R v Giannakopoulos & Marzilli - [2013] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
Question of Law Reserved NO 3 OF 2012
R v GIANNAKOPOULOS & MARZILLI
[2013] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
14 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY - EFFECT OF COMMONWEALTH LAW ON STATES - PARTICULAR CASES
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY - EFFECT OF COMMONWEALTH LAW ON STATES - GENERAL PRINCIPLES
Giannakopoulos and Marzilli, the defendants, are charged with two counts of offering a benefit to a witness. The first count alleges an offence against s 244(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (‘Commonwealth Places Act’). The second count alleges an offence against s 244(1) of the CLCA.
The evidence sought to be relied at trial on includes a conversation, held in the Adelaide Airport, between an undercover police officer (U41), Giannakopoulos and a witness (Gavrilovic). That conversation was covertly recorded. The equipment also captured things said by Giannakopoulos, in the course of him using his telephone, to Marzilli.
The defendants applied to the presiding District Court Judge for an order quashing count 1. On that application the Judge reserved certain questions for the consideration of this Court.
The questions reserved by the Judge are as follows – [7.1] is the offence charged in count 1 an offence known to the law of the Commonwealth – [7.2] (i) is the Listening and Surveillance Devices Act 1972 (SA) (‘LSD Act’) applicable as a law of the Commonwealth, and (ii) if it is, was the recording of the conversation held at Adelaide Airport unlawful for want of compliance with that Act – [7.3] (i) is the Surveillance Devices Act 2004 (Cth) (‘SD Act’) applicable, and (ii) if it is, was the recording of the conversations held at the Adelaide Airport unlawful for want of compliance – [7.4] have U41 and/or Gavrilovic committed an offence against the law of the Commonwealth – [7.5] if the answer to [7.4] is yes, does the Commonwealth Places Act pick up the Criminal Law (Covert Operations) Act 2009 (SA) such that, in the circumstances of this case, U41 and/or Gavrilovic has the benefit of the authorisation issued.
Held per Kourakis CJ (Vanstone and Kelly JJ agreeing): [7.1] Yes, the offence charged in count 1 is an offence known to the law of the Commonwealth – [7.2] (i) Yes, the LSD Act (SA) is applicable as a law of the Commonwealth in its application to the investigation of a State offence by a police officer of this State – [7.2] (ii) No, the recording was not unlawful, no warrant was required to record the conversations because both Gavrilovic and U41 were parties to the conversation – [7.3] (i) Yes, in its application to the investigation of a Commonwealth offence, the SD Act (Cth) is applicable – [7.3] (ii) No, the recording was not unlawful for want of compliance with the SD Act (Cth) – [7.4] It is inappropriate to answer, the agreed facts are an insufficient factual foundation on which to answer – [7.5] It is inappropriate to answer, the question does not arise in the absence of a substantive answer to [7.4].
Criminal Law Consolidation Act 1935 (SA) s 237, s 244, s 244(1); Commonwealth Places (Application of Laws) Act 1970 (Cth) s 3, s 4, s 4(1), s 4(2)(a), s 4(2)(c), s 4(5), s 4(5)(c), s 6(2); Criminal Law (Covert Operations) Act 2009 (SA); Listening and Surveillance Devices Act 1972 (SA) s 4, s 6, s 6A, s 6AB, s 7; Surveillance Devices Act 2004 (Cth) s 4, s 4(1), s 6, s 7, s 10, s 11, s 12, s 14, s 14(1), s 14(2), s 37, s 37(1), s 37(2), s 38, s 38(2), s 38(5), s 45, s 45(1), s 45(2), s 45(3), s 45(4), s 45(5), s 45(6); Telecommunications (Interception and Access) Act 1979 (Cth); Crimes Act 1914 (Cth) s 4AAA, s 4AAA(2), s 4AAA(3), s 37, s 4C(1), s 4C(2); Commonwealth of Australia Constitution Act (Cth) s 51, s 52, s 109; Service and Execution of Process Act 1992 (Cth); Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (Cth); Australian Federal Police Act 1979 (Cth) s 4AA; Commonwealth Places (Administration of Laws) Act 1970 (SA) s 4, s 4(1), referred to.
Melbourne Corporation v Commonwealth (1947) 74 CLR 31; O’Donoghue v Ireland (2008) 234 CLR 599, discussed.
Worthing v Rowell and Muston Pty Ltd & Ors (1970) 123 CLR 89; Lipohar v R (1999) 200 CLR 485; Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; Momcilovic v The Queen (2011) 245 CLR 1; R v Giaccio (1997) 68 SASR 484, considered.

Question of Law Reserved NO 3 OF 2012
R v GIANNAKOPOULOS & MARZILLI
[2013] SASCFC 50
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: Giannakopoulos and Marzilli (the defendants) are charged on Information in the District Court with two counts of offering a benefit to a witness. The first count alleges an offence against s 244(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (Commonwealth Places Act). The second count alleges an offence against s 244(1) of the CLCA. The defendants applied to the presiding Judge for an order quashing count 1. On that application the Judge has reserved certain questions for the consideration of this Court.
The factual circumstances on which the questions arise appear in the following paragraphs of the Case Stated:[1]
[1]    AB, pg 2-4.
5.The evidence sought to be relied on at trial by the prosecution in support of count 1 includes conversation between an undercover police officer, code named U41, Giannakopoulos, and a witness, Miladin Gavrilovic, which conversation was held inside the Adelaide Airport main terminal on 7 August 2009. That conversation was covertly recorded by electronic means by the South Australia Police with the assistance of equipment on the person of U41 and of Gavrilovic in the course of an undercover operation (“the State UC Operation”) conducted by the South Australian Police (“SAPOL”) purportedly under the Criminal Law (Covert Operations) Act 2009 (SA) (“the Evidence”). The equipment with U41 and Gavrilovic also captured things said by Giannakopoulos in the course of him using his telephone to contact Marzilli.
