//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] SASC 253
procedural. The telephone-intercept evidence was admitted. The court rejected the challenge based on the notification requirements and declined to exclude the recordings on the asserted unfairness ground.
The court admitted the telephone recordings. It read the notification rules as allowing the Commissioner to notify people acting on behalf of the carriers’ Managing Directors, rather than requiring the Managing Directors to receive every notice and warrant personally. The certificates supported the finding that notice had been given in that way. The judge also said that, even if there had been a later administrative failure, it would not undo validly issued and activated warrants. The police had used the interceptions to overhear conversations, not to trick the accused into making admissions through an intermediary, so the judge did not exclude the recordings as unfair.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,385 words · generated 30/09/2026
In this ruling, Martin J considered whether telephone conversations recorded under warrants issued pursuant to the (Cth) could be used in the criminal proceedings against John Justin Bunting and Robert Joe Wagner. The accused faced eleven joint murder counts concerning alleged events between December 1995 and May 1999. Bunting also faced a separate murder count relating to an alleged 1992 offence, while Wagner faced an assisting-offenders charge connected with that matter. The ruling addressed the intercepted communications, not the determination of guilt on the charges [1]–[3].
2 cited instruments linked from this judgment.
The warrants themselves were no longer challenged. The defence had initially questioned their validity, but accepted that they had been validly issued. The central statutory complaint was instead that the Commissioner had not personally ensured that the Managing Directors of Telstra and Optus received notification and copies of the warrants as required by s 60(1) [3], [16]–[17].
The evidence included certificates from the carriers’ Company Secretaries. They recorded that carrier employees received copies of the warrants and that carrier employees took technical steps to connect the relevant telephone services to the police monitoring centre [11]–[13]. Separate certificates from the Commissioner or Acting Commissioner stated that a person acting on behalf of the relevant Managing Director had been notified of each warrant and given a certified copy [14], [17].
The defence also argued that police use of interception without first cautioning the accused was unfair, because the investigation had reached a point at which a caution would have been needed had the police interviewed them [35]. Martin J rejected that argument and ruled that the intercepted communications were admissible [41].
The judge’s main reasoning concerned the relationship between ss 47(a) and 60(1). Section 60(1) required the agency’s chief officer to cause the carrier’s Managing Director to be informed of the warrant “forthwith” and to be given a certified copy “as soon as practicable” [16]. The defence argued that those words required notification and delivery to the Managing Director personally [17].
Section 47(a), however, stated that a warrant did not authorise interception until notification of its issue had been received “by or on behalf of” the Managing Director [9]. Martin J treated that wording as important to construing s 60. If the Act recognised receipt on the Managing Director’s behalf for the purpose of activating the warrant, it was unlikely that Parliament intended the related notification duty to require the Managing Director’s personal involvement. The judge also considered the statutory scheme, the purpose of carrier notification and practical necessities [20]–[24].
The purpose of notification was not treated as a mere formality. Martin J emphasised that interception seriously intrudes on privacy, and described the Act as a regime balancing serious-crime investigation against citizens’ fundamental rights. Requiring notification at a senior level ensured carrier awareness of the warrant, while allowing administration through representatives rather than requiring personal attention to each warrant [18]–[19], [24].
On the evidence, the judge found the certificates sufficient. Although it would have been preferable for all carrier certificates to say expressly that the relevant employee received the warrant on behalf of the Managing Director, he considered that this was apparent from the certificates. The Commissioner’s certificates were prima facie evidence of the stated notification, and he saw no reason to reject them [15]. He therefore concluded that notification had been given to people acting on behalf of the Managing Directors and that the Commissioner had complied with s 60(1) [23]–[25].
The judge also gave an alternative reason. Even if s 60(1) had not been strictly complied with, the alleged failure occurred after valid issue of the warrants. The warrants became operative when the required notification was received under s 47(a). The Act did not suggest that a later defect in carrying out administrative responsibilities invalidated a warrant already issued and activated [25]. On that footing, the interceptions remained under warrants for s 7(2)(b), so the prohibition in s 7(1) did not apply. The information had been lawfully obtained and could be given in evidence under s 74(1) [25]–[26].
