R v Regazzoli

[1993] QCA 154

[1993] QCA 154

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 365 of 1992

Brisbane

[R. V. Regazzoli]

T H E Q U E E N

- and -

ANTHONY REGAZZOLI

Appellant

The President
Mr Justice Pincus

Mr Justice de Jersey

Judgment delivered 04/05/93
Reasons for judgment by the President and de Jersey J. jointly,

Pincus JA. separately. All concurring to the order.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: EVIDENCE - Admissibility - Listening Devices - interception warrant under Drugs Misuse Act authorised use of a listening device - Three microphones used to obtain evidence - Whether inadmissible - s.46 Invasion of Privacy Act 1971.

PRIVACY - Listening Devices - interception warrant under Drugs Misuse Act authorised use of a listening device - Three microphones used to obtain evidence - Whether inadmissible - s.46 Invasion of Privacy Act 1971.

Counsel:	Mr S. Herbert Q.C. with him Mr J. Wagner for the appellant Mr J. Costanzo with him Mr S. Sorensen for the Crown
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the Crown
Hearing Date(s):	08/04/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 365 of 1992

Brisbane
Before The President

Mr Justice Pincus

Mr Justice de Jersey

[R. v. Regazzoli]

T H E Q U E E N

- and -

ANTHONY REGAZOLLI

Appellant

JOINT REASONS FOR JUDGMENT - THE PRESIDENT AND de JERSEY J.

Judgment delivered 04/05/93
Under section 46 of the Invasion of Privacy Act 1971, evidence may not be given in any criminal proceeding of a private conversation which has come to the knowledge of a person as a result, directly or indirectly, of the use of a listening device used in contravention of section 43 of that Act. Whether or not this result is a deliberate legislative policy or a defect in drafting, a court has no discretion to admit the evidence when it might be appropriate to do so; for example, when there is only a technical breach and the evidence is vital to the successful prosecution of serious crime.

Section 43 is contravened by the use of a listening device to overhear, record, monitor or listen to a private conversation unless, inter alia, the use of the listening device is authorised by a police officer of appropriate rank "under and in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval": subsection 43(2)(c)(i).

Section 25 of the Drugs Misuse Act 1986 authorises a judge of the Supreme Court in specified circumstances to order that -

"... there be issued an interception warrant authorising a
police officer to -

(a)  put a listening device ... in the place specified in the interception warrant; and

(b)  intercept private conversations by means of a listening device ...."

Under section 29 of the Drugs Misuse Act, a listening device used for the interception of private conversations under the authority of an interception warrant is, for the purpose of the application of section 46 of the Invasion of Privacy Act, not to be taken to have been used in contravention of section 43 of that Act.
By section 29 of the Drugs Misuse Act, the terms "listening device" and "private conversation" have, for present purposes, the same meanings, respectively, as are ascribed to those terms by section 4 of the Invasion of Privacy Act. Under that section, unless the context otherwise indicates or requires, "listening device" means "any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place".
The appellant was convicted of one offence of carrying on the business of unlawfully trafficking in a dangerous drug and two offences of possession of a dangerous drug. The evidence against him, without which he could not have properly been convicted on the first count, included evidence of private conversations to which he was a party which were intercepted and recorded in reliance upon an interception warrant under the Drugs Misuse Act which authorised the use of a single listening device.

The sole ground of appeal argued was that such evidence was inadmissible by virtue of section 46 of the Invasion of Privacy Act by reason of the equipment used. Three microphones were installed in the place specified in the warrant. Each microphone was linked to a separate battery pack and transmitter which relayed conversations in the room by radio signals to receivers which were connected to a four-track tape recorder located in other premises across the street. Each transmitter and the receiver to which it was complementary used a different frequency, and each receiver recorded onto a separate track on the tape recorder. However, each transmitter sent, each receiver received and each track recorded the same conversations. Only the contents of one track were used in evidence against the appellant at his trial.

The argument for the appellant was that each of the three microphones with battery pack and transmitter was a listening device so that three listening devices, not one, were used to intercept and record his private conversations. The use of two of such listening devices was unauthorised and the use of one of the unauthorised listening devices, not the use of the authorised listening device, might have produced the recording used against him. Indeed, on the balance of probabilities that was so, since two of the three listening devices were unauthorised and only one was authorised.

