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. Jurisdiction dependent on location of surveillance device 1. The evidence put before me and contained in one or other of the affidavits or attached thereto records that the surveillance device will be located in New South Wales. The Court of Criminal Appeal in R v Workman [2] makes clear that where the recording of a telephone conversation occurs in one State, lawfully, and explicitly so, renders the recording lawful (and proper) even though it would have been unlawful in the State in which the other party to the conversation was located and even though it is tendered in proceedings in that other State. 2. On the authority in R v Workman, in the majority judgment of Grove J, with whom Dowd and Sperling JJ agreed, so long as the listening device or surveillance device is located in New South Wales, then the recording of the conversation is governed by the terms of the Surveillance Devices Act and a warrant permitting such a recording may be issued. Commonwealth legislation 1. I have not, in the foregoing, dealt with any Commonwealth legislation. It is, given the circumstances of the recording to which reference has been made, unnecessary so to do. 2. The recording is, as earlier stated, to be taken in New South Wales by a process which is similar to that described by Grove J in R v Workman. It is not a recording which "intercepts" electronically: see R v Workman at [6]. 3. If the police were undertaking an "intercept", there would need to be a warrant which complied with the Telecommunications (Interception and Access) Act 1979 (Cth). No intercept is sought. The Investigation in NSW 1. I turn to the provisions of s 17 of the Surveillance Devices Act. It is necessary to deal with the proposition that "all of the investigation" is required to be in New South Wales. It is no criticism of my colleague that no reasons were provided for that finding. As can be seen from the extract of s 17 of the Surveillance Devices Act in para [5] above, para 17(1)(b) of the Surveillance Devices Act provides two location preconditions, either one of which would satisfy the paragraph. 2. First, an investigation occurs or will occur "in this jurisdiction". Alternatively, the investigation is to occur in this jurisdiction and in one or more participating jurisdictions. The reference to the second alternative, being that an investigation occurs in this jurisdiction and in one or more participating jurisdictions would, ordinarily, give rise to a construction of the term "investigation" to mean the whole of the investigation, as my colleague has determined. I note, at this juncture, that I have not investigated and do not assume that the other State is a "participating jurisdiction". Indeed, I assume to the contrary. 3. Notwithstanding the use of that alternative, the term in s 17(1)(b) utilises the indefinite article, namely, "an investigation", and does not utilise the definite article, "the investigation". As a consequence, any investigation into the offence that is being, will be or is likely to be conducted in New South Wales will satisfy the precondition in s 17(1)(b) of the Surveillance Devices Act. 4. Such a construction does not render otiose the alternative, of an investigation in New South Wales and one or more participating jurisdictions. There may well be a situation where no investigation is to be conducted in New South Wales, apart from the installation and use of the surveillance device and the work in New South Wales is under the direction of and only part of the investigation outside the State, and otherwise the investigation is to occur in other participating jurisdictions. In those circumstances, namely, where there is no evidence that there is to be "an investigation by the NSW Police Force" except under the direction or supervision of persons from another State, the alternative precondition would be required. 5. In other words, for the first scenario to arise, the issuing eligible officer must be satisfied that there is an investigation in New South Wales over and above the recording of the product of the surveillance device that is sought and that is not simply NSW Police Officers undertaking the work required of the interstate investigation. In the second scenario, the investigation in New South Wales need not be independently or separately directed or undertaken. 6. The foregoing construction achieves the objects of the Act. [3] Those objects provide for an eligible issuing officer's oversight of the warrant power but otherwise seek the facilitation of covert evidence gathering for serious crimes, where appropriate provisions for privacy are considered. It would be inconsistent with those objects to limit the circumstance in the manner suggested. 7. Further, the provisions of s 4(2) of the Surveillance Devices Act expressly provide that an investigation into a New South Wales offence is deemed to occur in New South Wales if a NSW law enforcement officer is participating in the investigation, even though wholly conducted in another jurisdiction. As a consequence, the second alternative in s 17(1)(b) of the Surveillance Devices Act covers such a scenario. Given the definition, the second alternative may have been, in part, an overcautious repetition of applicability of s 17 to such a situation. However, the second alternative in s 17(1)(b) of the Act is not confined to offences in New South Wales. Nor is the first alternative. 8. The evidence before me is that this application "relates to an investigation by the NSW Police Force". That investigation has included the interviewing of a number of witnesses and the taking of statements from them. At the conclusion of that investigation, it may well be that the material obtained may be utilised for a prosecution in another State. That does not impinge upon the precondition in s 17(1)(b) of the Surveillance Devices Act. [4] 9. One other issue should be the subject of comment. The Interpretation Act 1987 (NSW), by the provisions of s 12 of that statute, purports to imply into a reference to a "matter or thing" a reference to such matter or thing in and of New South Wales. 10. As a consequence, without more, the provisions of s 17(1)(a) of the Surveillance Devices Act, which refer to the commission of a relevant offence, may be a reference to a relevant offence committed in New South Wales. There is no suggestion in the material before me that the offence in question was committed in New South Wales. On the contrary, the relevant offence was committed in a State other than New South Wales. 11. However, the Surveillance Devices Act resolves that seeming difficulty by defining "a relevant offence" as including "an offence against a law of… another State or Territory that may be prosecuted on indictment". [5] Conclusion 1. For the foregoing reasons, I formed a different view from that formed by the judge who heard the previous application. I formed that view, notwithstanding the respect I had for the judge's opinion. For these reasons, the surveillance device warrant issued. 2. As a matter of abundant caution and notwithstanding the existence of a separate document that identifies the particular offence, the name of the applicant and the person in respect of whom the warrant is sought, as well as the usual bases for the issue of a warrant, I reiterate that I issued the foregoing surveillance device warrant because I was satisfied that the applicant had reasonable grounds for the suspicion or belief that the nominated offence had been committed; a New South Wales Police investigation into that offence is being conducted in New South Wales; and the use of the nominated device is necessary for the purpose of the investigation into that offence. 3. Further, in determining whether I should issue a surveillance device warrant, I have had regard to the nature and gravity of the alleged offence in respect of which the warrant is sought; the extent to which the privacy of any person is likely to be affected; the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice the investigation; the extent to which the information sought to be obtained would assist the investigation; and the fact that a previous warrant was sought and refused. For the foregoing reasons the surveillance device warrant was issued by me. 4. Lastly, I urge clarification of the issue. It seems a simple amendment to s 17(1)(b) of the Surveillance Devices Act, which inserted the words "whether or not another part of the investigation is also conducted in another State or Territory" after the words "jurisdiction" where first appearing, would clarify the issue and would accord with the purposes of the statute. ********** Endnotes 1. Smethurst v Commissioner of Australian Federal Police [2020] HCA 14. 2. (2004) 60 NSWLR 471; [2004] NSWCCA 213. 3. Section 2A of the Surveillance Devices Act 2007 (NSW). 4. See the definition of "relevant offence" in s 4(1) of the Surveillance Devices Act 2007 (NSW). 5. Section 4(1) of the Surveillance Devices Act 2007 (NSW). 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: 10 June 2020