R v Tracey (No 3)
[2005] SASC 357
•22 September 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v TRACEY & ORS (NO 3)
Reasons for Ruling of The Honourable Justice Nyland
22 September 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application for exclusion of evidence obtained by use of listening devices - complaint that listening device warrants substantially differed from form prescribed by Rules – whether non-compliance or inconsistency with form invalidated warrants – whether invalidity due to failure to state essential matters – whether invalidity due to failure to comply with s 6(7) of the L&SD Act – whether invalidity for uncertainty and inconsistency - whether renewals or fresh applications – presumption as to regularity - no term implied in Act to make the validity of warrants dependent upon the Rules– trivial or minor non-compliance with form did not result in the invalidity of the warrant – finding that warrants valid on their face – application to exclude listening device evidence refused.
Crown Proceedings Act 1992 (SA) s 9(2); Acts Interpretation Act 1915 (SA) ss 26 and 34; Listening Devices Act 1972 (SA) ss 4, 5 and 6; Listening and Surveillance Devices Act 1972 (SA) ss 4, 5, 6 and 12; Regulations under Listening and Surveillance Devices Act 1972 Amendment Nos 226 of 2002 and 207 of 2003; Supreme Court Act 1935 (SA) Listening Devices Rules 4 and 5, Form A; Listening Devices (Miscellaneous) Amendment Act 2001 (SA) ss 4, and 5, referred to.
Ousley v The Queen (1997) 192 CLR 69, applied.
George v Rockett & Anor (1990) 170 CLR 104; Halliday v Nevill & Anor (1984) 155 CLR 1; Garwood v Schultz [1982] Tas R 120; Carroll & Ors v Mijovich & Ors (1991) 58 ACrimR 243; Cassaniti v Croucher & Ors (2000) 48 NSWLR 623; Ozzie Discount Software (Aust) Pty Ltd v Muling & Ors (1996) 86 ACrimR 387; Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; Karina Fisheries Pty Ltd & Ors v Mitson & Ors (1990) 26 FCR 473; Bunning v Cross (1978) 141 CLR 52; R v Lobban (2000) 77 SASR 24, discussed.
Tran Nominees v Scheffler (1986) SASR 361; Commissioner of Police v Barbaro & Ors (2001) 119 ACrimR 143; Tran Nominees v Scheffler (1986) 42 SASR 382; R v Eade (2000) 118 ACrimR 449; Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68; R v Gillard and Preston (1998) 200 LSJS 350; R v Gilard and Preston [2000] SASC J/No 454 (unreported); R v Bunting and Wagner (No 4) (2003) 231 LSJS 1, considered.
R v TRACEY & ORS (NO 3)
[2005] SASC 357Voir Dire Ruling as to validity of Listening Device Warrants:
1 The accused John Tracey and Joshua Considine have each filed a Rule 9 notice seeking the exclusion of evidence obtained by the police as a result of the use of listening devices on the grounds that the evidence is inadmissible or in the alternative that the evidence should be excluded in the exercise of discretion.
2 John Tracey in his fourth Rule 9 application dated 5 April 2005 has set out the grounds upon which his application is based as follows:-
11.1the evidence was unlawfully obtained and the recording of the alleged conversations were in contravention of Listening Devices Act 1972 and Listening and Surveillance Devices Act 1972 in that the purported warrants relied upon were invalid and/or recording was not done pursuant to a warrant.
11.2the evidence is inadmissible in that Section 5 of the Act (in its past or present form) prohibits the giving of such evidence
11.3In the alternative, the evidence should be excluded in the exercise of the Court’s discretion in that the evidence was unlawfully obtained and, in addition:
11.3.1it would be unfair to admit the evidence
11.3.2any probative value the evidence has would be outweighed by its prejudicial effect.
IN THE ALTERNATIVE, IF IT WERE FOUND THAT THE EVIDENCE WAS NOT UNLAWFULLY OBTAINED
11.4portions of the evidence are inadmissible as being irrelevant and/or hearsay
11.5any probative value the evidence has would be outweighed by its prejudicial effect.
3 The grounds set out in Joshua Considine’s amended Rule 9, also filed on 5 April 2005, are in identical terms.
4 Mr Peek QC made submissions on behalf of John Tracey and Mr Tothill made submissions on behalf of Joshua Considine. Each of them indicated that in addition to his separate submissions he relied upon the submissions put by the other. Ms Chapman made submissions on behalf of the Director of Public Prosecutions. Mr Kourakis QC appeared for the Attorney-General who intervened in the proceedings pursuant to s 9(2) of the Crown Proceedings Act 1992 (SA).
The warrants:
5 There were four warrants issued in this case. Warrants numbered L0309 (Exhibit VDJT034) and LO310 (Exhibit VDJT035) were issued by a Supreme Court judge on 15 November 2002.
6 Exhibit VDJT034 is in the following form:
IN THE MATTER of the Listening Devices Act 1972, and in the matter of an application for a warrant pursuant to Section 6 of the said Act.
WARRANT
TO Peter Andrew Crouch, a member of the South Australia Police
WHEREAS application has been made to me by Peter Andrew Crouch, a member of the South Australia Police for a warrant authorising the use of the two listening devices.AND WHEREAS I, [the name of the judge]
a Judge of the Supreme Court of South Australia, am satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing:That the officers from the Technical Support Section be selected from [five named persons] (This section handwritten by the judge)
NOW THEREFORE I, pursuant to section 6 of the Listening Devices Act 1972, HEREBY GRANT THE APPLICATION and AUTHORISE Acting Senior Sergeant [RC] and any four other police officers from the Technical Support Section, acting under the applicant’s control and direction, to enter upon the premises situated at 19 Wilterna Crescent, Smithfield in the State of South Australia, for the purpose of installing, maintaining, using or recovering the listening devices without permission first being sought or demand first being made:
*
during the following hours* at any time
and entry to the said premises may be effected by means thought appropriate in the circumstances.
AND I FURTHER AUTHORISE YOU and members of the South Australia Police, namely members of the Technical Support Section, and
[24 persons named]
acting under your control and direction, to use the said listening devices the subject of the application:-AND subject to any renewal thereof, this warrant shall be in force for a period of 60 days from the date hereof.
Dated the 15th day of November 2002
[the signature of the Judge]
………………………………
A Judge of the Supreme Court
of South Australia
7 Exhibit VD JT035 is in identical terms save that the address referred to in that warrant is 114 Main North Road, Evanston in the State of South Australia.
8 Each of these warrants was issued pursuant to the provisions of the Listening Devices Act 1972 (SA) (LD Act). At that time the relevant sections of that Act were as follows:
Prohibition on use of listening device
4. Except as is provided in this Act a person shall not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not he is a party thereto, without the consent, express or implied, of the parties to that conversation.
Penalty: Division 5 fine or division 5 imprisonment or both.
Prohibition on communication or publication
5. A person shall not knowingly communicate or publish any information or material derived from the use of a listening device in contravention of section 4 of this Act.
Penalty: Division 5 fine or division 5 imprisonment or both.
Warrants authorizing use of listening devices
6.(1) Section 4 does not apply in relation to the use of a listening device pursuant to a warrant issued by a judge of the Supreme Court.
(2) An application for a warrant under this Act may be made -
(a)by a member of the police force, for the purposes of the investigation of a matter by the police;
or
(b) …
(3)Subject to subsection (4), an application for a warrant -
(a) must be in writing;
(b) must set out the grounds on which the application is based;
(c)must specify the period for which it is requested that the warrant be in force and give reasons for that specification;
and
(d)may request that the warrant authorize entry onto specified premises.
(4) …
(5) A judge to whom an application for a warrant is made may require further information to be given in relation to the application.
(6) A judge may issue a warrant under this section if satisfied -
(a)in the case of a telephone application, that because of urgent circumstances it was necessary to make the application by telephone;
(b)that the issue of the warrant is justified having regard to -
(i)the extent to which the privacy of any person would be likely to be interfered with by use of a listening device pursuant to the warrant;
(ii) the gravity of the criminal conduct being investigated;
(iii)the extent to which information that would be likely to be obtained by use of a listening device under the warrant would be likely to assist the investigation;
(iv)the extent to which that information would be likely to be obtained by methods of investigation not involving the use of a listening device;
and
(v)the extent to which those methods would be likely to assist the investigation or to prejudice the investigation, through delay or any other reason;
and
(c)in the case of a warrant authorizing entry onto premises, that it would be impracticable or inappropriate to use a listening device pursuant to the warrant without entry onto the premises.
(7)A warrant under this section -
(a)may specify conditions relating to the use of a listening device;
(b)if it authorizes entry -
(i) may restrict entry to within specified hours during a day;
(ii)may provide that entry may be made without permission first being sought or demand first being made and, if it does so, may specify the measures by which entry may be gained;
(c)must specify the period for which it is in force (not being a period greater than 90 days);
(d)may be renewed. (emphasis added)
I have omitted s 6(2)(b) and s 6(4), as well as subsections (8) and (9) as they are irrelevant to these proceedings.
9 The LD Act did not prescribe the form of a warrant nor provide for any Regulations to be made under the Act. In 1992, however, judges of the Supreme Court made rules pursuant to the provisions of the Supreme Court Act 1935 (SA) entitled the Listening Devices Rules (LD Rules). Those rules were gazetted on 2 July 1992.
10 Rule 4 of the LD Rules provides that “subject to Rule 5, a warrant issued pursuant to s 6 of the Act … shall be in Form A … ”.
