Commissioner of Police v Barbaro

COUNSEL : P I Lakatos (Appellant) A M Martin (Respondent) SOLICITORS : I V Knight, Crown Solicitor (Appellant) Cater & Blumer Griffith (Respondent) CATCHWORDS : CRIMINAL LAW - practice and procedure - warrants - validity - "period" of warrant - obvious mistake - construction - erroneous end date did not invalidate warrant where intended date was clear - Listening Devices Act 1984 LEGISLATION CITED : Listening Devices Act 1984 (NSW) Crimes Act 1914 (Cth) Haynes v Attorney General (James J unrep 9/2/96) Bayeh v Taylor (Grove J unrep 4/2/98) Ousley v The Queen (1997) 192 CLR 69 CASES CITED: Regina v Toro-Martinez CCA 7/2/2000 unrep Fitzgerald v Masters (1956) 95 CLR 420 Norfolk Estates Ltd v Cadiz Corporation Pty Ltd (1977) 77 ATC 4494 R v Briggs [1995] 1 NZLR 196 CA, 198 DECISION : Leave to appeal granted - orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

41003/99 SC 11323/99 PRIESTLEY JA MEAGHER JA HANDLEY JA

COMMISSIONER OF POLICE v PASQUALE BARBARO & ORS CRIMINAL LAW - practice and procedure - warrants - validity - "period" of warrant - obvious mistake - construction - erroneous end date did not invalidate warrant where intended date was clear - Listening Devices Act 1984 The Commissioner of Police sought leave to appeal from a decision of O'Keefe J (reported as Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68) quashing a warrant to use a listening device granted by Dowd J under the Listening Devices Act 1984 on 15 December 1997. The plaintiffs challenged the warrant on two grounds: firstly, that the person fitted with the listening device had not been named by the warrant as an authorised user; and secondly, that the warrant failed to comply with s 16(4)(c) of the Act which requires the warrant to specify the period during which it is in force. A typographical error in the warrant resulted in it purporting to be in force from "4.30 pm on 15 December 1997 until 4.30 pm on 4 January 1997". O'Keefe J rejected the first ground but accepted the second ground and ordered that the warrant be quashed. HELD, granting leave to appeal and allowing the appeal: (1) O'Keefe J was correct in rejecting the argument about the authorised user of the device for the reasons he gave; (2) Unlike a search warrant, a warrant under the Act does not have to be produced to persons whose premises are about to be entered and searched and hence there is not the same necessity for such a warrant to be clear on its face; (3) A false description does not vitiate if there is sufficient certainty and in this case no one who was required to act on, and comply with, the warrant could possibly have been misled. The second date was obviously intended to be 4 January 1998. ORDERS

(2) Claimant to file a notice of appeal within 14 days;

(4) Judgment of O'Keefe J set aside, and in lieu thereof order that the summons be dismissed with costs;

(5) The respondent to have a certificate under the Suitors Fund Act . THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

41003/99 SC 11323/99 PRIESTLEY JA MEAGHER JA HANDLEY JA

1 PRIESTLEY JA: I agree with Handley JA on both questions argued in this appeal. 2 The second question was whether the warrant challenged in this case was invalid because it specified that it should be in force from "... 15 December 1997 until ... 4 January 1997". The second "1997" was obviously a mistake for "1998". In his reasons Handley JA refers to rules of interpreting documents which authorise courts to read a mistake such as that in the present case as conveying the intended meaning if that meaning is sufficiently clear in the circumstances. In some cases the application of the rules is more straightforward than in others. In the more difficult cases an act of judgment by the court must be made. A mistake like that in this case in the date for execution in a death warrant might well be given a more literal interpretation than the same mistake in a warrant for a less grave purpose. 3 In the circumstances of the present case I think Handley JA is justified in taking into account the various considerations he specifies in his reasons as leading to the conclusion that "1997" should be read as "1998" and that the mistake does not invalidate the warrant. 4 I agree with the orders proposed by Handley JA. 5 MEAGHER JA: I agree with Handley JA.

