In the present case declaratory relief, for the reasons set out earlier would clearly produce "foreseeable consequences for the parties".
The passage cited by the Court of Appeal from Grollo's case relates to the "practical" rather than the "legal" difficulties of review as a result of the secrecy attending the decision making process, the absence of records in relation to the decision and the absence of reasons for the decision to issue a warrant. The High Court in Grollo said nothing about the availability of judicial review as a remedy if and when the veil of secrecy is pierced by the disclosure of the existence of the warrant to those whose privacy had been invaded by it.
Finally, the apparent conclusion of the Court of Appeal would result in LD and TI warrants being unreviewable for those having the most obvious entitlement to review. I am referring to individuals whose private communications have been intercepted and recorded pursuant to a warrant which has not led to any criminal charges against those individuals. An example arises in the present case in relation to the applicant's clients whose privileged communications have been intercepted and recorded. In my view there is nothing in the Constitution, s.39B or the legislative scheme in relation to warrants which immunises the warrants from judicial review for the benefit of those or any other persons in an appropriate case.
8.0 Jurisdiction to review the validity of warrants - the criminal trial court
Several decisions have left the entitlement of the criminal trial court to review the validity of a warrant in a state of some uncertainty. Indeed, as recently as Robinson at 32-3 the Court of Appeal stated it need not decide this point and left it open, although its dicta appeared to favour the trial court having jurisdiction to treat a warrant as invalid. As a result counsel for the applicant submitted that the only clearly established mode of review of the warrants' validity is by proceedings in this Court. That submission is of some significance as, if the trial court's lack of jurisdiction resulted in it being unable to effectively deal with the real issues of validity and inadmissibility, it may be unjust for this Court to exercise its discretion by declining to do so.
As the trial court in a criminal proceeding may not grant administrative law remedies as if it was a court with jurisdiction to judicially review a decision to issue a warrant, doubt has been expressed both in earlier and recent decisions as to the nature and extent of the trial court's jurisdiction in that regard. In my view it can now be accepted that in order to exercise its undoubted jurisdiction to ascertain whether evidence proposed to be adduced was lawfully obtained the trial court can determine whether there was jurisdiction or power to issue a warrant and therefore whether it constituted a valid authorisation in law to obtain the
evidence proposed to be adduced: see Flanagan at 187 and 204-213.
The earlier doubt related to whether a trial court was entitled to treat itself as not bound by the decision of a judicial officer to issue a warrant. The doubt, in part, may have arisen as a result of the special position of judicial or court orders, particularly in a superior court of record. A decision of a superior court:
"even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside": see Cameron v. Cole (1944) 68 CLR 571 at 590 per Rich J and Wilde v. Australia Trade Equipment Co. Pty. Ltd. (1981) 145 CLR 590 at 602 per Stephen, Murphy and Wilson JJ.
However, the issue of warrants even by State judicial officers is now accepted to be an administrative act and not an exercise of judicial power or a decision of a superior court. In Love v. Attorney-General for New South Wales (1990) 169 CLR 307 the High Court said in the joint judgment at 322-3:
Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority.
A warrant made pursuant to a "circumscribed statutory authority" will be invalid and therefore void if made in excess of power or jurisdiction conferred by the statute: see Coco 444, 446 and 462.
The situation in respect of the review of an administrative decision made without or in excess of power or jurisdiction was considered in Craig v. The State of South Australia (1995)
184 CLR 163. In the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179-180 their Honours discussed the significant distinction between administrative and judicial jurisdictional error or excess of power:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord diplock in In re Racal Communications Ltd.
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise of purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question with jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. (Emphasis added)
In the present case decisions to issue LD and the TI warrants, although made by eligible Judges, constituted administrative acts in the exercise of the executive and not the judicial power of the Commonwealth: see Grollo v. Palmer (1995) 184 CLR 348. There is nothing in the CA or the TI which provides for
such decisions or their review to be subject to any special principle or procedure. Accordingly, it follows that it must be open to a trial court in which the issue of the validity of a LD or TI warrant arises, to hear and determine that issue. If the court concludes that there has been jurisdictional error in the sense discussed in Craig, it will treat the decision to issue the warrant as invalid. The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error.
Although in my view, Flanagan is authority for that conclusion, it also follows from the decision of the High Court in Coco. In that case the Court held that the trial court wrongly admitted evidence obtained under an invalid warrant to use a listening device in accordance with an approval of a Judge of the Supreme Court of Queensland. The Court concluded that in giving approval the Judge had acted beyond his power or jurisdiction with the consequence that the warrant was void. There can be no doubt from the decision itself that administrative "jurisdictional" error by the Judge granting approval, in the sense discussed in Craig, was treated by the members of the Court as a matter for the trial Judge and where that Judge erred in treating the warrant as valid, for the appellate court: see Mason CJ, Brennan J. Gaudron J and McHugh J at 435, 443-4, 445-6, Deane and Dawson JJ at 446 and Toohey J at 462. As a result of the warrant being invalid the evidence obtained from it should have been held to be inadmissible by reason of the statutory prohibition against its use contained in s.46(1) of the Invasion of Privacy Act 1971 (Q). Section 63(1) is the relevant counterpart in the TIA. On that basis the High Court upheld the appeal to it and quashed the appellant's conviction.
