Ted Watkins (a pseudonym)[1] v Director of Public Prosecutions , Commissioner of the Australian Federal Police , , Vincent Mann (a pseudonym) and Director of Public Prosecutions and Commissioner of the Australian...
[2015] VSCA 363
•18 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0201
| TED WATKINS (a pseudonym)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| and | |
| COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Intervenor |
| S APCR 2015 0202 | |
| VINCENT MANN (a pseudonym) | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS and COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent Intervenor |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the applicants.
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| JUDGES: | MAXWELL P, OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 November 2015 |
| DATE OF JUDGMENT: | 18 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 363 |
| JUDGMENT APPEALED FROM: | DPP v [Watkins] & [Mann] (Unreported, County Court of Victoria, Judge Allen, 9 October 2015) |
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CRIMINAL LAW – Application for leave to appeal – Interlocutory appeal – Evidence – Surveillance devices – Listening device – Mobile telephone belonging to suspect – Listening capability remotely activated – Warrant authorised ‘use’ of device to record conversations – Whether remote activation authorised – Leave to appeal refused – Surveillance Devices Act 2004 (Cth) ss 6, 18.
WORDS AND PHRASES – ‘Use’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant [Watkins] | Mr C T Carr | Valos Black & Associates |
| For the Applicant [Mann] | Mr A V Chernok | Valos Black & Associates |
| For Commissioner of the Australian Federal Police (as intervener) | Mr O P Holdenson QC with Mr J M Forsaith | Australian Government Solicitor |
| For the Director of Public Prosecutions | Ms F L Dalziel with Mr A Albert | Mr J Cain, Solicitor for Public Prosecutions |
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MAXWELL P:
This application concerns the scope of the authority conferred by a ‘surveillance device warrant’ issued under the Surveillance Devices Act2004 (Cth) (the ‘SD Act’). The scope of the authority is defined by s 18 of the SD Act.
The warrant in question authorised the use of surveillance devices of various kinds in respect of the conversations and activities of the second applicant (‘Mann’). In reliance on the warrant, police covertly uploaded computer software onto Mann’s mobile telephone. They then used the software to activate the microphone on the telephone, so as to permit conversations taking place in the vicinity of the phone to be transmitted to police in a remote location and recorded.
The questions which the judge had to resolve were:
(a) whether the mobile telephone was a ‘listening device’ within the meaning of the SD Act; and
(b) whether, if so, the act of uploading the software to activate the microphone was an authorised use of the device under s 18 of the SD Act.
The judge answered both questions in the affirmative. For the reasons given respectively by Priest JA and Osborn JA, which I have had the advantage of reading in draft and with which I agree, there was no error in those conclusions. The application for leave to appeal must therefore be refused.
For reasons which follow, I consider that there was an additional basis for concluding that the act of uploading the software was authorised by s 18. The relevant provisions are fully set out in the judgment of Priest JA and it is unnecessary to repeat them.
As contemplated by s 18(1)(c), the warrant in the present case expressly authorised the use of a surveillance device ‘in respect of the conversations, activities and/or location of [Mann]’. The warrant authorised the use of devices of each of the four kinds embraced within the definition of ‘surveillance device’ in s 6. The relevant kind of device for present purposes is a ‘listening device’. As counsel for the applicants properly conceded, Mann’s mobile phone was a device which had the relevant capability, that is, it was ‘capable of being used to overhear, record, monitor or listen to a conversation’.
What is unusual about this case is that the device was the property not of the investigators but of a person who was the subject of the investigation, and it was in that person’s possession. Ordinarily, of course, the use of property belonging to another without that person’s permission would constitute an actionable tort (trespass to goods and/or conversion).[2] Use of property is an exercise of a right of ownership.[3]
[2]See Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; Schemmell v Pomeroy (1989) 50 SASR 450.
[3]See R v Wei Tang (2007) 16 VR 454, 469 [67].
By authorising the ‘use’ of the mobile phone, therefore, the warrant expressly authorised conduct which would otherwise have been an interference with the rights of the owner of the phone. What, then, did the authorisation to ‘use’ the phone encompass? Clearly enough, the authorisation extended only to the use of the phone as a listening device. Equally, however, the authorisation to ‘use’ it for that purpose must have included authority to take the steps necessary for it to be so used, including to activate its listening capability.
Thus, the authorisation to use the phone necessarily extended to turning the phone on, and entering any necessary password for that purpose. Counsel for the applicants properly conceded that this was so. But authorisation to activate the phone — in order to use it — must have encompassed remote activation as well as physical activation. There is no difference in character between picking up the phone and turning it on, and using the telephone line to activate it remotely. The former is as much of an interference with property as is the latter.
As senior counsel for the Commissioner submitted, it is helpful to consider by way of analogy an authorisation to use another person’s motor vehicle. The authorisation to use the vehicle must, necessarily, encompass authority to open the door, put in the keys, start the engine and then drive the vehicle. Modern motor vehicles, of course, have remote electronic unlocking devices. The use of such a device in order to open the door would be no more of an interference with the vehicle than the physical opening of the door. Both would fall within the scope of the authorisation to use the vehicle.
So, too, in the present case. In my view, the authorisation to use the mobile phone as a listening device necessarily encompassed authorisation to activate its listening device capability. That was what was meant by ‘using’ the device for that purpose.
