R v Cranston (No 2)

Case •

[2020] NSWSC 1102

•

24 August 2020

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Cranston (No 2) [2020] NSWSC 1102
Hearing dates: 7-8 July 2020, 14-15 July 2020
Date of orders: 24 August 2020
Decision date: 24 August 2020
Jurisdiction:Common Law - Criminal
Before: Payne J
Decision:

Notice of motion dated 4 June 2020 dismissed.

Catchwords:

CRIMINAL PROCEDURE – trial – case management – pre-trial disclosure – scope of prosecution disclosure in aid of judicial review proceedings yet to be commenced

CRIMINAL PROCEDURE – warrants – surveillance warrants – whether stay to consider whether further disclosure required to test whether warrants validly obtained

CRIMINAL PROCEDURE – warrants – surveillance warrants – whether stay to consider whether further disclosure required to test whether AFP conduct in executing warrants was authorised

Legislation Cited:

Constitution (Cth), s 75(v), 77(iii)

Crimes Act 1914 (Cth), s 3E

Criminal Procedure Act 1986 (NSW)

Customs Act 1901 (Cth)

Evidence Act 1995 (NSW), ss 134, 138, Pt 3.10

Judiciary Act 1903 (Cth), ss 39B(1C), 68, 78B

Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), s 13 of sch 2

Surveillance Devices Act 2004 (Cth), ss 4, 16, 17, 18, 47

Telecommunications (Interception and Access) Act 1979 (Cth), ss 60, 63, 74, 75, 76A, 77, 107A

Cases Cited:

Arno v Forsyth (1986) 9 FCR 576

Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237; [1945] HCA 30

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39

Caratti v AFP (No 2) [2016] FCA 1132

Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839

Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145

Crowley v Murphy [1981] FCA 26; (1981) 34 ALR 496

Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; (2020) 379 ALR 345

Geldert v State of Western Australia [2012] WASCA 226; (2012) 226 A Crim R 260

Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142

Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26

IMF (Aust) v Sons of Gwalia [2004] FCA 1390; (2004) 211 ALR 231

Kizon v Palmer [No 2] (1997) 75 FCR 261

Kizon v Palmer (1997) 72 FCR 409

Kizon v Palmer (No 2) (1998) 82 FCR 310

Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29

Lambertv Weichelt (1954) 28 ALJ 282

McE v Prison Service of Northern Ireland [2009] 1 AC 908

Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28

New Group Newspapers v Metropolitan Police Commissioner [2016] 2 All ER 483

Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49

R v Cranston (No 3) [2020] NSWSC 1103

R v Cranston (No 5) [2020] NSWSC 1105

R v Grant [2006] QB 60

R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247

R v O’Meley [2017] NSWCCA 153

R.E. v United Kingdom [2015] ECHR 947

Warren v Attorney-General for Jersey [2012] 1 AC 22

Texts Cited:

Commonwealth, Department of Finance, Review of the long term cost effectiveness of telecommunications interception, (March 1994)

Second Reading Speech, Jurisdiction of Courts Legislation Amendment Bill 2000 (Cth), House of Representatives, Parliamentary Debates (Hansard), 8 March 2000 at 14111

Second Reading Speech, Telecommunication (Interception) Amendment Bill 1994 (Cth), House of Representatives, Parliamentary Debates (Hansard), 1 December 1995, 4318

Explanatory Memorandum, Surveillance Devices Bill 2004 (Cth)

Explanatory Memorandum, Surveillance Devices Bill (No 2) 2004 (Cth)

Explanatory Memorandum, Telecommunications (Interception) Amendment Bill 1994

Category:Procedural and other rulings
Parties: Adam Cranston (Applicant)
Lauren Cranston (Applicant)
Dev Menon (Applicant)
Jason Onley (Applicant)
Crown (Respondent)
Representation: Counsel:
Adam Cranston (in person)
T D Anderson (Lauren Cranston)
R Seiden SC, R Johnson (Jason Onley)
P Bruckner (Dev Menon)
R Maidment QC; R Sharp; L Robb Vujcic (Crown)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Greg Willis Criminal Defence Lawyer (Lauren Cranston)
Pure Legal (Jason Onley)
Hardinlaw (Dev Menon)
File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208
Publication restriction: Nil.

Judgment

  1. PAYNE J: On 20 September 2019, in the Local Court Adam Cranston, Lauren Cranston, Jason Onley and Dev Menon were committed for trial in this Court. On 6 December 2019, the accused pleaded not guilty before Fullerton J to the following two counts in an indictment presented on that day:

“1. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Joshua Meredith Kitson, Devyn Michelle Hammond, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.

Contrary to section 135.4(3) of the Criminal Code (Cth).

…

2. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Devyn Michelle Hammond and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.

Contrary to sections 11.5(1) and 400.3(1) of the Criminal Code (Cth).”

  1. On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. For reasons related to the COVID-19 pandemic that trial date was vacated and a new trial date is shortly to be fixed.

  2. The matter came before me for pre-trial directions on 7 February 2020 and 9 April 2020. On 12 May 2020, there was a further pre-trial directions hearing. On that date, I made the following relevant orders:

“Warrants

2.   Accused are to file and serve by 2 June 2020 any application for further disclosure in respect of warrants purportedly issued under the Crimes Act 1914 (Cth), Surveillance Devices Act 2004 (Cth) (SD Act) or Telecommunications (Interception and Access) Act 1979 (Cth) (TI Act), together with supporting evidence and an outline of submissions. Any application to be listed for hearing on 7 July 2020.

3.   Crown to file and serve evidence and outline of submissions in response by 16 June 2020.

4.   Accused are to file and serve evidence, any outline of submissions in reply and the witnesses required for cross-examination, by 23 June 2020.”

  1. A notice of motion was filed on 4 June 2020 on behalf of Messrs Menon and Onley. Mr Adam Cranston, who is at present self-represented, supported the making of orders sought in the notice of motion. Ms Lauren Cranston did not actively participate in the debate but if orders were made in favour of the applicants she sought to enjoy the benefit of those orders. That notice of motion sought the following relief:

“1. Determination, under s 149E of the Criminal Procedure Act 1986 (NSW) or other power, of the issues identified as ‘issues for determination’ in submissions served by the accused on this application (Determinations).

2.   The prosecution on the indictment be stayed until:

(a)   the Commonwealth Director of Public Prosecutions (CDPP) has sought and obtained from the Officer in Charge all documents and information that may need to be considered for purposes of prosecution disclosure, in light of the Determinations;

(b)   the CDPP and Crown Prosecutor has formed an opinion on whether those documents may fall within the duty of disclosure; and

(c)   the CDPP has communicated that opinion to the applicants’ legal advisers. [1]

1. The form of proposed order 2 follows the form of the order made in R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247.

3.   Directions to schedule the steps in paragraph 2.

4.   Leave be given to the accused to issue a subpoena, forthwith upon the making of the Determinations, returnable within 1 business day, for production of the material before the issuing officers when deciding:

(a)   to issue warrants under the Surveillance Devices Act 2004 (Cth) identified as SD6116, SD6336 and SD6400, and extensions thereto;

(b)   to issue warrants under the Telecommunications (Interception and Access) Act 1979 (Cth), listed in items 1-21 in submissions of the accused dated 3 June 2020 at [4], [9], [11], [28], [36], [40];

(c) to issue warrants under s.3E of the Crimes Act 1914 (Cth) on 16 May 2017 and 21 September 2017;

insofar as a Determination is made that there is a legitimate forensic purpose.

5.   Leave be given to the accused to issue a subpoena, for production from the prosecution of all other material in respect of which a Determination has been made that there is a legitimate forensic purpose, to the extent not disclosed by the prosecution before the date such subpoena is issued.

6.   Directions to schedule the steps in paragraph 5.

7.   Further or other orders.”

  1. It may be noted at the outset that, without obtaining the leave sought in the motion (about which I make no criticism), on 7 July 2020 Messrs Onley and Menon caused a subpoena to be issued to the Commonwealth Director of Public Prosecutions (CDPP) and the Commissioner of the Australian Federal Police (AFP) in the terms of the draft subpoena referred to in the motion. There was an obvious overlap between the issues relevant to disclosure and those relevant to the subpoena. The Commissioner of the AFP filed a notice of motion and submissions seeking to set aside the subpoena on 29 July 2020. Messrs Menon and Onley filed a response on 31 July 2020. I have dealt with the application to set aside the subpoena addressed to the Commissioner of the AFP in a separate judgment which should be understood and read together with this judgment: [2020] NSWSC 1103.

  2. Accompanying the applicants’ notice of motion was an affidavit of Ms Christina Niagos, a solicitor in the employ of Mr Hardin, the solicitor on the record for Mr Menon. Ms Niagos’ affidavit was sworn on 3 June 2020. The annexures to Ms Niagos’ affidavit comprised inter-partes correspondence and various documents from the Crown brief including the various warrants the subject of the notice of motion. On 9 June 2020, the applicants filed a further affidavit of Christina Niagos sworn that day. The annexures to Ms Niagos’ second affidavit comprised a notice of constitutional matter under s 78B of the Judiciary Act 1903 (Cth), and evidence of service of that notice on the Attorneys-General of the Commonwealth, States, and Territories.

  3. On 23 June 2020, the Crown filed its own notice under s 78B of the Judiciary Act which addressed the question of whether the applicants’ case was, at least in part, hypothetical and thus did not raise a “matter” within the federal jurisdiction of the Court. On 24 June 2020, the Crown filed an affidavit of Ms Suzanne Therese Martinez, affirmed on 24 June 2020. This affidavit was limited to proving that the Crown’s s 78B notice had also been served on the Attorneys-General.

  4. The following submissions were filed:

  1. submissions were filed on behalf of the applicants on 4 June 2020;

  2. the Crown response dated 22 June 2020; and

  3. submissions in reply on behalf of the applicants dated 3 July 2020.

  1. The various arguments were heard over four days, 7, 8, 14 and 15 July 2020.

Relevant facts

  1. The matters of primary fact established by the evidence were largely uncontroversial and may be summarised briefly.

  2. On 6 October 2016, the following warrants were issued:

  1. Telecommunications (Interception and Access) Act 1979 (Cth) (TI Act) warrant A10505/00/00, a named person warrant for Adam Cranston expiring 3 January 2017;

  2. TI Act warrant A10506/00/01, a named person warrant for Jason Onley expiring 3 January 2017;

  3. TI Act warrant A10507/00/00, a named person warrant for Daniel Hausman expiring 3 January 2017;

  4. TI Act warrant A10510/00/01, for a mobile service in relation to Daniel Rostankovski expiring 3 January 2017; and

  5. Surveillance Devices Act (2004) (Cth) (SD Act) warrant SD6116, a named person warrant for Adam Cranston expiring 4 January 2017.

  1. For TI Act warrants A10505/00/01, A10506/00/01 and A10507/00/00, there was a 14 day delay between the AFP notifying the carrier of the TI warrants and when the carrier stamped as received the original certified copy of the warrant. For warrants A10505/00/01 and A10506/00/01 the carrier was faxed a copy of the warrant on the day it was issued. For TI warrants A10507/00/01 and A10510/00/00 the delay was 20 days.

