Tasmania v Thompson (No 2)
[2022] TASSC 55
•28 July 2022
[2022] TASSC 55
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v Thompson (No 2) [2022] TASSC 55 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| THOMPSON, Jeffrey Ian | |
| FILE NO: | 374/2017 |
| DELIVERED ON: | 28 July 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 21-23 June 2022 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Search warrant invalid on its face for failure to properly specify the alleged offence – Failure by police to fully specify privacy concerns arising from the surveillance devices to the Magistrate determining the issue of the warrant – Conversation covertly recorded between a lawyer and client of potentially privileged nature in prison meeting room – Failure to minimise risk of recording of unrelated private or privileged conversations – Protection of privacy
and public confidence in the administration of criminal justice outweighs desirability of admitting the
impugned evidence – Evidence not admitted.
Evidence Act 2001, s 138.
Listening Devices Act 1991, s 5(2)(ba).
Police Powers (Surveillance Devices) Act 2006, ss 8, 9, 11.
Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece; Director of Public
Prosecutions v Preece [2011] VSCA 355, 219 A Crim R 344, 33 VR 440, Em v R [2007] HCA 46;
(2007) 232 CLR 67, followed.
AB v CD; EF v CD [2018] HCA 58, Ahern v The Queen (1988) 165 CLR 87, 80 ALR 161, 34 A Crim R 175,
Kadir v The Queen [2020] HCA 1, 267 CLR 109, referred to.
Aust Dig Criminal Law [2684]
REPRESENTATION:
Counsel:
Appellant: L Mason SC, E Bill Respondent: D Edwardson QC, F Merenda,
Solicitors:
Appellant: Director of Public Prosecutions Respondent: Munro and Associates
| Judgment Number: | [2022] TASSC 55 |
| Number of paragraphs: | 38 |
Serial No 55/2022 File No 374/2017
STATE OF TASMANIA v JEFFREY IAN THOMPSON
| REASONS FOR RULING | BRETT J 28 July 2022 |
1 This ruling concerns the second step in the process required by s 138 of the Evidence Act to determine the defence objection to the admission of the recording of the conversation between the accused and Stephen Gleeson, conducted in a professional meeting room at Risdon Prison on 16 June 2017. The basis of the objection is that the covert recording of the conversation was in contravention of an Australian law, and that the proper application of s 138 of the Evidence Act requires that the evidence be excluded. That provision provides that evidence obtained in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way. My ruling of 28 March 2022 established that the recording of the conversation was obtained in contravention of an Australian law, in particular s 5 of the Listening Devices Act 1991. That conclusion followed from my determination that the warrant which had purportedly been issued by a magistrate under the Police Powers (Surveillance Devices) Act 2006, upon which police relied to authorise the recording of the conversation by surveillance device and which would have brought the recording within an exception to the application of s 5, is invalid on its face.
2 The effect of s 138 is that this evidence must be excluded unless I determine that "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way." This weighing exercise involves the exercise of a discretion, Em v The Queen [2007] HCA 46, 232 CLR 67 per Gummow and Hayne JJ at [95]. Section 138(3) sets out a number of matters which must be taken into account in exercising the discretion, but these are not exclusive. It is well-established that the party tendering the evidence, in this case the prosecution, has the onus of satisfying me that the evidence should be admitted having regard to the balancing exercise specified in the section: see Kadir v The Queen [2020] HCA 1, 267 CLR 109.
3 Without ignoring all of the mandatory considerations, those which are most relevant to the
determination of this case can be grouped into the following categories. Firstly, it will be necessary to consider the probative value of the evidence, its importance in the proceeding and the nature of the relevant offence (subpars (a), (b) and (c)). Secondly, the gravity of the contravention and whether it
was deliberate or reckless (subpars (d) and (e)) are important considerations in the circumstances of this case. The prosecution argument in this regard is that the police applied for the required warrant and honestly thought that they were acting lawfully pursuant to a valid warrant in recording the conversation. This was not a case of deliberate or reckless flouting of the law in order to obtain the relevant evidence. The defence position is that the invalidity of the warrant resulted in a private conversation between a lawyer and a person who was, for other purposes, his client being the subject of unlawful surveillance and recording by the police, and this is inherently serious, irrespective of
police efforts to obtain lawful authorisation. In any event, the error which resulted in the invalidity of the warrant, was a serious defect, and a product of neither police nor the issuing magistrate turning their mind to the correct offence. Further, it is submitted that the evidence presented to the magistrate did not justify the issue of a warrant under the relevant legislation. Finally, an issue arises on the evidence concerning the actual or potential intrusion into the privacy of other unrelated and privileged communications between lawyers and clients arising from the unlawful activity.