The judge addressed s 75 as an alternative route, but did not need to decide every question about its scope. He reasoned that, if the alleged notification failure had made the interceptions contraventions of s 7(1), the failure was not substantial in the circumstances. The Commissioner had attempted to comply, the recipients were understood to act for the Managing Directors, carrier procedures were followed, and the practical safeguards had been observed [29]–[30]. He said that if s 75 applied, he would be satisfied that the irregularity should be disregarded [34]. Whether the defect fell within s 75 as one connected with the issue or execution of the warrant remained undecided [31]–[33].
The fairness argument failed for a different reason. Martin J distinguished the cases relied on by the defence, which concerned deliberate arrangements to elicit admissions from an accused, from lawful interception used to overhear unguarded conversations. There was no suggestion that police had arranged for friends or accomplices to draw the accused into recorded conversations [37]–[40]. The judge found no impropriety or unfairness in the police conduct described [39].
This judgment deals with the statutory scheme as it stood under the 1979 Act and the evidence in this case. It does not purport to give a general account of the law before the Act, nor does the supplied judgment establish a comprehensive later legal position.
The statutory framework described by Martin J had several distinct stages. Section 7(1) prohibited interception, while s 7(2) made an exception for an interception under a warrant [5]. Section 45 governed the issuing authority’s power to issue a warrant for a class 1 offence, including murder, when the statutory conditions were met [7]–[8]. Section 47 limited when a warrant authorised interception over a carrier’s system: notification had to be received by or on behalf of the Managing Director, and the specified actions had to be taken to enable execution [9].
Section 60 imposed the agency’s notification and copy-delivery duties [16]. Martin J construed that duty in the context of s 47, holding that notification to someone acting on behalf of the Managing Director could suffice [20]–[25]. The practical effect of the ruling was to reject the proposed requirement of personal notification and receipt in this setting.
The judgment also distinguishes the consequence of a defect in notification from the validity of the original warrant. The warrants’ validity was accepted. The court held that an alleged later failure in an administrative duty did not, by itself, undo valid issue or activation under s 47 [25]–[26]. This was an alternative ground, since the judge had already found that the Commissioner had complied [25].
Section 75 was treated as a potential statutory safety valve if an interception contravened s 7(1) but was purportedly conducted under a warrant. The judge explained the statutory conditions, including that an irregularity must not be substantial and should be disregarded in the circumstances [27]–[30]. He did not decide whether the alleged notification defect was sufficiently connected with the issue or execution of a warrant to fall within s 75, or whether some other discretion remained available [31]–[33].
On the separate fairness issue, the ruling preserves a distinction between lawful eavesdropping and engineered elicitation of admissions. The judge found that the conduct here fell on the lawful-overhearing side of that distinction, rather than the subterfuge described in the cited cases [37]–[40]. The judgment does not establish that every use of an interception is fair, or resolve the consequences of materially different conduct.
At [18], Martin J explained the privacy significance of interception: “Telephone interceptions amount to serious invasions of the privacy of members of our community.” In plain English, the court recognised that the statutory safeguards mattered because interception intrudes on private communications. The reasoning was not that privacy concerns disappear once a warrant exists, but that the Act balanced those concerns against investigation of serious offences.
At [20], the judge observed that s 47 refers to notification received “by or on behalf of” the Managing Director. In plain English, the legislation itself contemplated that a representative could receive notice, rather than requiring the chief executive to handle it personally.
At [24], the court concluded that Parliament was unlikely to have intended personal involvement by each Managing Director in receiving all notices and warrant copies. This was the central interpretive conclusion. It was based on the statutory scheme, the purpose of notification and practical necessities, rather than on a finding about any particular delegation arrangement [22]–[24].
At [25], the court stated that a later administrative defect did not affect the validity of the warrants or their commencement. In plain English, even if the paperwork or notification process had not been perfect, that would not necessarily make a validly issued and activated warrant invalid. The court’s alternative reasoning depended on the distinction between the warrant’s issue and later administrative responsibilities.
At [29]–[30], the judge addressed the possibility of an irregularity under s 75. He considered that the practical purposes of the Act had been achieved and that the alleged failure was not a substantial defect. This reasoning was conditional: it applied only if s 75 needed to be considered and the provision covered the alleged irregularity.
At [39], Martin J characterised the police conduct as “lawful eavesdropping” and found nothing improper or unfair in it. The plain-English point is that he did not regard recording conversations through lawful interception as equivalent to manipulating the accused into making admissions. At [41], he stated the result directly: he declined to exclude the recorded communications.
