It follows that s.46(1) requires, relevantly, that the eligible Judge be satisfied that -
(1)there are reasonable grounds for suspecting that a particular person is using, or likely to use, the service (s.46(1)(c)); and
(2)information that would be likely to be obtained by intercepting communications made to or from the service would be likely to assist in connection with the investigation by the AFP of a class 2 offence or offences, in which the person is "involved" in the sense explained in s.6B (s.46(1)(d)).
Although the contrary was argued on behalf of the applicants, we think that it is clear that the phrase "in which the person is involved" qualifies the expression "a class 2 offence, or class 2 offences" and not the word "communication". That being so, the width of the definition of "class 2 offence" provides good reason for requiring that the particular person suspected or alleged class 2 offence be identified in conceptual terms.
A requirement of conceptual identification of the suggested offence or offences is distinct from and falls far short of a requirement that the eligible Judge set out in the TI warrant the essential factual ingredients of each offence which the person has committed, is committing or is suspected on reasonable grounds of having committed or being likely to commit. Whether the matter is considered literally or purposively, there is no sound basis for adopting the latter construction. For one thing, there is no practical way in which the eligible Judge, who has no inquisitorial function in this regard, could embark upon that exercise independently; further, there is no obligation imposed upon the AFP by the TI Act to provide information to the Judge to enable him or her to do so. But, in any event, such an exercise is inappropriate as a condition of the exercise of a power to facilitate the gathering of information likely to assist in connection with the investigation (as defined in s.6A(1)) of a class 2 offence. Entirely different considerations create the need for more extensive particulars at or after the laying of charges which marks the beginning of the trial process. Those differences are emphasised when it is recalled that the "short particulars" contemplated by s.49(7) may be of an offence as to which the Judge is satisfied only that the subject person is suspected on reasonable grounds of being likely to commit it. The Judge may well obtain that degree of satisfaction without being able to give particulars of the kind for which the applicants contend indicating the essential ingredients of the offence.
It follows, in our view, that the applicants' contention cannot be sustained as a matter of construction of the TI Act. Consideration of the form of warrant prescribed by the TI Regulations reinforces this conclusion. Support for it is also found in the fact that s.49(7) refers back to ss.45(d) and 46(1)(d) which refer to "a class 1 offence, or class 1 offences" and "a class 2 offence, or class 2 offences" respectively. This alone suggests that what is called for is a singling out of each particular class 1 offence or class 2 offence, as defined, which is relied on. No doubt a purpose of the requirement is to ensure and make plain that the alleged or suspected offence does indeed fall within the definition of "class 1 offence" or "class 2 offence", as the case may be, and is therefore one in respect of which there is power, and it is appropriate, to issue a warrant.
The terms of s.49(1) explicitly require that the prescribed form of TI warrant is to be adopted, and it appears that nothing in s.49(7) was intended to derogate from that prescription, that is, the prescribed form is quite consistent with s.49(7). As has been said, the contrary is not, and could not be, suggested. It will be recalled that the prescribed form initially follows the wording of s.46(1)(d) and proceeds as follows:
"... offence ... in which that person is involved, namely (set out short particulars of the class 2 offence) ...".
In our opinion, the use in this context of the word "namely" is significant. It serves to indicate a requirement that the offence be identified; and that this process of identification be carried out by the provision of short details of the offence in which the person is said to be involved in the requisite sense, sufficient to identify it in conceptual terms rather than provide "particulars" of material facts. By using the adjective "short", something different from such ordinary particulars, something special, is indicated.
In support of their contention, the applicants sought to rely upon several decided cases but, in our view, their context should be distinguished for present purposes.
They rely upon the reasoning in John L. Pty Ltd. v Attorney-General (NSW) (1987) 163 CLR 508 where it was held, by majority, that an information was defective because it failed to identify "the material particular" in which a statement was alleged to be false or misleading, as an element of an offence, in those terms, under s.32(1) of the Consumer Protection Act 1969 (NSW). Mason C.J., Deane and Dawson JJ. said (at 519):
"The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: In Johnson v Miller ... Dixon J. saw the decision in Smith v Moody ... as requiring the information to specify fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence ...
...
These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.'"