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The probative value of the evidence, its importance in the proceeding and the nature of the relevant offence
4 There is no question that the crimes charged in this case are serious. Further, the impugned evidence will have high probative value, particularly in respect of count 1, but also count 2. It represents a visual recording of the acts said to constitute count 1. Viewing it will enable the jury to make up its own mind about the accused's actions, and any intention which accompanied them.
5 For this reason, the evidence also has significant importance in the proceedings. However, it is not, as is sometimes the case in matters such as this, the only evidence upon which the prosecution case rests. The conduct alleged against the accused in respect of this meeting is that he, by words and actions, indicated to Mr Gleeson the photograph on a photo board that he wanted him to identify. Mr Gleeson, in pre-recorded evidence has given direct testimony that the accused "pointed to one of the pictures" prior to the identification, and that this influenced him in arriving at the identification. Of course, this does not in itself establish an intention to pervert justice at the time of committing the alleged act, that is, influencing the identification. The prosecution case in this regard is circumstantial. A significant feature of the circumstantial case is the draft affidavit which is the subject of count 2. The affidavit, as formulated in its draft form, simply asserts that Mr Gleeson identified the photograph and says nothing about any act by the accused to point out or otherwise influence Mr Gleeson's selection of the relevant photograph. The prosecution will ask the jury to infer the requisite intent from the combined effect of this and other evidence, including the involvement of the accused in the preparation of the application for leave to appeal.
6 The importance of the evidence, therefore, it seems to me is to corroborate Mr Gleeson's evidence about the actions of the accused at the time of the identification. If Gleeson's evidence about this is not accepted beyond reasonable doubt by the jury, then the prosecution case on both counts falls away. It is reasonable to take into account that there may be issues around Gleeson's credibility and reliability, not least of which is that he may be categorised as a person criminally concerned in the relevant crimes. I accept that the prosecution case will be stronger with this evidence than without it. However, even with the evidence, it must be said that the prosecution case is not an overwhelming one. It will still be necessary for the jury to infer from all of the evidence that the only rational explanation for all of the circumstances is that the accused committed the acts relevant to counts 1 and 2 with an intention to pervert the course of justice.
The gravity of the contravention
7 The starting point of this consideration is that the intentional covert recording of a private conversation between a lawyer and a witness in a professional meeting room at the prison necessarily involved a significant intrusion into the privacy and potential privilege of that conversation and, accordingly, if not lawfully authorised, represented a grave contravention of the law by police. In the absence of any attempt by the police to obtain lawful authorisation, then there could be no question that the contravention would fall at the most serious end of the spectrum described by the Victorian Court of Appeal in Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece; Director of Public Prosecutions v Preece [2011] VSCA 355, 219 A Crim R 344, 33 VR 440:
"At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct. Cases such as Ridgeway exemplify this category of impropriety. There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread."
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8 In this case, I am satisfied that the police made a genuine attempt to obtain the relevant lawful authorisation and, believed, and were entitled to believe, that the warrant had been validly issued before they recorded the conversation. As I have already determined, the failure to properly specify the crime by reference to the correct section of the Criminal Code constituted a serious defect which resulted in the invalidity of the warrant, but I am satisfied that this occurred because of carelessness and did not amount to deliberate or even reckless conduct. It is clear also that the issuing magistrate did not pay sufficient attention to this question. I am satisfied that while demonstrating a degree of carelessness on the part of both the police and the magistrate, the mistake was inadvertent.
9 Defence counsel submits that the deficiencies in the issuing process go well beyond the question of the identification of the offence. It is suggested that I should conclude that "the most likely scenario is that this magistrate did not read anything". It is further submitted that the material provided by the police did not objectively justify the issue of the warrant, and that this is a fundamental consideration in exercising the discretion under s 138. The prosecution submits that this is not a relevant consideration and that I should have regard only to the conduct of the police when assessing the gravity of the contravention.
