DPP v Webb

JUDGMENT 1 HIS HONOUR: Kerri-Lee Webb (the defendant) was charged with three offences of possessing firearms contrary to the provisions of s 7(1) of the Firearms Act 1996 and one offence of possessing ammunition for a firearm contrary to the provisions of s 65(3) of that Act. The charges arose out of investigations that had been carried out by the New South Wales Crime Commission with the assistance of officers of the New South Wales Police Service. The investigation involved, inter alia, the use of listening devices and telephone intercepts. Authorisations for the use of the listening devices and the effecting of interception of conversations over the telephone were by virtue of warrants granted under the Listening Devices Act 1984 and the Telecommunications (Interception) Act 1979 respectively. 2 The product resulting from the use of such listening devices and telecommunication interceptions formed an essential part of the prosecution case against the defendant. The hearing of the charges came before a Local Court Magistrate at the Downing Centre on 16 December 1999. At the outset of the proceedings the solicitor for the defendant raised a number of preliminary matters, one of which was that the brief of evidence served upon the defendant as required by Subdivision 6A of Division 2 of Part 4 of the Justices Act 1902 included statements from a number of witnesses and documents proposed to be tendered as exhibits, which in turn referred to conversations that had been recorded and intercepted and to the warrants pursuant to which those recordings and interceptions had been effected. Such references were, it was agreed from the bar table, of the kind set out in the statement of Detective Senior Constable Bowyer which was tendered in the present proceedings. They were in a general form, for example: "I listened to hundreds of intercepted telephone conversations pursuant to lawful telephone intercepts granted under the Telecommunications (Interception) Act 1979 being monitored on the telephone services of a number of persons ..." and "I have also listened to a number of live conversations and highlight tapes pursuant to a number of lawful listening devices authorised under the Listening Devices Act 1984." 3 The brief of evidence served on the defendant did not include any of the warrants granted pursuant to the Telecommunications (Interception) Act 1979 or the Listening Devices Act 1984. 4 The solicitor for the defendant argued before the Magistrate that failure to include the relevant warrants in the brief of evidence served on the defendant resulted in a non-compliance with the provisions of s 66B of the Justices Act 1902 and, as a consequence, the evidence of the conversations obtained by virtue of the intercepts and recordings was inadmissible. The Magistrate acceded to this submission, excluded the evidence and dismissed the charges against the defendant. 5 From that decision the informant appealed. Following the institution of the appeal the Director of Public Prosecutions was substituted for the plaintiff named in the summons and took over the conduct of the appeal. 6 Subdivision 6A of the Justices Act 1902 (the Act) was inserted into Pt 4 of Div 2 of the Act by the Justices Amendment (Briefs of Evidence) Act 1997. The purpose of the Act was outlined by the Attorney-General in his second reading speech on 16 June 1997 (Hansard, vol 258 pp 10182-10184) in which he said: "It has long been the case that a defendant facing trial in a superior court is apprised in advance of the evidence that the prosecution intends to adduce against the defendant. That is appropriate for a number of reasons. Most fundamentally a citizen has a basic right when accused of a criminal offence to know the charge against him or her and to be provided with particulars of it ... In more recent times it has been increasingly common for legislatures to created offence provisions that allow prosecutions to be conducted in a summary manner before Magistrates ... In New South Wales it has not to date been a feature of the requirements for such prosecutions that the defendant be fully apprised in advance of the evidence to be led by the prosecution. For a number of reasons that approach can no longer be regarded as sufficient." 7 The Attorney-General then stated a number of reasons why this was so. They included that offences which could not previously have been dealt with summarily have been brought within the jurisdiction of Local Courts. As a consequence he said: "... the possibility of the summary disposal of more serious offences brings with it a responsibility on the part of the Legislature to ensure that that does not result in injustice. To that end, the present reform is most valuable." 8 He then cited a number of ways in which the proposed reform was intended to avoid injustice to a defendant. They included producing more focus on relevant issues, obviating the need for exhaustive cross-examination, identifying the real issues and giving rise to an increase in pleas of guilty as a result of the accused being aware of the strength of the prosecution case at its very outset. 9 It is permissible to take the above statements into account in understanding the meaning of the statute and determining the purpose or object underlying it (Interpretation Act 1987 s 34(1)(a); s 34(2)(f)). Furthermore, in DPP v. West (Court of Appeal unreported 28 April 2000, NSWCA 103) Mason P, with whom Sheller and Giles JJA agreed, adopted the Attorney-General's explanation of the purposes of the Bill as set out above. 10 Service of the brief of evidence is a core part of the reform to which the Attorney-General was referring, since the brief of evidence is that which informs the defendant of the evidence which the prosecution intends to adduce in order to prove any charge against the defendant. 