LAWRENCE v. NSW POLICE SERVICE & ANOR [2004] NSWSC 59

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MARK HOMELSDALE LAWRENCE v. NEW SOUTH WALES POLICE SERVICE & ANOR

1 HIS HONOUR: The plaintiff by summons sought orders that two listening device warrants issued by judges of this court, the first by Barr, J. on 1 August 2002, the second by Buddin, J. on 22 August 2002, were void and had no legal effect. Also sought were orders that the use of listening devices by certain named persons were not authorised by either of the warrants and orders that each of the warrants be quashed. The warrant issued by Barr, J. was designated UC02/46(b) and that by Buddin, J., UC02/52(a). Orders were also sought that the second defendant pay the plaintiff's costs. No issue arises as to my jurisdiction to make those orders. The first defendant submits to such order as the court might make. The second defendant opposes the making of the orders sought. 2 An affidavit of the plaintiff's instructing solicitor has been filed and read. That affidavit referred to the plaintiff having been charged with certain criminal offences in respect of which a committal proceeding is listed in the Adelaide Magistrates Court on 24 February 2004. Although the affidavit does not directly say so, the proceedings before me have, as common ground, that recording of his conversations in New South Wales occurred, that the recording was undertaken on the basis of the warrants to which I have referred and that evidence of what was recorded as said in those conversations might be tendered against the plaintiff at the committal. That evidence might have been unlawfully obtained unless the conversations were recorded under valid and effective Listening Device Act warrants. Thus, he has a sufficient interesting seeking the orders. 3 The two charges the plaintiff faces at the committal are that he and others on or between 2 August 2002 and 8 August 2002 and again between 20 August 2002 and 27 August 2002, in South Australia, knowingly took part in the sale of 4 Hydroxy Butanoic Acid, a prohibited substance, to another person. That charge is expressed to be under s.32(1)(b) of the Controlled Substances Act 1984. That is an enactment of the South Australian Parliament. It is alleged that the amount of the prohibited substance was in excess of five grams and that the offence was a major indictable offence under South Australian law. 4 The listening device warrants are annexed to the affidavit. It is not necessary to refer to them in greater detail than to say that in each case the form of warrant is in the prescribed statutory form. Each refers to the relevant eligible judge:- "having been satisfied that there are reasonable grounds for the suspicion or belief of the second defendant that the prescribed offence as set out in paragraph one has been and is likely to be committed". 5 In each case paragraph one reads as follows:- "1. Specify as the prescribed offence/s in respect of which the warrant is granted the following 'trafficking in prescribed substances', contrary to the provisions of the Controlled Substances Act 1984 (SA)." 6 There is no reference to any particular section creating the offence nor to whether the offence is indictable or merely summary. 7 In each case the warrant authorised the use by the second defendant and on her behalf by other persons of a listening device by the placing or holding of it close or near to the hand set of a telecommunications service and refers to certain conversations which might be listened to. 8 The first warrant refers to the period 4.00 pm on 1 August 2002 until 4.00 pm on 21 August 2002. That was the warrant issued by Barr, J. The second warrant refers to the period from 5.00 pm on 22 August 2002 until 5.00 pm on 11 September 2002. 9 The argument for the plaintiff, shortly speaking is that no such offences as are referred to in the warrants now exist or did exist under the law of South Australia and more particularly under the Controlled Substances Act 1984 or that no identifiable particular offence under that law is specified in the warrant. This is asserted to be a critical defect. 10 There is not before me any other material that might have been before the issuing judges. In particular, there is not before me any factual material which might be said in itself to have given rise to any particular suspicion or belief by the relevant police officer such as might have put before the issuing judges the prospect of considering any particular offence or any particulars of any offence. I must therefore deal with this application on the face of what is in the warrants. 11 When the matter came before Dunford, J. on 15 December 2003, orders were made by consent standing over the matter to the applications list today. The parties have filed most helpful written submissions referring me to a number of authorities. Counsel have been of great assistance. 12 I have been provided with a copy of the Controlled Substances Act 1984. That Act, in Part 4, provides for a number of offences. Section 13 prescribes offences relating to the manufacture, production or packaging of a poison, therapeutic substance or therapeutic device. It applies to such poisons other than drugs of dependence, therapeutic substances or therapeutic devices as may be prescribed individually or by class by regulations. 