R v Tracey (No 4) - [2005] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v TRACEY & ORS (NO 4)
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 to exclude evidence obtained through the use of listening devices - conditions as to control and direction by applicant included in warrant - whether installation and use in accordance with warrant - whether use for 24 hours a day constituted invasion of privacy of occupiers of premises - whether warrants required to limit places at which and times during which conversations could be recorded - whether audit sufficient - no evidence of unauthorised use of devices during period warrants in force - finding that care and control exercised in accordance with terms of warrant.
Listenting Devices Act 1972 (SA) ss 4, 6(6)(b)(i); Listening and Surveillance Devices Act 1972 (SA) s 4, referred to.

R v TRACEY & ORS (NO 4)
[2005] SASC 358
Voir Dire Ruling with respect to Control and Direction:

This ruling should be read in conjunction with Ruling No 3. In that ruling I determined that the two warrants issued by a judge of the Supreme Court on 15 November 2002 and the two warrants issued by another judge of the Supreme Court on 13 January 2003 were valid on their face. This ruling is, however, only concerned with the two warrants issued on 15 November 2002, namely Warrant No L0309 (Exhibit VDJT034) which relates to the premises situated at 19 Wilterna Crescent, Smithfield in the State of South Australia which were occupied by John Tracey, and warrant No L0310 (Exhibit VDJT035) which relates to the premises situated at 114 Main North Road, Evanston in the State of South Australia which were occupied by Joshua Considine.
Each of those warrants was addressed to Peter Andrew Crouch, a member of the South Australian Police. Crouch was also the applicant with respect to each of them. Each warrant authorised police officers from the Technical Support Section (TSS) “acting under the applicant’s control and direction” to enter the respective premises for the purpose of installing, maintaining, using or recovering listening devices without permission first being sought or demand first being made.
There was a further provision in each warrant which authorised 24 named persons to use the said listening devices under the control and direction of Crouch. The issue which now arises for determination is whether the warrants were executed in accordance with their terms, that is, whether the installation and later use were carried out under Crouch’s control and direction.
The only witness to give evidence on the voir dire was Peter Crouch. In addition, the following Exhibits were tendered for use with respect to this voir dire:
VDJT034 Warrant No L0309 relating to 19 Wilterna Crescent, Smithfield.
VDJT035Warrant No L0310 which relates to 114 Main North Road, Evanston.
VDPCO97 Sealed affidavit of Dennis Edmonds, sworn on 7 June 2005.
VDPO98Three authorities dated 20 November 2002 for [named policemen] to enter premises at 114 Main North Road, Evanston.
VDPO99Log sheet pages 1, 42, 154, 198 and 280 relating to warrant No L0310 with respect to listening device installed at 114 Main North Road, Evanston.
VDP100Three authorities dated 9 December 2002 to [named persons] for entry into premises at 19 Wilterna Crescent, Smithfield.
VDP101Log sheet pages 43 and 131 with respect to warrant No L0309 relating to 19 Wilterna Crescent, Smithfield.
VDJC102Bundle of documents entitled “Duties and responsibilities of case officer”, relating to warrant No L0309.
VDJC103Bundle of documents with respect to warrant No L0309 and relating to 19 Wilterna Crescent, Smithfield.
VDJC104Bundle of documents relating to warrant No L0310 relating to 114 Main North Road, Evanston.
VDP105Documents setting out duties and responsibilities of case officer with respect to warrant No L0310, that is, to 114 Main North Road, Evanston.
VDP106Statement of agreed facts dated 9 June 2005.
VDJC107Schedule of monitors for listening device warrants L0309 and L0310.
VDJC108Schedules of audits carried out by Crouch.
VDP109Prosecution chronology as to audit checks.
Background
Pursuant to warrant No L0310 (Exhibit VDJTO35) listing devices were installed at 114 Main North Road, Evanston, that is, the home of Joshua Considine, on 20 November 2002. They were eventually removed on 16 January 2003.
