R v Cranston

1. The Crown not be permitted to lead evidence of the following audio recordings (including transcripts thereof and oral evidence referring to the recordings or transcripts): Month Dates Room February 1, 2, 7, 8, 9, 10, 15, 20, 21, 22, 23 Opera March 1, 6, 7, 13, 14, 20, 28, 30 Opera April 6, 7, 13, 27, 28 Opera

1. Following determination of this application, the prosecution on the indictment be stayed until: 1. the CDPP has sought and obtained from the Officer in Charge all documents and information that may need to be considered for purposes of prosecution disclosure, in respect of derivative use of material as is found to have been obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law within the meaning of those terms in s138 of the Evidence Act 1995 (NSW); 2. the CDPP and Crown Prosecutor has formed an opinion on whether those documents may fall within the duty of disclosure; and 3. the CDPP has communicated that opinion to the applicants' legal advisers. 1. Directions to schedule the steps in the preceding paragraph. 2. Further or other orders.
2. On 28 October 2020, the applicants filed submissions in support of their application. On 29 October 2020, I made the orders foreshadowed in R v Cranston (No 4) separating the trial of Adam Cranston from the remaining accused and listing the trial of Adam Cranston to commence on 18 January 2021. Subject only to courtroom availability by reason of the COVID-19 pandemic, the trial of the remaining accused will commence as soon as possible after Adam Cranston's trial has been completed. In consultation with the list judge, I have told the parties that the joint trial of Messrs Onley and Menon and Ms Cranston will not commence before 3 May 2021.
3. On 29 October 2020, I made orders, relevantly, that: "The Court orders: … 9 In respect of any application by Accused for exclusion of evidence based on alleged invalidity of decisions to issue warrants or unlawful execution of warrants: a. The prosecution is to file and serve evidence in response by 9 November 2020 along with a response to the submissions and chronology of Accused Menon and Onley; b. The Accused are to notify the prosecution of witnesses required to be made available for cross-examination, by 11 November 2020. Interlocutory hearings in both trials 10 Order 9 in the orders of 26 August 2020 is confirmed: The proceedings are listed for hearing of any and all applications for exclusion of evidence on 16 November 2020 with an estimate of 4 days."
4. On 10 November 2020, the Crown filed its submissions on the motion. The parties on the present application agreed that [93]-[97] of the Crown submissions could be treated as evidence to the extent that these paragraphs contain extracts from transcript of the recorded conversations. The parties also agreed that [58] of the Crown submissions was "supported by evidence". Paragraph [58] contained the following schedule: No Date Start Time Location Warrant number Session number Duration Participants A Cranston Hammond 31 24/01/2017 11:48:19 Opera Room SD6116 12 0:30:00 L Cranston Menon Onley A Cranston Hammond 32 24/01/2017 12:18:20 Opera Room SD6116 13 0:30:00 L Cranston Menon Onley A Cranston Hammond 33 24/01/2017 12:48:21 Opera Room SD6116 14 0:06:39 L Cranston Menon Onley A Cranston Hammond 34 24/01/2017 14:27:14 Opera Room SD6116 17 0:21:10 L Cranston Menon Onley Rostankovski A Cranston 35 24/01/2017 14:48:26 Opera Room SD6116 18 0:03:47 Menon Onley Rostankovski A Cranston Anquetil 36 24/01/2017 15:11:16 Bridge Room SD6116 30 0:29:36 Hammond L Cranston Menon Onley A Cranston 37 24/01/2017 15:18:27 Opera Room SD6116 19 0:05:06 Menon Onley Rostankovski A Cranston Anquetil 38 24/01/2017 15:40:53 Bridge Room SD6116 31 0:29:36 Hammond L Cranston Menon Onley A Cranston 39 24/01/2017 16:10:30 Bridge Room SD6116 32 0:29:36 Anquetil Menon Onley A Cranston Anquetil 41 24/01/2017 16:40:06 Bridge Room SD6116 33 0:29:36 Hammond L Cranston Menon Onley

1. An agreed chronology was also filed. The motion was heard on 16 November 2020. The applicants relied upon an affidavit of Christina Niagos sworn on 28 October 2020 and its exhibit as evidence on the motion. The parties also relied upon submissions and evidence filed in relation to the earlier application, specifically: 1. an affidavit of Christina Niagos, sworn on 3 June 2020; and 2. an affidavit of Christina Niagos, sworn on 6 July 2020.
2. The applicants also tendered the transcripts contained in the four volumes of surveillance device transcripts. Those volumes, among other things, contain the transcripts prepared by reason of the operation of SD6116, and those in the Opera Room prepared by reason of surveillance device warrant SD6400. Counsel for Mr Menon, however, emphasised that he did not consider that the Court need read the transcripts: "BRUCKNER: I would tender those transcripts; however, I make the submission that I don't require your Honour to read them. If this ever goes to another place, if your Honour was criticised for not reading them, I would certainly lose any appeal."