6.The following facts are agreed and I find them established on the balance of probabilities:
6.1    On 7 August 2009 U41 was inside the main terminal at the Adelaide Airport in the company of Miladin Gavrilovic. There they met Giannakopoulos.
6.2 The Adelaide Airport is a Commonwealth place within the meaning of s 3 of the Commonwealth Places (Application of Laws) Act 1970 (Cth).
6.3    At all relevant times on 7 August 2009 U41 and the witness Gavrilovic were purporting to act pursuant to a covert operation within the meaning of the Criminal Law (Covert Operations) Act 2009 (SA).
6.4    The terms of the approval of that covert operation are se4t out in a document entitled “Approval to Conduct an Undercover Operation” dated 5 August 2009 and a document entitled “Addendum to an Approval to Conduct an Undercover Operation” dated 13 September 2009. A true and accurate copy of the said approval and addendum are attached and marked B.
6.5    Whilst inside the terminal at Adelaide Airport on 7 August 2009, one or more of U41 and/or Gavrilovic and/or other police, recorded conversations between the Giannakopoulos, Gavrilovic and U41, and telephone calls made by Giannakopoulos to Marzilli (“the conversations”).
6.6    The recording of the conversation (including Giannakopoulos’ telephone conversation) at Adelaide Airport was done by equipment answering the description of a listening device within the meaning of the Listening and Surveillance Devices Act 1972 (SA) (“the LD Act”) and a device within the meaning of the Surveillance Devices Act 2004 (Cth) (“the SD Act”).
6.7    A true and accurate transcript of the recording of the said conversation (including Giannakopoulos’ telephone conversation) is attached and marked C.
6.8    No warrant was issued under the LD Act, the SD Act or the Telecommunications (Interception and Access) Act 1979 (Cth) extending to the conversations recorded on 7 August 2009 as transcribed in attachment C.
6.9    Further no approval under the Crimes Act 1914 (Cth) was in operation in relation to the events of 7 August 2009.
The questions reserved by the Judge are:[2]
[2]    AB, pg 4-5.
[7.1]Is the offence charged in count 1 of the Information an offence known to the law of the Commonwealth of Australia?
[7.2]On the facts as I find them to be:
(i)    is the Listening and Surveillance Devices Act 1972 (SA) applicable as a law of the Commonwealth, and
(ii)     if it is, was the recording of the conversation held at Adelaide Airport unlawful for want of compliance with that Act?
[7.3]On the facts as I find them:
(i)    is the Surveillance Devices Act 2004 (Cth) applicable, and
(ii)     if it is, was the recording of the conversations held at Adelaide Airport unlawful for want of compliance with that Act?
[7.4]Have U41 and/or Gavrilovic committed an offence against the law of the Commonwealth?
[7.5]If the answer to question [7.4] is yes, does the Commonwealth Places (Application of Laws) Act 1970 (Cth) pick up the Criminal Law (Covert Operations) Act 2009 (SA) such that, in the circumstances of this case, U41 and/or Gavrilovic has the benefit of the authorisation issued under s 4 of the latter Act on 5 August 2009 and subject of the addendum dated 13 September 2009?
Applicability of s 244(1) of the CLCA to Commonwealth Places (Question 7.1)
The first question in effect asks whether s 4(1) of the Commonwealth Places Act enacts a law of the Commonwealth, in the same terms as s 244(1) of the CLCA, in, and in relation to, Commonwealth Places in South Australia, including the Adelaide Airport.
Section 52 of the Commonwealth of Australia Constitution Act (Cth) (Constitution) confers on the Commonwealth Parliament an exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to all places acquired by the Commonwealth for public purposes. The Adelaide Airport is such a place.
The legislative power conferred by s 52 of the Constitution is a plenary power with respect to Commonwealth Places in the sense that it is not limited by reference to any other subject matter. It is, however, expressly made subject to the other provisions of the Constitution. The legislative power conferred by s 52 of the Constitution is therefore subject to the generally applicable express and implied limitations on Commonwealth legislative power imposed by the Constitution. The defendants rely on a particular implied limitation which they contend arises out of Chapter 3 of the Constitution. I will return to that contention later.
The effect of the conferral of exclusive jurisdiction is that State laws can have no application to Commonwealth places. Until Worthing v Rowell and Muston Pty Ltd & Ors[3] (Worthing v Rowell) it had been assumed that State laws operated in Commonwealth places subject only to a question of inconsistency with Commonwealth laws. However, in Worthing v Rowell the High Court explained that the consequence of the conferral of exclusive legislative power over Commonwealth Places was that State laws could not apply, of their own force, in, and in relation to, a Commonwealth place. The purpose of the Commonwealth Places Act is to enact Commonwealth laws in the same form as State laws with respect to Commonwealth Places by a shorthand reference to the body of State legislation which would otherwise have applied to them. I refer in these reasons to a Commonwealth law so enacted as a transmuted State law.
[3] (1970) 123 CLR 89.
Section 4 of the Commonwealth Places Act provides:
(1)The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.
(1A)Subsection (1) does not apply to the provisions of the laws of a State to the extent that those provisions have effect, as laws of the Commonwealth, under the Commonwealth Places (Mirror Taxes) Act 1998.