13 Section 14 provides for offences in respect of such things committed by way of sale by wholesale. Section 15 relates to prohibiting the sale by retail or supply of such things and creates a criminal offence. Section 16 relates to the sale of poisons. Section 17 relates to the unlicensed sale of poisons. Section 18, the sale, supply, administration and possession of prescription drugs. Section 19, the sale or supply of volatile solvents. I pass over s.20 which deals with the prohibition of the use of automatic vending machines for the sale or supply of poisons or therapeutic substances. 14 Section 21 provides that the minister may by notice published in the gazette prohibit the sale or supply of any substances or devices and any preparation containing that substance. Section 22 deals with an offence of possession relating to poisons, s.23 with the wholesale or retail sale or supply of any poisons, therapeutic substances or therapeutic devices that do not conform with the regulations. There are other offences referred to including packaging and labelling by s.24; storage offences referred by s.25; transport, use, advertisement, forgery offences. These are all contained within Part 4 of the Act. 15 Generally speaking then it can be seen that those offences may be described as offences in relation to particular classes of substance which are defined in the Act by s.4 and which are, by the regulations, capable of being prescribed so that particular sections relate to them and render certain kinds of activities involving them or dealings with them criminal offences. Some of those activities might, but only loosely, be described as "trafficking". 16 Section 31, however, in Part 5 deals with the prohibition of possession or consumption of a drug of dependence or a prohibited substance. Section 32, which is the section said to be that giving rise to the offence referred to in the South Australian charges against the plaintiff, provides for offences of knowingly taking part in the manufacture or production of a drug of dependence or a prohibited substance; the sale, supply or administration of such a drug or substance to another person; the manufacture or production of the drug of dependence or prohibited substance; taking part in the sale, supply or administration of such a drug or substance to another person, or the having of such a drug or substance in possession for the purpose of the sale, supply or administration of that drug or substance to another person. Various of those offences might also loosely be described as "trafficking". 17 The Act also restricts the supply of drugs of dependence in certain circumstances and contains provision for the procedure by which a simple possession offence might be dealt with. It is silent otherwise as to the mode of prosecuting Part 4 offences. But it contemplates the prosecution on indictment of serious offences under Division 1 of Part 5. 18 The Act contains specific provision to facilitate the gaining of evidence in relation to offences under the Act and in particular provides for a power to search and seize and for an immunity from liability for acts done under the Act. In Part 8 of the Act, s.57 confers upon the Minister a power to prohibit certain activities and a general power to make regulations is provided for by s.63. Other than as I have noted, no assistance is provided by the Act as to what offences might be dealt with on indictment or summarily. 19 This summary of the Act has been rendered necessary by the submission made by the plaintiff that the requirement for a prescribed offence to be specified in the warrants for them to comply with the Listening Devices Act 1984 is critical, yet nowhere in the Controlled Substances Act 1984 will be found the offence referred to in each of the warrants; that is to say, the offence of "trafficking in prescribed substances". 20 It is submitted that neither "trafficking" nor "prescribed substances" appear in the Act and that neither of those terms not relate to any particular offence under the Act. 21 The second defendant concedes that those terms do not appear in the Act and that the specification of a prescribed offence is necessary under the Listening Devices Act but contends that the specification used here is sufficient in that it is asserted to be possible to relate the term trafficking to activities of sale or supply to which some of the provisions of the Controlled Substances Act 1984 refer and prescribed substances to drugs of dependence or prohibited substances to which s.32 applies so that what was specified is sufficient if not precise. Whilst one can appreciate the robust practicality of such a suggestion, it is apparent that the South Australian Act draws a distinction between sale and supply, between retail sale and wholesale sale, between things prescribed by, or under, the Regulations, drugs of dependence and prohibited substances, and those distinctions, which are of considerable materiality particularly in relation to those Parts of the Act which provide for offences, does not enable one to detect any particular offence under Part 4 or Part 5 which is referred to in the warrants, when all that is referred to are terms which are not used in the Act, eg., the terms "trafficking" and "prescribed substances". 22 It is apparent that insofar as the description "prescribed substance" might refer to substances which have by the Regulations been prescribed for the purposes of the Act, that description does not allow one to refer to the specific purpose for which such a substance may have been prescribed such as to be able to relate it to any particular statutory offence. 