  2. The SD Act warrant issued on 6 October 2016 in respect of Adam Cranston, referred to as SD6116, relevantly stated:

“I hereby authorise the use of surveillance devices of the following kind:

In respect of the conversations, activities or location of the following person:

Adam Michael CRANSTON …

a listening device;

an optical surveillance device;

a tracking device; and

a data surveillance device.

This warrant authorises the use of more than one surveillance device of a kind specified above if that is necessary to give effect to this warrant.”

  1. No use was made of SD6116 for the first 90 days after its issue.

  2. On 6 October 2016, other SD warrants were issued, for example, in respect of premises in Bondi, Double Bay, Vaucluse, Caringbah and Waterloo. Some of those warrants were not executed.

  3. On 26 October 2016, the following warrants were issued:

  1. TI Act warrant A10554/00/00, for a telecommunications service in relation to Lauren Cranston; and

  2. TI Act warrant A10553/00/00, a named person warrant for Daniel Rostankovski.

  1. For TI warrant A10554/00/00, there was a 15 day delay between the AFP notifying the carrier of the TI warrants and providing a certified copy. A copy of this warrant was faxed to the carrier on the day the warrant was issued. For TI warrants A10553/00/00 and A10553/00/02, the Evidentiary Certificate stated that the carrier had received the original certified copy of the warrant before the date that they were informed that the warrant had been issued. The Crown submits, and I accept, that the date on which the certified copies of these warrants were received by the carrier as set out in the Evidentiary Certificate was patently incorrect. Corrected Evidentiary Certificates had been requested for both warrants.

  2. On 20 December 2016, the following warrants were issued:

  1. TI Act warrant A10505/01/01, a named person warrant for Adam Cranston expiring 19 March 2017;

  2. TI Act warrant A10506/01/01, a named person warrant for Jason Onley expiring 19 March 2017;

  3. TI Act warrant A10507/01/01, a named person warrant for Daniel Hausman expiring 19 March 2017;

  4. TI Act warrant A10553/01/03, a named person warrant for Daniel Rostankovski expiring 19 March 2017;

  5. TI Act warrant A10554/01/00, for a mobile service in relation to Lauren Cranston expiring 19 March 2017;

  6. SD Act warrant SD6336 for a premises in Miranda, and

  7. SD Act warrant for a 2016 Mercedes with a NSW registration. The warrant was issued but never executed.

  1. On 20 December 2016, the following warrants were extended:

  1. SD6116 for named-person Adam Cranston was extended, now expiring on 20 March 2017. When the extension was granted to SD6116, its authority had not yet been used.

  2. SD Act warrants for premises in Bondi, Double Bay, Corrimal and Waterloo, now expiring 20 March 2017. These warrants had not yet been executed.

  1. For warrants A10507/01/01 and A10553/01/03, there was a 19 day delay between when the carrier was notified of the TI warrant and when the certified copy was provided to the carrier. For warrants A10554/01/00, A10505/01/01 and A10506/01/01, the delay was 15 days. A copy of all three warrants was faxed to the carrier two days after the warrant was issued. For warrants A10507/01/00 and A10553/01/00 the delay was 14 days.

  2. Warrants A10553/01/00 for an Optus mobile service and A10553/01/00 for a separate Optus mobile service were enabled on 18 January and 22 January 2017 respectively. Both carrier certifications specify that the notification was received before interception was enabled and being informed of the warrant. Again, the Crown stated that the date on which the certified copies of these warrants were received by the carrier as set out in the Evidentiary Certificate was patently incorrect and that a corrected Evidentiary Certificate had been requested for both warrants.

  3. On 23 January 2017, 4 devices were installed within the law firm Clamenz Lawyers under the authority of SD6116. One device each was installed in the Harbour and Bridge Rooms and two devices were installed in the Opera Room.

  4. In the Opera Room, recordings were made of conversations between 24 January 2017 and 28 April 2017. In the Bridge Room, recordings were made of conversations between 24 January 2017 and 2 May 2017. In the Harbour Room, recordings were made of conversations between 9 February 2017 and 3 May 2017.

  5. Between 24 and 25 January 2017, 3 devices installed under SD6116, from each the Harbour, Bridge and Opera Rooms, were removed.

  6. On 25 January 2017 a SD Act warrant, SD6400, for a premise in the MLC Centre, 19-23 Martin Place, Sydney, NSW, 2000, being the offices of Clamenz, was issued. A restriction on the warrant was that “no more than four (4) devices in total may be used under this warrant”. The warrant expired on 25 April 2017. That warrant stated, relevantly:

“I hereby authorise the use of surveillance devices of the following kinds:

On the following premises:

XXX, MLC Centre, 19-23 Martin Place, Sydney, NSW, 2000:

A listening device;

An optical surveillance device;

A tracking device; and

A data surveillance device.

This warrant authorises the use of more than one surveillance device of a kind specified above if that is necessary to give effect the warrant.”

  1. Thereafter, one device installed under the authority of SD6116 remained in the premises and was continued to be used under the authority of SD6400.

  2. On 1 February 2017, an additional two devices were installed, one in the Bridge Room and one in the Harbour Room.

  3. On 16 March 2017, the following warrants were issued:

  1. TI Act warrant A10505/02/01, a named person warrant for Adam Cranston expiring 13 June 2017;

  2. TI Act warrant A10506/02/01, a named person warrant for Jason Onley expiring 13 June 2017;

  3. TI Act warrant A10507/02/01, a named person warrant for Daniel Hausman expiring 13 June 2017; and

  4. TI Act warrant A10783/00/00 for a mobile service in relation to Michael Cranston expiring 19 March 2017.

  1. On 16 March 2017, SD6116 for named-person Adam Cranston was extended, expiring on 14 June 2017.

  2. For TI warrant A10783/00/00, the delay between the carrier being notified and provided with certification was 19 days. For A10507/02/01, the delay was 18 days. A copy of this warrant was faxed to the carrier the day after it was issued. For A10507/02/01 the delay was 13 days. For A10505/02/01 and A10506/02/01 the delay was 12 days. Copies of both warrants were faxed to the carrier the day after it was issued.

  3. Additional SD warrants were issued for premises in Cronulla and the Australian Tax Office in Sydney which were both executed. The warrant issued in respect of the ATO premises contained a like-condition to SD6400 that no more than four devices could be used under the warrant. An SD Act warrant was issued in respect of Michael Cranston but not executed.

  4. On 20 April 2017, SD6400 was extended and varied. The variation to conditions increased the number of devices that could be used under the warrant from four to seven.

  5. On 16 May 2017, about 53 warrants were issued pursuant to s 3E of the Crimes Act. A further warrant was issued on 5 June 2017 in substantially the same terms. They were three-condition warrants. The first offence in the third condition was conspiracy to defraud.

  6. On 21 September 2017, a s 3E warrant was issued in respect of level 3, 309 George St, Sydney NSW 2000. The first offence in the third condition of this warrant was conspiracy to cause a loss to the Commonwealth.

  7. The inferences sought to be drawn from those facts were controversial. I will address each of those in relation to the particular issue where the inference is said to arise.

Overview of the issues

  1. Section 149E of the Criminal Procedure Act 1986 (NSW) provides:

149E   Court powers to ensure efficient management and conduct of trial

(1)   On or after the commencement of the trial in proceedings, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial.

(2)   Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial.

  1. The applicants identified 18 issues for determination under s 149E. Whilst I will address each of the issues, it should be clear from the outset that I regard a number of the issues raised as being hypothetical issues which do not arise for determination before me and may never arise. As I will explain, I do not accept that many of the assumptions which underpinned the issues for determination were soundly based. The course suggested by the applicants in effect seeks an advisory opinion about the correct construction of aspects of the SD Act based on hypothetical or assumed facts or possible inferences said to arise. The applicants submitted that a stay should be granted until the Crown considered providing disclosure of all material which would enable the applicants to test the legality of the issue and execution of the SD Act warrants based on the applicants’ construction of the SD Act. As I will explain, I do not regard any of the steps in this argument as soundly based. The suggestion that a stay should be ordered pending consideration by the Crown of further disclosure about issues related to the issue and execution of warrants is inconsistent with authority binding upon me: Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142 and the cases cited therein.

  2. Issue 1 is framed as being whether the obligation of prosecution disclosure is wide enough to require the Crown to disclose material in support of a separate application for judicial review of a decision to issue a warrant. The applicants submitted that such an obligation was consistent with the decision of the Court of Criminal Appeal in Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; (2020) 379 ALR 142 at [124]-[142] and not inconsistent with the decision of that Court in Gould v Director of Public Prosecutions (Cth) and the cases referred to in that judgment.

  3. It was common ground that no separate judicial review proceedings challenging the issue of any warrant issued in this case had been commenced. This was the subject of the Crown’s submission that there was no “matter” within this Court’s jurisdiction disclosed by this part of the applicants’ case.

  4. Issue 2 is framed as being whether the Court should order that material which would otherwise be disclosed, save for a claim of public interest immunity, be disclosed so that ultimately the Court can determine any question of public interest immunity. The only evidence about a possible claim of public interest immunity refers to the AFP position, expressed at a high level of generality in correspondence and in the subpoena proceedings, that if required to produce the material which formed the basis of the application seeking various warrants, there may then be a claim of public interest immunity by the Commissioner for the AFP over some or all of that material. The applicants submitted that whether or not the material is subject to the obligation of disclosure, the CDPP should be required to notify the applicants of any materials which may in the future be the subject of a public interest immunity claim and that any such material should be produced to the Court for the Court to determine the claim. The Crown’s positon about this issue is that the applicants have not established any tangible risk that the trial would be unfair if this material is not the subject of a prosecutorial duty to review. There is no obligation to review the material to see whether it should be provided; so there is no basis to order a stay. The Crown’s position is that the applicants have now issued a subpoena, and if they can identify and satisfy the Court that there is a legitimate forensic purpose for the production of those materials, then those materials will be provided, subject to any claims for public interest immunity or other legislative impediments on their provision. The merits of any such claim can be determined by the Court at that time.

  5. The issue as framed must be considered in the context of the fact that the applicants have now issued a subpoena for all of the material the subject of this application. The CDPP has none of the material. The issue is whether the CDPP has any duty to review material which is not the subject of an obligation of disclosure and to produce such material to the Court for a ruling about public interest immunity. I have addressed the outcome of the application by the AFP to set aside the subpoena in separate reasons: [2020] NSWSC 1103. It is only if I were to conclude that the CDPP were separately obliged as part of its disclosure obligations to require the AFP to produce the material sought by the subpoena to it for review that issue 2 could ever arise.

  6. Issue 3 relates to the issue of surveillance device warrant SD6116 on 6 October 2016 and the extension of that warrant to 20 December 2016. The issue is whether the applicants have demonstrated a legitimate forensic purpose for disclosure of the affidavit seeking the issue of the warrant. That legitimate forensic purpose is said be for the applicants to determine whether the affidavit discloses a reasonable suspicion that the use of a surveillance device was “necessary”. It was submitted that I should infer that the issue of the warrant was not “necessary” as the devices were not in fact installed within the initial 90 days allowed. The warrant was then extended on 20 December 2016. The applicants submitted that it was “difficult to reconcile” the failure to use the devices authorised by the warrant in the first 90 day period with the existence of an application grounded in the reasonable suspicion that use was “necessary”.

