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[2003] SASC 252
procedural. The warrants were held valid. The entries were held unlawful because the applicant was not in the required close proximity at the time of entry, but the recordings were not excluded. Requests for...
The judge upheld the listening-device warrants, including their authority for necessary additional police officers to enter. But the warrant holder was too far away when the officers entered the property, so the entry did not comply with the warrant. That did not automatically make the recordings inadmissible under the Act. The judge considered the exclusion discretions and refused to exclude the recordings, taking account of the officers' beliefs, the seriousness of the charges, the significance of the recordings and the absence of relevant unfairness. The accused's requests for warrant applications and supporting affidavits were also refused.
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In R v Bunting & Wagner (No 4) [2003] SASC 252, Martin J ruled on pre-trial challenges to listening-device evidence proposed by the Crown. Bunting and Wagner were jointly charged with eleven murders alleged to have occurred between December 1995 and May 1999. The ruling concerned recordings made in 1999 at a residence and a shed at 4 Blackham Crescent, Smithfield Plains. The judgment states that the Crown proposed to rely on twelve conversations recorded between 15 March and 16 May 1999 [1]-[3].
2 cited instruments linked from this judgment.
Two warrants, W99017 and W99018, were issued on 22 February 1999 for 60 days. Devices were installed on 1 March. On 23 April, two further warrants, W99028 and W99029, were issued for 60 days. The police did not install new devices when the second set was issued; they continued using the devices installed under the first set [4], [50].
The accused challenged the warrants, sought production of the applications and supporting affidavits, and sought to exclude the recordings. They also raised questions about whether the warrant applicant, Chief Inspector Schluter, was present as required when officers entered to install the devices and when they later removed them [5], [45]-[49].
Martin J held that the warrants were valid. He also held that the officers' entry did not comply with the warrants' requirement that additional officers act in the applicant's presence: at the time of entry, Schluter was about 100 metres away across a reserve. The judge nevertheless refused to exclude the recordings. He also refused the production applications and related requests for cross-examination about the material before the judges who issued the warrants [49], [57], [164], [181].
The first issue was whether the statute permitted a judge to authorise officers other than the applicant to enter private premises. The accused relied on the principle discussed in Coco v The Queen: interference with the fundamental right to exclude others from private property requires clear statutory authority [10]-[15]. Martin J distinguished Coco because the South Australian Listening Devices Act 1972 specifically permitted a judge to authorise entry onto premises without permission. It therefore expressly dealt with the relevant intrusion, unlike the provision considered in Coco [16].
Martin J reasoned that the statutory scheme focused primarily on whether use of a listening device and entry were justified for the investigation, rather than on whether the applicant personally was the only person suitable to enter [18]. Entry, installation, maintenance and operation could require people with different skills. The judge gave examples including a locksmith and technical officers, and observed that clandestine entry might need to occur when the opportunity arose [19]-[21]. He therefore implied a power to authorise other people to enter, limited to those whose involvement was reasonably necessary to achieve the authorised purposes. The warrants identified the additional entrants in a sufficiently precise way [22].
The judge added an alternative basis for validity. Even if the additional-entry authorisation exceeded the judge's power, the overreaching part could be severed. In his view, the valid authorisation for use of the devices and entry by the applicant was not dependent on allowing two other officers to enter [23]-[27], [30]. He contrasted this with Coco, where the invalid authorisation was treated as integral and essential to the approval [24]-[27].
The accused also argued that the Act made unlawfully obtained recordings inadmissible. Martin J rejected automatic inadmissibility. Sections 4 and 5 prohibited unauthorised use and communication of information; s 6 set out circumstances in which use was authorised. In his view, these provisions did not regulate admissibility in court [41]-[44]. He considered the majority reasoning in Hilton v Wells, which treated the telecommunications legislation there as not deciding whether evidence from an illegal interception was admissible [36]-[41]. The judge did not hold that unlawful acquisition was irrelevant. Rather, he said it could enliven the court's discretion to exclude evidence on public policy grounds, and possibly on unfairness grounds [44].
The warrant language required the additional officers to act “in your presence and under your control and direction” [7]-[8]. Martin J interpreted “presence” according to its ordinary meaning, while accounting for the fact that the warrants authorised serious intrusions into privacy [152], [158]-[160]. The applicant did not have to stand immediately next to the officers, but he did have to be in close proximity when entry was attempted and achieved. The judge accepted that the applicant's nearby position supported operational supervision and security. However, operational control alone did not satisfy the distinct presence requirement [161]-[164]. Because Schluter was about 100 metres away across a reserve when entry occurred, the entries were unlawful [164].
That conclusion did not determine admissibility. Martin J held that, despite the unlawful entry, the devices had been used “pursuant to a warrant” for s 6(1). The judge had authorised use and entry by the applicant, and the ongoing use was what the warrants contemplated. The defect related to who entered or whether the applicant was close enough, rather than to the authorised purpose of using the devices [165]-[167].
In deciding whether to exclude the recordings, the judge considered whether the failure to comply was deliberate or an honest mistake. He accepted that both Schluter and Sergeant Doherty believed the applicant's position complied with the warrant, and found that the failure to meet the presence requirement was not deliberate [169]-[172]. The charges were of the most serious kind, the recordings were significant to the prosecution case, their cogency was not affected by the illegality, and no relevant unfairness had been caused [173]. The court refused exclusion under both the public policy and unfairness discretions [178]-[181].
The judgment applies the statutory text of the South Australian Listening Devices Act 1972 as set out in the reasons. Section 4 prohibited intentional use of a listening device to overhear, record, monitor or listen to a private conversation without consent, except as provided by the Act. Section 6(1) provided that s 4 did not apply to use pursuant to a Supreme Court judge's warrant. The Act also allowed a warrant to authorise entry onto specified premises [6].
Before the ruling, Coco supplied an important interpretive contrast. The High Court had held that the Queensland legislation considered there did not empower a judge to authorise entry that would otherwise be trespass. Martin J explained that South Australia's Act differed because it specifically contemplated and authorised entry without permission [10]-[16]. His ruling does not displace Coco's general approach to statutory interference with fundamental rights; it distinguishes its application by reference to the different statute.
On the warrant's additional-entry question, the judgment held that authority for necessary additional entrants could be implied, but only within a defined limit: entry had to be reasonably necessary to achieve the authorised entry and purposes [19]-[22]. The alternative severance reasoning meant that the warrants could remain valid even if the extra authorisation were invalid, provided that defect did not undermine the valid core authorisation [23]-[30].
On admissibility, the ruling makes a distinction between statutory unlawfulness and automatic inadmissibility. The Act did not itself prohibit tendering evidence obtained contrary to s 4, according to Martin J's construction [41]-[44]. The court retained discretion to address unlawfully obtained evidence, including under the public policy approach referred to in Bunning v Cross and a possible unfairness discretion discussed in Lobban [44]. The judgment therefore treats admissibility as a separate question from whether a warrant or entry complied with the Act.
The ruling also makes the conditions in a warrant practically significant. Even with valid warrants, officers had to comply with the stated limits. The additional officers' authority was conditional on acting in the applicant's presence and under his control and direction. The applicant's distance and location failed the presence condition, producing unlawful entry [149]-[164]. The judgment does not establish a universal distance test; it expressly declined to define the full limits of “presence” [164].
The supplied judgment records the law and authorities considered as at 29 October 2003. It does not provide later appellate treatment or subsequent legislative developments, so the later state of the law cannot be established from this source alone.
At [22], Martin J said that the implied authority to permit other people to enter was confined to those whose entry was reasonably necessary. In plain English, the warrant applicant could not use the provision as an unrestricted power to select extra entrants. The additional entry had to serve the permitted operation.
At [26], the judge explained that any invalid part could be disregarded if the valid part remained independently effective. In plain English, an overbroad term did not necessarily destroy the whole warrant. The question was whether the authorised use and the applicant's own entry could stand without the disputed permission for others.
At [44], Martin J said the Act did not make evidence obtained in contravention of s 4 inadmissible. In plain English, a statutory breach did not automatically prevent the Crown from tendering the evidence. The judge still had to consider whether a discretionary ground justified exclusion.
At [164], he found that being about 100 metres away across a reserve was not presence or close proximity for the warrant. In plain English, having radio or telephone contact and being in charge operationally were not enough to satisfy the separate requirement to be present at entry.
At [167], he found that the devices were used pursuant to the warrants for s 6(1), notwithstanding the unlawful entries. In plain English, the unlawful method of entry did not, on these facts, erase the warrants' authorisation for the later use of the devices.
At [181], the judge recorded that the applications to exclude the recordings were refused. This was the operative result, despite his finding that the entries were unlawful.
The reasoning is most directly relevant to cases involving South Australian listening-device warrants under the statutory scheme described in the judgment, where a warrant authorises entry and requires additional officers to act in the applicant's presence and under their control and direction [6]-[8]. It may assist when an issue arises about whether the Act permits necessary technical or practical assistance from additional entrants [18]-[22].
It is also relevant where a warrant contains both valid and potentially invalid provisions. The court's analysis asks whether the disputed part influenced, or was integral to, the valid authorisation, and whether the valid part can operate independently [23]-[30]. That is a fact-sensitive inquiry, not a general rule that every invalid warrant term can be severed.
The presence analysis may be relevant when a warrant holder supervises remotely rather than being physically close to entry. The decision turned on the words used in the warrant and the applicant's location at the time entry was achieved. Martin J accepted that being immediately alongside the officers was not essential, but found that 100 metres away across a reserve was too far [158]-[164]. The judgment leaves the precise boundaries of presence open.
For admissibility, the case concerns evidence obtained through a possible breach of the Listening Devices Act, where the statute contains prohibitions but no express automatic exclusion provision. It distinguishes the question whether evidence was unlawfully obtained from the separate question whether a court should exclude it [41]-[44], [165]-[179]. The circumstances that mattered included whether non-compliance was deliberate, the evidence's significance and cogency, the seriousness of the charges, and any unfairness to the accused [169]-[179].
The production ruling may be relevant to requests for confidential warrant applications and affidavits. The accused needed to establish a legitimate forensic purpose and that relevant material was “on the cards” to be disclosed; speculation about what the documents might show was insufficient [46]-[49], [57]-[62].
The supplied judgment does not identify any later court's treatment of R v Bunting & Wagner (No 4). It is therefore not possible, from this source, to say whether later courts followed, distinguished, limited or revisited its reasoning.
The judgment itself discusses earlier authorities. It distinguishes Coco because the South Australian legislation expressly provided for warrants authorising entry, unlike the Queensland provision considered by the High Court [10]-[16]. It relies on Parker v Churchill and discusses Peters v Attorney-General for New South Wales in its treatment of severability [28]-[30]. It applies the majority reasoning in Hilton v Wells to the proposition that the statutory provisions did not themselves decide admissibility [35]-[41]. It also refers to Bunning v Cross, Lobban, Gillard and Preston, and other authorities in considering exclusion discretions [43]-[44], [174]-[179].
Those references show the authorities Martin J considered in 2003. They do not establish later treatment of this particular decision. No later case citations or subsequent developments are supplied here.
The decision leaves several questions unresolved. First, it does not define the full range of circumstances that amount to “presence” under a warrant. Martin J concluded that 100 metres away across a reserve was insufficient, but expressly avoided setting comprehensive limits [158]-[164]. How other locations or forms of supervision would be treated is not answered by the judgment.
Second, the judge did not decide whether a listening device could be installed in “friendly premises” with the occupier's consent before activation and without a warrant. He said that issue was unnecessary to decide [118]-[120]. The evidence about officers' understanding of that practice did not produce a ruling on its legality.
Third, the judgment's implied authority for additional entrants depends on necessity and the statutory context. It does not decide whether less precise ways of identifying additional entrants would be valid. Martin J said that the identification used in these warrants was sufficient and expressly left the less precise identification question open [22].
Fourth, the judgment addresses severance on the facts before it. It does not say that every invalid warrant provision can be severed. Its reasoning depends on the conclusion that the disputed permission did not influence the valid decision and was not integral or essential to it [23]-[30].
Finally, the decision does not resolve how later courts have treated its conclusions, or whether the legislation has since changed. The supplied judgment contains no later authorities or subsequent statutory text. Those matters require sources beyond this judgment.
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1 MARTIN J John Justin Bunting and Robert Joe Wagner are jointly charged with eleven counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting is charged with a further count of murder alleged to have been committed in 1992 with Mark Ray Haydon and Wagner is charged with Assisting Offenders in connection with that crime of murder. Haydon has been granted a separate trial with respect to that and other charges of murder.
2 The facts are set out in detail in R v Bunting and Others (No 3) [2003] SASC 251. The evidence that the Crown proposes to lead includes evidence of conversations recorded through the use of listening devices. Those devices were in place pursuant to warrants issued by Supreme Court judges. The accused challenged the validity of those warrants and sought material generated in relation to those warrants. I made a number of rulings and I now set out my reasons for those rulings.
3 Two listening devices were used to record the conversations. Those listening devices were in a residence occupied by Haydon at 4 Blackham Crescent, Smithfield Plains and in a shed at the rear of those premises occupied by a witness, Jodie Elliott. The Crown sought to rely upon twelve conversations recorded between 15 March 1999 and 16 May 1999.
4 Two warrants numbered W99017 and W99018 were issued on 22 February 1999 ("the first set"). Each warrant was issued for a period of sixty days. The listening devices were installed on 1 March 1999. On 23 April 1999 two further warrants were issued in respect of the same residence and shed, each for a period of sixty days. Those warrants are numbered W99028 and W99029 ("the second set"). No new listening devices were installed. The devices installed pursuant to the first set of warrants continued to operate.
5 The ultimate purpose of the applications by the accused is to secure the rejection of evidence of the conversations recorded by use of the listening devices. The submissions were presented by counsel for Bunting and adopted by Wagner. Counsel contended that each warrant is invalid on its face. In addition, material was sought which it was argued might produce evidence leading either to a conclusion of invalidity or to the rejection of some or all of the evidence in the exercise of my discretion.