Consideration

1. There are two essential issues at the heart of the present motion. First, whether on its proper construction, the issue of warrant SD6116 was invalid by reason of non-compliance with s 18(5) of the Surveillance Devices Act 2004 (Cth)? Secondly, whether the installation of four surveillance devices in the offices of Clamenz Lawyers under the authority of SD6116 (and leaving one of those devices in the Opera Room at Clamenz Lawyers under the authority of SD6400) constituted excessive execution of that warrant. There is also a subsidiary issue, namely, if the applicants enjoy success on either of the central issues, what are the consequences for admissibility of material affected by that success?
2. To put the matter in issue in some context, it is useful to set out the terms of SD6116 in full: "Commonwealth of Australia Surveillance Devices Act 2004Surveillance Device Warrant under section 16 To: Matthew RICHTER who is the law enforcement officer primarily responsible for executing the warrant (unless another person is nominated in accordance with section 6(3) of the Surveillance Devices Act 2004). And who was also the applicant for this warrant; Whereas I am satisfied on the basis of an affidavit that there are reasonable grounds for the suspicion founding the application for the warrant; And I have had regard to the matters referred to in subsection 16(2) of the Surveillance Devices Act 2004; I hereby authorise the use of surveillance devices of the following kinds: in respect of the conversations, activities or location of the following person: Adam Michael CRANSTON, born [date of birth] • a listening device; • an optical surveillance device; • a tracking device; and • a data surveillance device. This warrant authorises the use of more than one surveillance device of a kind specified above if that is necessary to give effect to this warrant. This warrant relates to the following alleged relevant offences: a. conspiracy to defraud the Commonwealth contrary to section 135.4(3) of the Criminal Code 1995 (Cth), punishable by imprisonment for 10 years; and b. conspiracy to deal in proceeds of crime etc.--money or property worth $1,000,000 or more contrary to section 400.3 of the Criminal Code 1995 (Cth), by virtue of section 11.5, punishable by imprisonment for 25 years, or 1500 penalty units, or both. The alleged offences are relevant offences within the meaning of the Surveillance Devices Act 2004. This warrant is issued subject to the following conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant: NIL [hand written and initialled] This warrant authorises the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant. This warrant takes effect from the time of its issue and remains In force for a period of 90 days. Issued by me on 6 October 2016 at 9.10 am [date and time hand written] Stephen Edward Frost, AAT Deputy President [name hand written] I am a nominated AAT member within the meaning of the Surveillance Devices Act 2004" (Emphasis in original.)
3. The warrant was extended for a further 90 days on 20 December 2016 and again on 16 March 2017. A number of matters about the warrant should be noticed at the outset: 1. the warrant authorises the use of surveillance devices in respect of the conversations, activities or location of a specified person, Adam Michael Cranston; 2. the warrant was issued subject to the following conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant: "NIL"; 3. the warrant authorises the use of more than one surveillance device of a kind specified above if that is necessary to give effect to the warrant; and 4. the issuing officer recorded that he had had regard to the matters referred to in s 16(2) of the Surveillance Devices Act.
4. It is common ground that on Monday 23 January 2017, four listening devices were installed within Clamenz Lawyers under purported authority of SD6116. It was also common ground that a specified premises warrant, specifying the offices of Clamenz Lawyers (SD6400) was issued on Wednesday 25 January 2017. The joint chronology recorded that the CDPP told the accused that three devices installed under SD6116 were removed "between 24 and 25 January 2017". The parties agreed that one device remained on the premises of Clamenz Lawyers and continued to be used under the authority of SD6400. A further two devices were installed at Clamenz Lawyers under the authority of SD6400 on 1 February 2017.