(2) This section does not:
(a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; or
(b)     operate so as to make applicable the provisions of a law of a State in or in relation to a Commonwealth place if that law would not apply, or would not have applied, in or in relation to that place if it were not, or had not been, a Commonwealth place.
(3)To the extent that the laws of a State would, but for subsection (1) of this section, have, or have had, the same effect, at a particular time, with respect to an act, matter or thing having a connexion with a place in that State that is, or was, at that time, a Commonwealth place as they would have, or would have had, at that time, if the act, matter or thing did not have such a connexion, that subsection does not have effect with respect to the provisions of those laws.
(4)In so far as a law of a State has effect in another State, subsection (1) of this section operates to make the provisions of that law applicable in or in relation to a Commonwealth place in that other State.
(5) Subsection (1) of this section does not:
(a)     have effect so as to impose any tax;
(b)     have effect so as to confer any judicial power; or
(c)     extend to the provisions of any law of a State in so far as it is not within the authority of the Parliament to make those provisions applicable in or in relation to a Commonwealth place.
(6) The regulations may provide that such of the provisions referred to in subsection (1) of this section as are specified in the regulations do not apply, or shall be deemed not to have applied, by reason of this section or so apply, or shall be deemed to have so applied, with such modifications as are specified in the regulations.
(7)Regulations shall not be made for the purpose of the last preceding subsection modifying the applied provisions in their application in or in relation to a Commonwealth place except in so far as the modifications are necessary or convenient to enable the applied provisions to operate in or in relation to that place.
(8)For the purposes of the last two preceding subsections, modification includes the omission or addition of a provision or the substitution of a provision for another provision.
(9)Any reference in a law of the Commonwealth (including the applied provisions) to a law of a State shall, if any part of the applied provisions corresponds to that law, be read as including a reference to that part.
(10)Any reference in the applied provisions to a law of a State shall, if there is not any part of the applied provisions that corresponds to that law, be read as a reference to that law.
(11) Any reference in a part of the applied provisions to a conviction, punishment, penalty or forfeiture under the applied provisions shall be deemed to include a reference to a conviction, punishment, penalty or forfeiture under the law of a State that corresponds to that part.
(12)Where:
(a)     there is not in force an arrangement with the Governor of a State under subsection (2) of section 6 of this Act;
(b)     a law of that State provides that an act may or shall be done by an authority of the State; and
(c)     a part of the applied provisions corresponds to that law;
that authority is empowered to do that act under that part of the applied provisions.
(13)Without limiting the effect of any of the preceding provisions of this section, it is declared that the powers of a person under the applied provisions may be exercised in a Commonwealth place in a State in respect of an act done in that State notwithstanding that the act was not done in or in relation to that place and the applied provisions as having effect in or in relation to that place have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.
(14)Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.
The following aspects of s 4 of the Commonwealth Places Act should be noted. First, s 4(2)(a) of the Commonwealth Places Act has the effect that a State law which is rendered inoperative by s 109 of the Constitution because of an inconsistency with a Commonwealth law, is not applied to a Commonwealth place by s 4 of the Commonwealth Places Act.
Secondly, State laws are only picked up and applied to Commonwealth places “in accordance with their tenor”.[4] Moreover, s 4(2)(b) of the Commonwealth Places Act expressly provides that the section does not operate so as to make applicable a State law if that law would not have applied to the Commonwealth place, even if the place was a “State place” and not a Commonwealth place.
[4] Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1).
Finally, s 4(5)(c) of the Commonwealth Places Act acknowledges the necessary constitutional limitation on the operation of s 4 of that Act, in that the State laws applied to Commonwealth places must be laws which are within the authority of the Parliament to make. That provision reflects the necessary Constitutional limitation which arises because s 4 of the Commonwealth Places Act enacts Commonwealth laws by reference to the written text of State laws. The transmuted State laws derive their force from the Commonwealth’s legislative power and their validity is therefore subject to the generally applicable constitutional limitations on the Commonwealth’s legislative power. In this respect I refer to my earlier observation that s 52 of the Constitution, unlike s 51 of the Constitution, is not limited by subject matter. The limitations acknowledged by s 4(5) of the Commonwealth Places Act are therefore those generally applicable, explicit or implied, limitations on Commonwealth legislative power found in other provisions of the Constitution.
It is next necessary to consider s 244 of the CLCA which provides:
(1)Subject to this section, a person who gives, offers or agrees to give a benefit to another person who is or may be required to be a witness in judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time) or to a third person as a reward or inducement for the other person's—
(a)     not attending as a witness at, giving evidence at or producing a thing in evidence at the proceedings; or
(b)     withholding evidence or giving false evidence at the proceedings,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2)Subject to this section, a person, who is or may be required to be a witness at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time), who seeks, accepts or agrees to accept a benefit (whether for himself or herself or for a third person) as a reward or inducement for—
(a)     not attending as a witness at, giving evidence at or producing a thing in evidence at the proceedings; or
(b)     withholding evidence or giving false evidence at the proceedings,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3)Subject to this section, a person who prevents or dissuades, or attempts to prevent or dissuade, another person from—
(a)     attending as a witness at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time); or
(b)     giving evidence at, or producing a thing in evidence at, such proceedings,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(4)A person is not guilty of an offence against subsection (3) unless the person knows that, or is recklessly indifferent as to whether, the other person is or may be required to be a witness or to produce a thing in evidence at the proceedings.
(5)A person who does an act with the intention of deceiving another person in any way in order to affect the evidence of the other person at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time) is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(6)A person is not guilty of an offence against this section if there is lawful authority or a reasonable excuse for his or her action.

