Jones v Commonwealth

High Court of Australia Mason CJ Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ Jones v Commonwealth

ORDER Demurrers allowed Judgment for the defendants 10 June 1987 Mason C J, Wilson, Brennan, Deane, Dawson and Toohey JJ.

In this action the plaintiff seeks declarations, inter alia, that s 20 of the Telecommunications (Interception) Act 1979 Cth (the Act) is ultra vires the Constitution, that two warrants purporting to have been issued under that section by St John J were invalid and that s 7 of the Act prohibits the reception into evidence in legal proceedings of material obtained without lawful authority. The plaintiff also seeks relief by way of injunction. According to the allegations in his statement of claim, the plaintiff has been charged with conspiring to pervert the course of justice and the hearing of that charge is fixed for 17 August 1987. The evidence on which the prosecution intends to rely at the hearing consists almost entirely of tape recordings of telephone conversations between the plaintiff and alleged co-conspirators and between the alleged co-conspirators. Members of the Australian Federal Police, who intercepted these telephone conversations, relying on the two warrants issued by St John J, brought these tape recordings into existence.

The defendants in the action, the Commonwealth, the Commissioner of the Australian Federal Police and the informant, have demurred to the statement of claim. The demurrers are based on the recent decision of this Court in Hilton v Wells (1985) 157 CLR 57; 15 A Crim R 394. There the court, by a majority of three to two, held that (1) s 20 of the Act was valid because the power which it conferred on judges to issue warrants for the interception of telephonic communications was a power conferred upon judges as designated individuals and (2) s 7, on its true construction, did not prohibit the admission into evidence, in proceedings for an offence described in s 7(6)(c), of evidence obtained by illegal interception.