23 One might accept that it would be unlikely that the judges of this court would be approached for a listening device warrant except in the case of a serious offence; that offences to which the Listening Devices Act 1984 (New South Wales) might relate are likely to be serious offences to be prescribed offences under that Act for the purpose of the issuing of a warrant concerning an offence said to have been committed in another State but that does not help to detect from the description in the warrant any particular offence provided for by the South Australian Act even if one or other of the serious offences in Part 5 might be referred to. 24 The Listening Devices Act 1984 makes unlawful the use of listening devices to overhear or record conversations but allows for lawful use if a warrant under the Act has been issued. Section 16 provides that a warrant may be issued only in respect of a prescribed offence and only if it is believed or suspected that offence has been, is about to be or is likely to be committed, for the purpose of an investigation into that offence, for enabling evidence to be obtained of the commission of the offence or for assisting to ascertain the identity of the offender. It is necessary under the Act for the eligible judge to whom the approach has been made for the warrant to be satisfied that there are reasonable grounds for that suspicion or belief, s.16(1). 25 Section 16(2) requires that in determining whether a warrant should be granted the eligible judge should have regard to:- "(a) the nature of the prescribed offence in respect of which the warrant is sought and amongst other considerations any previous warrant sought or granted under this part in connection with the same prescribed offence." 26 The warrant by s.15(4) is required to specify the prescribed offence. The issue of the warrant requires that in due course an appropriate report pursuant to s.19 of the Act be made to both the eligible judge and the Attorney General. Section 15 of the Act defines the prescribed offences to which the Act may apply in a way which includes offences under the laws of the Commonwealth or of another State or Territory if (a) punishable on indictment or (b) of a class or description prescribed for the purpose of this part (whether or not it is punishable on indictment). 27 Of necessity will be the adequate and sufficient description of the offence showing that it amounts to an offence under the law of the Commonwealth or of another State or Territory. So much at least follows from the use of the word specify. That is also a practical requirement, since it cannot be assumed either as a practical or legal proposition that an issuing judge of this court should decide whether matters of fact might amount to any specific offence under the law of the Commonwealth, or of another State or Territory merely from the assertions of facts said to found an adequate basis for the judge to be able to determine that the police officer seeking the listening device warrant has a belief or suspicion as the Act might require. 28 It is contended on behalf of the plaintiff that it is not possible to relate what is referred to in the warrants to offences to which s.15 applies. It is said, there is no such offence as is referred to in the warrant known to the law in South Australia and insofar as it is a reference to some offence under the Controlled Substances Act 1984, it is not possible to say to what offence the description in the warrants might relate. Indeed, it is said it is not possible to say whether what is referred to as the prescribed offence is punishable on indictment or summarily. 29 The distinction between summary offences and indictable offences is one of great importance in order for the judge to consider whether the appropriate reasonable grounds exist but even more important is the distinction as and between the various offences in Part 4 and that between the various indictable offences in Part 5 including those in s.32. 30 The importance of the concept of prescribed offence to the Act is clear from the emphasis that the Act itself places on the necessity for the offence to be specified in the warrant and in the various references in ss.15 and 16 to which I have already referred. Clear reference to the offence would seem to be required. 31 In response, the defendant argues that it is sufficient if the words in the warrant are taken in their general meaning and relate to some such concept as is caught up in the offences referred to in the Controlled Substances Act 1984. 32 There is no authority directly on point but for guidance, the parties have referred me to the decision of the High Court of Australia in Ousley v. The Queen (1997) 192 CLR 69 and to various decisions, albeit not precisely analogous, relating to the issue of search warrants. In addition, I have been referred to the decisions in Commissioner of Police v. Barbaro [2001] NSWCA 57; Haynes v. Attorney General for New South Wales (an unreported decision of James, J. of 9 February 1996); Regina v. Eade [2000] NSWCCA 369 (which confirmed the decision of Grove, J. in Bayeh v. Director of Public Prosecutions reported as Bayeh v. Taylor & Ors of 4 February 1998), and Regina v. Eid & Ors [1999] NSWCCA 59, which last case concerned warrants issued under the Listening Devices Act 1984 for the purpose of investigating what were said to be offences under the Business Franchise Licenses (Tobacco) Act 1987. 