10 I agree that the question of whether the affidavit material was objectively sufficient to support the magistrate's decision to issue the warrant may be a relevant consideration. It probably does not properly fall under the question of the gravity of the impropriety, but it is relevant to the closely related issue specified by subpar (h), the difficulty of obtaining the evidence without contravention. If on the material presented to the magistrate, a warrant could not reasonably have been issued, and hence the conversation could not have been lawfully recorded, then this would be a strong factor supporting exclusion. I agree with the defence that this is so, irrespective of the apparent attitude taken by the magistrate. Having regard to the actual unlawfulness of the recording, it is a matter for me to determine whether the conversation could have been lawfully recorded had a valid warrant been issued. On the other hand, a conclusion that the magistrate's decision to issue the warrant was a reasonable one having regard to the evidence presented to him, would be a factor supporting the admission of the evidence. Accordingly, it is appropriate to consider the sufficiency of the material.
11 Defence counsel submitted that, in this context, the failure of the prosecution to call the magistrate to give evidence on the voir dire was an important, if not fatal, flaw in the prosecution's case. I disagree with this. The question of whether the warrant could have been issued lawfully can adequately be determined on the basis of the material that was provided to the learned magistrate. It is obvious that the magistrate was persuaded to issue the warrant and it is adequate for me to consider whether this decision was a reasonable one on the basis of the relevant material. It seems to me that any further consideration of this question cannot inform the exercise of my discretion in any meaningful way.
The application for the warrant
12 The warrant required to authorise the installation and use of a surveillance device in the meeting room and thereby make lawful the use of the device to listen to and record the relevant conversation, is a surveillance device warrant issued under the Police Powers (Surveillance Devices) Act. See s 5(2)(ba) of the Listening Devices Act. Such a warrant may be issued by a magistrate, s 8(2). Section 9(1) authorises a law enforcement officer to apply for the issue of a surveillance device warrant if the officer, on reasonable grounds, suspects or believes that:
"(a) a relevant offence has been, is being, is about to be or is likely to be
committed; and… (c) the use of a surveillance device … is or will be necessary in the course of that investigation for the purpose of enabling evidence or information to be 4 No 55/2022
obtained of the commission of the relevant offence or the identity or location
of the offender."
13 Under s 11(1), a magistrate may issue the warrant if satisfied there are reasonable grounds for that suspicion or belief. Section 11(2) provides that, in determining whether the warrant should be issued, the magistrate must have regard, among other matters, to the extent to which the privacy of any person is likely to be affected.
14 The officer who applied for the warrant was Constable Adam Jago. Constable Jago swore and provided to the magistrate an affidavit in support of the application. The affidavit purports to describe and ground the officer's suspicion or belief in respect of the matters specified in s 9(1). I must say that I had difficulty identifying with clarity Constable Jago's relevant suspicion or belief. At par [12] he asserts that "On the following grounds I suspect or believe that a relevant offence is being committed" and then sets out in considerable detail the evidence which is said to constitute the said grounds. However, while there is a general assertion of a conspiracy, there is lack of specificity in respect of his suspicion or belief in that regard. At par [5], the officer confirms that police had commenced an investigation into an alleged conspiracy between Stephen Gleeson and six others including the accused, to pervert the due course of justice in respect of Ms Neill-Fraser's application for leave to lodge a second appeal against her conviction for murder. At par [8] he asserts that "investigators believe" that Mr Gleeson produced a false affidavit. It is not clear whether this is the focus of the said conspiracy, or simply a component of a wider conspiracy. Further, the reader is obviously expected to infer that when Constable Jago speaks about "investigators" belief, he is actually saying that he joins in that belief.
15 Notwithstanding these difficulties, the affidavit does in my view, set out evidence sufficient to satisfy a magistrate that there are reasonable grounds for a suspicion or belief that at least some of the persons referred to in the affidavit have entered into a conspiracy to pervert the course of justice. In particular, the evidence asserted in the affidavit provides a reasonable basis to conclude that:
(a)
Karen Keefe and Ronald McKenzie formed an agreement to pressure or influence Meghan Vass to provide a version of events of the night of Australia Day 2009, when Mr Chappell went missing, inconsistent with the evidence she provided to the original trial.
