Reported Decision : 140 A Crim R 415 New South Wales Supreme Court CITATION : Ex parte NSW Police Service; Re: Listening Devices Act 1984 - Application No. ST03/173 [2003] NSWSC 573 HEARING DATE(S) : 2/6/03, 5/6/03 JUDGMENT DATE : 19 June 2003 JUDGMENT OF : O'Keefe J DECISION : Warrant for a listening device, pursuant to the provisions of the Listening Devices Act 1984, refused. CATCHWORDS : Criminal law - Practice and procedure - Listening device - Warrants - Indicia for grant - Meaning of nature of prescribed offence - Privacy - consideration extends beyond suspect - Alternative means of obtaining evidence - Evidentiary value of evidence - Grant of warrants discretionary - Policy of Listening Devices Act LEGISLATION CITED : Evidence Act 1995 - ss 135, 137 Listening Devices Act 1984 - ss 5, 13, 16 Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 CASES CITED : O'Hare v DPP [2000] NSWSC 430 at paras 8-13); Reynolds v Whittens [2002] NSWSC 135 Ward v Williams (1954-1955) 92 CLR 496 PARTIES : New South Wales Police Service FILE NUMBER(S) : SC ST03/173 COUNSEL : Mr W Kelly - New South Wales Police Service Mr John Patterson (Special Advice Unit, Legal Services) - New South Wales Police Service SOLICITORS : Solicitor for the New South Wales Police Service - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J (In Chambers) 19 June 2003 Ex parte NSW Police Service; Re: Listening Devices Act 1984 - Application No. ST03/173 JUDGMENT 1 Application has been made on behalf of a constable of police (the applicant) stationed at a Sydney metropolitan police station for a warrant for a listening device pursuant to the provisions of the Listening Devices Act 1984, (The Act). It is proposed that should the warrant be granted the listening device that it authorises would be held close to the handset of a telephone that would be used by two complainants at the relevant police station in order to listen to and record conversations between them on the one hand, and a named person (the suspect) on the other, as well as other unnamed persons. The conversations would be so crafted as to endeavour to elicit admissions from the suspect. 2 The application relates to offences of indecent assault alleged to have been committed between 1973 and 1975 respectively, ie, between twenty eight and thirty years ago. 3 The complainants are sisters. One was born on 15 January 1960; the other on 20 March 1963. They have an older sister. She is married to the suspect, who was born on 16 March 1949. Although the precise date of the marriage between the complainants' older sister and the suspect is not revealed in the material in support of the application, it is clear from it that the older sister and the suspect were married in 1972. 4 The offences are alleged to have occurred in the family home, commencing in 1973. In relation to one of the complainants, they consisted of nocturnal intimate touching on some five separate occasions, one of which involved digital penetration. They are thus serious offences. 5 In relation to the other complainant, the venue is the same but the complaint relates to a single offence in 1975. It is alleged to have involved manual touching of the breasts of the complainant at a time when the suspect was said to have been experiencing an erection. Although the circumstances and incidents of the offence deposed to are by no means in the same category of seriousness as those relating to the first complainant, the complainant was only 12 at the time. 6 From the application and evidence in support it is apparent that there was no contact between the first complainant and the suspect between about Christmas 1975 and the latter half of 1998, except on some occasions at Christmas time when the extended family would meet "somewhere". On all such occasions it is said that the suspect "would stay away from" the complainants. There is no indication as to when the last contact between the second complainant and the suspect occurred, although I infer from the initial affidavit relied on in the matter that it was probably not significantly different from that which occurred between the first complainant and the suspect. 7 In the mid to third quarter of 1998 it is said that the second complainant initiated a telephone conversation with the suspect ie. she telephoned him. From the affidavit in support of the application, it emerges that she had a short, curious, non-incriminating conversation with him. There is also evidence that in August 2002, the parents of the complainants received a typed letter signed with a common abbreviation of the first name of the suspect. The correspondence includes two sentences that could be regarded as incriminating. There is further evidence that the first complainant received a typed letter in May 2003. It was signed in the same way as the first letter and its terms were not dissimilar to those contained in it. 8 There being nothing in the evidence to indicate that the signatory of either of the letters is in fact the suspect, and it not being established that any endeavour had been made to correlate the signature on the letters with the handwriting of the suspect, I adjourned the application to enable the applicant to present additional evidence. This was done. It consisted of an affidavit by the applicant for the warrant. 9 In his supplementary affidavit the applicant deposes to the fact that the letter received by the parents of the complainants was typed. Whether the signature was also in type script is not clear. However, the addressed envelopes were handwritten. The applicant states that the handwriting, "can't (be) positively identified" as belonging to the suspect. The evidence as to the inability to identify positively the handwriting on the envelopes as belonging to the suspect was obtained from lay people whom one would expect to be conversant with the handwriting of the suspect. However the handwriting has not been submitted for analysis by an expert. 