11 Form A appears at the end of the Rules, and the form (as gazetted) is as follows:
FORM A
Warrant Issued Under Section 6 of the Listening Devices Act, 1972
(Rule 3)
IN THE SUPREME COURT
OF SOUTH AUSTRALIA
IN THE MATTER of the Listening Devices Act
1972, and in the matter of an application for a
warrant pursuant to Section 6 of the said Act
WARRANT
TO ………………, a member of the South Australia Police Force and/or a member of the staff of the National Crime Authority and/or a member of the National Crime Authority.
WHEREAS application has been made to me by ………………… a member of the South Australia Police Force and/or a member of the Staff of the national Crime Authority and/or a member of the National Crime Authority for a warrant authorising the sue (sic)[1] of a listening device.
[1] The LD Rules are reproduced in Lunn Criminal Law in South Australia and Form A appears at [22740]. The second para of the form as printed in Lunn reads as follows: “… warrant authorising … the issue of a listening device …”.
The form in the Rules as gazetted (and in the original rules as signed by the judges of the Supreme Court), however, contains a typographical error as it refers to a “… warrant authorising the sue of a listening device”. In my view, this should read use as that would be in more accord with the wording of the Act. As it happens “use” is the word used by the judge who issued the first two warrants, although the word “issue” was used in the last two warrants.
AND WHEREAS I …………………………………, a Judge of the Supreme Court of South Australia am satisfied that the issue of the warrant is justified upon the condition hereinafter appearing:
NOW THEREFORE I, pursuant to Section 6 of the Listening Devices Act, 1972, HEREBY AUTHORISE YOU:
(1) to use a listening device subject to the following conditions:
(a) (set out any conditions attaching to the use of the listening device)
(b)………………………………………………………………...
(2) to enter upon the premises situated …………………….. in the State of South Australia for the purpose of initialising, maintaining, using or recovering the listening device without permission first being sought or demand first being made-
* during the following hours
* at any time and entry to the said premises may be effected-
* by the following measures
* by means thought appropriate in the circumstances.
AND subject to any renewal thereof, this warrant shall be in force for a period of …………. Days for the date hereof.
Dated the ………………. Day of …………………. 19 .
…………………………………
A Judge of the Supreme Court of South Australia
12 Two further warrants, namely L0311 (Exhibit VDJT036) and L0312 (Exhibit VDJT037) were issued by another Supreme Court Judge on 13 January 2003. Prior to that date, however, the LD Act was amended. The Listening Devices (Miscellaneous) Amendment Act 2001 (SA) came into operation on 1 January 2003. The new title of the Act was the Listening and Surveillance Devices Act 1972 (SA) (L&SD Act).
13 Section 4 remained the same as it was in the LD Act. Section 5 was amended to read as follows:
Prohibition on communication or publication
5.(1) A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4 -
(a)to a person who was a party to the conversation to which the information or material relates; or
(b)with the consent of each party to the conversation to which the information or material relates; or
(c)for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.
14 Section 6 was amended to read as follows:
Warrants—General provision
6.(1) A judge of the Supreme Court may issue a warrant authorising one or more of the following:
(a) the use of one or more listening devices;
(b)…entry to or interference with any premises, vehicle or thing for the purposes of installing, using, maintaining or retrieving one or more listening or surveillance devices.
(2)An application for a warrant under subsection (1) may be made -
(a)where the Director for Public Prosecutions, being satisfied that the warrant is reasonably required, by written instrument approves the making of the application for the purposes of the investigation of a matter by the police -by a member of the police force; or
(b) …
(3)An application for a warrant must be made by personal appearance before a judge following the lodging of a written application except in urgent circumstances when it may be made in accordance with section 6A.
(4)The grounds of an application for a warrant must be verified by affidavit.
(5)A judge to whom an application for a warrant is made may require further information to be given in relation to the application.
(6)A judge may issue a warrant if satisfied that there are, in the circumstances of the case, reasonable grounds for issuing the warrant, taking into account -
(a)the extent to which the privacy of a person would be likely to be interfered with by use of the type of device to which the warrant relates; and
(b)the gravity of the criminal conduct to which the investigation relates; and
(c)the significance to the investigation of the information sought to be obtained; and
(d)the likely effectiveness of the use of the listening or surveillance device in obtaining the information sought; and
(e)the availability of alternative means of obtaining the information; and
(f)any other warrants under this Act applied for or issued in relation to the same matter; and
(g) any other matter that the judge considers relevant.
(7)A warrant under this Act -
(a)must specify -
(i)the person authorised to exercise the powers conferred by the warrant; and
(ii)whether the type of device to which the warrant relates is a listening device, a visual surveillance device or a tracking device; and
(iii)the period for which the warrant will be in force (being a period not longer than 90 days); and
(b)may contain conditions and limitations; and
(c)may, on application by the person named in the warrant, be varied or renewed (and the provisions of this Act will apply in relation to such an application in the same way as if it were an application for the issue of a warrant).
(7a)A judge by whom a warrant is issued, varied or renewed on application under this Act must cause the warrant, or a copy of the warrant, as issued, varied or renewed and the affidavit verifying the grounds on which the application was made to be dealt with in accordance with the rules of the Supreme Court.
(7b)Subject to any conditions or limitations specified in the warrant -
(a)a warrant authorising the use of a listening device to listen to or record words spoken by, to or in the presence of a specified person who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise entry to or interference with any premises, vehicle or thing as reasonably required to install, use, maintain or retrieve the device for that purpose;
(b)a warrant authorising (whether under the terms of the warrant or by force of paragraph (a)) entry to or interference with any premises, vehicle or thing will be taken to authorise -
(i)the use of reasonable force or subterfuge for that purpose; and
(ii)the extraction and use of electricity for that purpose or for the use of the listening or surveillance device to which the warrant relates;
(c)a warrant authorising entry to specified premises will be taken to authorise non-forcible passage through adjoining or nearby premises (but not through the interior of any building or structure) as reasonably required for the purpose of gaining entry to those specified premises;
(d)the powers conferred by any warrant may be exercised by the person named in the warrant at any time and with such assistance as is necessary.
15 In addition, s 12 of the L&SD Act provided that:
(1)The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of the Act.
(2)Without limiting the effect of subsection (1), those regulations may make provision –
(a)relating to warrants, their form and proceedings in connection with warrant …
16 The L&SD Regulations 2002[2] came into effect on 1 January 2003. The Schedule attached thereto included forms for application for warrants or “a warrant” under s 6 (Form 1), application for renewal of a warrant under s 6 (Form 2) and application for variation of a warrant under s 6 (Form 3). As at 13 January 2003, however, no form had been prescribed for the actual warrant. For completeness I should mention that these regulations were subsequently disallowed on 16 July 2003 but it is accepted they were in effect at the time that the last two warrants were issued[3].
[2] Regulations under Listening and Surveillance Devices Act 1972 Amendment No 226 of 2002[3] The regulations which are currently in force under the Act are the Listening and Surveillance Devices Regulations Amendment No 207 of 2003 which came into force on 16 October 200317 Exhibit VDJT036 is one of the two warrants issued by the Supreme Court judge on 13 January 2003 and is in the following terms:
WARRANT ISSUED UNDER SECTION 6 OF THE
LISTENING DEVICES ACT 1972IN THE SUPREME COURT
OF SOUTH AUSTRALIAIN THE MATTER of the Listening Devices Act 1972
And in the matter of an application for a warrant pursuant to Section 6 of the said Act.
WARRANT
To Nikolaos Pippos, a member of the South Australia Police
WHEREAS application has been made to me by Peter Andrew Crouch, a member of the South Australia Police for a warrant authorising the issue of two listening devices
AND WHEREAS I [the name of the judge]
a Judge of the Supreme Court of South Australia am satisfied that there are reasonable grounds for issuing the warrant upon the conditions and for the purposes hereinafter appearing:NOW THEREFORE, pursuant to Section 6 of the Listening Devices Act 1972, I HEREBY AUTHORISE YOU AND [three named persons].
(1) to use two listening devices subject to the following conditions:
(2) to enter or interfere with the premises, vehicle or thing described below for the purpose of installing, using, maintaining or retrieving the listening device, visual surveillance device or tracking device –
*
during the following hours
* at any timeand entry to the said premises may be effected –
*
by the following measures
* by the means thought appropriate in the circumstances.Premises at 19 Wilterna Crescent, Smithfield in the State of South Australia
AND I AUTHORISE:
[55 persons named]
(1) to use two listening devices subject to the following conditions:
AND subject to any renewal thereof, this warrant shall be in force for a period of 90 days from the date hereof.
Dated the 13th day of January 2003.
[the signature of the Judge]
……………………………….
A Judge of the Supreme Court
of South Australia
18 VDJT037 is in identical terms save that the address is the same as that referred to in Exhibit VDJT035, that is, 114 Main North Road, Evanston in the State of South Australia.
19 Section 4 of both the LD Act and L&SD Act contains a complete prohibition on the use of evidence obtained “except as is provided in this Act”. Section 5 of the LD Act prohibits the communication or publication of material obtained in breach of s 4 but provides in s 6(1) that s 4 does not apply in relation to the use of listening device pursuant to a warrant issued by a judge of the Supreme Court.
20 Section 5 of the L&SD Act similarly prohibits communication or publication of information or material derived from the use of a listening device in breach of s 4, but contains certain specified exceptions and s 6 of that Act authorises a judge to issue a warrant for the use of a listening device.
21 A number of issues are raised in the rule 9 notices with respect to the material obtained by the police by use of listening devices. On the prosecution case, however, the listening devices were used in accordance with the warrants issued by the respective Supreme Court judges and therefore the use of evidence obtained thereby is not prohibited by s 4.
22 It was agreed that the first matter to be resolved concerned the validity of the respective warrants. Subject to my finding as to validity, it would then be necessary to consider such matters as the effect of s 5 in each Act, whether the warrants had been executed in accordance with their terms and matters relevant to the discretionary admission of evidence that had been illegally or improperly obtained.