As we have said, there is no reason of principle or of expedience to import such a requirement into s.46 or into s.49 of the TI Act. On the contrary, there is every reason to suppose that the expression "short particulars of each ... offence" in relation to which the Judge is satisfied as mentioned in s.46(1)(d), signifies only sufficient conceptual identification to enable a reader of the TI warrant to perceive whether the offence is of the kind included in the definition of "class 2 offence" in s.5.
The applicants also rely upon the reasoning of the majority (Kirby P. and Handley J.A.) of the New South Wales Court of Appeal in Carroll v Mijovich (1991) 25 NSWLR 441 in which a search warrant was held invalid by virtue of non-compliance with s.13(1) of the Search Warrants Act 1985 (N.S.W.). That subsection was to the effect that a justice who issues a warrant "shall cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant". But it appears that the decision proceeded upon the footing that there had been a constructive failure by the justice to exercise jurisdiction (see per Handley J.A. at 456-7). Such an extreme position is not suggested here. In any event, the language of the New South Wales legislation was quite different from that which is before us.
Finally, in our view, the present warrant did identify two "class 2" offences and did so in conceptual terms which were adequate (cf. Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 per Burchett J. at 537-8).
6.5Whether the scope of the TI warrant exceeded what the legislation permits such a warrant to authorize
For the applicants, it was argued that the TI warrant as issued authorized interceptions beyond those contemplated by the scheme of the TI Act because they were not limited to communications made to or from the relevant service which would be likely to assist in the investigation of the specified criminal offences. That submission was based on s.46(1) of the Act construed in the context of the Act as a whole. That subsection provides:
"Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 2 offence, or class 2 offences, in which the person is involved; and
(e) having regard to the matters referred to in subsection (2), and to no other
matters, the Judge should issue a warrant authorising such communications to be intercepted;
the Judge may, in his or her discretion, issue such a warrant."
Against that background, it was argued that, since the subscriber for the service in question was Mrs. Flanagan, it was highly probable that at least some communications to and from the service would have nothing whatever to do with Flanagan or Bruno Grollo, being the "particular person" whom the eligible Judge was satisfied was using or likely to use the service. Those extraneous communications, so the argument went, would be unlikely to assist in the investigation of any relevant class 2 offence and, therefore, did not come within the ambit permitted by the phrase "such communications" in s.46(1)(e). However, the words in s.46(1)(d) "would be likely to assist in connection with the investigation ... of a class 2 offence" qualify the word "information" in that paragraph and not the phrase "communications made to or from the service". Thus, the expression "such communications" in paragraph (e) refers without qualification to all communications made to or from the service.
We have already indicated in section 6.4 above that the phrase "in which the person is involved" in s.46(1)(d) refers to "a class 2 offence or class 2 offences" and not to the word "communication".
As well as being required by the grammar of the legislation, the construction which we favour has the virtue of making it practicable. Until a communication to or from a service has been intercepted and recorded, it is impossible to know whether it would be likely to assist in an investigation, or even to identify the parties to the communication. If warrants were confined to authorizing the interception of communications to which the particular person could be identified at the outset as a party, they would lose much of their efficacy. This cannot have been intended.
The construction which we have adopted is reinforced by the language of s.46(2)(a) of the Act which stipulates:
"The matters to which the Judge shall have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1)...".
Had the legislation been understood to authorize only the interception of communications to or from the particular person, it would have been more appropriate for the paragraph just quoted to direct that regard be had to the privacy only of the particular person and any person communicating with him or her, than for it to refer to the privacy of "any person or persons".
Section 67 of the TI Act and the definition of "permitted purpose" in s.5 recognise that communications may be intercepted pursuant to a TI warrant which are relevant, not to the investigation of the class 1 or class 2 offence specified in the TI warrant, but to the investigation of a prescribed offence as defined. There is no requirement that the prescribed offence be one in which the particular person contemplated by s.46(1) is involved. These considerations also militate against the construction advanced on behalf of the applicants.
For the reasons given in section 6.4 above, the TI Regulations can also be called in aid of construing the statutory scheme of which the Act forms the principal part. It is, therefore, significant that the authorization conferred by the form of TI warrant prescribed by the TI Regulations is one to intercept "communications made to or from the service". Had the applicants' interpretation been correct, one would have expected the form to limit the authorization to interception of communications made by means of the service to or from the particular person.