6 The warrants for the use of each listening device were issued pursuant to the Listening Devices Act 1972 ("the Act"). The sections of particular relevance for present purposes are as follows:
"Prohibition on use of listening device
4. Except as is provided in this Act a person shall not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not he is a party thereto, without the consent, express or implied, of the parties to that conversation.
Penalty: Division 5 fine or division 5 imprisonment or both.
Prohibition on communication or publication
5. A person shall not knowingly communicate or publish any information or material derived from the use of a listening device in contravention of section 4 of this Act.
Penalty: Division 5 fine or division 5 imprisonment or both.
Warrants authorizing use of listening devices
6. (1) Section 4 does not apply in relation to the use of a listening device pursuant to a warrant issued by a judge of the Supreme Court.
(2) An application for a warrant under this Act may be made -
(a) by a member of the police force, for the purposes of the investigation of a matter by police;
or
(b) by -
(i) a member of the National Crime Authority;
or
(ii) a member of the staff of the Authority who is a member of the Australian Federal Police or of the police force of a State or Territory of the Commonwealth.
for the purposes of the investigation of a matter by the Authority.
(3) Subject to subsection (4), an application for a warrant -
(a) must be in writing;
(b) must set out the grounds on which the application is based;
(c) must specify the period for which it is requested that the warrant be in force and give reasons for that specification;
and
(d) may request that the warrant authorize entry onto specified premises.
(4) If the applicant for a warrant believes it necessary to do so because of urgent circumstances, an application may be made by telephone and, if an application is made by telephone, the application must, in addition to the particulars required by subsection (3), include particulars of those urgent circumstances.
7 The applicant for the Warrants was Chief Inspector Schluter. Warrant No 99017 was in the following terms:
"WARRANT
TO Malcolm Leonard Schluter, a member of the South Australian Police
WHEREAS application has been made to me by Malcolm Leonard Schluter, a member of the South Australian Police for a warrant authorising the use of a listening device.
AND WHEREAS I, Bruce Thomas Lander,
a Judge of the Supreme Court of South Australia, am satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing.
NOW THEREFORE I, pursuant to Section 6 of the Listening Devices Act 1972, HEREBY AUTHORISE YOU and any 2 other police officers of the Police Technical Section authorised by you and acting in your presence and under your control and direction to enter upon the premises situated at 4 Blackham Crescent, Smithfield Plains, in the State of South Australia, for the purpose of installing, maintaining, using or recovering the listening device without permission first being sought or demand first being made at any time, and entry to the said premises may be effected by means thought appropriate in the circumstances.
AND I FURTHER AUTHORISE YOU and the members of the South Australia Police Telecommunications Interception Section and the 7 persons below named, being members of the South Australia Police, acting under your control and direction to use the said listening device the subject of this application:-
Michael Robert Standen, Detective Sergeant
Gregory Robert James Stone, Detective Constable
Brian Swan, Detective Sergeant
Craig William Patterson, Detective Senior Constable
Robert Stapleton, Detective Senior Constable
Victoria Ramm, Constable
Stephen Alec McCoy, Detective Senior Constable
AND subject to any renewal thereof, this warrant shall be in force for a period of 60 days from the date hereof."
8 Warrant No 99018 was in identical terms with the exception that it authorised entry into "the shed in the rear yard of the premises situated at 4 Blackham Crescent, Smithfield Plains". Each of the warrants in the second set was in identical terms with respect to each building.
9 The main thrust of the submission was that the Judge did not possess the power to authorise anyone other than the applicant to enter the residence or shed at Blackham Crescent without permission for the purpose of installing, maintaining, using or recovering the listening device. To the extent that each warrant purports to authorise two police officers other than the applicant to enter the premises and the shed, the warrant is invalid on its face. In essence, it was argued that the warrant is so powerful and involves such a serious infringement of an occupier's rights that the power to authorise the entry of persons other than the applicant should not, in the absence of express reference to such a power in the Act, be inferred. In particular, the Court should not infer the existence of a power to give the applicant the ability to choose two unnamed persons from the Police Technical Section ("the Section") to accompany the applicant. Counsel compared other legislation such as s 52 of the Controlled Substances Act 1984 which specifically provides that an officer authorised to exercise powers pursuant to a search warrant "may be accompanied by such persons as the officer considers necessary or desirable in the circumstances": s 52(11).
10 Reliance was placed upon the decision of the High Court in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427. The Court was concerned with the provisions of the Queensland Invasion of Privacy Act 1971. Section 43 of that Act prohibited the use of a listening device to record or listen to a private conversation, but empowered a Judge to grant approval for the use of a listening device. The Judge was directed to have regard to a number of matters including the extent to which the privacy of any person was likely to be interfered with. The order under consideration purported to empower an authorised police officer or a person engaged in the investigation to enter premises for the purpose of installing, maintaining, servicing and retrieving the listening device. The critical issue was whether the Judge possessed the power to authorise such entry.
11 The Court unanimously held that s 43 did not confer power on the Judge to authorise entry onto the premises for the identified purposes relating to the listening device in circumstances where the entry otherwise would have constituted a trespass. The Court held that the order was wholly void.
12 In a joint judgment, Mason CJ, Brennan, Gaudron and McHugh JJ emphasised the fundamental nature of the right of a person in possession to exclude others from the premises and the need for clear and unambiguous language in the statute that is said to authorise the commission of a trespass by entry without permission (435 and 436):
"Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon [(1991) 171 CLR 635 at 654]:
'[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights.'" (footnotes omitted).
13 Their Honours observed that the insistence on clear manifestation of an intention to interfere with fundamental rights is based on requirements that the legislature clearly indicate that it has not only directed its attention to the question of the abrogation or curtailment of such basic rights, "but has also determined upon abrogation or curtailment of them" (437). In addition, insistence on a clear expression of an intention to abrogate or curtail a fundamental freedom "will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights" (437 and 438). Their Honours added that the need for such clear expression does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. The judgment continued (438):
"Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasise that the test is a very stringent one. As were remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operative is limited in scope."
14 After observing that many devices may require entry to premises for installation, but that not all devices would require such entry, their Honours found that the Act did not confer power on the Judge to authorise entry to premises.
15 In a joint judgment, Deane and Dawson JJ identified that there were a variety of circumstances in which a listening device could be used without any clandestine entry onto premises. In those circumstances, it could not be said that the legislative provisions were rendered inoperative or nonsensical by the interpretation that the provisions did not authorise such an entry. Their Honours held that the inference was unavoidable that the Judge had mistakenly considered or assumed that he had the power to grant express or implied authority to engage in otherwise unlawful conduct and that the mistake resulted in a "fundamental misapprehension" by the Judge about the extent of the powers being exercised and the nature and extent of the authority given. They concluded that the effect of the misapprehension was "to nullify the authority".
16 A significant point of distinction exists between the circumstances under consideration and those with which the High Court was concerned in Coco. Unlike s 43 of the Queensland Act, the South Australian Act specifically empowers a judge to authorise entry onto premises without permission. The Act specifically authorises interference with the fundamental common law right of the person in possession or entitled to possession of the premises ("occupier's right"). The obvious purpose is to assist in the investigation of crimes by the installation of listening devices without the knowledge of occupiers and those who are likely to be overheard by those devices. The legislature must be taken to have decided that in order to assist investigations, the abrogation of the fundamental right was necessary and appropriate in the specified circumstances.
17 Notwithstanding the distinction to which I have referred, counsel for Bunting submitted that a power to authorise entry by other persons to assist the applicant should not be inferred. Counsel argued that the scheme of the Act is to require an applicant to satisfy a judge that the applicant is an appropriate person to be given the power. The Judge is required to make an assessment of both the circumstances and of the applicant. In addition, there is no mandate to authorise the applicant to permit unnamed persons to enter under the applicant's direction and control.
18 By enacting ss 4 and 5 of the Act, the legislature has set about protecting the confidentiality of private conversations by prohibiting the use of listening devices and by making communication of information derived from use of a device in contravention of s 4 an offence. However, the legislature has also recognised that in specific circumstances the right of confidentiality attaching to private conversations should be abrogated. The right is abrogated only if a judge is satisfied that the issue of a warrant authorising the use of a listening device is justified having regard to a number of specified circumstances. The legislature has also determined the abrogation of an occupier's right is necessary or appropriate in identified circumstances. The primary questions for the Judge are whether the use of a listening device is justified for the purposes of an investigation by the police and whether entry without permission is necessary and appropriate to achieve the purpose of using a listening device. While the identity of the applicant and others who it is proposed will be involved in entry to install and use the listening device is relevant, the primary focus is not upon satisfying the Judge that the applicant is an appropriate person to be authorised to enter and use the listening device. If the applicant is a member of the Police Force, such membership is sufficient qualification to apply for a warrant. Obviously, once a judge is satisfied that use and entry should be authorised, attention will be given to the question as to who should be authorised to enter and the appropriate conditions.
19 Although the legislation does not specifically refer to the installation, maintenance or recovery of a listening device, it is apparent that power to authorise entry for such purposes must be implied in order to give practical effect to the obvious purposes of the legislation. However, counsel argued that the power to authorise entry by persons other than the applicant should not be inferred because, however inconvenient it might be, there is no impediment to the obtaining of individual warrants for persons who it is intended would enter the premises for the relevant purposes associated with the use of the listening device.
20 In considering whether the power to authorise entry of persons other than the applicant should be implied, it must be recognised that entry by persons additional to the applicant is a further infringement upon the rights of the occupier. However, the occupier's fundamental right having been abrogated by the Judge authorising the applicant to enter, the further infringement is strictly limited to achieving the authorised purposes of gaining entry, namely, installation, maintenance and use of the listening device. Only such assistance as is reasonably necessary can be authorised. There is no reason to suppose that the rights of the occupier will be better protected if each person whose entry is reasonably necessary to achieve these purposes is required to make an application. For example, there is no reason to suppose that had separate applications been made by officers of the Police Technical Section, those applications would not have been granted. Such applications would add nothing to the primary questions as to whether use and entry should be authorised.
21 The Act envisages authorisation being given for entry without permission together with installation, maintenance and use of a listening device. In my opinion, the legislature must be taken to have recognised that the involvement of more than one person is likely to be required in most circumstances. Clandestine entry without leaving indications of such entry is required. A police officer might require the assistance of a civilian locksmith to gain entry. Such a locksmith would not be qualified to make an application. Technical expertise of a different kind is involved in the installation, maintenance and use of listening devices. Bearing in mind that the police cannot predict when the opportunity will arise to make a clandestine entry, a degree of flexibility is obviously required in selecting the personnel with appropriate expertise to be involved in gaining entry and in installing, maintaining and using a listening device.
22 In my opinion, bearing in mind the distinction between the circumstances under consideration and those addressed by the High Court in Coco, the power to authorise entry into the premises of persons other than the applicant should be implied. The power is limited to authorising entry of such persons whose entry is reasonably necessary in order to achieve both entry and the purposes for which entry is authorised. Further, in my view it was within the power of the Judge to authorise entry of persons identified in the manner set out in the warrants. Sufficient identification for these purposes is provided by the terms of the warrants. It is unnecessary to consider whether any form of identification that is less precise than the terms of the warrant would be within power.
23 If I am wrong in that conclusion, the question remains as to whether the warrants are invalid. In each instance, the Judge was satisfied that the issue of the warrant authorising the use of a listening device was justified and that entry without consent for the purpose of installation should be authorised. Any error in respect of the number of persons that could be authorised to enter the premises was irrelevant to the fundamental questions facing the Judge. Unlike the circumstances in Coco, the authorisation of entry by two persons in addition to the applicant was not an "integral and essential element in the approval to use the listening devices" (443).
24 The impact of an invalid part of a warrant on the validity of the remainder of the warrant was considered in Coco. In the joint judgment of four Justices, having found that the Act did not confer power on the Judge to authorise entry to premises, their Honours examined the validity of the approval given by the Judge. The argument in favour of total invalidity was presented as an issue of severability, but their Honours expressed the view that the question of validity depended upon what was a misapprehension by the Judge of the nature and scope of the discretionary power conferred. They concluded that the terms of the approval demonstrated that the Judge had misapprehended the power conferred by the statute and that he purported to exercise a power different from the power reposed in him. Having misconstrued the statute providing jurisdiction, the Judge addressed an irrelevant consideration and exceeded his jurisdiction. The error could also be categorised as an error on the face of the record. The judgment continued (443):
"The extraneous factor to which Carter J had regard, namely, the perceived necessity to approve entry onto private property for the purpose of installing, maintaining, servicing and retrieving listening devices, not only contributed to the making of the decision to approve the use of the listening devices but it also took the form of an invalid authorisation to enter on to private property. No doubt in some circumstances it is possible to disregard that part of the decision that goes beyond power and treat as valid that part of the decision which is within power. But that must become a much more contentious exercise when the invalid part of the decision has influenced the making of the valid part of the decision. In this case, the approval is expressed in such a way as to make it appear that authorisation to enter private property was an integral and essential element in the approval to use the listening devices. So much is made clear by reference to installation in both the paragraph which constitutes the approval and the first condition. In this situation there is no scope for speculation on the assumption that speculation is legitimate, about what Carter J would have done had he appreciated that authorisation of entry onto private property was beyond power.
If it were necessary to consider the question from the viewpoint of severance, we would come to the conclusion that it is not possible to sever. The fact that what is bad is an integral and essential element of what is good leads to the conclusion that the approval is wholly void."
25 In my opinion, the Judges authorising the issue of the warrants under consideration did not misapprehend their power. Nor did they purport to exercise a power different from the power reposed in them. Assuming invalidity as discussed, the invalid parts of the decisions had no influence on the making of the valid parts of the decisions. The fundamental purposes of the warrants were to authorise the use of the listening devices and entry for the purposes of their installation. In each instance, the authorisation given to the applicant to enter the premises and to install and use the listening device was valid. On this view, while the Judges misapprehended the scope of the discretionary power in that they determined the scope extended to authorising additional officers to enter, they did not misapprehend the essential nature and scope of the power concerned with authorising both the use of the listening devices and the entry into premises for the purposes of installing those listening devices.