  7. The first question posed by issue 3 is whether I am bound by Gould to conclude that the affidavit material sought is irrelevant to any possible issue in these proceedings. The second question posed by issue 3 is whether the applicants’ suggested reason for seeking disclosure of the affidavit is for a suggested purpose beyond permitting them to “check” what was before the issuing officer.

  8. Issue 4 was framed as seeking documents relating to any decision to extend or vary a number of surveillance device warrants. The issue raised was whether there was a legitimate forensic purpose for disclosure in respect of whether the applicant for the extension or variation acted on behalf of the person who applied for the original warrant. This was said to be analogous to cases concerning whether someone had a power of delegation. The applicants submitted that an application for extension of a surveillance device warrant is required to be made by the person to whom the original warrant was issued or another person on his or her behalf. The applicants request the CDPP to disclose material to test whether this statutory requirement was met.

  9. As to issue 4, there are three principal questions. The first is whether I am bound by Gould to conclude that the affidavit material sought is irrelevant to any possible issue in these proceedings. The second is whether, assuming there to be invalidity, non-compliance with statutory requirements or excessive execution in respect of the warrant originally issued, disclosure should be ordered due to possible derivative use of material unlawfully or improperly obtained. The third question is whether the applicants’ request for information about the identity or capacity of any applicant for variation or extension of a warrant amounts to any more than a desire to check compliance.

  10. Issue 5 related to the installation on 23 January 2014 of four devices at the offices of Clamenz Lawyers (Clamenz) then located at the MLC Centre, 19-29 Martin Place, Sydney under the authority of SD6116, a named person warrant referring to Mr Adam Cranston. The issue was framed as being whether documents must be disclosed addressing the question of whether that installation exceeded the authority granted by SD6116 or amounted to excessive execution of SD6116, by reason of the number of devices installed and the fact that they were installed in a law firm.

  11. The foundation of the applicants’ submission was that the warrants could only be installed on “premises where the person is reasonably believed to be or likely to be”. It was common ground that devices were installed at Clamenz in three conference rooms: the Harbour, Bridge and Opera Rooms. It was submitted that it was open to infer that the installers approached the installation of the devices on the basis of where the named person might go as opposed to where they were likely to be. Counsel for Mr Menon submitted that “we would like to know what the police relied upon in order to form the view, if they did form a view at all under this section, as to why Mr Cranston was or was not likely” to be in the particular conference rooms the devices were installed in. In the alternative, the applicants submitted that the installation of devices at conference rooms of a law firm, where it would be expected that communications between lawyers and other clients would be captured, amounted in and of itself to excessive execution of the warrant. Counsel for Mr Menon accepted that excessive execution of a warrant does not concern the validity of the decision to issue that warrant.

  12. The first question is whether I am bound by Gould to conclude that the affidavit material sought is irrelevant to any possible issue in these proceedings. The second question raised by issue 5 is whether, in any event, material before the decision maker in relation to SD6116 and SD6400 could conceivably be material relevant to the question of whether or not the installing of four devices pursuant to SD6116 was within the authorisation granted by the warrant. The third question is whether a stay should be granted until disclosure is given of documents which satisfy the applicants’ desire to discover what the police relied upon in determining that Mr Cranston was or was not likely to be in particular conference rooms where devices were installed.

  13. Issue 6 is predicated on a construction of s 18(5) of the SD Act. The applicants submitted that sub-ss 18(1), (4) and (5) are framed in terms of what an SD warrant “may” authorise. It was submitted that this contemplates specific consideration being given in all cases to whether to grant authority under s 18(5). SD6116 specified authority for particular devices and authorisation under sub-s 18(4) but provided no separate authority under s 18(5).

  14. There are two questions which arise. The first question is whether I am bound by Gould to conclude that the material sought is irrelevant to any possible issue in these proceedings. The second is whether a stay should be granted until disclosure is given of documents supporting the invalidity of the warrants on the construction of the SD Act advanced by the applicants.

  15. Issue 7 addressed the question of whether there is a legitimate forensic purpose in seeking disclosure of documents evidencing “recklessness or a deliberate cutting of corners” in the installation on 23 January 2017 of listening devices in conference rooms at Clamenz and the use of such devices under the authority of SD6116. The applicants submitted that the authority under SD6400 provided that the total number of devices must not exceed four, which is the number that had been installed under SD6116. The question was whether this condition might lead to an inference that SD6400 was an attempt to gain authority for what had already been installed under SD6116.

  16. The first question is whether there was a basis to allege “recklessness or a deliberate cutting of corners” in the installation on 23 January 2017 of listening devices in conference rooms at Clamenz. A second question raised by issue 7, assuming there was a basis to infer excessive execution of a warrant, is whether a stay should be granted until disclosure is given of documents relating to the decision to apply for the warrants or the materials before the issuing officer.

  17. Issue 8 is whether disclosure should be given of documents evidencing “why particular devices installed under the purported authority of SD6116 were physically removed ‘between 24 and 25 [January]’, when the decision(s) or direction(s) were made to do so, when they were removed, and why a device was not removed but instead left in the Opera Room”. The applicants submitted that no explanation has been given about why the devices were removed on 24 January 2017 and that it was “curious” that some devices were removed the evening after they were installed. It was submitted that an available inference was that it was regarded as appropriate to remove the devices as it was believed those devices were installed unlawfully.

  18. The first question is whether the inference suggested by the applicants is an available one. A second question is whether a stay should be granted until disclosure is given of the matters addressed by this issue.

  19. Issue 9 is whether the condition specified on the face of warrant SD6400 confining the total number of devices to four provides a legitimate forensic purpose for disclosure of the material before the issuing officer of SD6400. SD6400 was issued on 6 October 2016. On 25 January 2017, a condition was added confining the total number of devices to four. The applicants submitted that the lack of a rational basis for the condition supported an inference that the condition was imposed as an impermissible attempt to authorise what was done from 23 to 24 January 2017 under the purported authority of SD6116. Issue 9 does not identify a defect on the face of the warrant or relate the circumstances of the execution of this or any other warrant.

  20. The first question is whether I am bound by Gould to conclude that the material sought is irrelevant to any possible issue in these proceedings. The second question is whether the suggested inference is available and the consequences of such a finding.

  21. Issue 10 is whether the specified authority in SD6400 to use a tracking device provides a basis to order a stay pending disclosure of the affidavit before the issuing officer. The applicants submitted that I should infer that there is no sensible need for a tracking device within a law firm and that this indicates irregularity in either the affidavit or the exercise of discretion by the issuing officer. It was submitted that the Crown should review the affidavit and produce the affidavit.

  22. The first question is whether I am bound by Gould to conclude that the material sought is irrelevant to any possible issue in these proceedings. The second question is whether the inference suggested by the applicants should be drawn. The third question is whether the reference to a tracking device, as one of the devices authorised by SD6400, arguably invalidates the warrant.

  23. Issue 11 is predicated on a finding of impropriety in the issue or execution of SD6116. Assuming that to be the case, the applicants submitted that documents evidencing the time when the 24 January 2017 conversations in the Bridge Room and Opera Room were monitored and whether that information was relied upon directly or indirectly in the issue of subsequent warrants, should be disclosed. The applicants submitted that the conversations of 24 January 2017 “may have” been relied upon in deciding to proceed with the application for SD6400 or to proceed with the application in the form it was made.

  24. The first question is whether I am bound by Gould to conclude that the material sought is irrelevant to any possible issue in these proceedings. The second question is whether there is a basis to infer that there may have been impropriety in the issue or execution of surveillance device warrant SD6116.

  25. Issue 12 relates to the installation on 1 February 2017 of two additional devices at Clamenz under the authority of SD6400. The issue raised was whether there is a legitimate forensic purpose for production of documents relating to whether that installation exceeded the authority of SD6400 by reason of the number of devices installed. This issue is materially the same as the corresponding issue of installation under SD6116 of multiple devices addressed in issue 5.

  26. Issue 13 is expressed at a high level of generality. Disclosure is sought of documents “evidencing the period when monitored information deemed relevant to the investigation was disseminated”. The applicants submitted that the information provided by the CDPP about the monitoring process is devoid of detail but that the process is relevant to a possible derivative use argument they may subsequently make in the course of an application to exclude evidence under s 138 of the Evidence Act 1995 (NSW) (the Evidence Act), based on a complaint about the authorisation of SD6116, the subject of earlier issues.

  27. Issue 14 is whether disclosure of the application documents in respect of SD6400 was required on the basis of the amendment to the condition concerning the maximum number of devices. This issue is partly the same as the issue concerning the condition in the original warrant confining the maximum number of devices to four. The applicants seek documents showing whether an application was made for the variation of the warrant. If an application was made for variation, there is then a “question” about whether the material in the application was sufficient to justify the warrant that was issued. The central question is whether I am bound by Gould to conclude that disclosure relating to this issue is not required.

  28. Issue 15 is the first of the issues arising under the TI Act. Issue 15 is whether prosecution disclosure to an accused is prohibited by s 63(2) of the TI Act in respect of an application the accused might bring under s 107A of that Act.

  29. The applicants sought to distinguish Kizon v Palmer (1997) 72 FCR 409 and Gould on the basis that the remedy under s 107A of the TI Act was not considered. [2] The applicants submitted that by operation of ss 76A and 77(4), disclosure by the prosecution to an accused of interception warrant information for the purposes of an application the accused “might” bring under s 107A of the TI Act is not prohibited by s 63(2) of the TI Act.

    2. The section post-dated Kizon and was not raised in Gould.

  30. There are a number of questions raised by this issue. The first is whether Kizon v Palmer and Gould are distinguishable. The second is whether I am satisfied that there is any basis to order further disclosure or to issue a stay until it has occurred. The third is whether, in any event, s 107A of the TI Act provides a mechanism for judicial review. The fourth is that, assuming the answer to all preliminary questions is favourable to the applicants, does it matter that no separate judicial review proceedings have been brought or, as far as I know, will ever be brought.

  31. Issue 16 is predicated on a finding that prosecution disclosure is “prohibited” under issue 15. On that assumption, the question is whether prosecution disclosure to an accused is prohibited by s 63(2) of the TI Act in respect of proceedings an accused might in future bring in the original jurisdiction of the High Court challenging the decisions to issue TI Act warrants. The applicants identify two questions relevant in addressing this issue. First, as to the steps the subject of the attack (here the decision to issue a warrant), does the legislation prescribe a substantive rule that those steps “are directory only” and do not “touch the validity” of the decision? Secondly, if the steps go to validity, is the constraint (here the s 63(2) scheme) one that is impermissible by its effect on the jurisdiction of the Court under s 75(v) of the Constitution. In the absence of any proceedings under s 75(v), is there a “matter” before the Court.

  1. Issue 17 is whether disclosure is required of material “evidencing compliance with the obligations in s 60(1)(d) of the TI Act to provide to carriers a certified copy of the warrant as soon as practicable”. The applicants submitted that the obligation in s 60(1)(d) “may not have been complied with”, however one cannot know because no explanation has been given for the delay. The questions are whether I am bound by authority to conclude that the applicants’ complaint does not affect the validity of the warrants and, in any event, whether a stay is warranted pending disclosure about this issue.

