State of Tasmania v Thompson

[2022] TASSC 53

[2022] TASSC 53

COURT:	SUPREME COURT OF TASMANIA
CITATION:	State of Tasmania v Thompson [2022] TASSC 53
PARTIES:	STATE OF TASMANIA
v
THOMPSON, Jeffrey Ian
FILE NO:	374/2017
DELIVERED ON:	28 March 2022
DELIVERED AT:	Hobart
HEARING DATE:	28 March 2022
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases - Surveillance warrant issued by Magistrate - Whether evidence obtained in

contravention of an Australian law – Warrant did not correctly specify the alleged offence in respect

of which it was issued – Incorrect sub-section referenced - Warrant found to be invalid on its face.

Acts Interpretation Act 1931.
Criminal Code Act 1924, s297.
Evidence Act 2001, s 138.
Listening Devices Act 1991, ss 5, 11, 12(1)(a), 12(b)(ii).

Police Powers (Surveillance Devices) Act 2006.

New South Wales v Corbett [2007] 230 CLR 606 – not followed.

Smethurst v Commissioner of Police [2020] HCA 14, 280 A Crim R 356, 94 ALJR 502, 376 ALR 575 –

followed.

Aust. Digest Criminal Law [2686]

REPRESENTATION:

Counsel:

Crown:	L Mason SC, E Bill
Defence:	D Edwardson QC, F Merenda

Solicitors:

Crown:	Director of Public Prosecutions
Defence:	Munro and Associsates

Judgment Number:	[2022] TASSC 53
Number of paragraphs:	24

Serial No 53/2022 File No 374/2017

STATE OF TASMANIA v JEFFREY IAN THOMPSON

EDITED ORAL REASONS FOR JUDGMENT BRETT J
28 MARCH 2022

1 The argument which calls for a ruling relates to an objection to evidence of the conversation relevant to count 1 that was in a meeting room in Risdon Prison. The objection is based on s 138 of the Evidence Act 2001, in particular that the evidence obtained by the surveillance device, was obtained in contravention of an Australian law.

2 Section 138 involves a two-step process. The first step is to determine whether the assertion of illegality is made out. The onus of establishing this is on the party making the assertion; in this case, the defence. An affirmative determination in that regard enlivens a discretion, which is guided by s 138(3). It is the statutory version of the Bunning v Cross discretion.

3             Accordingly, the first question is whether I am satisfied that the evidence of the conversation between the accused and Mr Gleeson was obtained in contravention of an Australian law. The basis of the objection is that the warrant which was relied on by the police to authorise the recording of the conversation, and which was purportedly issued by an issuing officer, Magistrate Webster, pursuant to

the Police Powers (Surveillance Devices) Act 2006 (the “Surveillance Devices Act”) is invalid on its

face. If the warrant is invalid, then the recording of that conversation between Mr Gleeson and Mr Thompson, clearly a private conversation, will be in contravention, at the very least, of s 5 of the Listening Devices Act 1991. That section precludes the use of a listening device to record and listen to a private conversation to which the person is not a party. In this case, it is obvious that the person who made the recording, a member of Tasmania police, was not a party to the conversation. Under s 5(2), an exception to the application of that prohibition is the use of a surveillance device pursuant to a warrant granted under the Surveillance Devices Act. Clearly, for the use of the surveillance device to record the conversation to be lawful, the relevant warrant must be valid.

4             In this case, the objection is based on the invalidity of the warrant on its face. I am not concerned here with a collateral challenge to the authority of the magistrate to issue the warrant. The practical impact of that distinction is that I do not go behind the decisions purportedly made by the magistrate as recorded in the warrant. What I am concerned with is the terms of the warrant.

5             The mere fact that the warrant may be issued in extremely broad terms, and I think this warrant was issued in that way, see in particular paragraph 6, does not of itself cause or give rise to invalidity, provided that it is authorised by and compliant with the provisions of the Act under which it is issued. I think that the warrant, if it was otherwise valid and authorised by the legislation, was capable of authorising the use of a surveillance device in visitor meeting rooms utilised by Stephen John Gleeson at the Risdon Prison Complex. It is limited, of course, by the time frame of 90 days.

6 Although the magistrate could have made the warrant subject to further conditions, there is nothing in it that indicates that he did so. As I have already noted, the mere fact of the breadth of the authorisation does not of itself cause invalidity, although it may provide some relevant context when considering the validity of the warrant on its face. However, I think it is beyond doubt that a breach of the provision relied on by the defence in this case, s12 of the Surveillance Devices Act, does go to the question of validity.

7 Section 12 specifies what a surveillance device warrant must contain. "Must", of course, is a word that is giving meaning by the Acts Interpretation Act 1931. Having regard to the use of that word, it is mandatory that the warrant contain the matters specified in s 12. There are reasons of high principle which support that legislative requirement. They are discussed in a number of the cases to which I have been referred. But it is obvious, I think, in any event, that the legislative purpose is to balance the rights of the individual against the interests of the public in the investigation of offences.