This view accords with the ordinary meanings of the word ‘use’, as follows:
make use of (a thing), esp. for a particular end or purpose; utilise, turn to account.
…
cause (an implement, instrument etc) to work, especially for a particular purpose; manipulate, operate.[4]
[4]Lesley Brown (ed), The New Shorter Oxford English Dictionary (Clarendon Press, 3rd ed, 1993, vol 2) 3531; see White v DPP(WA) (2011) 243 CLR 478, 487–8 [21]; Chalmers v The Queen (2011) 37 VR 464, 481 [80]–[81].
In causing the phone to work, in ‘manipulating’ it and ‘operating’ it, the investigators were simply ‘using’ it, as they were authorised to do. The present case is quite different, in my view, from that considered by the High Court in Coco v The Queen.[5]
[5](1994) 179 CLR 427.
There, a judge had approved the use of listening devices ‘in connection with the matter of police investigations relating to corruption …’. The question was whether the authorisation to ‘use’ such devices impliedly authorised entry onto premises for the purposes of installing them, in circumstances where that entry would otherwise have constituted an unlawful trespass. The High Court held that it did not.
The judgments emphasised that the right of a person in possession of premises to exclude others was a fundamental common law right. Any abridgment or curtailment of that right therefore needed express authorisation, which the legislation did not contain.[6] It was not enough that the definition of ‘listening device’ contemplated the device ‘being used to overhear, record …’.[7]
[6]Ibid 437–438.
[7]Ibid 438–9.
In the present case, by contrast, the impugned conduct — the installation of software to activate the listening capability of the device — is part of the very use of the device which the warrant authorises. No question arose of any other interference with property, or any entry into premises, in order for the device to be used. (If, for example, it had been necessary in order to activate the device for an officer to enter premises and switch it on, that entry — otherwise a trespass — would have been authorised by s 18(2)(c)(ii)).
My view of the scope of the ‘use’ which the warrant authorised derives support from the content of s 18(3). As appears from the statutory text, that subsection authorises a range of actions which may (depending on the circumstances) be required in relation to, or in connection with, the use of the device. Thus, s 18(3) authorises for that purpose:
· the retrieval of the device;[8]
[8]Section 18(3)(a).
·the use of enhancement equipment in relation to the device;[9]
[9]Section 18(3)(b).
·interference with other property to enable the installation, maintenance or retrieval of the device;[10]
·the connection of the device to electricity;[11] and
·provision of technical assistance to the officer responsible for the use of the device.[12]
[10]Section 18(3)(c) and (d).
[11]Section 18(3)(e).
[12]Section 18(3)(g).
Express authorisation is required for each of these actions because they are distinct from the ‘use’ of the device and hence are not encompassed within the authority to use it. Although the connection to electricity may be part of activating the device, express provision is necessary for that purpose because electricity is itself property and unauthorised use of electricity is unlawful.[13]
[13]State Electricity Commission Act 1958 s 107. Section 107 of this Act preserves the electricity theft (s 51) and tampering provisions (ss 49, 50, 52) in the Electric Light and Power Act1958.
OSBORN JA:
I have had the benefit of reading the reasons of Priest JA in draft and I agree that leave to appeal should be refused for the reasons he gives, subject only to the following additional observations.
In summary:
(c) Mann’s mobile telephone constituted a listening device as defined; and
(d) its connection to the telecommunication network was authorised by s 18(3)(f).
The ordinary meaning of ‘connection’ extends to the connection of a mobile telephone to a telecommunications network by the installation of software. It is not necessary that the connection be constituted by a physical attachment to the device. In turn, the software connects the device to ‘a system that may be used to transmit information’, namely the telephone network.[14]
[14]See Edelsten v Investigation Committee (1986) 7 NSWLR 222, 228–9.
There are two incidental aspects of the arguments advanced on behalf of
Watkins to which I desire to make a specific response. First, counsel for Watkins emphasised reliance upon the statement of Sackville J in Taciak v Commissioner of the AFP[15] that the recognition and protection of privacy in the Telecommunications (Interception) Act 1979 (Cth) and similar legislation justifies a restrictive approach to the construction of the statutory exceptions to the prohibitions on the interception of telecommunications and on the use of lawfully obtained intercept information. Whilst analogous reasoning would support a restrictive approach to the legislation here in issue, such an approach cannot displace the plain words of the legislation.
[15](1995) 59 FCR 285, 298–9; (1995) 81 A Crim R 348, 361.
Secondly, the principles of construction articulated in Coco v The Queen[16] do not apply in the present situation for like reasons. The use of the listening device and its connection to the system constituted by a telecommunications network are expressly authorised.
[16](1994) 179 CLR 427.
PRIEST JA:
Introduction
The question that arises for resolution in this case is: In circumstances where police covertly upload computer software onto a mobile telephone, that software being used to activate the telephone’s microphone so as to permit conversations to be transmitted to a remote location and recorded, has the Surveillance Devices Act 2004 (Cth) (‘the SD Act’) been breached?
