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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Regazzoli

Details

AGLC: R v Regazzoli [1993] QCA 154
Case: [1993] QCA 154
Decision Date: 4/05/1993

CaseChat Overview and Summary

In the case of R v Regazzoli, the appellant was convicted of carrying on the business of unlawfully trafficking in a dangerous drug and two offences of possession of a dangerous drug. The appellant's sole ground of appeal was that evidence of his private conversations, which were intercepted and recorded using listening devices, was inadmissible under section 46 of the Invasion of Privacy Act 1971. The argument was that an interception warrant authorised the use of a single listening device, but three listening devices were used in contravention of the warrant. The court had to determine whether the evidence obtained through the use of the listening devices was admissible.

The court considered the statutory framework provided by the Invasion of Privacy Act 1971 and the Drugs Misuse Act 1986. Section 46 of the Invasion of Privacy Act 1971 prohibits the use of evidence obtained through the use of a listening device in contravention of section 43 of the Act. Section 43(2)(c)(i) of the Act allows the use of a listening device by a police officer if authorised by a judge of the Supreme Court. The Drugs Misuse Act 1986 authorises a judge of the Supreme Court to issue an interception warrant for the use of a listening device. Section 29 of the Drugs Misuse Act 1986 deems a listening device used under the authority of an interception warrant to be authorised under section 43(2)(c)(i) of the Invasion of Privacy Act 1971.

The court found that the three listening devices used were components of a single listening device, essential for its effective operation. The use of the listening device was authorised, and therefore, the evidence obtained was admissible. The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence.

Orders