Alleged non-compliance with s 18(5) of the Surveillance Devices Act

1. In addressing the proper construction of the Surveillance Devices Act, I take into account the following principles. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ said: "[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (Footnotes omitted.)
2. In Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 French CJ, Crennan and Bell JJ said: "[39] … the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that 'the modified construction is reasonably open having regard to the statutory scheme' because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, '[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.'" (Footnotes omitted.)
3. In the same case Gageler and Keane JJ said: "[65] Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. [66] Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. …" (Footnotes omitted.)
4. I approach the issues raised on this application by reference to the clear rule explained by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427; [1994] HCA 1 at 435: "Every unauthorized 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 authorized 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 authorize 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: '[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.'" (Footnotes omitted.)
5. The purposes of the Surveillance Devices Act are described in s 3 of the Act. At the time SD6116 was issued that section provided: 3 Purposes The main purposes of this Act are: (a) to establish procedures for law enforcement officers to obtain warrants, emergency authorisations and tracking device authorisations for the installation and use of surveillance devices in relation to criminal investigations and the location and safe recovery of children to whom recovery orders relate; and (b) to restrict the use, communication and publication of information that is obtained through the use of surveillance devices or that is otherwise connected with surveillance device operations; and (c) to impose requirements for the secure storage and destruction of records, and the making of reports, in connection with surveillance device operations.
6. Part 2 of the Surveillance Devices Act deals with the issue of warrants. The types of warrants dealt with in Part 2 were at the relevant time described in s 10: 10 Types of warrant (1) The following types of warrant may be issued under this Part: (a) a surveillance device warrant; (b) a retrieval warrant. (2) A warrant may be issued: (a) in respect of more than one kind of surveillance device; and (b) in respect of more than one surveillance device of any particular kind.
7. Surveillance device warrants are addressed in Division 2 of Part 2 of the Surveillance Devices Act. Subsections 14(1), (4) and (5) which are principally relevant here provided, as at 6 October 2016 (the date SD6116 was issued): 14 Application for surveillance device warrant Warrants sought for offence investigations (1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a surveillance device warrant if the law enforcement officer suspects on reasonable grounds that: (a) one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and (b) an investigation into those offences is being, will be, or is likely to be, conducted; and (c) the use of a surveillance device is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders. … Procedure for making applications (4) The application under subsection (1), (3), (3A) or (3B) may be made to an eligible Judge or to a nominated AAT member. (5) An application: (a) must specify: (i) the name of the applicant; and (ii) the nature and duration of the warrant sought, including the kind of surveillance device or devices sought to be authorised; and (b) subject to this section, must be supported by an affidavit setting out the grounds on which the warrant is sought.
8. At the time SD6116 was issued, "premises" was defined in s 6(1) of the Surveillance Devices Act as follows: premises includes: (a) land; and (b) a building or vehicle; and (c) a part of a building or vehicle; and (d) any place, whether built or not; whether within or beyond Australia.
9. The first point to notice is that the place where a surveillance device will or may be installed is not one of the matters that s 14 states "must" be specified in an application for a warrant.
10. Subsection 16(1)(a) and (2) provided at the time of issue of SD6116 the following relevant matters: 16 Determining the application (1) An eligible Judge or a nominated AAT member may issue a surveillance device warrant if satisfied: (a) in the case of a warrant sought in relation to a relevant offence - that there are reasonable grounds for the suspicion founding the application for the warrant; … … (2) In determining whether a surveillance device warrant should be issued, the eligible Judge or nominated AAT member must have regard to: (a) in the case of a warrant sought in relation to a relevant offence … - the nature and gravity of the alleged offence; and (b) … (c) the extent to which the privacy of any person is likely to be affected; and (d) the existence of any alternative means of obtaining the evidence or information sought to be obtained; and (e) … (ea) … (f) any previous warrant sought or issued under this Division in connection with the same alleged offence ….
11. Whilst the issuing officer was obliged to take into account "the extent to which the privacy of any person is likely to be affected", there was no specific obligation under s 16(2) to consider the place where a surveillance device would or might be installed. As the warrant in this case discloses, the issuing officer in this case did take the matters in s 16(2) into account.
12. At the time SD6116 was issued, s 17 of the Surveillance Devices Act provided, relevantly: 17 What must a surveillance device warrant contain? (1) A surveillance device warrant must: (a) state that the eligible Judge or nominated AAT member issuing the warrant is satisfied of the matters referred to in subsection 16(1) and has had regard to the matters referred to in subsection 16(2); and (b) specify: (i) the name of the applicant; and (ii) if the warrant relates to one or more alleged relevant offences - the alleged offences in respect of which the warrant is issued; and … (iv) the date the warrant is issued; and (v) the surveillance device or devices authorised to be used; and (vi) if the warrant authorises the use of a surveillance device on premises - the premises on which the use of the surveillance device is authorised; and (vii) if the warrant authorises the use of a surveillance device in or on an object or class of object - the object or class of object in or on which the use of the surveillance device is authorised; and (viii) if the warrant authorises the use of a surveillance device in respect of the conversations, activities or location of a person - the name of the person (if known) or the fact that the person's identity is unknown; and (ix) the period during which the warrant is in force (see subsection (1A)); and (x) the name of the law enforcement officer primarily responsible for executing the warrant; and (xi) any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant. (1A) A warrant may only be issued: (a) for a period of no more than 90 days; or (b) if the warrant is issued for the purposes of an integrity operation - for a period of no more than 21 days. Note: The use of a surveillance device pursuant to a warrant may be discontinued earlier: see section 21. (2) In the case of a warrant authorising the use of a surveillance device on premises that are vehicles, the warrant need only specify the class of vehicle in relation to which the use of the surveillance device is authorised. (3) A warrant must be signed by the person issuing it and include his or her name. (4) As soon as practicable after completing and signing a warrant issued on a remote application, the person issuing it must: (a) inform the applicant of: (i) the terms of the warrant; and (ii) the date on which and the time at which the warrant was issued; and (b) give the warrant to the applicant while retaining a copy of the warrant for the person's own record.