23 Accordingly, this ruling is only concerned with the question of whether the warrants issued by the respective judges are valid on their face.
The law as to privacy:
24 Mr Peek commenced his submissions by making a detailed analysis of case law to demonstrate the importance of the right of privacy and the strict approach taken by courts when considering the construction of statutes and warrants which involved an invasion of it. For example, in Tran Nominees v Scheffler[4], Jacobs J said (at 369):
[4] (1986) 42 SASR 361
The issue and execution of a warrant to enter, or to search and seize, or both, represents an invasion of the liberty of the subject, which was jealously protected by the common law, and the need for protection against abuse or unauthorised invasion is still a guiding principle when the authority to enter or search or seize is derived from statute: the court will construe such statutes strictly, resolving any ambiguity in favour of the subject, and insist upon strict compliance with the statute and the conditions upon which the warrant is authorised …
On appeal[5], Cox J (with whom O’Loughlin J agreed) said (at 390):
… the courts have always insisted that those who issue or execute a warrant of this sort should comply strictly with the statutory requirements. That includes the limitations, expressed or implied, upon the power to issue the warrant. The issuing authority must take care to ensure that all conditions precedent to issue have been met. If they have not, it is very likely that the warrant will be, at the least, seriously defective.
And further (at 390):
I have no doubt that, if the issuing authority does in fact set out, necessarily or not, to describe the jurisdictional basis for his decision (in the sense of factual compliance with the statutory pre-conditions), and if in doing so he happens to show that no proper jurisdictional basis actually existed, the warrant will be invalid. That is what Jacobs J found had happened in this case. In my opinion he was right.
[5] Also at (1986) 42 SASR 361 at 382
25 It is unnecessary, however, to examine each of the cases referred to by Mr Peek in detail as I consider those principles are well established and no issue was taken by the Crown as to them. Tran Nominees, and many of the cases cited, however, are concerned with warrants to search property, or other issues of privacy, as opposed to listening device warrants: George v Rockett & Anor[6]; Halliday v Nevill & Anor[7]; Garwood v Schultz[8]; Carroll & Ors v Mijovich & Ors[9]; Cassaniti v Croucher & Ors[10]; Ozzie Discount Software (Aust) Pty Ltd v Muling & Ors[11]; Question of Law Reserved on Acquittal (No 5 of 1999)[12]. Whilst I acknowledge the need for a strict approach to any action taken which infringes upon a citizen’s right to privacy, I believe that it is necessary to take some care when considering statements of principle extracted from the above cases which deal with search warrants as opposed to listening devices. This was a matter commented upon by the High Court in Ousley v The Queen[13]. Toohey J said (at 82):
In particular, while both search warrants and listening devices involve an invasion of privacy, any analogy between the two cannot be pressed too far. A search warrant will ordinarily be produced to the person whose premises are to be searched, whereas the authority for a listening device will necessarily not be known to the person whose communication are to be recorded. It follows that in the case of a listening device no opportunity is provided for an assessment of its lawfulness at the time of its installation. (emphasis added)
[6] (1990) 170 CLR 104
[7] (1984) 155 CLR 1
[8] [1982] Tas R 120
[9] (1991) 58 ACrimR 243
[10] (2000) 48 NSWLR 623
[11] (1996) 86 ACrimR 387
[12] (2000) 76 SASR 356
[13] (1997) 192 CLR 69 [Ousley is discussed in more detail later in these reasons.]
26 Mc Hugh J made a similar comment (at 111 to 112), and Gummow J said (at 118):
Caution is required in applying principles developed in relation to search warrants to warrants authorising a listening device. For example, unlike search warrants, the use of a listening device will not always involve the commission of acts which, but for the warrant, would amount to trespass (223). A particular device might allow the monitoring of a conversation from a remote location or lawful entry may be gained to premises to effect installation through the co-operation of a person who has the legal right of entry into the premises.
27 Kirby J (although in the minority in the final decision in Ousley), referred to the strict approach to search and other warrants, but said (at 144):
If the law is clear and authorises what has been done, it is not the function of the courts to frustrate the will of Parliament simply because a judge may consider that the power given to officials is excessive. Courts recognise that modern criminality needs to be combated with the issue of modern technology and, occasionally, the enlargement of powers beyond those traditionally enjoyed by police and other officials. Nor should judges be ‘over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because [they] are out of sympathy with the policy to which the Act appears to give effect’. This said, the approach of strictness requires, for the protection of fundamental rights of an individual affected.
28 The decisions of the NSW Court of Appeal in Commissioner of Police v Barbaro& Ors[14] and in R v Eade[15] are, however, cases concerned with listening device warrants. In Barbaro v Director of Public Prosecutions[16] the judge at first instance considered the provisions of s 16(4) of the Listening Devices 1984 (NSW) which provided a list of matters that a warrant “shall specify”. That included the period during which the warrant was to be in force. The warrant which was issued specified the period to be 4.30 pm on 15 December 1997 until 4.30 pm, January 1997. It was appreciated that the date 1997 second appearing probably was included in error for 1998, but the trial judge nevertheless held that the error invalidated the warrant. He adopted the strict approach outlined by Kirby J in Ousley and concluded the relevant warrant did not comply with the Act. As the provisions were mandatory, the warrant was void as a consequence.
[14] (2001) 119 ACrimR 143
[15] (2000) 118 ACrimR 449
[16] (1999) 49 NSWLR 68
29 On appeal, however, in Commissioner of Police v Barbaro (supra), the Full Court allowed the appeal against that decision. The court said that, unlike a search warrant, a warrant under the Listening Device Act did not have to be produced to persons whose premises were about to be entered and searched, hence there was not the necessity for such a warrant to be clear on its face. The court said that a false description did not vitiate if there was sufficient certainty, and in this case, no one who was bound to comply with, or act on the warrant, could possibly have been mislead. Handley JA (with Meagher and Priestley JA’s concurring) held (at 145) that “the Court should not adopt a hypocritical approach to warrants”. He referred to the comments of Kirby J in Ousley (at 144 and at 255) “Courts properly tend to take a practical rather than unduly technical view of challenges to warrants”. Handley JA said (at 145) that this was “a proper case for the application of the principle summed up in the Latin maxim false demonstratio non nocet, meaning that a mere false description does not vitiate if there is sufficient certainty”. Accordingly, the court held that the year 1997 as it appeared in the warrant should be read as 1998 and that the mistake did not invalidate the warrant.
30 In R v Eade (supra), at first instance, the trial judge held that the warrants were invalid but that the use of the material obtained thereby did not preclude the use of that material, subject to the court’s discretion, and decided that the evidence should not be excluded. The judge subsequently certified two questions to the Court of Criminal Appeal for determination, namely, whether the listening device warrants were invalid for failing to expressly direct the removal of the devices on or before the specific date, and the effect of such invalidity with regard to s 13 of the Listening Devices Act 1984 (NSW), and whether it operated to exclude any evidence obtained by the device. The court held that the warrants were invalid as s 16(3) of the Act said that “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 warrant – (a) authorise and require the retrieval of the listening device; and (b) authorise entry onto those premises for the purposes of that installation and retrieval” (emphasis added). The warrants had authorised the installation of the devices and had authorised their retrieval but did not require the retrieval of the listening devices. The court held that this omission invalidated the warrants, but said that the Listening Devices Act 1984 (NSW) did not exclude evidence which was illegally recorded and ruled that the admission of the recordings was to be determined by the relevant provisions of the Evidence Act 1995 (NSW).
31 In Eade it is clear that the court took a very strict approach to the determination of the validity of the warrant but, as Ms Chapman pointed out in the course of her submissions, Eade (as well as a number of other authorities referred to in the course of argument) was simply an example of a court determining validity by an examination and interpretation of the relevant Act as opposed to a comparison of the prescribed form with the form of the warrant, which is what I am asked to do by the defence in this case.
Ousley v The Queen[17]:
[17] (supra)
32 It is necessary to examine Ousley in some detail as both Mr Peek and Ms Chapman referred to passages from it in the course of their submissions. In Ousley, the High Court considered the validity of warrants issued by judges of the Supreme Court of Victoria for the installation and use of listening devices pursuant to the Listening Devices Act 1969 (Vic) in relation to an investigation of drug related offences.
33 Section 4A(1) of the Victorian Act provided:
On complaint made by a member of the police force that he or she suspects or believes –
(a) that an 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 –
the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device.
34 Section 4A(4) specified seven matters which had to be set out in the warrant. These included the offence in respect of which the warrant was granted; the name of any person whose private conversation might be recorded or listened to; the period during which the warrant was to be in force; the name of any person who might use the listening device; the premises where the device was to be installed; and conditions relating to entry.
35 Neither the Act nor Regulations provided any particular form for the warrant, but a form of warrant was contained in the Criminal Appeals and Procedure Rules 1988 (Vic). Rule 7.05 of those Rules provided that a warrant authorising the use and retrieval of a listening device “shall be in Form 7B”. Each of the warrants issued accorded with Form 7B.
36 Each warrant recited the satisfaction of the Supreme Court that there were reasonable grounds for suspicion or belief of the police officer seeking the warrant that an offence had been, or was about to be, or was likely to be committed: s 4A(1)(a). The warrants did not, however, recite that the Supreme Court was satisfied that the use of a listening device was necessary for the purpose of an investigation: s 4A(1)(b). Accordingly, it was contended that each warrant failed to show jurisdiction on its face and was invalid for that reason. It was further argued that by reciting its satisfaction in terms of s 4A(1)(a) but not in terms of s 4A(1)(b), it must be taken that the court was in fact not satisfied in terms of the latter paragraph and accordingly the court lacked authority to issue either warrant.