6 HANDLEY JA: On 26 November 1999 O'Keefe J ordered that a warrant granted by Dowd J under the Listening Devices Act (the Act) on 15 December 1997 be quashed. The Commissioner of Police sought leave to appeal and the parties agreed that the hearing of the summons for leave should be treated as the hearing of the appeal in the event that the Court decided to grant leave. The opponents filed a notice of contention in respect of the issues on which they had failed. 7 The warrant in paragraph 2 authorised the use of a listening device by a named police officer, and by other named police officers on her behalf, "to record or listen to the private conversations" of the opponents, two other persons, and Michael Nanai "by attaching such device on or about the person of Michael Nanai". 8 Paragraph 3 of the warrant fixed the period from 4.30 pm on 15 December 1997 until 4.30 pm on 4 January 1997 (sic) as the period during which the warrant was to be in force. 9 Police officers fitted a listening device to Mr Nanai at different times on 15, 19 and 20 December 1997 and the device was activated on each of those days to record private conversations with one or more of the opponents. The police sought to use this evidence in committal proceedings against the opponents. The latter brought the proceedings heard by O'Keefe J to have the warrant quashed in order, if possible, to prevent this. 10 The plaintiffs propounded two challenges to the warrant. The first was that Mr Nanai had used the listening devices but had not been named by the warrant as an authorised user. The second was that the warrant failed to comply with s 16(4)(c) of the Act. 11 O'Keefe J, whose judgment has been reported as Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68, rejected the first ground but upheld the second and ordered that the warrant be quashed. He held that the warrant authorised the action taken by Mr Nanai because he was named in the warrant and his actions specifically authorised by its terms. If his actions did involve the use by him of the listening devices for the purposes of the Act, the warrant had authorised those actions. He held however that Mr Nanai had not used the listening devices because he was a mere carrier, and the devices were relevantly used by the police officers who fitted them, activated them by remote control and removed them. 12 I agree with the reasoning of O'Keefe J on both these points and adopt this part of his reasons as my own. I would add that this challenge to the warrant was in any event misconceived. Assuming the warrant was otherwise valid, it authorised the actions taken by the various police officers. If the warrant did not authorise the action taken by Mr Nanai, and he had in truth used the listening devices for the purposes of the Act, that simply means that his use of the devices was not authorised by the warrant. This could have other legal consequences, but would not invalidate the warrant. 13 The other challenge to the warrant was that it did not comply with s 16(4)(c) which provided that: "(4) A warrant granted by an eligible Judge under this section shall specify: … (c) The period (being a period not exceeding 21 days) during which the warrant is in force". 14 The challenge was based on para 3 of the warrant which provided that the warrant was to be in force for the period "4.30 pm on 15 December 1997 until 4.30 pm on 4 January 1997". 15 The Act does not authorise the issue of a retrospective warrant or one which remains in force for more than 21 days. The warrant therefore failed to specify the period during which it would be in force unless it could be construed as fixing this as the period between 15 December 1997 and 4 January 1998. 16 Section 16(4) provides that the warrant "shall specify" the matters referred to in the following paragraphs, and failure to do so will invalidate the warrant. See Haynes v Attorney General (James J unrep 9/2/96) where because of a blank the warrant failed to comply with s 16(4)(c), and Bayeh v Taylor (Grove J unrep 4/2/98) where the warrant did not in terms require the retrieval of a listening device installed on premises. Statements in Ousley v The Queen (1997) 192 CLR 69 support this view. See per Toohey J at 83, McHugh J at 111, 113 and Gummow J at 127-8; compare Gaudron J at 93. 17 The validity of this warrant turns on the construction of para 3. Warrants under the Act authorise invasions of the privacy of the persons whose conversations are recorded, and in some cases they authorise trespasses on their property or the property of others. On the other hand warrants under the Act, unlike search warrants, do not have to be produced to persons whose premises are about to be entered and searched. They are directed to the police officers who will act on them, and this will occur in conditions of secrecy. There is therefore not the same necessity for such a warrant to be clear on its face. See Ousley v The Queen at 81-2 per Toohey J, 89-90 per Gaudron J, and 111-2 per McHugh J. 18 In any event the Court should not adopt a hypercritical approach to warrants. As Kirby J said in Ousley v The Queen at 144: "Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them. But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected". 19 This is a proper case for the application of the principle summed up in the Latin maxim false demonstratio non nocet meaning that a mere false description does not vitiate if there is sufficient certainty. See Broom's "Legal Maxims" 10th Ed 1939 pp 426-7. The principle embodied in this maxim has been applied in analogous contexts. In Regina v Toro-Martinez (CCA 7/6/2000 unrep) it was applied to a certificate under s 15M of the Crimes Act 1914 (Cth) expressed to cover the period from "13 December 1996 until 11 January 1996". Spigelman CJ said (para 35): "This is the kind of typographical error that often occurs at the end of one calendar or the commencement of a new calendar year. The intent is plain and the error is obvious". 20 A related principle was applied in Fitzgerald v Masters (1956) 95 CLR 420, 426-7 by Dixon CJ and Fullagar J: "Words may generally be supplied, omitted or corrected in an instrument where it is clearly necessary in order to avoid absurdity or inconsistency". 21 See also Norfolk Estates Ltd v Cadiz Corporation Pty Ltd (1977) 77 ATC 4494, 4501-2, and R v Briggs [1995] 1 NZLR 196 CA, 198. 22 In my judgment the warrant on its true construction specified the period from 15 December 1996 until 4 January 1997 as the period during which it would be in force and as such it was valid. The word "until" showed that the warrant was intended to have a prospective operation and on that basis there could be no doubt that "4.30 pm on 4 January 1997" was intended to mean and did mean 4.30 pm on 4 January 1998. No one who was required to act on, and comply with, the warrant could possibly have been misled. Accordingly leave to appeal should be granted and the appeal allowed. The following formal orders should be made:

(2) Claimant to file a notice of appeal within 14 days;

(4) Judgment of O'Keefe J set aside, and in lieu thereof order that the summons be dismissed with costs;

(5) The respondent to have a certificate under the Suitors Fund Act . ******

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.