11 Subdivision 6A of Div 2 of Pt 4 of the Act (ss 66A-66H) is concerned with the service of briefs of evidence. Section 66B(1) provides that the prosecutor "must … serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence" in the event that the defendant pleads not guilty to a prescribed summary offence. The offence in the present case responds to such a description. Such brief of evidence, subject to certain discretionary provisions in the subdivision, "is to be served at least fourteen days before the hearing of the evidence for the prosecution." (s 66B(2)). Notwithstanding the provisions of s 66B the prosecutor is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy it. However, in such circumstances the prosecutor must give to the defendant a reasonable opportunity to inspect each such proposed exhibit. (s 66C). The form of the brief of evidence "is to comply" with requirements prescribed by regulation. (s 66D) The requirements for service of the brief are mitigated by the existence of a power to make a discretionary order not to require service of all or part of the copy of the brief of evidence if, inter alia, "there are compelling reasons for not requiring service." (s 66G) Section 66F provides for the consequences of non-compliance with the provisions of the subdivision, namely that "(t)he Justice or Justices are to refuse to admit the evidence sought to be adduced by a prosecuting authority." There is also a power of adjournment to assist a defendant or a prosecutor if a copy of the brief has not been served in accordance with the provisions of the subdivision (s 66G). Consequential provisions are also made with respect to indictable offences dealt with summarily. (s 66H) 12 In relation to a prescribed summary offence "brief of evidence" is defined as: "... documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes: (a) written statements taken from persons the prosecution intends to call to give evidence in proceedings for the offence, and (b) any document, or other thing, identified in such a written statement as a proposed exhibit." (s 66A) 13 The present case turns upon whether the warrants under the Listening Devices Act 1984 and the Telecommunications (Interception) Act 1979 fall within this definition; in particular whether they are "documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence." 14 In ss 66B, 66C, 66D, 66F and 66G compound verbs are used: "is to be served" (s 66B(2)); "is to serve" (s 66C(2)(a)); "is to allow" (s 66C(2)(b)); "is to comply" (s 66D); "are to refuse" (s 66F(1)); "are to grant" (s 66G). 15 They are to be compared with the imperative "must", which is used in s 66B(1). However for reasons discussed in detail in DPP v. O'Hare (Supreme Court unreported 22 May 2000; (2000) NSW SC 430) I am of opinion that each of these compound verbs is to be read and understood in the same imperative sense as "must". Such a conclusion gains support from the decision of the Court of Appeal in DPP v. West (unreported 28 April 2000; (2000) NSWCA 103 par 24). 16 This means that if the provisions of Subdivision 6A were not complied with the Magistrate was, in the circumstances of the present case, correct in refusing to admit the evidence obtained pursuant to the relevant warrant. 17 The word "regarding" as used in s 66B(2) is the action form of the verb "to regard". It is a word of connection. In the instant case it connects those things which are described in the section as "the documents", with "the evidence that the prosecuting authority intends to adduce" in order to establish the offences charged. In ordinary English parlance the word "regarding" as used in the context of the section has the same meaning as "in respect of" (The Oxford English Dictionary, 2nd Ed. (1989) Vol XIII; Australian Concise Oxford Dictionary (1987); Collins Concise English Dictionary, Australian edition (1982); Macquarie Thesaurus par 6.412). 18 In C v. S (1979) 2 NSWLR 598 McLelland J held that an order requiring a person having custody of a child to act or refrain from acting in a particular way with respect to the name of the child would be an order regarding the custody of the child within the meaning of s 5(1) of the Infants Custody and Settlements Act 1899. In arriving at this conclusion he applied the reasoning in the Marriage of Chapman and Palmer (1979) FLC 77667 and Sherwood v. Sherwood (1969) 16 FLR 18, thereby equating the connective scope of the word "regarding" with that of the connective phrases "with respect to" and "in respect of". 19 In Trustees Executors and Agency Company Limited v. Reilly (1941) VLR 110 Mann CJ described the connective phrase "in respect of" as having "the widest possible meaning of any expression intended to convey some connection or relation between two subject matters." (at 111) 20 This statement was adopted and applied by Kitto J in Powers v. Maher (1959) 103 CLR 478 at 484-5. Furthermore he decided that the connective effect of the relevant phrase, and hence its synonym in the section in question in the present case, is wide enough to cover things or events as yet unascertained and which may not even be in existence (supra at 485). 21 Kitto J was a member of the Court which decided Grannall v. Marrickville Margarine Pty Limited (1954-55) 93 CLR 55. In the joint judgment delivered in that case the meaning of the connective phrase "with respect to" was considered in the context of ss 51 and 52 of the Australian Constitution. It was said that those words "require ... a relevance to or connection with the subject assigned ..." 