The question arises in the following way. Both of the applicants — for convenience, ‘Watkins’ and ‘Mann’ — are facing trial in the County Court charged with conspiracy to traffick a large commercial quantity of a drug of dependence, 3,4‑methylenedioxy-N-methylamphetamine (‘MDMA’ or ‘ecstasy’),[17] between 22 January 2013 and 13 June 2013. In essence, the intended trafficking was preparing
the drug for sale or exchange, offering it for sale, agreeing to sell it and to have it in possession for the purpose of sale.
[17]Drugs, Poisons and Controlled Substances Act 1981, s 79.
Between December 2012 and June 2013, police conducted an investigation into the drug trafficking activities of the two applicants and a co-conspirator, ‘SA’. As part of the investigation, police activities involved:
·first, the use of covert investigative equipment authorised by warrant, including, listening devices, telephone intercepts and tracking devices on vehicles;
·secondly, covert surveillance;
·thirdly, searches of suspects;
·fourthly, searches under warrant of premises, and searches of vehicles and suspects; and
·fifthly, a police interview with the applicant Mann on 13 June 2013 (in which he denied any involvement in trafficking).
One of the warrants police obtained was under the SD Act.[18] Warrant SD3238, entitled ‘Surveillance Device Warrant under section 16’, was issued on 31 December 2012 and renewed on 27 March 2013 (‘the SD warrant’). The SD warrant included the following:
[18]Police also obtained two warrants under the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the TIA Act’). The two warrants issued under the TIA Act are no longer in issue in this application. Warrant A8009/00/00/01, issued on 6 February 2013 and renewed on 2 May 2013 (relevant to Watkins), and Warrant A79691/00/00/02, issued on 31 December 2012 and renewed on 27 March 2013 (relevant to Mann) respectively permitted the ‘interception of communications’ made to or from any telecommunication service that Watkins and Mann were ‘using or is likely to use’ (‘the TIA warrants’).
I hereby authorise the use of a surveillance devices [sic] of the following kinds:
· listening, optical, data and tracking surveillance devices in respect of the conversations, activities and location of the following specified person:
[Vincent Mann] [date of birth and address]
This warrant authorises the use of more than one surveillance device of a kind specified above if that is necessary to give effect to this warrant.
This warrant relates to the following alleged relevant offence:
· importation of a commercial quantity of a border controlled drug, namely methamphetamine, also known as ice, contrary to section 307.1 of the Criminal Code Act 1995 (Cth).
In the trial, the prosecution wishes to lead evidence of various conversations recorded by a listening device pursuant to the SD warrant.[19]
[19]The prosecution also seeks to lead intercepted telephone conversations recorded pursuant to the TIA Act warrants.
Watkins caused two subpoenas to be issued to the Commissioner of the Australian Federal Police (‘the Commissioner’), respectively dated 4 August 2015 and 20 August 2015.[20] Each subpoena sought the production of various categories of documents relating to the SD warrant and the two TIA warrants (the subpoenas).
[20]The Subpoena bears the date 20 August 2015, while the accompanying Notice to Addressee and Declaration curiously bears the date 21 August 2015.
The Commissioner made an application to the trial judge to have the subpoenas set aside on the basis that they had no legitimate forensic purpose.
For the purposes of the application to set aside the subpoenas, the Commissioner accepted that the judge could proceed on the basis that certain inferences ‘were open to be drawn on the evidence contained in the depositions’. Those inferences included ‘that at least several conversations involving the accused, sought to be relied upon by the Crown, had been recorded as a result of software having been remotely uploaded to [Mann’s] mobile phone’; and that ‘software had been used to activate the microphone on the mobile phone and to cause the conversations to be transmitted over the mobile phone network to a listening post where they were recorded by the police’. These conversations, the judge said it was ‘important to note’, ‘were face-to-face conversations, not telephone conversations’. Indeed, it was made clear in this Court by counsel for the Commissioner, that the Court could proceed on the assumed basis that:
·software was uploaded onto Mann’s mobile telephone without his knowledge;
·the software was uploaded onto the mobile telephone remotely via the mobile telephone network (without the necessity for police to physically handle the telephone so as to install it);
·the software so uploaded activated the microphone of Mann’s telephone;
·the telephone with the microphone thus activated by the software permitted the transmission of ‘face to face’ conversations[21] via the mobile telephone network to police at a remote location where they were recorded.
[21]As opposed to conversations via the telephone.
On 9 October 2015, the trial judge set aside the subpoenas issued on behalf of the applicant Watkins (‘the interlocutory decision’).
Later, on 12 October 2015, the judge certified pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 that the interlocutory decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Watkins thus seeks leave to appeal against the interlocutory decision setting aside his two subpoenas. And, although the interlocutory decision relates only to subpoenas issued by Watkins, Mann also purports to seek leave to appeal against it. There are five grounds which are common:
1. The learned trial judge erred in holding that the interference with and activation of [Mann’s] phone through the use of offensive software was authorised by surveillance device warrant SD 3238, issued pursuant to the Surveillance Devices Act 2004 (Cth).
2. The learned trial judge erred in holding that the interference with and activation of [Mann’s] phone through the use of offensive software was properly characterised as a ‘surveillance device’ pursuant to the Surveillance Devices Act 2004 (Cth) s 6.
3 The learned trial judge erred in holding that the interference with and activation of [Mann’s] phone through the use of offensive software was not an advance in technology such as would require a regulation pursuant to sub-s (c) of the definition of ‘surveillance device’ contained in Surveillance Devices Act 2004 (Cth) s 6.