Finally, in this context, we observe that protection is afforded to extraneous communications by ss.56 and 57 of the TI Act, which make it mandatory for the Commissioner of Police or another chief officer to revoke a TI warrant forthwith once satisfied that the grounds for its issue no longer exist. Consequently, steps must be taken forthwith to ensure that interceptions of communications under the TI warrant are discontinued (s.58). (See also s.63 which, subject to Pt VII, prohibits the use or giving in evidence of lawfully obtained information, and s.79 which obliges a relevant agency's chief officer, who is satisfied that a record of a communication obtained by an interception is not likely to be required for a permitted purpose, to cause the restricted record to be destroyed forthwith.)
6.6Whether the application for the TI warrant was vitiated by an improper purpose
As has been noted, in their statement of claim the applicants allege (1) that the provisions of the TI Act did not authorize the making of an application for a TI warrant, or the issuing of such a warrant, to assist in connection with the corruption investigation; (2) that the purpose, or the dominant or substantial purpose for which the application for the TI warrant was made, was to assist in connection with the corruption investigation; and (3) that, accordingly, the application was not made bona fide for the purpose for which the power to apply for the issue of a TI warrant was conferred, but was made for an improper or ulterior purpose. In their submissions and by their cross-examination in relation to this branch of the case, counsel for the applicants made it plain that actual bad faith on the part of the AFP, and in particular of Hadgkiss as the officer directing this aspect of the operation, was alleged. The
credit of Hadgkiss was seriously challenged in cross-examination.
By their defence, the AFP and the DPP deny the applicants' allegations. They say that the provisions of the TI Act do not preclude the making of an application by reason only of the circumstance that it was the intention of the AFP to use information obtained pursuant to the TI warrant to assist in connection with the corruption investigation as well as with the tax fraud investigation (cf. the observations of Jenkinson J. in Grollo v Macauley (1993) 45 FCR 336 at 352). They also deny that the sole purpose for which the TI warrant application was made was to assist in Operation Retrieve, although they admit that this was a purpose for which the application was made. They further say that a substantial, or the substantial, purpose for which the application was made was to assist in Operation Poker, since: (1) Retrieve arose out of, and formed part of, Poker; and (2) the application was made for the purpose of obtaining information of the kind stated in para.29 of Draffin's affidavit, that is information demonstrating consciousness of guilt or admissions in respect of the tax fraud. In their submissions, counsel for the respondents relied on Moriarty v London, Chatham and Dover Railway Co. [1870] LR 5 QB 314 at 320, 321 and 323 and R v Watt [1905] Crim Law Cases, 852 at 854, as authority for the proposition that collateral material of this kind may be admissible as an admission by conduct out of court.
This issue is one of mixed fact and law.
On behalf of the respondents, it is accepted, properly, that if fraud or bad faith on the part of those applying for the TI warrant were made out, the warrant should be set aside (see, e.g., Lego Australia Pty. Ltd. v Paraggio (1994) 52 FCR 542 at 555-6).
It is equally well established, and not disputed here, that an administrative act will be invalidated where its "initiating and abiding purpose" is a foreign or ulterior one (see, e.g., Samrein Pty. Ltd. v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 at 470; Johns v Australian Securities Commission (1993) 178 CLR 408 at 423; Williams v Spautz (1992) 174 CLR 509; Ang v Minister for Immigration & Ethnic Affairs (1994) 121 ALR 95 at 101; Mathews v Maddigan, Full Federal Court, 6 November 1995, unreported; cf. Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 at 673, 697; Bienke v Minister for Primary Industries & Energy (1994) 125 ALR 151 at 171-2). American jurisprudence in this area has developed the analogous notion of "subterfuge" or "device" as infecting the warrant with invalidity where officials deliberately conceal from a judge issuing the warrant the fact that they foresee the high likelihood that evidence of other crimes would be revealed. This deliberate concealment or hiding of such facts can give rise to an inference of bad faith (see, e.g., United States v Levine 690 F. Supp. 1165 (E.D.N.Y. 1988) at 1170; 103 ALR Fed 422 at 432; see also C. Fishman, Wiretapping & Eavesdropping, 1978).
