R v Haddad & Treglia
[2000] NSWCCA 351
•6 September 2000
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: REGINA v HADDAD & TREGLIA [2000] NSWCCA 351
FILE NUMBER(S):
60668/99
HEARING DATE(S): 15/06/00
JUDGMENT DATE: 06/09/2000
PARTIES:
Regina
Tony Haddad
Giovanni Treglia
JUDGMENT OF: Spigelman CJ Newman J Greg James J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 97/11/1047
LOWER COURT JUDICIAL OFFICER: Luland DCJ
COUNSEL:
D C Frearson (Crown)
C Steirn SC / G T Gillett (Respondent)
SOLICITORS:
S E O'Connor (Crown)
James A Hall (Respondent)
CATCHWORDS:
CRIMINAL LAW - procedure - Crown appeal from interlocutory judgment or order, Criminal Appeal Act 1912 s5F(2)
EVIDENCE - exclusion of evidence obtained in contravention of an Australian law, Evidence Act 1995 s138 - no contravention of Listening Devices Act 1984
LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Listening Devices Act 1984
Search Warrants Act 1985
Australian Federal Police Act 1979 (Cth)
DECISION:
1 Appeal allowed
2 Ruling that the evidence be rejected set aside
JUDGMENT:
- 1 -
IN THE COURT OF
CRIMINAL APPEAL60668/99
SPIGELMAN CJ
NEWMAN J
GREG JAMES J
Wednesday 6 September 2000
REGINA v Tony HADDAD & Giovanni TREGLIA
The Respondents were charged with perjury. The Crown intended to rely on evidence obtained by use of a listening device pursuant to the Listening Devices Act 1984.
Held
(Per Spigelman CJ, Newman and Greg James JJ agreeing)
The decision in this case to exclude evidence pursuant to s138 of the Evidence Act 1995 was an interlocutory judgment or order for the purposes of s5F(2) of the Criminal Appeal Act 1912. R v Bozatsis & Spanakakis (1997) 97 A Crim R 296, R v Lisoff [1999] NSWCCA 364, R v Cheng [1999] NSWCCA 373.
There was no contravention of s19 or s22 of the Listening Devices Act 1984. Section 19 does not require a report to encompass use which is capable of being made of information obtained using a listening device. Section 22 does not require the destruction of all information except that concerning the offence for which the warrant authorising use of the listening device was originally obtained. Information about any prescribed offence can be retained.
Consideration of requirement of a causal link between contravention of law and evidence sought to be excluded under s138 of the Evidence Act.
- 32 -
IN THE COURT OF
CRIMINAL APPEAL60668/99
SPIGELMAN CJ
NEWMAN J
GREG JAMES J
Wednesday 6 September 2000
REGINA v Tony HADDAD & Giovanni TREGLIA
JUDGMENT
SPIGELMAN CJ: On 18 November 1994 there was an armed robbery of the character of a home invasion at premises at 1 Carol Crescent, Roselands in Sydney. A series of such home invasions were under investigation by a special police task force. Another police task force, under the code name “Acacia”, was investigating the murder of a man, Andre Rahme.
The Respondents Tony Haddad and Johnny Treglia were charged with the armed robbery offence. They were also suspects in the murder of Rahme. Police investigating the murder became aware that Haddad and Treglia were remanded to appear at Bankstown Local Court on 14 December 1994 with respect to the armed robbery offence. Those police sought a warrant to install a listening device into a cell at Bankstown Police Station, in order to record conversation between the two suspects. This occurred.
Subsequently Haddad and Treglia were tried for the offence of armed robbery. Identification evidence was adduced in the trial. The defence was alibi. In a judge alone trial they were acquitted.
Subsequently, in circumstances which I will hereinafter set out more fully, the police associated with the armed robbery investigation became aware that there may have been material in the tape recorded conversations which was relevant to the armed robbery charges. Nothing relevant to the murder investigation had been said. In the present proceedings it was common ground that the tape recordings of the conversations recorded admissions on the part of each of the present Respondents with respect to their involvement in the armed robbery. The Crown presented an indictment asserting perjury against each of the Respondents with respect to the alibi evidence that they had given at their earlier trial.
The indictment came before his Honour Judge Luland in the District Court on 25 October 1999. Counsel appearing for each of Haddad and Treglia indicated that they would object to the admissibility of the recorded conversations on the basis of illegality. Luland DCJ conducted a voir dire examination on this issue. His Honour held, pursuant to the discretion conferred upon him by s138 of the Evidence Act 1995, that the evidence should be rejected. The Crown has appealed to this Court pursuant to s5F(2) of the Criminal Appeal Act 1912 on the basis that his Honour’s decision constituted an interlocutory judgment or order within the meaning of that section.