(b)
As a result of their actions, Vass signed a statutory declaration on 27 April 2017 in which she asserted that she was on the yacht on the relevant night with other unnamed persons and that Ms Neill-Fraser was not present.
(c)
Keefe and McKenzie were expecting a substantial payment in exchange for persuading Vass to make the relevant declaration.
(d)
Colin McClaren was aware of the efforts of Keefe and McKenzie to persuade Vass to change her evidence. There was also evidence which connected McClaren to a payment of $3000 to Keefe.
(e)
Gleeson had made statements that police believed were false. In particular, on 13 September 2016, he signed an affidavit stating that he thought Paul Rowe was involved in the disappearance of Mr Chappell. On 8 May 2017, he made a more detailed statutory declaration in which he repeated this assertion and stated that a young girl and male by the name of Adam Yaxley were present at Marieville Esplanade, and discussing breaking into yachts, on the relevant night. Police believed that these statements were false, because they were inconsistent with information provided spontaneously by Mr Gleeson to investigating police on the night of Mr Chappell's disappearance, and further, came about in the context of 17 separate visits to Mr Gleeson in prison by McClaren, Eve Ash and the accused since July 2016. The
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evidence also established a possible link between Keefe and McKenzie on the one hand, and Gleeson on the other because of comments made during recorded telephone conversations and, further, the connection provided through McClaren, Ash and the accused.
16 At the very least, therefore, the evidence was sufficient to establish reasonable grounds for a suspicion or belief that a relevant offence had been committed, or was in the process of being committed. At the very least, this concerned a conspiracy to pervert justice among at least some of the persons referred to in the affidavit. This was sufficient to satisfy the requirements of s 9(1)(a) of the Act. The question which then arose is whether the evidence provided reasonable grounds for a suspicion or belief that the use of the surveillance device would be necessary in the course of the investigation for the purpose of enabling evidence or information to be obtained of the commission of the relevant offence.
17 In the affidavit, Constable Jago asserted a belief or suspicion in this regard on the basis that the use of the surveillance device would enable investigators:
(a) to gather evidence of and determine the extent of Gleeson's involvement in the conspiracy; (b) to determine what, if any, involvement other persons already identified by the police have in the conspiracy and gather any evidence of that involvement; and (c) to identify and gather evidence in relation to any other persons involved in the above outlined conspiracy. 18 The application for the warrant, the swearing of Constable Jago's affidavit and the issue of the warrant all occurred on 13 June 2017. According to the affidavit, police were aware that the accused had arranged to meet Gleeson at Risdon Prison on 16 June. On 9 June, police intercepted a telephone call between McClaren and the accused in which they discussed, among other things, the purpose of the proposed meeting between the accused and Gleeson. In particular, it seems that they were concerned that Gleeson had in his affidavit, sworn on 8 May 2017, identified the male who was with the young woman (Vass) at Marieville Esplanade on the relevant night as Adam Yaxley. There is a basis to conclude that this was inconsistent with information which the accused and McLaren believed Vass might provide to the Court concerning the identity of that person, in particular that she may say that it was a male named Sam Devine. For example, on 19 May 2017, the accused had visited the Director of Public Prosecutions in order to provide him with a copy of Vass's statutory declaration dated 27 April 2017. During that conversation, the accused stated that Vass had made the declaration before him. He also stated that the people with Vass on the relevant night, whom she did not name in the declaration, were Sam Devine and Paul Rowe.
19 It is clear from this intercepted conversation that the accused was intending to have Gleeson attempt a further identification of the relevant male, by use of photoboards. The photoboards, which had been prepared by McClaren, contained photographs of Sam Devine. It would seem that both men believed that Devine was, or had been, in prison with Gleeson and were confident that this might cause Gleeson to identify Devine as the relevant person. At one point during the conversation, the accused said that he would "frame it so that he says that is the person I recognise from hanging around wherever and I will name him Adam Yaxley". Constable Jago, in his affidavit, interprets this as demonstrating the accused's intention to pervert justice by bringing about a false identification. However, viewed objectively, the comment is somewhat equivocal. It can bear the interpretation placed on it by Constable Jago, but it is also consistent with the accused hoping for a legitimate identification and then considering how the inconsistency between that identification and Gleeson's earlier affidavit concerning the name of the relevant person, might be explained. Constable Jago's
assertion that the accused’s "intention to frame the photo board procedure is unlawful" is also not
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necessarily correct. At the point of the identification, the accused was not bound by any law concerning the methodology for the conduct of the identification. The potential for unlawful conduct would only arise if he subsequently provided false evidence as to the methodology adopted by him. I think it is highly likely that the officer has confused police guidelines intended to ensure the evidentiary reliability of a photoboard identification with lawful requirements in that regard. The possibility that the accused might subsequently falsify his description of the methodology in order to bolster the reliability of an identification by Gleeson was not discussed during the telephone conversation and not asserted as a relevant suspicion or belief by the investigator.