Whether bad faith, actual fraud, or an improper purpose underlay the application for the warrant soon emerged before us as a contested question of fact. So much is clear from our earlier recitation of the background facts. It may be that the views of the AFP officers, at least as documented, were not always consistent on the question whether the two investigations were, on the one hand, separate and independent, or on the other, related and linked. The true context of some of the statements and complicated questions of degree and emphasis naturally assume significance in this connection.
In the course of cross-examination, as we have said, the credit of Hadgkiss, especially, was vigorously challenged. Out of all this, one thing emerged with clarity: the resolution of these factual issues could not be readily achieved. Early in the hearing, when this difficulty became apparent, counsel were asked to obtain instructions on whether it was appropriate for the matter to be referred to a single judge of the Court to make findings of fact. An example of the adoption of this course in a prerogative writ application in the High Court was given - see Re The Director-General of Health; Ex parte Thompson (1976) 51 ALJR 180 at 180 (Gibbs J). However, each of the parties opposed this course. Consequently, given the shortness of time before the trial resumes in the County Court, it is simply not practicable for a Full Court now to embark upon the lengthy and substantial task of making those findings, even if it were, in principle, appropriate for it to do so (cf. Carroll v A-G (NSW) [1973] 70 A Crim R 162, considered below). Any attempt to do so would necessarily involve considerable difficulty and delay in the commencement of the trial in the County Court. This would contradict the important public interest in the expeditious resolution of criminal charges.
On the question of discretion, we have taken into account other considerations urged on behalf of the applicants, including the reasoning in McArthur v Williams (1936) 55 CLR 324, as applied in Murphy v R (1989) 167 CLR 94, which we discuss below. However, we have concluded that such matters do not justify this Court's intervention in the criminal proceedings at this stage. In short, we are of the opinion that, in the criminal trial, it is open to the applicants to urge that the product, and the fruits of the product, be excluded. Whether the allegations of bad faith and impropriety will, in fact, be made out, and whether, if so, the power, duty or discretion to exclude the product and its fruits should be exercised, are questions entirely within the jurisdiction of the County Court. We do not, and should not, express a view on those questions. We now give our reasons for this conclusion.
In McArthur v Williams, an information had been sworn before a New Zealand magistrate, brought to Australia and endorsed by a police magistrate for New South Wales under the Fugitive Offenders Act 1881 (U.K.). The informant before the New Zealand magistrate, who had no personal knowledge of the facts, swore that he had just cause to suspect, and did suspect, that the defendant had published a false prospectus. The statutory form of information provided that if the facts were not within the personal knowledge of the informant, the matter was to be substantiated by the oath of another. On behalf of the defendant, it was argued that the information was laid by a person, not upon his own knowledge of the facts, but only upon information received by him; that in cases of suspicion the facts from which suspicion is said to arise should be set out in the information; that the informant did not have the suspicion which justified the issue of the warrant; and that no warrant should have been issued on such an information. It was held that the warrant was valid under the Justices of the Peace Act 1927 of New Zealand. Although the applicants place much reliance upon a passage in the reasons of Dixon, Evatt and McTiernan JJ., it appears that those observations were made in the special context of that case. In particular, there is nothing in McArthur which bears upon the power of a judge in a criminal trial to exclude evidence where appropriate. Latham C.J. said (at 334-5):
"Even if the [statutory] form ... should be regarded as applicable in all cases, I do not think that it is mandatory in character. A magistrate need not
conduct a preliminary trial before he issues a warrant. He should act responsibly, but the [form] would not be construed reasonably if it were interpreted as meaning that, before issuing an information, the magistrate must, as a condition precedent, require the oath of persons with personal knowledge of the facts upon which the charge is based. The result of such an interpretation would be that the magistrate in all except the simplest cases would have to examine a number of witnesses who would have to be brought before him for the purpose of being so examined. There is, however, no method provided by law for compelling the attendance of witnesses for the purpose of such an inquiry being made. It is therefore prima facie unlikely that the construction for which the applicant contends is correct. In my opinion, if the [form] is to be regarded as applying in every case, it should be construed as directory and not mandatory in character."
