R v W J Eade

Were the Warrants Invalid? 36 Part 4 of the Listening Devices Act, 1984, deals with warrants. It includes the following provisions: "S16(1) Upon application by a person that the person suspects or believes - (a) that a prescribed offence has been, is about to be or is likely to be committed; and (b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary, an eligible Judge may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device. ….. S16(3) Where a warrant granted by an eligible Judge under this section authorises the installation of a listening device on any premises, the eligible Judge shall, by the warrant - (a) authorise and require the retrieval of the listening device; and (b) authorise entry onto those premises for the purpose of that installation and retrieval. S16(4) A warrant granted by an eligible Judge under this section shall specify - (a) the prescribed offence in respect of which the warrant is granted; (b) where practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant; (c) the period (being a period not exceeding 21 days) during which the warrant is in force; (d) the name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person; (e) where practicable, the premises on which a listening device is to be installed, or the place at which a listening device is to be used, pursuant to the warrant; (f) any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant; and (g) the time within which the person authorised to use a listening device pursuant to the warrant is required to report pursuant to section 19 to the eligible Judge and the Attorney General." 37 Here, the warrants authorised the installation of listening devices in the premises of Ms Hart. They also authorised their retrieval. They fixed a period during which the warrants were in force. However, the warrants did not require the retrieval of the listening devices. 38 As mentioned, in Bayeh v Taylor & Ors (supra), Grove J considered warrants which were in similar form. His Honour drew attention to Ousley v The Queen (1997) 192 CLR 69. That case concerned the Listening Devices Act, 1969 (Vic), s4A(3) and s4A(4). These are the companion provisions to s16(3) and s16(4) of the New South Wales statute. The only difference between the two statutes is that s16(3) of the New South Wales Act, uses the word "shall", whereas s4A(3) of the Victorian Act, uses the word "must". That being the context, Gummow J in Ousley v The Queen (supra) said this: (at 127) "Subsections (3) and (4) list certain matters that 'must' be specified in a warrant granted under the Act. The requirements of s4A(3) only apply if a warrant granted by the Supreme Court authorises the installation of a listening device on any premises. The requirements of s4A(4) apply to every warrant granted by the Supreme Court under s4A. The appellant did not suggest that either of the warrants failed to specify any of the matters that those subsections require on the fact of the warrant. The matters listed in subss 4A(3) and (4) constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be a 'warrant granted under section 4A' within the terms of s4(3) of the Act." 39 Grove J, emphasising the words "by the warrant" in s16(3), determined that the failure to require the retrieval of the listening devices meant that the warrants were invalid. He said this: (at p18) "The plaintiff's contention in respect to the omission of the statement requiring retrieval of the listening device must be upheld. By the warrant, authority is given to retrieve it. Authorisation inheres no obligation to act and a person authorised may or may not choose so to do. A requirement to retrieve the device removes that choice. By the warrant, there must be no choice, there must be a requirement to retrieve the device. None of the warrants complies with s16(3) and as they relate to premises they are each therefore invalid." 40 That conclusion, with respect, was plainly right. It has direct application to the warrants relied upon by the Crown against Mr Eade. They, likewise, are invalid, as Kinchington DCJ held. The Crown, in its submissions to this Court, did not suggest otherwise.

The Scheme of the Listening Devices Act 41 What are the consequences of invalidity of a warrant in terms of the admissibility of evidence obtained under that warrant? The Listening Devices Act, 1984, contains a general prohibition against the use of Listening Devices to record private conversations. Section 5 is in these terms: "S5(1) A person shall not use, or cause to be used, a listening device - (a) to record or listen to a private conversation to which the person is not a party; or (b) to record a private conversation to which the person is a party." 42 The term "party" is defined as follows: " party in relation to a private conversation, means - (a) a person by or to whom words are spoken in the course of the conversation; or (b) a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words." 43 There is also a definition of the term "principal party" which is as follows: " principal party in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation." 44 The words "private conversation" are defined in these terms: " private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only - (a) by themselves; or (b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so." 45 There are a number of exceptions to the prohibition in s5(1), including the following: "S5(2) Subsection (1) does not apply to - (a) the use of a listening device pursuant to a warrant granted under Part 4." 46 None of the other exceptions is relevant. The exception in s5(2)(a), of course, presupposes a valid warrant, whereas there was none in this case. 47 Part 3 of the Act is headed "Admissibility of Evidence". It includes the following provisions: "S12 In this Part, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation. S13(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5 - (a) evidence of the conversation; and (b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person, may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail). S13(2) Subsection (1) does not render any evidence inadmissible - (a) if all of the principal parties to the private conversation concerned consent to the evidence being given; (b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner; (c) in proceedings for an offence against this Act or the regulations; or (d) in proceedings for - (i) an offence punishable by imprisonment for life or for 20 years or more; or (ii) a serious narcotics offence, or in proceedings for or in connection with the grant of bail in any such proceedings) if the court considers that the evidence should be admissible. S13(3) In determining whether to admit evidence as referred to in subsection (2)(d), the court shall - (a) be guided by the public interest, including where relevant the public interest in - (i) upholding the law; (ii) protecting people from illegal or unfair treatment; and (iii) punishing those guilty of offences; and