It was common ground before Luland DCJ that, in the absence of the evidence of the taped conversations, the Crown had no case with respect to the charges before his Honour. No attempt was made by either side to tender any aspect of the Crown brief on the voir dire. His Honour, accordingly, made a finding in his reasons for judgment on the admissibility of the evidence to the following effect:
“The Crown case against each accused in the present proceedings depends upon the evidence resulting from a conversation between the two accused and, at some stage, their barrister Mr John Punch, which occurred in the Bankstown Police Station cells on 14 December 1994 and was recorded pursuant by what the Crown argues was a lawfully organised listening device.”
In this Court, counsel for the Respondents sought to resile from the concession they had made before his Honour and, necessarily, sought to impugn his Honour’s finding of fact as set out in the above passage. In order to do so counsel sought leave to adduce evidence on the appeal, namely statements of the two women who were subjected to the home invasion and who had given evidence of identification at the trial in accordance with their statements. This was for the purpose of submitting that the Crown had available to it evidence on the substantive proceedings which, if believed, could lead the Court to make a finding on the perjury charges.
On this basis the Respondent submitted that what the Court had before it was a mere ruling on evidence which, on the authorities, would not constitute an “interlocutory judgment or order” within the meaning of s5F(2). (See R v Steffan (1993) 30 NSWLR 633).
The Crown relied on R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 in which the Court held that a ruling on evidence which had the effect of refusing to permit the Crown to make a case was a judgment or order within s5F. This authority has been applied most relevantly in this Court in R v Lisoff [1999] NSWCCA 364 and referred to in R v Cheng [1999] NSWCCA 373.
Luland DCJ delivered his judgment in this matter on 27 October 1999. He did so immediately after empanelling a jury. The Crown indicated an intention to appeal to this Court under s5F(2) from his Honour’s decision to exclude the evidence and sought a discharge of the jury to enable that to be done. Before his Honour the Crown referred to the decision in Bozatsis & Spanakakis to indicate the basis of the s5F appeal. The application for discharge of the jury was contested by the Respondents and additional material was tendered before his Honour with respect to this application. On 28 October 1999 his Honour did discharge the jury and in the course of giving reasons for that decision said:
“It was argued on behalf of the accused that I should refuse the application and proceed with the trial. The effect of doing that would be to inevitably lead to a verdict by direction because it is conceded by the Crown that without the evidence I have ruled to be inadmissible, they have no case against either accused.”
After referring to Bozatsis & Spanakakis his Honour said:
“… it seems to me that the effect and character of my decision, has been to withdraw the only evidence upon which the Crown can rely in this case.”
In these remarks his Honour was reflecting the concession made before him on the previous application with respect to the admission of evidence, even though on the application to discharge the jury submissions had been made to him to the effect that the other evidence to which I have referred above was available to the Crown, even on the perjury charges.
In Bozatsis & Spanakakis Gleeson CJ said at 303-304:
“Bellear DCJ, in a passage quoted above, dealt with para 2 of the Notice of Motion by saying he was making an order excluding ‘all prosecution evidence’ against the respondents. What is important is not his Honour’s use of the word ‘order’, but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order.”
As I indicated in Cheng supra at [14]:
“[Gleeson CJ] focused on the substance and effect of the decision in order to characterise it as a ‘judgment or order’. In this his Honour emphasised that the effect was to refuse to permit the Crown ‘to seek to make a case’ at all.”
To similar effect, the judgment of the Court in Lisoff supra concluded with respect to the DNA evidence rejected by Golding DCJ in that case (at [38]):
“… the substance of what Golding DCJ has done is to destroy, in every real and practical sense, any prospect of the Crown’s presenting to the jury the substance of a case available to it and tending, if accepted, to the proof beyond reasonable doubt of the Respondent’s guilt as charged.”
The Court went on to refer to the extract from Bozatsis & Spanakakis quoted in par [12] hereof and concluded:
“As the Chief Justice emphasised, the issue is one of substance rather than form. The substance of the order made by his Honour in the circumstances of the present case was the rejection of the entire Crown case.”
In my opinion the same conclusion should be reached in the present case. The evidence that the Respondents referred to as being otherwise available to the Crown is, of course, the evidence available to the Crown in the armed robbery proceedings at which the Respondents were acquitted. An issue of abuse of process could very well arise if the Crown sought to pursue a perjury case on the basis of the same evidence, without any addition, that had led to the earlier acquittal.
No occasion arises for permitting the Respondents to resile from the position they took before his Honour on the application from which the appeal under s5F is brought. In any event, the substance of the decision by his Honour was to prevent the Crown presenting a case on the indictment then before the Court.