20 Notwithstanding this, the evidence overall was sufficient, in my view, to establish reasonable grounds for a suspicion or belief that the conversation would enable evidence or information to be obtained in respect of the commission of a relevant offence. The evidence was sufficient to establish that Gleeson was directly connected to a conspiracy to pervert justice and, accordingly, any conversation between he and any other person named in the affidavit concerning the evidence he would give at the leave application was highly likely to provide evidence or information of the commission of that conspiracy. A conspiracy is by its nature a continuing offence, which often involves the varied participation of a number of persons. The accused's close involvement with those who were believed to be central to the conspiracy meant that this conversation had potential to provide evidence of the existence of the offence and potentially the involvement of Gleeson and/or the accused in it. For example, the co-conspirators rule acknowledges that the acts and declarations of those involved in a conspiracy are admissible to establish the existence, nature and extent of the conspiracy, irrespective of the presence of the accused during same: Ahern v The Queen (1988) 165 CLR 87, 80 ALR 161, 34 A Crim R 175. Defence counsel submits that the evidence was not sufficient to support reasonable grounds for a suspicion or belief that either the accused or Gleeson were a party to any conspiracy. I disagree for reasons which I have already given. However, in any event, the evidence supports a connection between McClaren, Keefe and McKenzie, and the proposed conversation between Gleeson and the accused was for purposes jointly conceived by McClaren and the accused, in respect of evidence which was central to the alleged conspiracy. This connection was sufficient to ground the requisite suspicion or belief.
21 Of course, it was not necessary for the suspicion or belief to relate to an offence to which the accused was a party. However, the evidence in the affidavit does, in my view, provide a strong basis for a suspicion or belief that he was involved in the alleged conspiracy, if not as a knowing participant, then at the very least, as a means of giving effect to its execution. The affidavit provides evidence which permits the conclusion that he was working with McClaren to prepare the relevant evidentiary documents necessary for the leave application. As already noted, on 19 May 2017, he provided Vass's statutory declaration to the DPP. He told the DPP that Vass had made the declaration before him, and that he held "over 100 pages of McClaren's material". The statements he made to the Director concerning further aspects of Vass's version support the inference that he had discussed these matters with Vass. Further, the affidavit asserts that on 19 May 2017, police obtained a telephone intercept warrant that provided evidence that the accused "uses McKenzie to communicate with Vass and arrange meetings for Vass with Cangelosi". At the very least, the evidence supported the conclusion that the accused was involved, innocently or otherwise, in the execution of the conspiracy. Evidence of his involvement is admissible as circumstantial proof of the conspiracy. The arranged conversation with Gleeson fell into this category. Although the affidavit asserts a suspicion or belief that both Gleeson and the accused are involved as knowing participants in the conspiracy, this was not necessary to justify the issue of the warrant. It was enough to suspect or believe that the proposed conversation and other potential conversations which might take place between Gleeson and persons named in the affidavit during the life of the proposed warrant in the prison would provide evidence of the conspiracy. I am satisfied that the evidence in the affidavit established reasonable grounds for a suspicion or belief of that nature.
Privacy and the execution of the warrant
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22 Constable Jago and the technical services officer charged with installing the relevant surveillance device, Constable A, gave evidence on the voir dire.
23 As already noted one of the matters which the magistrate was required to consider in determining whether the warrant should be issued was the extent to which the privacy of any person is likely to be affected. In the affidavit supporting the application for the warrant, Constable Jago addressed this question as follows:
"[18] The matters relevant to how much the privacy of any person is likely to be affected by the issue of a surveillance device warrant are set out below. Having regard to those matters the privacy of persons other than GLEESON would not be unduly interfered with.
