REGINA v EID & ORS [1999] NSWCCA 59 | Case summary

3 ADAMS J: On 2 April 1996 Justice James issued a warrant to certain police under the Listening Devices Act 1984 for the purpose of investigating an alleged "offence of conspiracy to defraud, where the conduct constituting the offences involved and involves serious loss to the revenue of New South Wales." Conversations were recorded pursuant to the warrant. Although the warrant does not say so, the alleged conspiracy was an agreement to dishonestly avoid payment of tobacco licence fees required by s 41(1) of the Business Franchise Licences (Tobacco) Act 1987. This Act was declared unconstitutional by the High Court of Australia in Ha & Anor v NSW & ors; Hammond & Associates Pty Limited v NSW & ors (1996-1997 189 CLR 465) on 5 August 1997. In the result, charges were laid against the appellants for creating false statements of account under s 178BB of the Crimes Act 1900. It is not suggested that the warrant was issued for the purpose of investigating such an offence or pursuant to a suspicion of the relevant police officer that such an offence had been committed. When the charges came before the Local Court for the purpose of committal proceedings, the Crown intimated that it proposed to rely on the recorded conversations pursuant to the warrant. Objection was taken on the ground that the warrant was invalid and hence the evidence inadmissible. 4 The learned Magistrate upheld the prosecution submission that the warrant was valid upon the basis that the offence described in it was a prescribed offence. From that decision the appellants have appealed to this Court pursuant to s 5F of the Criminal Appeal Act 1912. That section applies to "proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court (s 5F(1)(a)). The appellants are authorised by sub-s 5F(3)(b) to appeal from an interlocutory judgment or order given or made in the proceedings if the Magistrate certifies that it is a proper one for determination on appeal. That certificate has been provided by the learned Magistrate in this case although there is some question whether the relevant warrant is that styled "91A of 1996" issued by Justice Hulme or, rather, as I have mentioned, the warrant styled "91B of 1996" issued by Justice James. However, in my opinion nothing turns on this question since the issues are identical. Accordingly, if the decision in question is a judgment or order it is unnecessary for this Court to give leave to appeal. 5 It has been submitted that the decision of the learned Magistrate that the relevant warrant was valid was effectively a ruling on the admissibility of evidence since what follows from her Worship's decision is that the evidence of conversations obtained pursuant to the warrant is inadmissible under s 13(1) of the Listening Devices Act 1984 (the Act). In R v Steffan (1993) 30 NSWLR 633 the Court said (at 636) - A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the courts. An order is a command by a court that something be done (or not done). 6 The distinction between interlocutory and final judgments or orders is immaterial, since s 5F itself excludes the distinction as relevant. In Steffan the court held that a ruling on evidence made in advance of or in the course of a trial (or, by parity of reasoning, in a committal proceeding), is not an interlocutory judgment or order within the meaning of the section. However, I do not see this authority as supporting the submission that merely because a decision (to use a neutral term) has evidentiary consequences it is therefore not an interlocutory judgment. The court pointed out, at all events, that "there may well be the rare case where a ruling upon the admissibility of evidence in favour of the accused would demonstrate a proper basis for a stay of proceedings, so that it would be appropriate to grant leave to appeal from a refusal of a stay in such a case notwithstanding that the principal legal issue which would be determined in the appeal was the admissibility of evidence: (1993) 30 NSWLR at 641. Indeed, this is what occurred in R v Bozatsis; R v Spanakis (1997) 97 A Crim R 296. Even so, that was in form and substance an appeal from an order permanently staying proceedings. The warrant issued in this case authorised police to do that which is otherwise unlawful under the Act: see s 5(1). In Ousley v The Queen (1997) 71 ALJR 1548, the question arose whether a trial judge had jurisdiction to undertake collateral review of the validity on its face of a warrant issued by the Supreme Court under the Listening Devices Act 1969 (Vic). It was held that the issue of such a warrant was not an exercise of judicial power, but was an administrative act. It seems to me necessarily implicit that a ruling on the question of validity would determine the question of the right of the police officer to have undertaken what the warrant permitted and have the same effect as an order quashing the warrant if collateral proceedings had been undertaken. It may be that orders made by the Local