The Statutory Scheme
The relevant provisions of the Listening Devices Act 1984 are as follows:
“5(1)A person shall not use, or cause to be used, a listening device:
(a) to record or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
(2) Subsection (1) does not apply to:
(a) the use of a listening device pursuant to a warrant granted under Part 4;
…
10 A person who contravenes any provision of this Part, whether by act or omission, is guilty of an offence.
…
12 In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation.
13(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:
(a) evidence of the conversation, and
(b) evidence obtained as a direct consequence of the conversation so coming the knowledge of that person,
may not be given by that person in any civil or criminal proceedings.
(2) Subsection (1) does not render any evidence inadmissible:
…
(d) in proceedings for:
(i) an offence punishable by penal servitude for life or for twenty years or more, or
(ii) the serious narcotics offence,
if the Court considers that the evidence should be admissible.”
It is pertinent to note that the offences with which each of the Respondents were charged were one charge each of perverting the course of justice, under s319 of the Crimes Act 1900 and of perjury with the intent to procure an acquittal, under s328 of the Crimes Act. In each case the maximum penalty is imprisonment for fourteen years. Accordingly, the exception found in subs 13(2)(d) of the Listening Devices Act does not apply and therefore, the regime for determining whether to admit evidence pursuant to this paragraph set out in subs 13(3) is also not material to the present proceedings.
On this basis the prohibition in s13(1) would apply in the present circumstances subject, however, to the separate provision in s14.
Section 14 provides:
“14(1) Where a private conversation has inadvertently or unexpectedly come to the knowledge of a person as a result, direct or indirect, of the use of a listening device pursuant to a warrant granted under Part 4:
(a) evidence of the conversation, or
(b) evidence obtained as a consequence of the conversation so coming to the knowledge of that person,
may be given by that person in any criminal proceedings notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained.
(2) Subsection (1) does not render any evidence admissible if:
(a) the evidence relates to an offence in respect of which a warrant could not be granted under Part 4, or
(b) the application upon which the warrant was granted was not, in the opinion of the court, made in good faith.”
The scheme for the grant of warrants, which qualifies the prohibition in s5(1), is found in Part 4 of the Act.
Section 15 contains the following definition:
“prescribed offence means an offence (including an offence under a law of the Commonwealth or of another State or Territory) that:
(a) is punishable on indictment, or
(b) is of a class or description prescribed for the purposes of this Part (whether or not it is punishable on indictment).”
Section 16 provides:
“16(1) Upon application made by a person that the person suspects or believes:
(a) that a prescribed offence has been, is about to be or is likely to be committed, and
(b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary,
an eligible Judge may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device.
(2) In determining whether a warrant should be granted under this section, the eligible Judge shall have regard to:
(a) the nature of the prescribed offence in respect of which the warrant is sought,
(b) the extent to which the privacy of any person is likely to be affected,
(c) alternative means of obtaining the evidence or information sought to be obtained,
(d) the evidentiary value of any evidence sought to be obtained, and
(e) any previous warrant sought or granted under this Part in connection with the same prescribed offence.
(3) Where a warrant granted by an eligible Judge under this section authorises the installation of a listening device on any premises, the eligible Judge shall, by the warrant:
(a) authorise and require the retrieval of the listening device, and
(b) authorise entry onto those premises for the purpose of that installation and retrieval.
(4) A warrant granted by an eligible Judge under this section shall specify:
(a) the prescribed offence in respect of which the warrant is granted,
(b) where practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant,
(c) the period (being a period not exceeding 21 days) during which the warrant is in force,
(d) the name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person,
(e) where practicable, the premises on which a listening device is to be installed, or the place at which a listening device is to be used, pursuant to the warrant,
(f) any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant, and
(g) the time within which the person authorised to use a listening device pursuant to the warrant is required to report pursuant to section 19 to an eligible Judge and the Attorney General.”
Subsection 16(6A) permits a warrant to be in the form of Schedule 2. That schedule provides for a form which was followed in the present case, including par 7 fixing the period as the period within which a s19 report is required.
Section 17 provides:
“17 A person seeking a warrant under section 16 shall cause to be served on the Attorney General or a prescribed officer notice of the following particulars:
(a) the prescribed offence in respect of which the warrant is sought,
(b) where practicable, the type of listening device intended to be used,
(c) where practicable, the name of any person whose private conversation is intended to be recorded or listened to by the use of the listening device,
(d) where practicable, the premises on which the listening device is intended to be installed or the place at which the listening device is intended to be used,
(e) whether any attempt has been made to obtain by alternative means the evidence or information sought and, if so, the result of any such attempt,
(f) any other alternative means of obtaining the evidence or information sought to be obtained,
(g) the period during which the listening device is intended to be used,
(h) the name of the person who is to use the listening device,
(i) details of any previous warrant sought or granted under this Part in connection with the same prescribed offence.