[19] Any incidental interference with the privacy of any person would be justified given the seriousness of the matters under investigation:
a) Police can obtain information relating to times and dates of relevant meetings and can isolate the monitoring of any listening device product to meetings relevant to this investigation. Therefore any personal or legal visits between inmates and visitors not directly involved in this investigation will not be monitored. b) Police do not intend to monitor visits that obviously only relate to professional legal visits."
24 The application for the warrant sought authorisation for the use of a listening device and optical surveillance device on or in premises namely: "The visitor meeting rooms utilised by Stephen John Gleeson 23.12.59 at the Risdon complex". It is apparent from the evidence of the police officers that they were not able to be any more precise as to the meeting room, and were reliant on prison authorities to identify the relevant room. However, both officers were aware, and the magistrate must have been aware, that the professional meeting rooms in question would in the usual course be utilised by lawyers and clients to conduct conversations protected by legal professional privilege. There was a high probability of many such meetings over the proposed life of the warrant, 90 days. Indeed, this is the factual assumption that underlies par [19]. There was no other information provided in the affidavit concerning the anticipated use of the room.
25 There is no doubt that Constable Jago had prior knowledge of the meeting which was actually recorded between the accused and Mr Gleeson. Further, it can reasonably be supposed that there would have been no difficulty in police becoming aware of any further meeting between Mr Gleeson and any other relevant person. It is obvious that any such meeting with a prisoner would firstly have required prior arrangements with prison authorities and the location of the meeting would have been completely under the control of those authorities. Accordingly, the magistrate would have been completely justified in accepting Constable Jago's assurance that he would have prior notice of any such meeting, and be able to restrict monitoring of visits to those relevant to the investigation.
26 The evidence on the voir dire demonstrated that the reality of the use of the devices was more complex than that described in the affidavit. Constable A is the technical services officer who was assigned the task of installing the relevant devices. His evidence was that when the warrant was issued on 13 June, he read it and satisfied himself that it authorised installation of the relevant devices into the meeting room. The room was identified to him by prison authorities. He installed two devices, a surveillance device which had visual and audio recording capacity and another listening device with audio capacity only. This would seem to be consistent with the authorisation in the warrant. He also installed a computer in the room occupied in the police station by the investigation team. This computer had the capacity to permit investigators to monitor conversations in real time. However, this could only be done through a dedicated website. Access to the site required the specialist knowledge of a member of the technical services unit. This unit was comprised of five officers, including Constable A. Once the monitoring was over and the website closed, then it could only be re-accessed
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again by a member of the technical services team. Constable A said that he was asked to set up real time monitoring for the investigation team in relation to the scheduled meeting between Gleeson and the accused. He was not involved in shutting down the website after it finished, but said that when he returned to the investigation room on other occasions it seemed to him that this had occurred. He could not speak to whether anyone else in the technical services team had been asked to monitor further conversations.
27 Constable A's evidence was that once the surveillance devices commenced to record, they were left recording continuously until the devices were removed on 17 August 2017. During this time, they would have recorded all conversations conducted in the meeting room. Obviously, this would have included conversations, including between lawyers and their clients protected by legal professional privilege, completely unrelated to this investigation. His evidence was that access to this "product" required the recorded material to be downloaded from the devices. The only occasion on which he was asked to do this was immediately after the conclusion of the meeting on 16 June 2017. However, once again, he could not speak for anyone else on the investigation team and there was no way of identifying whether any other product had been downloaded from the devices.
28 Constable A gave evidence that the practice was that the product remained recorded on the devices until they had been retrieved. At that time, all recordings on the devices were deleted so they could be used for other cases. This is what occurred in this case.