10 In his supplementary affidavit the applicant indicates there has been one previous application made in respect of the prescribed offences. The outcome of that, i.e. whether it was granted, whether the device was used and if it was, what was ascertained, is not revealed. It may even be that the previous application referred to is that made to me, but adjourned. 11 The applicant states in his supplementary affidavit that "there are no alternative means of inquiry" available in respect of the matter. On the face of the affidavits this is not correct. It is quite clear that handwriting analysis could provide evidence linking the letters to which I have referred to the suspect, if he be their author. That has not been done. 12 In addition, it is clear that there could well be an invasion of the privacy of a person or persons who is/are not the subject of any suspicion or likely to be the subject of any charge. This results from the application seeking a warrant that would record the conversations of persons other than the suspect who are unnamed. 13 The Act is structured so as to commence with a provision prohibiting the use of listening devices. That is the effect of section 5(1) of the Act. That primary prohibition is subject to a series of exceptions, one of which is the use of a listening device pursuant to a warrant issued under Part 4 of the Act (s 5(2)(a)). Part 3 of the Act renders inadmissible evidence of private conversations when unlawfully obtained, whether such evidence be direct or indirect in form. This reinforces what in my view is a fundamental principle of the Act, namely, that the use of electronic devices to record private conversations is the exception, not the norm. It recognises as a primary concern the right to integrity of conversations and oral discourse between citizens. 14 Part 4 of the Act empowers the court to grant a warrant where an application is made by a person who "suspects or believes" that a prescribed offence has been, or is about to be or is likely to be committed, and 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, to authorise the use of a listening device. However, that depends upon the applicant for the warrant believing that, "the use of a listening device is necessary" (italics added). 15 The grant of a warrant is discretionary. The court "may" do so. The word "may" is not used in a mandatory sense (eg. Ward v Williams (1954-1955) 92 CLR 496 at 504-506; Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 at 224, 240; see authorities referred to in O'Hare v DPP [2000] NSWSC 430 at paras 8-13); Reynolds v Whittens [2002] NSWSC 135 at paras 29-34). 16 Before the court grants a warrant it must be satisfied that there are reasonable grounds for the suspicion or belief held by the applicant. The belief to which this requirement refers includes the belief that the use of a listening device is necessary (s16(1)(b)), not merely that a prescribed offence has been, is about to be, or is likely to be committed (s 16(1)(a)). 17 Part 4 also prescribes certain indicia to which the court is required to have regard in determining whether to grant a warrant. They are: (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. (e) Any previous warrant sought or granted pursuant to the Act in connection with the same prescribed offence. (s 16(2)) As to (a) 18 The offences the subject of consideration in the present case are prescribed offences. The court is required to have regard to their nature. The phrase "nature of the prescribed offence" is not just concerned with the fact that the offences are of a class or description that has been prescribed (s 15). The phrase is intended to comprehend the factual substrate of the offences in respect of which the warrant is sought. If this were not so, and if the fact that the offence was prescribed were itself sufficient, s16(2)(a) would have no work to do. It would be superfluous. Furthermore warrants to permit the recording of private conversations would not normally be expected in cases that were of minor significance. Listening devices are, and should be, usually reserved for serious cases. 19 Serious is not defined in the Act, although "serious narcotic offence" is defined; the word "serious" is used in s5(1) (serious violence); the word "seriousness" in s 13(3) (seriousness of the offence). The word must thus bear its ordinary English meaning and whether or not any offence is serious, for the purposes of determining whether its nature is such as to enliven 16(2)(a) in favour of the grant of a warrant, depends on the evidence. The evidence of the events before me, although clearly indicating that prescribed offences have been committed, does not satisfy me that it is of a serious nature in relation to the second complainant. I am, however, satisfied that the nature of the prescribed offences in relation to the first complainant is serious. As to (b) 20 The provisions of s 16(2)(b) call up for consideration the extent to which the privacy of any person is likely to be affected. The privacy to be considered is not merely that of the suspect. In some cases it may include that of persons who are criminal associates of or persons involved in the same or cognate wrongdoing or other criminal activity with the suspect. They may be accomplices; they may be principals; they may be unnamed. In such cases the privacy of such persons would not normally be regarded as a factor that would militate against the granting of a listening device warrant. 