Reg v Swaffield- Pavic v The Queen - [1997] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 1996

B e t w e e n -
THE QUEEN
Appellant
and
JASON ROY SWAFFIELD
Respondent

Office of the Registry
Melbourne No M13 of 1997

B e t w e e n -
STEVEN FRANCIS PAVIC
Appellant
and
THE QUEEN
Respondent

BRENNAN CJ

TOOHEY J
GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 24 JUNE 1997, AT 11.46 AM

____________________________

MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR M.C. CHOWDHURY of counsel, for the appellant in the matter of Swaffield. (instructed by Director of Public Prosecutions (Queensland))

MR A.J. GLYNN, SC: May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the respondent in the matter of Swaffield.(instructed by Director, Legal Aid Office (Queensland)

MR D. GRACE, QC: If the Court pleases, I appear with my learned friend, MR O.P. HOLDENSON, for the appellant in the matter of Pavic. (instructed by The Office of David Grace QC)

BRENNAN CJ: Yes, Mr Grace. Is there any difficulty about hearing these matters together?

MR GRACE: Not that I foresee, your Honour.

BRENNAN CJ: Is there any agreement as to the order in which argument should be presented?

MR GRACE: That has not been discussed, your Honour.

BRENNAN CJ: It has not been?

MR GRACE: No.

BRENNAN CJ: Yes. Yes, Mr Morgan‑Payler?

MR W.H. MORGAN‑PAYLER, QC: If it please the Court, I appear with my learned friend, MR D.M. SALEK, for the respondent in the matter of Pavic. (instructed by Solicitor to the Director of Public Prosecutions (Victoria))

BRENNAN CJ: Yes. Well, there seems to be some appropriateness in calling upon the first appellant, that is, the Crown, in the case of Reg v Swaffield and, perhaps, following that by Mr Morgan‑Payler. Does that seem to be appropriate?

MR GRACE: Your Honour, Mr Morgan-Payler is in the matter of Pavic.

BRENNAN CJ: Yes, I know but if they are being heard together perhaps we should hear what is to be said on one side, then hear what is to be said on the other.

MR GRACE: That course, your Honour, would then seem to deprive the appellant in Pavic of the right of reply, and that would be a matter that perhaps I could seek leave in relation to, if it grows, at a later date.

BRENNAN CJ: I think that you can be given any right of reply if you need it but, after all, you would have had the opportunity of hearing what the Crown has to say, will you not?

MR GRACE: Yes.

BRENNAN CJ: Mr Byrne.

MR BYRNE: If your Honours please, the appeal in the matter of Reg v Jason Roy Swaffield is concerned, we submit, with the concept “the right to silence”. That is an expression which has been called, in…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Reg v Swaffield- Pavic v The Queen

Details

AGLC: Reg v Swaffield- Pavic v The Queen [1997] HCATrans 171
Case: [1997] HCATrans 171
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Swaffield and Pavic against their convictions for offences under the *Customs Act 1901* (Cth). The central dispute concerned the admissibility of evidence obtained through electronic surveillance, specifically the use of a listening device, and whether this constituted an unlawful search or seizure under the *Australian Constitution*.

The primary legal issue before the Court was whether the use of a listening device by Commonwealth officers, without a warrant, constituted an unlawful invasion of privacy and therefore rendered the evidence obtained inadmissible. This raised questions about the existence and scope of an implied right to privacy in the Australian Constitution, and whether such a right could be abrogated by Commonwealth legislation.

The Court, by majority, held that there is no implied right to privacy in the Australian Constitution that would render the use of listening devices unlawful in the absence of a warrant. Brennan CJ, Toohey and Gaudron JJ found that the *Customs Act* authorised the use of such devices, and that the common law did not prohibit their use in a manner that would render the evidence inadmissible. Kirby J, dissenting, argued for the recognition of an implied right to privacy, but acknowledged that Parliament could legislate to override such a right. Gummow J's reasoning focused on the specific provisions of the *Customs Act* and the absence of any constitutional prohibition.

The appeals were dismissed, with the convictions upheld.

Orders