Pursuant to Warrant L0309 (Exhibit VDJTO34) listening devices were installed at 19 Wilterna Crescent, Smithfield, that is, the home of John Tracey, on 9 December 2002. Those devices were eventually removed on 28 January 2003.
A listening post was established at the Elizabeth Police station to monitor and record the information obtained by means of the listening devices. Crouch gave evidence as to these matters and was subject to detailed cross-examination with respect to them. At the conclusion of Crouch’s evidence, it was conceded that Crouch had exercised the required control and direction with respect to the installation of the devices at each address. The defence maintained, however, that Crouch failed to exercise in any meaningful and effective way the necessary direction and control with respect to the use of the devices at the listening post. There was, therefore, a breach of s 4 of the Listening Devices Act 1972 (SA) (LD Act) and Listening and Surveillance Devices Act 1972 (SA) (L&SD Act) and the evidence obtained therefrom was inadmissible.
Despite the concession made by the defence as to control and direction at the time of installation of the listening devices, it is useful to have regard to all of the actions taken by Crouch subsequent to the issue of the warrants in order to determine whether he provided the necessary control and direction with respect to the use of the listening devices.
Evidence of Peter Crouch:
Crouch has been a police officer since 1975 and currently holds the rank of Detective Senior Sergeant. His substantive position is officer in charge of criminal confiscation which is part of the Investigation Support Branch (ISB). There is an operations inspector in charge of the ISB. From time to time, Crouch has worked as an operations inspector and that was his role for much of the time that these listening devices were in use.
At the relevant time, Detective Senior Sergeant Pippos was the officer in charge of the TSS. TSS provides assistance with all technical means to assist in investigations and this includes listening devices. At the time of these events the officer in charge of Telecommunications Interception Section (TIS) was Senior Sergeant Robert Reichman. TIS control the recording, auditing, and managing of listening device material.
Crouch described the role of operations inspector of the ISB as (Tr 1687):
Quite a broad role: administratively making sure everything was done correctly in relation to police policy; occupational health, safety and welfare of all of the persons directly below you in all the different sections of the branch, and to make sure, if we are coming down to the specific listening device, making sure a listening device is applied for, controlled and handled correctly.
Crouch said that when an application was to be made for a warrant to install a listening device the operations inspector would assist with the preparation of the proper application on the required form. Crouch said that when he acted in that role he would discuss the matter with the case officer who wished to make an application on behalf of the investigation and he would look at the preparation of the affidavit with respect to the application.
Crouch said that in discussion with the officer in charge of the TIS he would look at the LD Act to make sure that it was reasonable to apply for a listening device. TIS oversaw the proper preparation of the application file and also obtained advice from the Crown. Consultation was also had with TSS as to the feasibility of completing the task as there were occasions on which the installation of a listening device in particular premises might not be possible and it would therefore be pointless to apply for a warrant. Crouch said that in his role as operations inspector, once an application was made, he would attend before the judge in chambers in order to answer any questions that might arise with respect to the application. If the application was granted he, as operations inspector, would notify those who were to attend to the installation that a warrant had been issued. Thereafter the planning for the installation would proceed.
Crouch said that the operations inspector would then attend upon the installation and thereafter ensure the proper control of the use of the listening device. A similar role was performed with respect to the extraction of the device.
Crouch said that he was involved in the preparation of the application for warrant No L0310 which related to Joshua Considine’s home at Evanston, and he attended before the Supreme Court judge on 15 November 2002 with respect to it. He subsequently advised Pippos and Reichman that the warrant had been granted so that the planning for the installation could be put in place. Crouch said that the listening devices were normally under the control of the officer in charge of TIS within his secure area and would not normally be used and monitored at a remote site. This was a different situation, however, as the listening post was established at the Elizabeth Police Station. This meant that he had to make sure that everything was being handled correctly there.
Warrant L0310:
Crouch said that the listening devices were installed at the Evanston address pursuant to warrant L0310 on 20 November 2002. An installation was prepared by a member of the TSS and was checked by Crouch. Crouch was then present at a briefing which took place at about 10.40 am on that day, which included instructions from the acting officer in charge of TSS. Crouch said his role at the briefing was (Tr 1693):
A.To make sure everything was done properly. If I was not satisfied then I would have interrupted the briefing and made sure that certain points were made.
