New South Wales Supreme Court CITATION : R v Lawrence (No. 2) [2003] NSWSC 656 revised - 19/08/2004 HEARING DATE(S) : 04/02/03 - 10/07/03 JUDGMENT DATE : 6 March 2003 JUDGMENT OF : Howie J at 1 DECISION : Subject to ruling on particular objections, the evidence of the conversations obtained as a result of the use of listening devices under warrants issued under the provisions of the Customs Act are admitted. CATCHWORDS : Criminal Law and Procedure - Evidence - Validity of listening device warrants - Lawfulness of the use of the listening devices authorised by the warrants Customs Act 1901 - ss 219A, 219B, 219C, 219D, 219AB, 235, Div 1A Evidence Act 1995 - s 138 LEGISLATION CITED : Telecommunictions (Interception) Act - sub ss 40(1), 42, 44(1), 44(2) Crimes Act 1912 (Cth) - s 10 Halsbury's Laws of England Commonwealth Police General Orders - General Order 49 Ousley v The Queen (1997) 192 CLR 69 R v Tillett; Exparte Newton (1969) 14 FLR 101 Thompson v Goold & Co. [1910] AC 409 Caudle v Seymour (1841) 1 QB 1372 CASES CITED : Feather v Rogers (1909) 9 State Reports (NSW) 192 Selbeck v McDonald [1978] 1 NSWLR 1 English v Complaints Committee (1986) 41 SASR 217 George v Rockett (1990) 170 CLR 104 R v A [2000] SASC 51 Jackson v Wells (1985) 64 ALR 147 PARTIES : Regina v John Lawrence FILE NUMBER(S) : SC 70220/02 COUNSEL : P. Roberts SC with I. Bourke - Crown C. Waterstreet - Accused SOLICITORS : Commonwealth DPP - Crown King's Lawyers - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J THURSDAY 6 MARCH 2003 70220/02 R v John LAWRENCE (No 2) JUDGMENT 1 Howie J: The accused has been indicted on a charge of conspiracy to import narcotic goods being a commercial quantity of cocaine. The Crown case against him in part relies upon a number of conversations, in which he was involved with his alleged co-conspirators and which were listened to and recorded by the use of listening devices authorised by warrants purportedly issued under s 219B of the Customs Act. 2 An attack has been made upon the validity of all the warrants issued in respect of the investigation of this matter by the National Crime Authority (the NCA) and, consequently, upon the lawfulness of the use of the listening devices apparently authorised by those warrants to record conversations between the various accused standing trial before me. Mr Waterstreet, who appears for the accused Lawrence, submitted that I should find that the warrants were issued in breach of the provisions of the Customs Act because of a procedural defect in the manner in which the application for the warrants was made to the issuing officer. The argument advanced on behalf of the accused Lawrence is also relied upon by other co-accused standing trial with him, in so far as there are conversations recorded under the authority of warrants purportedly issued under the Customs Act in which they are participants or which are otherwise admissible in the Crown's case against them. 3 Each of the warrants obtained by the NCA in the course of investigating the charge before the Court is in a similar form and accords with the prescribed form set out in the relevant regulation. Although it was initially argued that the warrants were not in the prescribed form, and hence invalid, that argument was abandoned when the particular regulation was produced by the Crown and perused by Mr Waterstreet. Each of the warrants was issued by a nominated member of the Administrative Appeals Tribunal (the AAT) under s 219AB of the Act. 4 Each of the warrants contains the following recital: "And whereas I (name of AAT member), a nominated AAT member within the meaning of the Customs Act 1901, am satisfied, by information on oath, that……." followed by the matters of which the member was satisfied in accordance with either subs 219B(5), for warrants in relation to persons, or subs 219B(7) for warrants in relation to premises. The attack made upon the validity of the warrants concerns the meaning of the words "satisfied, by information on oath". The question that is raised by the present application is whether it is a requirement for the issuing of a valid warrant under the Act that the nominated AAT member personally administers the oath to the person who furnishes the information upon which the warrant is issued. 5 My initial view was that it was unnecessary to answer that question. On its face the warrant states that the officer issuing the warrant was satisfied by information given on oath of the matters set out in the warrant. Thus, on its face the warrant discloses that the AAT member had authority to issue the warrant in accordance with the Act. In my opinion, there is no additional onus upon the Crown to prove the manner in which the issuing officer reached the expressed satisfaction; see generally Ousley v The Queen (1997) 192 CLR 69. In particular, there is no requirement for the Crown to prove the circumstances in which the information was furnished to the particular AAT member who issued the warrant. However, material was placed before the Court, without objection by Mr Temby who appeared for the Australian Crime Commission (formerly the NCA), which revealed that, in the case of each warrant, the information relied upon by the person, who issued the warrant, was furnished by way of an affidavit sworn before an officer of the NCA. The procedure adopted in each case was that the sworn affidavit was then presented to the particular AAT member as the application for a warrant in accordance with subs 219B(4A) of the Act. Apparently, this procedure has been the invariable practice followed by those acting on behalf of the NCA in applying for listening device warrants and the officers issuing such warrants. 