37 The trial judge subsequently ruled that he had no jurisdiction to permit a collateral attack on the validity of the warrants. The recordings were admitted into evidence and the accused was convicted. On appeal, the High Court, by majority, dismissed the appeal. All of the judges agreed that the issue of a warrant under s 4A was an administrative, and not a judicial, act. Hence its validity was open to collateral review by a trial judge. Toohey, Gaudron, McHugh and Gummow JJ (Kirby J dissenting), held that the evidence obtained under the authority of the warrants was not improperly admitted. Toohey, Gaudron, McHugh and Gummow JJ held that the existence of one jurisdictional fact on the face of warrants which were issued in accordance with a prescribed form under the rules of court did not give rise to the inference that the judge had failed to satisfy himself of another jurisdictional fact not appearing on the face of the warrants.
38 Toohey, McHugh and Gummow JJ also held (Gaudron and Kirby JJ dissenting) that s 4A(3) and (4) stated exhaustively the matters required to be specified in a warrant for the use of a listening device. Accordingly, there was no requirement to disclose fully the jurisdictional grounds relied upon in issuing the warrant. In so doing they distinguished Tran Nominees Pty Ltd v Scheffler (supra).
39 Toohey, McHugh and Gummow JJ also held that s 50 of the Interpretation of Legislation Act 1984 (Vic) provided authority for the making of r 7.05 and the prescribed form of warrant, and that s 25(1)(f)(i) of the Supreme Court Act 1986 (Vic) was not the source of power to make r 7.05.
40 Gaudron J joined in the order dismissing the appeal, although she found that the warrants were invalid on their face. She, however, applied the proviso on the basis that the evidence of the conversations would not have been excluded in the exercise of the discretion to exclude illegally obtained evidence. Kirby J, however, found that the warrants were invalid on their face and it was not a case for the application of the proviso.
41 Toohey J, in rejecting the contention that the warrants were invalid due to the absence of any mention of the matters identified in s 4A(1)(b), distinguished Tran Nominees for a number of reasons including the fact that Tran Nominees was a case concerned with a search warrant. He went on to make the comment about the limits on any analogy between search and listening device warrants as appears in the passage cited above. Toohey J preferred to follow the decision of the Full Court of the Federal Court in Karina Fisheries Pty Ltd v Mitson[18] as he considered (at 82) that the circumstances of Ousley were similar to those considered in Karina Fisheries, although as it happened, Karina Fisheries was also a search warrant case. In Karina Fisheries, search warrants had been issued pursuant to two different statutes. Section 71 of the Proceeds of Crime Act, 1987 (Cth) listed matters to be stated in a search warrant issued under that section. These did not include any pre-conditions but it was argued that the failure to show jurisdiction on their face rendered the warrants invalid. Toohey J (at 83) referred to the passage from Karina Fisheries in which the Full Court said (at 499-490):
There is in the present case a short answer to the appellants’ submission. Section 71(7) sets out specifically the matters that are required to be stated in a warrant issued under that section. The matters required statutorily to be set out do not include the satisfaction of the judge pursuant to the matters referred to in s 71(5) or s 71(6)(b). In these circumstances the rule expressio unius est exclusio alterius has application. While as has been often said, that rule is to be applied with caution: cf Tasmania v Commonwealth and Victoria; Rylands Bros (Aust) Ltd v Morgan ... it seems to us that the legislative intention in s 71(7) was to provide a code of the matters that were required to be stated in a search warrant to the exclusion of matters that would otherwise be required by the application of common law principles.
We should say however that while not a matter going to validity, it is extremely desirable that the warrant express in terms that the relevant satisfaction is held so that it is clear on its face to all to whom the warrant may be shown that the judge issuing it has given attention to the matters which he is required to consider under the provisions of s 71. (footnotes omitted) (emphasis added)
[18] (1990) 26 FCR 473
42 Toohey J considered those comments were applicable to the situation in Ousley as s 4A(3) and (4), set out comprehensively all of the matters to be stated in a warrant. There was otherwise no statutory requirement to disclose jurisdiction on the face of a warrant, hence the omission of one pre-condition could not of itself invalidate the warrant.
43 Toohey J referred to the contrary argument which fastened on the requirements of the common law and treated the Act as assuming the warrant would state the matters on which validity depended and said (at 83-84):
There is some support for this approach in that, if the regulations so provide (which they do), the County Court and a Magistrates' Court may issue a warrant. While it may not be necessary for a warrant issued by the Supreme Court to show jurisdiction on its face, so the argument runs, that cannot be so in the case of an inferior court. Since the Act draws no distinction between the possible issuing authorities, a warrant issued by the Supreme Court must show jurisdiction on its face.
Certainly concerns have been expressed by the courts where the issue of a warrant (usually a search warrant) is at the instance of an authority other than the Supreme Court and opinions have been expressed that there is no presumption of regularity in such a case. However, it must be remembered that we are dealing here with an administrative, not a judicial act. The place of the issuing authority in the judicial hierarchy does not therefore offer a satisfactory basis for distinction. However there is no particular justification for concluding that because a presumption of regularity may not apply in certain cases, no presumption attaches in the case of the Supreme Court. (footnotes omitted)
44 Toohey J found that the Rules of Court authorising the form of the warrant were valid and concluded (at 85):
The issuing of each warrant was an administrative act open to collateral review, limited to the validity of the warrant on its face. But on such a review the trial judge should have found that there was no requirement that the warrant disclose jurisdiction on its face, that no inference of invalidity should be drawn from the failure to include the matter mentioned in s 4A(1)(b), that the proper inference to be drawn was that each judge was simply complying with Form 7B, that in doing so each judge met the requirements of the Act as to what must appear, and that the warrant was valid.
45 In the course of his reasons McHugh J referred to developments in the common law relating to the use of warrants and said (at 106):
The common law has met this challenge to the liberty and privacy of the subject by insisting that, subject to a legislative direction to the contrary, a warrant is invalid unless it meets certain conditions.
McHugh J also referred to Karina Fisheries (supra) and said (at 111):
Against the background of the common law tradition of invalidating warrants, a legislature's statement as to what a warrant must contain should be regarded as exhaustive. Expressio unius est exclusio alterius. No doubt in interpreting legislation, the expressio unius est exclusio alterius rule is one to be applied with caution. But given the history of the common law on this subject matter, it seems safe to proceed on the assumption that, when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose. (footnotes omitted)
46 McHugh J concluded that a recital of satisfaction of s 4A(1)(a) did not lead to an inference that the issuing judges were not satisfied as to s4A(1)(b). Consistent with the reasons of Toohey J, McHugh J also found (at 109) that the presumption of regularity applied to warrants issued by superior courts even when the issue was characterised as an administrative act.
47 Gummow J, in response to the argument concerning the failure to disclose jurisdiction on the face of the warrant said (at 127-128):
Section 4A(1) confers authority on the Supreme Court to authorise by warrant the use of a listening device if there are reasonable grounds for the suspicion or belief of a member of the police force of the matters listed in pars (a) and (b). The sub-section does not require that any of those matters be specified in the warrant. Sub-section (2) lists a number of matters that the Supreme Court must have regard to in determining whether a warrant should be granted.
Sub-sections (3) and (4) list certain matters that ‘must’ be specified in a warrant granted under the Act. The requirements of s 4A(3) only apply if a warrant granted by the Supreme Court authorises the installation of a listening device on any premises. The requirements of s 4A(4) apply to every warrant granted by the Supreme Court under s 4A. The appellant did not suggest that either of the warrants failed to specify any of the matters that those sub-sections require on the face of the warrant.
The matters listed in s 4A(3) and (4) constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be a ‘warrant granted under section 4A’ within the terms of s 4(3) of the Act. The comments of Lord Wilberforce in Rossminster, made in the context of a challenge to search warrants issued under the Taxes Management Act 1970 (UK), are apt:
‘It would be wise to add to [the warrant] a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity.’
In the Court of Appeal, Hayne JA, Southwell and Smith A-JJA, in a passage with which I agree, answered the submission that the satisfaction of the issuing judge with respect to the matters contained in pars (a) and (b) of s 4A(1) must be stated on the face of the warrant. Their Honours said:
‘In our opinion neither of these recitals is required by the statute and to hold that if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant. That is not to say that it may not be desirable to record the judge’s satisfaction with the pars (a) and (b) matters on the face of the warrant but we consider that to require such a statement to be made would be to add to the list of matters specified by the legislature as the matters that must appear in the warrant when the statutory list was intended to be an exhaustive list of the mandatory requirements.’ (footnotes omitted)
48 Gummow J also said (at 131-132):
The conclusion that I have reached follows from the construction of ss 4 and 4A of the Act. This makes it unnecessary to deal with the appellant's further submissions that Form 7B and the rule which prescribed it (r 7.05 of the SCR) go beyond the relevant rule-making power and are invalid. These submissions appear to present a paradox.
A warrant which complied with Form 7B would not comply with the Act, whilst a warrant which stated that which the appellant contends it had to state would not comply with r 7.05.
As I have outlined above, for s 4(1) not to apply to or in relation to the use of a listening device, the Act does not require that the warrant comply with Form 7B. The alleged inadequacy in the terms of that Form and its validity are therefore irrelevant to this appeal. The matters required by s 4A(3) and (4) appeared on the warrant and it was granted ‘under section 4A’.
49 Although Kirby J was in dissent in the result of the appeal, I include the following passage from his judgment, which was cited by Mr Peek in the course of his submissions, as to a large extent it appears to reflect the argument presented by the defence in this case. Kirby J considered that the recital on the face of the warrants was incomplete and there was therefore invalidity on the face of the warrants. Kirby J said (at 156-157):
The requirements of par (b), which were omitted are, by no means, insignificant. Indeed they are vitally important to the protection of privacy as Parliament has recognised and enacted. The duty of the issuing judge is not to issue a warrant for the use of a listening device unless he or she is satisfied that there are reasonable grounds for the police officer's sworn suspicion or belief that, for the purpose of the investigation in hand, the use of a listening device is necessary. Satisfaction with the police evidence that an offence has been, is about to be or is likely to be committed is, on its own, inadequate.