33 That Act was declared unconstitutional by the High Court of Australia. Charges had been laid under that Act and those charges included charges of conspiracy to defraud the revenue. The charges did not directly assert a breach of the provisions of the unconstitutional Act. Shortly prior to committal the defence became aware that the Crown proposed to rely on conversations recorded pursuant to a listening device warrant. Objection was taken on the ground that the warrant was invalid. The matter went to the Court of Criminal Appeal under s.5F of the Criminal Appeal Act 1912 because the question had arisen at the committal. The court held that the Act was unconstitutional, there was no offence under that Act or otherwise and thus the warrant did not contain, as it necessarily had to contain, the specification of a prescribed offence for the purposes of the Act. 34 Adams, J in Eid (supra) at 119 referred to the arguments put in a number of cases as to the jurisdiction of a court to review the issue of the warrant. No point is taken before me to suggest that I should not exercise the powers of a Supreme Court judge under s.69 of the Supreme Court Act 1970 in this case should I conclude that no prescribed offence as s.16 might require is specified. 35 It is not at issue here but that there was additional information before the issuing judges. It is essential, however, for an issuing judge to be in a position when considering whether on that information that judge may conclude that there are reasonable grounds for the suspicion or belief of the person making application for the warrant to know how the factual material referred to might relate to the prescribed offence referred to and that is one of the reasons why the Act provides for the offence must be specified in the warrant, the statutory form of which is provided for by s.16(6A) of the Act. 36 In the event that what is put to the judge as the prescribed offence is not an offence known to the law, the performance of the task of ascertaining whether the requisite belief exists is rendered impossible. In that sense, the analogy with the exercise to be undertaken by me with that undertaking by Adams, J. and the Court of Criminal Appeal is a close one. 37 At page 120, Adams, J. refers to the specification in that case of the offence, which was not qualified by reference to the Business Franchise Licences (Tobacco) Act 1987. Adams, J. referred however to the offence of conspiracy to defraud the revenue as necessarily requiring in that case a conspiracy, "which was unlawful by virtue of that Act". Since the High Court had declared it unconstitutional, no fee was payable under the Act; thus the depriving of the State of New South Wales of that fee did not amount to a conspiracy to do something which was unlawful. It was not suggested there was any basis for a charge that the appellants had conspired to do that which was lawful by unlawful means. 38 Adams, J. referred to the offence under s.178BB of the Crimes Act 1900 which would have encompassed a statutory form of the offence. He referred to the decision of the High Court in Ousley (supra). He concluded that it was implicit in the decision of Gaudron, J., that the warrant recite the matters on which its validity depends. The other judgments in that case also support the proposition that the warrant must, on its face at least assert an offence capable of being a prescribed offence under the definition in the Act to be valid. 39 Adams, J. pointed out that the Crown conceded that had the charge in the warrant in question in Eid (supra) been fully particularised it would have disclosed that the conspiracy depended upon the Act which had been ruled by the High Court to be unconstitutional. He concluded that the court should consider the validity of the warrant on the basis that the prescribed offence was so particularised, as it inevitably must have been, having regard to that disclosure by the Crown of the true basis of its case. Then, accepting the constitutional doctrine that a statute declared to be unconstitutional is to be regarded as void ab initio, Adams, J. concluded that the absence of an offence meant that the warrant was issued to investigate activities which were not contrary to the law. The consequence of that was that the warrant was therefore not authorised by the Act. 40 True it is that that decision concerned the investigation of activities which the Court of Criminal Appeal held were not unlawful at all but the decision affords powerful support for the necessity for a valid warrant complying with the requirements of the Act to refer to a specific identifiable offence known to the law. Barr, J. and Abadee, J. agreed with the decision of Adams, J. There is also abundant support, albeit derived from general statements in such cases as Ousley (supra) and from other cases referring to other kinds of warrants, for the proposition that there needs to be a particular enough description of the offence, whether embodying the words or section numbers used in an act, or some precise factual description, as will provide an ability to relate the factual material to some identifiable offence as is known to the law, to the extent contemplated by the applicable Act. 41 It may well be, as is contended on behalf of Mr. Saidi in a careful and practical submission, that warrants issued under the Listening Devices Act 1984, which are not normally provided to those whose conversations might be intercepted and recorded, are not to be treated in the same way as search warrants which may well have to be produced to persons affected by them. It may well be that Listening Devices Act 1984 warrants which enable the recording of all conversations of a certain kind between the parties, may not be subject to the same restrictions as would notify the constable executing the warrant of what to look for as a search warrant does but these observations do not afford reasons to deprive the clear statutory requirement of its apparent mandatory force. 