(2) A warrant shall not be granted under section 16 unless the eligible Judge is satisfied that:
(a) a notice in respect of the warrant has been served in accordance with this section, and
(b) the Attorney General has had an opportunity to be heard in relation to the granting of the warrant.”
Sections 19 and 20 are:
“19(1) A person to whom a warrant has been granted under this Part authorising the use of a listening device shall, within the time specified therefor in the warrant, furnish a report, in writing, to an eligible Judge and to the Attorney General:
(a) stating whether or not a listening device was used pursuant to the warrant, and
(b) if a listening device was so used:
(i) specifying the name, if known, of any person whose private conversation was recorded or listened to by the use of the device,
(ii) specifying the period during which the device was used,
(iii) containing particulars of any premises on which the device was installed or any place at which the device was used,
(iv) containing particulars of the general use made or to be made of any evidence or information obtained by the use of the device, and
(v) containing particulars of any previous use of a listening device in connection with the prescribed offence in respect of which the warrant was granted.
(2) Where a report is given to an eligible Judge under subsection (1), an eligible Judge may direct that any record of evidence or information obtained by the use of the listening device to which the report relates be brought into the Court, and a person to whom any such direction is given shall comply with the direction.
(3) A record brought into the Court pursuant to subsection (2) shall be kept in the custody of the Court and may, by order of the Court, be made available to any person.
Maximum penalty: 20 penalty units or imprisonment for a term of 12 months, or both.
20(1) Where, pursuant to a warrant granted under this Part, a listening device has been used to record or listen to the private conversation of a person, an eligible Judge may direct the person authorised to use the device to supply to that person, within a period specified by the eligible Judge, such information regarding the warrant and the use of the device as the eligible Judge may specify.
(2) An eligible Judge shall not give a direction under subsection (1) unless the eligible Judge is satisfied that, having regard to the evidence or information obtained by the use of the listening device and to any other relevant matter, the use of the listening device was not justified and was an unnecessary interference with the privacy of the person concerned.
(3) Before giving a direction under subsection (1), the eligible Judge shall give the person to whom the warrant was granted an opportunity to be heard in relation to the matter.
(4) A person to whom a direction is given under subsection (1) shall comply with the direction.
Maximum penalty: 20 penalty units or imprisonment for a term of 12 months, or both.
In Part 5, s22 provides:
“22(1) This section applies to the use of a listening device:
(a) pursuant to a warrant granted under Part 4, or
(b) in the circumstances referred to in section 5(2)(c).
(2) A person shall, as soon as practicable after it has been made, cause to be destroyed so much of any record, whether in writing or otherwise, of any evidence or information obtained by the person by the use of a listening device to which this section applies as does not relate directly or indirectly to the commission of a prescribed offence within the meaning of Part 4.
Maximum penalty: 20 penalty units or imprisonment for a term of 12 months, or both.”The Exclusion of the Evidence
His Honour excluded the evidence in the exercise of the power in s138 of the Evidence Act 1995:
“138(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”
His Honour determined that the evidence had been obtained in contravention of s19. His Honour’s reasons were as follows:
“The Listening Devices Act (1984) codifies the procedure for obtaining a warrant. On the fact of it, Justice Spender lawfully authorised the warrant and had the matter been confined to the murder matter there could, in my view, have been no infringement of the law. However, under s19 of the Act, Detective Gordon was required to report to an eligible judge and the Attorney General dealing with the matters enumerated in that section. An important reason for so reporting is that the Judge may direct any records be obtained and placed in the custody of the Courts. In his second reading speech the Attorney General said this was to enable efficient monitoring of the use made of listening devices.
A report was made by Detective Gordon in accordance with the Act and the report was tendered before me. Superficially the report accords with the requirements of s19. However, s19(b)(4) requires the report to give particulars of the general use made of or to be made of any evidence or information obtained by the use of the device. Gordon’s report was limited to the statement that a determination would be made whether there is now sufficient evidence to warrant any further action. He was, no doubt, restricting himself to the murder inquiry.
Having regard to Detective Gordon’s knowledge of the armed robbery matter and given that Detective Crandell at all times monitored the conversation it must be assumed that he, Detective Gordon, had knowledge of the conversations regarding the armed robbery, Crandell’s log certainly details aspects of it. The fact that s14 of the Act allows for inadvertent or unexpected evidence of other matters to be admissible in certain circumstances, I am of the view that such material is required to be reported under the s19 requirements. Such was not reported.