13. Section 17 provided that if the warrant authorises the use of a surveillance device in respect of the conversations, activities or location of a person, the warrant is required to specify "the name of the person (if known) or the fact that the person's identity is unknown". Section 17 did not require that a warrant authorising the use of a surveillance device in respect of the conversations, activities or location of a person identify any premises where a surveillance device authorised by the warrant may be installed. The requirement that premises on which the use of the surveillance device is authorised be revealed on the face of the warrant was limited to a warrant of the kind described by s 17(1)(b)(vi).
14. Section 17, which identified the matters a warrant "must" specify, did not require specification of the place or places the devices(s) authorised by a specified person warrant may be installed. Section 17 provided only that if the warrant authorises the installation of a device at specified premises, those premises must be identified. The text of the Surveillance Devices Act indicated that the validity of a warrant in respect of the conversations, activities or location of a person does not depend on the identification and description in the warrant of a place or places where a surveillance device under the warrant may be installed.
15. Section 18(1), the pivotal provision in this application, specifically identifies the matters that a surveillance device warrant may authorise, subject to any conditions specified in the warrant. Section 18(1) provides: [1] 18 What a surveillance device warrant authorises (1) A surveillance device warrant (subject to any conditions specified in it) may authorise one or more of the following: (a) the use of a surveillance device on specified premises; (b) the use of a surveillance device in or on a specified object or class of object; (c) the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown.
16. A surveillance device warrant may thus authorise the use of a surveillance device on "specified premises": s 18(1)(a), the use of a surveillance device in or on a "specified object": s 18(1)(b) and the use of a surveillance device in respect of a "specified person" or a person whose identity is unknown: 18(1)(c).
17. Section 18(2) sets out what is authorised by each kind of surveillance device warrant referred to in s 18(1). Section 18(2)(a) sets out what a specified premises warrant authorises; s 18(2)(b) what a specified object warrant authorises; and s 18(2)(c) what a specified person warrant authorises. Section 18(2) provided and provides: (2) A surveillance device warrant authorises: (a) for a warrant of a kind referred to in paragraph (1)(a): (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant on the specified premises; and (ii) the entry, by force if necessary, onto the premises, and onto other specified premises adjoining or providing access to the premises, for any of the purposes referred to in subparagraph (i) or subsection (3); and (b) for a warrant of a kind referred to in paragraph (1)(b): (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object or an object of the specified class; and (ii) the entry, by force if necessary, onto any premises where the object, or an object of the class, is reasonably believed to be or is likely to be, and onto other premises adjoining or providing access to those premises, for any of the purposes referred to in subparagraph (i) or subsection (3); and (c) for a warrant of a kind referred to in paragraph (1)(c): (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on premises where the person is reasonably believed to be or likely to be; and (ii) the entry, by force if necessary, onto the premises, or other premises adjoining or providing access to those premises, for any of the purposes referred to in subparagraph (i) or subsection (3).
18. Section 18(2) thus characterises the three warrants identified in s 18(1) as differing in "kind". By s 18(2)(a), a warrant authorising the use of a surveillance device on specified premises permitted entry, by force if necessary, onto "the premises" (i.e. the premises the subject of the warrant) and onto "other specified premises adjoining or providing access to the premises".
19. By s 18(2)(b) and (c), respectively, a warrant authorising the use of a surveillance device in or on a specified object or class of object and a warrant authorising the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown, authorises the installation of a device at premises where the object or the person the subject of the warrant is "reasonably believed or likely to be". As I have explained, none of the provisions of the Surveillance Devices Act at the time of issue of the warrant required the place a specified person is or is likely to be to be identified in the warrant.
20. Section 18(2) is clearly expressed in unmistakable and unambiguous language. A warrant authorising "the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown" authorised the installation of a surveillance device in premises where the person is reasonably believed to be or likely to be.
21. Section 18(3) of the Surveillance Devices Act sets out further matters clearly expressed in unmistakable and unambiguous language that are authorised by a surveillance device warrant. Section 18(3) provides: (3) Each surveillance device warrant also authorises: (a) the retrieval of the surveillance device; and (b) the installation, use, maintenance and retrieval of enhancement equipment in relation to the surveillance device; and (c) the temporary removal of an object or vehicle from premises for the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object or vehicle to the premises; and (d) the breaking open of anything for the installation, maintenance or retrieval of the surveillance device or enhancement equipment; and (e) the connection of the surveillance device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment; and (f) the connection of the surveillance device or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the device or equipment; and (g) the provision of assistance or technical expertise to the law enforcement officer primarily responsible for the execution of the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment.
22. Section 18(4) is in different terms. It sets out what a surveillance device warrant may authorise in relation to concealing the installation, maintenance, use or retrieval of a warrant. It provides: (4) A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant.
23. Section 18(5), which is at the heart of this application, sets out what a surveillance device warrant may authorise in relation to the interference with property of a person who is "not the subject of the investigation" on "premises not specified in the warrant". The section provides the issuing officer with the power to authorise such interference with property, subject to being satisfied the interference is necessary in order to give effect to the warrant. Section 18(5) provides: (5) A surveillance device warrant may authorise the interference with property of a person who is not the subject of the investigation in respect of which the warrant was issued but, if the interference would be on premises not specified in the warrant, only if the person issuing the warrant is satisfied that it is necessary to do so in order to give effect to the warrant.
24. Section 18(6) confirms that a surveillance device may only be used by a law enforcement officer in the performance of his or her duty. Finally, s 18(7) confirms that s 18 does not authorise the doing of anything for which a warrant is required by the Telecommunications (Interception and Access) Act 1979 (Cth).
25. There are some remaining features of the Surveillance Devices Act which should be noticed and to which I will return. The admissibility of evidence or information obtained pursuant to a surveillance device warrant is governed principally by the terms of the Surveillance Devices Act. Section 45 contains a general prohibition on the use of protected information, except in certain identified circumstances. Section 65 sets out when evidence obtained pursuant to the purported authority of a warrant may nevertheless be used and admitted into evidence.
26. The text of ss 18(2) and 18(3) provided and provides in "unmistakable and unambiguous language" a statutory permission to install a surveillance device in the case of a specified person warrant identified in s 18(1)(c) "on premises where the person [the subject of the warrant] is reasonably believed to be or likely to be". The applicants accepted that, unless s 18(5) reads down or qualifies the clear permission provided by ss 18(2) and 18(3), their argument could not succeed and the Australian Federal Police were given the necessary statutory permission to install the devices at Clamenz Lawyers pursuant to SD6116.