4. The learned trial judge erred in holding that the fact that [Mann’s] mobile phone was only rendered capable of being used to overhear face-to-face conversations by virtue of the use [of] the offensive software in question was irrelevant.
5. The learned trial judge erred in finding that the interference with and activation of [Mann’s] phone through the use of offensive software did not represent a greater breach of privacy than any other ‘traditional’ surveillance device.
Watkins also seeks to agitate a sixth ground as follows:
6. The learned trial judge erred in holding that the interference with and activation of the applicant’s phone through the use of offensive software did not constitute a breach of Surveillance Devices Act 2004 (Cth) s 18(7).
Submissions to the trial judge
In detailed written submissions put before the trial judge, counsel for Watkins identified the legitimate forensic purpose underpinning the subpoenas. He submitted that the documents sought under the two subpoenas ‘are relevant to ... and would serve to found an application for exclusion of the relevant evidence obtained under the warrants, pursuant to s 138 of the Evidence Act 2008’. Counsel relied on two alternative bases for the exclusion of evidence harvested by use of the SD warrant and the TIA warrants (a third basis being abandoned in oral submissions). The two bases set out written submissions were:
(a) a number of intercepted telephone conversations ... which purport to be lawfully intercepted pursuant to Warrant SD3238 were in fact recorded on a device that is not authorised under the [SD Act] and were therefore illegally obtained;
(b) bad faith, on behalf of the applicants for some if not all of the relevant warrants submitted to members of the [Administrative Appeals Tribunal], such as to invalidate the said warrants; …
Counsel for Mann relied on what was advanced by Watkins’ counsel (and made an additional submission to the trial judge which is not relevant to the resolution of the present applications).[22]
[22]The submission was to the effect that there was a ‘further head of illegality that arises by virtue of the operation of [s 18(7) of the SD Act]’. It was submitted, first, that the ‘methodology’ used to listen to the relevant conversations — that is, Mann’s mobile telephone together with the software — was illegal because it was not covered by a relevant exception in s 7(2) of the TIA Act; and, secondly, that the use of the telecommunications network to upload the software to activate the microphone on Mann’s mobile telephone, and to transmit the captured conversations back to the monitoring post where they were recorded, was also contrary to the TIA Act, in that these actions constituted telecommunications interceptions which were unlawful under the Act.
The Commissioner’s counsel argued that no legitimate forensic purpose had been demonstrated, and hence the subpoenas ought to be set aside. Counsel for the Commissioner noted that s 6 of the SD Act defines a ‘surveillance device’ broadly, and that nowhere does the SD Act limit this definition by reference to any particular technology.[23] It was submitted that nothing in the SD Act suggests that a mobile telephone cannot be a surveillance device. Mann’s mobile telephone was clearly a piece of equipment, and thus a ‘device’; and it was clearly capable of being used to record, monitor or listen to a conversation in accordance with the definition of ‘listening device’ in s 6 of the SD Act. Further, it was submitted that the use of the mobile telephone network system to upload the software to Mann’s mobile phone in order to remotely activate its listening and recording capabilities was specifically authorised by s 18(3)(f) of the SD Act. Additionally, it was argued that uploading of the software onto or into Mann’s mobile phone did not give the mobile phone a listening capability that it did not already have. The mobile phone, so it was argued, already had that capability. The effect or consequence of uploading the software was simply to allow or permit the capability which the phone already had to be utilised and to be controlled remotely.[24]
[23]The relevant provisions of the SD Act are set out below at [55] and following.
[24]Counsel for the Commissioner also submitted that Mann’s contentions faced two difficulties. First, Mann’s mobile phone was covered by a telephone intercept warrant. Secondly, the alleged activity would not in any event have contravened the TIA Act as it would have involved using Mann’s mobile phone to listen to face to face conversations between him and others. As such, none of the relevant conversations would have constituted ‘a communication passing over a telecommunications system’ within the meaning of s 7 of the TIA Act. Counsel submitted that, whilst a mobile telephone is connected to a telecommunications network and is therefore part of a telecommunications system, it does not follow that using a mobile phone to listen to or record a conversation necessarily involves the interception of ‘a communication passing over a telecommunications system.’ Finally, counsel submitted that face-to-face conversations between two persons in a room or vehicle is not a communication over the telecommunications system.
The prosecutor submitted that the prosecution had a sufficient interest in the subpoenas being set aside to be able to make submissions in support of, and in addition to, the submissions made on behalf of the Commissioner. He submitted that the statutory definition of ‘listening device’ is exhaustive, and that Mann’s telephone falls squarely within that definition, since it was used to overhear, or record, or monitor, or listen to, his utterances and conversations. There is no limitation or requirement in s 6 of the SD Act, the prosecutor argued, to prevent devices from being listening devices if they are activated by software. The prosecutor also relied upon s 18(3)(f) of the SD Act, and submitted that it authorises the surveillance device to be connected to any system that may be used to transmit information, and the use of that system in connection with the operation of the device. Otherwise, the prosecutor adopted the submissions of counsel for the Commissioner.