The dual requirement is established for very good reason. The requirements of par (b) address the mind of the issuing judge to alternative, non-privacy invasive means of carrying out the investigation. Consideration of such alternatives is necessary because eavesdropping on private conversations in ostensibly private circumstances has the inherent tendency to catch in its net large numbers of completely innocent and uninvolved persons. The numbers will be greater as the technology of eavesdropping and interception available to police and other officials expands. People overheard may carry on conversations, revealing aspects of their private lives and business affairs, which have absolutely nothing to do with the State or its agencies. They may do so upon the assumption that the occasion is private. To the extent that the necessity for the serious invasion of privacy which listening devices permits is not taken into account, as required by par (b), a vital protection for the individual enacted by Parliament is not fulfilled. Moreover, a safeguard for the protection of the privacy of uninvolved third parties is set at nought. If this became, or was believed to be, common it would have a serious effect on the confidence of citizens in the privacy of their conversations. Cases exist where the power of interception and intrusion has been abused by officials. Vigilance and strictness are the proper responses of the courts.
It may have been unnecessary for the warrant to refer in the recital to par (a). But having done so, and having omitted reference to par (b), it was defective on its face. The mischief to which the strict rule concerning the content of such warrants is addressed includes the risk that even a conscientious Supreme Court judge, busily performing such an administrative function amidst pressing judicial duties might, on the face of the document, and reading it as accurately setting out the matters to be taken into account, address attention to the considerations in par (a) and not the dual requirements of pars (a) and (b) as the Act requires. The introduction of this element of realism concerning what can all too easily occur in the actual issue of warrants by judicial officers, however conscientious, encourages reference to be made to another element of realism, all too often overlooked. The suggestion that persons presented with search warrants examine their recitals and satisfy themselves calmly of their contents and preconditions overlooks the actual circumstances in which such warrants are typically executed. It ignores the surprise and disorientation which the unheralded arrival of officials executing such warrants usually occasions. In that sense, search warrants, like warrants under listening devices legislation, play in fact a practical role beyond a priori satisfaction to the subject of the warrants. They afford that subject facilities of ex post scrutiny of lawfulness. But they also oblige applicant officials and authorising personnel to satisfy themselves that all necessary preconditions are fulfilled. Hence the considerable importance of ensuring that the preconditions, if stated at all, are accurately stated, conformably with the legislation. That is what was missing here. And it was a serious omission not merely a technical one. (footnotes omitted)
R v Gillard and Preston[19]:
[19] (1998) 200 LSJS 350
50 In this case, the accused Preston challenged the validity of warrants to install listening devices. There was no dispute that the officer who applied for the warrants was entitled so to do but it was argued that there was a flaw on the face of the warrants due to the failure of the issuing judge to state his satisfaction with respect to the grounds set out in s 6(6)(b) and (c) LD Act. Mullighan J who was the trial judge rejected that argument and said (at 383):
The Act is silent as to the requirements to be disclosed on the face of the warrants. The warrants were issued by a superior court and failure to mention in the warrants the jurisdictional basis for issuing them does not render them invalid: Ousley v R (1997) 148 ALR 510.
51 Mullighan J went on to discuss Ousley as well as Tran Nominess Pty Ltd v Scheffler and concluded (at 386) that there was no reason to suppose that the judge who issued the warrants did so upon wrong jurisdictional grounds.
52 The findings by Mullighan J were subsequently challenged on appeal[20]. The Full Court, however, agreed with the conclusion reached by Mullighan J and said (at [113]):
By reference to the reasoning of the various judges in Ousley v The Queen (1997) 192 CLR 69, a case which dealt with the validity of a warrant issued under the equivalent Victorian Act, the trial judge held that the warrants were valid. Mr Kourakis sought to distinguish the requirements under the Victorian legislation from those under the South Australian Act. He submitted that where no form was prescribed by the Act, the common law required a recital that the issuing authority was satisfied as to all relevant aspects. He further argued that compliance with the form in the rules did not cure the defect, as this Court had no power to make such rules. It is not necessary to elaborate or pass on these arguments. We agree with the trial judge that the recital that the judge is “satisfied that the issue of the warrant is justified....” can only mean that the judge is satisfied that all the requirements of paragraphs (a), (b) and (c) of subsection (6) have been met, to the extent that they apply in a particular case. Therefore, in this case, such a statement means that the judge was also satisfied that it would be impracticable or inappropriate to use a listening device without entry onto the premises.
[20] R v Gillard and Preston [2000] SASC J/No 454 (unreported)
R v Bunting and Wagner (No 4)[21]:
[21] (2003) 231 LSJS 1
53 In this case, it was argued that the judge who issued listening devices warrants did not possess the power to authorise anyone other than the applicant to enter the relevant property without permission for the purpose of installing, maintaining, servicing or retrieving the listening device. To the extent that each warrant purported to authorise two police officers, other than the applicant, to enter the premises, the warrant was invalid on its face. It was argued that a warrant was so powerful and involved such a serious infringement of the occupier’s rights that the power to authorise the entry of persons other than the applicant should not, in the absence of express reference to such a power in the Act be inferred. In particular, the court should not infer the existence of a power to give the applicant the ability to choose two unnamed persons from the police technical section to accompany the applicant.
54 In support of this argument, reliance was placed upon the decision of the High Court in Coco v The Queen (1994) 179 CLR 427. Martin J, however, distinguished Coco, as unlike the situation in that case the South Australian Act specifically empowered a judge to authorise onto premises without permission. Martin J went on to say (at [16]):
The Act specifically authorises interference with the fundamental common law right of the person in possession or entitled to possession of the premises (“occupier’s right”). The obvious purpose is to assist in the investigation of crimes by the installation of listening devices without the knowledge of occupiers and those who are likely to be overheard by those devices. The legislature must be taken to have decided that in order to assist investigations, the abrogation of the fundamental right was necessary and appropriate in the specified circumstances.
55 In response to the argument that the scheme of the Act was to require an applicant to satisfy a judge that he/she was an appropriate person to be given the power, he said (at [17-18]):
… The Judge is required to make an assessment of both the circumstances and of the applicant. In addition, there is no mandate to authorise the applicant to permit unnamed persons to enter under the applicant’s direction and control.
By enacting ss 4 and 5 of the Act, the legislature has set about protecting the confidentiality of private conversations by prohibiting the use of listening devices and by making communication of information derived from use of a device in contravention of s 4 an offence. However, the legislature has also recognised that in specific circumstances the right of confidentiality attaching to private conversations should be abrogated. The right is abrogated only if a judge is satisfied that the issue of a warrant authorising the use of a listening device is justified having regard to a number of specified circumstances. The legislature has also determined the abrogation of an occupier’s right is necessary or appropriate in identified circumstances. The primary questions for the Judge are whether the use of a listening device is justified for the purposes of an investigation by the police and whether entry without permission is necessary and appropriate to achieve the purpose of using a listening device. While the identity of the applicant and others who it is proposed will be involved in entry to install and use the listening device is relevant, the primary focus is not upon satisfying the Judge that the applicant is an appropriate person to be authorised to enter and use the listening device. If the applicant is a member of the Police Force, such membership is sufficient qualification to apply for a warrant. Obviously, once a judge is satisfied that use and entry should be authorised, attention will be given to the question as to who should be authorised to enter and the appropriate conditions.
56 He went on to say (at [20-21]):
… There is no reason to suppose that the rights of the occupier will be better protected if each person whose entry is reasonably necessary to achieve these purposes is required to make an application. For example, there is no reason to suppose that had separate applications been made by officers of the Police Technical Section, those applications would not have been granted. Such applications would add nothing to the primary questions as to whether use and entry should be authorised.
The Act envisages authorisation being given for entry without permission together with installation, maintenance and use of a listening device. In my opinion, the legislature must be taken to have recognised that the involvement of more than one person is likely to be required in most circumstances. Clandestine entry without leaving indications of such entry is required. A police officer might require the assistance of a civilian locksmith to gain entry. Such a locksmith would not be qualified to make an application. Technical expertise of a different kind is involved in the installation, maintenance and use of listening devices. Bearing in mind that the police cannot predict when the opportunity will arise to make a clandestine entry, a degree of flexibility is obviously required in selecting the personnel with appropriate expertise to be involved in gaining entry and in installing, maintaining and using a listening device.
57 Martin J found (at [22]) that the power to authorise entry into the premises of persons other than the applicant should be implied, although that power was limited “to achieving the authorised purposes of gaining entry, namely, installation, maintenance, and use of the listening device”. Martin J further qualified this implied power by limiting authorisation to “only such assistance as is reasonably necessary”.
58 Martin J concluded (at [23-30]) that even if there was an error with respect to authorising entry by persons other than the applicant, the warrants were nevertheless valid on the basis that the invalidity was not integral and essential in the approval to use the listening devices or the invalid part on each warrant could be severed.
59 Martin J further concluded that even if the warrants had been invalid, s 5 did not operate so as to render the evidence inadmissible. He considered that if the evidence had been obtained in contravention of s 4 it would be illegally obtained and that would give rise to a discretion to exclude the evidence on the grounds of public policy as discussed in Bunning v Cross[22] and possibly a consideration of the discretion to exclude on the ground that to receive the evidence would be unfair to an accused as set out in R v Lobban[23].
