In the matter of New South Wales Police Force Application for a surveillance device [2020] NSWSC 609

Supreme Court New South Wales

Medium Neutral Citation: In the matter of New South Wales Police Force Application for a surveillance device [2020] NSWSC 609 Hearing dates: 15 May 2020 Date of orders: 15 May 2020 Decision date: 21 May 2020 Jurisdiction: Common Law Before: Rothman J Decision: Application for surveillance device warrant granted Catchwords: CRIMINAL PROCEDURE – Warrants – Surveillance Warrants – powers of judicial officer to issue warrant where investigation in NSW relates to interstate offence and to interstate telephone call – location of device decisive in one issue – construction of Act in accordance with purposes. Legislation Cited: Interpretation Act 1987 (NSW), s 12 Surveillance Devices Act 2007 (NSW), ss 2A, 4, 17 Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: Smethurst v Commissioner of Australian Federal police [2020] HCA 14 R v Workman (2004) 60 NSWLR 471; [2004] NSWCCA 213 Category: Principal judgment Parties: New South Wales Police Force (Applicant) File Number(s): SD20/0379

Judgment 1. HIS HONOUR: On 15 May 2020, a Detective in the New South Wales Police Force applied for a surveillance device warrant. Because of the ongoing nature of the investigation, these reasons for judgment will not disclose either the name of the Detective nor any details that would identify the persons that may or may not be the subject of surveillance. 2. The offence which is being investigated has been specified [1] and has the other technical preconditions necessary for the issuing of a surveillance device warrant under the Surveillance Devices Act 2007 (NSW). 3. The Attorney-General has made written submissions, contained in a document accompanying the application. 4. The member of the Police Force who attended on me, in Chambers, disclosed that the application for the surveillance device had previously been refused by a judge of the Court. This refusal was based upon the fact that his Honour was not satisfied that the application met the requirements of s 17(1) of the Surveillance Devices Act and, in particular, was not satisfied, pursuant to the requirements of s 17(1)(b) that "an investigation" of the relevant offences was taking place in this jurisdiction. 5. The reason of the previous judge is contained in a Chat Message on DEKKO, the computer program utilised by judges, from time to time, in the issuing or rejecting of warrants. Essentially, the learned judge took the view that the term "the investigation" in s 17(1)(b) of the Surveillance Devices Act means "all of the investigation". The terms of s 17(1)(b) of the Surveillance Devices Act is in the following terms: 17 Application for a surveillance device warrant (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 on reasonable grounds suspects or believes that— … (b) an investigation into that offence is being, will be or is likely to be conducted in this jurisdiction or in this jurisdiction and in one or more participating jurisdictions, 1. The Surveillance Devices Commissioner has helpfully provided a submission, which is the submission of, or relied upon by, the Attorney-General. 2. The factual background is that the major investigation is being conducted interstate and an investigation, which is either subsidiary or ancillary to the interstate investigation, is being conducted in New South Wales. 3. The surveillance device relates, according to the affidavit of Ross Veltman, an Officer of the New South Wales Police Force, who deals with surveillance devices, amongst other duties, "to an investigation by the NSW Police Force of the following relevant offence", which is then set out and is or amounts to a contravention of an interstate criminal act. 4. The listening device is to be utilised, according to the aforementioned affidavit, affirmed 14 May 2020, by recording a telephone conversation between the complainant, who is located in New South Wales and the alleged perpetrator who is located interstate. The surveillance device is to be located in New South Wales.