The ruling is most directly relevant to a dispute with these features: a warrant has been validly issued; the challenge concerns notification to the carrier rather than the issuing authority’s satisfaction of the warrant criteria; the statutory activation provision allows notice to be received on behalf of a Managing Director; and evidence supports a finding that a representative received the notice and warrant [3], [9], [15], [20]–[25].
It may also be relevant where a party argues that a post-issue administrative defect automatically invalidates an otherwise valid and activated warrant. Martin J’s alternative reasoning was that the Act did not indicate that a later failure in administrative responsibilities had that effect [25]–[26]. The judgment does not resolve every possible defect or every statutory scheme, so the particular wording and sequence of obligations remain important.
The s 75 discussion is potentially relevant where an interception is said to contravene s 7(1) but was purportedly under a warrant, and the alleged defect concerns issue or execution. The court’s comments about the non-substantial nature of the alleged defect and disregarding it were conditional and case-specific. It expressly left unresolved whether the notification issue fell within s 75’s scope [31]–[34].
The fairness analysis is relevant where the police lawfully place themselves in a position to overhear unguarded conversations. It is materially different from a case in which police arrange for an intermediary, such as a fellow prisoner, friend or accomplice, to elicit admissions through subterfuge. Martin J emphasised the absence of that kind of conduct here [37]–[40].
The supplied judgment contains no account of later cases applying, distinguishing or reconsidering R v Bunting & Wagner (No 5). No conclusions about its subsequent treatment can therefore be drawn from this source alone.
The authorities Martin J discussed are earlier authorities, not later treatment of this judgment. He considered O’Reilly v The Commissioners of the State Bank of Victoria and Minister for Aboriginal Affairs v Peko-Wallsend Ltd when addressing whether a statutory function required personal performance or could operate through officers or representatives [21]–[24]. He referred to R v Rich for the meaning of “substantial defect or irregularity” in s 75 [30]. He also considered Bunning v Cross in his conditional assessment of whether an irregularity should be disregarded [34].
On the fairness issue, Martin J distinguished R v Pfennig (No 1) and R v Smith on their facts, and referred to R v Giaccio and The Queen v Swaffield [36]–[39]. These citations show the authorities informing the reasoning in this ruling; they do not establish how later courts treated this ruling. The judgment text supplied here does not provide the later history needed to assess its precedential reach.
Several questions were expressly left open. First, Martin J did not decide whether a failure to give notice personally to a Managing Director, assuming personal delivery were required, would count as an irregularity “in connection with” execution of a warrant for s 75 [31]–[33]. He noted the possible connection because s 47 links activation to notification, but also questioned how failure to deliver a copy personally could relate to execution [32].
Second, the judge did not decide whether a court would retain a separate discretion to admit the evidence if s 75 did not apply [33]. The issue was not addressed in submissions, so the judgment should not be read as resolving it.
Third, the court had no information about whether the Managing Directors had powers of delegation, had authorised particular recipients, or had arrangements with the Commissioner [23]. The outcome rested on the construction of the statute and the certificates in evidence, not on a finding about the precise internal authority arrangements at Telstra or Optus.
Fourth, the judgment does not decide how the same reasoning would apply to different statutory language, a materially different notification process, or evidence that notice did not reach a person acting on behalf of the carrier’s Managing Director. Nor does it decide the fairness of interception where police use intermediaries or other deliberate means to induce admissions. Martin J’s conclusion on fairness depended on the absence of that kind of conduct [39]–[40].
Finally, the ruling is an evidentiary decision in this prosecution. It did not determine the murder charges or the ultimate weight of the intercepted conversations. The judgment establishes the court’s reasons for admitting the recordings in the circumstances before it, not a finding about the accused’s guilt.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
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 telephone intercepts. The interceptions occurred after warrants were issued under the Telecommunications (Interception) Act 1979 ("the Act"). The accused challenged the admissibility of the conversations recorded through use of the intercepts. I ruled that the evidence should be admitted. I now set out my reasons for that ruling.
3 The submissions were presented by counsel for Wagner and were adopted by Bunting. Counsel for Bunting also presented brief submissions. Initially, counsel advanced the proposition that the warrants were invalid. However, subsequently that submission was corrected and the validity of the warrants was accepted. It was contended that although the warrants were validly issued, failure by the South Australian Commissioner of Police ("the Commissioner") to comply with an administrative responsibility imposed by the Act rendered inadmissible evidence obtained through use of the intercepts.
