MALCOLM v SELBY and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 3 June 1994, 3 June 1994 [1994] NSWCA 192 WARRANT ISSUED UNDER LISTENING DEVICES ACT by order of judge — alleged failure by judge to comply with s17(2) of the Act — onus of proof on claimant — no shift of evidentiary onus — applicant for prerogative relief bears onus of proof — evidence before court not entirety of material — insufficient evidence to show grounds for granting relief. A warrant was issued under the Listening Devices Act on 27 March 1992 pursuant to an order of Grove J. The warrant was acted on and evidence was obtained and used in committal proceedings. Five persons were subsequently committed for trial on a charge of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug. Early in the trial it was submitted to the trial judge that evidence obtained pursuant to the warrant was inadmissible because the warrant was invalid by reason of failure to comply with s17(2) of the Act, that is, failure to afford proper notice, or an opportunity to be heard, to the Attorney General before the order for the issue of the warrant was made. The trial judge found that he did not have jurisdiction to review the validity of the order for the issue of the warrant or the warrant itself. An application was then made to this court seeking that the warrant be quashed. Assuming, without deciding, that the court had power to review the challenged order: HELD, (1) the words of s17 of the Listening Devices Act show that the onus of proving the failure to fulfil its requirements lies upon the claimant. Apart from this, there is abundant authority to the effect that an applicant for prerogative relief bears the burden of clearly establishing the facts which show an absence or excess of jurisdiction: (2) it is not the case that because the claimant tenders some, insufficient, evidence of a fact necessary to be proved to show non compliance with s17(2), the evidentiary onus will shift to the opponent because of the state the evidence has reached: (3) there is no reason to assume that the evidence put before the court was the entirety of the material before Grove J when the warrant was issued. Hence, the evidence is insufficient to show that Grove J could not have been satisfied that the requirements of s17(2) had been met, and consequently the claimant has failed to demonstrate that there are grounds for granting relief. ORDERS 1. Summons dismissed with costs. 2. Liberty to the claimant to apply within seven days to seek variation or discharge of the costs order. Priestley (1), Clarke (2) AND Handley (3) JJA The application before the Court asks us to quash a warrant issued under the Listening Devices Act on 27 March 1992 pursuant to an order of Grove J. The application raises some of the questions argued but not decided in Carroll v Attorney General (unreported, Court of Appeal, 29 October 1993). We do not think it necessary to answer those questions in these proceedings either. This is so because assuming, without deciding, that this Court has jurisdiction to review the issue of the warrant and that there are no other procedural complications which prevent the claimant having this Court decide the case on its merits, we do not think the claimant has made out the basis upon which he argued that the issue of the warrant did not comply with the requirements of the statute. 2 UNREPORTED JUDGMENTS Following the issue of the warrant it was acted on. Evidence was obtained, and used in committal proceedings which ended on 19 April 1993. Five persons were subsequently committed for trial on a charge of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug. Subsequently a date for trial on that indictment was fixed; the date was 16 May 1994 but the trial began on 18 May 1994. The Court was told today that the trial has already been in progress for a number of days, and is thought to be likely to take a further eight weeks to complete. The Court was also told that the Crown is still in the process of putting its case before the District Court and has reached the point where it wishes to lead the evidence which is connected with the listening device warrant. There is one claimant in the proceedings before this Court, although it appears from the affidavit of the claimant's solicitor that solicitors for four of the accused began an effort on 9 May 1994 to gather evidence concerning the details of the issue of the warrant. The Court was also told that the present solicitors had only come into the matter earlier this year. The effort to obtain evidence concerning the way in which the issue of the warrant was handled culminated on 25 May last week, with a submission being made to the trial Judge, his Honour Judge Shadbolt, that evidence obtained pursuant to the warrant was inadmissible because the warrant was invalid, by reason of failure to afford proper notice, or an opportunity to be heard, to the Attorney General before the order for the issue of the warrant was made. The trial Judge found, according to the evidence before us, that he did not have jurisdiction to review the validity of the order for the issue of the warrant or the warrant itself. After that ruling the claimant obtained