  2. Issue 18 is the only issue addressing search warrants issued under s 3E of the Crimes Act 1914 (Cth). The issue is whether disclosure is required of material before the issuing officers in respect of applications for warrants under s 3E of the Crimes Act on or about 16 May 2017 and 21 September 2017. The applicants submitted that the Crown should review the supporting material with a keen eye to whether an argument as to the excessive breadth of the warrant “is available”. The central question is whether I am bound by Gould to conclude that disclosure relating to this issue is not required.

Consideration

  1. The 18 issues for determination identified by the applicants may conveniently be considered in three tranches:

  1. whether there is a disclosure obligation in aid of potential judicial review proceedings (including of TI Act warrants) which have yet to be commenced (issues 1, 2, 15 and 16);

  2. whether the SD Act warrants (collectively) were validly obtained and/or whether the AFP’s conduct in executing the SD Act and TI Act warrants was authorised (issues 3-14 and 17); and

  3. whether the s 3E Crimes Act warrant was validly obtained (issue 18).

  1. The first, and fundamental, thing to note about this application is that the critical issues raised in issues 1, 2, 15 and 16 are predicated on seeking disclosure in aid of separate judicial review proceedings about the validity of the warrants, either in this Court or the High Court of Australia. Two matters bear emphasis before addressing the substance of those issues. First, it is common ground that this Court, in the criminal proceedings I am presently hearing, has jurisdiction to determine the validity of the various warrants, the efficacy of the execution of those warrants and the extent to which disclosure about issues related to the issue and execution of the warrants is required. No separate judicial review proceedings are necessary to determine any of those issues. Secondly, no separate judicial review proceedings have been commenced. On the evidence before me, separate judicial review proceedings may never be commenced.

  2. By reason of these matters, consideration of whether separate judicial review proceedings could be pursued having regard to s 63(2) of the TI Act raises a hypothetical question. Issues 1, 2, 15 and 16 are effectively seeking an advisory opinion from the Court about the availability and admissibility of evidence in separate judicial review proceedings which have not been commenced.

  3. In relation to issues 3-14 and 17-18, the applicants have not satisfied me that there is any reason to think that a stay should be granted until further disclosure has been considered. There is no finding of fact I am persuaded to make or inference I am willing to draw which could underpin the grant of a stay.

  4. It bears emphasising that there is no present application to exclude evidence pursuant to s 138 (or any other section) of the Evidence Act 1995 (NSW). Regardless of the outcome of this motion, the applicants have stated that they propose to address substantial objections to admissibility of material in the Crown brief on the basis of s 138 and no doubt other sections of the Evidence Act.

  5. On the evidence before me, issues 3-14 and 17-18 are essentially requests for further information to permit the applicants, on a series of assumptions which have not been made good, to check whether the warrants were validly obtained and executed. This is not a basis for ordering a stay of the proceedings. I am not satisfied that there is any tangible risk that the trial of the applicants would be unfair in the absence of the disclosure sought.

Issues 1-2, 15 and 16

  1. It is convenient to deal with issues 1, 15 and 16 together as in each case the applicants assert that they are entitled to further disclosure in aid of separate judicial review proceedings that have not yet been commenced. I will deal with issue 2 under this general heading as well as it is contingent on the answer to issue 1.

  2. The starting point for consideration of these issues is that there is no evidence that the applicants will bring any such separate judicial review proceedings. There is no assertion in the evidence that the applicants will or even might commence such proceedings.

  3. The second important matter of context is that in oral argument senior counsel for Mr Onley explained that it was only sought to be established in this application that “theoretically it is possible” that there was jurisdictional error in the issue of the warrants:

“HIS HONOUR: You are asking me to find that there was jurisdictional error in the issue of these warrants or not?

SEIDEN: Yes, for the purposes of the disclosure argument we think we only need to ask your Honour to find that theoretically it is possible for there to be jurisdictional error.”

  1. The third important matter to note at the outset is that the applicants do not rely upon any authority which supports the proposition that disclosure is available in criminal proceedings for the purposes of providing evidence in separate collateral proceedings. The applicants seek to raise a general question about the availability of disclosure in the context of a criminal trial for the express purposes of separate judicial review proceedings. The nature of any such proceeding or the particular issues it would address has not been specified. No issue that would be ventilated in these hypothetical proceedings that relates to any particular SD Act warrant or TI Act warrant has been identified. I would not lightly conclude that such an open ended and unclear disclosure obligation existed.

  2. The fourth important matter to note at the outset is that issues 15 and 16, relating to the TI Act warrants, face an additional introductory hurdle. No problem with the issue or execution of any TI warrant is even suggested (I will deal with the collateral issue of compliance with s 60(1)(d) of the TI Act in addressing issue 17).

  3. Having sketched those introductory matters, it is necessary to descend into a little detail about the Court’s jurisdiction to address all issues relevant to the issue and execution of the warrants in these criminal proceedings.

  4. The Crown’s “so called prosecutorial duty of disclosure” was explained most recently in Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; (2020) 379 ALR 345 (Kinghorn). The lengthy consideration by the Court of the prosecutorial duty of disclosure bears careful study:

“The Duty of Disclosure

[124]    In a number of cases the High Court has acknowledged the existence of the so called prosecutorial duty of disclosure (see Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [17] per Gummow, Hayne, Callinan and Heydon JJ and at [64] to [67] per Kirby J; ‘Mallard’, and Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 at [18] per Gleeson CJ, Gummow and Callinan JJ and at [50] and [63] per Kirby J and at [80] per Hayne J; ‘Grey’). However, it has not addressed the duties’ basis, scope and limits in any detail.

[125] In R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 (at [20]) this Court endorsed an obiter statement by Hodgson JA in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [54] (‘Reardon’) that the principles stated in two English decisions, R v Keane [1994] 1 WLR 746 and R v Brown (Winston) [1998] AC 367, should be taken as applying in New South Wales. In Reardon at [48] to [49], Hodgson JA described the effect of those decisions as follows:

‘In R v Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376-7, with the comment that 'an issue in the case' must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.

However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses.’

[126] In Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [29], Leeming JA (with whom R A Hulme and Adamson JJ agreed) described the nature of the ‘duty’ of disclosure as follows:

‘It is also to be borne in mind that the so-called ‘duty’ is unusual. So too is what may loosely be described as the ‘right’ of the accused to disclosure (both illustrate the way in which legal usage commonly departs from Hohfeldian exactness). For it is quite plain that the ‘duty’ to disclose is not owed directly to an accused, so as to enforce the production of documents as might occur in civil litigation through discovery and interrogatories, or pursuant to freedom of information legislation. To the contrary, an accused person cannot ordinarily obtain an order that the prosecution disclose documents which have been withheld. Rather, the accused is entitled to a fair trial, and can insist that the trial be stayed, permanently or temporarily, if it can be established that that will not occur, absent adherence by the prosecution to that duty.’ (Emphasis added.)

[127]   The reference to ‘Hohfeldian exactness’ in this passage is to Professor Wesley Hohfeld’s classification of rights, duties and obligations into four incidents the first of which involved a right being conferred on one party and a correlative duty on another (W Hohfeld, ‘Fundamental Legal Concepts as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16, 31).

[128]   An important qualification to this description of the scope and nature of the ‘duty’ was acknowledged by Leeming JA in Marwan (at [31]), namely, that the duty ‘must accommodate itself with statute’. One such set of statutory provisions was identified in Marwan (at [31]), being rules 87 and 88 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which are a form of delegated legislation. They impose specific obligations on counsel appearing for the prosecution.

[129] Another potential qualification are guidelines issued by the NSW DPP under ss 13 and 14 of the Director of Public Prosecutions Act 1986 (NSW) (‘DPP (NSW) Act’), as in Marwan (at [34]) or by the CDPP under s 11 of the CDPP Act, as in this case. To that end the guidelines issued by the CDPP contemplate that documents falling within the duty of disclosure but which are the subject of a valid claim for privilege might be withheld from disclosure, in which case ‘consideration will need to be given as to whether it is fair for the prosecution to proceed or continue in the absence of such disclosure’, such that ‘[i]n some circumstances’ a prosecution will be discontinued (CDPP, Statement of Disclosure in Prosecutions Conducted by the Commonwealth, (March 2017) at [23] to [24]). Nevertheless, leaving aside any assessment of their legal effect (see Marwan at [37]), the guidelines do not alter the description of the nature of the duty set out in Marwan.

[130]   There are, however, some statutory provisions that give substantive effect to the prosecutorial duty in a sense that approximates more to ‘Hohfeldian exactness’.

[131] Section 15A of the DPP (NSW) Act imposes a continuing duty of disclosure on ‘law enforcement officers’ to disclose to the NSW DPP ‘all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person’ in relation to prosecutions conducted by the NSW DPP. The Court was not referred to any similar provision applicable to Commonwealth law enforcement agencies.

[132]   Further, the combination of ss 141 and 142(1) of the CPA imposes an obligation on a prosecutor in indictable matters to file a notice that contains, inter alia:

‘(i)   a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person,

(j)   a list identifying—

(i)   any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and

(ii)   the place at which the prosecutor believes the information, document or other thing is situated,

(k)   a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness,

(l)   a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person.’

[133]   Most of the items referred to in these provisions would fall within the description of the duty of disclosure stated by Hodgson JA in Reardon. Section 147 of the CPA provides that the pre‑trial disclosure obligations including the requirements of s 142 are ongoing until verdict or the prosecution is terminated. Section 146 enables the Court to impose a range of sanctions for failure to comply with those obligations beyond staying the prosecution.

[134] Section 15A of the DPP (NSW) Act has no application to these proceedings. Section 142 of the CPA was potentially applicable but it does not address the documents the subject of the CDPP’s appeal as it was not contended that s 142 operates to remove any claim for privilege held by the CDPP or anyone else.

[135]   In its submissions the CDPP contended that, save for the grant of a stay, it was not for this Court to scrutinise the exercise by the prosecutor of the performance of the prosecutor’s duties, including the duty to call all material witnesses (R v Apostilides (1984) 154 CLR 563 at 576; [1984] HCA 38) and the duty of disclosure. The CDPP submitted that the primary judge’s differentiation between enforcing the duty of disclosure and enforcing compliance with a subpoena ‘does not withstand scrutiny’.

[136]   Support for the CDPP’s submission can be found in the statement by Johnson J in Petroulias, that ‘[i]t is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP’s discharge of his duty during the trial’. However, that statement cannot be taken too far. In Gould v Director of Public Prosecutions (Cth) (2018) 333 FLR 352; [2018] NSWCCA 109 (‘Gould’), this Court addressed a contention that a trial judge erred in not staying proceedings pending the provision, by the CDPP to the accused, of material that was provided in support of an application for the issue of warrants under the Telecommunications (Interception and Access) Act 1979 (Cth). The material was sought as part of a challenge to the validity of the warrants. This Court found that the trial judge had no power to examine the material in determining any such challenge and hence there could be no duty of disclosure on the prosecution to produce it (at [52] per Basten JA with whom Johnson and Adamson JJ agreed at [72] and [73]). The Court endorsed a statement by the trial judge that it was open to the accused to subpoena the material stating that the ‘judge was correct to suppose that a challenge to the adequacy of disclosure could be made by issuing a subpoena’ (at [14]) and that it was an ‘available course … to issue a subpoena … to test the propriety of, the non-disclosure’ (at [18]).