Starke J. said (at 349-350):
"The only question is whether the New Zealand magistrate had jurisdiction to issue his warrant for the apprehension of the accused: the magistrate's decision upon matters within his jurisdiction, even if erroneous, cannot be questioned: there is no appeal in these proceedings from the magistrate's decision. In R. v Hughes ... Huddleston B. said that `the information on oath is not necessary to give the justices jurisdiction to try, though it is necessary to give them jurisdiction to issue a warrant to apprehend' ... . No case decides that the information deposed to or oath must be within the personal knowledge of the informant: such a requirement would be impracticable in many cases without an extended hearing. A warrant should not be lightly issued, but the evidence - its credibility and its character - that justifies its issue is a matter for the judicial discretion of the person issuing it. There is nothing in the Justices of the Peace Act 1927 of New Zealand which conflicts with this view, unless it be the note to [statutory] form ... . But there is nothing in that [form] which suggests that the personal knowledge of the informant is the foundation of the magistrate's jurisdiction. The informant, according to the form, may verify the charge or his suspicion that an offence has been committed, and if the facts on which the information is founded are not within his personal knowledge, then the information may be substantiated by the oath of someone else. But all this is directed to matters within the discretion of the magistrate, and not to the foundation of his jurisdiction."
Dixon, Evatt and McTiernan JJ. said (at 364):
"Was it necessary that the informant himself should possess, or appear to the justice to possess, direct knowledge of circumstances amounting to just cause for suspecting the offence, or should produce a witness who possessed, or appeared to possess, such knowledge? This is a question of New Zealand law, but it is raised here because sec.14 requires that the magistrate before whom a prisoner is brought after his apprehension under a warrant backed under sec.13 shall, before ordering the return of the fugitive, be satisfied that the warrant was issued by a person having lawful authority to issue the same. Sec.13 also requires that the magistrate who is invited to back the warrant shall be so satisfied before he indorses it. It may be doubted whether this means more than that the magistrate must be satisfied of the existence in the person issuing the warrant of an authority to issue such a warrant. The sufficiency of the materials to enable him to exercise the power does not seem a fit subject for inquiry by the tribunal of another possession. The magistrate making an order under sec.14 acts judicially and must be satisfied by evidence of such a matter of foreign law. The validity of his order, as distinguished from the legal propriety of his making it, could not, in our opinion, be affected by an erroneous determination of such a question. The actual existence under the law of one possession in the magistrate who issued the warrant of an authority to do so is not made a condition precedent to the jurisdiction of the magistrate of the other possession to order the fugitive's return. On the contrary, it is a matter which he is called upon to decide in the course of exercising his jurisdiction. It is, therefore, not a ground upon which a prerogative writ of prohibition can be obtained. No irregularity in the proceedings before the magistrate is suggested, and mere error, as distinguished from excess of jurisdiction, is no ground for a writ of certiorari and no other ground appears."
Their Honours continued (at 365-6):
"Since 11 & 12 Vict. c.42 and 11 & 12 Vict. c.43 an
information or complaint substantiated on oath has been the necessary foundation of a magistrate's authority to issue a warrant. But it has never been considered that the validity of the warrant could depend upon the nature or sufficiency of the materials upon which a magistrate granted the warrant if there was an information on oath before him which, however irregular, was not a nullity. It is easy to understand that the existence of a written information sworn to or supported on oath might be conditions precedent to an authority to issue a warrant of apprehension. But when these conditions are satisfied, the magistrate has materials upon which he must form his judgment. In general the sufficiency or character of materials which are required for the purpose of exercising a discretion is not a matter upon which the validity of the discretionary act is made to depend (cf. Cooper v Booth [1785] 3 Esp. 135, at p.144; 170 E.R. 564, at pp.567,568). [emphasis added]
There is nothing in the New Zealand statute, except the note to the form of information, to support the view that an oath is necessary of an informant or witness who had, or who appeared to have, personal knowledge of the facts relied upon. In our opinion that note supplies no sufficient reason for giving to the statute an interpretation which would make a warrant void if it were granted upon an information sworn by an informant who neither had nor appeared to have direct knowledge of the circumstances amounting to cause for suspecting the offence and substantiated by no other oath."