Section 9 of the ADJR Act does not operate to inhibit or impede in any relevant way the exercise by the trial court of its jurisdiction to exclude evidence on the ground of an invalid warrant. That section merely deprives State courts of jurisdiction to review administrative decisions under Commonwealth legislation by way of injunction, prerogative or statutory writ or by the making of a declaratory order. Nothing in the TI Act or the CA evinces an intention to exclude warrants from examination or review by a trial court or otherwise.
It must follow that all of the issues relating to invalidity and any consequential exclusion of evidence which are sought to be agitated in this proceeding are capable of being dealt with in the ordinary course of the criminal proceeding. Accordingly no apparent injustice arises if those issues are left for determination by the trial court, and if there is error, by an appellate court.
9.0 Fragmentation of the criminal process
As both this Court and the trial court have jurisdiction to deal with the real issues relating to the validity of the warrants and the exclusion of evidence, the general principle against fragmentation of criminal proceedings clearly applies in the present case. The issue then arising is whether:
(a) any of the applicant's claims fall within any of the recognised exceptions to the general principle; and
(b) it is appropriate that this Court, rather than the trial court, determine those claims.
As was restated in Flanagan it is well established that criminal proceedings should not be fragmented by other courts entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal proceedings. After discussing the problems and injustice inherent in delaying the criminal process, the Full Court in Flanagan discussed exceptions to the general principle. At 188 the Court drew a distinction between:
(a) claims for relief involving pure questions of law, emerging from a context of undisputed facts, especially questions the resolution of which may clarify the law for other cases;
and
(b) claims based substantially on contentious matters of fact, including questions of mixed fact and law.
The Court then said:
Prima facie there is much to be said in favour of the courts, in the exercise of their discretion, hearing and determining claims of type (a), above, if they are brought forward at an appropriate time. Where the facts are simple and few and the point is one of law, a claim may, as an exception of the fragmentation principle, be entertained on an application for judicial review, even if it could affect the admissibility of evidence (see, eg. Young v. Quin (1985) 4 FCR 483; cf Sankey v. Whitlam at 25-26. Equally, the courts do not ordinarily entertain claims of type (b), above, because the fragmentation of the criminal process which is involved is not outweighed by any real benefit that might flow from the collateral resolution of the issue (see, eg, Quin at 493).
In Flanagan the Court held that the following claims in that case fell within category (a):
. Whether the applicant had standing to apply for the TI warrant.
. Whether there existed an application in writing for the TI warrant.
. Whether the TI warrant contained "short particulars" of the relevant offences.
. Whether the scope of the TI warrant exceeded what the legislation permits a TI warrant to authorise.
. Whether the applicant's affidavit was inadequate to entitle the eligible Judge to issue the TI warrant.
and the following claims fell within category (b):
. Whether the application for the TI warrant was vitiated by an improper purpose.
. Whether the TI warrant was invalid by reason of the failure of the AFP to disclose material matters.
In the present case only two claims may fall within category (a); they are the inadequacy claims and the legal privilege claim.
In my view the remaining claims being the non-disclosure claims and the factual privilege claims are likely to raise some contentious issues of fact and questions of mixed fact and law and fall within category (b). Those claims ought to be determined in the usual course by the trial court.
In Flanagan the Court determined that it was appropriate for it to resolve the category (a) claims as they involved "pure questions of law". In that case there had been extensive pre-trial interlocutory processes and the matter came on for a final hearing before a Full Court. The fragmentation issue was
first argued at the final hearing. The date of the criminal trial had been adjourned to enable the Full Court to consider the issues raised before it.
In those circumstances there was obviously much to be said in favour of the interests of justice being served by the Full Court resolving the questions of law that had been argued and which it determined as appropriate for resolution before it. However, it does not follow that merely because a case raises a pure question of law that that question is one which is appropriate for determination by way of review in this Court, rather than in the course of the criminal process. Each case will have to be determined on its own facts. However, it is appropriate for a fragmentation issue to be raised at an earlier, rather than a later, stage of the proceedings and for the issue to be determined as soon as the real issues arising in the proceeding are clear.
In the present case, if the only category (a) claims were the inadequacy claims and the determination of those claims by this court had the potential to delay the trial, that factor would militate in favour of the trial court rather than this court determining that issue. However if all of the facts necessary to enable those claims to be determined were to be before the Court to enable it to determine other category (a) claims which were regarded as appropriate for determination by it, that would approximate the situation in Flanagan.