In general terms, a legislature with plenary power can make laws proscribing arrangements, the giving of inducements and the making of demands or threats, in places subject to its legislative jurisdiction. It matters not, as a matter of power, that the purpose of the conduct is to effect a result in a place outside of the legislature’s sovereign area. Counsel for the defendants accepted that it is within the legislative competence of each of the States of Australia to proscribe conduct such as that dealt with by s 244 of the CLCA even if the judicial proceedings which the conduct is calculated to compromise are judicial proceedings in another State.
The judicial proceedings protected by s 244 of the CLCA are defined by s 237 of the CLCA to mean proceedings of any judicial body which, in turn, is defined to mean a court or any tribunal body or person invested by law with judicial or quasi judicial powers, or with an authority to make any enquiry or to receive evidence. Whether or not the definition in s 237 of the CLCA is limited to a judicial officer and judicial body of this State need not be determined in this case. However, there is, as I have observed, no constitutional limitation on the legislative competence of this State to control the conduct of persons, within the territory of the State, even if the object of that conduct is to effect a consequence in another State.[5]
[5] Indeed, it is probably equally competent for the legislature of one State to proscribe conduct which occurs in another State with the object of compromising judicial or other proceedings in its territory: see Lipohar v R (1999) 200 CLR 485; Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, 22-26, 33-34.
Even if a connection with the legislating State, over and above the location of the relevant acts or omissions within the territory of the legislating State were constitutionally necessary, there is such an additional connection to be found in the case of s 244 of the CLCA. It should be accepted that conduct designed to compromise judicial proceedings, wherever in Australia they are heard, is a mischief which every State has an interest to suppress because it discourages the commission of similar offences directed against its own judicial proceedings. Moreover, the civil and criminal process of all of the States and Territories of Australia is enforceable in every other State and Territory,[6] giving each State and Territory an interest in protecting judicial proceedings which might come to be enforced within its sovereign territory.
[6] Service and Execution of Process Act 1992 (Cth).
The Commonwealth has similar interests to protect.
No Impairment of State Courts
Nonetheless, the defendants contend that the Commonwealth, by the enactment of a law in the terms of s 244 of the CLCA, purports to “regulate State judicial proceedings” when it has no legislative power to do so. The defendants submit that the Commonwealth could not have enacted a provision such as s 244 of the CLCA to apply to State judicial proceedings generally because it would not fall within a recognised head of Commonwealth legislative power to do so and because, even if there were such a power, the enactment of a law in those terms would infringe an implied term of Chapter 3 of the Constitution.
In so far as the defendants’ submission is that the Commonwealth, leaving aside s 52 of the Constitution, does not have a power to enact a provision like s 244 of the CLCA to apply to places other than Commonwealth places, that submission can, for the purposes of this matter, be accepted. However, that contention fails to grapple with the plenary conferral of power over Commonwealth Places by s 52 of the Constitution to which I referred in [6] above.
The submission that the enactment of a Commonwealth law in the terms of s 244 of the CLCA is precluded by an implication in Chapter 3 of the Commonwealth Constitution must also be rejected. The law does not “regulate State judicial proceedings”. In its strict legal effect the transmuted s 244 of the CLCA, enacted by s 4 of the Commonwealth Places Act, does not operate on judicial proceedings. It imposes criminal liability on persons who engage in conduct designed to subvert those proceedings. In its practical effect, a Commonwealth law in the form of s 244 of the CLCA discourages conduct calculated to pervert and compromise judicial proceedings, and in so doing it enhances, rather than impairs, the exercise of judicial power by State Courts.
A more difficult question might arise if a Commonwealth law were enacted which immunised, from State prosecution, conduct which had a tendency to pervert the administration of justice in State courts, or which proscribed conduct which was practically necessary for the effective administration of justice in State courts. A real question of invalidity would arise if, for example, the Commonwealth were to make laws with respect to postal and telegraphic services prohibiting communications made for the purposes of the judicial proceedings of the States. Assuming that the law was within the scope of the power conferred by s 51 of the Constitution, a limitation on the power to legislate to that effect might be sourced in the recognition in Chapter 3 of the continuing judicial power of the States. A limitation might also be sourced in the inter-governmental immunity doctrine. However, those questions do not arise with respect to a law in the form of s 244 of the CLCA. The transmuted s 244 of the CLCA is not a law which, in its legal or practical effect, impairs the continued operation of the Constitution of the States or the functioning of their Courts.
No inconsistency with s 37 of the Crimes Act 1914 (Cth)
The defendants also contend that s 4 of the Commonwealth Places Act does not apply a law in the form of s 244 of the CLCA as a Commonwealth law to the Adelaide Airport because s 244 of the CLCA is inconsistent with s 37 of the Crimes Act 1914 (Cth) (the Crimes Act). Section 37 of the Crimes Act creates an offence of corruption of a witness, punishable by imprisonment for five years. [7] The offence is committed when a person gives, confers or procures or promises or attempts to procure any benefit to, or for, any person upon any agreement or understanding that any person called, or to be called, as a witness in any judicial proceedings will give false testimony or withhold true testimony.
[7] As in force on 7 August 2009 (including amendments up to Act No 106 of 2009, Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009).
Section 37 of the Crimes Act is undoubtedly within the power of the Commonwealth in so far as the judicial proceedings to which it is directed are proceedings in federal courts or by courts exercising federal judicial power. For the reasons given in paragraph [13], s 37 of the Crimes Act is also a valid exercise of Commonwealth legislative power in so far as it applies to conduct in Commonwealth places or the Territories of Australia, irrespective of the jurisdiction exercised in the judicial proceedings which are the subject matter of the agreement or arrangement.
