R v Vickery

[1995] QCA 191

IN THE COURT OF APPEAL	[1995] QCA 191
SUPREME COURT OF QUEENSLAND

C.A. No. 71 of 1995.

Brisbane

[R v. Vickery]

T H E Q U E E N

v.

GARY JOHN VICKERY

Appellant

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Fitzgerald P.
Pincus J.A.

Moynihan J

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Judgment delivered 19/05/1995
Judgment of the Court

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APPEAL DISMISSED

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CATCHWORDS:	CRIMINAL LAW - conviction - perjury - admissibility of tape recorded conversation authorised by warrant issued under s. 25 Drugs Misuse Act 1986 - effect of technical breach of statutory provisions in obtaining warrant (obiter) - application of the Invasion of Privacy Act 1971 - extent to which installation and use of listening device to be carried out by person to whom authority given - use of assistants - conditions of warrant - authorised person to retain "such audio tapes and video tapes in his own possession as have no information or relevance to possible proceedings..." - meaning of "such audio tapes and video tapes" - whether sufficient that part of tape relevant.
Ss. 25, 29, 53(1) Drugs Misuse Act 1986 Ss. 4, 43, 46 Invasion of Privacy Act 1971
Counsel:	Mr T Rafter for the appellant. Mr B G Campbell for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.
Hearing date:	09/05/1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/05/1995

This is an appeal against a conviction for perjury. The prosecution evidence included a tape recording of a conversation which took place in an apartment at Cairns on 3 February 1994; it became Exhibit 4 at the trial.

The only ground mentioned in the notice of appeal is that the trial judge erred in the exercise of his discretion, in failing to exclude the tape from evidence. Reference to the record shows that when it was tendered no objection was taken; however, the absence of objection was due to the circumstance that in anticipation of its tender, objection had been made before evidence was called and then rejected.

The objection made at the trial was on two grounds, both of which related to conditions attached to a warrant issued by a Supreme Court judge under s. 25 of the Drugs Misuse Act 1986; it was under that warrant that the recording was made. In the course of making submissions with respect to the objection taken, counsel who appeared for the appellant below said that he was not criticising police actions in making the tape, but he submitted, as has been mentioned, that its conditions had been breached. The trial judge said in argument below that:

"There's no question, as far as I am concerned that the taking, the making of the recording, the recording of the conversation is in any way in breach of the conditions of the warrant or in breach of the Invasion of Privacy Act or the Drugs Misuse Act or anything like that. There is nothing objectionable to the taking of the tape."

Counsel who appeared for the appellant below did not, then or later, indicate that the judge had misunderstood the scope of the objection which was taken; it seems clearly to have been confined to the issue of compliance with certain conditions attached to the warrant, being numbers 2 and 3. But at the hearing before us, a question was raised as to the legality of the use of recording devices to obtain the relevant evidence and counsel was invited to argue that point. Counsel then contended that the recording had not been lawfully done and also argued that, as had been said below, the judge should have excluded evidence of the recording because of a breach of condition 2 of the relevant warrant; the argument based on condition 3 was rightly abandoned and nothing more need be said on that subject.

The warrant relied on by the respondent to justify the use of the relevant recorded material was granted under s. 25 of the Drugs Misuse Act 1986 ("the 1986 Act"), but it is convenient first to mention provisions of the Invasion of Privacy Act 1971 ("the 1971 Act"), which are referred to in s. 29 of the 1986 Act. Part 4 of the 1971 Act contains provisions dealing with listening devices, one of which, s. 46, reads in part:

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

There follow, in subs. (2), certain exceptions to the general proposition set out in subs. 1, but none of these is relevant. The expression "private conversation" is defined in s. 4 of the 1971 Act, as is the expression "listening device" and each definition is such as to encompass the facts in issue here; that is, the taped conversation relied on by the Crown was a "private conversation" within the meaning of the definition, and it came to the knowledge of the police as a result of the use of a "listening device" within the meaning of the relevant definition. Section 43 of the 1971 Act makes it an offence against that Act to record a private conversation, but s. 43(2) contains certain exclusions of which the relevant one is s. 43(2)(c)(i); that excludes the application of subs. (1) "to or in relation to the use of any listening device..." in circumstances there set out. It is unnecessary to set out the full terms of this provision and enough to say that it contemplates that there may be an authorisation of the use of listening devices.