4 It would not be unkind to describe the provisions of the Act as somewhat convoluted. However, for present purposes the essence of the scheme of the Act appears to be as follows.
5 Section 7(1) expressly prohibits the interception of a communication passing over a telecommunications system. Subsection (2) provides that subsection (1) does not apply to an interception of a communication made under a warrant.
6 Provision is made for Judges and nominated Members of the Administrative Appeals Tribunal to be persons eligible to issue warrants ("issuing authority"). Section 39(1) provides that an agency may apply to an issuing authority for a warrant in respect of a telecommunications service or a person. It is accepted that an officer of the South Australian police force was able to apply for a warrant. Sections 40-42 relate to the form and contents of the application and to the requirement that an affidavit accompany the written application setting out the facts and other grounds on which the application is based.
"Issue of telecommunications service warrant in relation to class 1 offence
45 Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and
(e) having regard to:
(i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;
(ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and
(iii) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason; some or all of that information cannot appropriately be obtained by such methods;
the Judge or nominated AAT members may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service."
8 Murder is a class 1 offence. In each instance, the warrant recites that the issuing authority is satisfied of the relevant matters identified in s 45.
9 After the warrant is issued, a further step is required before the warrant comes into effect and authorises the interception. Section 47 requires notification of the issue of the warrant:
"Limit on authority conferred by warrant under section 45 or 46
47 A warrant under section 45 or 46 does not authorise communications to be intercepted while they are passing over a telecommunications system operated by a carrier unless:
(a) notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60(1); and
(b) the interception takes place as a result of action taken by an employee of the carrier, and by the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police, for the purpose of enabling the warrant to be executed."
10 It is agreed that there was compliance with s 47(b). As to compliance with s 47(a), the Crown relied upon certificates issued pursuant to s 61 of the Act. It is agreed that the certificates were properly issued and that, by virtue of s 61(2), I am to receive the certificates as "conclusive evidence" of the matters stated in the certificates.
11 Two carriers were involved, Telstra and Optus. Each certificate was issued by the Company Secretary of those carriers. The first certificate from the Company Secretary of Telstra was as follows:
"TELECOMMUNICATIONS (INTERCEPTION) ACT 1979
CERTIFICATE UNDER SECTION 61(1)
I ... the Company Secretary of Telstra Corporation Limited, trading as Telecom Australia, (being a carrier as provided in section 5 of the Telecommunications (Interception) Act 1979) do hereby certify pursuant to Section 61 of the Telecommunications (Interception) Act 1979 the following facts being facts which I consider relevant with respect to acts or things done by or in relation to employees of the said Corporation for the purpose of enabling the execution of a warrant issued under Section 45 of the said Act, a true copy of this warrant(s) is hereunto annexed and marked with the letters 'MM1' and 'MM2'.
1. A certified copy of warrant 'MM1' aforesaid which warrant was numbered F9918/0 was received by an employee of Telstra Corporation Limited from the South Australian Police Department by facsimile transmission on 05 February 1999 the original certified copy of the said warrant 'MM1' being received on 12 February 1999, and
A certified copy of warrant 'MM2' aforesaid which warrant was numbered F9918/1 was received by an employee of Telstra Corporation Limited from the South Australian Police Department by facsimile transmission on 05 May 1999 the original certified copy of the said warrant 'MM2' being received on 10 May 1999, and
2. On receipt of the warrant dated 05 February 1999 employees of the Corporation, in accordance with a system previously established within the Corporation for such purposes, did such acts and things of a professional and technical nature as were necessary to bring about, between the telephone service stipulated in the said warrant and the monitoring centre of the agency to which the said warrant was issued, a connection of such a nature and in such a manner as to permit:-
12 With one exception, the certificates issued by Telstra were in identical terms. In respect of warrant no. F9927/0, paragraph 1 of the certificate states that the certified copy sent by facsimile transmission was received by an employee of Telstra "on behalf of the Managing Director".