Court in committal proceedings do not create a res judicata having regard to their administrative character. I do not think it is necessary to decide this question for the purposes of disposing of this argument. Having regard to the jurisdiction conferred on this Court in relation to orders and judgments made in committal proceedings by s 5F, Criminal Appeal Act 1912, I am of the view that orders made by a magistrate exercising that jurisdiction may be the subject of appeal if, had they been made by a judge, an appeal would lie. The effect of the learned Magistrate's ruling was that the police had the legal right to do that which was otherwise unlawful, namely to interfere or intrude upon the private property where the listening device was placed and the listening to conversations which, by s 5 of the Act could not be listened to except pursuant to a valid warrant, that is to say an authorization which, pro tanto, qualified the rights which the appellants would otherwise have. In Coco v The Queen (1994) 179 CLR 427, it was held that a warrant issued pursuant to the Invasion of Privacy Act 1971 (Qld) was void for jurisdictional error. As McHugh J pointed out in Ousley (1997) 71 ALJR 1548 at 1564, it is implicit in the Court's reasons that the judge who presided at the trial of Coco was entitled to determine whether the warrant was validly issued. Such an implication was necessarily present in the reasoning of the Full Federal Court in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149. In Haynes v Attorney General (NSW) (unreported, NSWSC, 9 February 1996) James J ruled that he had jurisdiction to entertain an application for declarations that a number of warrants issued pursuant to the Listening Devices Act 1984 were invalid. Those proceedings were for declaratory relief and did not involve a collateral challenge. However, now that a collateral challenge may be taken in an appropriate case, it seems to me that the fact that validity is determined otherwise than by, for example, seeking declaratory orders does not affect the matter. Indeed, as McHugh J stated in Ousley (1997) 71 ALJR at 1563, "A litigant affected by an administrative act may challenge it collaterally even though the person most directly effected by it is not a party to the litigation." I do not read the other judgments in the High Court as suggesting that this principle is controversial. 7 Accordingly, I am of the view that the judgment of the learned Magistrate holding the warrant to be valid is an interlocutory judgment within the meaning of s 5F(3) of the Criminal Appeal Act 1912. 8 I now move to the substantive question at issue in this appeal. Section 16 (1) and (2) of the Listening Devices Act 1984 provide - (1) Upon application made 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. (2) In determining whether a warrant should be granted under this section, the eligible Judge shall have regard to: (a) the nature of the prescribed offence in respect of which the warrant is sought, (b) the extent to which the privacy of any person is likely to be affected, (c) alternative means of obtaining the evidence or information sought to be obtained, (d) the evidentiary value of any evidence sought to be obtained, and (e) any previous warrant sought or granted under this Part in connection with the same prescribed offence. 9 On its face, as I have pointed out, the prescribed offence is not qualified by reference to the Business Franchise Licenses (Tobacco) Act 1987. However, as I understand it, compliance with the requirements of s 16(2) would have disclosed that the nature of the prescribed offence was a conspiracy which was unlawful by virtue of that Act. The effect of the invalidity may be shortly stated; since the State of New South Wales was not entitled to any licence fee, an agreement by persons so to arrange things (even dishonestly) that such a fee was not payable could not deprive the State of anything. It has not been suggested that the basis for the charge was that the appellants had conspired to do that which is lawful by unlawful means, which may in certain circumstances amount to a criminal conspiracy: see Fisse, Howard's Criminal Law, 5th Ed (1990) at 356. 10 Neither the Magistrate nor this Court has been provided with the material provided to the issuing Judges for the purposes of s 2 of the Act but as the matter has been put before us in the way I have described I do not think that this matters. A "prescribed offence" as defined in s 15 of the Act as an offence that is punishable on indictment. That would certainly include an offence under s 178BB of the Crimes Act 1900. Section 16(4)(a) requires the warrant to specify "the prescribed offence in respect of which the warrant is granted". In these respects, the provisions of the Act are the same as those considered by the High Court in Ousley in connection with the Victorian counterpart legislation. In that case Toohey J considered that the enquiry by a trial judge as to the validity of a warrant cannot extend to an enquiry into the