26 In these circumstances, in my opinion it is possible and appropriate to disregard that part of each decision that was beyond power and to treat as valid that part of each decision which was within power. In my view, therefore, if there was an error with respect to authorising entry by persons other than the applicant, the warrants were, nevertheless, valid.
27 The question of validity could also be considered from the point of view of severance. In Coco, the majority concluded that it was not possible to sever the invalid part because the invalid part of the warrant was "an integral and essential element of what is good". As I have indicated, in my opinion the invalid part is not an integral and essential element of the valid part of the warrant.
28 In Parker v Churchill (1986) 65 ALR 107, the Full Court of the Federal Court upheld a decision of Burchett J in which his Honour held that invalid parts of a search warrant were severable from the valid sections. Jackson J, with whom Bowen CJ and Lockhart J agreed on this point, said (122):
"It is possible, of course, that the good and bad parts of the warrants may be so interlinked that one cannot stand without the other but that would usually mean no more than that the parts, as a matter of construction of the warrant, were not truly separate. Further, as the primary judge said, the authorities suggest that a search warrant, being an order of a justice is divisible and when good in part and bad in part, the good may be divided from the bad, and the good affirmed and the bad quashed ..."
29 The decisions in Parker v Churchill were followed by McHugh JA in Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24. His Honour noted, however, that "... it is not possible to sever a warrant where the invalid provision forms part of an inseparable context or would operate differently or produce a different result from that which was intended ... (41)".
30 In my opinion, on the assumption that the warrants were invalid to the extent discussed, that invalid part of each warrant can be severed. The balance of each warrant authorising the use of the listening devices and entry by the applicant to install those listening devices was valid.
31 During submissions, counsel for Bunting also suggested that the warrants authorising the use of listening devices and entry into a shed at the rear of the premises at 4 Blackham Crescent, Smithfield Plains were void because the description of the shed was insufficiently precise. He pointed out the evidence that there was a shed at the rear of the premises being used as a residence by Bunting's partner, Ms Jodie Elliott, and also a garage. Because of the existence of the garage, the premises into which entry was authorised was not identified with sufficient certainty. Not surprisingly, this suggestion was pursued rather faintly. No authorities were cited. In my opinion there is no substance in this complaint. My view in this regard is confirmed by the decision of the New South Wales Court of Appeal in Commissioner of Police v Barbaro [2001] NSWCA 57; (2001) 51 NSWLR 419.
32 If I am wrong in my conclusion that the warrants were valid, a question arises as to whether the evidence obtained through the use of the warrants is inadmissible. The accused submitted that the combined effect of ss 4 and 5 of the Act is to render the evidence inadmissible. Section 5 should be strictly interpreted as a prohibition against communication in any circumstances of evidence obtained in breach of s 4. Counsel posed the question as to what sanction would apply for non-compliance if the evidence was not inadmissible.
33 In Coco, the legislation specifically provided that evidence of tape recordings was inadmissible if the evidence was procured as a result, direct or indirect, of the use of the listening device in contravention of s 43. In those circumstances it was conceded that as the warrant was invalid, the evidence was inadmissible.
34 Some assistance may be gained by reference to authorities concerning s 7 of the Commonwealth Telecommunications (Interception) Act 1979. The relevant parts of s 7 were as follows:
"'(1) A person shall not -
(a) intercept;
(b) authorize, suffer or permit another person to intercept;
or
(c) do any act or thing that will enable him or her or another person to intercept, a communication passing over a telecommunications system.
Penalty: $5,000 or imprisonment for 2 years.
(2) Sub-section (1) does not apply to or in relation to -
(a) an act or thing done by an officer of the Commission in the course of his duties for or in connection with -
(i) the installation of any line, or the installation of any apparatus or equipment, used or intended for use in connection with a telecommunications service or the operation or maintenance of a telecommunications system; or
(ii) the identifying or tracing of any person who has contravened, or is suspect of having contravened or being likely to contravene, a provision of the Telecommunications Act 1975 or of any regulation or by-law in force under that Act; or
(b) the interception of a communication in pursuance of a warrant.
(3) ...
(4) A person shall not divulge or communicate to another person, or make use of or record, any information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21 except -
(a) in or in connection with the performance by the Organisation of its functions or otherwise for purposes or security;
(b) for the purpose of narcotics inquiries that are being, or have been, made by members of the Australian Federal Police; or
(c) in the performance of any duty of that first-mentioned person as an officer of the Commission.
Penalty: $5,000 or imprisonment for 2 years.
(5) Notwithstanding sub-section (4) -
(a) the Director-General of Security may, by himself or by an officer authorized by him communicate, in accordance with paragraph 18(3)9a), (b) or (c) of the , information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under ;
35 In Miller v Miller [1978] HCA 44; (1978) 141 CLR 269, Gibbs J considered the effect of s 7(4). His Honour doubted that the sub-section rendered the evidence inadmissible. He doubted that a Court is "another person" within the meaning of the (277). That view was followed by Crawford J in R v Padman (1978) 36 FLR 347.
36 Section 7 was again considered by the High Court in Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57. In a joint judgment, Gibbs CJ, Wilson and Dawson JJ concluded that s 7 was not concerned with the admissibility of evidence in legal proceedings. As to the scheme of the section, their Honours said (75):
"Having prohibited a substantial penalty the interception of a communication passing over a telecommunications system, the remainder of the section constitutes a code designed to deal with authorised and therefore lawful interceptions, identifying the circumstances in which an interception may take place and regulating the use which may be made of any information obtained thereby. The legislature does not assume that its command in subsection (1) will be disobeyed."
"The first is the prohibition of the interception of a communication passing over a telecommunications system, subject to prescribed exceptions. The second is the prohibition of the communication by one person to another person of any information obtained by intercepting a communication passing over a telecommunications system with a prescription of the circumstances under which such information may be divulged without committing an offence.
Hence subsection (1) creates the offence of unlawful interception. Subsection (2) outlines the circumstances in which an interception will not be affected by the prohibition in subsection (1). Subsection (4) moves on to the consequences of permissible interception. It prohibits the divulging or communicating by one person to another of any information obtained by an interception except in the circumstances described therein."
38 After considering subsections (5) and (6) and the decisions in Miller v Miller and R v Padman, their Honours continued (76 and 77):
"But all of this is merely to show that in s. 7 the Act is dealing with the subject of the interception of telecommunications in the following respects:
(a) prohibiting under penalty the interception of a communication passing over a telecommunication system save in the circumstances described;
(b) prohibiting, subject to exceptions, the communication by one person to another person of any information obtained in those circumstances; and
(c) declaring that a person may give lawfully intercepted information in evidence in certain proceedings. It will be observed that the admissibility of evidence in legal proceedings is not a subject which is dealt with by the section. It is unnecessary to recall the many and detailed rules that govern that subject. Suffice it to say that questions of relevance, of the capacity of witnesses and of the discretion of the judge to reject relevant and admissible evidence which has been obtained unlawfully or in circumstances where it would be unfair to admit it remain to be considered by the trial judge.
The question asks whether s. 7 prohibits the admission into evidence, in proceedings for an offence of the description in par. (c) of s. 7(6) of evidence obtained by an illegal interception. In our opinion, the answer must be in the negative. Neither sub-s. (6) nor for that matter sub-s. (4) has anything to say either directly or by implication to the question. They are not concerned with information obtained in contravention of the Act. To find an implication such as that contended for by Mr Ellicott would be to read too much into the Act. The discretion of a court when confronted with evidence which has been unlawfully obtained has been clearly explained in recent decisions of this Court: Reg v Ireland; Bunning v Cross; Cleland v The Queen. No doubt it is true, as Barwick CJ recognized in Ireland, that acts in breach of a statute may more readily warrant the rejection of the evidence as a matter of discretion. But this is to do no more than confirm the existence of the discretion, a discretion which is to be exercised in the light of the competing public interests to which the Chief Justice referred. As we have said, this is not a case such as his Honour contemplated in the same passage (62), namely, a case where the statute may on its proper construction itself impliedly forbid the tender in evidence of information obtained in breach of its terms. The question should be answered No." (Footnotes omitted).
39 Mason and Deane JJ dissented. In a joint judgment, their Honours noted that the answer to the question whether evidence obtained by an illegal interception is admissible in legal proceedings turns upon the correct construction of s 7. Their Honours concluded that the prohibition in subsection (4) against communication of information to "another person" did not apply to the giving of evidence before a court. They then examined the inter‑relationship between the subsections and concluded that subsection (6) was, in effect, a complete code as to the circumstances in which information obtained from an interception could be given in evidence (88 and 89):
"In the overall context of a section which, under criminal sanction, prohibits unauthorised interception and prohibits the unauthorised use of information obtained as a result of authorised interception, the implication is plain that the provisions of subsection (6) were intended to provide a comprehensive identification of the circumstances in which information obtained as a result of interception of a telecommunications communication or as a result of access to telegrams could lawfully be given in evidence in legal proceedings ... All that the subsection does is to confine within the designated limits the circumstances in which material obtained by interception of communications or access to telegrams may, if otherwise admissible, be given in evidence."
40 Their Honours then rejected the suggestion that subsection (6) was restricted to disclosure of lawfully obtained information and was not concerned with information obtained as a result of an unlawful interception.
41 In my opinion, the reasoning of the majority in Hilton v Wells is applicable to the proper construction of the provisions of the South Australian Act. Sections 4 and 5 identify two prohibitions. The use of a listening device is prohibited as is communication of information obtained from the use of a listening device. Section 6 is concerned with the circumstances in which the use of the listening device will not be prohibited by s 4. The provisions are not concerned with the admissibility of evidence in legal proceedings.
42 In arriving at this view, I have not overlooked the proposition that the legislature would have envisaged the consequence of inadmissibility as an appropriate sanction for non‑compliance with the provisions of the Act. However, in my view there is no substance in this suggestion. Failures to comply are often the product of inadvertence or mistaken attempts to comply with the Act. In many circumstances it will be inappropriate to approach the matter in terms of sanctions. If the legislature had intended such a significant consequence as inadmissibility to flow from a failure to comply with the Act, no matter how trivial, in my view the legislature would have made its intention plain. If the circumstances require a sanction, the court has ample powers to apply such a sanction.
43 My conclusion conforms with the views of the trial Judge and Court of Criminal Appeal in R v Gillard and Preston (1998) 200 LSJS 350 and [2000] SASC 454. The trial Judge found a warrant under challenge was valid and addressed the question of discretion should he be wrong in his conclusion as to the validity of the warrant. That approach was approved on appeal: [114] and [115].
44 In my opinion, the Act does not render inadmissible evidence obtained in contravention of s 4. Such evidence would be illegally obtained. That circumstance would give rise to a discretion to exclude the evidence on the grounds of public policy discussed in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and, possibly, to consideration of the discretion to exclude on the ground that to receive the evidence would be unfair to an accused: R v Lobban (2000) 77 SASR 24.
45 In connection with the installation and removal of the listening devices, the Crown produced a set of audio log sheets apparently compiled by officers of the Section involved in the installation and removal of the listening devices. The log sheets identify the attendance of four officers on 1 March 1999 for the purposes of installation. No mention is made in the log sheets of the presence of the applicant. In addition, an entry in a PTU Taskings Job Diary ("PTU diary") for 3 June 1999 refers to the removal of the listening devices and includes a notation "Schluter [the applicant] not there". The entry was made by one of the officers who was involved in the installation and who removed the listening device, Sergeant Peter Doherty. The accused suggested that the entries gave rise to the possibility that, contrary to the terms of the warrant entry, installation and removal did not occur in the presence of the applicant nor under his control and direction.
Production of Applications and Supporting Affidavits
46 In connection with the issue of installation, the accused sought access to the applications for the warrants and the affidavits presented to the Judges in support of the applications. Counsel contended that a legitimate forensic purpose existed for production of the material presented to the Judges because it was "on the cards" that information would be discovered relevant both to whether either of the Judges were misled or given incomplete information and to whether the warrants were lawfully executed. In arguing that the application for production should be refused, the Crown submitted that the application lacked a basis and amounted to a mere fishing expedition. The Crown also indicated that, if necessary, it would seek to file an affidavit to establish that production should be refused on grounds of public interest immunity. For reasons which will become apparent, it was unnecessary to receive an affidavit in support of that claim or to hear submissions concerning that issue.
47 The accused highlighted the fundamental premise that a warrant must be required for the purposes of the investigation of a matter by the police. Of the twelve conversations recorded between 15 March 1999 and 16 May 1999 which the Crown seeks to lead in evidence, only the first of those conversations was heard live. Police ceased listening directly to the conversations at the end of March. As an overview, investigators did not listen to the recordings of the second to twelfth conversations recorded from 29 March 1999 to 16 May 1999 until between 28 September 2000 and 2 December 2000. Counsel argued that this raised the possibility that the listening devices were not genuinely required for the purposes of the investigation beyond the period of approximately 30 days. In those circumstances, it was on the cards that the Judge who issued the first set of warrants on 22 February 1999 might have been given inaccurate information when police sought the issue of the warrant for a period of 60 days. In addition, if the Judge was told the police would be listening and monitoring for a period of 60 days, when the police stopped listening after 30 days the basis for the warrant ceased to exist and the Commissioner of Police should have cancelled the warrant: s 6(8).
48 In my opinion, there is no substance in the proposition that the fact the police ceased listening at the end of March gives rise to the possibility that on 22 February 1999 inaccurate or incomplete information was given to the Judge to justify the request for a warrant to operate for 60 days. Such a conclusion does not follow as a matter of logic or common sense. The proposition is speculation which lacks any foundation. Similarly, it is mere speculation to suggest that the Judge might have been told police would be listening to the product of the device continuously for the 60 day period. Bearing in mind the size and complexity of this matter, it is not surprising that police would have sought the warrant for a period of 60 days for the purposes of their investigation. There may be many reasons why, having listened from time to time over a period of approximately 30 days, the police might have decided to give priority to other aspects of the investigation, including listening live to the product of other listening devices or telephone intercepts. In my view it is highly unlikely that the police would have suggested to the Judge that they intended to listen continuously for the next 60 days.