13 Two certificates were issued by the Company Secretary of Optus. For present purposes, they were in identical terms. The first certificate was as follows:
"TELECOMMUNICATIONS (INTERCEPTION) ACT 1979
CERTIFICATE UNDER SECTION 61
I, ... the Company Secretary of Cable and Wireless Optus Limited (ACN 052 833 208) being the holding company of Optus Mobile Pty Ltd (ACN 054 365 696) (being a carrier) ("Optus") certify pursuant to section 61 of the Telecommunications (Interception) Act 1979 ("Interception Act") the following facts which I consider are relevant to acts or things done by or in relation to employees of Optus Administration Pty Ltd (ACN 055 136 804) (being the employer of all staff of Optus Group Companies) ("Optus Employees") in order to enable the execution of a warrant issued under section 45 of the Interception Act. A true copy of this warrant, dated 10 February 1999 and numbered F9920/0, requiring the interception of a telecommunications service provided by Optus, is annexed and marked with the letters POB 1. ("Warrant").
1. A faxed copy of the Warrant was received by an Optus employee from Detective Inspector Malcolm Leonard Schluter on behalf of the South Australia Police ("Agency") on 11 February 1999. The original copy of the Warrant was received by that employee on 17 February 1999.
2. Between the period commencing on 11 February 1999 and ending on 06 May 1999 Optus Employees did acts and things of a professional and technical nature that were necessary to connect the telecommunications service specified in the Warrant with the monitoring centre of the agency to permit a person or equipment located at that monitoring centre:
(a) to be aware of or, in the case of equipment to be activated by, any communication over that telecommunications service; and
(b) to listen to and record communications over that telecommunications service.
3. In this certificate, the words "carrier", "interception", "equipment", "communication" and "telecommunications service" have the same meanings given to those words in section 5 of the Interception Act.
14 Section 61 also provides for a certifying officer of an agency to issue a written certificate setting out facts considered by the officer to be relevant with respect to certain matters identified in s 61(4). Sub section (5) provides that the certificate is prima facie evidence of the matters stated in the document. In each instance a certificate was issued by either the Commissioner or the Acting Commissioner who it is accepted were certifying officers for the purposes of s 61. In each certificate, the following statement is made:
"5 Forthwith upon the issue of the Warrant a person acting on behalf of the Managing Director of Telstra Corporation Limited/Chief Executive Officer of Cable and Wireless Optus Limited was notified of the issue of the Warrant."
15 Counsel did not refer to the certificate issued by the Commissioner. Basing his submission on the certificates issued by each Company Secretary, counsel argued rather faintly that the evidence was insufficient to establish compliance with s 47(a). In my opinion, that submission is without substance. While it would have been preferable for all certificates to have stated that the faxed copy of the warrant was received on behalf of the Managing Director of the carrier, in my view it is apparent from the certificates that the employees were acting on behalf of the Managing Director in receiving the faxed copy of each warrant and in subsequently receiving the "original certified copy" of the warrant. In addition, I cannot discern any reason for rejecting the statements by the Commissioner. By virtue of s 61(5) these statements are prima facie evidence of the matters stated, namely, that forthwith upon the issue of each warrant a person acting on behalf of the relevant Managing Director was notified of the issue of the warrant. In my view, therefore, valid warrants came into effect.
16 The administrative duty to which I previously referred was a duty of notification imposed upon the Commissioner by s 60. The relevant part of that section is in the following terms:
"Notification to Managing Director of carrier of issue or revocation of certain warrants
60(1) Where:
(a) a warrant is issued to an agency; and
(b) it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;
the chief officer of the agency shall cause;
(c) the Managing Director of that carrier to be informed forthwith of the issue of the warrant; and
(d) a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to the Managing Director of that carrier."
17 Unlike s 47, s 60 does not refer to notification being received "on behalf of" the Managing Director. Counsel submitted that s 60 imposes an obligation on the Commissioner to cause the Managing Director to be informed personally of the issue of the warrant and to cause a certified copy of the warrant to be given as soon as practicable to the Managing Director personally. The certificate from Optus refers to both the facsimile and the original copy of the warrant being received by an employee of Optus. Each Telstra certificate refers to the facsimile being received by an employee, but the identity of the receiver of the original certified copy is not specified. It appears likely, however, that the original would have been received by an employee. As mentioned, par 5 of each certificate issued by the Commissioner refers to notification to a person acting on behalf of each Managing Director. Paragraph 6 states that as soon as practicable after the issue of a warrant, a certified true copy of the warrant was caused to be given to a person acting on behalf of each Managing Director.
