Customs Act 1901 (Cth)

Telecommunications (Interception) Act 1979 (Cth)

Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394

Amer v Minister for Immigration, Local Government and Ethnic Affairs, unreported; Fed C of A (Lockhart J); No 827 of 1989; 19 December 1989

Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667

Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Cain v Glass (No 2) (1985) 3 NSWLR 230

Carroll v Attorney-General (NSW)(1993) 70 A Crim R 162

Commissioner of the Australian Federal Police v Poompiriyapinte & Ors, unreported; SCt of NSW (Badgery-Parker J); 28 August 1990

Conway v Rimmer [1968] UKHL 2; [1968] AC 910

Haj-Ismail v Madigan [1982] FCA 231; (1982) 45 ALR 379

Hilton v Wells [1985] FCA 100; (1985) 5 FCR 296

Kizon v Palmer (1997) 72 FCR 409

Marinovich v Simpson & Ors, unreported; Fed C of A; No 529 of 1987; 11 September 1987

McArthur v Williams (1936) 55 CLR 324

Murphy v R [1989] HCA 28; (1989) 167 CLR 94

Ousley v R [1997] HCA 49; (1997) 148 ALR 510

R v Bebic, unreported; CCA SCt of NSW (Samuels JA, Nagle CJ & Cantor J) No 2146A of 1981; 27 May 1982

R v Saleam (1989) 16 NSWLR 14

R v Yooyen Tait & Poompiriyapinte (1991) 57 A Crim R 226

R v Young (1983) 9 A Crim R 58

Sankey v Whitlam (1978) 142 CLR 1

Wolf v The Magistrates' Court at Melbourne & Anor, unreported; SCt of VIC (O'Bryan J); 30 April 1993

Young v Quin [1984] FCA 296; (1984) 56 ALR 168

Zarro v Australian Securities Commission (1992) 36 FCR 40

1 HEENAN J: John Kizon, the respondent, appears in answer to an indictment containing two counts. In the first count he and another man are charged with conspiracy to possess a quantity of cannabis with intent to sell or supply it to another. In the second count the other man is charged with attempting to possess cannabis for that purpose. Their trial is to be heard by me and a jury from 1 November 1999 onwards.

2 By a subpoena addressed to the Commissioner of the Australian Federal Police and issued on 12 August 1999 the respondent seeks the production of five affidavits sworn by a former detective of the Australian Federal Police in support of applications for the issue of warrants authorising the use of listening devices and telephone intercepts. On behalf of the respondent it is said that the production of the affidavits is sought in order to challenge the validity of the warrants and hence the admission of any evidence derived by means of the devices and the intercepts. Now, by chamber summons issued on 1 September 1999, the applicant seeks to have the subpoena set aside on the grounds that there was no legitimate forensic purpose for its issue, that it was issued for the purpose of "fishing" and is an abuse of process and that the affidavits are subject to public interest immunity.

3 Each of the warrants in question was issued by a Federal Court Judge. Its issue followed examination by the Judge of the material placed before him and his determination not only that the statutory requirements had been met but also that the circumstances of the case required interference with the right to privacy which is so jealously guarded by the common law. Nevertheless, in each case it was an administrative and not a judicial act (see Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 at 72-73 and Love v Attorney General (NSW) (1990) 169 CLR 307 at 321-322). In other words, although the act was one in which it was necessary to bring to bear a judicial mind - that is, a mind to determine what was fair and just in respect of the matters under consideration - the warrant was not issued as a result of a determination made by the Judge in his or her judicial capacity. In such a case, therefore, a trial Judge may review the issue of the warrant but, by reason of the nature of the process by which it has been issued, the review is limited. The Judge must decide merely whether the warrant was regularly issued and cannot enquire into the sufficiency of the material placed before the issuing authority to support it or adjudicate as to whether the issuing authority was in fact satisfied as to any statutory requirements (see Ousley v The Queen (1997) 192 CLR 69 at 79-80 per Toohey J and at 87 per Gaudron J).

4 In Ousley's case at 102-104 McHugh J pointed out that such a review cannot be confined to defects appearing on the face of the warrant. For example, where a warrant authorises entry on to premises for the purpose of installing and maintaining a listening device in circumstances where that entry otherwise would constitute a trespass, the warrant is void by reason of jurisdictional error that lies behind its issue. Again, such a warrant might be challenged successfully on grounds such as bad faith, impropriety or addressing the wrong issue. In this case, the respondent does not rely on any such ground. As his counsel has pointed out, he simply does not know what material was placed before the Judges who issued the warrants.

5 Counsel for the respondent very helpfully has provided the Court with a list of criteria which, he suggests, should be applied in determining whether the warrants were regularly issued. In addition to referring to the provisions of the Telecommunications (Interceptions) Act 1979 s 40, s 42 and s 45 and of the Customs Act 1901 (Cth) s 219 and s 219B(5), pursuant to which the warrants were issued, he has provided a schedule showing the dates of the various affidavits and the warrants which they supported, as well as the dates on which, the periods for which and the Judges by whom the warrants were issued. He has provided a checklist of the various matters which should have been dealt with by each affidavit and he has suggested various ways in which falsehoods or inaccuracies might be identified. However, consideration of those criteria and that checklist has fallen far short of persuading me that there is any basis for challenging the validity of any of the warrants. The plain fact is that there is nothing to make it appear to be "on the cards" (the expression used by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 414) that any of the affidavits will tend to show that the issue of any of the warrants was invalid. Examining the affidavits would seem to serve no purpose other than to find out whether the respondent has a case.

6 When the hearing of the present application concluded it seemed to me that an expedient way of concluding the matter might well be to examine privately a copy of a "closed" affidavit of Assistant Commissioner Mills and of certain documents referred to in that affidavit. The purpose of the examination would be to ascertain whether the applicant's claim of public interest immunity, said to be supported by those documents, would outweigh any legitimate forensic purpose in the production of the affidavits the subject of the subpoena. However, brief reflection has satisfied me that such a course would be quite wrong. It could not be expected to relieve any concerns of the respondent as to validity of the warrants nor would it be in accordance with what, I am sure, is the appropriate procedure in this situation. Thus, I have not seen the confidential documents which counsel for the applicant handed to the Clerk of Arraigns at the hearing. The Clerk will return them to counsel in envelopes unopened and sealed as they were when she received them.

7 As no ground has been shown for challenging the validity of the warrants, I am satisfied that there is no legitimate forensic purpose to be served by the subpoena. It will be set aside.