An important reason for full reporting under s19 is to allow an eligible judge to exercise a discretion he has under s20 of the Act to direct the person to whom the authority has been given to record the conversation an to supply a person recorded such information obtained as the judge may direct. Unless there be full and proper reporting then the judge is unable, in my view, to exercise fully or indeed at all his discretion.
A failure to report in accordance with s19 is an offence under the Act with penal provision such is the importance placed upon the procedure by Parliament in the safeguard of individual freedom. It was argued by the Crown that the listening device was lawfully obtained and used. It is in my view that the codification of the Act embraces not just the obtaining of the warrant but compliance with all of its safeguards. Breaches of the Act subsequent to the obtaining of the warrant, in my view, taints the acquisition of the evidence will illegality. I am satisfied that the accused have proven that illegality.”
Contravention of Law
The contravention relied upon before his Honour, and in this Court, was the alleged failure to comply with the requirements of a report pursuant to s19 of the Listening Devices Act 1984. In this Court, reliance was also placed on an alleged contravention of s22(2) of the Act, which imposes an obligation to destroy material in the circumstances there set out.
It was not suggested that there had been a contravention of s5(1) of the Act. The Respondents accepted that s5(2)(a) applied to the warrant in this case. No submission was made that the alleged contravention of s19(1)(b)(iv) meant that the use of the listening device was other than “pursuant to a warrant granted under Part 4” within s5(2)(a). No reliance was placed, by way of analogy, on the approach of the Court with respect to the Search Warrants Act 1985 in Carroll v Mijovich (1991) 25 NSWLR 441.
The material tendered before his Honour on the voir dire was limited. Some material, including the affidavit in support of a warrant under the Listening Devices Act was not formally tendered in evidence before his Honour, but he plainly had regard to it and referred to its contents in his judgment. This Court was invited by both parties to similarly have regard to that document and other documents which were not formally tendered before his Honour during the course of the voir dire, but which were tendered in the subsequent application to discharge the jury. It is, accordingly, possible to outline the chronology of events with respect to the use of the listening device.
By affidavit of 12 December 1994, Detective Senior Constable Gordon sought the issue of a warrant. He indicated that he was investigating the murder of Andre Rahme and that for that purpose of investigating that offence “it is considered that the use of listening devices is necessary”. He referred to the circumstances of the murder and indicated that he suspected certain persons, including Haddad and Treglia, were involved in it. He outlined the basis of his suspicions. He said:
“Both Haddad and Treglia have been arrested and charged in respect to an unrelated armed robbery committed at Roselands on the 18 November, 1994. Haddad is currently on remand at Long Bay Jail, whilst Treglia is currently on remand at Parklea Gaol. Both Haddad and Treglia have been remanded to appear at Bankstown Local Court on the 14 December, 1994.”
Detective Senior Constable Gordon asserted that on the facts outlined he had reasonable grounds to believe that Haddad and Treglia were implicated in the murder offence. He proposed to install the listening device in a cell at Bankstown Police Station and added:
“On Wednesday, 14 December, 1994, Haddad and Treglia will be transferred to cell complex of the Bankstown Police Station whilst they await their court appearances at the Bankstown Local Court. It is intended that Treglia and Haddad will be placed ……………and that Haddad and Treglia will converse with each other in relation to the details of events surrounding Rahme’s death.” (Deletion in original).
He went on to say:
“Investigating police seek the use of the listening device for the purpose of gaining information and evidence in relation to the murder of Andre Rahme. It is not the intention of investigating police to obtain information or evidence in respect to the armed robbery offences that Haddad and Treglia are presently charged with.”
He went on to specifically seek authority for installing the device in the cell for the purpose of recording or listening to the private conversations of Haddad and Treglia and added:
“The privacy of Tony Haddad and Giovanni Treglia and any other person or persons, will be affected only to an extent necessary to gain evidence or information in relation to the prescribed offence.”
He added that there were no alternative means or methods to obtain this information.
On 13 December 1994, a s17 certificate was forwarded. No complaint is made as to its contents. The notice under s17 repeated many of the facts and matters contained in the affidavit, including the references to the murder investigation, to the arrests of Haddad and Treglia on the armed robbery charge and to their presence at Bankstown Local Court for that purpose. That notice also said:
“Investigating police seek the use of the listening device for the purpose of getting information and evidence in relation to the murder of Andre Rahme. It is not the intention of investigating police to obtain information or evidence in respect to the armed robbery offences that Haddad and Treglia are presently charged with.”
And:
“The privacy of Tony Haddad and Giovanni Treglia or any other person or persons, will be affected only to an extent necessary to gain evidence or information in relation to the prescribed offence.”