27. As I have said, it is clear in the text of the Surveillance Devices Act that a warrant of the kind referred to in s 18(1)(c) is not required by any provision of the Surveillance Devices Act to identify the premises (if any) where devices authorised by the warrant may in the future be installed. The applicants accepted that the "reasonable belief" referred to in s 18(2) permitting the entry onto premises to install a device must be that of the officer authorised by the warrant to install the device at the time the device is installed (albeit, determined objectively). Indeed, in the earlier application for disclosure (Cranston (No 2)), it was the applicants' case that a reasonable belief of the type required on the part of the AFP had not been shown at the time the warrant was installed, merely a belief that Adam Cranston "might" be at the place the devices were installed.
28. The applicants' case on the present application is that s 18(5) operates to qualify the statutory permission to enter premises granted by section 18(2)(c)(i): "HIS HONOUR: … is it common ground that unless 18(5) operates to qualify it, we are just looking at the text of 18(2), that it, on its face, permits the installation of warrants on Clamenz Lawyers lease or licensed premises? BRUCKNER: Yes."
29. I have concluded that s 18(5) does not have the effect contended for by the applicants. By s 18(2)(a), a warrant of the kind identified in s 18(1)(a) authorises installation of a device at "the premises" and "onto other specified premises adjoining or providing access to the premises". That is, the warrant itself must identify the premises which may be entered.
30. Section 18(2)(c) contains no such express or implied requirement. To require a specific s 18(5) authorisation to be included in a warrant of the kind described in s 18(1)(c) as a condition of the exercise of the express statutory authorisation to enter premises in s 18(2)(c) gives rise to an incoherence in the operation of the provisions. The Surveillance Devices Act carefully sets out and describes in detail the types of warrants which may be issued, the information which must be included in an application to obtain a warrant, the considerations an issuing officer must take into account and the information that warrants of a particular kind must include on their face. The Surveillance Devices Act sets out in detail the procedures necessary to be followed by law enforcement officers to obtain warrants. None of the provisions of the Surveillance Devices Act governing the application for, or issue of, a warrant of a kind referred to in s 18(1)(c) of the Act require information about, or identification of, any "premises" where the specified person is or may be found.
31. A warrant issued following the procedures clearly set out in the Surveillance Devices Act provides in ss 18(2) and (3) a clearly expressed authorisation in unmistakable and unambiguous language to install a device on premises where the person the subject of the warrant "is reasonably believed to be or likely to be."
32. It would be contrary to that unambiguous statutory authorisation to install a warrant on premises where the person described in the warrant was reasonably believed to be if the validity of the warrant was subject to an implied reading down of the s 18(2) authorisation to install the warrant effected by s 18(5). If the applicants' argument were correct, a warrant of the kind in s 18(1)(c) issued in respect of a specified person would also need to identify specified premises before a device could be installed in those premises. If that were the correct construction of the Surveillance Devices Act ss 18(2)(b) and 18(2)(c) would be unnecessary or at least would have a very limited operation, permitting the installation of a device only where a device issued in relation to a person or an object was not planned to be, and could not be, installed in "premises" as defined. If a warrant of the kind in s 18(1)(c) issued in respect of a specified person is limited in its operation to installation other than on "premises" as defined, the express permission in s 18(2) to install, use and maintain a surveillance device on premises where the person is reasonably believed to be or likely to be would be unnecessary.
33. The final words of s 18(5) "if the interference would be on premises not specified in the warrant" are also important. Those words indicate the necessary state of knowledge that must exist at the time the warrant is issued; that interference with property "would be" on premises not specified in the warrant. A warrant authorising "the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown", in the context it appears, contemplates that the officer seeking the warrant and the issuing officer will not know at the time of issue of the warrant where in the next 90 days that the identified person will be or will likely be. Section 18(5) addresses a case where the officer seeking the warrant and the issuing officer are able to identify the premises where there "would be" an interference with property rights by installation of a device.
34. The unambiguous language of ss 18(1)(c) and 18(2)(c) does not require the existence of any belief on the part of the officer seeking the warrant or the issuing officer at the time of issue of the warrant about whether the specified person "would be" on any identified premises. This is a further indication that the authorisation in unmistakable and unambiguous language in s 18(2)(c) to install a device on premises where the person the subject of the warrant "is reasonably believed to be or likely to be" at the time a device is installed should not be read down by an implication derived from s 18(5).
35. Section 18(5) has work to do without providing any overarching restraint upon the authorisation granted by ss 18(2)(b) and 18(2)(c). Section 18(5) applies in a case where there "would be" interference with premises not specified in the warrant. In context, that is an important indication in the text that s 18(5) applies only to a warrant where premises have been specified. As I have explained, only warrants of the kind identified in s 18(1)(a) are required to specify any premises. Section 18(5) provides a mechanism in the case of a specified premises warrant to extend the statutory permission to install devices beyond the premises specified (and those adjoining those premises) to include premises not specified in the warrant where an issuing officer is persuaded that there "would be" interference with other premises and the extension is needed for the effective execution of the warrant.
36. SD6116 was issued pursuant to s 16(1)(a) of the Surveillance Devices Act. Pursuant to s 18(1)(c) of that Act, the warrant authorised the use of a surveillance device or devices in respect of the conversations, activities or location of the person specified in the warrant. SD6116 set out the subject matter of the warrant being the conversations, activities or location of Adam Cranston, the type of devices that may be installed and the number of devices that may be installed. SD6116 specified the conditions under which premises may be entered, or a surveillance device may be used, under the warrant as "NIL".
37. SD6116, when read together with the authorisations in ss 18(2) and 18(3), therefore authorised: 1. the installation and use of a surveillance device, or surveillance devices, on premises where Adam Cranston was reasonably believed to be or likely to be: SD6116 and s 18(2)(c)(i); 2. the entry, by force if necessary, onto those premises (i.e. where Adam Cranston was reasonably believed to be or likely to be) or other premises adjoining or providing access to those premises, for the purposes of installing, using, maintaining and retrieving the device: SD6116 and s 18(2)(c)(ii); 3. the breaking open of anything for the installation, maintenance or retrieval of the surveillance device or enhancement equipment: s 18(3)(d); and 4. the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant: SD6116 and s 18(4).
38. I find that the conduct of installing the surveillance devices under SD6116 at Clamenz Lawyers was authorised by the "unmistakable and unambiguous language" of ss 18(2) and 18(3) of the Surveillance Devices Act, and the language of the warrant itself.