49 In my opinion, the accused failed to demonstrate that it is on the cards that any relevant information would be disclosed by the production of the applications or affidavits placed before the Judge who issued the first set of warrants. On that basis I declined the application for production of that material. I also declined the application to cross‑examine the applicant on a voir dire hearing with respect to the issues raised by the application.
50 The second set of warrants related to the same premises as the first set. After the later warrants were granted, police did not install any new listening devices. They left in place the listening devices installed pursuant to the first set of warrants. In substance, therefore, by applying for the second set of warrants police sought the renewal of their authorisation to use the existing listening devices. The second set of warrants was issued for a further period of 60 days.
51 If police had applied for the first set of warrants to be extended, obviously the Judge would have been aware of the period for which the listening devices had been in place. The Rules of Court provide that the renewal of a warrant shall be effected by endorsement on the original warrant. Counsel suggested that the procedure adopted of seeking the issue of new warrants rather than the renewal of existing warrants might have meant that the Judge was not informed of the existing warrants and listening devices. Counsel asked why the Judge, if told that a listening device was already in place, would authorise entry to install the device. It would have been sufficient to authorise the use of the device and entry for the purposes of maintenance and removal. He argued that the existence of authorisation to enter for the purposes of installation gave rise to the possibility that on 23 April 1999 the Judge was not told that a listening device had been in place since 1 March 1999.
52 In my opinion, the fact that the warrant included reference to installing the listening device does not give rise to a conclusion that it is on the cards that production of the material put before the Judge will disclose that the Judge was not told that a listening device had been in place since 1 March 1999. The warrants were in a standard form prepared by the applicant and the applicant's advisers. Bearing in mind the intention not to replace the existing listening device, it would not be surprising if the police wanted to leave open the option of installing another device should the original device fail.
53 Counsel also argued that if the Judge had been told of the first set of warrants he would have endorsed renewals rather than issuing the second set. I do not agree. A renewal would probably have been limited to 30 days. The police requested 60 days. The procedure of requesting a second set avoided any question of whether a renewal could extend beyond 30 days.
54 Counsel urged that the issue to which I have referred should not be considered in isolation. He contended that the failure of the police to listen to the recordings after the end of March 1999 gave rise to the possibility that the police did not genuinely believe that the continuation of the use of the listening device was required for the purpose of the investigation. Rather, they were endeavouring to accumulate or stockpile evidence to be sorted out later.
55 In my opinion, this argument is also an appeal to this Court to speculate in a manner adverse to the police without any foundation for such speculation. As the facts set out in R v Bunting and Others (No 3) [2003] SASC 251 demonstrate, this was a large and complex investigation potentially involving a number of murders. No bodies had been located. A number of potential suspects and premises associated with those suspects were involved. Haydon was living in the house at Blackham Crescent and Ms Jodie Elliott, a woman with whom Bunting had a sexual relationship, was living in the shed at the rear of the premises. Bunting was a regular visitor to the premises, but he lived at 49 Bundarra Court, Craigmore. Wagner lived at 36 Mofflin Road, Elizabeth Grove.
56 Other listening devices were in place together with telephone intercepts. Suspects were under visual surveillance from time to time which may have enabled the police to concentrate their activities on premises at which they were aware the suspects were present. The premises and persons who attended at Blackham Crescent were still directly relevant to the ongoing inquiry.
57 The ultimate purpose of obtaining the material used in support of the applications for the warrants was not to seek to challenge the finding of the Judge that the Judge was satisfied that the issue of the warrants was justified nor to advance an argument that the material placed before the Judge was not sufficient to justify the issue of the warrants. It was said that an examination of the material might disclose that the police had behaved improperly with the consequence that the product of their misconduct should be excluded from evidence in the exercise of the discretion. In my opinion, however, the accused failed to demonstrate that a legitimate forensic purpose exists which would justify an order for production of the material sought. For the same reasons, I declined to permit cross‑examination of the applicant on a voir dire hearing concerning those matters.
58 While declining to permit cross‑examination of the applicant in respect of matters concerning the issuing of the warrants, I permitted cross‑examination in connection with the installation and removal of the listening devices. The decision to refuse production and cross‑examination concerning the applications was, therefore, subject to revision should anything arise during cross‑examination concerning installation to cause me to reconsider my decisions. Nothing emerged during cross‑examination that caused me to reconsider.
59 Prior to cross-examination of the applicant, I did not examine the applications for the warrants or the material provided to the Judges in support of those applications. However, circumstances changed during cross-examination of the applicant. The Crown tendered an affidavit sworn by the applicant on 1 March 2002. The applicant said that for the purposes of preparing his affidavit of 1 March 2002 he had refreshed his memory from a number of documents, including the applications to the Judges and the affidavits in support of those applications. While there was a degree of confusion as to the extent to which the applicant refreshed his memory from the affidavits, ultimately it appears that he only used that material to refresh his memory as to relevant dates.
60 Counsel for Bunting saw an opportunity to gain access to the affidavits. He submitted that he was entitled to examine the entire affidavits and not just those portions from which the applicant had refreshed his memory. In these circumstances, I examined the affidavits put before the Judges in respect of the applications for the first and second sets of warrants.
61 Having examined the affidavits, I refused the application for production. Generally speaking, when the memory of a witness has been refreshed by reference to a document, counsel for the opposing party is entitled to inspect that part of the document from which the memory has been refreshed. However, there was no issue about the dates and examination of the affidavits restricted to that part relating to the dates would not have assisted the accused in any respect. Access was not sought for the purpose of seeing those parts relating to the dates. The real purpose was to endeavour to gain access to the substance of the affidavits.
62 My examination confirmed my view that there was no substance in the wider application for production of the affidavits. If I had been of the contrary view that production was justified, a significant issue as to public interest immunity would have arisen. However, the application failed at the threshold. My reading of the affidavits plainly demonstrated that there was no substance in the points made by counsel in support of the request for production. There was nothing in the material which could have given any support whatsoever to the points made by counsel. Nothing exists which would assist the accused in a general investigation as to whether some ground for the exclusion of the evidence in the exercise of the discretion exists. Similarly, there was nothing in the material to support a claim that, as a matter of law, there was no basis for the issue of the warrants or that the issue of any of the warrants was so unreasonable that they were invalid or should otherwise be set aside: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
63 As mentioned, the Crown tendered an affidavit sworn on 1 March 2002 by the applicant, Chief Inspector Malcolm Schluter. The applicant was a senior officer with operational control of the Section. He says the installation on 1 March 1999 was carried out by four police officers from the Section who were authorised by him for that purpose and who were acting under his control and direction. He also says that removal of the devices occurred in his presence and was carried out by two officers authorised by him for that purpose who were acting under his control and direction.
64 On the first occasion that the applicant gave evidence, he explained that prior to installation there had been extensive discussions and preparations, the details of which it is unnecessary to repeat. It was planned that the work of installation would be carried out by two teams of two at the same time. The discussions included consideration as to methods of entry and equipment to be used. The applicant was not qualified in these areas and it was his intention to leave the technical tasks of entry and installation to the expertise and discretion of the Technical Services officers.
65 Entry and installation occurred late at night. The applicant and the other officers were required to wait until the premises were vacated. The applicant said he took up a concealed position close to the rear fence of the premises in a reserve immediately adjacent to the rear of the property. He maintained constant contact with the other officers by use of a radio and mobile telephones. The applicant acknowledged that he was relying in large measure upon the integrity and the expertise of the officers that he had authorised to enter the residence and the shed to install the listening devices.
66 It was put to the applicant that the officers effecting entry and installation were not acting in his presence and were not under his control or his direction for the purposes of the warrants. The applicant disagreed. He said that for these purposes, the officers were acting in his presence and that he was exercising "operational directional control". The applicant explained what he meant:
"Q You used an expression a moment ago 'operational directional control', what do you mean by that.
67 The applicant said that no-one had ever suggested to him prior to giving evidence that standing outside the boundary but adjacent to the rear fence while officers entered the premises was not, for these purposes, entry in his presence or under his control. Asked if he had discussed with anybody before the installation what the warrant meant when it said "in your presence", the applicant explained that the Judge who issued the first set of warrants asked him questions about where the applicant anticipated he would be and whether he would gain entry to the dwelling. He said he told the Judge that he did not propose to enter the dwelling and that he "would take up a position in or around the premises nearby in order to supervise the operation".
68 The applicant's evidence concerning his conversation with the Judge resulted in an application to obtain a report from the Judge. That application is canvassed later in these reasons.
69 The evidence of the applicant as to his belief concerning the meaning of "in your presence" finds support in the evidence of Sergeant Doherty. He was presented by the Crown for cross-examination in connection with the removal of the listening devices. He said that it was his understanding that the terms of the warrant required installation and removal at a time when the warrant holder was "in attendance". By "in attendance", Sergeant Doherty said he meant "close proximity" which he equated with the applicant's position at the time of installation of the listening devices at Blackham Crescent. It was his memory that the applicant was in his vehicle approximately 30 metres from the rear fence of the premises separated from the house and shed by the rear fence which was head high corrugated iron.
70 On the second occasion that the applicant gave evidence, his version as to the position he occupied during entry to the premises and installation of the listening devices was different from his evidence on the first occasion. He said he parked his vehicle directly across the reserve approximately 100 to 150 metres from the rear fence of the premises. He had a specific memory of being in the vehicle when the other officers crossed the reserve and went over the rear fence with the assistance of a ladder. Installation took approximately one and a half to two hours. Partly because of curiosity by other persons who showed interest in the applicant while he was seated in his motor vehicle, the applicant was in and out of the vehicle during that period. At times, he was secreted behind bushes close to the rear fence.
71 When confronted with his evidence on the first occasion to the effect that he occupied only one position close to the rear fence, the applicant denied attempting to mislead the court on the first occasion. He did not have an explanation for failing to tell the court on the first occasion that for some periods he was situated in his motor vehicle and not close to the rear fence. He said that after giving evidence on the first occasion, he visited the scene to refresh his memory. However, it was not until he was further cross-examined that he recalled being in the car at the outset and that he had given incorrect evidence on the first occasion.
72 As to the removal of the listening devices, the applicant said that advantage was taken of the fact that other officers were conducting a search of the premises. He gave instructions to Sergeant Doherty to make his way to the premises and indicated that he, the applicant, would do likewise. The applicant said that on his arrival he observed a number of onlookers who had apparently been attracted by the presence of police vehicles. He decided not to enter the premises, but to take up the same position at the rear fence. The applicant did not see Sergeant Doherty, but was told by radio message that the job had been completed.
73 On the second occasion that he gave evidence, the applicant said that from his position in the reserve he notified Sergeant Doherty of his presence and gave instructions that Sergeant Doherty could enter and effect the removals. He was at that location for approximately thirty minutes before Sergeant Doherty notified him that the task had been completed and that he had left the premises. The applicant said he did not meet or see Sergeant Doherty later that day after Doherty had left the premises.
74 Sergeant Doherty gave evidence between the two occasions on which the applicant gave evidence. Generally speaking, his evidence confirmed that of the applicant concerning the installation of the listening devices.
75 As to removal, Sergeant Doherty said the occasion stuck in his mind because when he reached his vehicle after removal he was unable to locate the keys to his vehicle. He said he was instructed by the applicant that an opportunity existed to effect the removals because other officers would be searching the premises and a person with whom Doherty should not make contact would be absent from the premises for a limited time. He understood from the instruction that the applicant would be present. In Sergeant Doherty's words, the applicant was "always there" when a removal was undertaken. There was no other occasion when the applicant had not been present. Sergeant Doherty said he was given a time to be present and it was usual practice for the applicant to either telephone or drive past so that Doherty knew the applicant was nearby.
76 According to Sergeant Doherty, he arrived on time and immediately entered the premises. He said he removed a device from the shed. He then asked other officers whether they had seen the applicant and received negative replies. Sergeant Doherty said he used a ladder to gain access to the roof where he removed tiles and commenced the task of removing the listening device. From his position on the roof he looked around and was unable to see the applicant at the front or the rear of the premises. He was able to see across the reserve to the road where the applicant had parked his vehicle at the time of installation. While he was in the process of removing the second listening device, he received a mobile telephone call from the applicant. The applicant said he was driving past Parafield Airport and instructed Sergeant Doherty to continue with the removal. According to Sergeant Doherty, the applicant said he was "there in mind if not in body" and would be at the premises shortly.
77 Sergeant Doherty said that having completed the task of removing the second listening device, as he attempted to leave the premises his position was "compromised" because the person who was not to see him returned. He left the premises by climbing over the rear fence and walking through the reserve and back around the roadway. Having found his keys and left the area, Sergeant Doherty received a call from the applicant who asked where he was. They met a short distance from the premises. The applicant wanted Sergeant Doherty to inspect the area of a future job.
78 No discussion occurred between Sergeant Doherty and the applicant concerning the earlier absence of the applicant. Asked why he did not raise the issue, Sergeant Doherty responded that the applicant was an inspector and to question his conduct was "not proper" and "not the done thing". He said "you don't question an inspector". Within a short time of leaving the premises he made the note in the taskings job diary "Schluter not there". As to why he made the note, Sergeant Doherty said that he made the note "because he [the applicant] was not there". Sergeant Doherty explained that the primary purpose of the note is to demonstrate what has been done. In view of that purpose, asked if he could recall his thought processes in deciding to make the entry that Schluter was not present, Sergeant Doherty responded:
"A He was supposed to be there. I understood he was, and he wasn't, so I've recorded it.
79 After Sergeant Doherty had given evidence in chief, the applicant gave evidence on the second occasion. He said that he was in a position to see if Doherty had used a ladder to climb on to the roof for the purposes of effecting removal. He thought he would remember if he had seen Doherty on the roof. He denied that Doherty had left by climbing over the rear fence. Having initially said that there was no meeting after removal was completed, when he was asked whether they met to talk about another job, the applicant obviously reflected on that proposition and agreed that he had a memory of going to another premises later that afternoon. He could not recall telephoning and arranging to meet, but he did not deny that he did so. The applicant could not recall any conversation about the potential for the position of Sergeant Doherty to have been compromised at Blackham Crescent.
