[Home] [Databases] [WorldLII] [Search] [Feedback]

High Court of Australia

You are here: AustLII >> Databases >> High Court of Australia >> 1997 >> [1997] HCA 49

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Ousley v R [1997] HCA 49; (1997) 192 CLR 69; (1997) 148 ALR 510; (1997) 71 ALJR 1548 (20 October 1997)

HIGH COURT OF AUSTRALIA

TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

DAVID PATRICK OUSLEY APPELLANT

AND

THE QUEEN RESPONDENT

ORDER

Appeal dismissed.

20 October 1997

FC 97/042

M 96/96

On appeal from the Supreme Court of Victoria

Representation:

O P Holdenson for the appellant (instructed by McLennans)

G R Flatman QC with J D McArdle for the respondent (instructed by Director of Public Prosecutions (Victoria))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

David Patrick Ousley v The Queen

Criminal law - Warrants authorising use of listening devices issued under s 4A Listening Devices Act 1969 (Vic) - Whether warrants amenable to collateral review - Whether a warrant issued by a judge of a superior court must disclose jurisdiction on its face - Whether partial disclosure of jurisdiction may be used as evidence that the court has failed to take into account required considerations - Whether partial disclosure renders warrant invalid - Validity of O 7 r 7.05 Criminal Appeals and Procedures Rules 1988 (Vic).

TOOHEY J. The appellant was charged on three counts under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He was convicted after trial on count 1, trafficking in a drug of dependence, methylamphetamine. He had earlier pleaded guilty to count 2, involving cultivation of a drug of dependence, Cannabis L. On count 3, involving possession of Cannabis L, a verdict of acquittal was entered.

The trial

The evidence against the appellant on the count on which he was convicted was obtained largely through listening devices installed at premises which the appellant frequented. There were some 50 tapes of recorded conversations. In this appeal the appellant challenged the reception of that evidence. He did so on the ground that the warrants authorising the use of the listening devices were invalid. There were two warrants issued by judges of the Supreme Court of Victoria, one by Marks J on 17 January 1992 and the other by Coldrey J on 6 February 1992.

At the trial, before the jury was empanelled, counsel for the appellant foreshadowed an attack on the admissibility of any evidence obtained by means of the listening devices. The trial judge doubted that he had jurisdiction, during the trial, to entertain a collateral attack on the validity of warrants authorised by the Supreme Court of Victoria. Counsel for the appellant declined an offer by the trial judge to consider an adjournment of the trial so that an application might be made to the Supreme Court for a ruling on the validity of the warrants. The trial judge then held that he had no jurisdiction to determine a collateral attack, the jury was empanelled and the trial proceeded.

Because of the course the trial took, no question arose as to the exercise of any discretion by the trial judge to exclude the recorded material on the ground that it had been procured illegally[1]. If the appellant succeeds in his argument before this Court and there is a new trial, the question of the exercise of the discretion will arise.

The Listening Devices Act

The scheme of the Listening Devices Act 1969 (Vic) ("the Act") is to make it a criminal offence for a person to use a listening device to overhear, record, monitor or listen to any private conversation, to which the person is not a party, without the express or implied consent of the parties to the conversation: s 4(1)(a). However, the provision establishing an offence does not apply to the use of a listening device by a designated police officer acting under and in accordance with a warrant granted under s 4A of the Act: s 4(3). Thus the use of a listening device in accordance with s 4(3) constitutes an exception to the general prohibition on listening devices.

Section 4A is critical to the outcome of the appeal. As the section appears in its entirety in other judgments, I shall repeat only those sub-sections which bear most directly on the issues raised by the appeal.

"(1) On complaint made by a member of the police force that he or she suspects or believes -

(a) that an offence has been, is about to be or is likely to be committed; and

(b) 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, the use of a listening device is necessary -

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device.

...

(4) A warrant granted by the Supreme Court under this section must specify the following matters:

(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

(g) The time within which the person authorised to use a listening device pursuant to the warrant is required to report under section 5 to the Minister administering the Police Regulation Act 1958".

The Act itself does not identify any particular form of warrant nor is any form prescribed by regulations made under the Act[2]. However a form of warrant is to be found in the Criminal Appeals and Procedures Rules 1988 (Vic)[3] ("the Rules"). Order 7 r 7.05 provides that a warrant authorising the use and retrieval of a listening device "shall be in Form 7B". Form 7B is set out in the judgment of Kirby J. I shall not repeat it though reference to some parts of the form will be necessary.