Protected information

1. I have considered whether I should address the admissibility of the material gathered by the devices installed under the authority of SD6116 on the contingent hypothesis that I am wrong. There are real difficulties in doing so but, nonetheless, I will attempt to answer the question of admissibility on that contingent hypothesis.
2. The starting point is the concept of protected information. Section 44 of the Surveillance Devices Act defines protected information. Relevantly, it provided: (1) In this Act: protected information means: (a) any information obtained from the use of a surveillance device under a warrant, an emergency authorisation or a tracking device authorisation; or … (c) any other information obtained by a law enforcement officer: (i) without the authority of a warrant or a tracking device authorisation; or (ii) without the authority of an emergency authorisation that was subsequently approved; or (iii) in a case where the information was obtained through the use of a surveillance device in a foreign country, or on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limit of Australia's territorial sea - without the agreement of the appropriate consenting official of that foreign country, and of any other foreign country, whose agreement is required under section 42; in contravention of the requirement for such a warrant, tracking device authorisation or emergency authorisation.
3. Section 45 set out the general prohibition on the use of protected information: s 45(1), including prohibiting its use as evidence in any proceedings: s 45(3). Section 45 then provided for exceptions to those prohibitions, in particular, in relation to the investigation and prosecution of a relevant offence: s 45(5).
4. Section 45 relevantly provided: 45 Prohibition on use, recording, communication or publication of protected information or its admission in evidence (1) A person commits an offence if: (a) the person uses, records, communicates or publishes any information; and (b) the information is protected information; and (c) the use, recording, communication or publication of the information is not permitted by this section or section 45A (which deals with information relating to integrity operations). Penalty: Imprisonment for 2 years. … (3) Subject to subsections (4) and (5), protected information may not be admitted in evidence in any proceedings. … (5) Protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes: (a) the investigation of a relevant offence (including a State or Territory relevant offence but not including a relevant offence referred to in paragraph (d) or (i)) or the making of a report on the outcome of such an investigation; (b) the making of a decision whether or not to bring a prosecution for a relevant offence (including a State or Territory relevant offence but not including a relevant offence referred to in paragraph (d) or (i)); (c) a relevant proceeding (including State or Territory relevant proceedings but not including a relevant proceeding in respect of a relevant offence referred to in paragraph (d) or (i)); …
5. The definition of relevant offence is found in s 6. Relevantly, it meant "an offence against the law of the Commonwealth that is punishable by a maximum term of imprisonment of 3 years or more or for life". A relevant proceeding is defined in s 6 to mean "the prosecution of a relevant offence".
6. Each of the offences in the indictment is a relevant offence within the meaning of the Surveillance Devices Act, and the present proceeding is a relevant proceeding. Despite the inclusion of information obtained in purported authority of a warrant within the meaning of protected information in s 44(1)(d), by operation of s 45(6), information of the kind referred to in s 44(1)(d), that is information obtained in contravention of the requirement of a warrant, may not be given in evidence.
7. Section 45(6) provided: (6) Paragraphs (4)(f) and (5)(a), (b) and (c) do not authorise: (a) the use, recording, communication or publication of information of the kind referred to in paragraph (d) of the definition of protected information in section 44; or (b) the giving in evidence of protected information of the kind referred to in paragraph (d) of that definition; regardless of whether that information is also information of the kind referred to in paragraph (b) or (c) of that definition.
8. Section 65 provides a further exception to that exception in circumstances where there is a warrant and where the nature of the contravention that results in the information falling within the meaning of s 44(1)(d) is something other than a "substantial defect or irregularity".
9. The maximum penalty for conspiring to defraud the Commonwealth is 10 years' imprisonment. The maximum penalty for conspiring to deal in the proceeds of crime worth $1,000,000 or more is 25 years' imprisonment.
10. Section 65(1) provided that information purportedly obtained through the use of a device authorised by a warrant (i.e. there must be a warrant for s 65 to apply), may be given in evidence in certain circumstances. It reads (and provided at the relevant time): 65 Minor defects in connection with warrant or other authority (1) If: (a) information or a record is purportedly obtained through the use of a surveillance device authorised by a warrant, emergency authorisation or tracking device authorisation; and (b) there is a defect or irregularity in relation to the warrant, emergency authorisation or tracking device authorisation; and (c) but for that defect or irregularity, the warrant, emergency authorisation or tracking device authorisation would be a sufficient authority for the use of that surveillance device in obtaining that information or record; then: (d) the use of that device is to be treated as being as valid; and (e) the information or record obtained through that use may be dealt with, or given in evidence in any proceeding; as if the warrant, emergency authorisation or tracking device authorisation did not have that defect or irregularity.
11. The effect of s 65(1) is that if a warrant exists and but for the relevant defect would have authorised the use, then the use of the device is to be treated as valid and the information may be used or given in evidence.
12. Section 65(2) explains the concept of a "defect or irregularity". It provided: (2) A reference in subsection (1) to a defect or irregularity in relation to the warrant, emergency authorisation or tracking device authorisation 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 that warrant, emergency authorisation or tracking device authorisation; or (b) in connection with the execution of that warrant, emergency authorisation or tracking device authorisation, or the purported execution of a document purporting to be that warrant, emergency authorisation or tracking device authorisation.
13. In cases where the defect or irregularity is substantial, the combined effect of ss 44, 45 and 65 mean that any such protected information cannot be admitted in evidence in court. However, in cases where the defect or irregularity is other than "substantial", the information is to be treated as if there was no such defect or irregularity.
14. On its face, SD6116 does not authorise the entry onto any premises. As I have explained, s 18(2)(c) contained the relevant authorisation to enter the premises. "The premises" in s 18(2)(c)(ii) are the premises where the person is reasonably believed to be or likely to be. They were not "specified", nor were they required to be specified.
15. In this part of the judgment, however, I am addressing the applicants' motion on the contingent hypothesis that the applicants' submission about the construction of s 18(5) is correct. I have concluded that if s 18(5) operates to read down the unmistakable and unambiguous language of s 18(2), such that the warrant(s) contain a defect on their face, being the non-appearance of authorisation under s 18(5) for the entry onto particular premises, the defect or irregularity in SD6116 is "substantial".
16. Given that contingent conclusion, the combined effect of ss 44, 45 and 65 is that any such protected information could not be admitted in evidence. If the applicants' construction of s 18(5) of the Surveillance Devices Act were correct, I would exclude from evidence all of the material identified in the notice of motion described at [8] above.