29 During the course of his evidence, I asked Constable A whether he had the capacity to switch the devices on and off so as to prevent them recording except at times relevant to the investigation. He accepted that they had this capacity. The surveillance device with both audio and visual recording capacity could be switched on and off remotely, but direct access to the device itself was required to achieve this on the other device. When I asked why this did not occur, he indicated that they were left running in case "technical issues arose" or there was insufficient time to get into the prison to access the equipment prior to a scheduled meeting. He indicated that there was a degree of complexity involved in arranging access. He was dealing only with certain correctional service officers and delays could arise because those officers were off shift or absent for other reasons. I must say that I did not find this explanation persuasive. I have no doubt that in many cases, particularly where listening devices are installed in premises over which police or other related authorities have no ongoing control, such as private residential premises, there is no practical option but to leave the devices running continually. It would be impractical, if not impossible, to gain covert access to the devices regularly and in any event, it would be highly unlikely that the monitoring authorities would have sufficient notice of relevant conversations. However, that was not the situation in this case. As Constable Jago explained in par [19], and as is obvious in any event, police were always going to have significant notice of any relevant conversation and be able to gain risk free covert access to the relevant room with the cooperation of the authorities. It is obvious that any meeting between Gleeson and any person of interest would need to be scheduled with prison authorities well in advance. The location of the meeting would be completely under the control of those authorities. I accept that for security reasons, police would only have been dealing with a limited number of prison officers, and would have been concerned to keep this contact to a minimum, but I cannot accept that in the highly controlled environment of a prison, there would have been any real difficulty in police obtaining notice of meetings and access to the equipment in a timely way. It seems to me that this was precisely the point that Constable Jago was making in par [19] of the affidavit. Further, Constable A was, in any event, required to access the devices in situ on one occasion because of a malfunction. Indeed, one would think that attending the devices prior to any relevant conversation would guard against, rather than increase the risk of unforeseen failures in the equipment. I think it is far more probable that pressure of work simply meant that it was easier to leave the devices running than to switch them on and off before and after each relevant conversation. Constable A hinted that he was under a considerable amount of time pressure because of other work commitments.
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30 The upshot of all of this is that these devices were left to continually record throughout the entire period between 15 June and 17 August 2017. I have no difficulty inferring that during this time there would have been many sensitive and privileged conversations between lawyers and their clients, and perhaps other private conversations which were completely irrelevant to this investigation and not authorised for recording by the warrant. The persons concerned would have had absolutely no idea that their conversations were being recorded and were capable of being monitored, in real time, by police and other authorities. Constable Jago said that he did not monitor any other conversation nor did he request the download of any other product. Constable A said that he did not arrange monitoring of any other conversation nor download any other product. I accept the truth of this evidence. However, there were at least five members of the investigation team and a number of members of the technical service unit, all of whom had access to the relevant equipment. The only security applied to access to that material seems to have been that the monitoring equipment was within the investigation room which required passcode access. The passcode, according to Constable Jago, was known to all members of the investigation team. A technical services officer had to request access to the room, but this could have been given to them or any other person by any member of the investigation team. No one else from either unit was called to give evidence nor was any evidence presented to exclude the possibility that any other material had been accessed by authorities. I am not suggesting for a moment that this did occur, but clearly there was that potential.
31 The real problem here is that this information was something which the magistrate was required to take into account when deciding whether to issue the warrant, and if so, on what terms and conditions. These considerations had real potential to interfere with the privacy of other persons and this is a mandatory consideration for a magistrate when determining whether to issue the warrant. Had the magistrate been made aware of these matters, he may well have declined to issue the warrant or at the very least placed conditions upon it. For example, a simple condition which required the authorities to switch the recording devices on only for the duration of any arranged and notified relevant conversation would have taken care of this problem. The fact that the magistrate was not told about this, and that police in any event did not implement these measures, is a matter of significant concern.
32 I accept that in par [19], Constable Jago did not deliberately mislead the magistrate. He states that police will not "monitor" any "listening device product". These terms can be understood in the light of Constable A's explanation, but this, of course, was not provided to the magistrate. Perhaps it was assumed that this was self-explanatory, but such an assumption was unjustified. Given the real risks to privacy arising from the near certainty that unrelated private and privileged conversations would be recorded and capable of being monitored during the life of the warrant, far greater detail should have been provided to and considered by the magistrate before issuing the warrant.