[22] (1978) 141 CLR 54
[23] (2000) 77 SASR 24
60 Having found that the warrants were valid, Martin J considered whether the entries on to the property had been undertaken in compliance with the terms of the warrant and held a voir dire with respect to that matter. The warrants had provided that specified persons were authorised to enter only if they were acting “in the presence of” and “under the control and direction” of the applicant. The applicant gave evidence that he had not entered the premises but had taken up position to the rear of them. Martin J said (at [164]):
If the warrant had only required that the officers gaining entry acted under the ‘control and direction’ of the applicant, notwithstanding the applicant’s position across the reserve from time to time, I would have found that the officers were acting under the ‘control and direction’ of the applicant. However, the warrant contained the additional requirement that the officers act in the presence of the applicant. Without attempting to define the limits of what amounts to presence for this purpose, in my opinion the positioning of the applicant 100 metres to the rear of the rear fence and across a reserve at the time that entry was gained to the shed and residence did not amount to presence or close proximity for the purpose of the warrant. …
61 Martin J found that the entries were unlawful but thereafter exercised his discretion to admit the evidence notwithstanding that it was illegally obtained.
Invalidity of the warrants:
62 Against the background of those authorities I now turn to consider the various matters which are said to lead to a conclusion in this case that the warrants issued by each of the judges are invalid on their face. Mr Peek carried out a detailed comparison of the form of each warrant with Form A contained in the LD Rules. The thrust of the submissions put by the defence was that as the LD Rules provided that the warrant “shall be in Form A” the warrants were required strictly to comply with that form. Non-compliance with Form A accordingly rendered the warrants invalid.
Warrants issued on 15 November 2002:
63 Mr Peek submitted that the warrants issued on 1 November 2002, namely, Exhibits VDJT034 and VDJT035, substantially deviated from Form A in a number of ways.
64 First, on page 1 of the warrants immediately after the words “… am satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing” the judge had inserted by hand the words “that the officers from the technical support section be selected from [five named persons]”. Mr Peek argued that the form made no provision for the insertion of names at that point. Rather, this section was concerned with conditions limiting and/or regulating the use of a listening device. This, for example, would include conditions such as the particular room in the house in which the listening devices could be placed and/or conditions as to the hours of the day/night at which the devices could be activated. He also submitted that the insertion of the phrase at that point in the warrant gave rise to ambiguity and uncertainty on the face of the warrant. The technical support section (TSS) was mentioned immediately below the inserted handwritten words on p1 in the section concerned with entry to the premises. They were again referred to on page 2 in relation to the topic of use. The judge had also included in the written words the name “[RC]”, although RC’s name was typed immediately below where it states “[RC] and any four other police officers”. On that basis there was an ambiguity as to which officers were intended to be included in the handwritten words.
65 The Crown did not accept that the condition section on page 1 was restricted in the way in which the defence contended but, in any event, submitted that even if Form A did not provide for the handwritten words to be inserted at that point, the inclusion of them did not result in invalidity. Ms Chapman described the handwritten words as a “definition section” as opposed to a grant of authority to persons specified only by membership of the TSS. The judge had clearly wanted the warrants to be more precise in terms of identification and there was no ambiguity. Ms Chapman submitted that the words applied to the next part of the warrant which authorised members of the TSS to enter and also that part of the warrant that authorised Crouch, members of the TSS and other named police officers to use.
66 The second complaint relates to the fact that each of these warrants is addressed “To Peter Andrew Crouch, a member of the South Australia Police”. Mr Peek submitted that although the warrant was addressed to Crouch (who is also the applicant), the judge had purported to make a grant of power to RC and four other police officers as the form of the warrant reads “… AUTHORISE [“you” which appears in Form A is omitted] Acting Senior Sergeant [RC] and any four other police officers from the TSS acting under the applicant’s control and direction, to enter upon the premises situated at [address] for the purpose of installing, maintaining or using or recovering the listening devices without permission first being sought or demand first being made”. This was described as a radical departure from the required form which meant that RC was authorised to enter alone and without the supervision of Crouch, the applicant.
67 Thirdly, although the warrant was addressed to Crouch, the form of the warrant did not authorise Crouch to enter the premises. Instead, the authority to enter was bestowed upon RC and others, despite the fact that under the warrant Crouch was required to exercise control and direction.
68 Mr Peek submitted that the phrase “acting under the applicant’s control and direction” might in those circumstances have been interpreted as envisaging some form of presence and control by Crouch. Although he might be nearby at the time of entry he would not actually be able to enter on the property. He submitted that such an arrangement would be both contrary to the required form and also to the requirements of the Act: R v Bunting and Wagner (No 4) (supra).
69 Ms Chapman disputed each of these matters. She submitted that the plain interpretation of the warrant was that all officers who entered were required to be under control and direction of Crouch despite the fact that no authority was given to him to enter. There was no invalidity arising as a result of the warrant being addressed to Crouch but authorising others to enter.
70 The fourth matter relates to the form in which the warrants were drafted. The following words appearing in Form A were deleted from the warrants presented to the judge:
* by the following measures
* by means though appropriate in the circumstances
In lieu thereof the warrant presented to the judge simply read:
… by means thought appropriate in the circumstances.
71 Mr Peek submitted that the deletion of the phrase “by the following measures” and as an alternative the use of the phrase “by means thought appropriate in the circumstances” was a significant departure from the required form. The presence of these words in Form A served to bring to the attention of the judge the need to consider whether there should be any restrictions on measures used to gain access to the specified premises. It was also suggested that the provision of the words “may be effected by means thought appropriate in the circumstances” amounted to an invalid abnegation of the duty of the judge under s 6(7)(b)(ii) LD Act to specify the means by which entry might be effected. Although that section uses the word “may”, the defence contended that the word “may” in that particular section had a mandatory meaning.
72 Ms Chapman, however, disputed the need for the warrant strictly to follow Form A. In support of this contention, she referred to the comments of McHugh J in Ousley (supra) (at 116) wherein he said:
Although it is desirable for the prescribed form of warrant issued under the Act to contain no more and no less than the matters specified by the Act as required on the face of the warrant, the additional inclusion of one of two jurisdictional prerequisites does not extend or depart from s 4A of the Act. It cannot alter the Act and cannot rationally lead to the conclusion that it will mislead a Judge of the Supreme Court to misunderstand his or her jurisdiction. To adopt such a proposition would be to endorse the view that a Supreme Court Judge issues a warrant not in accordance with the substantive law but only in accordance with the procedural form on which he or she marks the stamp of approval.
73 Ms Chapman referred to the provisions of s 6(7)(b) of the LD Act which provided that if the warrant authorised entry, the warrant may specify certain matters and submitted that in this case those matters had been addressed.
74 In regard to Mr Peek’s contention that there was an invalid abnegation of the duty of the judge to specify the means of entry and his submission as to the mandatory nature of the word “may” in s 6(7)(b)(ii), Ms Chapman referred to s 34 Acts Interpretation Act 1915 (SA). That provides that where “may” is used in conferring a power, it applies whether that power may be exercised, or not, at discretion. She submitted that the legislature in s 6(7) of the LD Act had clearly delineated which matters may or must be addressed on the face of the warrants. The warrants in this case specifically gave the police officers authority to enter without the consent of the occupier. Having obtained that authority, the police were not trespassers. There was no requirement that the methods of entry be dictated in order for that authority to be valid.
75 Ms Chapman further argued that there might well be operational reasons for a judge to decide that, having given an authority to enter without the need to obtain the occupier’s consent, measures by which entry might be gained would be those “thought appropriate in the circumstances”.
76 The fifth matter raised by Mr Peek relates to the list of how many members of the TSS might be chosen. On the second page of the warrant, it states “AND I FURTHER AUTHORISE YOU and members of the South Australia Police, namely members of the Technical Support Section, and [ 24 named persons]”. It was suggested that this appeared to authorise the applicant, plus all members of the technical support section, together with the 24 persons named, to use the devices which were the subject of the application. The form was therefore unclear. Ms Chapman argued, however, that there was no lack of clarity arising out of this matter which would give rise to invalidity. The warrants clearly provided that where TSS was mentioned, the officers could only be selected from the five officers whose names had earlier been set out by the judge.
77 The sixth matter raised by the defence relates to the asserted lack of clarity on the second page of the warrants as to whom the words “acting under your control and direction” referred, ie whether they applied to members of the South Australia Police, namely members of the TSS, or only to the list of 24 people named.
78 Ms Chapman submitted, however, that there was no lack of clarity arising from this. A judge may specify conditions relating to the use of a listening device: s 6(7)(a). In this case the judge had specified that the use be under the control and direction of Crouch and, as a matter of plain interpretation, all users had to be under the control and direction of Crouch.
79 The seventh criticism of the form of the warrant relates to the conditions of use which on the warrant are completely omitted. This was said to be a critical element as Form A was so composed to ensure that the issue of conditions of use were to be specifically addressed and to be brought to the attention of the judge at the outset. This was of particular importance given the provisions of s 6(6)(b)(i) to (iv) of the LD Act which required the judge to be satisfied that the issue of the warrant was justified, having regard to the matters set out therein which includes the extent to which the privacy of any person was likely to be interfered with by the use of the device.
80 Ms Chapman submitted, however, that the LD Act provided that the judge may specify conditions relating to the use of a listening device, s 6(7)(a). In these warrants the judge had specified a condition relating to the use of the listening device. He had required the users to be under the control and direction of Crouch. There was nothing about the chosen format which made the warrants invalid.
81 Finally, Mr Peek submitted there was a separate jurisdictional error as the recital referred to an “an application … for a warrant authorising the use of two listening devices”. The application, however, did not seek entry on to the specified premises as required by s 6(3)(d). Mr Peek submitted that to aver one thing and not another led to the inference that the latter was not part of initial application. That was therefore another matter resulting in invalidity of the warrant.