The questions of the proper construction of s 37 of the Crimes Act and s 244 of the CLCA and any jurisdictional limits on the judicial proceeding to which they are directed were not fully argued. It is necessary therefore to consider the question of inconsistency.
To the extent that s 37 of the Crimes Act only applies to judicial proceedings in Commonwealth courts there can be no inconsistency with s 244 of the CLCA, in so far as the latter provision only proscribes the corruption of testimony given in State courts. If s 37 of the Crimes Act is limited to arrangements made to corrupt witnesses in proceedings before Commonwealth courts it could have no application to the conduct of Giannakopoulos and Marzilli because the object of the arrangement was to corrupt testimony to be given in criminal proceedings in this State’s courts. If s 244 of the CLCA applies to judicial proceedings of federal courts, subject to the matters addressed below in [26]-[28], it might be inoperative to that extent. However, that conclusion would not preclude the application of a transmuted s 244 of the CLCA to Commonwealth places in its operation on conduct calculated to pervert proceedings in State courts.
An inconsistency might also arise, subject again to the matters raised in paragraph [26]-[28] below, if s 37 of the Crimes Act applies to proceedings in the federal jurisdiction or s 244 of the CLCA applied to State courts when exercising federal jurisdiction. However, the prosecution, which Giannakopoulos and Marzilli are alleged to have attempted to corrupt, was before a State court and there is no suggestion that the prosecution had attracted federal jurisdiction.
Finally, it is necessary to consider the question of inconsistency on the assumption that s 37 of the Crimes Act also applies to an arrangement made in a Commonwealth place with the object of compromising State judicial proceedings. The question is whether s 244 of the CLCA is inoperative with respect to such an arrangement made in a Commonwealth Place by reason of its inconsistency with s 37 of the Crimes Act. The Director of Public Prosecutions submits that an inconsistency does not arise merely by reason of the existence of two offences proscribing the same conduct.[8]
[8] See Momcilovic v The Queen (2011) 245 CLR 1.
Section 4C(2) of the Crimes Act provides that where an act or omission constitutes an offence under both a law of the Commonwealth and a law of a State, and the offender has been punished for the offence under the law of the State, the offender shall not be liable to be punished for the offence under the law of the Commonwealth. In so providing, s 4C(2) of the Crimes Act removes any inconsistency between the operation of s 37 of the Crimes Act and s 244 of the CLCA with the result that s 244 of the CLCA can be transmuted into a Commonwealth law by s 4 of the Commonwealth Places Act. For the same reason, s 244 of the CLCA would apply as a transmuted Commonwealth law in a Commonwealth place even if on a proper construction it applied to proceedings in federal jurisdiction.
If s 37 of the Crimes Act proscribes conduct engaged in a Commonwealth Place, with the object of procuring false testimony in State judicial proceedings, it may be that an attempt to corrupt State judicial proceedings in a Commonwealth Place will be subject to two different Commonwealth laws proscribing very similar conduct. However, there is no repugnancy between those laws because their operation is governed by s 4C(1) of the Crimes Act. Section 4C(1) of the Crimes Act qualifies the application of Commonwealth laws creating offences in a way which precludes the possibility of prosecution and conviction for substantially the same offence under two Commonwealth laws. The Director correctly submits that if a person is punished for an offence against s 244(1) of the CLCA, as transmuted by s 4(1) of the Commonwealth Places Act, he or she will not be punishable for an offence against s 37 of the Crimes Act. Nor can there be an objection to the prosecutor’s selection of one of those offences for prosecution over another.
For the above reasons I would answer question [7.1]: Yes.
Application of the Listening and Surveillance Devices Act 1972 (SA) and the Surveillance Devices Act 2004 (Cth) – Questions [7.2] and [7.3]
The Listening and Surveillance Devices Act 1972 (SA) (LSD Act (SA)) is a law of general application operating throughout South Australia. Section 4 of the LSD Act (SA) prohibits the intentional use of a listening device to overhear or record a conversation without the consent of the parties to that conversation, except to the extent allowed by the Act. Section 6 of the LSD Act (SA) authorises a Judge of the Supreme Court to issue a warrant authorising the use of a listening device if the Judge is satisfied of the existence of the prescribed grounds. Section 6AB of the LSD Act (SA) prohibits the knowing communication of information derived through the installation and use of a listening device pursuant to a warrant except, inter alia, for the purposes of a relevant investigation or proceeding or in the course of a legal duty. A relevant proceeding means a prosecution of an offence and a relevant investigation includes an investigation of an offence. Section 7 of the LSD Act (SA) excludes from the operation of s 4 the use of a listening device to overhear or record a conversation to which the person using the device is a party, if the device is used in the course of the duty of that person, in the public interest or for the protection of the lawful interests of that person.
The Surveillance Devices Act 2004 (Cth) (SD Act (Cth)) has, as its purpose, the establishment of procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices and the restriction of the use, communication and publication of information that is obtained through the use of surveillance devices. Pursuant to s 14 of the SD Act (Cth) a law enforcement officer may apply for the issue of a surveillance device warrant if the law enforcement officer suspects, on reasonable grounds, that one or more relevant offences have been, or are about to be or are likely to be, committed and that the investigation of those offences requires the use of a surveillance device.
For the purposes of the SD Act (Cth), a law enforcement officer means any employee of the Australian Federal Police and any person who is seconded to the Australian Federal Police, officers of various other Commonwealth policing agencies, officers of the State and Territory Police Forces and officers of various State anti-corruption agencies.