80 The applicant denied that a telephone conversation of the type described by Sergeant Doherty occurred. He maintained that he was in the vicinity of the premises at the time removal took place. If a conversation had taken place such as that described by Sergeant Doherty, the applicant would not have told Doherty to continue but would have instructed him to stop and wait until the applicant arrived. He could not recall any mention of Parafield Airport in a conversation with Doherty and could not think of a reason why that airport should have been mentioned.
81 During cross-examination on the first occasion, the applicant said that when preparing his affidavit in March 2002 he became aware of the entry by Doherty in the taskings job diary to the effect that the applicant was not present when removal occurred. He confirmed that he did not raise the entry with Sergeant Doherty. Asked in re-examination why he did not raise the matter with Sergeant Doherty, the applicant said that because of concerns about the behaviour of Sergeant Doherty and his ability to do many of the tasks required of him, and despite counselling and other action, he had been forced to transfer Sergeant Doherty from the Section. As a consequence, he believed Sergeant Doherty looked upon him in a "most unfriendly manner". The applicant said that the concerns related to Sergeant Doherty's ability to manage staff, constant disharmony within the Section and his inability to produce quality reports. However, the applicant said he could not be critical of Sergeant Doherty's work performance in the field. As to whether he had any cause for concern about allowing Doherty to enter premises and whether he would carry out his duties with integrity, the applicant said:
"No, there was nothing about his behaviour which caused me concern in relation to integrity matters or his honesty."
82 Sergeant Doherty subsequently gave further evidence. He said he had never been counselled about poor work performance and had never been questioned about his ability. Asked whether there had been discussions about his work performance, Sergeant Doherty said he had received nothing but praise. He was not annoyed with the applicant in connection with his transfer and did not regard him in an unfriendly manner. Nor did he feel animosity toward the applicant.
83 When the applicant gave evidence on the second occasion, he was pressed about the issues between him and Doherty. He said he counselled Doherty on four to six occasions. The applicant said Doherty had mismanaged the use of his corporate card in connection with budgetary matters causing considerable embarrassment to the applicant. As a consequence, the applicant withdrew the corporate card from Sergeant Doherty. The applicant said that Sergeant Doherty was involved in an accident and had lied to the applicant about the circumstances of the accident. The applicant prepared a "pretty comprehensive report covering all of the attendant circumstances about his [Sergeant Doherty's] abilities." As to his previous evidence concerning Sergeant Doherty's integrity, the applicant explained that he was referring to confidence in Sergeant Doherty's honesty when working inside the premises in connection with listening devices. However, in relation to obeying other processes and duties generally, Sergeant Doherty did not meet the required standard.
84 The conflict between the applicant and Sergeant Doherty concerning their relationship resulted in the presentation of additional evidence bearing upon that issue. The evidence also concerned Sergeant Doherty's attitude to complying with the terms of installation warrants and telephone contact between the applicant and Sergeant Doherty on 3 June 1999 (the day of removal of the listening devices). It is unnecessary to canvass the evidence in detail. It is sufficient to summarise the evidence and my findings.
85 Evidence from other officers has established that the applicant and Sergeant Doherty did not have a good working relationship. On one occasion during a meeting involving officers of the Section, an argument between the applicant and Sergeant Doherty deteriorated into a "screaming match".
86 Senior Sergeant Robert Reichman has worked in the Section since 1992. He was an impressive witness and I have no hesitation in accepting his evidence as truthful and reliable. In statements of 1 and 2 July 2002 he says that Sergeant Doherty told him that he (Sergeant Doherty) regarded the applicant as a risk to operational safety. He says that Sergeant Doherty referred to a particular incident involving the clothing of the applicant. Sergeant Doherty made comments to Senior Sergeant Reichman which were viewed by Senior Sergeant Reichman as ridiculing the applicant. On another occasion Sergeant Doherty bypassed the applicant with paperwork.
87 Although the applicant did not prepare a "comprehensive report" about Sergeant Doherty's capacities and performance, and it appears unlikely that the applicant counselled Sergeant Doherty in a manner ordinarily envisaged by the concept of counselling, I am satisfied that they had more than one discussion during which it was apparent that the applicant was dissatisfied with Sergeant Doherty's performance of his duties in a number of respects.
88 When Sergeant Doherty was confronted with suggestions concerning particular incidents said to have occurred between him and the applicant, Sergeant Doherty acknowledged the existence of disagreements between him and the applicant. He denied making derogatory remarks about the applicant to Senior Sergeant Reichman, but I am satisfied that Senior Sergeant Reichman gave a truthful and accurate version concerning the substance of those remarks. I do not accept the initial evidence given by Sergeant Doherty about the relationship between him and the applicant. He conveyed the impression, and intended to convey the impression, that he had received nothing but praise for his work within the Section and that there were no difficulties between him and the applicant. That impression did not accurately reflect the true situation. Part of the explanation for Sergeant Doherty not being frank might be found in his discomfort at having to give evidence which is in conflict with or is critical of a senior officer. However, I have reached the view that it is also likely that Sergeant Doherty was and remains reluctant to admit the full extent of the difficulties in the relationship for other reasons. I am unable to determine whether the other reasons relate to the conflict before me or other matters associated with Sergeant Doherty's employment.
89 As to Sergeant Doherty's attitude to compliance with the terms of warrants, Senior Sergeant Reichman said that on several occasions Sergeant Doherty has made comments to him to the effect that operational concerns and the necessity to get the job done were foremost and that he, Sergeant Doherty, would not wait for the warrant holder. Three incidents were described by Senior Sergeant Reichman which confirm the attitude displayed by Sergeant Doherty in his comments to Senior Sergeant Reichman.
90 In February 1996, Senior Sergeant Reichman was informed that Sergeant Doherty had installed a listening device in a caravan at Mount Gambier before the arrival of the warrant holder who was the officer in charge of the Section. Subsequently, Sergeant Doherty told Senior Sergeant Reichman that the opportunity had arisen for the devices to be installed and that he believed it did not matter that the warrant holder was not there. Sergeant Doherty appeared to be amused that the warrant holder had hurried to Mount Gambier but missed out.
91 In February 1997, a warrant was issued to Senior Sergeant Reichman authorising the installation of a listening device in premises at Adelaide. While he was on route to the premises, he instructed Sergeant Doherty over the telephone to wait until his arrival and not to install the device until he was present. Sergeant Doherty said he would not wait as it was not necessary for Senior Sergeant Reichman to be present and he did not want him there. As a consequence, Senior Sergeant Reichman was not present when the listening device was installed. Subsequently, Sergeant Doherty told Senior Sergeant Reichman that the policy of the police department was not binding and that he did not believe it was necessary for the warrant holder to be present. Later in February 1997, Sergeant Doherty removed the listening device without the knowledge or presence of Senior Sergeant Reichman. He subsequently told Senior Sergeant Reichman that the investigation had ended and it did not matter that Senior Sergeant Reichman was not present to supervise recovery.
92 A further occasion of removal of a listening device without the presence of the warrant holder occurred in February 1997. Sergeant Doherty spoke to Senior Sergeant Reichman about a window of opportunity having arisen and his having acted on it as it may not have been possible to remove the device when the warrant holder arrived.
93 Sergeant Doherty denied the incidents described by Senior Sergeant Reichman. He denied that he held the attitude that it was not necessary for a warrant holder to be present. He also denied that he would have acted in the absence of a warrant holder. Again, I have no hesitation in accepting the evidence of Senior Sergeant Reichman as truthful and reliable. I reject the evidence of Sergeant Doherty about these matters. I am satisfied that if Sergeant Doherty perceived that circumstances suited proceeding without a warrant holder, he was prepared to act in the absence of the warrant holder and, on more than one occasion, did so. I am satisfied that on a number of occasions Sergeant Doherty expressed the view that it was not necessary for the warrant holder to be present. I find that Sergeant Doherty held that view.
94 The rejection of parts of Sergeant Doherty's evidence does not necessarily mean that I should reject his evidence as to the circumstances of the removal of the devices from Blackham Crescent. As mentioned, he said that the applicant telephoned him and told him that he was driving past the Parafield Airport. Telephone records obtained after the applicant and Sergeant Doherty had given their versions tend to support the evidence of Sergeant Doherty. The movements of each can be traced because of calls made from certain areas covered by the mobile telephone network. At 12.26 pm, Sergeant Doherty made a telephone call from the Thebarton area. At 12.56 pm he made a private call from the Evanston Gardens area which encompasses Blackham Crescent. It appears likely, therefore, that Sergeant Doherty was in the area of Blackham Crescent by 1.00 pm.
95 At 12.46 pm, the applicant made a call from the central business district area. At 1.02 pm, he was in the Gepps Cross area and, significantly, at 1.04 pm he telephoned Sergeant Doherty from the Pooraka area which encompasses the Parafield Airport. At 1.23 pm, the applicant made a call from the Elizabeth area. At 1.29 pm, from the Evanston Gardens area, the applicant telephoned Sergeant Doherty and spoke to him for between one and a half minutes. Sergeant Doherty made telephone calls from the Evanston Gardens area at 2.50 pm and 2.53 pm.
96 The telephone records establish that Sergeant Doherty arrived in the area of Blackham Crescent well in advance of the applicant. After initially saying he could not recall mention of Parafield Airport, but later having said that he and Sergeant Doherty left the city area at about the same time, the applicant denied mentioning Parafield Airport in a telephone conversation. Confronted with the sequence of calls to which I have referred, the applicant accepted that they did not leave the city at the same time and that there may have been discussion between him and Sergeant Doherty during the 1.04 pm call as to the applicant's whereabouts. In that context the applicant accepted that he may have mentioned the Parafield Airport. As to why he had previously denied any mention of the airport, the applicant said that he had been thinking that he and Sergeant Doherty had left the central Adelaide area at the same time and were travelling in parallel. On that basis there would have been no need for him to mention Parafield Airport.
97 At times, the applicant's answers were not responsive to the questions. It was also apparent that the applicant did not have a good memory of a number of matters raised in cross-examination and that he was reconstructing events and giving evidence accordingly. A lack of memory of details is not surprising, but allowing reconstruction to govern the content of evidence was unsatisfactory. As an experienced and senior police officer, the applicant would be well aware that, unless specifically asked, he is required to give evidence according to his memory and not in accordance with a reconstruction. The critical question is whether he was reconstructing events when he denied mentioning Parafield Airport or whether he deliberately gave false evidence because that call also involved the applicant telling Sergeant Doherty to proceed in his absence.
98 The sequence of events described by Sergeant Doherty requires careful consideration. As mentioned, Sergeant Doherty made a call from the Thebarton area at 12.26 pm and another from the Evanston Gardens area at 12.56 pm. The time taken to travel from the Thebarton area to Blackham Crescent suggests that it is unlikely that Sergeant Doherty arrived in the area of Blackham Crescent much before 12.56 pm. The call at 12.56 pm was a private call. It is highly unlikely that Sergeant Doherty made that private call after he had left his vehicle for the purpose of entering the premises at Blackham Crescent. According to Sergeant Doherty, it was his practice to drive around until the designated meeting time and to park his vehicle at about that designated time. In order to avoid attracting attention, it was his practice to leave the vehicle immediately with his equipment.
99 The time taken to travel from the Thebarton area to Blackham Crescent coupled with the private call at 12.56 pm establishes that, at the earliest, Sergeant Doherty left his vehicle to enter the premises very shortly before 1.00 pm. According to Sergeant Doherty, he parked two or three houses away from the premises, got out of the vehicle and unloaded a ladder. He made his way to 4 Blackham Crescent where he entered through the front door and immediately went to the shed. He expected the applicant to be in the near vicinity because he was always present at the designated time, but he had not received any radio or telephone contact from the applicant nor had he seen him drive past the premises.
100 Sergeant Doherty volunteered to put the events in a sequence. He said he went straight to the shed and removed the listening device from the shed. He then moved to get on to the roof. He spoke to the other officers between leaving the shed and getting on to the roof. Once on the roof he removed roofing tiles. Detective Sergeant Brian Swan came up the ladder to see what he was doing. Sergeant Doherty said he looked around from the roof, but could not see the applicant. While he was in the process of removing the second listening device he received the telephone call from the applicant in which the applicant said he was going past Parafield Airport. Telephone records establish that at 1.04 pm the applicant telephoned Sergeant Doherty at a time when the applicant was in the Pooraka area which encompasses the Parafield Airport. It is this call that Sergeant Doherty says resulted in the instruction to continue in the applicant's absence.
101 According to Sergeant Doherty, it took about five minutes to remove the listening device from the shed. Plainly, by 1.04 pm, insufficient time had elapsed for Sergeant Doherty to have gathered his equipment from the van, entered the premises, removed the listening device from the shed, spoken to other officers, climbed on to the roof and begun the process of removing the second device.
102 There is an additional difficulty facing the evidence of Sergeant Doherty. As mentioned, Detective Sergeant Swan spoke with Sergeant Doherty on the roof. Detective Sergeant Swan was the co-ordinator of the police search of the premises. He was an impressive witness. He said he first saw Sergeant Doherty when he climbed the ladder to see what Sergeant Doherty was doing. Subsequently he entered the shed from which the listening device was removed. He said the door of the shed was unlocked to allow him access. While he was in the shed, Sergeant Doherty entered the shed and opened an electrical board affixed to the wall where the listening device had been placed.
103 I am satisfied that Detective Sergeant Swan observed Sergeant Doherty removing the listening device in the shed. According to Detective Sergeant Swan, that activity occurred after he had spoken to Sergeant Doherty on the roof. Sergeant Doherty would not concede the possibility that he removed the listening device from the roof before removing the device in the shed. I have no hesitation in accepting the evidence of Detective Sergeant Swan in preference to that of Sergeant Doherty.
104 On the basis that Sergeant Doherty's first activity was to climb on to the roof, it is possible that he was on the roof when he received the 1.04 pm telephone call from the applicant. However, that sequence does not fit with the content of the conversation described by Sergeant Doherty. He said that in that call he advised the applicant that he had already removed one listening device and was in the process of removing the second device. It was in that context that the applicant instructed him to continue.