The interlocutory decision
As I have mentioned, the proceeding before the trial judge was conducted on the basis that software had been remotely uploaded onto Mann’s mobile telephone via the mobile telephone network so as to permit the transmission of conversations to another location where they could be recorded by police. In ruling on the subpoenas, the judge said that it was ‘important to note’, that they ‘were face-to-face conversations, not telephone conversations’.
Ultimately, the trial judge ruled as follows:
Assuming ‘an optimal fact situation’ for the defence, I would not find that the evidence gathered under the relevant warrants was obtained improperly or unlawfully, and so I would not exclude the evidence pursuant to s 138 of the Evidence Act. Therefore, there is no legitimate forensic purpose in obtaining the documents sought pursuant to the subpoenas, as there is not a reasonable possibility that those documents would materially assist the defence. Accordingly, the subpoenas are set aside.
In reaching his ultimate conclusion, the trial judge was satisfied that Mann’s mobile telephone, used to listen to the subject conversations and from which audio was transmitted to police over the telecommunications network, was a ‘listening device’ within the meaning of the SD Act, the use of which was authorised, amongst other things, in the SD warrant. He reached those conclusions principally for four reasons:
·First, the mobile telephone was plainly a ‘listening device’, as defined by s 6 of the SD Act. It is a ‘device’ which was capable of being used to monitor or listen to a conversation; and the ‘fact that it was so used in this case puts that beyond dispute’.
·Secondly, his Honour was of the view that the fact that the mobile phone ‘was rendered capable of being used to perform those functions by a third party remotely uploading computer software’ was irrelevant. Nothing in the relevant legislation limits or restricts the means by which, or by whom, a device might be rendered capable of being used as a ‘listening device’. To the contrary, the judge was of the view that s 18(3)(f) of the SD Act was intended ‘to permit such methodology’.
·Thirdly, his Honour held that the fact that the monitoring and listening capabilities of Mann’s telephone were remotely activated by a third person, as opposed to the owner or possessor of the phone, was also ‘immaterial’. Surveillance devices of all kinds, including listening devices, are most commonly activated by ‘third persons’. The judge rejected the submission that the kind of remote activation of the listening capability of a mobile phone represents a greater invasion of privacy than the physical installation of a ‘traditional’ listening device on premises, which should have been sanctioned by new regulations prescribed under paragraph (c) of the definition of ‘surveillance device’ in s 6 of the SD Act.
·Fourthly, the judge held that the fact that the mobile phone alone — without the ‘surreptitiously uploaded software’ — was incapable of being used to monitor and listen to the conversations was ‘also irrelevant’. He rejected the argument that the telephone, without the software, is not a listening device. There is nothing express or implied in the definition of ‘listening device’ that suggests that the device must be independently capable of being used to monitor or listen.
Before proceeding further, I note that, given the way in which the applicants’ submissions were developed in this Court, it is unnecessary to dwell on his Honour’s reasons with respect to the ‘bad faith’ argument[25] or the submissions that were made with respect to the effect of the TIA Act.[26]
[25]On the issue of alleged bad faith, the judge held that on the material before him, there was ‘no evidence of fraud or misrepresentation on the part of the applicants’ for the warrants; and there was ‘no evidence of any half-truth or misleading statement having been used or made in support of any application for any relevant warrant’. Accordingly, it would not be open to find ‘that any applicant for any relevant warrant had failed to act in good faith’.
[26]The trial judge also rejected the submission that ‘the processes of uploading the software, using the phone to monitor and listen to conversations, and transmitting the audio over the mobile phone network to the listening post’, constituted a breach (or breaches) of s 7 of the TIA Act or s 18(7) of the SD Act. He did so for two reasons. First, in his Honour’s view, the action of uploading the software, and the transmitting of the audio to a listening post, did not fall within the definition of ‘interception’ in s 6 of the TIA Act. The judge held that a warrant under the TIA Act was not required, ‘and thus there was no breach of s 18(7) of the SD Act’. He accepted in any event ‘that these processes were permitted by s 18(3)(f) of the SD Act’. Secondly, in relation to the argument that the process of using the mobile phone to monitor and listen to the conversations constituted an interception that was unlawful by virtue of s 7(1) TIA Act, applying DPP v Selway (No 2) (2007) 16 VR 508, 517 [17] (Cummins J) his Honour found that the recording of these face-to-face conversations did not constitute an interception of a ‘communication over the telecommunications system as defined in s 6(1) of the TIA Act. Hence, no warrant under the TIA Act ‘was required for this process’.
The applicants’ submissions in this Court
In this Court, counsel for both Watkins and Mann limited the scope of their challenge to the judge’s ruling. In essence, it was submitted that the SD Act did not authorise the use of software to activate the microphone on Mann’s mobile telephone, and to cause conversations to be transmitted over the mobile phone network to a place where they were recorded by police (‘the impugned conduct’).[27]
[27]Although previously filed written submissions had raised a ‘second argument’ — that for the impugned conduct to have occurred lawfully, a warrant under the TIA Act was required — this second argument was expressly abandoned in writing prior to the hearing in this Court.
It was submitted that the SD Act creates a scheme for the authorisation of the use of surveillance devices by law enforcement authorities. That scheme permits a law enforcement officer to apply for,[28] and an eligible Judge or AAT member to issue,[29] a warrant to authorise the use of a surveillance device with respect to an investigation of a relevant offence.[30] Such a warrant authorises the installation and maintenance, and the use, of a surveillance device.[31] A surveillance device may be placed on specified premises, in or on an object, or on premises where the person is or is likely to be.[32] Interference with property in connection with the installation and use of a surveillance device is permitted.[33] A surveillance device warrant does not, however, authorise the doing of anything for which a warrant would be required under the TIA Act.[34]
[28]Section 14.