Q.When you say made sure everything was done properly, what sort of things are you looking at.
A.That the plan was sound tactically, that the safety and the welfare of the people involved, especially the members of the TSS who would be doing the installation, was catered for adequately.
Crouch was aware of the people who were authorised by the warrant to enter the premises for the purposes of installation and at the briefing he required each of them to sign an authority (Exhibit VDP098). Crouch confirmed that no officers other than those who signed the authority and were authorised to enter by the warrant, entered the premises that day. Crouch did not enter the premises himself but he said he attended in the vicinity of the premises at the time of the installation and was able to see the front of the premises from his vantage point. During the installation, Crouch maintained an information flow by way of mobile phone and/or radio contact between himself and the officers in the premises as to the various stages they had reached in relation to the installation. Simultaneously, Crouch was in contact with other police officers who were not on the premises but who were performing other roles.
There does not appear to have been any problem with respect to the installation, and following it, Crouch returned to the Elizabeth police station. He said he made a check of the monitoring equipment which had been established in a lockable secure room in the area of the Elizabeth CIB. He said that in order to satisfy himself about the appropriateness of the location he went to the room in which the equipment was located. He saw how it was being installed and the way it was being set up for people to use and to listen. He said that instructions would have been given to the case officer and a running sheet commenced. A notice was placed on the outside of the door that the only people allowed to use the room were those who had been named on the warrant. Crouch said that the running sheets were required to note various items of interest from the product received by the listening device and also to note the people using the actual running sheet, the changing of personnel and relevant dates and times. Crouch said he also spoke to the officer in charge of the Elizabeth CIB who at the time was Detective Chief Inspector Brian Smith. He discussed with Smith the installation in the room, the requirements of the warrants, and the limitations on people permitted to use the room. He asked Smith to ensure that information was known to everyone in the station.
Crouch said that subsequent to 20 November 2002, he attended the listening post room to make checks at various times. He said on most occasions he checked the running sheet and initialled it at the time of his visit. Crouch said he was concerned about the listening post being remote from normal operations of the branch and was concerned that everything was operating correctly. He said that when he attended he made sure that no person was using the listening post who was not recorded on the running sheet, and also made sure that the listening post was actually working.
In the course of evidence, log sheets were produced which had been initialled by Crouch (Exhibit VDP099). Those documents show that Crouch was present at the listening post between about midday and 1.30 pm on 20 November 2002, being the occasion when he attended after the devices had been installed. Crouch also attended on 26 November 2002 on what he described as “like a spot audit” (Tr 1699). He said on that occasion he attended unannounced, and spoke to the persons at the listening post. He made sure that the persons present were named on the warrant, and that they understood the obligations in relation to the use of the listening device. He also believed that he would have checked the earlier log sheets to see if anything unusual might have occurred. He noted that all appeared to be correct on that date.
According to the initialled log sheets Crouch’s next attendance was on 9 December 2002. Crouch noted all was correct on that occasion. He attended again on 13 December 2002 and also on 30 December 2002. Crouch said he also spoke to the officer in charge at Elizabeth on one or two other occasions and was satisfied that everything was correct.
Crouch was also present when the listening devices were removed from 114 Main North Road on 16 January 2003. Crouch said he wanted to make sure that everything was done properly in accordance with the warrant. Crouch did not enter the premises but, as was the case with the installation, supervised the operation from a convenient vantage point. He could not now recall who entered the premises to extract the devices, but was satisfied at the relevant time that no persons other than those named in the warrant had attended for that purpose.
Warrant L0309:
Warrant L0309 was issued on the same occasion as warrant L0310 but related to the installation of the listening device at 19 Wilterna Crescent, Smithfield. Crouch was also acting operations inspector in relation to this warrant and attended in the vicinity of the premises when these devices were installed on 9 December 2002. Crouch said there was also a briefing in relation to this warrant and he made sure that everyone who had a role to play in the operation knew exactly what it was that he was required to do. As was the case with warrant L0310, Crouch arranged for authorities to be signed by each of the persons authorised to enter the premises pursuant to the warrant (Exhibit VDP100). Crouch confirmed that no-one else entered the premises on that day.