105 As mentioned, Sergeant Doherty said he asked three officers, including Detective Sergeant Swan and Detective Senior Constable Craig Patterson, whether they had seen the applicant. Detective Sergeant Swan said that he does not recall such a conversation. If such a conversation had occurred, he would have been quite concerned. He was aware that the presence of the applicant was obligatory because the applicant was the holder of the warrant. Similarly, Detective Patterson said that he does not recall such a conversation and would recall it because of his knowledge of the requirement that a commissioned officer be present for the removal of a listening device.
106 According to Sergeant Doherty, he understood that there was a "window of opportunity" to remove the devices because someone was to be taken away from the premises. He understood there was a very limited time to undertake the extraction prior to that person returning. He said that having got down from the roof, he entered the house with the intention of leaving through the front door. However, whoever it was that he was supposed to avoid was brought home by the police. As his position was compromised, he carried the ladder to the rear fence and used it to leave over the rear fence. He walked around the block to return to his vehicle.
107 As mentioned, the applicant said he was in position to the rear of the premises for about thirty minutes. He said he did not see Sergeant Doherty at any time. In particular, he did not see him leave the premises over the rear fence.
108 The evidence of Sergeant Doherty as to the reason for being compromised is not supported by Detective Sergeant Swan. He said that he had planned to meet the occupier of the shed, Ms Jodie Elliott, at the premises for the purposes of the search. There was no reason for him to have suggested to the applicant or any other officer of the Section that there was a limited window of opportunity while police had removed somebody from the premises. Ms Elliott was not present when police commenced their search as expected by Detective Sergeant Swan. She returned at 1.15 pm in the company of nurses from a hospital. In that sense, her return was unexpected. However, her presence was not a cause for alarm. Ms Elliott went to the shed. She was able to move to the shed either through the house or down the driveway. No other person returned to the house in the company of police that could have been viewed as compromising Sergeant Doherty's position. If Ms Elliott moved through the house, Sergeant Doherty could have left via the driveway. Using a ladder to climb over the rear fence was likely to attract attention.
109 Another aspect of Sergeant Doherty's evidence that gave me cause for concern was his explanation for entering the premises without confirming that the applicant was in position. Sergeant Doherty acknowledged the existence of a practice that he said was invariably followed. Either communication using the telephone or radio would occur or the applicant would drive past the premises as confirmation of his presence. Neither of those events occurred on this occasion. According to Sergeant Doherty, he presumed that the applicant had arrived at the designated time because the applicant was "always there". Sergeant Doherty claimed he did not have time to make a telephone call to confirm that the applicant was present.
110 On a number of occasions when facing difficulties in the questioning, Sergeant Doherty looked most uncomfortable. This was one of those occasions. His attempt to explain why he was willing to enter without confirming the presence of the applicant was, to say the least, unconvincing. I reject his claim that he did not have time to telephone the applicant. Against the background of the evidence which I have accepted, namely, that Sergeant Doherty had an attitude that it was unnecessary for the warrant holder to be present, it would not be surprising if Sergeant Doherty proceeded without confirming that the applicant was present and without instruction from the applicant to proceed.
111 As mentioned, Sergeant Doherty made an entry in the PTU diary: "Schluter not there". The original page containing that entry cannot be located. A photocopy was produced. In addition, by way of comparison, an original of another sheet in the PTU diary for 1 August 1998 in the handwriting of Sergeant Doherty was produced. The entry for 1 August 1998 has been altered. Liquid paper has been used to cover the original writing and another word has been written on the liquid paper. Significantly for present purposes, the liquid paper having been spread over the line on the lined sheet, Sergeant Doherty redrew the line under the word that had been written on the liquid paper.
112 An examination of the photocopy of the entry "Schluter not there" plainly shows that the line of the paper has been redrawn under the words "not there". The words "not there" do not have the same clarity of appearance as the word "Schluter". I am satisfied that an alteration has been made to the entry. The alteration is consistent with whiting out a word or words after the word "Schluter" and with writing the words "not there" on the liquid paper. However, in the absence of the original document, I am unable to determine the precise nature of the alteration.
113 Sergeant Doherty said he made the entry in the PTU diary shortly after leaving the premises and while in his vehicle. Under cross-examination as to the likelihood of an alteration occurring while in the vehicle, particularly if liquid paper was used, Sergeant Doherty suggested there would be nothing unusual in carrying liquid paper in his satchel in the vehicle. I do not accept his evidence in this regard.
114 The existence of the alteration is to be considered in conjunction with the content of an electronic diary kept within the Section. It was the responsibility of officers to record their activities in the electronic diary. On 3 June 1999 the diary records that Sergeant Doherty was on duty at 10.30 am. An entry for 9.00 pm which would ordinarily be made by Sergeant Doherty reads as follows:
"Doherty reports attending Blackham Cres. Smithfield Plains re 49/99. Mr Schluter present. Then to 44 Connel Street, Davoren Park re installation of LD. Doherty off duty." (my emphasis)
115 Confronted with that entry, Sergeant Doherty emphatically denied that he made the entry. He suggested that someone else must have made the entry from oral information given by Sergeant Doherty or by looking at the handwritten PTU diary completed by him. In other words, someone else had made an incorrect entry. That possibility was rejected by another officer, Mr Russell Mead, who was on duty at the relevant time. I also reject that suggestion.
116 When Sergeant Doherty later resumed his evidence, he pointed out that the electronic diary was not secure. He left open the possibility that someone had subsequently altered the entry that he had made and falsified the entry to inaccurately record the presence of the applicant. I reject that suggestion.
117 Sergeant Doherty was obviously most uncomfortable when confronted with the electronic diary. I was unimpressed with his responses. I am satisfied that he made the entry in the electronic diary.
118 There is a further aspect of the evidence that requires consideration. Evidence was led of an occasion when a listening device was installed at the Yatala Labour Prison ("Yatala") without obtaining a warrant. It is apparent that officers within the Section believed that it was permissible to install a listening device with the consent of the owner or occupier of the premises ("friendly premises") without a warrant provided that the listening device was not "used". On this view, the listening device is not used until the recording equipment is activated.
119 In connection with the installation at Yatala without a warrant, Sergeant Doherty made an entry in the PTU diary "install illegal". Subsequently, two applications for a warrant were refused and, some days later, the device was removed. The recording equipment was not activated.
120 Counsel for the accused submitted that the conduct of police in installing a device without a warrant was illegal. On one view of the legislation, and it is not an unreasonable view, it is the use of a listening device which is authorised by a warrant and installation in friendly premises does not require a warrant. However, it is unnecessary for me to decide this issue. It would not be surprising if the police possessed a belief that a warrant was not required provided the listening device was not used. The significance of the evidence relating to the installation at Yatala is found not in the fact of the installation without a warrant, but in the response of the witnesses to questioning about that episode.
121 Sergeant Doherty said that he made the note concerning the legality of the installation because he was concerned about that issue. He said he raised the question with the applicant prior to the installation. He said he expressed the view that it would amount to entrapment and that previous attempts to obtain warrants to place devices into prisons had been refused on that basis. He was told to continue and, therefore, he followed the orders. In addition, Sergeant Doherty said that the applicant advised him to submit a report seeking a Crown Law opinion on the installation of listening devices and leaving the devices in place when the transmission is not being recorded.
122 Sergeant Doherty said he submitted a report and volunteered in evidence that he had the original and copies of the report with him in court. He asked if he could retain the original because it would probably be required in relation to other matters. Asked later in cross-examination why he had brought the report to court, Sergeant Doherty responded:
"A Because I wanted to introduce it if the chance came along. I had it on my person several days before.
123 The report to which Sergeant Doherty referred was dated 22 December 1999. It was written approximately four months after the installation at Yatala. It did not relate to installation of the listening devices without a warrant. The report was concerned with leaving listening devices in place after the expiration of a warrant. In addition, the day before the report was written, Sergeant Doherty had participated in a meeting with the officer in charge of Investigations Support Branch, Superintendent Eaton, and the applicant. A number of issues concerning Sergeant Doherty's performance were discussed. Sergeant Doherty was also told that a restructuring would result in a reclassification of the position he occupied to a level for which he was not qualified. Although Sergeant Doherty would not accept that a meeting of that nature occurred at the end of his time in the Section, I accept the evidence of Superintendent Eaton that Sergeant Doherty left the meeting and went on sick leave. He did not return to the Section. It is against that background that Sergeant Doherty wrote the report.
124 Sergeant Doherty was obviously anxious to justify his position. However, the report does not provide any support for his assertion that he expressed concerns to the applicant about the legality of installing a listening device in friendly premises without a warrant.
125 The applicant's evidence concerning the installation at Yatala and the issue of installation without a warrant was also unimpressive. As I have said, it is apparent that officers in the Section believed that it was permissible to install a device in friendly premises without a warrant. However, when this topic was raised with the applicant, his answers were, initially, unequivocally contrary to such a proposition:
"Q Was there a policy in the section, that you were aware of, which was to the effect that a listening device would only be installed in a property - any property - once a warrant had been obtained, and not before.
126 Chief Inspector Schluter was the applicant for the warrant to install a listening device at Yatala. The first application was refused. A second application made on the following day was also refused. The applicant displayed a remarkable lack of memory about the circumstances of those matters. After seeing the application and the warrant, some memory returned. However, the applicant said he had no recollection of Sergeant Doherty expressing his concerns about installation in advance of the warrant being obtained. The applicant was at pains to point out that he had not been involved in negotiations with respect to the installation at Yatala and that his role was purely limited to making the application. According to the applicant, at the time of applying for the warrant, he had not been told that a listening device had been installed at Yatala in anticipation of obtaining the warrant but with the intention of not using the device until the warrant had been obtained. He said that if such an installation had been mentioned to him he would have regarded it as an illegal activity. If someone had asked him about it or told him about it afterwards, it was the sort of thing that he was likely to remember. After looking at the entry in the PTU diary by Sergeant Doherty to the effect that he and Sergeant Doherty discussed the matter, the applicant said he had no recollection of such a discussion. Asked if he was saying that it might have happened but he has now forgotten it, the applicant responded in the affirmative.
127 Following production of the report prepared by Sergeant Doherty to which I have referred, the applicant was recalled. Initially he said he was unable to remember any discussion about the question of leaving listening devices in place after a warrant had expired. Nor could he remember seeking Crown Law advice about that matter. However, after examining the report, the applicant said his memory was jogged. He recalled having a discussion with a solicitor from the Crown Solicitor's office to the effect that it was permissible to leave a listening device in place after the warrant had expired provided it was not recording. In those circumstances, the applicant conceded that Sergeant Doherty may have raised with him the question of whether it was proper to install without a warrant provided the recording was not turned on.
128 The applicant's evidence then underwent a remarkable change in connection with his view as to whether it would be illegal to install a listening device in friendly premises without a warrant provided the recording equipment was not turned on. Asked if it had been his evidence earlier that day that it would be illegal to act in such a manner, the applicant acknowledged that he had given evidence to that effect. However, he then volunteered a qualification as to the circumstances in which it would be illegal:
"That would be in premises where the owner or occupier was to be the subject of the listening device. I think - my understanding is if it was to be installed in friendly premises, as it were, such as a hotel or prison, it would be permissible.
Q Provided you didn't turn the recording on.
A Yes."
129 Not surprisingly, the applicant was cross-examined about the change in his evidence. He gave a series of answers about the unusual nature of the circumstances involving the installation of the device at Yatala. Those answers were not responsive to the questions. I drew the applicant's attention to the change in his evidence and asked what had brought about the change in the evidence. His answers were as follows:
"A That's a very complex matter, as far as I'm concerned. I have very little experience in this area of the installation of a listening device in friendly premises, as it were. My understanding is that a listening device could be installed in, for example, a hotel/motel if the owner or occupier consented, but certainly it could not be activated.
130 When it was put to the applicant by counsel for the accused that there was no ambiguity in his previous evidence and that counsel was at pains to know why he was now saying something different, the applicant said he could not give an explanation.
131 As I have said, at times when the applicant was confronted with questions as to details that he could not remember, the applicant gave answers based on his own reconstruction of events and not from his memory of the events. At times the applicant was not a careful witness. With some appreciation of the position that the cross-examiner appeared to be attempting to establish, the applicant tended to respond with answers that he thought would best suit the position most advantageous to him. His initial answers in connection with installation without a warrant are an example of this approach. It is likely that the applicant viewed the questioning as a challenge to his attitude to compliance with the legislative scheme and that initially he responded without properly reflecting upon the circumstances being put to him. His immediate concern was to portray an attitude of compliance with the legislative scheme. As a consequence, the applicant initially gave the answers that he considered would best suit his objective. It was only when confronted with the report by Sergeant Doherty concerning the practice of leaving devices in place after the expiration of warrants that the applicant gave proper consideration to the circumstances of installation in friendly premises and realised that his earlier evidence was misleading.
132 While I cannot exclude the possibility that the applicant deliberately gave false evidence in his initial answers, I doubt that he did so. It is more likely that he responded instinctively to questions that he perceived were leading to a challenge to his attitude to the legislative scheme. However, I reject the applicant's explanation given when confronted with the change in his version. There was no hesitation or ambiguity in the applicant's initial answers. He was very positive. I do not accept his explanation that he had meant to say in his initial answers that, provided the listening device was not activated, he understood it could be installed in friendly premises without a warrant.
133 I am satisfied that the applicant and others in the Section believed that installation without a warrant in friendly premises was permitted provided the recording equipment was not activated. However, the manner in which the applicant approached his evidence in this regard does him no credit.
134 I have rejected the evidence of both Inspector Schluter and Sergeant Doherty to the extent that I have identified. The question remains as to whether the applicant instructed Sergeant Doherty to proceed with the removal of the devices at Blackham Crescent in his absence.
135 For the reasons I have identified, the evidence of Sergeant Doherty concerning the timing and sequence of events at Blackham Crescent cannot be correct. I have grave reservations about his evidence concerning that incident and about his entry in the PTU diary to the effect that the applicant was not present. Against the background of the poor relationship between the two officers, and bearing in mind their respective personalities as disclosed in the evidence and from my observations of them, while the applicant probably told Sergeant Doherty in the call at 1.04 pm that he was driving past Parafield Airport, in my view it is highly unlikely that he would have instructed Sergeant Doherty to proceed in his absence.