A relevant offence is defined by s 6 of the SD Act (Cth) to mean an offence against the law of the Commonwealth, or an offence against a law of the State that has a federal aspect, which is punishable by a maximum term of imprisonment of three years or more or for life. A federal law enforcement officer means a law enforcement officer who is a member of the Australian Federal Police or any person seconded to the Australian Federal Police, or an officer of the Australian Crime Commission.
Section 7 of the SD Act (Cth) provides that an offence against the law of a State is taken to be a State offence that has a federal aspect if, inter alia, it would be taken as a State offence that has a federal aspect for the purposes of s 4AA of the Australian Federal Police Act 1979 (Cth). Section 4AA provides that a State offence is an offence with a federal aspect:
·if, had the provision creating the State offence been enacted by the Parliament of the Commonwealth, it would have been a valid law of the Commonwealth, or
·if, had the Parliament enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence, that provision would have been a valid law of the Commonwealth; or
·if the investigation of the State offence is incidental to the investigation of a federal offence.
A State offence is also taken to be a law with a federal aspect if the conduct constituting the State offence affects the interests of the Commonwealth or a Commonwealth authority.
Section 10 of the SD Act (Cth) provides for the issue of surveillance devices. Warrants may be issued by an eligible judge of a court created by the Commonwealth Parliament who has consented to be an eligible judge.[9] Importantly, s 14(2) of the SD Act (Cth) provides that if an application is being made by a State or Territory law enforcement officer, the reference in s 14(1), to a relevant offence, does not include a reference to a State offence that has a federal aspect. The effect of s 14(2) SD Act (Cth) is that a member of a State Police Force cannot apply for a warrant to use a surveillance device pursuant to the SD Act (Cth) for the investigation of a State offence. Similarly, s 37(1) of the SD Act (Cth) authorises a law enforcement officer to use an optical surveillance device without a warrant in the course of his or her duties if the use of the device does not involve entry onto premises, or interference with any vehicle or thing without the owner’s permission. The like authorisation provided for State or Territory law enforcement officers by s 37(2) of the SD Act (Cth) applies to the investigation of a relevant offence other than a State offence that has a federal aspect. A similar regime is established for surveillance devices by s 38 of the SD Act (Cth).
[9] Surveillance Devices Act 2004 (Cth), s 11 and s 12.
Section 45(1) and 45(2) of the SD Act (Cth) prohibit the recording, use or communication of protected information unless permitted by the other provisions of the section. Protected information means any information obtained from the use of a surveillance device under a warrant and any information obtained by a law enforcement officer without the authority of a warrant. Section 45(3) of the SD Act (Cth) precludes the reception into evidence of any protected information subject to subsections (4) and (5). Section 45(4) of the SD Act (Cth) is immaterial for present purposes. Section 45(5) of the SD Act (Cth) provides that ss 45(1), (2) and (3) of the SD Act (Cth) do not apply to the investigation of a relevant offence, including a State or Territory relevant offence or a relevant proceeding. However, s 45(5) of the SD Act (Cth) is itself subject to the proviso, enacted by s 45(6) of the SD Act (Cth), that the protected information was not obtained by a law enforcement officer, without the authority of a warrant, in contravention of a requirement for such a warrant under the SD Act (Cth).
In short, information can only be recorded, and then used in the prosecution of a relevant offence, if it was recorded in accordance with the direct statutory authority provided by sections 37 and 38 of the SD Act (Cth), or conformably with a warrant issued pursuant to s 14 of the SD Act (Cth).
Section 4(1) of the SD Act (Cth) relevantly provides:
4      Relationship to other laws and matters
(1)     Except where there is express provision to the contrary, this Act is not intended to affect any other law of the Commonwealth, any law of a State, or any law of a self-governing Territory, that prohibits or regulates the use of surveillance devices. Part 1 Preliminary
…
(3)     This Act is not intended to limit a discretion that a court has:
(a)to admit or exclude evidence in any proceeding; or
(b)to stay criminal proceedings in the interests of justice.
Section 4(1) of the SD Act (Cth) cannot remove any direct inconsistency between the LSD Act (SA) and the SD Act (Cth). It can be accepted that s 4(1) of the SD Act (Cth) evinces an intention not to cover the field. However, there may be a direct inconsistency between Commonwealth and State laws even if there is no Commonwealth legislative intention to cover the field.[10] For example, both s 38 of the SD Act (Cth) and s 7 of the LSD Act (SA) permit the recording of conversations without a warrant in the circumstances prescribed by each of those sections. There is plainly a degree of overlap between the circumstances prescribed by each of those sections but the situations they cover are not coterminous. In so far as s 7 of the LSD Act (SA) does not exempt conduct which falls within s 38 SD Act (Cth), it would impair the operation of s 38 of the SD Act (Cth) if a law enforcement officer, within the meaning of that term in the SD Act (Cth), was to be liable for prosecution pursuant to s 4 of the LSD Act (SA). Conversely it would impair the operation of s 45(6) of the SD Act (Cth) if the LSD Act (SA) operated to authorise a law enforcement officer of the Commonwealth to record conversations and use them without obtaining a warrant under the SD Act (Cth) in contravention of a requirement in that Act to do so.
[10] Momcilovic v The Queen (2011) 245 CLR 1, 320 (Hayne J).

Similarly, the SD Act (Cth) precludes the communication of recorded information obtained without the authority of a warrant, for example, when an eligible judge has refused to issue a warrant, in circumstances in which the Act imposes a requirement to obtain a warrant. If the LSD Act (SA) were to validly authorise the recording or use of information obtained without a warrant in contravention of a requirement of the SD Act (Cth) for such a warrant, the operation of the SD Act (Cth) would be impaired.