sufficiency of the material placed before the judge issuing the warrant (see 1997 71 ALJR 1548 at 1551, 1554). Gaudron J did not in terms consider this question although it seems to me to be implicit in her Honour's judgment that no more is required than that the trial judge require "that a warrant recite the matters on which its validity depends" ((1997) 71 ALJR at 1560). McHugh J was, however, of the view, applying Coco v The Queen (supra) that a "collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant", pointing out that in Coco the High Court held that the Judge, acting as persona designata, had no jurisdiction to issue the warrant by reason of errors that lay behind its issue ((1997) 71 ALJR at 1565). Gummow J was of the view that consideration of the validity of the warrant in collateral proceedings, such as a trial, was confined to a consideration of compliance with the statutory conditions relating to the form of the warrant. His Honour considered that such an enquiry was "distinct from a consideration of the nature or sufficiency of materials upon which the issuing judge based the grant of the warrants and that such arguments, based on the 'legal propriety' of a warrant may be tested in separate proceedings or judicial review", citing Grollo v Palmer (1995) 184 CLR 348 at 359 ((1997) 71 ALJR at 1579). In consequence, his Honour held that while the trial judge was required to determine whether the warrants were regularly granted pursuant to the specified statutory procedure, "the warrants were otherwise to be taken as effective until set aside in proceedings for judicial review" ((1997) 71 ALJR at 1581). Kirby J, whilst raising the material considerations, expressly found that it was unnecessary to decide the point ((1997) 71 ALJR at 1590 ff). 11 In the result, however, having regard to the way in which the matter was argued before the learned Magistrate and before us, the Crown concedes, in effect, that had the charge in the warrant been fully particularised, it would have disclosed that the conspiracy alleged was to defraud the Government of New South Wales of the licence fee to which it was entitled under the Act. The considerations relating to the fragmentation of criminal trails which might occur if parties are entitled to go behind the face of the warrant to consider the sufficiency of the material provided to the issuing judge does not seem to me to apply to a situation of this kind. Indeed, having regard to the view I have formed as to the validity of the warrant, to require proceedings for review to be undertaken would lead to an unnecessary and expensive multiplication of proceedings. Accordingly, I am of the view that this Court should consider the validity of the warrant upon the basis that the prescribed offence was particularised as it inevitably must have been, having regard to the candid disclosure by the Crown of its true basis. 12 This leads to the question whether the warrant is valid. As McHugh JA (as he then was) pointed out in Peters v Attorney General (1988) 84 ALR 319 at 331- The effect of an unconstitutional statute has not been authoritatively determined by the High Court. In South Australia v Commonwealth (1942) 65 CLR 373 at 408, however, Latham CJ said: "The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is valid ab initio". His Honour pointed out that this theory once represented the prevailing doctrine in the United States but his Honour's conclusion was that, "Australian constitutional theory seems to have generally proceeded upon the void ab initio doctrine", citing Antill Ranger & Co Pty Limited v Commissioner for Motor Transport (1955) 93 CLR 83 (HC) and (1956) 94 CLR 177 (PC) where his Honour considered that the reasoning of both courts seemed to have proceeded on the theory that the Act in question, once declared to be in breach of s 92 of the Constitution, was of no force or effect at any time (84 ALR at 333). The qualification mentioned by his Honour that "a judgment of a court of record would seem to be binding upon private parties until set aside upon appeal or judicial review even though the judgment was based on an unconstitutional statute" (ibid at 333) does not seem to me to be apt to the exercise of an administrative function albeit by a judge. In Peters the issue was whether there was a conflict between the Listening Devices Act 1984 and the Customs Act 1901 concerning warrants obtained to investigate narcotic offences. The Court held that there was a material inconsistency, although there was disagreement as to the extent and effect of it. The crucial question which arose, as to which there was a difference of opinion, was the extent to which s 109 of the Commonwealth Constitution effected the warrants. McHugh J, in a passage which I take to be uncontroversial, stated (85 ALR 319 at 334) - While inconsistency continues, the Listening Devices Act is to that extent inoperative but it is not void. It simply has no effect in respect of matters covered by 219B of the Customs Act . In the face of the