[137]   In the end result the debate about the extent to which the prosecutor’s duty of disclosure is enforceable reduces to the following four propositions.

[138]   First, generally the performance of the duty is a matter for the prosecution and the Court will not review it or enforce it outside the powers it exercises to control its own processes.

[139]   Second, a failure to comply with the duty may result in a stay being granted provided it is shown that there is ‘tangible risk that the trial would be unfair’ or that the ‘trial is likely to be unfair’ (see Marwan [24] to [26]). If the duty is not complied with and a conviction ensues then it can be set aside if a miscarriage of justice is demonstrated (Grey; Mallard).

[140]   Third, if the documents or material the subject of the duty are not disclosed then a subpoena can be issued. Subject to claims for privilege and the like, it is likely that documents that fall within the duty will answer the test for production in response to a subpoena (Gould at [65] to [68]).

[141]   Fourth, the Court can make orders to enforce compliance with the pre‑trial disclosure provisions of the CPA which, to a significant degree, are co‑extensive with the duty of disclosure.

[142]   Ultimately, the combined effect of Gould and the pre-trial disclosure provisions of the CPA means that, with trials on indictment in this State, there should only be a relatively narrow scope for debate about compliance by the prosecution with its duty of disclosure and the means of enforcing it. That scope appears to be mostly confined to debates about the extent to which the prosecution must take steps, if any, to obtain information from other sources (as in Marwan) and cases such as this in which the material sought is the subject of claims for privilege or some other competing reason for non-disclosure.”

  1. Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28 involved a warrant granted under the Listening Devices Act 1984 (NSW) pursuant to which a record was made of a conversation between Miss X and one of the men charged with the murder of Ms Anita Cobby. Mason CJ and Toohey J stated at 105-106:

“The question is whether the presumption of validity could be displaced by a collateral attack upon the warrant founded on an alleged insufficiency of the materials placed before the Supreme Court by the applicant for the warrant. There was no challenge to the jurisdiction of the Supreme Court to grant a warrant; counsel sought to challenge the sufficiency of the grounds on which the warrant had been granted. This attack on the warrant was misconceived. The admissibility of the evidence of Miss X depended on the existence of the warrant, not on the sufficiency of the grounds for granting it. …

Where a warrant can be issued by the appropriate authority only upon its being satisfied of prescribed matters to be shown by the applicant for the warrant, the validity of the warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of those matters. … To determine the admissibility of evidence obtained by use of a listening device purportedly under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the Supreme Court. It does not inquire into the sufficiency of the material which satisfied the Supreme Court of the matters referred to in s 18(2)(b) [of the Listening Devices Act]. There was neither need nor occasion for the Court in the present case to investigate the basis on which the warrant had been granted.”

  1. The limited scope of review of an interception warrant was confirmed in Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26. The joint reasons implicitly assumed that there was no process by which a prospective challenger could seek access to the underlying material supporting the issue of the warrant.

  2. Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 involved a warrant issued under the Listening Devices Act 1969 (Vic). After reviewing the relevant authorities, including Murphy and Grollo, Toohey J stated at 80:

“It follows that in respect of this part of the appellant’s challenge there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements.”

  1. Gaudron J also accepted at 87 that a collateral challenge to the validity of a warrant “depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue”, referring to the joint reasons in Murphy.

  2. After setting out the key principles stated in Murphy, Gummow J held at 126-7:

“Counsel for the appellant accepted the principle that it is inappropriate for a court to examine the material placed before the person who issued the warrant in order to determine whether that person would necessarily have reached the requisite satisfaction. He also accepted the proposition that, in reviewing the issue of a warrant, a court may only have regard to what appears on the face of the warrant.

However, the terms in which counsel expressed some of his arguments were at odds with an acceptance of those propositions. He maintained that, from an examination of the two warrants, it is clear that, prior to issuing the warrants, the judges reached a state of satisfaction which was not prescribed by s 4A(1) of the Act. On that basis, it was said that the faces of the warrants themselves supplied evidence that the issuing judges misdirected themselves as to the prerequisites for the issue of the warrants. The argument in that form fails because, in the terms used in Murphy, it challenges the ‘sufficiency of the grounds for granting’ the warrant rather than ‘the existence of the warrant’.”

  1. Of the other two members of the Court in Ousley, McHugh J made statements which perhaps suggested a broader basis for review than the three judgments cited above, but his Honour did not command a majority of the Court on this issue. Kirby J was in dissent and did not directly address this issue, although his Honour made passing reference to “legal challenges based upon suggested defects appearing on the face of a warrant”, language consistent with the majority view in this respect.

  2. In Gould, after a survey of relevant High Court authority, most particularly Murphy and Ousley, and authority from numerous intermediate courts of appeal, Basten JA held:

“[52]   It follows from this line of authority that the trial court had no power to examine the affidavits and other material placed before the authority which issued the warrants in order to challenge the validity of the warrants. It must follow that there can no duty of disclosure on the prosecution to produce material which could not be relevant to the issues which might be addressed in the trial.”

  1. I have concluded that Gould (at [52] per Basten JA with whom Johnson and Adamson JJ agreed at [72] and [73]) is binding authority for the proposition that a trial judge has no power to examine material that was provided in support of an application for the issue of a warrant under the TI Act in determining a challenge to the issue of a warrant and hence there could be no duty of disclosure on the prosecution to produce it. The same principles apply to the Court’s power to examine material that was provided in support of an application for the issue of a warrant under the SD Act and s 3E of the Crimes Act.

  2. The statement in Gould at [52] is not obiter, but directly relevant to the disposition of the issue in that case; whether the trial judge was correct in refusing a stay. The conclusion is as equally binding in the present pre-trial application as it is in any hypothetical judicial review application. It makes no difference that the attack on the warrants in Gould was sought to be mounted within the criminal trial as distinct from the suggestion made here that an attack might be mounted in separate judicial review proceedings. To the contrary, the applicants’ position in Gould was much stronger than that of the present applicants on this issue.

  3. The nature of the challenge available in any suggested “judicial review proceeding” pursuant to s 39B of the Judiciary Act is also limited to a review for patent invalidity. So much is made clear in Ousley, Kizon v Palmer (1997) 72 FCR 409 and Kizon v Palmer (No 2) (1998) 82 FCR 310; [1998] FCA 312 in the Federal Court. Following the decision in Kizon v Palmer (1997) 72 FCR 409 (Jenkinson, Lindgren and Kiefel JJ) (Kizon (No 1)) in which the Court upheld the constitutional validity of s 63(2) of the TI Act, Mr Kizon issued a subpoena for interception warrant information, including the affidavits that were before the issuing officer. The trial judge found there was no legitimate forensic purpose for production of those materials: (1997) 75 FCR 261 (Beaumont J). On appeal, the Full Federal Court confirmed there was no legitimate forensic purpose: Kizon v Palmer (No 2) (1998) 82 FCR 310 (Northrop, French and Branson JJ) (Kizon (No 2)). That was principally because the proceeding in which the subpoena was issued was not an exempt proceeding and the information was not already in the public domain so as to fall outside the prohibition in s 63(2). Because the information could not be used there was no legitimate forensic purpose for its production.

  4. Subsequent to Kizon, the Judiciary Act was amended by s 13 of Schedule 2 of the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth). By the operation of ss 39B(1A)-(1E) of the Judiciary Act, any application for review of federal warrants can only be brought in the criminal trial. As the Full Federal Court observed in Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [14]-[15] (O’Loughlin, North and Weinberg JJ) in relation to the amendments that inserted ss 39B(1B)-(1F) of the Judiciary Act:

“[14]   Schedule 2 of the Jurisdiction of Courts Act was plainly intended, as the Minister made clear in his Second Reading Speech, to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process. The aim of the Act is to remove collateral access to federal administrative law procedures and remedies in this Court, at least in those cases where a prosecution for an offence against a law of the Commonwealth has been commenced.

[15]   The new provisions contained in Sch 2 reflect a belief on the part of the legislature that it is no longer sufficient to rely upon the exercise by the civil courts of a discretion to deny judicial review in such cases to avoid the dangers of fragmentation of the criminal justice process. For so long as there exists jurisdiction to review decisions taken in the course of that process, there will be scope for those affected by those decisions to challenge them in this Court. The risk that an unsuccessful applicant may be required to pay the costs of such proceedings seems to have done little to dissuade their being brought.”

  1. Sections 39B(1A)-(1C) remove the Federal Court’s jurisdiction in relation to a “related criminal justice process decision” and invest or confer it on the court in which the criminal proceedings are being heard. By s 39B(1D), that limitation does not apply if the application for review was brought before the commencement of the criminal proceeding. However, in that case the prosecution can seek a stay if the review is more appropriately dealt with in the criminal process: s 39B(1E).

  2. In the Second Reading Speech for the Jurisdiction of Courts Legislation Amendment Bill 2000, the then Attorney-General said in relation to Schedule 2: [3]

“Schedule 2 to the bill deals with the judicial review of the decisions under federal laws in federal, state and territory courts, but in the specific context of criminal prosecution.

The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.

Schedule 2 to the bill contains amendments of the Administrative Decisions (Judicial Review) Act 1977, the Corporations Act 1989 and the Judiciary Act 1903 that will, in federal criminal matters, restrict defendants’ access to administrative law remedies.

Defendants will not be able to use the AD(JR) Act to challenge decisions to prosecute. Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced.”

3. House of Representatives, Parliamentary Debates (Hansard), 8 March 2000 at 14111.

  1. The effect of those amendments is to ensure the criminal process will not be fragmented by challenges such as the hypothetical judicial review proceeding mooted by the applicants here. Although s 39B(1E) has no direct application here as s 39B(1D) does not apply because no proceeding was brought before the commencement of the prosecution, s 39B(1E) gives substance to Parliament’s intention to ensure Commonwealth criminal proceedings are protected from collateral attacks. That is so even where the application for review is brought before the criminal proceeding commences.

  2. The amendments to the Judiciary Act have the effect that the applicant in Gould was correct to seek a stay within the criminal proceeding. The applicants’ position here of seeking disclosure in aid of proceedings which have not been commenced, and which would be antithetical to the scheme established to prevent collateral attacks such as that mooted, is misconceived.

  3. To the extent that issue 1 is able to be answered, given the essentially hypothetical nature of the question, there is no obligation of prosecution disclosure in this case such that a stay must be ordered to permit the Crown to consider disclosing material which may support a separate application for judicial review of a decision to issue a warrant, which application has not been brought. In the present case, as in Gould, the applicants did not establish, or even assay the task of establishing that a trial, absent production of the documents sought, would be likely to be unfair, or even that there was a tangible risk that it would be unfair.

  4. Issue 2 does not arise. There is no information which would otherwise be disclosed save for a claim of public interest immunity. The only mention of a possible claim of public interest immunity refers to the AFP’s position that even if it is required to produce the affidavit material seeking various warrants by disclosure or subpoena, there may then be a claim for public interest immunity over that material. I have concluded there is no obligation to produce the material sought from the AFP. The applicants have not established any tangible risk that the trial would be unfair if this material is not the subject of a prosecutorial duty to review. There is no duty to review the material to see whether it should be provided. There is no basis to order a stay.