Having regard to the particular provisions of the SD Act (Cth), the purpose of s 4(1) of the SD Act (Cth) is a limited one. In my view the SD Act (Cth) exclusively regulates the use by Commonwealth law enforcement agencies of surveillance devices. Commonwealth law enforcement agencies are not free to choose to ignore the provisions of the SD Act (Cth) and to rely on the provisions of the LSD Act (SA) to authorise their use of a listening device. State law enforcement agencies are empowered to make an application under the SD Act (Cth) for the investigation of Commonwealth offences. However, the SD Act (Cth) expressly withholds any power to authorise, by warrant, a State police officer to use a surveillance device in the investigation of State offences with a federal aspect. The authorisation of the use of surveillance devices by the SD Act (Cth) does not extend to State police officers investigating State offences with a federal aspect. In the investigation of State offences, State law enforcement agencies must continue to rely on the operation of the LSD Act (SA). Section 4(1) of the SD Act (Cth) makes it clear that the provisions of the SD Act (Cth) do not impair the operation of the LSD Act (SA), and other equivalent State legislation, with respect to the authorisation of persons, other than Commonwealth law enforcement officers, in the investigation of State offences.
Section 4(1) of the SD Act (Cth) cannot avoid the consequence of direct inconsistencies such as those outlined in the preceding paragraphs. The LSD Act (SA) is, to the extent of a direct inconsistency of that kind, inoperative. However, there is no direct inconsistency of that kind in the authorisation of State police officers to use listening devices for a purpose other than the investigation of a Commonwealth offence. There is, therefore, no impediment, by reason of inconsistency with the SD Act (Cth), to the application of the LSD Act (SA) as a transmuted Commonwealth law to a Commonwealth Place in its operation as a law regulating the use of listening devices in Commonwealth places for the investigation of State offences by State police officers.
On this Case Stated there are no findings as to the purpose of the use of the listening device and, in particular, whether the sole purpose was to investigate the Commonwealth offence created by the transmuted s 244 of the CLCA to the Adelaide Airport. On the material before this Court, it is likely that at least one of the purposes of the use of the device was to investigate an offence against s 244 of the CLCA committed in State places outside of the Adelaide Airport. For example, as well as constituting the offence in the first count on the information, the conversation which was recorded may be relevant to the offence charged in the second count. Moreover, Marzilli may have committed an offence against both s 244(1) of the CLCA, assuming he was not also somewhere else in the Adelaide Airport at the time of the telephone calls, by reason of his presence in a “State place” when he took Giannakopoulos’ calls, and may also have committed an offence against s 244(1) of the CLCA as it applied in the Adelaide Airport, because of the communication of his voice to Giannakopoulos who was in the Adelaide Airport. In the absence of a finding that the listening device was used solely to investigate a Commonwealth offence, the use of the listening device by U41 was authorised by the transmuted s 7 of the LSD Act (SA).
The defendants contend that the LSD Act (SA) cannot be enacted as a Commonwealth law for another reason. They contend that if the LSD Act (SA) were enacted as a Commonwealth law, it would impermissibly purport to impose administrative duties on a judicial officer of this State. The question raised by the defendants’ contention is whether s 4 of the Commonwealth Places Act extends to the enactment of a Commonwealth law in the form of s 6 of the LSD Act (SA), authorising a judge of this Court to issue a warrant authorising the use of a listening device in a Commonwealth place. The defendants contend that s 4 does not operate to pick up s 6 of the LSD Act (SA) in that way because a Commonwealth law to that effect would be repugnant to the inter-governmental immunity explained in Melbourne Corporation v Commonwealth (Melbourne Corporation).[11]In O’Donoghue v Ireland,[12] the High Court left open the question of whether the Melbourne Corporation doctrine limits the Parliament’s power, without State legislative approval, to impose upon the holder of a State statutory office a duty, rather than a mere power of an administrative nature. Even though no warrant was issued pursuant to s 6 of the LSD Act (SA), it is necessary to consider and determine the defendant’s contentions in this respect because it is doubtful that s 4 of the Commonwealth Places Act would apply the LSD Act (SA) in part only.
[11] (1947) 74 CLR 31.
[12] (2008) 234 CLR 599.
Section 6 and 6A of the LSD Act (SA) are laws “relating to criminal matters” within the meaning of that term in s 4AAA of the Crimes Act. Section 4AAA(2) of the Crimes Act provides that a law of the Commonwealth relating to criminal matters conferring an administrative function or power on a judge of a State Court is conferred only in a personal capacity. Section 4AAA(3) of the Crimes Act provides that the person need not accept the function or power conferred. The effect of those provisions is that the enactment of a law in the form of s 6 of the LSD Act (SA) as a law of the Commonwealth would confer a power and not a duty on the judges of this Court.
The Melbourne Corporation doctrine does not have application to a law in the form of s 6 and s 6A of the LSD Act (SA) for the further reason that there is State legislative approval for the conferral of the function. Legislative approval is given by s 4(1) of the Commonwealth Places (Administration of Laws) Act 1970 (SA) pursuant to which an arrangement has been made between the Governor-General and the Governor of this State.[13] Section 4 of the Commonwealth Places (Administration of Laws) Act 1970 (SA) empowers the Governor to make an arrangement with the Governor-General for the exercise or performance of an administrative power by an administrative authority of the State. It provides that:
Where, under a law of the State, provision is made for or in relation to the exercise or performance of a power, duty or function by Authority of the State (not being a court) and under the applied provisions, provision is made for to the exercise or performance of a like power, duty or function, the Governor may make an arrangement with the Governor-General of the Commonwealth for the exercise or performance of that power, duty or function under the applied provisions by an Authority of the State (not being a court) in and in relation to Commonwealth places as provided in the arrangement.