6 On the basis of that material, Mr Waterstreet argued that the warrants were invalid because, when properly construed, the relevant provisions of the Customs Act, under which the warrants were issued, require that the issuing officer, in this case a nominated AAT member, personally administer the oath to the applicant for the warrant. Therefore, the argument ran, as all of the warrants were issued in breach of that requirement, they were invalid and could not authorise the use of listening devices by NCA officers. It was submitted that, if that were so, the conversations involving the accused were recorded in contravention of subs 219B(1) of the Act and should be held to be inadmissible by reason of s138 of the Evidence Act. 7 I have indicated to the parties that I intend, subject to ruling on particular objections, to admit the evidence of the conversations obtained as a result of the use of listening devices under warrants issued under the provisions of the Customs Act. The following are my reasons for reaching that decision. 8 A warrant authorising the use of a listening device in relation to the investigation of a narcotics offence under the Customs Act is issued in accordance with the provisions of Division 1A of the Act. In relation to a listening device to be used in respect of a specified person, the warrant is issued under subs 219B(5) of the Act. A warrant for a listening device to be used in respect of specified premises is issued under subs 219B(7). It is not necessary, in order to appreciate the argument before me, that these provisions be set out in full. The terms of the two subsections are, for present purposes, identical. Before a warrant can be issued under either provision, the person authorised to issue the warrant must be "satisfied, by information on oath", of the existence of the facts that permit the issuing of a warrant under that provision. It is not sufficient that the applicant for the warrant be satisfied that the necessary pre-conditions for the issuing of a warrant exist, but rather the officer issuing the warrant must himself or herself assess the information contained in the application and determine whether the facts justifying the issuing of a warrant have been made out in the particular case to the officer's satisfaction: R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106. 9 There is nothing in Division 1A of the Act which lays down any particular procedure to be adopted in applying for, or in the issuing of, a warrant under the Division. In particular there is no provision that states that the issuing officer must personally administer the oath upon which the information is received. There are only two provisions in the Division that are concerned with the procedure to be adopted in respect of obtaining warrants; subs 219B(4A) and s 219C. Subsection 219B(4A) provides that an application for a warrant must be made on behalf of the NCA or the Federal Police by, in respect of the NCA, a member of the Authority or a member of a police force who is a member of the staff of the Authority. 10 Section 219C of the Act is as follows: Information furnished to a judge or nominated AAT member for the purpose of subsection 219B(5), (7) or (8B) - (a) maybe given orally or otherwise; and (b) shall include the facts and other grounds on which the application considered it necessary that the warrant should be issued. 11 Mr Waterstreet has submitted that s 219C, insofar as it permits the information to be given orally or otherwise, supports an inference that it was the intention of the legislature that the issuing officer must administer the oath upon which the information is furnished in the application for the warrant. How else, Mr Waterstreet asks, can information be given orally and on oath unless the authorising officer himself or herself administers the oath? In addition he relies upon the fact that the nominated AAT member may require more information or an explanation of some particular part of the information furnished which further information or explanation must itself be on oath administered by the member. 12 Mr Waterstreet also points to the provisions for the issuing of warrants under the Telecommunications (Interception) Act (the T.I. Act) as being in stark contrast to the provisions in the Customs Act and as indicating the procedure which the legislature would have prescribed if it had intended that a warrant permitting the invasion of a person's privacy could be issued upon an affidavit sworn before a person other than the officer authorised to issue the warrant. 13 However, neither of those arguments in any way suggests to my mind that the words of subss 219B(5) and 219B(7) should be read so as to require that the oath be administered to the applicant for the warrant by the officer authorised to issue it. The fact that s 219C permits the application to be made orally, merely suggests that there will be occasions when it may be necessary for the officer to personally administer the oath to the applicant. An occasion may be where there is a need for further information or explanation, cf subs 44(2) of the T.I. Act below. On the other hand, the fact that the application may be made otherwise than orally suggests that the application may be made otherwise than by the personal attendance of the applicant and, therefore, leads to an inference that Parliament did not intend that the oath be administered personally by the authorised officer. 