  5. I have addressed the outcome of the application by the AFP to set aside the subpoena in separate reasons: [2020] NSWSC 1103. It is only if I were to conclude that a stay should be granted until the AFP produced the material sought by the subpoena to the CDPP for its consideration that the issue could ever arise. I am not so satisfied. I do not accept that the CDPP has any duty to review material which is not the subject of an obligation of disclosure.

  6. Issues 15 and 16 raise overlapping but distinct issues. The applicants seek production of material in aid of a possible future application for judicial review. The applicants do not assert that there is any issue with respect to the TI Act warrants either on their face or in relation to the conduct of the AFP in obtaining them or executing them.

  7. It is thus inappropriate to opine about whether, as the applicants submitted, the TI Act “evinces invalidity unless the conditions for issuance of a warrant are complied with”. Addressing this question would raise issues about ss 74 and 75 of the TI Act which set out the circumstances in which lawfully intercepted information may be adduced as evidence. By s 74, evidence may be given in exempt proceedings, but not otherwise. Section 75 sets out that even where there is a defect in connection with a warrant (other than a substantial defect or irregularity) evidence may still be given in an exempt proceeding. In effect, s 75 provides that notwithstanding invalidity, that invalidity has limited effect; it is “validated” to the extent that the evidence is still admissible.

  8. Issue 15, “Availability of disclosure in respect of s 107A of the TI Act”, proceeds on a false basis. Section 107A(1) of the TI Act provides:

(1)   This section applies to an interception of a communication passing over a telecommunications system if the interception was in contravention of subsection 7(1).

  1. The civil remedies in s 107A of the TI Act are available only if a communication passing over a telecommunications service was intercepted “in contravention of subsection 7(1)” of the Act. That is, issue 15 is predicated on a mooted contravention of the Act having been found. No possible contravention is alleged or even suggested. Section 107A of the TI Act does not provide an additional mechanism of judicial review in determining whether or not an interception was in contravention of the TI Act.

  2. The civil remedies provided for in s 107A, including those in s 107A(7) are only available if the section applies, that is, if the interception was in contravention of s 7(1) of the TI Act. Further, any such remedy is not available for all defects or irregularities in a warrant. Section 107A(11) provides:

(11)   Despite subsection (1) of this section, this section does not apply to an interception that contravenes subsection 7(1) only because of a defect or irregularity (other than a substantial defect or irregularity):

(a)   in, or in connection with the issue of, a document purporting to be a warrant; or

(b)   in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.

  1. There is no arguable basis suggested here for a conclusion that a contravention of the TI Act has or even might have occurred. However, even if such an arguable contravention had been identified, the section only provides for a civil remedy not a mechanism for judicial review of a TI Act warrant.

  2. Section 107A was included in response to the 1994 Barrett Review (Commonwealth, Department of Finance, Review of the long term cost effectiveness of telecommunications interception, (March 1994)), which recommended that “a right of action against a person who unlawfully intercepts or publishes a telephone communication should be conferred on the person whose communication is unlawfully intercepted”. The Explanatory Memorandum to the Telecommunications (Interception) Amendment Bill 1994 explained (at p 2):

“… to promote privacy, the Bill creates new civil remedies for unlawful interceptions or unlawful communication of information derived from an interception.”

  1. As the then Minister for Veteran’s Affairs and Minister Assisting the Treasurer for Superannuation said in the Second Reading Speech for the Bill: [4]

“The amendments also create a new civil right of action against a person who unlawfully intercepts or publishes a telephone communication.”

4. House of Representatives, Parliamentary Debates (Hansard), 1 December 1995 at p 4318.

  1. The answer to issue 15 is that it does not arise. That is, there is no occasion to consider whether “prosecution disclosure to an accused is prohibited by s 63(2) of the TI Act in respect of an application the accused might bring under s 107A of the [TI Act]”. There is no basis to think that the TI Act might have been contravened. In any event, disclosure in a criminal case in aid of a possible civil remedy is outside the principles of disclosure I have described. Even assuming that disclosure was available in aid of hypothetical s 107A proceedings, there is no reason to think it should be required here or that a stay should be granted until disclosure has been further considered. There is thus no occasion to opine about the effect of s 63(2) of the TI Act on a hypothetical application under s 107A of the TI Act. The applicants have not established any tangible risk that the trial would be unfair if this material is not the subject of a prosecutorial duty to review.

  2. Issue 16, “Is prosecution disclosure to an accused prohibited by s 63(2) of the TI Act in respect of proceedings an accused could bring in the original jurisdiction of the High Court challenging decisions to issue warrants”, is again framed by reference to hypothetical proceedings which have not been commenced. There is no evidence that such proceedings will ever be commenced. The applicants submit that if s 63(2) of the TI Act prohibits prosecution disclosure in respect of proceedings an accused could bring in the original jurisdiction of the High Court challenging decisions to issue warrants the section is constitutionally invalid. This submission was the subject of the applicants’ s 78B Notice described at [7] above. The Crown’s s 78B notice addressed the same topic. The Crown submitted that determination of this issue did not raise a “matter” within the Commonwealth criminal jurisdiction I am presently exercising.

  3. This Court’s jurisdiction to hear Commonwealth criminal proceedings is sourced in s 68(2) of the Judiciary Act, deriving from s 77(iii) of the Constitution. That jurisdiction is limited to adjudicating a “matter”. The “matter” before me is a criminal prosecution. As part of determining that “matter”, the Court has jurisdiction to determine relevant issues, in particular jurisdiction to use the powers of the Court to seek to ensure there is no tangible risk that the trial of the accused would or might be unfair. A relevant aspect of that jurisdiction is the power to stay the proceedings if appropriate disclosure has not been given.

  4. I have already concluded in relation to issue 1 that there is no obligation of prosecution disclosure in this case such that a stay must be ordered to permit the Crown to consider disclosing material which may support a separate application for judicial review of a decision to issue a warrant, which application has not been made. There is thus no occasion to opine about whether disclosure is “prohibited by s 63(2) of the TI Act” in respect of proceedings an accused could bring in the original jurisdiction of the High Court challenging decisions to issue warrants.

  5. Given this finding, I have concluded that the Crown is correct to submit that the present “matter” does not encompass the constitutional validity of s 63(2) of the TI Act.

  6. In Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237 at 272; [1945] HCA 30, Dixon J observed:

“We cannot allow the validity of Acts of Parliament to be submitted to our decision as abstract questions. The Court pronounces upon the validity of a law only when called upon to do so in determining a cause or matter within the Court’s jurisdiction.”

  1. In IMF (Aust) Ltd v Sons of Gwalia Ltd [2004] FCA 1390; (2004) 211 ALR 231, French J (as his Honour then was) said (at [43]):

“[43]   … A declaration sought upon the basis of a hypothetical situation or facts which are contingent or may never occur has the character of an advisory opinion which does not relate to a real question. Therefore it does not relate to a matter and is outside the jurisdiction of the Court.”

  1. In Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32], the High Court affirmed the approach set out in Lambert v Weichelt (1954) 28 ALJ 282 at 283, where Dixon CJ, McTiernan, Webb, Fullagar, Kitto and Taylor JJ said:

“It is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties.”

  1. In Knight, the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said (referring to Lambert) (at [33]):

“[33]   That approach to the determination of constitutional questions means that it is ordinarily inappropriate for the Court to be drawn into a consideration of whether a legislative provision would have an invalid operation in circumstances which have not arisen and which may never arise if the provision, if invalid in that operation, would be severable and otherwise valid. That is so even where the validity of the provision is challenged by a party sufficiently affected by the provision to have standing: a party will not be permitted to ‘roam at large’ but will be confined to advancing those grounds of challenge which bear on the validity of the provision in its application to that party.” (Footnotes omitted.)

  1. Issue 16 seeks an answer to a question posed about circumstances which have not arisen and which may never arise. There is no state of facts which makes it necessary to decide issue 16 in order to do justice in this case and to determine the rights of the parties.

Issues 3-14 and 17

  1. The applicants seek a ruling that a stay should be ordered while the Crown gives consideration to further disclosure of material based on various assumptions about factual and legal matters addressed in the “issues for determination” relating to the application for, issue and execution of two warrants pursuant to the SD Act:

  1. a warrant issued on 6 October 2016 pursuant to s 16 of the SD Act in relation to “Adam Michael CRANSTON”, extended on 20 December 2016 and 16 March 2017 (SD6116); and

  2. a warrant issued on 25 January 2017 pursuant to s 16 of the SD Act in relation to the premises at “Suite 4602, Level 46, MLC Centre, 19-29 Martin Place, Sydney”, the then-premises of Clamenz, extended and varied on 20 April 2017 pursuant to s 19 of the SD Act (SD6400).

  1. The applicants’ notice of motion also refers to SD6336, however the applicants did not in their submissions otherwise refer to SD6336.

  2. The applicants submit that the test for ordering a stay pending consideration of further disclosure is effectively the same as the “legitimate forensic purpose” test. I do not regard that submission as soundly based. I have addressed the test in relation to subpoenas in my separate judgment. The test in relation to ordering a stay pending consideration of further disclosure is set out in Kinghorn which I have quoted at length above.

  3. I have concluded that each of the “issues for determination” numbered 3-14 and 17 provide no basis to order a stay of proceedings to permit the Crown to consider giving further disclosure. I am not satisfied that in order to ensure a fair trial a stay to consider giving further disclosure about the matters which have been raised is necessary or appropriate. I am not satisfied that there is any unfairness to the applicants in declining to stay the trial until disclosure of the materials which have been sought has been considered.

  4. In considering the scope of disclosure in this case it is important to note that in Gould, in addition to challenging the validity of the warrants, the appellant also sought to allege “‘impropriety’ in the means by which the evidence was obtained”: at [53]. Basten JA accepted (at [54]) that:

“[54] No doubt, on an appropriate factual basis, an accused person could challenge the admissibility of evidence under s 138 of the Evidence Act on the basis there had been impropriety on the part of an applicant for a search warrant (for example, by relying on perjured testimony) or impropriety in the execution of the warrant.”

  1. And, at [56]:

“[56]   There is no doubt that an accused may seek to establish such impropriety as a basis for challenging the admissibility of evidence. That may be done through a voir dire, usually prior to the empanelling of a jury. Relevant evidence may be obtained from any source. That may require the issue of a subpoena if the evidence is thought to lie in the hands of the prosecutor, or the investigating authority.”

  1. In a passage with critical relevance to the present issues, however, Basten JA (with whom Johnson and Adamson JJ agreed) warned that:

“[59]   The potential effect of accepting this aspect of the applicant’s case would be, on the one hand, to subvert the established constraints [set out in Ousley et al] on challenges to the validity of a warrant by allowing the same effect to be achieved by recharacterising the challenge as one going to ‘investigatory impropriety’, but not the legal validity of the process, while, on the other hand, avoiding the constraints on the issue of a subpoena. That course should not be accepted.”

  1. These remarks are particularly pertinent here. The Court should be astute to ensure that the constraints established by the Ousley line of authority are not subverted by recharacterising the challenge as one going to “investigatory impropriety”, and not the legal validity of the process, whilst avoiding the constraints on the issue of a subpoena. As earlier noted, since filing their written submissions the applicants have caused a subpoena to be issued. I have addressed the subpoena in a separate judgment.