Crouch said that from where he was positioned he could see the front of the premises. He kept in contact by mobile phone and radio with the three officers who entered the premises. There were other officers involved in the operation who did not enter the premises and he similarly kept in touch with them by mobile phone or radio. Crouch said that the installation went according to plan and the relevant officers exited the premises at 12.50 pm.
The listening post with respect to these devices was also established at the Elizabeth CIB. Crouch said that the persons authorised to use the listening device were the same in each warrant and that was a matter that he took into account in establishing the listening post with respect to the Smithfield property at the same place as that for the Evanston property.
Crouch said that he made checks at the listening post in relation to this warrant in the same way as he had with the other warrant. He looked at the log sheet and initialled the column with respect to his visit.
The log sheet with respect to warrant L0309 (Exhibit VDP101) shows that Crouch attended the listening post on 13 December 2002 between 10.30 am and 10.40 am and noted that everything appeared to be correct. He again attended on 30 December 2002 at 10.24 and everything was correct.
Crouch as operations inspector was also involved in the removal of the listening devices from 19 Wilterna Crescent. There was an aborted attempt to remove them on 16 January 2003 as entry could not be gained. He said, however, that no person other than those named in the warrant attempted to enter on that occasion. Crouch also attended when the devices were finally removed from 19 Wilterna Crescent on 28 January 2003. At that time another officer was acting as operations inspector, but Crouch said that he attended at the extraction as he was the police officer named on the warrant. Crouch said he was able to see the premises and, as he had done previously, kept in contact with officers who entered. He said only those named in the warrant entered the premises, and as far as he could tell everything went according to plan.
The recording and storage of listening device tapes:
Crouch gave evidence of a general kind about the method of recording information derived from the use of listening devices. He said that either magnetic disc or magnetic tape was used. Once the listening devices were removed from the premises he did not have any role to play concerning the tapes or discs, other than to make sure that proper management of them occurred through the officer in charge of the TIS. He also said that whilst the devices were in place at each of the premises he did not have any hands on role as to how the tapes were to be kept. That was the role of the officer in charge of TIS who managed the recording, auditing and reporting of mandatory requirements in relation to the devices. He said that whilst the listening posts were up and running, instructions were given to a nominated case officer as to the chronological order of labelling tapes and discs and the storage and management of them until such time as they were returned to TIS.
Cross examination of Crouch:
When cross-examined by Mr Tothill for Considine, Crouch agreed that when a listening post was established, in most cases, TIS provided the overall management of what happened at the listening post. They issued folders with instructions to case officers which outlined their duties and responsibilities. These documents are contained in Exhibit VDJT102. As far as Crouch was aware, this bundle of documents was provided to Polacek whom he believed to be the case officer with respect to both warrants.

In the course of Crouch’s cross-examination there was some confusion about what logs had been kept as there appeared to be two sets of logs (contained within Exhibit VDP103) when in fact there should only have been one. This was subsequently resolved by an agreed fact (Exhibit VDP106) that:
3.The Exhibit VDP103 contains two separate logs. One log is a ‘live log’ which was used by police officers to note matters as they were listening live’. The other log is a ‘review log’ (T 1756 line 25). This log was used by police officers to make notes –
(1) when they were not listening ‘live’ but were listening to tapes which had been recording overnight (whilst no-one was listening ‘live’), and
(2) when they were reviewing tapes containing any matters which had been flagged by police officers whilst listening ‘live’.
The entries in March (T1726 line 1) were part of that review process. Both logs were kept inside the listening post room for the duration of the warrants.
Crouch did not have any set procedure for what he did when attending at a listening post and therefore could not say exactly what he did on each occasion. He agreed, however, that he had not given specific instructions to persons carrying out duties at the listening post. He said, however, that he met those at the post in the course of each visit and would have spoken to them about their presence and the fact that they should not be coming in and out if they were not named in the warrant. He agreed, however, that he had not assembled all of the persons named in the warrant for any briefing or discussion prior to the operation of the listening post.