constitutional directive that the Act is pro tanto inoperative, it is not possible for this court to say that, nevertheless, it has sufficient effect to validate the issue of warrants purporting to be made under it. There is no scope for any presumption of validity or "case to case doctrine" doctrine. Nor do the warrants obtain any validity because they were made by judicial order. As the Solicitor General for the Commonwealth, who intervened in the argument said, the stream cannot rise higher than its source. No doubt in other areas of law, an order of a superior court of general jurisdiction is valid until set aside even though it was made without authority. But in my opinion that doctrine has no application to acts done under legislation which the Constitution expressly declares to be inoperative. The constitutional directive in s 109 would be empty of content if acts done under ex parte judicial orders made under inoperative State legislation had the same effect as if the legislation was operative. 13 In Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 237 at 341, Latham CJ said - It is, I think, a serious error to suppose that a statute can begin life as a valid statute and then at some point of time become invalid because some person takes some action which he unsuccessfully attempts to justify under the Statute. The validity of the Act obviously cannot depend upon what people do, or think that they are entitled to do, under the Act. 14 I am of the view that the effect of the decision of the High Court in Ha declaring the Act invalid meant that it was invalid at the time of the issue of the warrant. It follows that the warrant was sought to investigate activities which were not contrary to the law. The warrant was therefore not authorised by the Act. It does not seem to me that those cases dealing with the issue of impossibility such as DPP v Nock [1978] AC 979 and R v Kingswell [1984] 3 NSWLR 373 apply. The Crown relied, in addition, on the decision of the New Zealand Court of Appeal in Sew How [1994] 1 NZLR 257, where it was held that persons could be guilty of conspiracy to defraud the revenue notwithstanding that the means adopted pursuant to the agreement were incapable of achieving their purpose. It was submitted before us that the following passage assisted the Crown in this case - We have indicated a view that even if, in accordance with Nock, conspiracy is to be regarded as similar to attempt in that it is auxiliary to the main offence, the appellants here would be guilty of the crime. However, there is much force in the view that conspiracy is properly to be seen as an act inherently culpable. The essence of conspiracy is an intention to agree coupled with a common design to commit an offence. That is, to put the design into effect. The mens rea is the intention to achieve the common design, the actus rea is the fact of agreement, the translation of that intention into agreement...The offence is therefore complete when the agreement is made. It is the making of the agreement itself that is seen as inimical to the public good, whether it proceeds further or not. It should therefore be irrelevant that it may not be possible in fact to carry out the agreement. This does not mean that the parties are punished on the basis of guilty intention alone. They will have gone further, and have acted upon their intention by making their agreement. However, the difficulty with this argument is that it cannot be inimical to the public good to agree to do something which is not a crime at all. In that way, it is obvious that such an act cannot be "inherently culpable". It was submitted that at the time the agreement was made the substantive offence existed because at that time it was believed that the Business Franchise Licences (Tobacco) Act 1987 was valid and therefore that a crime was being hatched. It was argued that it was possible at the time of the agreement here to carry it into effect by the commission of an unlawful act. However, the conspiracy identified as the basis for obtaining the warrant was not, as I have pointed out, a conspiracy to do a lawful act by unlawful means. The submission can be easily tested. Suppose the means chosen were themselves lawful so that the only unlawful characteristic of the agreement was to defraud a state of its licence fee. Suppose that after being charged, Ha had been decided. It could not seriously be suggested that, the conspiracy having been formed prior to the decision in Ha, the indictment for it could continue to trial. Indeed, it seems to me self-evident, had there been a conviction prior to the decision in Ha it must necessarily have been quashed when the invalidity of the licensing legislation had been made apparent by the decision of the High Court. 15 It follows that I am of the opinion that the appeal should be allowed and that the matter should be remitted to the learned Magistrate to determine in accordance with the orders of this Court.

REGINA v EID & ORS

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