  2. The applicants seek a ruling that a stay be granted to permit consideration of further disclosure of documents or information relating to two separate issues:

  1. the satisfaction of the issuing authority in granting the SD Act warrants; and

  2. whether the conduct of the AFP in executing the SD Act warrants was authorised by the terms of those warrants.

  1. I will first address those issues for determination which seek access to material that was before the issuing officer when the SD warrants were authorised. Each of them purports to provide a different reason why the applicants may be entitled to those materials in disclosure. As I have explained, I am bound to conclude that there is no power to examine the affidavits and other material placed before the authority that issued the warrants in order to challenge the validity of those warrants. I am further bound to conclude that there can be no duty of disclosure on the prosecution to produce material which could not be relevant to the issues which might be addressed in the trial.

  2. I would in any event conclude that none of the issues raised by the applicants requires a stay of proceedings. I am not satisfied that there is a ‘tangible risk that the trial would be unfair’ or that the ‘trial is likely to be unfair’ in the absence of the further disclosure which is sought.

  3. Issue 3 seeks the material which was the foundation of the application for SD6116 to confirm “whether the affidavit discloses reasonable suspicion that the use of a surveillance device is ‘necessary’” within the meaning of s 14(1)(c) of the SD Act. The sole basis supporting that submission is the fact that no devices were installed pursuant to SD6116 when it was first granted, or when it was first extended.

  4. I am not satisfied that this matter provides any basis to order a stay of proceedings. What s 14(1) of the SD Act actually provides needs to be stated. A “law enforcement officer (or another person on his or her behalf)” may apply for the issue of a surveillance device warrant if the law enforcement officer “suspects on reasonable grounds”, relevantly, that “the use of a surveillance device is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders”.

  5. The applicants invited me to infer from the failure to install devices within the initial 90 days granted by the warrant that the relevant law enforcement officer seeking the warrant did not “suspect on reasonable grounds” that “the use of a surveillance device is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders”.

  6. I decline that invitation. It simply does not follow from a failure to install a device in the 90 day period that the law enforcement officer who sought the issue of the warrant did not “suspect on reasonable grounds” that “the use of a surveillance device is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders”.

  7. The applicants’ additional submission that disclosure of the material before the issuing officer is required to test whether or not ss 16(2)(e) or 16(2)(f) of the SD Act were correctly addressed is directly contrary to Gould.

  8. The hypothetical nature of issue 3 is made apparent by the applicants’ submission that issue 3:

“… raises the question of whether the non-use of the earlier warrant was disclosed. The Crown will know the answer to that question. If the material before the issuing officer did not make such disclosure, then the affidavit should be disclosed.” (Emphasis added.)

  1. I am bound by Gould and the cases to which it refers to conclude that a trial judge has no power to examine material that was provided in support of an application for the issue of a federal warrant in determining a challenge to the issue of that warrant and hence there could be no duty of disclosure on the prosecution to produce that material. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  2. Issue 4 seeks information about the identity of the applicant for the extension of each warrant. As with issue 3, I am bound by Gould and the cases to which it refers to conclude that a trial judge has no power to examine material that was provided in support of an application for the issue of a federal warrant in determining a challenge to the issue of that warrant and hence there could be no duty of disclosure on the prosecution to produce that material. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  3. I reject the submission that the possible derivative use of material obtained under earlier warrants in obtaining the extension puts the disclosure request into any different category. It is no doubt correct, as the applicants submitted, that derivative use of unlawfully obtained material, when applying for subsequent warrants, may in an appropriate case lead to evidence obtained under that warrant and perhaps subsequent warrants being excluded in the exercise of discretion under s 138(1)(b) of the Evidence Act. I am not satisfied that any arguable invalidity, non-compliance with statutory requirements or excessive execution in respect of any warrant has been shown. I am not satisfied that disclosure need be considered of any material pertaining to the capacity in which an applicant for any SD Act warrant proceeded. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  4. Issue 5 seeks production of documents in support of the issue of warrants SD6116 and SD6400 and the extension of those warrants on three bases:

  1. that the authority of SD6116 may have been exceeded by placing the surveillance devices in places where Mr Cranston “might go” rather than places he was “likely to be”;

  2. that there may have been excessive execution of SD6116 by reason of the number of devices installed; and

  3. that there may have been excessive execution of SD6116 by reason of devices being installed in a law firm, Clamenz.

  1. I am bound by Gould and the cases to which it refers to conclude that a trial judge has no power to examine material that was provided in support of an application for the issue of a federal warrant in determining a challenge to the issue of that warrant. That conclusion is sufficient to dispose of issue 5.

  2. I am independently satisfied that the material before the issuer in relation to SD6116 and SD6400 and the extension of those warrants is not relevant to the possible “excessive execution” arguments floated by the applicants. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  3. I reject the applicants’ submission that a stay should be granted for the Crown to consider giving further disclosure on the basis that the authority of SD6116 may have been exceeded by placing the surveillance devices in places where Mr Cranston “might go” rather than places he was “likely to be”. Whether the authority of SD6116 was exceeded is a question of law to be determined by reference to the terms of the warrant. The Crown has disclosed the number and location of the four devices that were installed pursuant to SD6116, and the dates on which they installed and removed. I am not satisfied that any further disclosure of the material before the issuing officer is required. To grant a stay for that matter to be considered would be to permit the constraints established by the Ousley line of authority to be subverted by recharacterising the challenge as one going to possible “excessive execution” of the warrant, and not the legal validity of the process, whilst avoiding the constraints on the issue of a subpoena.

  4. I reject the applicants’ submission that a stay should be granted for the Crown to consider whether further disclosure is required to address the question whether it was “necessary” to install the number of surveillance devices pursuant to SD6116. Whether the authority of SD6116 was exceeded is a question of law to be determined by reference to the terms of the warrant. Whether the installation of two or more surveillance devices was “necessary to give effect to this warrant” falls to be determined by reference to what was known to the AFP at the time the warrant was executed. Material before the issuing officer can have no bearing on that issue. I am not satisfied that any disclosure of the material before the issuing officer is required. To grant a stay for that matter to be considered would be to permit the constraints established by the Ousley line of authority to be subverted by recharacterising the challenge as one going to possible “excessive execution” of the warrant, but not the legal validity of the process, whilst avoiding the constraints on the issue of a subpoena.

  5. I reject the applicants’ submission that a stay should be granted for the Crown to consider whether further disclosure is required to address the question of whether there may have been excessive execution of SD6116 by reason of devices being installed in a law firm, Clamenz. Although framed as being a question relevant to the execution of the warrant, the disclosure request plainly seeks the material that was provided in support of the application for the issue of the warrants for the purpose of mounting a challenge to the issue of the warrants. That request is flatly inconsistent with Gould.

  6. Further, as the Full Federal Court held in Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839 (Black CJ, Lindgren and Sackville JJ) legal professional privilege is excluded, by implication, from the operation of the warrant provisions in the TI Act (as it was at that time) and the surveillance device warrant provisions in the Customs Act 1901 (Cth). The same reasoning applies to warrants issued pursuant to the SD Act, which by their operation exclude client legal privilege in so far as conversations may be recorded.

  7. The attempts by the applicants to distinguish their case from Gould in this respect were unpersuasive. The three Australian cases cited provide no support for the grant of stay to permit further disclosure to be considered:

  1. in Crowley v Murphy [1981] FCA 26; (1981) 34 ALR 496, the Full Federal Court dismissed an appeal from the Supreme Court of the ACT in declaratory proceedings about the execution of a s 10 Crimes Act warrant (being a statutory predecessor to a s 3E Crimes Act warrant) upon a firm of solicitors. No challenge to the issue of the warrant was made. Lockhart J (with whom Northrop J agreed) held that the appellants were not protected by legal professional privilege from withholding from the respondent the files, or their contents, relating to the affairs of clients. His Honour held that where the solicitors are not themselves implicated in the alleged contraventions, a “negative search” of all of the client files in the solicitor’s office is not permissible. The case says nothing of relevance about the installation of surveillance devices pursuant to a warrant at Clamenz where the solicitor Mr Menon was a principal in the alleged conspiracy;

  2. Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 established that the first part of Lockhart J’s judgment in Crowley v Murphy was incorrect. The ratio of the decision was that the separate question, “In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a search warrant issued under s. 10 of the Crimes Act?” should be answered “No”. The case provides no support for the submission that a stay should be granted to permit further disclosure to be considered.

  3. Arno v Forsyth (1986) 9 FCR 576 was a case before the Full Federal Court where the practical consequences of the decision in Baker v Campbell were addressed. Ultimately, guidelines were developed between the AFP and the Law Council of Australia about how to deal with privilege claims over documents which would otherwise fall within the terms of a s 10 warrant. The case provides no support for the submission that a stay should be granted to permit further disclosure to be considered.

  1. The applicants’ submissions principally focused on European Union and United Kingdom authorities which arise in a quite different statutory context:

  1. R v Grant [2006] QB 60 involved police “eavesdropping” upon privileged conversations between the defendant and his solicitor after the defendant’s arrest. The Court in Grant found at [52] that the actions of the police were “categorically unlawful” and “at the very least capable of infecting the proceedings as abusive of the court’s process”. The ruling in Grant has nothing to do with the present question where conversations were recorded pursuant to a warrant during the course of the alleged crimes involving a solicitor who was allegedly a party to the relevant criminal conduct;

  2. the Privy Council in Warren v Attorney-General for Jersey [2012] 1 AC 22 agreed with the Court’s conclusion in Grant but rejected the remedy of a stay ordered in Grant. Again, this is a world away from any presently relevant question;

  3. in New Group Newspapers v Metropolitan Police Commissioner [2016] 2 All ER 483 at [97] it was held that “the discipline of the proportionality principle is one of the foremost safeguards”. This judgment is not the occasion to opine about UK or European conceptions of proportionality. The principle established by the case has little if anything to say about any presently relevant question;

  4. in McE v Prison Service of Northern Ireland [2009] AC 908 Lady Hale, in concluding that the Act there in question did permit surveillance of potentially privileged communications between lawyers and their clients, described it as an “unpalatable conclusion”; and

  1. in R.E. v United Kingdom [2015] ECHR 947 the European Court of Human Rights made a number of high level statements supporting the importance of protecting legally privileged communications. These statements of principle drawn from a very different context have nothing to do with any presently relevant question.

  1. I reject the applicants’ submission that a stay should be granted to permit consideration of further disclosure by reason of any possibly excessive execution of a SD Act warrant. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  2. Issue 6 raises an argument about the construction of the SD Act by reference to whether the warrant permitted installation of the devices where they were installed. Issue 6 is in effect a direct challenge to Gould. The applicants seek to examine material that was provided in support of an application for the issue of the warrants in determining a challenge to the issue of a warrant.

  3. To the extent that issue 6 seeks to sidestep Gould, I reject the applicants’ attempt to have me opine about the correct construction of the SD Act in the abstract. As I have said, the Court should be astute to ensure that the constraints established by the Ousley line of authority are not subverted by recharacterising the challenge as one going to “investigatory impropriety”, but not the legal validity of the process, whilst avoiding the constraints on the issue of a subpoena.

