is that the police force members using the listening device in this case were authorised in writing by Scanlan who had himself been appointed in writing by the Commissioner to authorise the use. The contrary contention for the appellant was that while Scanlan had a written authority from the Commissioner, he was not given any authority to authorise use by others.

Scanlan's own proposals for use, if he were to receive authorisation, were set out in his affidavit sworn on 26 October, 1989. In that document he referred to a number of officers who would "be authorised in writing by (himself) to monitor the listening device(s) and to listen and record ...". On the day on which that affidavit was sworn the judge made his first order approving use of listening devices. The order gave approval for Scanlan "by himself or by means of any other person engaged in or assisting the investigation of the said matter (to) use any listening device or devices capable of recording, overhearing, etc.". One of the conditions to which the order giving approval was made subject was that "the intended procedures set forth in the affidavits of (Scanlan and Adams) both sworn the 26th day of October 1989 be complied with". By a written authority dated 27 October, 1989 the Queensland Acting Commissioner of Police gave authority to Scanlan, a "Detective Inspector of Police in the use of listening devices under and in accordance with an approval given in writing by Mr Justice W. Carter ... on the twenty-sixth day of October 1989, in connection with the investigation referred to in the said approval" and it was added, "A copy of the said approval is attached hereto".

There is thus a series of internal references in these documents that connect them together. Scanlan's proposal to authorise others was before the judge who, for his part, decreed that there should be compliance with Scanlan's proposals. The Acting Commissioner's authorisation of Scanlan in the use of listening devices was in accordance with the approval given by the judge and was therefore fairly to be regarded as an approval authorising the use by other named officers. In the circumstances, no difficulty is seen in the way of regarding the authority of 27 October, 1989 as an appointment in writing of Scanlan to authorise the use of listening devices. Apart from a requirement that the authority relevant in this case should be in writing, s. 43(2)(c)(i) imposes no requirements as to the form of that authority. The effect of the Acting Commissioner's authority of 27 October can thus be gathered by considering its substance and by paying due regard to the internal reference within it or to the trail of references to which by its terms it directs attention.

A further feature of s. 43(2)(c)(i) which must now be considered is that it is necessary that the agents authorised to use the listening device must be members of the police force. The relevant phrase more fully expressed is "a member of the police force acting in the performance of his duty". The appellant's argument was that only Queensland police officers could be included in that description. As on some of the other questions with which we are concerned in this appeal, there has been divergence in the views expressed by members of the Full Court on this question. The divergence is such that it is not clear that the Court should now regard itself as bound by those expressions of view or in what way it should regard itself as bound, although it is, of course, assisted by having regard to them. On this question in Shaw v. Coco 102 A.L.R. 75 reporting the appeal from the decision of Lee J. on questions which arose at an earlier stage in the committal proceedings involving the present appellant, McPherson J. (as he then was) at p. 80 seems to have considered that the words quoted, "a member of the police force", should not be regarded as applying only to the Queensland Police Force and at p. 82 he seems to have regarded this conclusion as fortified by Dowsett J.'s reasoning to arrive at the same final result through an effect given to s. 9 of the Australian Federal Police Act 1979. The third judge, Ryan J., was of a different view on the meaning of the words "member of the police force". With all respect to those who differ, the better conclusion would seem to be that those words should not be narrowly construed so as to exclude the possibility that members of police forces in other jurisdictions can be authorised by the nominated officers referred to in (a) and (b) of s. 43(2)(c)(i), that is, that the approach of McPherson J. on this topic should be preferred. While it seems correct that those nominated officers with the power to authorise should be the persons filling the specified ranks in the Queensland force, a similar conclusion does not seem to be called for in considering the words "member of the police force". Apart from the arguments referred to in Shaw v. Coco (supra) based on such matters as the form of the language adopted where reference is made to "the police force" and the absence of capital letters such as would be expected if the intended reference were to the Queensland Police Force, the purpose of the legislation encourages a wider reading. The whole matter of the use of listening devices is kept under the control of the Supreme Court judges so it is not a situation where control is abandoned to some agency within the jurisdiction which might be thought less responsible or to some body outside it. On the other hand, the legislation would cover the needs of situations where permission for investigation by non-Queensland agencies might be requested and, in a spirit of co-operation, reasonably granted. This would not be regarded as a surprisingly wide interpretation. However, it is easy to appreciate that in the interests of keeping the utilisation of these investigative techniques under reasonable control, it was thought desirable to restrict active involvement to police officers who are bound by their usual disciplinary rules. Without referring at all to s. 9(2) of the Australian Federal Police Act 1979, the construction which should be given to the language of s. 43(2)(c)(i), in its context and having in mind the obvious general objects of the legislation in which it is found, is that the phrase "member of the police force" is wide enough to include members of police forces established outside Queensland, thus including members of the Australian Federal Police. This conclusion makes it unnecessary to consider whether s. 9(2) of the Australian Federal Police Act 1979 adds some support to this interpretation but again with respect to those disposed to think otherwise, the tentative view may be offered that the argument advanced on behalf of the appellant concerning the effect of the section of the Federal Act was correct. Section 9(2) of that Act directs attention to State laws containing references to police officers and we see such references in s. 43(2)(c)(i) of the Queensland Act. But the next concern of s. 9(2) is with State provisions which "apply in relation to offences against the laws of the Commonwealth or of a Territory" and the Queensland subsection does not seem to have that character. As the appellant's argument submitted, s. 43(2)(c)(i) is simply a provision of State law relating only to the non-application of another provision of State law. Section 43(1) does not call to be classified as a provision applying "in relation to offences against the laws of the Commonwealth or of a Territory". It makes no reference direct or indirect to such laws and in fact does no more than create an offence under Queensland law. Section 9(2) of the Federal Act is probably intended to deal with State laws dealing with offences which are more specifically made applicable to offences against Federal law: cf. s. 68 of the Judiciary Act 1903. However, further consideration of this topic can be left on this occasion.