14 The reliance upon provisions in the T.I. Act is in my view entirely misconceived. Unlike the provisions of the Customs Act with which I am concerned, s 40(1) of the T.I. Act requires that an application will, generally, be in writing and s 41 requires that certain information be set out in the application. Section 42 provides that a written application shall be accompanied by an affidavit, the contents of which are to comply with the provisions of that section. Subsection 44(1) provides that the officer authorised to issue a warrant may require further information in connection with the application. In such a case subs 44(2) applies and is as follows: 44(2) The further information: (a) shall be given on oath if the application was made in writing and; (b) shall be given orally or otherwise, as the Judge or nominated AAT member directs. 15 I can see nothing in the provisions of the T.I. Act that assists in the construction of Division 1A of the Customs Act. If a consideration of the provisions of the T.I. Act reveals anything of relevance at all, it is to highlight the lack of formality in the procedure required to obtain a listening device warrant under the Customs Act when compared with the procedure to be adopted in obtaining a warrant under the T.I. Act. 16 Uninformed by any material extrinsic to the provisions in Division 1A, there appears to me to be no reason to search for the meaning of the words used in the subss 219B(5) and 219B(7). A plain reading of the subsections does not suggest to me that there is any ambiguity or uncertainty of meaning in their terms that requires the court to investigate what might have been intended by Parliament when the provisions were enacted. The provisions appear to require that the information furnished to the authorised officer be on oath, but it is of no consequence whether the oath was administered by the officer or by some other person. There does not appear to me to be anything so singular or disturbing about such a reading that would suggest that this could not be what Parliament intended. To the contrary, before hearing the present application it would never have occurred to me that there was any other meaning to be attributed to the words of the provisions. 17 However, Mr Waterstreet submits that the wording of subss 219B(5) and 219B(7) cannot be taken at face value and they should be read as if, after the words "information on oath", the words "administered to the applicant by the Judge or nominated AAT member" appeared. The argument to support that submission is as follows: 1. The common law in relation to the issuing of warrants required that the person issuing the warrant administer the oath to the person who furnished the information upon which the warrant was issued; 2. This was also the practice in relation to the provisions of the Crimes Act (Cth) concerned with the issuing of search warrants; 3. Where a long-standing practice has developed in relation to the issuing of warrants under Commonwealth legislation, it should be assumed that the Commonwealth Parliament was aware of the practice and meant it to continue unless it stated otherwise; 4. The Division permits the infringement of basic rights and privileges of members of the community and should, therefore, be construed so as to maintain the protection of those rights and privileges developed by the common law or established practices; 5. As a procedure had been established or a practice had developed in relation to the issuing of warrants before the enactment of Division 1A, the provisions of that Division should be construed in accordance with the procedures and practices that were in place when the provisions were enacted; 6. Therefore, the words "by information on oath" appearing in subss 219B(5) and 219B(7) should be read in conformity with the existing procedure and practice that required the oath to be administered by the person issuing the warrant. 18 When a submission is made, as it is here, that it is necessary to read words into a provision of an Act, the court should immediately bring to mind the words of Lord Mersey in Thompson v Goold & Co [1910] AC 409 at 420. His Honour stated: "It is a strong thing to read into an Act of parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" Is there then a clear necessity to read words into the provisions of Division 1A to require that the officer issuing a listening device warrant administer the oath upon which information is furnished in support of the warrant? 