  4. Issue 6 does not go so far as to make any allegation about “investigatory propriety” but raises as a possibility that an argument about investigatory propriety may be available if the applicants are correct about the construction they advance of s 18 of the SD Act. The documents that were before the issuing officer can have no bearing on the interpretation of the SD Act. If the applicants are correct about the construction of the SD Act, the first hurdle in their s 138 Evidence Act challenge may have been cleared. If the applicants are not correct about the construction of the SD Act they propose, the foundation for any s 138 challenge disappears.

  5. On either hypothesis, I am not satisfied that a stay should be granted to permit the consideration of further disclosure.

  6. The applicants also sought to agitate a question about whether the product of a surveillance device installed in a law firm was thereby unlawfully or improperly obtained. In the present case detailed steps were taken for the Court to determine any claim of client legal privilege by any person associated with Clamenz. No claim was eventually made: [2020] NSWSC 1105. In any event, the material before the issuing officer can have no bearing on whether the communications captured by the devices were illegally or improperly obtained. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  7. Issue 7, is framed as being whether there was “recklessness or a deliberate cutting of corners or otherwise” in the installation of devices on 23 January 2017 pursuant to SD6116. Documents before the issuing officer of both SD6116 and SD6400 are sought. The materials sought are said to evidence the purpose for the applications. The request for further disclosure necessarily relates to the sufficiency of the materials before the issuing officer, in particular whether the applications disclose the suspicions required by s 14(1) of the SD Act. The disclosure request is directly contrary to Gould. Like issue 6, there was a half-hearted attempt to recharacterise the challenge as one going to “investigatory impropriety”, but not the legal validity of the process. Again, the Court should be astute to ensure that the constraints established by the Ousley line of authority are not subverted by posing the mere possibility of investigatory impropriety.

  8. There is no basis on the material before me to suggest that a named person warrant was sought, instead of a specified premises warrant, (or that a specified premises warrant was sought, instead of a named person warrant) for some improper purpose. I reject the suggestion that it is open to infer that this occurred out of recklessness or the cutting of corners. There is simply no evidence which would permit such an inference to be drawn. There is no basis to suggest that the specified premises warrant (SD6400) was obtained because the AFP believed the named person warrant (SD6116) did not authorise the installation of devices at Clamenz. There is no basis suggested for the assertion that the AFP believed the installation of devices pursuant to SD6116 was not authorised by that warrant. I am not satisfied that a stay should be granted to consider giving further disclosure. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  9. As to issue 8, the applicants seek documents “evidencing” why particular devices were installed and then removed. The applicants submitted that “an available inference is that it was regarded as appropriate to remove devices installed under SD6116 as it was believed those devices were installed unlawfully, yet police nevertheless decided to leave in place in the Opera Room because they considered they were obtaining useful information and/or intended that a subsequent warrant would retrospectively correct any invalidity or irregularity”. I am not persuaded on the evidence before me that such an inference is arguably available.

  10. I am not satisfied that a stay should be ordered to consider further disclosure. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  11. Issue 9 seeks documents before the issuing officer for SD6400 to check whether there was proper regard paid to the matters addressed by s 16(2)(c) of the SD Act. This request is prohibited by Gould and I am bound by Gould to reject it.

  12. Warrant SD6400 provides a separate and distinct authorisation to warrant SD6116. No basis has been shown to infer that its issue related to the authorisation granted by warrant SD6116. I am bound by Gould to conclude that each of the warrants is valid or invalid on its face. I reject the applicants’ submission that there is any basis to infer that the AFP did not have power to install devices under SD6116, much less that “they knew it”. This is a matter of hyperbolic assertion and not based on evidence.

  13. Issue 9 does not identify any defect on the face of the warrant. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  14. Issue 10 seeks disclosure of the affidavit before the issuing officer for SD6400 to examine why the warrant authorised a tracking device. The reference to the tracking device does not provide a basis for disclosure of the information before the issuing officer. The request is inconsistent with Gould.

  15. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  16. Issue 11 seeks documents identifying the times when the 24 January 2017 conversations in the Bridge Room and Opera Room were monitored and whether that information was relied upon directly or indirectly in the issue of extension of existing warrants or in the issue of subsequent warrants. In terms, the disclosure request flies in the face of Gould. At the risk of further repetition, a trial judge has no power to examine material that was provided in support of an application for the issue of federal warrants in determining a challenge to the issue of a warrant and hence there could be no duty of disclosure on the prosecution to produce it. This, in a slightly more elaborate way, is what the applicants here seek.

  17. To the extent that issue 11 seeks to sidestep Gould, I reject the submission that the possible derivative use of material obtained under earlier warrants in obtaining the extension or a further warrant puts this disclosure request into any different category. There is no assertion of investigatory impropriety here. Rather, the applicants’ submission proceeds on a series of assumptions and possible inferences, none of which I am prepared to draw. I am not satisfied that a stay should be granted to consider further discovery. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  18. Issue 12 seeks disclosure of documents relating to whether the authority of SD6400 was exceeded by reason of the number of devices installed. Warrant SD6400 in terms authorised the installation of up to four devices.

  19. The applicants’ argument about this issue proceeds on a number of assumptions, none of which are made good on the evidence. There is no evidence that material obtained pursuant to either warrant was unlawfully obtained. There is no evidence that anybody was aware of any question about material being unlawfully or improperly obtained under any warrant. There is no reason to think that anybody took steps to remedy any possible illegality or impropriety.

  20. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  21. Issue 13 requests “documents evidencing the period when monitored information … was disseminated”. That issue is said to be relevant to possible “derivative use”.

  22. The only evidence about this issue is that the CDPP has told the applicants that the application for SD6400 did not refer to material obtained through the use of devices installed pursuant to SD6116. The applicants’ retort is that it does not follow that the material did not assist the AFP’s understanding or otherwise influence the decision subsequently to proceed with seeking a specified-premises warrant. The applicants submitted that because information that was obtained pursuant to SD6116 may have informed the decision to apply for SD6400, they are entitled to access to the material before the issuing officer for SD6400. I do not agree.

  23. This issue again raises the important point identified by Basten JA in Gould. This issue is an attempt to circumvent the constraints established by the Ousley line of authority by recharacterising the challenge as one going to “investigatory impropriety” whilst avoiding the constraints on the issue of a subpoena. There is no basis to conclude here that any “investigatory impropriety” occurred. I am not satisfied that a stay should be granted to consider further discovery. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  24. Issue 14 seeks documents relating to the issue of warrant SD6400. The basis of this submission is s 17(1)(b)(xi) of the SD Act which provides that a warrant must set out any conditions subject to which a premises may be entered or a device used pursuant to the warrant. The request is flatly inconsistent with Gould.

  25. Further, the extrinsic material makes clear that it is the person who issues the warrant who is empowered to impose conditions on a warrant. Paragraph 58 of the Explanatory Memorandum to the Surveillance Devices Bill 2004 provides:

“[58]   Subparagraph 17(1)(b)(xi) provides that conditions under which the SD can be used can be specified in the SD warrant. For example, where the Judge or member is satisfied in Part 5 of this Bill that the consent of an appropriate consenting official of a foreign country has been given for extraterritorial surveillance, the Judge or member can specify that the warrant authorises the use of the SD extraterritorially.” (Emphasis added.)

  1. I am not satisfied that a stay to consider further disclosure is warranted. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

  2. Issue 17 seeks information evidencing compliance with s 60(1)(d) of the TI Act. Assuming in the applicants’ favour that providing a certified copy of the warrant between 12 and 20 days after the issue of the warrant was not “as soon as practicable”, this does not amount to a “substantial defect or irregularity” such that it would affect the admission into evidence of the recorded conversations: s 75(2) TI Act. No basis has been shown to require a stay of proceedings to consider further disclosure of material “evidencing compliance with the obligations in s [60(1)(d)] of the TI Act.”

  3. In Geldert v State of Western Australia [2012] WASCA 226; (2012) 226 A Crim R 260 at [54]-[56] McLure P (with whom Martin CJ and Mazza JA agreed) said:

“[54] Third, there is no compelling justification for requiring that service of a certified copy of the warrant on the carrier be a precondition to the existence of the agency’s authority to commence interception in circumstances where there is a valid warrant which is in force from the time of its issue (s 54) and only for a limited period. That is particularly so when the statutory timeframe in s 60(1)(d) involves matters of judgment which will vary according to the circumstances of the case at hand. Such a requirement is also incompatible with the legislative scheme for urgent telephone applications which permits the issue of a warrant even in advance of receipt of sworn evidence.

[55] Based on the scheme of the Act as a whole, the purpose of the requirement to serve a certified copy of the warrant on the carrier is to establish an audit trail connecting notifications under s 60(1)(c) to the certified copy of the relevant warrant in order to underpin the transparency and accountability secured by the extensive reporting obligations in the Act, including those of Managing Directors of carriers in s 97 of the Act.

[56] Accordingly, the intercepted information obtained under warrants H10014-00 and H09260-00 was ‘lawfully intercepted information’ admissible under s 74. I would dismiss ground 1.”

  1. That conclusion provides a complete answer to the applicants’ underlying point said to support further disclosure. Geldert was followed by the Court of Criminal Appeal in R v O’Meley [2017] NSWCCA 153, at [59], [62]-[66] by Davies J with whom Basten JA and Johnson J relevantly agreed.

  2. I am not satisfied that a stay should be ordered. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

Issue 18

  1. Issue 18 seeks the information which was before the issuing officer in granting a warrant under Part 1B of the Crimes Act. Essentially, issue 18 is directed to obtaining documents before the issuing officer to demonstrate that the warrant should not have authorised a search for material concerning the full range of offences that might comprise defrauding the Commonwealth if the sworn complaint only justified seizing material concerning PAYG and GST fraud.

  2. I am bound by Gould to conclude that “the trial court had no power to examine the affidavits and other material placed before the authority which issued the warrants in order to challenge the validity of the warrants”.

  3. In any event, I am not satisfied that there is any basis shown to require the Crown to review anything to test “whether this argument”, the excessive breadth of the s 3E Crimes Act warrant due to insufficient particularisation of the third condition, is available to the applicants.

  4. I reject the applicants’ submission that Gould was distinguishable on the basis of anything that Wigney J said in Caratti v AFP (No 2) [2016] FCA 1132. In Caratti, unlike the present case, the sworn complaint was before his Honour. The attempt to set aside the warrant for insufficient particulars failed in Caratti because Wigney J found that the warrant was justified in the way it was particularised. Caratti (No 2) provides no assistance to the applicants.

  5. I am not satisfied that a stay should be granted. I am not satisfied that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” in the absence of the further disclosure which is sought.

Conclusion and orders

  1. All of the applicants’ attempts to obtain a stay of proceedings pending the provision of further disclosure have failed. For the foregoing reasons the applicants’ notice of motion dated 4 June 2020 must be dismissed.

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Endnotes

Amendments

24 August 2020 - Date of order corrected.

25 August 2020 - Footnote formatting amended.

22 March 2023 - Publication restriction lifted.

Decision last updated: 22 March 2023

Most Recent Citation
Cases Citing This Decision

6

R v Cranston (No 11) [2022] NSWSC 167
R v Cranston (No 9) [2021] NSWSC 1413
R v Cranston (No 7) [2020] NSWSC 1834