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8             Warrants of this nature authorise intrusion into the rights of the individual. If that is to occur, then it must only happen in accordance with the law. I do not think anyone is disputing that. It is obvious and I do not think for the purposes of this ruling that I need to go into those issues of high principle in any further detail.

9 The provisions which the defence asserts have not been complied with in the terms of the warrant, and therefore are said to give rise to invalidity, are s 12(1)(a) and s 12(b)(ii). There was also reference made to cl 6 of the warrant, but I have already dealt with that. In the circumstances of this case, I do not regard the breadth of cl 6 as giving rise to invalidity. Similarly, I am not satisfied that the arguments that are being made in relation to s 12(1)(a) identify invalidity. What s 12(1)(a) requires is that the magistrate state that he is satisfied of the matters referred to in s 11(1) and that he must have regard to the matters in s 11(2). That does not require, in my view, that the warrant go any further than making the general statements, which is what is specified in the pro forma warrant at s 4(a).

10 It is also not necessary that the magistrate set out the detail of the reasonable grounds for suspicion or belief founding the application for the warrant. It is sufficient that the magistrate state that he is satisfied that there are such reasonable grounds. That is what is required by the Surveillance Devices Act, and, in my view, that is adequate. I also make the point that s 4(b) and 4(c) would not seem in the circumstances of this case to have any relevance, but I do not think the fact that they have not been struck out of the warrant results in its invalidity.

11 The requirement in s 12(1)(b)(ii), is that the warrant specify the alleged offence in respect of which it is issued. Now that relatively short, and simple statement, expresses a requirement that, in my view, is of great significance in relation to the validity of a warrant. It is a matter that has been the subject of considerable judicial consideration.

12           Many of the cases that I have been referred to, and the two that I am about to discuss, have been decided in a slightly different context to this one, that is, they have been cases concerned with whether a court, on review should set aside a warrant. They were not concerned with the question of validity in the context of a criminal trial. However, that distinction does not, in my view, affect the relevance of the principles discussed in those cases. The said cases were all concerned with the same issue that arises in this case, whether the warrant is valid on its face. There are two cases of significance to this question, both decisions of the High Court. Both are cases dealing with search warrants, but again, this is not, in my view, a distinction of significance. In New South Wales v Corbett [2007] 230 CLR 606, the Court was concerned with a statement in an application for a

warrant, because the actual warrant could not be located, and was not available for the Court’s

consideration. In the joint decision of Callinan and Brennan JJ, with whom Gleeson CJ and Gummow J agreed on this point, their Honours' discussed the issue that arises in this case, that is, whether the mis-description of the offence to which the warrant purports to relate results in invalidity on the face of the warrant. It emerges from the judgement that a critical feature of any warrant, going to its validity, is that the ambit of the authorisation of conduct granted by it, be constrained and confined by reference to the crime or the offence that is the subject of the investigation to which it relates. That is critical because it is that matter more than anything else on the face of a warrant that has the capacity to constrain its ambit and prevent it from being regarded as a general warrant. These provisions are all concerned with that outcome, in particular that warrants which authorise intrusion into and interference with private rights do not do so on a general basis.

13           That principle is discussed at some length in the cases. In Corbett, the relevant application referred to the offence in these terms, "possession of firearm contrary to", a specified section in a named statute, but those references were incorrect because the legislation had been superseded. In other words, the provision which was said to have created the offence was no longer in existence, and hence that offence, if described by reference to the particular section, no longer existed. It did, however, exist in a similar form under other legislation, albeit not under the legislation specified in the application.

14           In dealing with this question, Callinan and Brennan JJ referred to Beneficial Finance Corporation v Commissioner of Australia Federal Police [1991] 31 FCA 523 and in particular to this passage from that case:

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"The authorities make it clear that the statement of the offence in a search warrant need not be made with the precision of an indictment. That would be impossible and indeed to attempt it would be irrational bearing in mind the stage of the investigation at which a search warrant may issue. The purpose of the statement of the offence in the warrant is not to define the issues for trial but to set bounds to the area of search which the execution of the warrant will involve, as part of an investigation into a suspected crime. The appropriate contrast is not with the sort of error which might vitiate an indictment but with the failure to focus a statutory suspicion and belief upon any particular crime with the result that a condition of the issue of the warrant is not fulfilled and it purports to be a general warrant of the kind a law decisively rejected in the eighteenth century."

15   At 103, concerning the mis-description of the offence, their Honours' said:

"One such decision Parker v Churchill, concerned warrants containing a description of an offence which included an incorrect reference to a section in a statute. It was contended at first instance that the warrants in question did not disclose any offence known to the law. On appeal to the Full Court of the Federal Court, Jackson J with

whom Barnes CJ and Lockhart J agreed on this point said that unless “reference to an

incorrect section of legislation has the result that the warrant does not specify any offence or makes a warrant ambiguous so that it would not be possible to tell what offence is referred to, such a reference does not invalidate an otherwise intelligible warrant."