Crouch said that the department had developed a number of procedural and administrative instructions to police officers on how to deal with listening device products and devices generally (Exhibit VDJC102) and he expected the relevant police officers to comply with those instructions.
Crouch conceded that it was possible for a person not named on the warrant to enter the listening post room although he would not expect investigators to do so unless there was an emergency of some sort. He considered there was no embargo upon the sharing of the information obtained by reason of the listening device. He agreed, however, that the log should contain particulars of visits by persons other than those authorised, including himself, in accordance with para 4.4 of the operational procedures document contained in Exhibit VDJC102.
Exhibit VDP106 (inter alia) contains agreed facts as to those who monitored the devices and provides as follows:
1. The Elizabeth CIB Journal and the Major Crime Journal contain entries by police officers in relation to their daily duties for the period of the [named judge] warrants – 21 November 2002 to 13 January 2003.
All references in those Journals to the use of the listening devices (manning of the listening post) during that period are summarised in the attached schedule marked ‘A’. [This schedule sets out the list of Elizabeth CIB officers, and Major Crime Investigation Unit officers who manned the Elizabeth listening device post.]
Some daily entries in the journals are made in the name of a single police officer. Some daily entries are made jointly in the name of two police officers who were partnered together for the day. As set out in the schedule marked ‘A’, names of 5 police officers [named] who were not authorised to use the listening devices appear in joint entries for daily duties with officers who were authorised to use the listening devices. Those 5 police officers, however, did not use the listening devices. Attached and marked ‘B’ are statements from each of those 5 police officers. Only their partners, who were authorised to do so, used the listening devices.
2. The names of police officers who made entries in the logs (VDP103, VDP104) which were kept in the Listening Post at the Elizabeth Police Station under the [named judge] warrants have been checked. All the entries were made by police officers authorised to use the listening devices pursuant to the [named judge] warrants.
Crouch agreed that on 16 January 2003 when the listening device was extracted from 114 Main North Road, Evanston, he did not obtain signatures on the authority forms as he had done at the time of installation. He believed that may have been due to the change in legislation. He clearly remembered, however, speaking to the people who extracted the device.
Crouch said that he did not give advice to the technicians as to where a device should be located in the respective premises, nor give them any instructions with respect to privacy issues. He was aware that listening to private conversations of individuals without their consent was a significant invasion of their rights. He said that the department had developed practices to protect and minimise any unwanted recordings of matters that might be irrelevant and/or private.
It was put to Crouch that he had taken a different approach with respect to his role concerning the entry on to private premises at the time of installation of the device as compared to his supervision at the listening post, and Crouch responded (Tr 1764):
The installation of the listening device – you personally outlined that to me this morning – is a serious matter and infringement of the rights and going into the premises is a dangerous method, it requires my attendance. I was satisfied at the listening post that people using that device through the delegation, through TIS and the case officer, would know their obligations, plus I visited on several occasions to make sure that took place.
The thrust of Mr Peek’s cross-examination related to the lack of direction given by Crouch to those using the listening post to minimise the intrusion into private matters which were not relevant to the matter being investigated by police. Crouch said that prior to installation he had no idea in this case where the device would be installed but said it was not usual practice to put listening devices in places such as bedrooms. Crouch acknowledged that he had not given any personal direction to those using the post as to what should be recorded. He said the normal situation was that the tapes recorded continuously for 24 hours a day. He did not give any instructions to the persons listening to the tapes as to what they should do when non-relevant conversations and activities were heard. He said that on his visits to the post he was told whether there were conversations being recorded which were of use. He agreed that his interest was in the relevance and use of information gleaned from the tapes for the purposes of the investigation.
It was put to Crouch (Tr 1773-1774) that he was unaware of whether “matters going to privacy, matters going to the overhearing and recording of sexual activity, matters going to the noting of relevant conversations, … in fact, [were] addressed by the case officer and directions given thereto”. Crouch agreed that he personally had no knowledge of what the case officer told the monitors, nor did he give the case officer directions or tell him anything in particular as that was a delegated role which he expected the case officer to fulfil.