[29]Section 16.
[30]Sections 14(1) and 16(1)(a).
[31]Section 18(2).
[32]Section 18(1) and (2).
[33]Section 18(2)(a)(ii), (b)(ii), (c)(ii), and (3)–(5).
[34]Section 18(7).
Central to the applicants’ arguments was the contention that the SD Act makes clear that a surveillance device may take the form of either hardware or software. Counsel submitted that the SD Act requires any software installed to be the authorised ‘surveillance device.’ It was argued that, whilst a ‘surveillance device’ may be comprised of either hardware or software, the definition of a ‘listening device’ leaves no room for a listening device to be comprised of software. Thus, since the SD warrant in the present case authorised a ‘listening device’, it authorised only the installation and use of hardware, not software.
Further, it was submitted that s 18(2)(b)(i) of the SD Act contemplates the installation and use of software in an object, or the installation and use of hardware in or on an object, but does not contemplate the use of the object as the surveillance device. Hence, the warrant issued in the present case, which authorised the installation and use of a physical listening device, did not authorise the installation and use of the software utilised as part of the impugned conduct. Counsel submitted that the interlocutory decision of the trial judge proceeded on the misconception that the installation of the software on Mann’s mobile phone was irrelevant, since the mobile phone was the listening device. That error is obvious, so it was submitted, once it is understood that the SD Act treats not only hardware, but also software, as a surveillance device, and creates a scheme which regulates the authorisation by warrant of the installation and use of software in objects, as well as the installation of hardware (such as a physical listening device).
Counsel submitted that none of the provisions of the SD Act authorised or justified the interference with Mann’s mobile telephone that was involved in uploading the software onto it. The trial judge was wrong, so it was argued, in holding that s 18(3)(f) of the SD Act authorised the installation of the software, since that provision authorises the connection of a surveillance device to a system that may be used to transmit information and the use of that system in connection with the operation of the surveillance device. That subsection says nothing of the installation of software, so as to alter the nature and capabilities of a mobile telephone.
Ultimately it was submitted that nothing supports an interpretation of s 18(3)(f) as authorising the installation of software so as to obtain the capacity to control a mobile phone. To the contrary, the installation of the software was clearly not authorised by the SD Act. The lack of any authority for that installation, in the context of a legislative scheme that ‘provides explicitly and exhaustively for interferences with property’, and ‘provides explicitly for a warrant that authorises the installation and use of software in an object’, demonstrates that the installation and use of the software was not authorised by the surveillance device warrant issued in the present case. Thus, the installation of the software on Mann’s mobile telephone was unlawful.
Submissions of the Commissioner and Director in this Court
Counsel for the Commissioner — whose submissions were adopted by counsel for the Director — submitted that the SD Act defines a ‘listening device’ simply as ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation’.[35] Further, the SD Act defines ‘device’ to include ‘instrument, apparatus or equipment’,[36] each of which clearly are things that may contain a program. Thus, it is unlikely that Parliament’s definition of ‘listening device’ reflects any intent to restrict the use of software.
[35]Section 6(1).
[36]Section 6(1).
As to the applicants’ argument that the definition of a listening device leaves no room for a listening device to be comprised of software, counsel for the Commissioner submitted that if that argument is meant to convey that software alone cannot constitute a listening device, then the Commissioner agrees (and has never contended otherwise). If the argument is meant to convey, however, that software cannot form part of a listening device, then the argument is wrong. There is nothing to suggest that Parliament intended to eliminate, from the pool of available ‘listening devices’, any equipment containing software.
With respect to the argument that s 18(2)(b) of the SD Act deals exhaustively with ‘warrants in relation to objects’, but does not contemplate that the object in question may be the surveillance device, counsel for the Commissioner submitted that the argument ignored the statutory context. It was submitted that the three kinds of warrant contemplated by the SD Act relate to the three kinds of things which may be of interest to investigators, who may have suspicions relating to premises, objects or persons. In each of these three cases a different activity needs to be authorised. That is why there is a distinction between premises warrants, object warrants and person warrants. Once this distinction is understood, so it was argued, there is simply no reason to assume that the legislature intended to deal comprehensively, in s 18(2)(b), with the broader topic of surveillance devices ‘related to’ a particular object. As was pointed out, even if in a given situation investigators have in mind a particular object at the outset of an investigation, there remain sound reasons for obtaining a premises warrant or a person warrant (at least where the suspicion that founds the warrant is focused on premises or a person). To rely on an object warrant in these circumstances would carry risks; for example, if the object that investigators were interested in ceases to move with the person of interest, or was removed from the premises of interest. It was submitted that it cannot have been the intention of Parliament that investigators be required to go back for a new warrant in such circumstances, or circumvent such difficulties by seeking object warrants by reference to broadly defined categories of object.