The provisions which have been mentioned apply to the use of listening devices under the 1986 Act, but subject to s. 29 of that Act, which reads as follows:

" 29. (1) A listening device used for the interception of private conversations under the authority of an interception warrant or an emergency permit -

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

(b) for the purposes of the application of the provisions of Part 4 of the Invasion of Privacy Act 1971, other than those referred to in paragraph (a), shall not be taken to have been used in contravention of section 43 of that Act.

(2) For the purposes of this Part the terms 'listening device' and 'private conversations' have the same meanings, respectively, as are ascribed to those terms by section 4 of the Invasion of Privacy Act 1971. "

It will be noticed that the provisions of Part 4 of the 1971 Act other than those referred to in para. (a) of s. 29(1), just quoted, include s. 46, so that if it appears that a listening device has been used for the interception of private conversations under the authority of an interception warrant (under the 1986 Act), then evidence of that conversation may be given despite s. 46(1) of the 1971 Act.

The result is that, perhaps inconveniently, a court has no discretion to let in evidence of a private conversation obtained as a result of use of a listening device purporting to be, but not in fact, authorised by an interception warrant under the 1986 Act, even if the lack of authority arises from some purely technical circumstance. Were it not for the technique the legislature has adopted, namely to make s. 46 of the 1971 Act applicable to such interceptions, then evidence obtained in a way which was thought to be, but was not in truth, authorised by an interception warrant under the 1986 Act might, by an exercise of the court's discretion, be allowed in. The principal point taken before us, which as has been mentioned was not taken below, was one which raises no question of discretion.

Section 25 of the 1986 Act reads as follows:

" Upon application made by a police officer of or above the rank of inspector a Judge of the Supreme Court may order that there be issued an interception warrant authorizing a police officer to -

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

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

if the Judge is satisfied there are reasonable grounds for suspecting that a person has committed, is committing or is about to commit a crime defined in Part 2 for which an offender is liable to the punishment of imprisonment for 20 years. "

It was argued that the listening device in the present case was not used under the authority of an interception warrant, because the police officer to whom the warrant was directed did not himself put the relevant device in place, nor intercept private conversations, but left that work to others. The warrant gave authority to Chief Superintendent P R Galwey to put two listening devices and a visual surveillance device into a certain house and intercept and record private conversations by means of those devices. The evidence about these activities showed that they were done by police officers other than Mr Galwey.

That was sought to be justified on the basis that Mr Galwey had, according to a document placed before us, given written authority to certain named police officers to assist in either the installation and maintenance of the equipment or the monitoring and recording of the installed devices. Those named included those who according to the evidence below, did the installation, monitoring and recording; there was no evidence that Mr Galwey himself did any of these things.

The point is a narrow one and depends on the effect to be given to s. 53(1) of the 1986 Act which reads as follows:

" In any case in which a police officer is authorized by this Act to do any thing the police officer may use such assistants, animals, vehicles and equipment as the police officer considers necessary to do that thing. "

The use of the word "assistants" implies that those so designated play a subsidiary role, helping another who has responsibility for the main task. If the word "assistants" is given this operation in s. 53(1), then the result is that the officer authorised by the interception warrant must himself take a leading part in the physical activity engaged in under the warrant. Two considerations encourage the thought that this was not intended. One is that s. 53(1) in terms empowers the person authorised to use an assistant to do "that thing", which is a reference back to "any thing" which he or she has been authorised to do. This language does not imply that there are things which the person authorised may do only if they are done personally, rather than by assistants. The second consideration in favour of the respondent with respect to this point is that, particularly if there are numerous acts to be done under the warrant - for example, the placing of many recording devices - it would be difficult to characterise one or more of the things done as central to the operation and others as subsidiary.