18 Telephone interceptions amount to serious invasions of the privacy of members of our community. The legislature has put in place a regime designed to strike a balance between facilitating the investigation of serious crimes and protecting the fundamental rights of citizens. Strict duties of disclosure are imposed upon agencies which obtain warrants and intend to intercept communications pursuant to those warrants. It is not surprising that the agencies are required to cause notification to be given to the most senior executive officer of the relevant carrier. From a practical point of view, the carrier is required to facilitate interception. From a policy point of view, however, the legislature considered that the most senior executive officer of the carrier should be aware of the existence of the serious invasions of privacy. For similar reasons, the duty is imposed upon the agency to notify the Managing Director of the revocation of a warrant.
19 In my opinion, the legislature could not have intended that the Managing Director of the relevant carrier become involved personally with the implementation of each warrant. However, the critical question is whether the legislature intended that the Managing Director must receive personally notification of each warrant and a copy of each warrant.
20 Section 60(1) speaks only of the Managing Director being informed and being given a copy of the warrant, not of anyone receiving on behalf of the Managing Director. However, s 47(a) refers to notification of the issue of the warrant being received "by or on behalf of the Managing Director of the carrier under subsection 60(1) ...". It appears, therefore, that s 47 contemplates that receipt of notification on behalf of the Managing Director is sufficient for the purposes of s 60(1).
21 As Gibbs CJ observed in O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 at 11, the answer to the question whether a statute requires a power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case. By a majority, the Court held that the Commissioner of Taxation could exercise his powers of giving notices under s 264 of the Income Tax Assessment Act 1936 (Cth) through an authorised officer. Notwithstanding a power to delegate, the majority were of the view that the legislature must have known that "practical necessity" dictated that the powers conferred on the Commissioner of Taxation should be exercised by officers of the Department "who were acting as his authorised agents" (12). In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J said (38):
"The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by that repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him."
22 These authorities are of direct relevance to the discharge of the duty of notification by the Commissioner and whether that duty can be discharged by officers authorised by the Commissioner for that purpose. They are also relevant to any duties imposed upon the Managing Directors of the carriers. They do not directly relate to the question whether the legislature intended that the Managing Director of the carrier be informed personally of the warrant and be given personally a copy of the warrant. However, the practical considerations discussed in the authorities to which I have referred can readily be applied in considering whether Parliament intended such personal involvement of the Managing Directors.
23 I do not have any information as to whether the Managing Directors have powers of delegation and, if so, whether they have purported to exercise those powers with respect to matters arising under the Act. Nor do I have information as to whether the Managing Directors have authorised others to receive notifications and warrants on their behalf. There may be arrangements between the Commissioner and the carriers in respect of these matters about which I have not been informed. The Commissioner purported to discharge the duty imposed by s 60(1) by giving notification and by providing a copy of the warrant to persons the Commissioner understood were acting on behalf of each Managing Director.
24 Having regard to the scheme of the Act, the purposes of notification and practical necessities, in my opinion it is unlikely that Parliament intended that the Managing Directors of the carriers would be personally involved in receiving notification and in receiving copies of all warrants. This view is confirmed by s 47(a) which contemplates that notification to a person acting on behalf of the Managing Director will suffice for the purposes of s 60(1)(c). In addition, the legislature having determined that notification to a person acting on behalf of the Commissioner is sufficient notification to activate the warrant pursuant to s 47(a), it is unlikely that the legislature intended to impose the duty of notification personally pursuant to s 60(1).
25 In my opinion, therefore, the Commissioner complied with the administrative duties imposed by s 60(1). If I am wrong in that conclusion, in my opinion the failure of the Commissioner to discharge those duties would not affect the validity of the warrants. The failure occurred after the valid issue of a warrant. Pursuant to s 47(a), each warrant was activated when notification of the issue was received by or on behalf of the Managing Director of the carrier. There is no suggestion in the Act that a subsequent defect in carrying out the administrative responsibilities imposed by the Act affects the validity of the issue of the warrant or the commencement of the operation of the warrant. In those circumstances, even if the Commissioner failed as suggested, in my opinion the interceptions occurred under valid warrants for the purposes of s 7(2)(b) of the Act. On that basis, the prohibition in s 7(1) does not apply to the interceptions.