In my opinion, the argument fails at the threshold. It is unnecessary for present purposes to decide whether part only of a listening device could lawfully be used without compliance with the statutory requirements. In the present case, the use of a listening device was authorised and that, no doubt, permitted the use in the relevant premises of one or more components of a listening device. Each of the microphones, with battery pack and transmitter, was a component in a single listening device. The components located in the premises opposite were essential parts of the same "listening device"; that is to say, essential to its effective operation "to overhear, record, monitor and listen to" the conversations in the room in which the microphones were placed. There was only one "instrument, apparatus, equipment or device capable of being used" (by a person) "to overhear, record, monitor or listen to" the appellant's private conversations "simultaneously with [their] taking place". Parts of "instrument, apparatus, equipment or device" were located in each of the two premises. (The words "by a person" are inserted to illustrate the meaning which, our my opinion, is intended by the statute).

Accordingly, we would dismiss the appeal. We would also refuse the application for leave to appeal against sentence which was referred to in the notice of appeal but not argued.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 365 of 1992

Brisbane
Before The President

Mr Justice Pincus

Mr Justice de Jersey

[R. v. Regazzoli]

T H E Q U E E N

- v -

ANTHONY REGAZZOLI

(Appellant)

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 04/05/93

The appellant was convicted on one count of carrying on the business of unlawfully trafficking in a dangerous drug and on two counts of possession of a dangerous drug, the drug involved in each case being methylamphetamine. He was sentenced to three years and six months' imprisonment on the first count and to six months' imprisonment on each of the other two. The appeal against conviction raises four grounds, but the only one pressed was the first, namely that the judge should not have admitted into evidence certain tape recordings of private conversations; it was urged that the recordings were inadmissible by reason of the provisions of the Invasion of Privacy Act 1971. The other grounds do not appear to have any substance and the only point is whether certain relevant evidence was made admissible by that Act.

The appellant's argument was that a warrant was obtained authorising use of a single listening device but, in purported compliance with the warrant, three listening devices were used.

The Crown contended that on the proper construction of the legislation only one listening device was used and it was argued in the alternative that if there were three listening devices, instead of one only, no substantial miscarriage of justice occurred. As to that last point, it should be added that Mr Costanzo, who appeared for the Crown, did not in the end adhere to the contention that if the product of the tape recordings was inadmissible, the jury must nevertheless have convicted. The question, then, is whether the appellant's senior counsel, Mr Herbert Q.C., was right in contending that three listening devices were used and not one only and if so whether that made the recording used inadmissible. The argument was, in a sense, a merely technical one; since substantially the same information was recorded by each of the devices (assuming there were three) the Crown gained no advantage from there being three sources of that information. However, the appellant is of course entitled to succeed if the argument, whether technical or not, is correct.

Supposedly under the authority of a warrant, three microphones were installed in a room in a building in Wickham Street, Fortitude Valley, Brisbane. Each was linked to a battery pack and transmitter and each of the three transmitters sent a radio signal, separately, to a receiver located across the street from the premises in which the microphones, battery packs and transmitters were installed. Each transmitter used a different frequency and so each receiver was tuned to a different frequency. Each receiver produced a separate track on a four- track tape recorder. Only one track was used at the trial.

It was contended in effect that the use of the three listening devices was unlawful and that the illegality could not be cured by using the product of only one of them.

The content of each of the three tracks was, as I have said, in substance the same, apart from some extraneous noises, so that in a practical sense no consequence ensued from the investigating police having recorded the relevant conversations by apparatus including three separate microphones, each of which being associated with a separate transmitter and a separate receiver. Mr Herbert contended nevertheless, that, even assuming that one of the three sets of apparatus was lawfully installed and used, it could not be postulated that a particular set of apparatus was the lawful one, so that it could not be known whether the recording which was used was lawfully made.

Section 46 of the Invasion of Privacy Act 1971 ("the 1971 Act") says that:

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

Sub-section (2) sets out some exceptions, which are presently irrelevant, to that proposition. Sub-section (4) says that:

"Any person who contravenes an order made under sub- section (3) of this section is guilty of an offence against this Act."

It was the contention for the appellant that at least two of the recordings in question were made inadmissible by s. 46(1).

The microphones and other equipment were installed under the authority of a warrant under s. 25 of the Drugs Misuse Act 1986 ("the 1986 Act") which authorises a judge of the Supreme Court in certain circumstances there set out to order that -

"... there be issued an interception warrant
authorising a police officer to -

(a)  put a listening device or a visual surveillance device or both in the place specified in the interception warrant; and

(b)  intercept private conversations by means of the listening device or record and monitor visual images by means of the visual surveillance device, or both ..."