On 13 December 1994, Acting Justice Spender issued the warrant. His Honour specified as the prescribed offence in respect of which the warrant is granted the offence of murder, authorised the installation and use and retrieval of the listening device and also authorised entry into Cell No. 1 at Bankstown Police Station for that purpose. His Honour fixed the period of 5.30pm on 13 December 1994 until 5.30pm on 22 December 1994 as the period during which the warrant would be enforced. His Honour also fixed:
“… 5 January, 1995 as the day by which the person authorised to use the listening device pursuant to this warrant is required to report pursuant to Section 19 of the Listening Devices Act 1984, to the Court and the Attorney General.”
A s19 report was signed by Detective Senior Constable Gordon on 1 January 1995. He indicated that a listening device was used. Pursuant to s19(1)(b), he said:
“(b)(i) The private conversations of Tony Haddad born 1.5.1976 and Giovanni Treglia born 23.3.1974 were listened to and recorded. Also recorded was the conversation between them and John Punch.
(ii) The listening device was used continually between 09.15 hrs on 14.12.1994 and 19.06 hrs on 14.12.1994.
(iii) The listening device was placed into Cell 1 at the Bankstown Police Station.
(iv) As a result of the use of the listening device, conversations between Haddad and Treglia are to be accessed with other evidence available, and a determination made whether there is now sufficient evidence to warrant any further action.
(v) There has been no previous use of a listening device in connection with the prescribed offence in respect of which the warrant was granted.”
John Punch who is referred to as having a conversation that was recorded, was the barrister appearing for the Respondents in the Bankstown Local Court on that day.
It may be that the word “accessed” in para (b)(iv) was intended to be “assessed”. But as that is not clear, the Court should proceed on the basis that the terminology used was intended.
During the course of the recording, the conversations in the cell were listened to by a Detective Crandle who maintained a monitoring log which included some reference to the armed robbery charges.
Detective Sergeant Pagano did become aware at some point of the installation of the listening device. He was told that no relevant product regarding the armed robbery had resulted.
The trial of the Respondents for the armed robbery offence occurred in late June. The evidence which became the basis of the later perjury charges was given on 21 June 1995. The Respondents were acquitted of the charges before Judge Nash in the District Court on 26 July 1995.
Detective Sergeant Pagano indicated that it was in late July that he had a conversation which led him to contact Constable Crandle with a view to discovering whether any material on the tape recordings did relate to the armed robbery. It was on the very day of the acquittal, namely 26 July 1995 that he attended Campsie Police Station and took possession of the relevant tapes and the written log. He said that after the verdict had been given, he played the tapes. He had conversations about the possibility of having some of the conversations enhanced and that occurred. Subsequent enhancement revealed admissions with respect to the commission of the armed robbery offence by each of the Respondents.
Section 19(1)(b)(iv)
Section 19(1) imposes an obligation upon any “person to whom a warrant has been granted” to provide a report. Failure to comply with this obligation is itself punishable. The fact that an offence is committed by the author of the report is a relevant factor in determining the scope of the obligation.
Luland DCJ identified the relevant omission as the absence of any reference to the conversations regarding the armed robbery. His Honour referred to the fact that s14 of the Act permitted the use of inadvertent or unexpected evidence as relevant to this conclusion.
Section 14 is permissive in its terms. Knowledge obtained “inadvertently or unexpectedly” within the meaning of that section “may be given” in any criminal proceedings “notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained”.
Section 19(1)(b)(iv) does not, however, extend the obligation to report to any use to which the relevant evidence or information is capable of being put. The terminology in that subparagraph is: “The general use made or to be made of any evidence or information …”. This formulation does not extend to use which is merely possible. It applies to actual use, by the word “made”, and to likely or intended (for present purposes it is not necessary to determine which) use, by the words “to be made”.
As noted above the relevant s19 report stated that the conversations “are to be accessed with other evidence available and determination made whether there is now sufficient evidence to warrant any further action.” His Honour found as a fact that in this comment Detective Gordon was restricting himself to the murder inquiry. That finding was not challenged in this appeal. There was no evidence before his Honour that any actual use with respect to any aspect of the armed robbery had in fact been made. Nor was there any evidence that any use with respect to the charges relating to the armed robbery was likely or intended. Nor, of course, could there ever have been any such intent to, or likelihood of, use with respect to the charge of perjury, as the evidence constituting the offence of perjury had not even been given at that time.
In my opinion, his Honour misconstrued s19(1)(b)(iv) by construing the obligation therein contained to encompass use to which the evidence or information was merely capable of being made.