33 Having regard to all of this evidence, I am satisfied that the warrant issued by the magistrate did not satisfactorily respond to the risk to privacy inherent in this proposal. The warrant permitted
use of the surveillance device in "visitor meeting rooms utilised by Stephen John Gleeson … at
Risdon Prison Complex". Although the magistrate could have imposed further conditions on the use of the warrant to ensure that police complied strictly with the intention asserted by Constable Jago in par [19] of the affidavit, it contained no conditions whatsoever. It may well be that the magistrate relied on Constable Jago's assurance in par [19] and thought that the ambit of authorisation adequately responded to privacy concerns by restricting the use of the devices to premises described as "visitor meeting rooms utilised by Stephen John Gleeson". If the magistrate did think this, then his approach was flawed. The wording is ambiguous. On a narrow interpretation, it would restrict the use of the device to occasions only when Stephen John Gleeson is present in a meeting room. Another interpretation is that it permitted the installation and continuous use of a device in any room or rooms which were or likely to be used by Stephen Gleeson at any time during the 90 day life of the warrant. There is a very significant difference in effect between these interpretations. Clearly, police adopted the latter interpretation.
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34 The prosecution submits that this is not a matter which should affect the exercise of discretion. It is submitted that despite the risks that arise from continuous recording, it is apparent that the police concerned were doing their best to comply with the law, and that operational requirements and other constraints mitigate any lapses in that regard. Further, it is submitted that the impugned evidence was actually obtained pursuant to what police believed to be a valid warrant and that there is no evidence that any other conversations were recorded, monitored, or downloaded by any other police officers.
35 The difficulty I have with this submission is that I am simply not persuaded that police took sufficient care to either inform the magistrate of the proper operation of the system nor to obviate any risks related to the potential for the recording and/or monitoring of unrelated private or privileged conversations. The public interest in ensuring that such conversations are protected from unlawful surveillance by law enforcement authorities is of significant importance. Accordingly, while it appears that police did not deliberately set out to break the law, there was also an obvious misunderstanding or ignorance of the significant risks inherent in their task and a casual and incomplete approach to the identification and minimisation of any such risks. The protection of the privacy of others using the room could have been easily achieved by activating the devices so that they recorded only relevant conversations. Because of the importance of this question of privacy in the circumstances of this case, I regard this as a significant factor telling against the admission of this evidence.
Conclusion
36 Balancing all of the above factors, I am not satisfied that the desirability of admitting the impugned evidence outweighs the undesirability of admitting evidence obtained in the manner described. In making this determination, I have taken into account all relevant factors including the seriousness of the alleged crimes, and the effect of exclusion on the prosecution case. However, ultimately, I am heavily influenced by the considerable risks to privacy which were inherent in this proposal for covert surveillance, and the failure of police to consider and properly address those risks and to fully inform the magistrate of the circumstances of the surveillance which compounded those risks. In my view, had the magistrate been properly informed then even if a valid warrant had been issued, it is highly likely that it would, or at least it should have contained conditions sufficient to properly obviate the said risks. The evidence which was presented fell far short of satisfying me that police had any significant insight into these problems and their importance, nor that anything has been done since to address similar situations. I accept that there will be a limited number of cases where concerns of this nature will arise, that is the potential for a recording of privileged as well as private conversations unrelated to the investigation, and where there are simple practical means available to restrict surveillance to relevant activity. However, the importance of ensuring the protection of privacy in respect of unrelated and privileged conversations during the course of covert surveillance, satisfies me that the balance in this case falls in favour of exclusion. Such protection is fundamental to the integrity of and public confidence in the administration of criminal justice. If any authority were required for such a proposition, it can be found in the unanimous decision of the High Court in AB v CD; EF v CD [2018] HCA 58. There has been nothing presented to me in this case which would indicate that this or any other consideration has resulted in a more rigorous and careful approach to the protection of privileged conversations during covert investigations than that which took place in this case.
37 Finally, in deference to the prosecution's arguments, I would observe that it is not necessary for me to determine whether had the warrant not been invalid on its face for failure to properly specify the alleged offence in respect of which it was issued, it would have survived challenge based on the considerations discussed in this decision. The reality is that the invalidity of the warrant meant that the impugned evidence was obtained unlawfully, and therefore, I must be positively persuaded that the evidence should be admitted in any event having regard to the balancing exercise specified in s 138(3). The ambit of that discretion is not confined by the alleged "technicality" of the error which resulted in invalidity.
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38 It follows from my conclusion in relation to the balancing exercise that the impugned evidence is not to be admitted. I so order.
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