Excessive execution

1. In R v Cranston (No 2) I addressed the applicants' claim that a stay should be granted to permit disclosure of material which was before the issuing officer for warrants SD6116 and SD6400. I declined to grant a stay and dismissed the applicants' motion. My reasoning in Cranston (No 2) may be summarised as follows: 1. I was bound by Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142 and the cases referred to in that case to conclude that the applicants could not go behind the face of the warrant and obtain a stay until disclosure of material presented to the issuing officer was given. This was the ratio of Cranston (No 2); 2. on the contingent hypothesis that the Court was permitted to go behind the face of the warrant, I would not in any event order a stay pending disclosure. This was because, on the reasoning in Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839 which was equally applicable to the Surveillance Devices Act, surveillance device warrants are not invalid merely by reason of their being deployed in circumstances where privileged material may be recorded. I concluded that nothing on the face of SD6116 prohibited installation of surveillance devices at Clamenz Lawyers, being a place that viewed objectively at the time of installing the devices, Adam Cranston was likely to be; and 3. on the further contingent hypothesis that the Court was permitted to go behind face of the warrant and that there was a principle that a surveillance device warrant issued under the Surveillance Devices Act did not permit the installation of a surveillance device in a lawyer's office by reason of a risk that privileged material may be recorded, that principle did not apply where the relevant lawyer, Mr Menon, was allegedly a central participant in the crime being investigated by use of the surveillance device.
2. The applicants' submission about "excessive execution" of SD6116 jumped straight to the third issue. The unstated premise for the applicants' argument about excessive execution was that there was a principle that a surveillance device warrant, otherwise valid on its face, issued under the Surveillance Devices Act did not permit the installation of a surveillance device in a lawyer's office by reason of a risk that privileged material may be recorded.
3. I remain of the view expressed in Cranston (No 2) that the reasoning in Carmody v McKellar is equally applicable to the Surveillance Devices Act, and that surveillance device warrants issued under the Surveillance Devices Act are not invalid merely by reason of their being deployed in circumstances where privileged material may be recorded. I have concluded that nothing on the face of SD6116 prohibited installation of surveillance devices at Clamenz Lawyers, being a place that viewed objectively, Adam Cranston was likely to be. Put in terms of the applicants' motion, it was not demonstrated that the installation of four devices at Clamenz Lawyers under the authority of SD6116 constituted "excessive execution" such that the recordings thereby obtained became inadmissible.
4. On the contingent hypothesis that I am wrong in that conclusion, and, as the applicants' submitted, "excessive execution" of the warrant would be demonstrated by the mere fact of installation of a surveillance device in a lawyer's office where privileged material may be recorded, I will address the further submission of the applicants. It was submitted that I should conclude that as a specified person warrant for Mr Menon was only issued on 25 January 2017, Mr Menon was not believed to be implicated in the offending or a central participant in the offending until after that date. I am not prepared to draw that conclusion. That, in a practical sense, is the end of this part of the application.
5. Whilst there is merit in the complaint by the Crown that the applicants did not provide an explanation of what "excessive execution" actually means, I will consider this aspect of the complaint in any event. That is, I will consider the applicants' case on the contingent hypothesis that surveillance device warrants issued under the Surveillance Devices Act may be invalid merely by reason of "excessive execution" in circumstances where devices are installed in circumstances where privileged material may be recorded.
6. I have concluded that even on this contingent hypothesis both the number of devices and the installation of them in the board rooms of Clamenz Lawyers were authorised by SD6116.

SD6116 permitted the installation of multiple devices

1. The first issue is the number of devices installed. SD6116 authorised "the use of more than one surveillance device if that is necessary to give effect to this warrant" and, by operation of s 18(2)(c), the warrant authorised the installation of a device or devices on premises where Adam Cranston was reasonably believed to be or was likely to be.
2. The applicants submitted that the total of four devices installed in all the conference rooms of Clamenz Lawyers was "excessive". SD6116, however, permitted the installation of more than one device. Installation of devices in multiple rooms proved objectively to be necessary to give effect to the warrant. I am not persuaded there is any evidence that Adam Cranston was not either reasonably believed to be or likely to be in the places within the offices of Clamenz Lawyers where the devices were installed. That much is made clear by his presence in both the Opera Room and the Bridge Room on the day after the installation of the devices, and throughout the operation of the devices, discussing matters relevant to the subject offences.
3. It has not been shown that the installation of multiple devices was other than "necessary" regardless of whether the "premises" are identified as each individual room or the offices of Clamenz Lawyers more generally.
4. If each individual meeting room is considered to be the "premises" (being "a part of a building"), I find that the only requirement of the Surveillance Devices Act here relevant was that the person to whom the warrant was issued had a reasonable belief Adam Cranston was going to be there or that it was likely he was going to be there, and that it was necessary to give effect to the purpose of the warrant to install the device. There is no reason to think that such a reasonable belief did not exist. The installations of the four devices was authorised.
5. Similarly, if the "premises" be the offices of Clamenz Lawyers (again, being "part of a building"), the only requirement of the Surveillance Devices Act here relevant was that the person to whom the warrant was issued had a reasonable belief Adam Cranston was going to be there or it was likely he was going to be there, and it was necessary to give effect to the purpose of the warrant to install the devices. It has not been shown that such a reasonable belief did not exist.
6. Accepting for the purposes of argument that at some point it might not be "necessary to give effect to the warrant" to install any further devices, the installation here of four devices in three rooms does not cross that threshold.