We are therefore of the view that despite the use of the word "assistants" it was permissible for Mr Galwey to arrange to have all the physical activity involved in the interception carried out by persons authorised by him, doing none of it himself. The expression "he may use such assistants" implies that the person named in the warrant must be and remain in charge of the operation; there is no reason to think that Mr Galwey failed to adopt that role.

It follows, in our view, that assuming in favour of the appellant that the point is available, the objection that Mr Galwey had others do what he was authorised to do under the warrant cannot prevail. As has been explained above, this objection was not taken below and it may be that, in respects other than those relied on by counsel who appeared for the appellant at the trial, the validity of what was done under the warrant was implicitly conceded; if so, then the point based on the activity of the "assistants", which depends in part on evidence, is not one which the appellant may now take. But it is unnecessary, in view of the conclusion we have reached, to determine whether the appellant is precluded by the conduct of his case below from raising the matter; the point fails in any event.

The warrant was subject to conditions, of which numbers 2 and 6 should be

quoted.

" 2. Further that Chief Superintendent PATRICK ROBERT GALWEY also confirm that he will retain such audio tapes and video tapes in his own possession as have no information or relevance to possible proceedings under the Drugs Misuse Act 1986-1990 until termination of any such proceedings whereupon they will be destroyed or magnetically erased. "

" 6. This warrant relates to investigations into suspected offences against the Drugs Misuse Act 1986-1990. "

It was argued below, and the argument was pressed before us, that the judge should have excluded evidence of the tapes and their contents on the ground that their use involved a breach of condition 2.

Consideration of this point requires some discussion of the facts. In April 1993 police went to a house in Cairns and found there two snap lock bags containing amphetamines and one containing heroin. The appellant being found in, to put it simply, suspicious circumstances in the premises, gave evidence, when tried on a charge of possession of these drugs. On 3 February 1994 a conversation was recorded between the appellant and another person which seemed to involve an admission by the appellant that the evidence given at that trial, on a charge of possession of drugs, was false. It was that which led to a charge of perjury, the conviction on which is the subject of this appeal.

The point taken on behalf of the appellant is that use of the tapes at the trial for perjury showed that Mr Galwey did not retain the tapes in his own possession but let them be used for the purposes of the trial. A defect in the argument is that it does not appear that the tapes in question had "no information or relevance to possible proceedings under the Drugs Misuse Act 1986-1990". It was stated at the trial, without contradiction, that the tape which was there used was an edited version and that there were "drug matters dealt with" in the original tape. The expression "such audio tapes and video tapes" in condition 2 has no clear antecedent in the language of the warrant, but should be taken to refer to the tapes produced by the processes authorised by the warrant - i.e. by the placing of the devices and intercepting and recording of conversations. The argument that condition 2 has been breached would have some force if it were so phrased as to make the expression "such audio tapes and video tapes" refer not only to the tapes produced by the procedures authorised by the warrant, but to any extracts from them. That does not appear to be the proper interpretation of condition 2; its ordinary meaning surely is such that it covers only original tapes no part of which contains information or has relevance to proceedings of the kind mentioned.

It should be added that it was argued below that the tapes resulting from interception under the warrant could be used only in respect of offences alleged under the 1986 Act; that point was not pursued before us. It appears that, at least with respect to suspected drug offences (if not in relation to all interceptions), the rather rigid provisions of s. 46 of the 1971 Act are capable of producing consequences which are hard to defend. As was pointed out during the course of the hearing before us, an interception might produce evidence of an extremely serious offence, for example murder, which evidence could not be used because of a, perhaps purely technical, breach of the statutory provisions permitting interception. The courts should have at least some discretion to let in evidence of that kind, even if the statutory provisions have not been complied with in all respects.

The appeal is dismissed.