[13] See also, Commonwealth Places (Application of Laws) Act 1970 (Cth), s 6(2).
There is therefore statutory approval for the conferral of the function.
For the above reasons, there is no constitutional obstacle to the application of the LSD Act (SA) to Commonwealth places in this State as a transmuted Commonwealth law.
I would therefore answer question [7.2(i)]: Yes, in its application to the investigation of a State offence by a police officer of this State.
Pursuant to the provisions of the LSD Act (SA), no warrant was required to record the conversations at Adelaide Airport in that both the police officer, U41, and Gavrilovic were parties to the conversation.[14] I would therefore answer question [7.2(ii)]: No.
[14] See, R v Giaccio (1997) 68 SASR 484.
It follows from my holding as to the limited application of the transmuted LSD Act (SA) that that Act regulated and, on the facts of this case, authorised the use of the listening device to investigate a State offence. I observe that if I am mistaken in holding that the LSD Act (SA) was validly enacted as a law of the Commonwealth by s 4 of the Commonwealth Places Act, any breach of its provisions cannot affect the admissibility of the recorded conversation.
Applicability of the SD Act (Cth)
It follows from my previous holdings that the SD Act (Cth) governs the use of surveillance devices in the Adelaide Airport to investigate Commonwealth offences. I would answer question 7.3(i): Yes, in its application to the investigation of a Commonwealth offence.
I turn next to consider whether or not the provisions of the SD Act (Cth) were breached in so far as the listening device was used to investigate the Commonwealth offence created by the transmuted s 244 of the CLCA, which was allegedly being committed at the Adelaide Airport as the conversation was recorded.
I would find that on the agreed facts the conversation was lawfully recorded pursuant to the SD Act (Cth). On the agreed facts, U41 was acting in the course of his duties as a police officer and was therefore authorised by s 38 of the SD Act (Cth) to record the conversation without first obtaining a warrant. The recording was obtained by State police officers investigating a Commonwealth offence, being the transmuted s 244 of the CLCA, in accordance with their power to do so pursuant to s 38(2) and/or s 38(5) of the SD Act (Cth). Moreover, the information so obtained was admissible in accordance with the provisions of the SD Act (Cth).
The words of s 45(5) of the SD Act (Cth) “in contravention of the requirement for such a warrant”, mean a requirement which exists because the information could not otherwise lawfully be recorded or used. Sections 38(2) and 38(5) of the SD Act (Cth) provide direct statutory authority for the recording of the information there was therefore no “requirement” to obtain a warrant. Section 14(1) of the SD Act (Cth) provides a process by which a law enforcement officer can obtain a warrant for the use of a surveillance device if the relevant law enforcement officer holds a prescribed suspicion. However, a police officer who holds a prescribed suspicion is not, for that reason alone, obliged to obtain a warrant if the use of the listening device is otherwise authorised by the SD Act (Cth).
There is no reason to limit the authorisation to use a listening device in s 38(2) to Commonwealth offences other than Commonwealth offences created by the application of State laws to Commonwealth places pursuant to s 4 of the Commonwealth Places Act.
As has been seen, s 38(2) of the SD Act (Cth) is limited to the recording of conversations between a law enforcement officer and another person in circumstances in which the law enforcement officer is either the speaker of the words or “is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard”. The defendants contend that Giannakopoulos never intended his conversation to be heard by U41 because he did not know that U41 was a police officer.
There is no reason to exclude from the scope of s 38(2) of the SD Act (Cth) persons who labour under a mistake of fact as to the true identity of the person to whom they are speaking. The purpose of the limitation is to address surreptitious recording by a person (an eavesdropper) that the speaker does not expect to be within earshot. Moreover, the implication contended for by the defendants is inconsistent with the express authorisation of State police officers by s 38(2) of the SD Act (Cth) to record the words of a speaker if he or she “should reasonably expect the words to be heard” by that police officer. No subjective knowledge of the identity or occupation of the person within earshot is required for the purpose of that objective test.
For those reasons a mistake as to the identity of the person whom the speaker reasonably expects would hear the conversation is immaterial.
I would therefore answer question 7.3(ii): No.
My answers to 7.2 and 7.3 mean that there was legislative authority to record and use the subject conversations whether the listening devices were being used to investigate State or Commonwealth offences.
Remaining Questions
The agreed facts are an insufficient factual foundation on which to answer Question [7.4]. There are no findings as to the intentions of U41 and Gavrilovic which would allow an answer to that question to be given. Question [7.5] does not arise in the absence of a substantive answer to Question [7.4]. I would answer both of those questions, “It is inappropriate to answer”.
Conclusion
The answers to the stated questions are:
[7.1]:Yes.
[7.2(i)]:Yes, in its application to the investigation of a State offence.
[7.2(ii)]:No.
[7.3(i)]:Yes in its application to the investigation of a Commonwealth offence.
[7.3(ii)]:No.
[7.4]:It is inappropriate to answer.
[7.5]:It is inappropriate to answer.
VANSTONE J: I agree that the questions reserved should be answered as proposed by the Chief Justice. I agree with the reasons the Chief Justice has written.
KELLY J: I agree that the questions reserved should be answered as indicated by the Chief Justice and with the reasons the Chief Justice has given.