Submissions:
The defence submitted that the audits carried out by Crouch were insufficient to satisfy the provision in the warrants as to control and direction. The evidence showed that that the police department had developed practices whereby a listening post was normally established by TIS, and a case officer was then appointed by the officer in charge of TIS in consultation, and instructions were then given to the case officer who was not appointed by the warrant holder. There was, therefore, a systematic delegation inconsistent with the terms of the warrant, which had been followed in this case because it was an established practice.
It was argued that in the context of this warrant, Crouch had the responsibility to give directions personally to all the people named in the warrant, and he was required to supervise and control personally all those persons as to what they did.
Although Crouch said that he might have spoken to those persons in the room when he attended, Mr Tothill pointed out that there were 22 people named on the warrant. That left a significant number of people operating the device who had not been spoken to by Crouch, and there was no evidence that they had been given instructions by anyone. Nor was there any evidence from Polacek as the case officer as to whether he had been told or understood his responsibilities or whether he had passed any of that information on to anyone else, as he was required to do.
Exhibit VDJC108 is a schedule prepared by the defence which sets out particulars of audits carried out by Crouch. This includes a reference to the audio log page interval. This is relied upon by the defence to show that Crouch did very little to check what was happening with respect to what was going on in the listening post. He had not, therefore, brought into account in any meaningful way his required control or direction. He was assuming that things were being done because he assumed that things were told to the officers by somebody else but he never took it upon himself to satisfy himself as to those matters except for the person’s name in the log at the time of his attendance.
Mr Tothill also referred to a problem with the log with reference to the date of the first entry in Exhibit VDJC103 which is dated 9 November 2002, although the activity itself did not commence until 9 December 2002. In summary, Mr Tothill submitted that Crouch’s audit was insufficient, that powers had been delegated and the case officer appointed by someone other than him. Crouch failed to satisfy himself about the matters that he should have been satisfied about and he simply assumed matters had been done correctly. He had not exercised in a meaningful, effective way the required direction and control over those using the listening post in the terms of the warrant.
Mr Peek in his submissions referred inter alia to s 6(6)(b)(i) of the LD Act which required the judge to take into account “the extent to which the privacy of any person would be likely to be interfered with by the use of a listening device pursuant to a warrant”. Mr Peek argued that Crouch’s focus had been on the investigation of the matter, without taking into account matters pertaining to citizens and that he had failed to give any consideration to questions of privacy of the individual, such as Tracey’s partner, Bianca Johnson, who also occupied the premises at Wilterna Crescent.
Mr Peek suggested that as the listening device was required to be used under Crouch’s control and direction, there should have been some direction from Crouch as to matters which were relevant for recording as opposed to those which were irrelevant or on occasions on which private matters were taking place. In support of this submission, Mr Peek referred to procedures developed in the United States which he said imposed stringent limitations on the extent to which tapes could be kept rolling, and the view in that country that it was an anathema for there to be a recording for 24 hours per day.
Conclusion
In my opinion the phrase “control and direction” should be given its plain ordinary meaning which in the The Shorter Oxford Dictionary[1] is defined as follows:
‘control’The fact of controlling, or of checking and directing action; domination, command, sway.
‘direction’The action or function of directing, aiming, guiding, instructing or administering; conduct; instruction; management, administration.
[1] (1974) Vol 1 pp 416 and 556
Crouch is clearly a very experienced police officer. I am satisfied that he was well aware of the serious invasion of privacy constituted by the installation of a listening device in a person’s home and the need to ensure that no persons used those devices who were not authorised by the warrant. This is evident from the careful approach he took on the occasions of the installation and extraction of each set of listening devices from the homes of both Considine and Tracey. Crouch also attended at the Elizabeth police station on the day that the listening post was established to ensure that everyone present at that time was aware of his/her responsibilities.