His Honour made particular reference to s20 of the Act, which I have set out above, empowering the judge to direct that information be supplied to a person whose conversation has been recorded. His Honour was correct to identify this provision as emphasising the significance of the evidence or information obtained. By s20(2) a judge must have regard to the evidence or information obtained by the use of the device before making a direction under s20 that certain specified information be given to a person, whose private conversation has been recorded. His Honour was correct to identify that this particular provision required punctilious compliance with the specific requirements of s19. That does not, however, require the person obliged to prepare a s19 report to speculate about use that could be made of the evidence or information obtained.
The obligation to prepare and file a full s19 report is an important safeguard of the system which authorises intrusion into the privacy of personal conversations. Nevertheless that safeguard does not require consideration of every possible use of the taped conversations, whether then in contemplation or not. Perhaps it was foreseeable that some use might be made of the conversations with respect to the armed robbery offences. However, at the time of the preparation of the s19 report on the material before the primary judge, no such use was either likely or intended. Indeed, no such use was made of the recorded conversations when those charges were heard.
In my opinion there was no contravention of s19(1)(b)(iv).
Section 22
The Respondents raised an alternative basis for illegality, namely the obligation to destroy records under s22. That submission was not made before his Honour and accordingly his Honour did not consider it. His Honour never purported to exercise the power in s138 of the Evidence Act on the basis of any such illegality.
Section 22 is set out above. It imposes an obligation to destroy “so much of any record … of any evidence or information … as does not relate directly or indirectly to the commission of a prescribed offence”. The term “prescribed offence” is defined in s15 to mean an offence punishable on indictment or an offence within a class which is prescribed for purposes of the Act.
The issue turns on the use of the indefinite article in s22(2). The obligation to destroy, as I have indicated, extends to information that does not relate to “a prescribed offence”. It is not directed to “the prescribed offence” for the purposes of which the use of the listening device was originally sought.
Section 16(1)(a) requires an applicant for a warrant to state a suspicion or belief - in respect of which a judge must be satisfied that there are reasonable grounds - that “a prescribed offence” has been, is about to be or is likely to be committed. Further, the suspicion or belief must extend to a proposition that use of a listening device is necessary for purposes of investigation into “that offence” or of enabling evidence to be obtained from the commission of “the offence” or the identity of “the offender”. Plainly, specificity is required at this initial phase.
This specificity is continued in par 16(2)(a) which refers to “the prescribed offence in respect of which the warrant is sought”. Further, s16(4)(a) imposes an obligation for the warrant to specify “the prescribed offence in respect of which the warrant is granted”. In addition there is the obligation to serve a s17 notice on the Attorney General, which by s17(1) must particularise “the prescribed offence in respect of which the warrant is sought”.
The possibility of the use of information beyond the original purpose is confirmed in s14, which permits, in criminal proceedings, evidence of a conversation that has “inadvertently or unexpectedly come to the knowledge of a person”, and that is so “notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained”.
These express references in the legislation to the particular offence with respect to which the warrant was originally sought and issued, indicates that the use of the indefinite article in s22 was deliberate. The obligation to destroy under s22 does not extend to all information, except that concerning the offence for which the warrant was originally obtained. Information about any prescribed offence, within the meaning of s15, can be retained.
Similar issues arose in R v Karageorge (1998) 103 A Crim R 157. In that case the relevant exemption was s5(2)(b) of the Act, with respect to authority to use a listening device pursuant to a law of the Commonwealth. The relevant law was s12G(4) of the Australian Federal Police Act 1979 (Cth). A warrant had been issued subject to a condition that included the following:
“Only those conversations which are taking place … [certain persons were named] … and which related to the alleged offence of attempting to pervert the course of justice, shall be recorded pursuant to this warrant.”
On the material before the Court that condition was not shown to have been satisfied. Accordingly there had been a contravention of s5(1), because the exemption in s5(2)(b) had not been established. By s13 of the Act the evidence was not admissible. (In that case unlike this case, s13 was relied upon).