26 Counsel was unable to refer me to any authority for the proposition that where a warrant is validly issued and lawfully brought into operation, a failure to comply with an administrative duty, being a duty that arises after the issue of the warrant, affects the validity of the warrant or renders the evidence obtained pursuant to the warrant inadmissible. Section 7(1) has no application because the interception occurred under the warrant. The information obtained pursuant to the warrant was obtained lawfully. Section 74(1) provides that lawfully obtained information may be given in evidence in these proceedings. In my opinion, therefore, the accused have failed to make out their primary proposition that the evidence is inadmissible.
27 Reference was made to s 75. That section is in the following terms:
"Giving information in evidence where defect in connection with warrant
75(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:
(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and
(b) in all the circumstances, the irregularity should be disregarded.
(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity);
(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant."
28 Section 75 enables a Court to admit evidence obtained through an interception in contravention of s 7(1), but purportedly under a warrant, if the Court is satisfied that but for an irregularity the interception would not have constituted a contravention of s 7(1) and, in all the circumstances, the irregularity should be disregarded. "Irregularity" for these purposes is a defect or irregularity, other than a substantial defect or irregularity, in the document purporting to be the warrant or in connection with the issue of that document or in connection with the execution of the warrant or purported execution of the document purporting to be the warrant. It was said that the defect or irregularity could be viewed as occurring in connection with the execution of the warrant, but that the defect or irregularity was substantial.
29 If it was necessary to consider the operation of s 75, in my opinion the failure of the Commissioner to strictly comply with the administrative duty imposed by s 60(1) was not a substantial defect or irregularity for the purposes of s 75. It is apparent that the Commissioner was attempting to comply with his duty. I see no reason to doubt that in each instance the persons who received notification and a copy of the warrant did so on behalf of the Managing Director of each carrier. The company secretaries obviously became aware of the issue and the activation of the warrants. Appropriate procedures were then followed for the implementation of the interceptions. In a practical sense, the primary purposes of the Act in ensuring that warrants are validly issued and that appropriate notification is given to the carriers were achieved.
30 In my opinion, the failure of the Commissioner to strictly comply with the administrative duty was not a substantial defect or irregularity for the purposes of s 75. I agree with the observations of the Victorian Court of Appeal in R v Rich (Unreported Judgment delivered 17 December 1997):
"Whatever meaning is to be attributed to the term 'substantial defect or irregularity' where that term is used in section 75(2) of the Act, it cannot in our view extend to circumstances where the alleged defect or irregularity has in no way affected either the process of the issue of the warrant or the process of its execution."
31 As I have indicated, s 75 only applies if the defect or irregularity arose in connection with the issue of the warrant or its execution. There is no suggestion that the failure to give notification occurred in connection with the issue of the warrant.
32 As the warrant is not activated until notification occurs pursuant to s 47, it might be argued that the failure to give notification was an irregularity in connection with the execution of the warrant. If proper notification is not given, the warrant is not in force. As s 47 is linked to the requirement of notification in s 61 by the terms of s 47, failure to comply with the duty of notification imposed by s 60(1) might be argued to relate to the execution of the warrant. However, assuming that s 60(1) requires delivery of a copy of the warrant to the Managing Director personally, it is difficult to see how failure to comply with that particular duty can be said to be an irregularity in connection with the execution of the warrant. If it is not such an irregularity, s 75 has no application.
33 It is unnecessary for me to decide this issue. Similarly, it is unnecessary for me to decide whether, should s 75 not be applicable because the irregularity did not occur in connection with the issue or execution of the warrant, a Court nevertheless retains the power to admit the evidence in the exercise of the discretion. This question was not addressed in submissions.
34 If, contrary to my view, the failure to comply with the administrative duty meant that the interceptions were in contravention of s 7(1), I would have no hesitation in being satisfied that, but for the irregularity, the interceptions would not have constituted such a contravention. Further, in my opinion the irregularity should be disregarded. There is no suggestion of any deliberate impropriety on the part of the Commissioner or investigating officers. They endeavoured to comply with their duties. In practical terms, the safeguards envisaged by the Act were observed. The irregularity and subsequent illegality did not affect the cogency of the evidence. The irregularity and illegality did not give rise to any relevant unfairness. The factors identified in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 strongly favour the admission of the evidence.