22 The Supreme Court of Tasmania in Sherwood v. Sherwood (supra) decided that the phrase "with respect to" as used in s 85(1) of the Matrimonial Causes Act 1959-1966 was one of wide import (supra at 21). 23 The authorities thus clearly establish that the word "regarding", and its synonyms "with respect to" and in respect of", are of wide application and connective connotation. However the nature or extent of the connection is the subject of differing judicial opinions. In Empire Shipping Co Inc v. Owners of the Ship Shin Kobe Maru (1991) 104 ALR at 489 Gummow J held that a claim to a beneficial interest in the ship was a proprietary martime claim within the meaning of s 14 of the Admiralty Act 1988 (Commonwealth) in that it was a claim relating to possession of or title to or ownership of a ship within the meaning of that section. In the course of doing he quoted with approval the statement of Lord Keith of Kinkel in Gatoil International Inc v. Arkwright Austin Manufacturers Mutual Insurance Co (1985) AC 255: "It is necessary to attribute due significance to the circumstance that the words of the relevant paragraph speak of an agreement 'in relation to' not 'for' the carriage of goods in a ship and the use or hire of a ship. The meaning must be wider than would be conveyed by the particle 'for'. It would on the other hand be unreasonable to infer from the expression actually used 'in relation to' that it is intended to be sufficient that the agreement in issue could be in some way connected, however remotely, with the carriage of goods in a ship or with the use or hire of a ship ... there must, in my opinion, be some reasonably direct connection with such activities." (supra at 505) 24 Lord Wilberforce agreed with the analysis by Lord Keith adding that the analysis "well illustrates the looseness of the provision and the spectral character of the boundary between claims within and those outwith" the phrase (supra at 263). 25 In Oceanic Life Limited v. Chief Commissioner of Stamp Duties (1999) 168 ALR 211 Fitzgerald JA whilst accepting that the cognate phrase "relating to" is one of wide connective significance and that "there is no expression more general or far reaching" (see Commissioner of Inland Revenue v. Maple & Co (Paris) Limited (1908) AC 22 at 26 per Lord MacNaghten), drew attention to the fact that notwithstanding the width of the phrase it leaves unspecified the plane upon which the relationship is to be sought and identified and concluded that "the position judicially adopted has been that the operation of the phrase 'in relation to' is determined by the statutory context and purpose." (At 225) 26 This approach mirrors that taken by Kitto J in Toohey's Ltd v Commissioner of Stamp Duties (NSW) (1960 - 1961) 105 CLR 602 at 616 - 618. 27 Furthermore, in that case Taylor J noted both the indefinite nature of phrases such as "relating to" and the plane of the connection required when he said: "There can be no doubt that the expression 'relating to' is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane on which the relationship is to be sought and identified". That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used." (supra at 620) 28 Such considerations, in my opinion, apply also to the connective word "regarding". 29 The foregoing authorities establish in my opinion the following:

A remote connection is rarely if ever sufficient. 30 In the present case the connective word "regarding" occurs in a statute whose purpose is to reform the law of criminal procedure, one of the objects or purposes of which is to ensure that a defendant in proceedings to which Subdiv 6A of Div 4 of Pt 2 of the Act applies is apprised of the prosecution's evidence from shortly after a plea of not guilty has been entered and in such a way as to enable the defendant to identify the real issues that are involved in the case and assess the strength and, by parity of reasoning, the weaknesses (if any) of the Crown case. In these circumstances a restrictive approach should not be adopted to the meaning and ambit of the statute. This means, in my opinion, that in its statutory context the connective word "regarding" should not only be construed as having a wide ambit but in addition the plane on which the nexal relationship is to be established should not be fixed at a high level. The connection must be real. It must be relevant. It must not be remote or merely speculative. 31 In order to establish the offences with which the defendant has been charged it was necessary for the Crown as prosecutor to adduce evidence of conversations, both face to face and by telephone, between the defendant and other persons. In order to do that the Crown had to rely on recordings of such conversations made on listening devices and as a consequence of telephone intercepts. In order to do so it was incumbent upon the Crown to establish that the recordings of the relevant conversations were lawfully effected. 32 It was argued on behalf of the defendant that to this end it was necessary for the Crown to establish that there were warrants under the relevant legislation that authorised and hence made admissible the recording and interception of such conversations. 33 On the other hand counsel for the plaintiff referred to DPP v. Sounthorn (Supreme Court unreported 4 August 1999 (1999) NSW CC 786 per Grove J) and submitted that the reasoning of Grove J applied to the listening device and telephone interception warrants in the present case. It was unnecessary, so the argument ran, for the Crown as prosecutor to tender such warrants on the same basis as Grove J had held that it was unnecessary for the Crown to tender search warrants before adducing evidence of matters ascertained in consequence of their execution. He submitted that listening device and telephone interception warrants were, in the terminology of Grove J, "contingent material" that it was not necessary to tender as part of the Crown case, but only in the event that objection was taken to the admissibility of the evidence that resulted from the execution of the search warrants. Furthermore he submitted that it was not apparent that the prosecutor intended them to be part of the evidence that was to be adduced in order to prove the commission of the relevant offences. 