As to the argument that any uploading of software would have been an unauthorised interference with property, counsel for the Commissioner submitted that there is no issue that Mann’s mobile telephone is a ‘listening device’, or that the hypothetical impugned conduct would have involved its ‘connection’ to a ‘system that may be used to transmit information’. It was submitted that the applicants’ argument reduces to an assertion that, in circumstances where it would be lawful for investigators to use Mann’s phone as a listening device, and to control it remotely via the mobile telephone network, it would nevertheless be an unlawful interference with property to upload software to facilitate this control. The applicants’ argument should be rejected on two independent bases. First, s 18(3)(f) of the SD Act does not assume that there will be no interference with property. Connecting to some systems (for example, a fixed-line telephone system) will necessarily involve interference to property, yet the Act does not limit the systems to which connection is authorised. Further, s 18(3)(f) specifically provides for connection of a surveillance device not only to a system, but also to an object. So much assumes that there will be some interference with property. Secondly, the uploading of software would in any event have been permitted by s 18(2)(c), which authorised the use of Mann’s phone as a surveillance device. Once it is accepted that investigators may make use of equipment that is already in place, it necessarily follows that there will be interference with property. This may take the form of the mere act of touching the equipment to activate it or connect it to some other equipment. In the impugned conduct, it would involve uploading a program onto Mann’s phone. It was submitted that his is not beyond the contemplation of the SD Act, which makes no attempt to prescribe what technology may constitute a listening device, let alone how it might be activated.
Finally, in the alternative the Commissioner contended that the uploading of the software as part of the impugned conduct would have transformed what was already a listening device (the mobile telephone) into an enhanced listening device (a mobile phone with remote control). A new listening device would thereby be created. To upload the software would thus have been to ‘install’ that new listening device within the authority conferred by s 18(2)(c). This recognises the reality that listening devices consist of multiple parts; so that, whether or not a particular part alone can be regarded as a listening device, the greater whole — at least where the components are integrated as one piece of equipment — is a listening device.
Discussion
The SD Act defines ‘surveillance device’ and ‘listening device’ in s 6(1), so that a ‘surveillance’ device includes a ‘listening device’. Thus:
surveillance device means:
(a) a data surveillance device, a listening device, an optical surveillance device or a tracking device; or
(b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a); or
(c) a device of a kind prescribed by the regulations.
And:
listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation …
Section 10(1) of the SD Act provides that two kinds of warrants may be issued under Part 2, one of which is a ‘surveillance device warrant’.[37] By s 10(2), a warrant may be issued in respect of ‘more than one kind of surveillance device’, or ‘more than one surveillance device of any particular kind’. A ‘surveillance device warrant’ is defined in s 6(1) to include[38] ‘a warrant issued under Division 2 of Part 2’.[39]
[37]The other is a ‘retrieval warrant’.
[38]Although not presently relevant, a ‘surveillance device warrant’ also includes a warrant issued ‘under subsection 35(4) or (5)’.
[39]Division 2 of Part 2 is headed ‘Surveillance device warrants’, and embraces ss 14 to 21.
Key to the resolution of the present case is s 18, which provides:
18 What a surveillance device warrant authorises
(1) A surveillance device warrant (subject to any conditions specified in it) may authorise one or more of the following:
(a) the use of a surveillance device on specified premises;
(b) the use of a surveillance device in or on a specified object or class of object;
(c) the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown.
(2) A surveillance device warrant authorises:
(a) for a warrant of a kind referred to in paragraph (1)(a):
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant on the specified premises; and
(ii) the entry, by force if necessary, onto the premises, and onto other specified premises adjoining or providing access to the premises, for any of the purposes referred to in subparagraph (i) or subsection (3); and
(b) for a warrant of a kind referred to in paragraph (1)(b):
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object or an object of the specified class; and
(ii)the entry, by force if necessary, onto any premises where the object, or an object of the class, is reasonably believed to be or is likely to be, and onto other premises adjoining or providing access to those premises, for any of the purposes referred to in subparagraph (i) or subsection (3); and
(c) for a warrant of a kind referred to in paragraph (1)(c):
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on premises where the person is reasonably believed to be or likely to be; and
(ii) the entry, by force if necessary, onto the premises, or other premises adjoining or providing access to those premises, for any of the purposes referred to in subparagraph (i) or subsection (3).
(3) Each surveillance device warrant also authorises:
(a) the retrieval of the surveillance device; and
(b) the installation, use, maintenance and retrieval of enhancement equipment in relation to the surveillance device; and
(c) the temporary removal of an object or vehicle from premises for the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object or vehicle to the premises; and
(d) the breaking open of anything for the installation, maintenance or retrieval of the surveillance device or enhancement equipment; and
(e) the connection of the surveillance device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment; and
(f) the connection of the surveillance device or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the device or equipment; and
(g) the provision of assistance or technical expertise to the law enforcement officer primarily responsible for the execution of the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment.
(4) A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant.
(5) A surveillance device warrant may authorise the interference with property of a person who is not the subject of the investigation in respect of which the warrant was issued but, if the interference would be on premises not specified in the warrant, only if the person issuing the warrant is satisfied that it is necessary to do so in order to give effect to the warrant.
(6) A law enforcement officer may use a surveillance device under a warrant only in the performance of his or her duty.
(7) Nothing in this section authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception and Access) Act 1979.