access to further documentation relating to the issue of the warrant which, it seems, encouraged the making of this application. Application was made yesterday for the summons to be filed on short notice and the Court arranged for the hearing to come on today. The inconvenience of this course was to some extent lessened by the fact that the trial has apparently been proceeding at the same time as this application has been heard. Nevertheless, the application having been made when it was it was highly desirable for it to be dealt with immediately and the necessity for a speedy hearing and almost immediate judgment means that the Court has not had the time to consider fully some of the matters argued, one of these being a question left open in Carroll, whether the Court has jurisdiction to review an order of the kind made in this case by Grove J. As it has happened, because it seems to the Court that on the evidence before the Court the claimant cannot make out his case, the fact that the Court does not today discuss the question of its power to review such proceedings or the final question that was raised in argument, the matter of the exercise of discretion if the claimant had otherwise made out his case, does not impede the proper disposition of the case. The questions that were argued when the case came on fell under the three headings of 1. the power of the Court to review the issue of the warrant, then, 2. assuming yes to 1., whether grounds for granting the relief claimed had been shown, and then, 3. further assuming yes to 2., whether the Court should grant the relief sought or in exercise of its discretion withhold it. As already indicated, because the Court is of the view that the claimant fails in regard to the second matter we need say nothing more today about the other two. URJ MALCOLM v SELBY and ORS (Priestley (1), Clarke (2) AND Handley (3) JJA) 3 In regard to the matter on which the Court feels able to come to a clear conclusion immediately, the first thing to notice is that s17 of the Listening Devices Act provides in subs(2) that: "A warrant shall not be granted under s16 of the Act unless the Court is satisfied that: (a) a notice in respect of the warrant has been served in accordance with subs(1); and (b) the Attorney General has had an opportunity to be heard in relation to the granting of the warrant." Since the claimant seeks to assert in these proceedings that the warrant issued was issued after non compliance with s17(2) it follows simply from the way that section is expressed and from the fact that the claimant is asserting it was not complied with, that the claimant had to show, in order to entitle himself to relief, that either Grove J was not satisfied that the two things mentioned in para(a) and para(b) had happened or that there was no basis on what he knew at the time when he ordered the warrant to issue on which he could have been satisfied that those two events had taken place. The evidence before the Court was limited in its scope in that it consisted of an affidavit of the solicitor for the claimant which annexed to it some materials obtained following the service of a subpoena upon the Registrar of the Supreme Court, and some other materials which the claimant had been able to obtain in support of, first, the submission before Judge Shadbolt and later in support of the application to this Court. Not all available material was tendered. The materials showed that s17(2)(a) was complied with, and that evidence of that was before Grove J when he made the order. The materials did not directly show one way or the other, whether Grove J was in a position to be satisfied as to s17(2)(b). Mr Douglas QC, for the claimant, contended that on the material in evidence before the Court Grove J could not have been satisfied that the Attorney General had had an opportunity to be heard in relation to the granting of the warrant. It is relevant to note at this point that facts by agreement were put before the Court which showed that as a matter of fact prior to the granting of the warrant by Grove J, the Attorney General, by his delegate the Solicitor General, had had an opportunity to consider the fact that the application was to be made and objectively speaking the only conclusion from that agreed fact is that the Attorney General, within the meaning of the subsection, had had an opportunity to be heard in relation to the granting of the warrant. Mr Douglas's point, however, was that the materials in evidence before us did not contain anything from which we could infer that Grove J had any knowledge of that objective fact. The fact was one of which Grove J had to be satisfied, and, so it was argued, nothing before Grove J formed any basis for his satisfaction. The argument centred on para(b) of s17(2) as by the time the evidence and submissions were complete there seemed to be no dispute but that the requirements of para(a) had been fulfilled. The problem with the case from the point of view of the claimant is that although evidence was before the Court of documents which it would be reasonable enough to infer were before Grove J at the time when he made the order to issue the warrant and although those documents did not