19 In respect of the first limb of his argument Mr Waterstreet relies upon a series of decisions which he maintains supports a practice established at common law that a justice issuing a warrant personally administers the oath to the applicant for the warrant. Without examining each of the passages in the judgments relied upon by Mr Waterstreet, I will simply list those cases to which he has drawn my attention. They are: Caudle v Seymour (1841) 1 QB 1372; Feather v Rogers (1909) 9 State Reports (NSW) 192; Selbeck v McDonald [1978] 1 NSWLR 1; English v Complaints Committee (1986) 41 SASR 217; George v Rockett (1990) 170 CLR 104 at 114; R v A [2000] SASC 51. I would also add Ousley v The Queen (1997) 194 CLR 69 per McHugh J at 105ff. None of these cases deals, even indirectly, with the question that is raised before me, and most are concerned with particular statutory provisions. Many of the statements relied upon contain a passing reference to the practice of justices issuing warrants to administer an oath to the informant without any apparent consideration of the position where the oath had been administered by some other person. 20 In addition Mr Waterstreet referred me to the paragraph in Halsbury's Laws of England dealing with the issue of search warrants at common law in which it is stated that a justice of the peace had power "on information being sworn before him alleging a suspicion that theft had been committed" to issue a search warrant. 21 In relation to Commonwealth statutes, Mr Waterstreet relies upon a passage from the Interim Report on Criminal Investigation (Report No 2) of the Australian Law Reform Commission quoted in Tronc, Crawford and Smith, Search and Seizure in Australia and New Zealand, Law Book Company 1996. At paragraph 200 of that Report the Commission deals with warrant procedures generally and quotes an extract from the then current General Order 49 of the Commonwealth Police General Orders. The extract contains the following passage: There has been a general, if not universal, practice, in cases where a search warrant is sought under s 10 of the Commonwealth Crimes Act , for a Commonwealth Police Officer having knowledge (either personally or on information and belief) of the facts to swear before the justice a document described as an Information in which the officer states as a conclusion that there is reasonable ground for suspecting that there is in particular premises something answering the description contained in one of the lettered paragraphs of s 10. There are other references in the extract to the procedure to be adopted before the justice that I will not set out in this judgment. 22 However, the point of the Commission quoting that extract from the Orders was to endorse the practice that the information in support of the warrant be either in writing or, if given orally, reduced to writing, and to recommend that certain endorsements be made by the justice to the written information before him or her. There was apparently no consideration given by the Commission to the question before me, that is, if the information were in writing, would it be necessary for the justice to administer the oath to the informant? 23 I am prepared to accept for present purposes that, both under the common law and in relation to various statutory provisions, there was, and may still be, a requirement that a justice or other person of limited authority issuing a search or arrest warrant personally administers the oath to the applicant for the warrant. But it does not necessarily follow that a requirement established in relation to the issuing of certain types of warrants by justices of the peace, police officers and the like, should be imposed upon Judges or members of the AAT when issuing listening device warrants. One obvious reason why a different practice might be required for the issuing of warrants by justices of the peace, on the one hand, and by those persons authorised to issue warrants under Division 1A of the Customs Act, on the other, is the limited number and, hence, limited availability, of persons authorised to issue warrants under the provisions of the Act. 24 It is clear that the legislature has limited the type of persons authorised to issue a listening device warrant in recognition of the seriousness of such a step. The categories of persons authorised to issue warrants under Division 1A would appear to have been chosen because they will contain persons with legal knowledge and experience who might be in the best position to determine whether the information provided in the application for a warrant truly justifies the substantial infringement of a person's privacy which is the almost inevitable consequence of the issuing of such a warrant. But to require that every applicant for a listening device warrant attend in person upon one of a very limited category of persons authorised to issue such a warrant merely so that an oath could be administered personally by such a person, seems to me to be unreasonably formalistic unless there are sound policy reasons to justify the continuation of the practice which attended the issue of warrants by justices. 