82 Ms Chapman argued, however, that the reference in the warrants to an application for “a warrant authorising the use of two listening devices” did not indicate jurisdictional error. Ms Chapman referred to the referable part in Form A which states “WHEREAS application … for a warrant authorising the issue of a listening device”[24].
[24] Refer Footnote 1 (supra) as to the error in the wording of the form as reproduced in Lunn.
83 Ms Chapman submitted that these warrants more precisely accorded with the Act. She submitted that the Act provided for warrants authorising the use of listening devices attached to which might be the further power to enter. The application was to use listening devices. The application was not to use listening devices and to enter premises. The application to use may, however, also contain a request for entry: s 6(3)(d). A warrant if it authorises entry may say certain things about entry: s 6(7)(b).
84 Ms Chapman submitted, therefore, that all that was required to invoke jurisdiction was an application to use. There was no lack of jurisdiction on the face of the warrants by reason of there being no mention of entry in recital. It did not follow that reference to “an application … to use” meant that there was no request to enter.
85 The defence have sought by subpoena, the production of the original application. It may well be that the application refers to both use and entry. There is, however, an objection to the production of that document and that has not yet been resolved.
The warrants issued on 13 January 2003:
86 Warrants (Exhibit VDJT036 and VDJT037) were issued on 13 January 2003. The L&SD Act came into force on 1 January 2003. The regulations made thereunder did not include any form for a warrant. It was therefore submitted by the defence that the validity of the listening device warrants issued between 1 January 2003 until October 2003 (when the regulations were disallowed), was to be determined by a consideration of the common law and the content of the L&SD Act. Mr Peek submitted that the warrants issued on 13 January 2003 were invalid on a number of grounds:
(1) Invalidity due to the failure to state essential matters:
87 First, there was no reference in the warrant as to whether the DPP was satisfied that the warrant was reasonably required and had approved the making of an application by written instrument: s 6(2)(a) L&SD Act.
88 Secondly, there was no mention in the warrant as to whether there had been a personal appearance before the judge on the hearing of the application: s 6(3) L&SD Act .
89 Thirdly, there was no reference in the warrant as to whether the application had been verified by affidavit: s 6(4) of the L&SD Act.
90 Fourthly, there was no reference as to whether the matters referred to in s 6(6)(a) to (f) L&SD Act (which included the approval of the DPP) were taken into account by the judge when deciding whether there were reasonable grounds for the issue of the warrants. I should, however, mention that although the written approval of the DPP is not mentioned on the face of the warrant, in the course of the argument, it was produced and admitted as Exhibit VDJT042.
91 Section 6(7)(a) identifies those matters which must be specified in the warrant, namely, the person authorised to exercise the powers conferred by the warrant (s 6(7)(a)(i)), the type of device to be used (s 6(7)(a)(ii)), and the period for which the warrant is in force (s 6(7)(a)(i)(3)). All of those matters are specified in the two warrants issued on 13 January 2003.
92 Although the warrants do not expressly refer to the judge’s satisfaction with the matters set out in s 6(6)(a) to (f), and the recital of satisfaction simply states “AND WHEREAS I, [the name of the judge] a Judge of the Supreme Court of South Australia, am satisfied that there are reasonable grounds for issuing the warrant upon the conditions and for the purposes hereinafter appearing”, Ms Chapman pointed out that this was in identical terms the recital of satisfaction considered in Gillard and Preston (supra) which had been accepted as sufficient.
122 Mr Peek sought to distinguish Ousley, however, on the basis that it was not disputed that in Ousley the warrants were in the prescribed form and that the subject of the attack in Ousley was the power to make the Supreme Court Rules. Mr Peek submitted that the argument being addressed by McHugh J in the above passage was that the insertion of some requirements might divert the attention of the judge from considering the mandatory requirements which were laid down in the listening device legislation itself. In this case, however, the mandatory requirements were laid down by the Rules of Court not the Act as r 4 specifically stated that a warrant shall be in Form A. Deviation from that form connoted a failure of the judge to comply with a mandatory requirement and negated the presumption of regularity.
123 I reject this submission. There was no form for a warrant prescribed in the LD Act, nor was there any provision in that Act for regulations to be made under it. The L&SD Act also did not prescribe any particular form for a warrant. The only form for a warrant that was ever in existence was Form A. That was contained in the LD Rules which were made pursuant to the Supreme Court Act. There is nothing in the LD Act or L&SD Act, however, which requires compliance with the Supreme Court Rules. I agree with Mr Kourakis’ submission that even if one were to read into the LD Act an implication that the Supreme Court would make its own rules and create a form for listening device warrants, it could not be extended to read into the LD Act that if there was the slightest difference between a warrant and the form created by the Supreme Court Rules, then the warrant was invalid. As Kirby J said in Ousley (at 148-149):
Any rule-making power may only be exercised for the purpose of carrying into effect the substantive provisions of the relevant Act. To the extent that a rule conflicts with, or derogates from, the Act, such a rule will be of no effect. It is not competent to the Executive Government or the judiciary in the making of subordinate legislation, such as the Rules, to act in a way that is inconsistent with a statute enacted by Parliament. Therefore, the essential argument presented by the appellant cannot be avoided. The Rules, and the form they authorise, cannot enjoy a validity which would conflict with the requirements of the Act to which they are ancillary.
In any case, the fact that the Rules authorising a form of warrant were duly made having, so far as they provided, the force of law, does not, as such, sustain the warrants in question as ‘warrants’ of the kind envisaged by Parliament when s 4A of the Act was enacted. It is to the Act, and what it provided, that the law attends in the case of a suggested defect in the exercise of a subordinate law-making power. From time to time mistakes occur. After this litigation commenced, the Rules, and the form, were amended to overcome, for the future, the point now being debated. The position would be different where the form was included in the legislation and thus had the authority of Parliament. A number of the problems present in this appeal would then be removed. But here, the form was not part of the Act nor even of regulations made under the Act. No extraneous or additional evidence was adduced to supplement the matters appearing on the face of the warrant. Even if the validity of the Rules, and of the form authorised by them is assumed, the question whether the resulting warrants were defective remains to be decided upon the appellant's challenge to their validity.
124 Although Gummow J (at 131) in Ousley mentioned the paradox of a warrant which complied with Form 7B not complying with the Act, whereas a warrant which set out the matters which the appellant contended, would not comply with the rules, Mr Kourakis pointed out, in my view correctly, that the paradox only arose in that case on account of the appellant’s submission that compliance with both the form and the Act might be necessary. The paradox does not arise if the rules are only used to determine validity or invalidity of a warrant where there is a provision in the relevant Act which allows that to occur.
125 Mr Kourakis’ submission as to this matter are summarised in his written outline in the following way:
13.The L[&]SD Act does not expressly require compliance with the Supreme Court Rules. The most that can be said is that it allows for the possibility that the Supreme Court might regulate applications made to it pursuant to s 6(1) and that it may make rules governing the form of any conditions and limitations it imposes. Applications might not be granted if there is non compliance but the validity of warrants that are granted would not be affected. However rules that unduly regulated the form of applications might be invalid for inconsistency with the L[&]SD Act.
14.No term can be implied into the L[&]SD Act that makes the validity of the warrant dependent on the rules of the Supreme Court. Rules inconsistent with the L[&]SD Act could have no such result. Moreover the implication of such a term would amount to judicial legislation. Parliament can not (sic) have intended that trivial non compliance of any Rule made by the Supreme Court would amount to invalidity. In what terms then is the implication to be expressed. Is invalidity to result only from ‘substantial’ or ‘serious’ or ‘fundamental’ non compliance or is some other test to be implied?
126 In my opinion, it is necessary to look to the provisions of the LD Act to determine whether the warrant complied with it. Unless there is a requirement in the Act that the form of the warrant comply with the form prescribed by the rules, the provision in the rules that the warrant shall be in Form A, can only be regarded as directory. Section 6(7) of the LD Act states that a warrant may specify conditions as to use: s 6(7)(c); may restrict hours of entry: s 6(7)(b)(i); may provide for entry to be made without permission: s 6(7)(b)(ii); may specify measures by which entry may be gained: s 6(7)(b)(ii); but must specify the period for which it is in force, that not being a period of greater than 90 days: s 6(7)(c).
127 Although not all of those provisions were mandatory, the judge in this case specified conditions of entry and use by requiring the relevant members of the police force to be under the control and direction of Crouch. He provided that entry could be made without permission and permitted entry at any time and by means thought appropriate. I do not consider the latter provision amounted to an invalid abnegation of the duty of the judge. It would be impractical, and probably impossible, for the judge or the proposed users of the warrant to anticipate in advance of entry exactly all the steps which might need to be taken in order to effect entry. As Martin J said in Bunting v Wagner (No 4)(supra) in the passage cited earlier, a police officer might require the assistance of a civilian, such as a locksmith, to gain entry, and the police would not be able to predict when the opportunity would arise to make a clandestine entry so a degree of flexibility was obviously required. In this case, the judge clearly considered that the means of entry was appropriately left to the discretion of the named police who were authorised to enter. This, however, highlights the importance of clearly stating in the warrant the names of the officers designated to carry out that function.
128 The fifth complaint relates to a suggested ambiguity as to how many members of the TSS were to be chosen. I do not think there is any substance in this complaint. On page 1, the judge clearly specified those members of the TSS who were authorised to enter the premises. The authority to Crouch “and members of the South Australian police, namely members of the Technical Support Section” on page 2 clearly refers to the same group of five officers. In other words, the only members of the TSS who were authorised to do anything under the warrant were those identified by the judge in his handwriting on page 1.