include material relating to s17(2)(b), so that there would be a foothold for the claimant's argument, if it could be concluded that the documents contained everything to which Grove J paid regard at the time of issuing the warrant, it is quite clear that that was not the state of affairs. That is, there is no basis which the Court can see for acting on the footing that the evidence that has been put before the Court of what was before Grove J was the entirety of the material, oral or written, which 4 UNREPORTED JUDGMENTS was available to him at the time when he made the order for the issue of the warrant. That alone means the claimant must fail in this application. As the evidence was left, it was insufficient to show, one way or the other, whether Grove J could not have been satisfied as required by s17(2). As mentioned earlier the words of s17 show the onus of proving the failure to fulfil its requirements lay upon the claimant. Quite apart from this, there is abundant authority to the effect that an applicant for prerogative relief bears the burden of clearly establishing the facts which show an absence or excess of jurisdiction: see R v Alley; ex parte New South Wales Plumbers and Gas Fitters Employees Union (1981) 153 CLR 376 and Hill v King (1992) 31 NSWLR 654 at 661. It was argued by Mr Douglas, although he did not put it quite in these words, that the material that was put before the Court by the claimant was sufficient to require the opponent to supply the deficiency, as it were, that some kind of prima facie case had arisen which shifted the evidentiary onus to the opponent which, not being taken up by the opponent, would leave the way clear for the Court to infer that the evidence before the Court was, indeed, the entirety of the evidence. It seems to the Court that that argument fails. There is no reason that we can see why, when the claimant offers evidence to the Court which, to the Court's way of thinking, is insufficient to show non compliance with s17(2), the opponent should have any obligation to go into evidence to repair the situation. It simply is not a case, in the Court's opinion, where there was even an evidentiary onus shifting from one side to the other because of the state the evidence had reached. A matter which is of some importance is that Grove J, as a Judge of the Supreme Court would, according to any ordinary way of thinking, be conscious of the delicate nature of the duty under the Listening Devices Act involved in the issue of a warrant of the kind issued here. It seems quite legitimate to act on the basis that a Judge of the Supreme Court, prima facie at least, would not grant a warrant under s16 unless satisfied of the requirements set out in s17(2). We were referred to a case from South Australia, Karina Fisheries v Mitson (1990) 49 ACrimR 153 where O'Loughlin J of the Federal Court held that there is a presumption of regularity with respect to a warrant that is issued by a Supreme Court Judge pursuant to s71 of the Proceeds of Crimes Act, and that it is not therefore necessary for the warrant to contain statements of the learned Judge's satisfaction (at 165). That view states, in a somewhat more formal way, much the same idea that we entertain concerning the correct approach to the question whether a Court should be satisfied that a warrant had been granted under sl6 without the Court granting the warrant being satisfied of the requirements in the subsection. As earlier mentioned the case has presented itself as one which can be disposed of on the narrow point which has already been dealt with. The conclusion of the Court is that the summons should be dismissed. It should be added that the Karina Fisheries case went on appeal to the full Federal Court ((1990) 26 FCR 473). There the point above mentioned was referred to but the appeal being dismissed on another ground, the Court found it unnecessary to pronounce on the observation that O' Loughlin J had made, saying it would be preferable to leave the presumption of regularity to another day. We should make it clear that what was said earlier represented the Court's view of an appropriate approach to fact finding in regard to the situation that had arisen in the present case. Although we tend to think that O'Loughlin J was right in his URJ MALCOLM v SELBY and ORS (Priestley (1), Clarke (2) AND Handley (3) JJA) 5 use of the idea of a presumption of regularity, the basis upon which the Court rests its reasons is the concept underlying the slightly different basis mentioned immediately before the reference to Karina Fisheries. The formal orders of the Court are; summons dismissed with costs. Liberty to the claimant to apply within seven days to seek variation or discharge of the costs order. Exhibits to be returned. 1. Summons dismissed with costs. 2. Liberty to the claimant to apply within seven days to seek variation or discharge of the costs order. Counsel for the claimant: FM Douglas QC and G. Super Instructed by: Watsons Solicitors Counsel for opponents (1, 2, 4): K Mason QC (Solicitor-General) and P Lakatos Instructed by: State Crown Solicitor Counsel for opponent (3): H Langley (Submitting) Instructed by: State Crown Solicitor (Submitting DPP)