It is clear that s 18(1) permits a ‘surveillance device warrant’ to authorise ‘one or more’ specified uses of a surveillance device. Thus a warrant may authorise the ‘use’ of a surveillance device ‘on specified premises’ (‘a premises warrant’).[40] Such a warrant may also authorise the use of a surveillance device ‘in or on’ a ‘specified object or class of object’ (‘an objects warrant’). A warrant may also authorise the use of a surveillance device ‘in respect of the conversations, activities or location’ of a ‘specified person’ or a ‘person whose identity is unknown’ (‘a persons warrant’). As a matter of ordinary language, to ‘use’ something is to put it to a purpose. Section 6(1) of the SD Act, however, contains an inclusive definition, so that, ‘use of a surveillance device includes use of the device to record a conversation or other activity’.[41]
[40]The definition of ‘premises’ in s 6(1) includes land; a building (or part thereof); a vehicle (or part thereof); and any place (whether built on or not), whether or not within Australia.
[41]Section 6(1) defines ‘record’ as follows:
record includes:
(a)an audio, visual or audio-visual record; and
(b)a record in digital form; and
(c)a documentary record prepared from a record referred to in paragraph (a) or (b).
Subsection 18(2) authorises a number of activities related to the use of a surveillance device. Thus, sub-s (2) sets out that a premises warrant authorises the installation, use and maintenance of a surveillance device of a kind specified in the warrant on the specified premises; that an objects warrant authorises the installation, use and maintenance of a surveillance device of a kind specified in the warrant in or on the specified object (or an object of the specified class); and a persons warrant authorises the installation, use and maintenance of a surveillance device of a kind specified in the warrant on premises where the person is reasonably believed to be or likely to be.
A surveillance device warrant also authorises the activities spelled out in sub‑s 18(3). In particular, by sub-s 18(3)(f), a persons warrant (as do premises and objects warrants) authorises the ‘connection’ of the surveillance device to ‘any object or system that may be used to transmit information in any form’ and ‘the use of that object or system in connection with the operation of the device or equipment’. Again as a matter of ordinary language, a ‘connection’ is the bringing together of two or more things so as to establish a link between them. Thus, the subsection authorises the use of a surveillance device and an object or system in ‘connection’ to transmit information in any form. Although ‘system’ is not defined in the SD Act, the word ‘system’ may connote a group of separate things that work together as a complex whole,[42] or an organised scheme or method of action.[43] In the modern parlance of computers, ‘system’ also connotes the connection of hardware and the software necessary to make the hardware functional.[44] Thus, to my way of thinking, a system includes a collection of different components which may be organised or combined for a particular purpose.
[42]One of the meanings attributed to ‘system’ in the Shorter Oxford English Dictionary (6th Ed.) is: ‘A set of objects or appliances arranged or organized for some special purpose, as parts of a mechanism, components of an interdependent or interconnecting assembly or network …’.
The Macquarie Dictionary (6th Ed.) gives the meaning: ‘an assemblage or combination of things or parts forming a complex or unitary whole …’.
[43]Another meaning attributed to ‘system’ in the Shorter Oxford English Dictionary is: ‘An organized scheme or plan of action, esp. an orderly or regular procedure or method’.
And the Macquarie Dictionary (6th ed) includes the definition: ‘a coordinated body of methods, or a complex scheme or plan of procedure’.
[44]With respect to computing, the Shorter Oxford English Dictionary (6th ed) defines ‘system’ as: ‘A group of related or interconnected hardware units or programs or both, esp. when dedicated to a single application …’.
And the Macquarie Dictionary (6th ed) includes: ‘the interrelation of personnel, procedure, hardware, and software, which combine to accomplish a set of specific functions’.
As a matter of substance, the SD warrant authorised the use of a listening device (among other devices) in respect of Mann’s conversations, activities and location, so as ‘to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation’.[45] And by virtue of s 18(3)(f) of the SD Act, the warrant also authorised the connection of the listening device ‘to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the [listening] device’.
[45]See the definition of ‘listening device’ above at [55].
It is tolerably clear that Mann’s mobile telephone was a ‘listening device’ within the meaning of s 6(1) of the SD Act, since it was ‘capable’ of being used to overhear, record, monitor or listen to conversations, albeit that police could only covertly overhear, record, monitor or listen to conversations from a remote location once the relevant software was uploaded onto the telephone. Further, in my view, the installation of the software was the ‘connection’ of the listening device to a ‘system’. The meaning of ‘connection’ is sufficiently broad to extend to the connection of a mobile telephone to a system by the installation of software. It is not necessary that the connection be constituted by a physical addition to the device. Moreover, the meaning of ‘system’ is sufficiently broad to include software used to a activate the mobile phone and transmit onto the telephone network in digital form the information received by the telephone. Thus, in my opinion, the uploading of the software onto Mann’s telephone was the connection of a listening device to a system ‘that may be used to transmit information in any form and the use of that system in connection with the operation of the [listening] device’, authorised by s 18(3)(f).
Conclusion
Given that I am of the opinion that the impugned conduct was authorised by the SD Act, the material sought to be subpoenaed could not properly found a submission that the use of Mann’s mobile telephone to record conversations was attended by illegality or impropriety. Hence, the subpoenas have no legitimate forensic purpose.
The interlocutory decision in the court below setting aside the subpoenas was correct. Leave to appeal must be refused.
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