SD6116 permitted the installation of devices at Clamenz Lawyers

1. SD6116 authorised the installation of surveillance devices at premises where Adam Cranston was either believed to be or likely to be. That Adam Cranston was present in the offices of Clamenz Lawyers and at least in the Opera Room and the Bridge Room in the days and weeks after the devices were installed is not consistent with the contention that the AFP had an insufficient basis for a reasonable belief that he was likely to be there, or that it was unnecessary to install multiple devices. I find that there is no reason to conclude that such a reasonable belief did not exist.
2. As I have explained, it is the belief or expectation about the location of the person the subject of the warrant that is relevant, not the nature of that location, or the other persons with whom the specified person is speaking.
3. I remain of the view that the fact that devices were installed in a law firm is not relevant. The warrant authorised the recording of conversations between Adam Cranston and any of his legal advisers: Carmody v MacKeller. As I said in Cranston (No 2) at [145]: "[145] Further, as the Full Federal Court held in Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839 (Black CJ Lindgren and Sackville JJ) legal professional privilege is excluded, by implication, from the operation of the warrant provisions in the TI Act (as it was at that time) and the surveillance device warrant provisions in the Customs Act 1901 (Cth). The same reasoning applies to warrants issued pursuant to the SD Act, which by their operation exclude client legal privilege in so far as conversations may be recorded."
4. On the contingent hypothesis that I am wrong in this conclusion, I will consider the applicants' submission that the installation of surveillance devices in the offices of a law firm is "excessive" per se. On this topic in Cranston (No 3) at [35] I said: "[35] I do not accept that there is any basis in the authorities to conclude that the installation of a surveillance device in a lawyer's office, permitted by the terms of a SD Act warrant, where that lawyer is alleged to be a central participant in ongoing criminal conduct, amounts to 'excessive execution' of the warrant. The applicants' submission failed adequately to grapple with the decision of the Full Federal Court in Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839 (Black CJ, Lindgren and Sackville JJ) which determined that legal professional privilege is excluded, by implication, from the operation of the warrant provisions in the TI Act (as it was at that time) and the surveillance device warrant provisions in the Customs Act 1901 (Cth). The same reasoning applies to warrants issued pursuant to the SD Act, which by their operation exclude client legal privilege in so far as conversations may be recorded. At least where a lawyer is alleged to be a central participant in ongoing criminal conduct, there is no reason to think that the installation of an SD Act warrant in the conference rooms of that lawyer's firm amounts, for that reason alone, to excessive execution of a warrant."
5. It remains my view that, at least where a lawyer is alleged to be a central participant in ongoing criminal conduct, there is no reason to think that the installation of a Surveillance Devices Act warrant in the conference rooms of that lawyer's firm amounts, for that reason alone, to excessive execution of a warrant. It does not follow from that passage, or a similar passage in Cranston (No 2), that in a case where a lawyer is not alleged to be a central participant in ongoing criminal conduct that it follows that if a surveillance device is installed in that lawyer's firm, "excessive execution" is thereby made out.
6. I accept that there may be cases where installation of a surveillance device in a lawyer's office may amount to "excessive execution" by reference to the principles of accusatorial justice: see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39. A device installed after a person has been charged would give rise to significant issues. It was also accepted by the Crown that in a case, unlike the present, where the surveillance device recorded a privileged conversation, evidence of that conversation would be inadmissible and the investigative and prosecution teams would need to be separate: see in a different context R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 232 A Crim R 249. None of these issues arise here.
7. If this was a case in which installation of a device in a lawyer's office could per se amount to excessive execution, I remain of the view that any such principle could not apply in this case where there was information available to the AFP from which they could reasonably conclude that the lawyer, Mr Menon, was a central participant in ongoing criminal conduct.
8. The applicants' response to this finding was that because a specified person warrant for Mr Menon was only issued on 25 January 2017, Mr Menon was not known to be implicated in the offending or believed to be a central participant in the offending until that date. I am not satisfied that this is correct. I find that evidence obtained pursuant to warrants granted under the Telecommunications (Interception and Access) Act provide a basis from at least 6 October 2016 for the AFP reasonably to conclude that Mr Menon was implicated in the offending alleged.
9. Even if I am wrong in my principal conclusion, and the installation of a surveillance device in a lawyer's office is, for that reason also, capable of amounting to "excessive execution" of the warrant, such a principle did not apply in the present case.
10. Finally, I should record that in dealing with this motion I have not found it necessary to reason by reference to what was submitted may have been an admission. It is unnecessary in those circumstances to determine whether an admission was made or whether leave should be given to withdraw that admission.

Conclusion and orders

1. For the foregoing reasons I make the following order: 1. The notice of motion filed on 28 October 2020 is dismissed.

Endnote

1. Section 18 has not been amended since the relevant time.

Amendments 22 March 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2023