136 I have difficulty determining what happened because of my reservations about the evidence of both witnesses. It is probable, however, that once he learnt that the applicant was not in the vicinity, Sergeant Doherty decided to proceed in the applicant's absence. Detective Sergeant Swan arrived at about 12.30 pm. He said that he saw Sergeant Doherty on the roof not long after he had arrived. He excluded the possibility that as much as an hour had elapsed before he saw Sergeant Doherty. I accept his evidence. I am satisfied that Sergeant Doherty entered the premises and commenced the job of removing the listening devices well before 1.30 pm.
137 I have reached the view that it is likely that Sergeant Doherty entered the premises at about 1.00 pm notwithstanding the absence of confirmation that the applicant was in the vicinity. While he was on the premises and setting about his tasks of removing the listening devices, he received a telephone call from the applicant who was then in the area of the Parafield Airport. It is likely that the applicant told Sergeant Doherty of his whereabouts. However, for the reasons I have given, I find it is highly unlikely that Sergeant Doherty told the applicant that he had already removed a device or that the applicant instructed Sergeant Doherty to continue in his absence.
138 The applicant was in the Elizabeth area at 1.23 pm. At 1.29 pm, from the area of Blackham Crescent, he telephoned Sergeant Doherty. It is likely that by this time Sergeant Doherty had completed the task of removing the listening devices. It is possible that the call at 1.29 pm was the call to which Sergeant Doherty referred when he said that, having completed the job, the applicant telephoned him and arranged to meet with Sergeant Doherty. Alternatively, the applicant may have telephoned Sergeant Doherty to advise of his arrival and Sergeant Doherty misled the applicant into thinking that he had not commenced the removal. If Sergeant Doherty misled the applicant in that manner and kept the applicant waiting for a period in the belief that the removals were occurring, the failure of the applicant to see Sergeant Doherty on the premises is explained. On that scenario, however, a communication from Sergeant Doherty to the applicant to advise that the work was finished would have occurred at about 1.45 pm - 2.00 pm. There is no record of a call from either witness to the other at about that time. The applicant said that the communication may have been by police radio. That possibility was denied by Sergeant Doherty.
139 The alternative view is that Sergeant Doherty having completed the work between 1.00 pm and 1.30 pm, when the applicant telephoned Sergeant Doherty at 1.29 pm he was told by Sergeant Doherty that the work had been completed. That call lasted for between one and one and a half minutes. If the applicant merely advised that he had arrived, the call is unlikely to have occupied that much time. The length of the call is more consistent with discussing the next job and arranging to meet.
140 As I have indicated, I find it is highly unlikely that the applicant instructed Sergeant Doherty to continue in his absence and I am satisfied that Sergeant Doherty removed the listening devices between about 1.00 pm and about 1.30 pm while the applicant was travelling to Blackham Crescent. However, in view of my reservations concerning the evidence of both witnesses, I cannot arrive at a conclusion with any confidence as to what happened after the applicant arrived at or shortly before 1.30 pm and what information was conveyed to the applicant in the call at 1.29 pm. In particular, I cannot arrive at a conclusion as to whether Sergeant Doherty misled the applicant and kept him waiting for half an hour or whether he told the applicant in the call at 1.29 pm that the removals had been completed.
141 Generally speaking, when an accused seeks the exclusion of admissible evidence in the exercise of the discretion, the burden rests on the accused to establish grounds for the exercise of the discretion: Question of Law Reserved on Acquittal (No 5 of 1999) [2000] SASC 51; (2000) 76 SASR 356 at 368. The accused have discharged the burden of establishing that the applicant was not present when Sergeant Doherty removed the listening devices. However, the accused have failed to establish that the applicant instructed Sergeant Doherty to proceed in his absence or that, subsequently, the applicant became aware that Sergeant Doherty had done so.
142 The accused submitted that irrespective of any finding in connection with the removal of the listening devices, the evidence established the existence of a culture of non-compliance and disregard for the requirements of the legislative scheme related to listening devices. In particular, it was said that senior officers in the Section were aware of Sergeant Doherty's attitude and of occasions on which he disregarded the requirement that a warrant holder be present. Notwithstanding that knowledge, no efforts were made to rein in the illegal activities of Sergeant Doherty or to discipline him. As the applicant was aware of those activities, it was said that his knowledge and complicity are relevant to the exercise of the discretion.
143 The three incidents of which Sergeant Reichman spoke and to which I have referred occurred between February 1996 and February 1997. Senior Sergeant Reichman also spoke of an incident in January 1998 when he was the warrant holder and Sergeant Doherty refused to carry out the installation under Senior Sergeant Reichman's supervision. At the direction of a senior officer, installation and removal occurred in the presence of an officer other than the holder of the warrant. As counsel for the accused observed, an inspection of the records maintained by the Section would not have disclosed that and the other failures to comply with the terms of the warrant.
144 The applicant was the Operations Inspector between about December 1998 and October 2000. The incidents identified by Senior Sergeant Reichman did not occur during the applicant's tenure. Senior Sergeant Reichman said that he had discussions with the applicant concerning his belief that Sergeant Doherty did not want the warrant holder present and told the applicant that Sergeant Doherty had previously disregarded the policy and clear instructions in that regard. The applicant recalled being told of a particular incident, but said that he was not aware of a desire by Sergeant Doherty to do the jobs without the presence of the warrant holder or of a view within the Section that Sergeant Doherty was likely to do so.
145 I accept the evidence of Senior Sergeant Reichman. I am satisfied that he told the applicant of previous incidents and of Sergeant Doherty's attitude. It is likely that at the times of the installations and removals at Blackham Crescent, the applicant was aware of Sergeant Doherty's attitude and willingness to act in the absence of the warrant holder. In this context I bear in mind an entry in the PTU diary relating to the removal of a listening device at a suburban address on 11 January 1999. Sergeant Doherty made a note "Schluter not there. Doherty controller". When cross-examined about the entry, Sergeant Doherty would not accept the possibility that the applicant was the warrant holder and that removal occurred in the applicant's absence. It is unnecessary to refer to the details of that evidence. Sergeant Doherty was again unimpressive. I am satisfied that he made the note because the applicant was the warrant holder and was not present at the time of the removal. I reject Sergeant Doherty's evidence to the contrary.
146 The applicant was not asked about the occasion of 11 January 1999. The evidence suggests that he was in the near vicinity soon after the removal had been completed. As I cannot rely upon the evidence of Sergeant Doherty, I am unable to determine the circumstances in which the removal took place in the absence of the applicant or how far the applicant was from the premises at the time of removal.
147 I am satisfied that the incidents which occurred prior to the applicant's involvement in the Section do not disclose a culture of non-compliance within the Section. They disclose a particular attitude by Sergeant Doherty and the fact that, on those occasions, he failed to comply with either or both the terms of the warrant and the policy laid down by the Commissioner of Police. From the information before me, it appears that inadequate disciplinary or reformative action was taken against Sergeant Doherty. Unfortunately, the records of the Section were not always accurate. These failures are not acceptable. However, the evidence does not establish the existence of a culture of non-compliance between 1996 and 1998.
148 Notwithstanding the incident of 11 January 1999, I am not persuaded that a culture of non-compliance existed at that time. I do not exclude the possibility that in particular circumstances the applicant would be prepared to take a shortcut. However, while a willingness to take a shortcut is a possibility, the evidence does not justify a finding to that effect, even on the balance of probabilities. The existence of such a possibility does not cause me to doubt my findings. Nor does it enable me to make a finding where I have indicated that I am unable to do so.
149 The first question raised by the evidence is whether the entries into the shed and residence at Blackham Crescent by the officers of the Section were undertaken in compliance with the terms of the warrants. Those persons were authorised to enter only if they were acting "in the presence of" and "under the control and direction of" the applicant. The accused submitted that as the applicant was not on the premises, but was situated in or across the reserve to the rear of the premises, it could not be said that the officers acted in the applicant's presence or under his control and direction.
150 In issue is the proper interpretation of the words in the warrants, "acting in your presence and under your control and direction". In view of the applicant's evidence that he told the Judge he did not propose to enter the dwelling but would take up a position "in or around the premises nearby in order to supervise the operation", the accused urged that I should obtain a report from the Judge as to the Judge's recollection of such a conversation.
151 Although the applicant drafted the terms of the warrant, his intentions or beliefs are irrelevant to the interpretation of those terms. In my view, the conversation between the applicant and the Judge is also irrelevant. Ignoring the conversation is to the benefit of the accused because, if it was taken into account in determining the meaning of the words in issue, it might tend to favour a wider interpretation of those words.
152 The words in issue should be given their ordinary and natural meaning. However, in determining that meaning, it is necessary to bear in mind the nature of the activities being authorised by the warrant and, significantly, the fact that those activities would otherwise be unlawful and would amount to a serious invasion of the rights of the occupier.
153 Counsel for Bunting submitted that if a report was obtained from the Judge to the effect that no such conversation occurred between the Judge and the applicant, that information might lead to a finding that the Judge had been misled. If the written material suggested that the applicant would be personally present, a material non-disclosure would have occurred and the Judge would have laboured under the misapprehension that there would be direct personal presence and supervision by the applicant. Underlying this submission is the proposition that an inference should be drawn that the material presented to the Judge might have suggested that the applicant would be personally present. The accused also submitted that if the Judge reported that no conversation of the type deposed to by the applicant occurred, that fact would be a significant matter reflecting adversely upon the credit of the applicant. Alternatively, if the report indicates that the applicant told the Judge he would perform his duties in a particular way, and the applicant did not perform the duties in that manner, the failure of the applicant to honour his undertaking to the Judge would also be relevant to the exercise of the discretion.
154 In my view, these propositions amount to no more than speculation. Having considered the written material, I am satisfied there is nothing in that material which might assist the accused in establishing any of these propositions. Similarly, there is nothing in the written material presented to the second Judge which might assist the accused in this respect.
155 Generally speaking, in circumstances of the type under consideration it would be highly undesirable to obtain a report from a Judge who issued a warrant. As I have indicated, the content of any conversation is not relevant to the interpretation of the words in the warrant. If the memory of the Judge is at odds with the person who appeared before the Judge to obtain the warrant, difficult questions arise as to the weight to be given to the memory of the Judge and whether evidence should be taken on oath from the Judge.
156 In my opinion, the applicant has failed to demonstrate that it is "on the cards" that a report from the Judge might impact adversely upon the credit of the applicant in a significant manner. In particular, as I have indicated, in my view the suggestion that the report might demonstrate the Judge was positively misled or misled by non-disclosure amounts to speculation without a proper foundation.
157 In summary, the report would not be relevant to a determination as to the meaning of the terms of the warrant. The prospect of a report adversely impacting on the credibility of the applicant in a significant and relevant manner is remote. Bearing in mind that, generally speaking, the obtaining of a report in these circumstances is not a desirable course, I decline to order a report. For the purposes of interpreting the terms of the warrant, I will ignore the applicant's evidence as to the conversation that he said occurred. I will also ignore it in considering the applicant's intention or belief as to whether his conduct at the time of installation complied with the terms of the warrant.
158 As I have said, in my opinion the words "acting in your presence" should be given their ordinary and natural meaning. In order to comply with the terms of the warrant, it was necessary for the applicant to be in close proximity of the officers of the Police Technical Section at the time that entry was attempted and achieved. The new Shorter Oxford English Dictionary defines "presence" as including:
"The fact or condition of being present; the state of being with or in the same place as a person or thing;"
159 "In the presence of" is given the meaning "in the company of, observed by". The Macquarie dictionary (3rd edition) refers to "the state or fact of being present, as with others or in a place", and to "immediate vicinity; close proximity".
160 The warrant authorised the entry into both the residential premises and the shed at Blackham Crescent without the permission of the occupiers. Clandestine entry on one occasion was envisaged. In those circumstances, in order to comply with the terms of the warrant, in my opinion it was not necessary for the applicant to be standing immediately alongside the other officers at the time that entry was achieved into both buildings. It would have been sufficient, for example, if the applicant was within the boundaries of the premises at a distance from the points of entry, but with a view of the activities of those gaining entry.
161 The Crown submitted that the applicant was in a position to exercise operational supervision and control in a manner described by the applicant and that such a position complied with the terms of the warrant. Security issues were important from the perspective of the applicant. In those circumstances, his explanation for taking up a position outside the rear fence is reasonable and understandable in terms of the operational requirements as the applicant perceived those requirements to be. Counsel for the Crown urged that in these circumstances the applicant complied with the terms of the warrant.
162 I accept the applicant's explanation for taking up positions outside the rear fence. I also accept that his positioning was appropriate for an officer overseeing the operational requirements with a view to ensuring the security of the officers entering the premises. However, generally speaking, a warrant is not concerned with questions of security. The warrants authorised a serious invasion of privacy and overrode fundamental common law rights. The terms of the warrants were concerned to ensure that such an interference with fundamental rights occurred only in specified circumstances, namely, under both the supervision and control of the applicant and in the applicant's presence. The warrants were designed to ensure that a commissioned officer not only had overall supervision and control, but was in close proximity when the entries occurred.
163 As the commissioned officer who was in charge of the operation, bearing in mind the immediate lines of communication that existed and the fact that the applicant was nearby, it can reasonably be said that the officers were acting under his general "control and direction" from an operational point of view. If events occurred outside the premises or communication was received from the other officers, the applicant was able to give directions. In these circumstances it might be argued that, for the purposes of the warrant, the officers were acting under the applicant's "control and direction". However, as the applicant was not in a position to observe what was occurring on the premises after the officers climbed the rear fence, it might also be argued that the applicant was not in a position to exercise the "control and direction" envisaged by the warrants because he was not close enough to the activities to make decisions and give directions as to what should and should not be done. In particular, when the applicant was 100 metres or more from the rear fence and across the reserve, it might be said that he was too removed from the premises to be able to exercise the "control and direction" envisaged by the warrant.