In the course of her reasons Simpson J referred to the structure of the legislative scheme of the Listening Devices Act and concluded that it did not prevent the use of evidence obtained for the purpose other than that which actuated the original application. Her Honour said at 181:
“What s13 does is to render inadmissible evidence obtained by the use of listening device in contravention of s5. It does not render inadmissible evidence obtained by the use of a listening device that is authorised by a warrant validly obtained and used under the Australian Federal Police Act, even if the information or evidence obtained is incidental to the purpose for which the warrant was issued and the listening device used. The question is not the nature of the information or evidence obtained, but the purpose for, and the circumstances in which, the listening device was used. That the valid use of a listening device produces evidence of an offence other than that in relation to which it was issued does not make that evidence inadmissible. If the listening device is used pursuant to the warrant authorising its use, then evidence of offences other than that which provided the foundation of the issue of the warrant will not be rendered inadmissible by s13. A simple and obvious example will serve to illustrate the point. If an AFP officer, exercising the rights conferred by a warrant validly issued under the Australian Federal Police Act, for the purpose of obtaining evidence in relation to, for example, a narcotics offence, and properly used for that purpose, incidentally hears an admission of murder, s13 does not preclude the use of that evidence in relation to the murder charge, notwithstanding that that was not the purpose for which, or the suspected offence in relation to which, the warrant was issued. The underlying question is directed to the proprietary of the use of the listening device, and not to any collateral benefit or advantage that may accrue by reason of the use of the listening device.”
I agree with her Honour’s approach. For present purposes her Honour’s analysis reinforces the construction of s22(2) which I have advanced above.
In an analogous area, the common law has long accepted that a police officer executing a warrant may seize goods and evidence reasonably believed to relate to a criminal offence, even though the offence is not that for which the warrant was granted. (Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 313; Ghani v Jones [1970] 1 QB 693 at 706; G.H. Photography Pty Ltd v McGarrigle [1972] 2 NSWLR 635 at 645; Malone v Metropolitan Police Commissioner [1980] 1 QB 49 at 58; Inland Revenue Commissioner v Rossminster Ltd [1980] AC 952 at 1010; Reynolds v Metropolitan Police Commissioner [1985] QB 881 at 896; R v Applebee (1995) 79 A Crim R 554 at 556; Cowan v Condon [2000] 1 WLR 254 at 261-262).
On the basis of the above analysis there is no contravention of the law within the meaning of s138 of the Evidence Act. The Respondents did not rely on any impropriety, other than insofar as a contravention of s19 or s22 would constitute such. In my opinion, the precondition for the operation of s138 did not arise.
A Causal Link?
The Crown submitted that s138(1) did not apply by reason of the fact that there was no contravention of law in existence at the time that the evidence was obtained. It was common ground that the warrant was valid. The Crown submitted that the subsequent failure in reporting under s19, if there be any such failure, did not have a retrospective effect for purposes of s138(1). Any failure to comply with s19 or s22 occurred after the evidence had been “obtained”.
Section 138 is quoted above.
For the section to operate, the evidence sought to be admitted must have been “obtained”, relevantly, either “in contravention of an Australian law” or “in consequence” of such a contravention. (The Respondents relied on a “contravention”, not an “impropriety”).
If there had been a contravention of s5 of the Listening Devices Act, then the precondition for the operation of s138 of the Evidence Act would have been clearly established. However, as I have indicated above, the Respondents did not contend that there was any contravention of this section. They accepted that the exception in s5(2)(a) applied. On this basis, the Crown submitted there was no contravention as at the time of the “obtaining” of the evidence. Such contravention as there may have been of s19 or s22 of the Act, if any, did not have the requisite causal connection with the “obtaining” of the evidence.
The formulations “obtained improperly” and “obtained in contravention” are not terms of art. The nature of the causal relationship between an “impropriety” or “contravention” and the evidence said to have been “obtained” either directly or “in consequence of” an “impropriety” or “contravention” is not the subject of any authoritative decision.
The Crown’s basic premise is that the requisite causal relationship cannot exist if the “evidence” - relevantly a tape recording of a conversation - has been brought into physical existence at a time prior to any contravention or impropriety. It is by no means clear that s138 must be given so restrictive an ambit.
Section 19 and s22 form part of an integrated scheme for controlling infringements of privacy. (The authorities have recently been reviewed by the Victorian Court of Appeal in R v Nicholas [2000] VSCA 49 at [79]ff). It is at least arguable that the formulation “obtained in contravention” should be construed so as to encompass the entirety of an integrated scheme, particularly a scheme designed to protect fundamental freedoms. The formulation “obtained improperly”, not presently relied upon, may well be even broader.
The Court did not hear full argument on these matters. The issue should be reserved for a case in which it is necessary to decide it.
Balancing Exercise
77 The Appellant challenged his Honour’s determination of the balancing process required by s138. Particular attention was directed to his Honour’s failure to refer to the matters he was obliged to take into account by s138(3). In view of the conclusion I have come to above, it is not necessary to deal with these submissions.
Orders
I propose the following orders:
1 Appeal allowed.
2 Ruling that the evidence be rejected set aside.
NEWMAN J: I have had the advantage of reading, in draft form, the reasons and orders of the Chief Justice and I agree with both the reasons and the orders he proposes.
GREG JAMES J: I agree with the Chief Justice.
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LAST UPDATED: 14/09/2000
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