I accept Crouch’s evidence that on the occasions on which he attended at the listening post thereafter he checked the log and was able to satisfy himself as to the appropriate users. In addition, he had a number of conversations with the officer in charge of the Elizabeth police station to ensure that everything was in order. The agreed fact in Exhibit VDP106 establishes that there was no monitoring of the devices by anyone who was not authorised so to do.
Crouch ensured that the listening device post was properly established. I do not consider that it was necessary for him to be at the listening post at all times and, in any event, it would have been impractical for that to take place. I do not consider that it was necessary for Crouch to speak personally to all of the people named in the warrant, as the arrangements put in place with respect to the listening post were sufficient to ensure that they were aware of their responsibilities. Crouch spoke to the officer in charge of the Elizabeth police station to ensure that everyone there was aware of their respective duties and responsibilities. I think it would have been better for him to have spoken personally to Polacek as the case officer, to ensure that he was fully aware of his obligations, but the protocols developed by the department set out in some detail the responsibilities and duties of the case officer, and Crouch was entitled to rely on the fact that they were provided to the case officer as part of the instruction to him through the TIS.
There was an audit kept of those who listened to the conversations being recorded by listening devices. There was no unauthorised use of the devices. The only suggested irregularity with respect to their use would appear to be the complaint that tapes were kept running for 24 hours continuously and that Crouch had not given instructions to the police officers as to what should or should not be recorded. On the defence argument, that was a matter which constituted a major invasion of the privacy of the occupants of the home.
Crouch agreed that he did not give instructions as to what a monitor should do when non-relevant conversations or activities were taking place and agreed that he was solely interested in what could be gleaned from the tapes for the purposes of the investigation. That was the whole purpose of the installation of the listening devices.
Clearly, the installation of these listening devices for 24 hours a day in a private home constituted a major invasion of the privacy of the occupants of the home. That, however, was a matter which the judge issuing the warrant was required carefully to consider in determining whether a warrant should be issued to install such a device. If the judge had a concern as to the places in which the devices should or should not be installed, or the times during which conversations could or could not be recorded, it was open to him to impose further conditions to restrict the use of the listening devices.
I reject the submission that Crouch should have given some direction to the users to turn the tapes on or off depending on the relevance of what was being recorded. I consider the fact that the tapes were running continuously to be a matter afforded a degree of protection to those whose conversations were being monitored. I would be most concerned at a monitor using his/her discretion to record what he/she considered relevant as that could result in a failure to record exculpatory matters and might also lead to reliance by the prosecution on apparently inculpatory statements taken out of context.
Crouch could have attended at the listening post on more occasions than he did and I think he should have kept more detailed notes as to what he did and whom he saw when he attended. Nevertheless, I am satisfied that what he did was adequate. Crouch was aware of his duties and responsibilities under the warrant and proper procedures were put in place to ensure there was no unauthorised use of the devices throughout the period the respective warrants were in force. I am therefore satisfied that Crouch’s care and control was in accordance with the terms of the warrant and there was no irregularity with respect thereto which would render the evidence obtained therefrom inadmissible, nor which would require the discretionary exclusion of the evidence so obtained, and on 31 August 2005 I ruled accordingly.
Warrants L0311 (Exhibit VDJTO36) and L0312 (Exhibit VDJT034):
Although this ruling is concerned with warrants L0309 and L0310, for completeness I should mention an issue which arose with respect to warrants L0311 and L0312. Neither of these warrants contained a similar condition as to control and direction by Crouch, although Crouch was also involved in the preparation of the applications with respect to them. These two warrants were issued by another Supreme Court judge on 13 January 2003, and were issued to Pippos and not to Crouch. This is discussed at para [139] of Ruling No 3. An issue which remained unresolved at the time of my earlier ruling was whether Crouch, as the applicant, had personally attended upon the Supreme Court judge at the time the warrants were issued. Crouch confirmed, however, that he, as the applicant, had attended personally with a member of the Crown solicitor’s office before the Supreme Court judge on the hearing of the application which resulted in these warrants being issued, notwithstanding that Pippos was named as the warrant holder. On that basis, I was satisfied that there was no irregularity with respect to that aspect of the matter.