Under s. 29 of the 1986 Act a listening device used for the interception of private conversations under the authority of an interception warrant -

"(a) for the purposes of the application of section 45(2) or 47 of the Invasion of Privacy Act 1971- 1981, shall be deemed to have been used pursuant to an authorisation given under section 43(2)(c)(i) of that Act;

and

(b)  for the purposes of the application of the provisions of Part IV of the Invasion of Privacy Act 1971-1981, other than those referred to in paragraph (a), shall not be taken to have been used in contravention of section 43 of that Act."

The path of reasoning so far is from s. 46 of the 1971 Act, which prohibits use of evidence of conversations consequential on the use of a listening device in contravention of s. 43 of that Act, to ss. 25 and 29 of the 1986 Act which provide for issue of an interception warrant being, for relevant purposes, equivalent to an authorisation under s. 43(2)(c)(i) of the 1971 Act. It remains to say that the effect of s. 43 is to make it an offence to use a listening device to overhear, record, monitor or listen to a private conversation other than in certain circumstances. The relevant parts of s. 43 are as follows:

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

(2) Subsection (1) of this section does not apply -
...

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

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

(b) an Assistant Commissioner of Police; or an officer of police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorize the use of listening devices,

under or in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval;

..."

The interception warrant here in question authorized a named person to "put a listening device and visual surveillance device" into the relevant place and to "intercept and record private conversations by the means of the said listening device" and to do certain other things not presently relevant.

Mr Costanzo said that there was only one listening device and not three. The relevant provision of the warrant expresses itself to be based on s. 25 of the 1986 Act, which is contained in Part IV of that Act. For the purposes of that Part the term "listening device" has the meaning ascribed to it by s. 4 of the 1971 Act:

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

The expressions "overhear" and "listen to" in this definition originally referred only to hearing and listening by animate beings. Their application to mechanical and electrical devices is an extension of that original meaning. A human being would not be thought of or described as overhearing or listening to a conversation unless the operation were complete - i.e. unless the aural signal was actually received; as was pointed out during argument, a disembodied ear is not a listening device. But when speaking of listening equipment, ordinary usage would plainly, in my opinion, treat an operating microphone plus transmitter (and perhaps a microphone alone) as a listening device. That usage has arisen, perhaps, because it has often seemed convenient for those who install such devices to receive and record their output at a place remote from the installed microphone, for obvious reasons.

In short, what was installed was not a listening device but three listening devices; at least two of the devices were therefore not authorised by the warrant. The first listening device installed was lawful, but there is no means of telling whether what was placed before the jury was the output of the first device installed or not.

The appellant's difficulty, however, is to establish that the track that was played to the jury and apparently described as channel 1 - see the record at p. 20 - was not admissible. That involves showing that the track played recorded conversation obtained by use of a listening device in contravention of s. 43 of the 1971 Act. It is not enough that there was a contravention of s. 43; it must appear that the track which was used, and not one of the other two, was produced by the contravention. Sub-section (2) of s. 43 of the 1971 Act is not so expressed as to create a separate proviso, nor does it in substance do so. To show a contravention of s. 43(1), it must be made to appear that the sub-section applies. The Crown did not have to disprove the contravention in order to justify the admission of the content of the relevant track, but the result does not depend upon a weighing of evidence; there was simply no evidence upon which it could be found that there was a contravention in the production of the relevant track.

The other view is that, there being a better than even chance that any particular track was unlawfully obtained, the Court should assume that channel 1 was unlawfully obtained, in the absence of proof to the contrary. That does not seem to me the correct approach. If it were, then a question would arise whether the appeal should be dismissed on the ground that there was no substantial miscarriage of justice. The onus of showing that appears to be on the Crown: Driscoll 137 C.L.R. 517 at 524; Quartermaine (1980) 143 C.L.R. 595 at 600, 601; Simic (1980) 144 C.L.R. 319 at 327. That is, the Crown must establish that wrongly admitted evidence did not cause the accused to lose a fair chance acquittal. Assuming (contrary to my view) that one should proceed on the assumption that an inadmissible track was used, the Crown cannot here satisfy that onus. It was in the end not argued for the Crown that, apart from the content of the recordings, there was evidence on which the jury must have convicted; in my opinion the concession implied was correctly made. The only other possible route to success for the Crown on this issue is to say that since the content of each of the three tracks was, in substance, the same, it could have made no difference to the accused whether an inadmissible rather than an admissible one was played. That is not a proper mode of reasoning in this field; it is not enough for the Crown to show that, had the impugned evidence been excluded, it could have proved the same matter by another means.

However, I am, for the reasons I have stated, of opinion that the appellant has to show, but cannot show, that the track used was inadmissible. The appeal should, on that ground, be dismissed. There is an application for leave to appeal against sentence, which was not pursued and must also be dismissed.