129 The sixth matter relates to an asserted lack of clarity on page 2 of the warrants. It is suggested that it is unclear as to whether the words “acting under your control and direction” on page 2 applied to members of the South Australian police, namely members of the TSS, or only to the list of 24 named people. In my opinion, there is no ambiguity arising out of this. The authority is directed to “you”, that is, Crouch and members of the South Australia police, namely members of the TSS and the named persons acting under [Crouch’s] control and direction. Accordingly, it was intended that all the users be under the control and direction of Crouch.
130 The seventh matter relates to the omission of any conditions on page 2 of the warrant. The judge earlier, however, set out two conditions with respect to the issue of the warrant, namely, that the members of the TSS be selected from the persons named by him and secondly that all the persons involved be under the control and direction of Crouch. The fact that no further conditions relating to use are included on page 2, in my view, is of no moment and I do not think that it can be inferred from the lack of any further conditions that the judge did not apply his mind to the question of whether any further conditions were required.
131 The final matter raised with respect to these two warrants relates to the asserted jurisdictional error based on the fact that the application for the warrants was limited to an authority to use the devices and that no application was made for entry. The LD Act, however, is concerned with use. It is entitled “An Act to regulate the use of listening devices and for other purposes. Section 6 is headed “Warrants authorising use of listening devices”. Sub-paragraph 6(7)(b) says “If it authorises entry” and then sets out matters that may be included for that purpose. I therefore agree with the submissions put by Ms Chapman with respect to this matter. There is no lack of jurisdiction on the face of the warrants by reason of there being no mention of entry in the recital.
132 In my opinion, any variation between the form of the warrant and Form A in this case is of no substance, as all of the matters required to be stated by the LD Act are included in the warrant. In my opinion, the warrants are valid on their face.
133 I now turn to the question of the validity of the warrants issued on 13 January 2003. This was, in fact, the day on which the earlier warrants were due to expire and is therefore one of the grounds relied upon by the defence to show that these warrants were renewals of those issued earlier.
134 The first complaint relating to these warrants related to an asserted failure to state essential matters, namely:
(1)the reference to the DPP approval;
(2)whether there had been a personal appearance before the judge;
(3)whether the application was verified by affidavit; and
(4)whether the matters set out in s 6(6)(a)-(f) of the L&SD Act had been taken into account.
135 The written approval of the DPP under the L&SD Act was a pre-condition to the issue of the warrant and goes to jurisdiction but, as I have already mentioned, that matter was resolved in the course of argument by the production of Exhibit VDJT042. In my opinion, it was unnecessary for the judge to refer to that approval in the warrant. Nor was it necessary for the warrant to mention that there had been a personal appearance before the judge. Nevertheless, the recital in the warrant states that “an application has been made to me by Peter Andrew Crouch”, from which I infer that Crouch did in fact appear in person before the judge on the hearing of the application.
136 I do not think it was necessary for there to be any mention of the verifying affidavit in the warrant, nor I do not think there is a flaw arising out of the fact that the judge did not expressly state his satisfaction with all of the matters set out in s 6(6)(a)-(f). I agree with the Crown that the comments of the Court of Criminal Appeal in Gillard and Preston (supra) apply to this aspect of the matter. The recital by the judge in this case that he was satisfied that there were reasonable grounds for issuing the warrant meant that he was satisfied as to the matters set out in those particular subsections.
137 The second complaint made with respect to these two warrants relates to the failure to comply with s 6(7) of the L&SD Act. That provides (inter alia) that a warrant must specify the person authorised to exercise the powers conferred by the warrant. This warrant was addressed to Pippos, although the application was made by Crouch and gave authority to others to use/enter.
138 In my opinion, the form of the warrant is not in a breach of s 6(7). The section provides that a warrant must specify the person authorised to exercise the powers conferred by the warrant. That does mean that one person is obliged to have the overall responsibility as is asserted by Mr Peek. As has been made clear, the use of these devices is a substantial invasion of the right to privacy. It is therefore essential that there be a clearly defined audit trail so that there is no dispute as to what exactly was done pursuant to the warrant. The warrant holder must take responsibility for all the steps taken pursuant to the warrant, but he/she is entitled to have “such assistance as is necessary”. I do not consider that it is necessary for each officer whose entry would be reasonably required to apply for an individual warrant. I agree with the comments of Martin J In Bunting and Wagner (No 4), that this would not result in any better protection to the occupier whose rights were being infringed. In fact, in my view, it could create a situation of greater uncertainty to do so.
139 In this case, Pippos was the person who was given the responsibility for actions taken under the warrant as the warrant was addressed to him. In my opinion, it is not necessary that the person given the responsibility for actions taken under the warrant be the applicant, although often that will be the case. For example, the earlier warrants were addressed to Crouch who was also the applicant. As Mr Kourakis pointed out, if Parliament had intended that the person authorised should always be the applicant, the section could simply have read “must specify the powers conferred upon the applicant by the warrant”.
140 The reference to “you” in the authority to use and enter on page 1 of the warrant clearly refers to Pippos as the authority which is restricted to use on page 2, which sets out 55 named persons and includes Crouch as one of them. The L&SD Act envisages that the person to exercise powers under the warrant might be someone other than the applicant as one person, even with assistance, is unlikely to be able effectively to exercise all of the powers necessary to install and use a listening device over a period as long as 90 days. In this case, the fact that the warrant was addressed to Pippos, although the application was made by Crouch, suggests that there might have been a specific problem, such as Crouch’s absence on leave or other duties, which precluded him from exercising the necessary authority under the warrant throughout the whole of the time it was in force. Accordingly, Pippos was designated to be the warrant holder, being the person who had the overall responsibility for actions taken under the warrant throughout the period that it was in force, although others were authorised to carry out functions pursuant to the warrant.
141 The third ground upon which these two warrants are said to be invalid relates to uncertainty and inconsistency. There was clearly a lack of care in drafting these two warrants which is quite unsatisfactory. Warrants of this kind involve a substantial incursion into the liberty of a subject and it is therefore of crucial importance that the rights and duties specified by a warrant be clearly delineated. I, however, reject the complaint which suggests an ambiguity with respect to the number of listening devices. It is obvious that the two listening devices referred to on page 2 are the same as those referred to on page 1, as the application only ever related to two such devices. The persons named on page 1, however, were authorised to enter and to use the devices, whereas, the warrant restricted those persons named on page 2 to use alone.
142 I agree with Mr Peek’s submission that the Act required the applicant personally to appear before the judge and verify the application by affidavit. The form of the warrant indicates, however, that Crouch did attend, and I have already referred to the fact that the warrant stated the application “has been made to me by Peter Andrew Crouch”. The fact that the warrant was addressed to Pippos does not negate that aspect of the matter.
143 At this point I should refer to the submissions concerning the warrants being renewals of those issued in November 2002. Regulation 10(2) of the L&SD Act regulations provides that the application for a renewal of a warrant should be as set out in Form 2 of the schedule, whereas regulation 10(1) provides that the form of the application for a warrant would be in accordance with Form 1. In neither case, however, was any form prescribed for the actual warrant.
144 The lack of care in the drafting of the documents in this case, includes the fact that the heading of the warrant refers to the LD Act although the amended L&SD Act came into effect shortly before the hearing of the application and was the applicable legislation. The fact that the application for the fresh warrants were made on the day that the others were due to expire, supports an inference that these warrants were in fact renewals. If they were renewals, that required the application to be made by Crouch, and for the judge to be alert to the fact that they were renewals. Mr Tothill argued that as the warrants had been issued to Pippos, who was not involved in the earlier warrants, this meant that the judge had fallen into jurisdictional error.
145 I have had some difficulty in resolving the question of whether these were applications for new warrants, or whether they were renewals. In the end result, in the circumstances of this case, I believe that it probably does not matter which they were, as Crouch was the applicant on both occasions. In any event, s 6(7)(c) of the L&SD Act provides that the provisions of the Act will apply in relation to a renewal in the same way as if it were an application for the issue of a warrant.
146 I note, however, that the application form in Form 2 of the Schedule for a renewal of a warrant is mainly set out in the past tense. For example, para 3 says that the warrant conferred the following powers, and para 4 says “The powers conferred by the warrant were authorised to be exercised by the following persons …”. This suggests to me that the legislature contemplated that a renewal of a warrant under the Act would be no more than an extension of an earlier warrant and therefore in substantially the same terms. In this case although the premises were the same and some of the persons authorised were the same, there was a much larger number of people authorised to use the listening devices, some of whom were different from those earlier named and there was a different warrant holder. On balance I think that these were fresh warrants and not renewals.
147 The incorrect reference to the LD Act on the face of the warrant is a matter of concern, although I note that the front and back sheets of the warrant referred to the correct legislation. The approval of the DPP had, however, been obtained as was required by the amended Act, and the judge included in the warrants all of the matters which were specifically required to be mentioned under the amending legislation. In addition, the form of the new warrants closely mirrored the wording of the amended Act as opposed to the earlier Act, as the judge referred to the fact that he was satisfied that “there are reasonable grounds for issuing the warrant …”, whereas the earlier Act required the judge to be “satisfied that the issue of the warrant was justified …”
148 In my opinion, the presumption as to regularity has not been rebutted. As I have already mentioned, neither the LD Act nor the L&SD Act contained a provision which expressly required compliance with the Supreme Court Rules. No term can be implied into either Act to make the validity of any of the warrants dependent upon the rules of the Supreme Court. It could not have been intended that a trivial or minor non-compliance with the form set out in a rule of the Supreme Court would result in the invalidity of a warrant. As with the earlier warrants, I am satisfied that these two warrants are valid on their face and reject the submissions as to invalidity. As a result, on 29 April 2005, I ruled accordingly.
(Gaz 12/12/02 p 4593)
(Gaz 16/10/03 p 3827)
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