16           Their Honours' went on to find that the application did state an intelligible offence, namely possession of a firearm, an offence well-known in New South Wales for decades, and that the reference to the incorrect section was mere surplusage.

17           In the more recent High Court decision of Smethurst v Commissioner of Police [2020] HCA 14, 280 A Crim R 356, 94 ALJR 502, 376 ALR 575, again a case concerned with the validity of a search warrant, in the context of a determination as to whether the warrant should be set aside as a matter of administrative law, the High Court took that theme a little further. In the judgment of Kiefel CJ, Bell and Keane JJ, their Honours' noted the finding of the Court in Corbett that the description of the offence in the circumstances of that case was adequate and that the reference to the repealed Act was mere surplusage, but went on to say this:

"On the other hand, when a statute provides for the commission of a somewhat indeterminate number of offences, a general reference to a section may not be sufficient. No verbal formula is possible. Rather, in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search and to assess the sufficiency of what is provided from the point of view of those reading it."

18           Earlier in the joint decision, their Honours confirmed that it is not necessary that the warrant state the offence with the same precision and specificity as is required of an indictment, and that the test of sufficient particularity is an objective one which has regard to the content of the warrant.

19           A matter of distinction between the warrant in the case before me and the search warrants that were the subject of the cases discussed, is that the warrant in this case would not be shown to the subject, Mr Gleeson. The purpose of the warrant was to covertly surveille his conversations. However, it is still important that anyone looking at the warrant be able to understand the ambit of the authority provided by it by reference to the offence to which it relates. Firstly, this needs to be clear to the officer who has applied for the warrant, and it is not relevant that that officer may be very familiar with the investigation and has an understanding of the breadth of the investigation. The reason why

the officer is seeking the warrant is because he needs to obtain the magistrate’s authority and the

magistrate is perfectly entitled to constrain the investigation if he thinks it appropriate, by limiting the ambit of the authority provided by the warrant, in a way that the officer may not agree with or even understand. It is that officer who will be primarily responsible for executing the warrant, and therefore the ambit of the authority provided by the warrant must be clear from its terms.

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20           I reiterate that, provided the warrant is within the terms of the legislation, there is no reason why it cannot be extremely wide, but the person reading the warrant needs to be able to understand that. Further, there are other people who might need to understand the ambit of the authority from an operational point of view. They include those acting on the instructions of the person charged with executing the warrant. It may be that there is a senior supervising officer who wants to ensure that the person is acting in accordance with the terms of the warrant and would need to be able to determine that from reviewing the terms of the warrant itself. That is the context in which I need to make this assessment.

21 The warrant in question described the offence as conspiracy contrary to s 297(2). Obviously, the crime of conspiracy can be of extremely wide ambit. I think it is a reasonable assumption that knowledge that the offence is conspiracy would in fact be a reference to s 297 of the Criminal Code. I do not think it would be necessary to specify that that is the case. It may well be that a warrant in appropriate circumstances which describes a crime as conspiracy and then authorises the investigation of that by surveilling conversations with the particular person in a particular place, is sufficiently described to determine the ambit of the investigation and what the warrant authorises.

22 The problem in this case, however, is that conspiracy under s 297 can be committed in a number of ways. It is always an agreement between at least two people, but it can be to perform certain types of conduct, which are defined in the subparagraphs contained in s 297(1). That includes to commit any crime, but it also includes other forms of conduct. Conspiracy, I think importantly, is not defined simply and exhaustively as any person who conspires with another to commit any crime or offence or to break the law. The Criminal Code specifies various ways in which conspiracy can be committed by agreement between at least two people.

23 The trouble in this case, I think, is the one I discussed with counsel during argument and that is that on its face, the warrant purports to confine conspiracy by reference to a provision. If it had simply said "By reference to s 297", I think it is highly arguable that it would not be objectionable. It would simply be saying that it authorises surveillance of conversations that refer to any agreement that can fall within the ambit of that section. The problem here is that there has been an apparent attempt to narrow down the ambit of the crime under investigation, but it is completely impossible for a reader of the warrant to identify the relevant subparagraph of s 297(1) defining the offence, having regard to the reference to s 297(2).

24 Section 297(2) does not refer to a crime. It says, "Married persons are not criminally responsible for any conspiracy between themselves only". The section has no relevance to the specification of an offence. A person reading it might say, "Well the magistrate, the issuing officer, was obviously referring to something in s 297." However, s 297 can refer to various specific forms of conspiracy, and it is clear that the issuing officer had in mind to refer to something, possibly one of those specific forms of conspiracy. It is impossible for me, or for anybody reading the warrant, to determine which offence is being referred to, and I am satisfied that that does lead to invalidity. It does not comply with the requirement that the alleged offence in respect of which the warrant was issued be specified so as to comply with the test of sufficiency that is referred to in par 28 of the judgment of Kiefel CJ, Bell and Keane JJ in Smethurst. I am satisfied that the warrant is invalid on its face for that reason and I make that determination for the purposes of the inquiry under s 138.