25 Mr Waterstreet submitted that there was a particular personal relationship, of an almost spiritual kind, that arose between the persons involved in the giving and receiving of an oath, which in part accounted for the common law's insistence that the justice issuing the warrant administer the oath. Mr Waterstreet further submitted that, by personally administering the oath, the authorised officer was placed in a more advantageous position to determine the honesty and reliability of the applicant than where an affidavit sworn before another person was simply placed before the officer. Although I expressed doubts that anything in the brief formalism of the swearing of an affidavit could possibly give any hint of whether the information within it was honest or reliable even to the most perspicacious of oath-takers, Mr Waterstreet relied in support of that submission upon the following statement in the work by Tronc and others that I referred to above at 229: When considering the issue of a search warrant and whether reasonable grounds exist, the issuing officer is entitled to take into account the informant's demeanour and language. The authority cited for that proposition was Caudle v Seymour (1841) 113 ER 1372, a case concerned with a justice issuing a warrant based upon a deposition taken by his clerk. But once it is accepted that the information supporting the issuing of the warrant can be given in writing, any advantage that might have been obtained by an officer receiving a deposition or an oral account of the information is lost. 26 I can see no justification for imposing a requirement upon the issuing of warrants under the Division that apparently existed in relation to the issuing of arrest and search warrants by justices and police officers. I am quite unable to see how the absence of a requirement that a Federal Court Judge or nominated AAT member administers the oath to the applicant lessens the protection offered by the common law to private citizens against undue search and seizure. I do not believe that such a requirement is necessary for the protection of citizens against improper invasion of their privacy. I do not believe that a Federal Court Judge or an AAT member would approach the task of determining whether to issue a warrant being influenced by the manner in which the application is made. The importance of the fact that the warrant is supported by information given on oath, is to be found in the solemnity and formality of swearing an oath and the criminal sanctions that apply to false swearing. Neither of those matters is affected by the identity of the person administering the oath. The principal challenge to the validity of the warrants, therefore, fails. 27 There were other matters raised, if somewhat faintly, to challenge the admissibility of some or all of the conversations recorded under the authority of a listening device warrant. I can deal with them as superficially as they were argued before me. 28 It was submitted that all the warrants were invalid because they referred to the commission of "narcotics offences within the meaning of that Division", that is Division 1A of Part XII of the Customs Act, without nominating a particular narcotics offence. The argument was that the warrant in this regard was too general notwithstanding that in s 219A(1) of the Act "narcotics offence" is defined to mean "an offence punishable as provided by section 235". Section 235 of the Customs Act refers to a number of different offences and the argument is that the warrant should specify the particular offence within that section in respect of which the relevant suspicion arose. 29 The short answer to that submission is that a similar argument was considered and rejected in respect of warrants issued under the T.I. Act in Jackson v Wells (1985) 64 ALR 147. In that case it was held that interception warrants did not require the specificity of search warrants because of the different nature of the conduct being permitted in each case. There does not appear to me to be any reason why I should not follow that decision and, when Mr Waterstreet was made aware of it, he did not attempt to distinguish it. 30 The final matter raised did not concern the validity of any warrant and related to some particular conversations admissible against the accused Lawrence and a co-accused, Norris. The attack upon the admissibility of those conversations related to the revocation of an authority issued by an authorised official in respect of a particular warrant. The power to issue the authority was derived from s 219D of the Act and it was conceded that the grant of power to issue the authority carried with it the power to revoke it. Although the authority to use a listening device under the warrant was revoked by the official who had issued it, the official immediately issued a further authority in substitution for the one revoked. I do not know why it was thought necessary to issue the revocation, but there was no suggestion that any step taken by the official was unlawful or irregular. The Crown intends to rely upon conversations that were listened to and recorded under the authority before it was revoked. 31 The argument was as follows: one synonym for the word "revoke" is the word "annul"; this is the meaning to be given to the word when used in respect of an authority to use a listening device; a revocation of an authority declares the authority to be nul and void; therefore, anything done under an authority which is revoked has no legal effect. However, there was no attempt made to identify any matter of construction or policy that would justify, let alone, require that the word "revoke" be given such a meaning in the context of the provisions of the Customs Act. Even if I were to accept that in some contexts the word "revoke" may mean "to render nul and void", there seems to me to be no sensible reason why a revocation of a valid authority should render unauthorised all that had been done under that authority prior to its revocation. The point is completely without merit. ********** Last Modified: 12/24/2004 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.