42 There is too, the line of authority which has existed for many years, particularly referred to in the Queen v. Tillett; Ex Parte Newton [1969] 14 FLR 101 at 113, establishing that precision is required in the specification of the relevant offences in search warrants. See also Coward v. Allen (1984) 52 ALR 320, particularly at 331 and 332. Whilst this may not be precisely applicable to listening device warrants that analogy does assist to ascertain the force of the statutory requirement. 43 All of that being accepted, for at least the purposes of this case, I am unable to conclude that what was asserted in the warrants here was other than the lack of specification of a prescribed offence and that is insufficient where what is included as the specification as a prescribed offence is something which is not an offence according to the law or at least which does not enable the identification of a particular offence of many created under statute. This is not a sufficient compliance with the Act. 44 It seems to me that the specification of the prescribed offence under the Act is a necessary precondition for the issue of a warrant which is to have the effect the Act permits it to have. In the absence of a proper warrant authorising the officers to listen and record their acts would be, by the Act illegal, and indeed criminal offences. Precision in the specification is thus highly important. 45 The legislature in this regard in New South Wales by reason of the Listening Devices Act 1984, in other states by reason of the enactment of the counter parts to that Act and in the Commonwealth scheme by the Telecommunications (Interception) Act 1979 and the Telecommunications (Interception) Amendment Act 1989 has in each case emphasised to the privacy of the citizen as a consideration of great importance. Each of those Acts permits the invasion of that privacy in circumstances where the Act otherwise affirms that privacy by the creation of criminal offences for those that without authority embark on acts which might only be lawfully performed if made pursuant to a valid warrant. 46 It seems to me then that the specification of a prescribed offence, and in that context I particularly refer to a prescribed offence which is an offence because it is an offence known to the law, is critical. On that view of it each of these warrants on their faces are bad. If there is no prescribed offence known to the law or if the offence cannot be identified and the warrant purports to be issued in respect of such an offence on its face, it is to be quashed for that reason. 47 Although the second defendant contends sufficient is shown to describe the prescribed offence to relate it to a relevant offence so that the warrants conform to the requirements of the Acts, I am persuaded that they do not. I find that the plaintiff has made out his claim for relief. 48 I should mention that it was contended that there was a discretion to refrain from intervention referred to in the defendant's outline of argument. When Mr. Saidi of counsel embarked upon oral argument it was not pressed upon me that any requirement of exceptional circumstances existed such that were I otherwise minded to hold that the warrants should be quashed, they should not be, although reference was made to the criminal proceedings which have advanced to the point of the committal proceedings being about to commence. 49 No information was before me in these proceedings to suggest that the nature of the warrants had come to the notice of the defendants at some such time as might mitigate against them receiving the relief that they seek. I do not understand that the timeliness of their application might preclude them, in discretion, from receiving the relief they seek. 50 It was contended that the South Australian Criminal Courts would retain the right to deal with issues such as admissibility of evidence and that this decision might affect that, but that court still does have that right, no matter what course I might take. I do not regard the fact of proceedings before another court as a reason, where, if there has been an obtaining of warrants in circumstances in which it was not open for them to be granted, this court should stay its hand to dealing with purported warrants granted in New South Wales which might well have compromised the rights that the Listening Devices Act 1984 is there to protect. Should I decide to quash the warrants, the South Australian courts will apply their law of evidence in the light of that decision. 51 I conclude that I should make the orders in favour of the plaintiff. 52 The form of summons, as I have said, sought declarations concerning the warrants being void and of no legal effect and that the second defendant and others' use of listening devices were not authorised by either of the warrants. It is clear that in consequence of the views to which I have come that on their issue the warrants did not comply with the critical requirements of ss.15 and 16 of the Listening Devices Act 1984. It is clear that the warrants were vitiated by errors of law on their face and did not refer to any specified prescribed offence as they were required to do by that Act. 53 I quash both warrants and declare that both warrants at the time of their issue did not comply with the critical requirements of the Act so as to be warrants under s.16 having the lawful effect that the Act would confer upon acts done under valid warrants. I note that both counsel accept that form of order. 54 The second defendant is to pay the plaintiff's costs of the proceedings. **********

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