(b) have regard to all relevant matters, including - (i) the seriousness of the offence in relation to which the evidence sought to be admitted; and (ii) the nature of the contravention of section 5 concerned." 48 A definition is provided of the term "serious narcotic offence". That definition, relevantly, is in these terms: " serious narcotics offence means - (a) an offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985;" 49 Inciting the supply of the drug Ecstacy (as alleged against Mr Eade in the first count) is a "serious narcotic offence" for the purposes of s13(2)(d)(ii) of the Act.

The Contentions Made on Behalf of Mr Eade 50 The written submissions made on behalf of Mr Eade made a distinction between the two charges which he faced. 51 In respect of count 1 (inciting the supply of the prohibited drug Ecstacy), counsel for Mr Eade made the following submission: "… a charge of inciting the supply of a prohibited drug is, at least potentially, a serious narcotics offence within the definition contained in s3 of the Listening Devices Act. In those circumstances there is a discretion arising under the provisions of s13 of the Listening Devices Act as to whether the evidence, although unlawfully obtained, might be admitted as a matter of discretion." 52 In respect of count 2 (alleging false testimony before the Royal Commission), the following was said: "If the recording is unlawful, evidence of that recording cannot be introduced unless one of the exceptions to s13 of the Listening Devices Act, 1984, can be invoked. For the charge of giving false evidence, there is nothing available under s13 to enable the evidence to be admitted."

The Construction of Section 13 of the Listening Devices Act. 53 Section 13 of the Listening Devices Act is an odd provision. The heading is in these terms: "Inadmissibility of evidence of private conversations when unlawfully obtained." 54 That heading rather suggests an intention on the part of the legislature to render inadmissible (subject to exceptions) all evidence of private conversations unlawfully obtained. The Second Reading Speech of the Attorney General encourages a similar view. The Attorney General (Mr Landa) said this: (Hansard 17 May 1984, p1094) "Clause 13 will render evidence inadmissible in civil or criminal proceedings if it was obtained by the unlawful use of a listening device, whether directly or indirectly. The clause, however, will enable any such evidence to be admissible if, among other things, the parties consent or, in the case of certain serious offences, the court in special circumstances so determines." 55 However, the extrinsic material, and the heading, are useful only where there is ambiguity. Here, on the Crown's submission, there is none. The Crown pointed to the opening words of s13(1) which, for convenience, I repeat: "S13(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5 …." 56 That section is not dealing with evidence by a party concerning a conversation in which he or she was a participant. In Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167, the Court (Priestley and Powell JJA, and Foster AJA), construing s13(1), said this: (at 11) "… the opponent (John Marsden), besides being a principal party to the conversation, had also listened to the recorded conversation after the tape had been made available to him and his representatives during the course of the trial and also had had access to the transcript of the tape. In our opinion, as a matter of construction, the section does not apply in the circumstances. The recorded conversation was a ' private conversation' as defined in s3 of the Act and the opponent and Elomari were each a ' principal party ' to it. In our opinion the section does not apply where the ' person called to give the evidence ' is a ' principal party ' to the private conversation. The conversation could not be said to ' come to the knowledge ' of such a party. He had knowledge of the private conversation directly and contemporaneously as a participant in it. The person contemplated by the section is one who acquires knowledge of it other than as a participant in it. It would apply to someone overhearing the conversation or acquiring knowledge of it in some way other than through the use of a listening device." (parenthesis added) 57 See also Wood J in R v Ellis Hill (23 February 1988, unreported, at 21-22); Graham DCJ R v Zubrecky (unreported, 22 February 1991 at 17ff); cf Violi & Ors v Berrivale Orchards Ltd ((2000) 173 ALR 518 at 528).