It is necessary to deal with the challenge made to the ruling of the learned trial judge on the Bunning v. Cross discretionary ground. He ruled that he would not exclude the evidence which was objected to. The submission which is now made on behalf of the appellant should not be accepted. The matter was carefully considered by the trial judge in the exercise of his discretion and no reason is shown to question his conclusion or depart from the approach which he took.

It is said that the two Taxation Office employees induced the appellant to commit the offence of bribery. This was a matter which called for assessment by His Honour. There is no doubt that, seeking stronger evidence, the officers returned to the relevant topic in conversation on a later occasion but it had clearly enough already been introduced by the appellant himself. The evidence points to a continuing willingness on the part of the appellant to make a payment in exchange for co- operation in a course of action which he sought from the two officers. Having originally sought access to the taxation returns of other persons, the appellant's later objective was to arrange an alteration by reassessment of the taxation assessments made in respect of Mr Vasta. The further evidence of willingness displayed in the appellant's picking up and carrying further the suggestion of payment which he himself had originally made shows no reluctance, but an unhesitating preparedness to continue a corrupt proposal: cf. R. v. Venn- Brown (1991) 1 Qd.R. 458. Further, insofar as the use by police officers of listening devices to intrude on private conversations was involved, the operation was one controlled by Queensland legislation and was carried out in a manner which adhered to the conditions laid down in advance by the Supreme Court judge. The police force members involved were not shown to have acted other than in a way which they would have been entitled to consider was strictly in accordance with their duties and in conformity with the requirements of the law. In the actions of listening and recording, it has earlier in these reasons been concluded that the police officers were acting lawfully having regard to the terms of the approval which had been provided. The situation then is that in the actions of listening and recording and in the earlier actions of making entry to install the device there was nothing in the police actions which calls for the signalling of a rebuke to the law enforcement authorities by a ruling of the Court in the exercise of its discretionary jurisdiction rejecting the evidence. The interests of the State concerned with the need to investigate offences and the interests of citizens in maintaining their privacy in all ordinary circumstances as well as the interests of the accused person in being dealt with fairly in the investigation of his involvement were considered fully and appropriately by the learned trial judge who, having regard to all the circumstances, reached a decision not to exclude the evidence. The appellant bore the onus which is relevant in this connection (Cleland v. R. (1982) 151 C.L.R. 1) and the judge's conclusion that the appellant failed to discharge that onus should not be interfered with.

The result is that the appeal against conviction should be

dismissed.

The questions asked in the special case should be answered consistently with the views expressed above.

In dealing with the application for leave to appeal against sentence, particular matters to which the trial judge drew attention when passing sentence have considerable importance. The offences involved in agreeing to pay substantial sums, $20,000, to each of two taxation officers for them to act in a way contrary to their duty called to be met by weighty discouragement. The importance of the need for deterrence is a particular consideration in such a case. The sentence imposed of eighteen months imprisonment with an order for release after serving six months of that term cannot be said to involve any failure to take into account the countervailing facts that the applicant was a fifty year old man with no prior criminal history who performed the actions which he did with the object, not of gaining a benefit for himself, but of giving assistance, as he saw it, to his brother-in-law. These features were mentioned by the judge in his sentencing remarks as were the provisions of s. 17A of the Crimes Act. It cannot be concluded that the sentence imposed was manifestly excessive. The application for leave to appeal against sentence should be refused.

This leaves for consideration the case stated and the questions of law contained within it. The questions were reserved during the trial on application made by counsel for the accused because he thought that it would increase the trial judge's power of granting bail should a conviction result. The application for the reservation of the questions having been made it became mandatory, once the conviction followed, for a case to be stated: see s. 668B of the Criminal Code. The trial judge pronounced judgment on the conviction and he has in fact admitted the appellant to bail. Section 668B provides that questions reserved are heard and determined as an appeal. A separate notice of appeal has been lodged and is dealt with by the Court's decision now made. In the circumstances it should simply be stated that it is unnecessary to make any formal answer to the questions in the case stated.

The order of the Court should be appeal against conviction dismissed and application for leave to appeal against sentence refused. Since the appellant is not presently in custody, a warrant for his apprehension should issue, the warrant to lie in the Registry for seven days.