21 However, in the present case there is no suggestion that any named person whose conversations may be recorded, should the warrant be granted, are in any way involved in any prescribed offences, or are accomplices of the suspect or are principals or are persons who otherwise should have their right to privacy interfered with. 22 In my opinion in the present case s 16(1)(b) militates against the grant of the warrant although that is not of itself fatal to the application. As to (c) 23 Section 16(2)(c) is concerned with alternative means of obtaining evidence. There are, as I have said, avenues as yet unexplored that do not involve the use of a listening device and no explanation has been given as to why those avenues, which include expert handwriting analysis, have not been resorted to. Without wishing to be unkind to the applicant, the way in which the application is presented suggests that the listening device that is sought will be used is as a substitute for proper investigation, rather than an assistance in relation to such an investigation. Indeed, it could be regarded as a lazy way of seeking to deal with the matter. As to (d) 24 Section 16(2)(d) calls for a consideration of the evidentiary value of any evidence sought to be obtained. That involves a judgment by a judge to whom the application is made. My judgment is that it could well be that a trial judge could reject evidence of the kind sought to be obtained in consequence of the warrant in the present circumstances on a number of bases. One would be that it could be unfairly prejudicial within the meaning of ss 135 and 137 of the Evidence Act 1995; another perhaps that it was unfairly obtained; perhaps yet another that the complainants, when using the phone, would be doing so in a manner akin to agents for, or surrogates of, the police, without the giving of the warning that the police would have to give were they to question the suspect directly. 25 There is no limit as to the time of day or night at which the phone call or phone calls that is/are to be recorded could be made. They may be made at times that are quite inopportune for, or unfair to, a suspect. In this regard it should be remembered that the law exists to protect all, and that those who may ultimately be found to be guilty are entitled to the same due process and proper consideration as those who may be innocent. 26 There is in my opinion a substantial basis on which it can be said that the evidentiary value of any evidence obtained by use of a listening device in the circumstances contemplated in the present application could be low. It could be nil, in the event that a judge exercised the discretion conferred by s 135 or act under the mandate in s 137 to reject the evidence. In this regard it should be remembered that it will be evidence that will be sought to be tendered in a criminal proceeding. 27 Section 137 of the Evidence Act 1995 mandates the court to reject evidence adduced by the Crown Prosecutor if its probative value is outweighed by unfair prejudice to a defendant. Use of the listening device in the manner contemplated could be regarded as unfair and the evidence characterised in the same way. As to (e) 28 Section 16(2)(e) requires the court to consider any previous warrant sought or granted under Part 4 of the Act in respect of the same offence or offences. One of the instances to which this provision may apply is that in which a particular judge has refused a warrant, but an application is made thereafter to another judge for a warrant in respect of the same matter. Whilst that is only one circumstance to which s 16(2)(e) may attach, such a consideration suggests that in order to achieve the objectives of the Act and protect the interests that it is intended to protect, it is not sufficient merely to state that a warrant has been sought and either granted or refused. In order that the court may properly weigh the consequences that flow from the seeking and granting or refusing of such previous warrant and so make the judgment that is called for by s 16(1), it is appropriate that the outcome of any application should be included in the affidavit. It should express, at least in summary form, in effect the contents of the s 19 report in relation to each earlier grant or refusal. 29 In the present case it is revealed that there was a previous application. However whether the warrant was granted, and if it was, whether the device was used and, if so, with what result, is not revealed. SUMMARY: 30 I am not satisfied that a warrant in this case should issue. I am not satisfied that there are reasonable grounds for the belief of the applicant that "a listening device is necessary" within the meaning of s 16(1)(b) of the Act. Furthermore, when regard is had to the criteria specified in s 16(2) of the Act, I am not satisfied that the indicia contained in s 16(2)(a) are satisfied in respect of the second complainant. I am further of the opinion that the extent to which the privacy of innocent persons unassociated with the application may be interfered with is unacceptable having regard to the policy of the Act. I am also of the opinion that there are alternative means available for investigating which have not been utilised, but that could and should be utilised in a case such as the present. I am further of the opinion that the evidentiary value of any evidence obtained may not be high and I am not satisfied as to the outcome of previous warrants. 31 For the foregoing reasons the warrant is refused. ********** Last Modified: 06/30/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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