164 If the warrant had only required that the officers gaining entry acted under the "control and direction" of the applicant, notwithstanding the applicant's position across the reserve from time to time, I would have found that the officers were acting under the "control and direction" of the applicant. However, the warrant contained the additional requirement that the officers act in the presence of the applicant. Without attempting to define the limits of what amounts to presence for this purpose, in my opinion the positioning of the applicant 100 metres to the rear of the rear fence and across a reserve at the time that entry was gained to the shed and residence did not amount to presence or close proximity for the purpose of the warrant. It follows that the entries were unlawful. While I accept that the terms of the warrant did not require the personal presence of the applicant inside the shed or residence at the time of the installation of the devices, those installations took place in circumstances of unlawful entry.
165 If, contrary to my view, the warrants were invalid, for the purposes of s 6(1) of the Act it cannot be said that the listening devices were used "pursuant to a warrant". In those circumstances, the evidence would have been obtained in breach of s 4 of the Act. It would also have been obtained as a consequence of unlawful entries into the residence and the shed at Blackham Crescent.
166 Alternatively, if it was beyond power to authorise entry by persons other than the applicant, but the balance of the warrant authorising use and entry by the applicant was valid, in essence what occurred was unlawful entry by officers of the Section to enable the authorised use of the warrants. The same conclusion is reached if, as I have found, the warrants in their entirety were valid, but the entries were unlawful because they did not occur in the "presence" of the applicant. On this basis it could be argued that, notwithstanding unlawful entries, s 4 does not apply because the listening devices were lawfully used pursuant to valid warrants. Alternatively, it might be said that as the use of the devices was achieved through unlawful entries, for the purposes of s 6(1) it cannot be said that the devices were used pursuant to the warrants.
167 In my opinion, notwithstanding unlawful entries, the use of the listening devices occurred pursuant to the warrants for the purposes of s 6(1). Use of the warrants and at least entry by the applicant for the purposes of installing the warrants was lawfully authorised by the Judge. The continued use of both listening devices after installation was the use contemplated by the warrants. What occurred was entry, installation and use of the listening devices as contemplated by the warrants. The illegality attending entry and installation related only to either the number of persons, their identity or the failure of the applicant to be in the presence of those gaining entry at the time of entry.
168 If I am wrong in my conclusion, for the reasons that follow I would decline to exclude the evidence in the exercise of my discretion.
169 In considering the exercise of the discretion to exclude the evidence, it is necessary for me to determine whether the officers involved in the installation, and in particular the applicant, deliberately failed to comply with the terms of the warrant or whether their failure occurred because of an honest mistake. Both the applicant and Sergeant Doherty said that they believed the positioning of the applicant complied with the terms of the warrant. Initially, bearing in mind that Sergeant Doherty agreed with the applicant on this issue, counsel for the accused did not seek to argue that I should reject the evidence of either witness that he possessed such a belief. Neither the applicant nor Sergeant Doherty were challenged in this regard. However, following the applicant's change of evidence concerning his position at the time of entry, counsel argued that I should find that the applicant deliberately gave false evidence about his position because he did not believe that his position complied with the requirement in the warrant that he be present.
170 I am satisfied that the applicant did not deliberately attempt to mislead the court in the manner suggested by the accused. The applicant was obviously aware that the question as to whether he attended at the premises on the occasions of the installation and removal was a live issue. However, in advance of giving evidence he is unlikely to have appreciated that he would be questioned closely about the precise position that he occupied. It is not surprising that his memory might be incomplete on the first occasion that he gave evidence. In addition, if the applicant initially gave evidence with a view to placing himself as close as possible to the activities of those engaged in the installation in order to have appeared to comply with the requirement of presence, he is not likely to have altered his evidence on the second occasion by placing himself further from the action and in a position less likely to have complied with the requirements of the warrant. I am satisfied that the process of giving evidence and the applicant's attendance at the scene ultimately refreshed his memory to the extent of bringing to mind the fact that his initial position was across the reserve in his car.
171 Notwithstanding the shortcomings of the evidence of both witnesses to which I have referred, I am satisfied that both the applicant and Sergeant Doherty believed that the applicant's position approximately 100 metres to the rear of the rear fence in the car was sufficiently proximate to the premises to comply with the requirement of the warrant that entry be achieved in the presence of the applicant. Such positioning accorded with the practice that then existed. The failure to comply with the requirement of presence at the time of entry was not deliberate. In addition, there were times when the applicant was at the rear fence of the premises which, in the circumstances, I would regard as sufficiently proximate to amount to presence for the purposes of the warrant.
172 In considering the exercise of the discretion to exclude the evidence, as Mullighan J observed in Gillard and Preston, it must be acknowledged that unlawful activity of the kind under consideration is a serious breach of the law and a substantial invasion of privacy. However, an invasion of privacy was lawfully authorised and the police did not know or suspect that they were acting unlawfully. As was the case in Gillard and Preston, the police did not disregard the provisions of the Act. In obtaining the warrants, the applicant adhered strictly to those provisions and acted properly in every respect. The applicant had no reason to suspect that the warrants might be invalid. Quite the contrary, in Gillard and Preston the warrant which was upheld authorised entry into premises either alone or in company with other members of the South Australian Police. The applicant and Sergeant Doherty believed that they were acting in compliance with the warrants. Although erroneous, that belief was not unreasonable. The applicant was in the near vicinity at the time of entry, but not close enough at the moment of entry to comply with the requirement that he be present.
173 The charges are of the most serious kind. The product of the listening devices is highly significant to the prosecution case in a number of ways. The cogency of the evidence was not affected by any illegality or unlawful conduct. No relevant unfairness was caused to the accused.
174 As to the relevance of the circumstances in which the listening device was removed, the Crown submitted that if the removal was attended by any failure to comply with the terms of the warrant, such a failure was irrelevant to a consideration of the exercise of the discretion to exclude the evidence. The Crown relied upon the decision of the South Australian Court of Criminal Appeal in Question of Law Reserved (No 1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281. In a judgment with which Cox and Matheson JJ agreed, Doyle CJ held that the discretion to exclude evidence identified in Bunning v Cross ("public policy discretion") is a discretion that "permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct". His Honour observed that if the evidence was not obtained by unlawful or improper means, this discretion does not arise. His Honour said (288):
"But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:
"A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of an offence with which the accused is charged."
In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence.
As I have already said, it is when the illegality or impropriety is the means by which the evidence is procured that the discretion arises for consideration. It arises then because allowing the use of the evidence, obtained in this fashion, may appear to condone illegal or improper conduct, and may compromise the court's commitment to the upholding of the law."
175 The judgment of the Chief Justice in Question of Law Reserved concerning the circumstances in which the public policy discretion is enlivened was approved by the Court of Appeal in Lobban.
176 The evidence was not obtained as a result of any unlawful or improper conduct associated with the removal of the listening devices. However, the accused submitted that it is inappropriate to regard the conduct associated with the removal as separate from and unconnected with the obtaining of the evidence because the removal was part of the entire process contemplated by the legislative scheme. The removal was part of the conduct authorised by the same warrant that authorised the installation and use. Unlawful or improper conduct associated with the removal therefore taints the earlier conduct.
177 In my opinion, if entry and installation was lawfully carried out in compliance with the terms of a valid warrant, but a listening device was subsequently removed in circumstances that did not comply with the terms of the warrant, the public policy discretion to exclude would not be enlivened. However, if unlawful or improper conduct occurred at the time of entry or installation, the existence of further such conduct at the time of removal might be relevant to the exercise of the public policy discretion. For example, the later conduct might provide evidence of deliberate and ongoing non-compliance with the terms of the warrant.
178 I have found against the contention that there was a culture of non-compliance within the Section at the relevant time. There is no evidence to support a conclusion that the applicant harboured an attitude of non-compliance. My impression is to the contrary. While Sergeant Doherty possessed an attitude of non-compliance, and he entered the premises before confirmation of the applicant's presence in the vicinity and continued removing the devices after he became aware that the applicant was some distance from the premises, in the particular circumstances I have reached the view that Sergeant Doherty's unlawful conduct should not result in the exclusion of the evidence. Even if I had found that the applicant decided to take a shortcut and had authorised Sergeant Doherty to proceed because the applicant was running late, I would not have excluded the evidence in the exercise of my discretion. A finding that the applicant had taken such a shortcut would not have led me to conclude that the applicant held an attitude of non-compliance. The removal was not occurring as part of a clandestine entry and it was timed to occur while other officers were in attendance. While authorising Sergeant Doherty to proceed in his absence would not be acceptable, having regard to the particular circumstances and the factors relevant to the exercise of the public policy discretion, I would not have excluded the evidence.
179 In arriving at my decision not to exclude the evidence in the exercise of the public policy discretion, I have not overlooked the general unfairness discretion discussed in Lobban. I am satisfied that the circumstances do not call for the exclusion of the evidence in the exercise of the unfairness discretion.
180 During submissions, counsel for Bunting drew attention to the fact that on 30 July 1999 I issued a warrant authorising the applicant and two other officers of the Section acting in the applicant's presence and under his control and direction to use listening devices for the purposes of recovering the listening devices from a suburban premises. Counsel did not suggest that as a consequence I should disqualify myself from continuing as the trial judge. As I indicated to counsel, the fact that I issued the warrant is irrelevant and of no influence whatsoever in respect of any aspect of the trial or my approach to and conduct of the trial.
181 For these reasons, the applications to exclude the evidence of the product of the listening devices installed at Blackham Crescent was refused.
R
BUNTING & WAGNER
(1994) 179 CLR 427
(1986) 65 ALR 107
(1988) 16 NSWLR 24
(2001) 51 NSWLR 419
(1978) 141 CLR 269
(1978) 36 FLR 347
(1985) 157 CLR 57
(1978) 141 CLR 54
(2000) 77 SASR 24
(2000) 76 SASR 356
(1998) 70 SASR 281
The warrants were held valid. The entries were held unlawful because the applicant was not in the required close proximity at the time of entry, but the recordings were not excluded. Requests for production of the applications and affidavits and related cross-examination were refused. The applications to exclude the recordings were refused. [22], [30], [49], [57], [164], [167], [181]
(5) A judge to whom an application for a warrant is made may require further information to be given in relation to the application.
(6) A judge may issue a warrant under this section if satisfied -
(a) in the case of a telephone application, that because of urgent circumstances it was necessary to make the application by telephone;
(b) that the issue of the warrant is justified having regard to -
(i) the extent to which the privacy of any persons would be likely to be interfered with by use of a listening device pursuant to the warrant;
(ii) the gravity of the criminal conduct being investigated;
(iii) the extent to which information that would be likely to be obtained by use of a listening device under the warrant would be likely to assist the investigation;
(iv) the extent to which that information would be likely to be obtained by methods of investigation not involving the use of a listening device;
and
(v) the extent to which those methods would be likely to assist the investigation or to prejudice the investigation, through delay or any other reason;
and
(c) in the case of a warrant authorizing entry onto premises, that it would be impracticable or inappropriate to use a listening device pursuant to the warrant without entry onto the premises.
(7) A warrant under this section -
(a) may specify conditions relating to the use of a listening device;
(b) if it authorizes entry -
(i) may restrict entry to within specified hours during a day;
(ii) may provide that entry may be made without permission first being sought or demand first being made and, if it does so, may specify the measures by which entry may be gained;
(c) must specify the period for which it is in force (not being a period greater than 90 days);
(d) may be renewed.
(8) Where the Commissioner of Police or a member of the National Crime Authority is satisfied that the grounds on which a warrant was issued have ceased to exist, the Commissioner or the member (as the case may require) must, if it is still in force, cancel the warrant by instrument in writing.
(9) A warrant may, at any time, be cancelled by instrument in writing -
(a) if issued to a member of the police force, by the Commissioner of Police;
(b) if issued to a member of the National Crime Authority or a member of the staff of the Authority, by a member of the National Crime Authority.
Unlawful communication of information obtained pursuant to warrant
6a. (1) A person to whom a warrant is issued under section 6 must not, except in the course of duty or as required by law, knowingly communicate or publicise any information obtained by use of a listening device under the warrant.
Penalty: Division 5 fine or division 5 imprisonment or both.
(2) A person who uses a listening device pursuant to a warrant at the direction of the person to whom the warrant was issued must not, except to the extent necessary to give full effect to the purposes for which the warrant was issued or for the purposes of giving evidence, communicate or publish any information obtained by use of the listening device.
Penalty: Division 5 fine or division 5 imprisonment or both."
(b) the Commissioner of Police may, in accordance with the following sub-paragraphs, by himself or by a member of the Australian Federal Police authorized by him, communicate information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 21:
(i) where the information relates, or appears to relate, to the commission, or intended commission, of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years - information may be communicated to a member of the Australian Federal Police for the purposes of investigations into the offence or to an officer of the Police Force of a State or Territory, as the case may be; or
(ii) where the information relates, or appears to relate, to activities prejudicial to security - the information may be communicated to the Director-General of Security; and
(c) a member of the Australian Federal Police, or an officer of the Police Force of a State or Territory, may, in the course of performing his duties as such a member or officer, communicate to another member of the Australian Federal Police or to another officer of that Police Force, as the case may be, information that was communicated to him in accordance with paragraph 18(3)(a) or (b) of the Australian Security Intelligence Organization Act 1979 or with sub-paragraph (b)(i) of this sub-section.
(6) Without limiting the application of sub-section (4), a person may give information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21, in evidence in a proceeding -
(a) by way of a prosecution for a narcotics offence;
(b) by way of a prosecution for an offence against the Telecommunications Act 1975 or a regulation or by-law in force under that Act;
(c) by way of a prosecution for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years;
(d) by way of an application for an order under sub-section 243B(1) of the Customs Act 1901; or
(e) for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 293 of the Customs Act 1901 in connection with the commission of a narcotics offence.
(7) An offence against this section may be prosecuted either summarily or upon indictment, but -
(a) an offender is not liable to be punished more than once in respect of the same offence;
(b) the offence shall not be prosecuted summarily except in the name of the Attorney-General or the Director of Public Prosecutions; and
(c) where the offence is prosecuted summarily, the court shall not impose a penalty exceeding a fine of $1,000 or imprisonment for 6 months.'
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