35 A further ground was advanced which was said to require the exclusion of the evidence in the exercise of the discretion. The investigation had reached a stage where had the police sought to interview the accused, a caution would have been necessary. On that basis counsel argued that it was unfair to put in place listening devices or telephone intercepts which, unknown to the accused, recorded their conversations. This was a way of avoiding the requirement to give a caution. If the police intended to use listening devices or intercepts, in these circumstances they were obliged to make it known to the accused that they were under investigation for murder or murders.
36 Counsel was unable to identify any authority to support his proposition. Reliance was placed on the decisions of Perry J in R v Smith [1994] SASC 4874; (1994) 63 SASR 123 and Cox J in R v Pfennig (No 1) (1992) 57 SASR 507.
37 As Cox J later observed in R v Giaccio [1997] SASC 6103; (1997) 68 SASR 484, Pfennig turned on its special facts. Pfennig had been charged with murder and remanded in custody. He had indicated to police that he did not wish to answer questions. The investigating police set a trap for the accused by arranging for a fellow prisoner to gain the confidence of the accused and to elicit admissions from him. As the trial judge observed, it was as though the police, faced with a refusal to answer, sent in an undercover police officer in disguise to inveigle the accused into making admissions.
38 In Smith, although the accused had not refused to answer questions, an accomplice had given the police all the evidence they needed to arrest the accused. The accomplice was used by police to elicit admissions through deliberate statements or questions addressed to the accused. The trial judge was of the view that in the circumstances it was unfair to use the admissions against the accused. I note that in R v Giaccio, Cox J indicated that, if necessary, he would not follow the decision in Smith: 498.
39 In my opinion, the decisions in Smith and Pfennig have no application. Further, there is nothing in the judgments delivered in The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159 to suggest that the discretion to exclude is enlivened. In the circumstances under consideration, there is no suggestion that the police sought to make use of the listening devices and telephone intercepts by arranging for friends or accomplices of the accused to engage the accused in conversations which could be overheard by the devices or intercepts. In order to further their investigation, the police engaged in lawful eavesdropping. There was nothing improper or unfair in their conduct. As Cox J observed in Pfennig, (514):
"The eavesdropping cases, such as R v Mills [1962] 1 WLR 1152; [1962] 3 All Er 298; and R v Keeton (1970) 54 Cr App R 267, are distinguishable. There the police were simply putting themselves in a position to overhear the unguarded statements made by a suspect or defendant to someone else."
40 For present purposes even if I assume that the police had sufficient information to justify an arrest of the accused, the bodies had not been discovered and police had been unable to locate Haydon's Toyota Landcruiser. The police were entitled to continue their investigations and to lawfully put in place the means of overhearing unguarded conversations involving the accused. Further, even if the police had discovered the bodies and found the Landcruiser, speaking generally it would not be improper of the police to continue their investigations by making lawful use of listening devices and telephone intercepts prior to the arrest of the accused. Indeed, a number of authorities support the view that after a suspect has been arrested, it is not improper for the police to put themselves in a position to overhear conversations involving the arrested person provided the police do not engage in subterfuge of the type undertaken in Pfennig.
41 For these reasons, I declined to exclude the evidence of communications recorded through the use of telephone intercepts.
R
BUNTING & WAGNER
(1983) 153 CLR 1
(1986) 162 CLR 24
(1978) 141 CLR 54
(1994) 63 SASR 123
(1992) 57 SASR 507
(1997) 68 SASR 484
(1998) 192 CLR 159
The telephone-intercept evidence was admitted. The court rejected the challenge based on the notification requirements and declined to exclude the recordings on the asserted unfairness ground.
(a) A person, or suitable equipment, within that monitoring centre and monitoring the said telephone service to be aware of or, in the case of equipment, be activated by any communication upon such service; and
(b) Conversations upon and other communications to or from the said telephone service to be listened to and recorded (automatically or otherwise) by persons and or equipment within that monitoring centre.
3. The acts and things done by employees of the Corporation and referred to in Paragraph 2 were done and completed so as to permit the matters referred to in sub-paragraphs (a) and (b) of Paragraph 2 to be done for the whole of the period from and including 05 February 1999 to 26 May 1999.
4. The telephone service hereinbefore referred to is a telecommunications service provided by Telstra Corporation Limited.
Dated this 20th day of September 1999
(Signed)
Dated 1 September 1999