34 In regard to this first submission it should be noted that the fact that a document does not have to be tendered is not the test. The form of the definition in s 66A(1) makes this clear. Whilst paragraph (b) of the definition of "brief of evidence" has the effect of requiring the inclusion of any proposed exhibits as part of the brief of evidence served, that paragraph follows the words "and includes". The words of the definition which precede the words "and includes" comprehend documents that it may not be necessary to tender as exhibits. 35 In addition whilst, like a search warrant, a warrant authorising the use of a listening device or the interception of telephone conversations permits an invasion of privacy and may permit the entry on to premises for the purposes of placing and retrieving any devices without the consent of the person in lawful possession or occupation of such premises (George v. Rocket (1990) 170 CLR 104 at 110), unlike a search warrant, the existence of the listening device and telecommunication interception warrants granted pursuant to the relevant legislative provisions is essential to the admissibility of material obtained in the exercise of the powers conferred by such warrants. This is the effect of the Listening Device Act 1984, ss 5 and 13(1); and of the Telecommunications (Interception) Act, 1979, ss 5B, 7, 39, 74 and 77(1). 36 The Crown recognised its obligation to show as part of its case that the telephone intercepts were lawful and that the recordings made by the listening devices were authorised. This is clear from the statement of Detective Senior Constable Bowyer. The reference in her statement to "lawful telephone intercepts granted under the Telecommunications (Interception) Act" and "lawful listening devices authorised under the Listening Devices Act" at the same time makes this recognition clear and demonstrates the intent of the Crown in relation to the proof of its case. 37 This situation is to be contrasted, for example, with the material put before a Federal Judge or Administrative Appeals Tribunal in support of an application for the grant of a warrant under the Telecommunications (Interception) Act 1979 or the material put before a Judge of the Supreme Court in support of an application for a warrant under the Listening Devices Act 1984. Material of such a kind would be relevant to a challenge to the validity of the warrants. However, such a challenge would be collateral to the charges against the defendant. Assuming that it was intended to mount such a challenge and that it had not been effected by independent proceedings prior to or even during the course of the hearing of the charges against the defendant (see Barbaro v. Director of Public Prosecutions unreported 26 November 1999; (1999) NSWSC 1338), the hearing of the challenge would involve evidence that in the main may not be relevant to the charges against the defendant. Such a hearing would be in the nature of a voir dire, that is a proceeding within a proceeding and would, therefore, in my opinion be remote and not fall within the ambit of the nexus required by the word "regarding" in s 66A(1). 38 As already indicated the warrants under the Telecommunications (Interception) Act 1979 and the Listening Devices Act 1984 were pre-conditions to the admissibility of the evidence which was at the core of the Crown case. The connection between those warrants and the evidence to be tendered to establish the commission of the offences charged was real and relevant. It was not remote or speculative. Indeed it was direct and immediate. This is the highest standard of connection fixed by the authorities and higher, in my opinion, than was necessary to fulfil the requirements of s 66A. In short, it was not only adequate, but more than adequate. 39 For the foregoing reasons I am of the opinion that the relevant warrants under the Telecommunications (Interception) Act 1979 and under the Listening Devices Act 1984 were documents regarding the evidence that the prosecution intended to adduce in order to prove the commission of the offences with which the defendant stood charged. Accordingly, the failure to include them within the brief of evidence served on the defendant pursuant to s 66B of the Justices Act 1902 resulted in the evidence sought to be adduced by the prosecutor being inadmissible because of s 66F. The Magistrate was therefore correct in refusing to admit such evidence, having already declined to exercise any of the relevant discretions which might have mitigated the consequences of non-compliance with s 66B and having, correctly as it was conceded by the plaintiff, refused the prosecutor an adjournment. 40 The relief sought by the plaintiff is refused. The plaintiff's summons is dismissed. 41 I stand the question of costs over until 11 August 2000 and indicate that my provisional view is that the plaintiff must pay the defendant's costs but they should not include its costs of today. 42 11 August 2000. 43 Plaintiff is to pay defendant's costs but those costs are not to include the costs of the date on which judgment was delivered or of today.

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