The Transcript and Tape 58 The issue of admissibility having been raised before the trial, it was not entirely clear how the Crown intended to introduce the audio and video material. It would, presumably, seek its tender through Ms Hart, or a police officer responsible for the Listening Device. Is there any inhibition upon the reception of such evidence? The warrant being invalid, the tape has been illegally obtained (s5(1)(b)). Since, however, it was made with the complicity of Ms Hart, it may be used in the course of legal proceedings (s7(2)(b)). The Act does not prohibit its use. Its admissibility must be determined according to s138 of the Evidence Act, 1995. That section is in these terms: "S138(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained." 59 In determining that issue, the Court is obliged to consider, amongst other things, the matters identified by s138(3). That section is in these terms: "S138(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 60 These issues will, no doubt, call for findings of fact, made on the balance of probabilities (s142 Evidence Act). It is for the Crown to satisfy the Court, in the light of those facts, that the desirability of admitting the evidence outweighs the undesirability (cf ALRC 26, Vol 1, para 959). 61 His Honour, whilst not specifically adverting to s138, plainly recognised the need to balance competing interests. He said this: "It is clear that in criminal proceedings there is a public interest in ensuring that reliable evidence of an accused person's guilt should be admitted into evidence at his trial for the consideration of the tribunal of fact. Conversely that public interest also requires a trial Judge to look at the circumstances in which the questioned evidence may have been obtained because there is certainly a public interest in minimising the extent to which law enforcement agencies will be allowed to act outside the scope of their lawful authority. Indeed it seems to me that the principles enunciated by the High Court in Bunning v Cross and Ridgeway v The Queen as well as the Evidence Act itself should always be borne in mind when a trial Judge comes to decide on how he/she should exercise his/her discretion in relation to what evidence should or should not be allowed to be placed before the jury in a criminal trial in the exercise of his/her discretion." 62 He determined that the evidence should not be excluded. His judgment on admissibility included the following: "While the taping of the subject conversations was unlawful in the sense that those tapings were not authorised in accordance with the Act to which I have previously referred this in my opinion is not a case where there was a calculated disregard for the law or any intentional or reckless illegality involved on the part of any law enforcement officer nor could it be said there will be any fundamental unfairness to the Accused if the evidence is allowed to be placed before the jury. On the contrary the conversations in question were recorded in good faith and would clearly entitle a jury to conclude that the Accused was involved in serious criminal activity." 63 His Honour's remarks, however, may suggest that he regarded the onus as being upon the accused to satisfy him, on balance, that the material should be excluded (cf s135 Evidence Act). He concluded his judgment with these words: "In these circumstances I am satisfied that I should not exercise my discretion in favour of the Accused and exclude the evidence from being placed before the jury. To my mind it is proper for the circumstances surrounding all four conversations to be led into evidence." 64 The issues arising under s138 must be redetermined. The Court should address (by reference, inter alia, to the matters identified in s138(3)) the precise issue raised by s138(1), namely, whether the desirability of admitting the evidence outweighs the undesirability (the onus being upon the Crown). 65 In view of the conclusion I have reached, I need not deal with the alternative argument of the Crown, which was directed towards count 1 (inciting the supply of the prohibited drug, Ecstacy). It was argued that, even if s13(1) applied, count 1 relates to a "serious narcotic offence". Evidence obtained under the invalid warrant would be admissible (s13(2)(d)(ii)), subject to the Court exercising the discretion provided by s13(3) of the Listening Devices Act, 1984.

Conclusion 66 Returning to the questions posed by Kinchington DCJ, I would suggest that they should be answered as follows:

2. Section 13 of the Listening Devices Act, 1984, does not exclude evidence by a principal party to the conversation which was illegally recorded. The admission of the recording must be determined under s138 of the Evidence Act, 1995, the onus being upon the Crown.

Order 67 I have had the advantage of reading the judgment of Priestley JA in draft. I agree with his Honour's reasons. Leaving aside the jurisdictional issue, and approaching the matter in the way in which it was argued, I would propose the following orders:

1. That the appeal against the refusal of stay be dismissed.

2. That the appeal in respect of the decision to admit evidence of the four conversations be upheld, and his Honour's ruling set aside.

3. That the matter be returned to the District Court to be determined according to law.

Since it is apparent that Kinchington DCJ certified that his judgment or order (in respect of which he stated two questions) was a proper one for determination on appeal, it is unnecessary for leave to be granted (s5F(3)). **********

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