The appellant mounted several challenges to the warrant. He argued that each warrant was invalid on its face. But he also attacked the validity of the relevant rules. The Rules are expressed[4] to be made under s 25 of the Supreme Court Act 1986 (Vic) and under s 50 of the Interpretation of Legislation Act 1984 (Vic). The Crown relied upon each of the statutes as authority for the relevant rules and Form 7B. Whether that reliance is justified is a matter discussed later in these reasons.

The warrants

Each warrant accords with Form 7B. It recites the satisfaction of the Supreme Court that there are reasonable grounds for the suspicion or belief of the police officer seeking the warrant that an offence has been, is about to be or is likely to be committed: see s 4A(1)(a) of the Act. However neither warrant recites that the Supreme Court is satisfied that the use of a listening device is necessary for the purpose of an investigation: see s 4A(1)(b) of the Act. The appellant argued that accordingly each warrant failed to show jurisdiction on its face and was invalid. He argued further that by reciting its satisfaction in terms of s 4A(1)(a) but not in terms of s 4A(1)(b), it must be taken that the Court was in fact not satisfied in terms of the latter paragraph and, accordingly, that the Court lacked authority to issue either warrant.

The Court of Appeal

A number of matters were canvassed before the Court of Appeal which have no relevance to the present appeal.

On matters which are relevant, the Court in a joint judgment[5] (Hayne JA, Southwell and Smith AJJA) began by emphasising that a listening device is an invasion of privacy and that there must be strict compliance with any statutory conditions attaching to the issue of a warrant which authorises such an invasion[6]. Nevertheless, the Court concluded that the omission of any recital in terms of s 4A(1)(b) was a result of adhering to Form 7B rather than evidence of an omission on the part of the judge issuing the warrant to give consideration to the requirements of that paragraph. In effect the Court said that since the omission was explicable by reason of the prescribed form, no inference should be drawn that the judge had not directed his attention to the requirements.

In this part of its judgment the Court focused on the argument that there had been a failure to consider a requisite matter. The Court then turned its attention to the argument that loomed large in this Court, namely, whether the warrants were invalid as failing to show jurisdiction on their face. After an extensive analysis of such matters as the presumption of regularity and whether the issue of the warrant was an administrative act, the Court concluded[7]:

"[N]either of these recitals is required by the statute and to hold that if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant".

This recital does scant justice to the analysis conducted by the Court of Appeal but it serves to set the scene for the argument presented to this Court. To that argument I now turn.

The argument in this Court

Four issues arose for consideration in this Court.

1. Was the trial judge correct in deciding that he lacked jurisdiction to determine the validity of the warrants, thereby depriving the appellant of the opportunity for his Honour to exercise a Bunning v Cross discretion in his favour? Put another way, were the warrants amenable to collateral review by the trial judge?

2. Was the failure of each warrant to state that the Supreme Court had considered the matter prescribed by s 4A(1)(b) evidence that the Court had not considered the matter and hence there was no authority to issue the warrant?

3. Was each warrant invalid for failing to show jurisdiction on its face?

4. In so far as the Rules of Court purported to authorise the form of warrant, were those Rules valid?

If the warrants are held invalid, a further question arises, namely, whether the trial judge should have exercised his discretion to exclude the evidence. Linked to this question is the applicability of the proviso to which s 568(1) of the Crimes Act 1958 (Vic) relates.

Collateral review

The trial judge reached his decision that he had no jurisdiction to determine the validity of the warrants after a consideration of Murphy v The Queen[8] and Carroll v Attorney-General (NSW)[9].

Murphy concerned a provision of the Listening Devices Act 1984 (NSW) which was not materially different to s 4A(1) of the Act. The primary judge, whose decision was upheld by the Court of Criminal Appeal, refused to allow counsel for the appellants to investigate the circumstances leading to the issue, by a judge of the Supreme Court, of a warrant to use a listening device. This Court held that to determine the admissibility of evidence obtained by the use of a listening device under the apparent authority of a warrant, the trial judge must decide merely whether the warrant was regularly granted by the Supreme Court and cannot inquire into the sufficiency of the material placed before the Court by the applicant for the warrant. Mason CJ and I said[10]:

"The admissibility of the evidence ... depended on the existence of the warrant, not on the sufficiency of the grounds for granting it."

In Carroll the plaintiff sought a review of warrants issued under the same legislation considered in Murphy. But the review was sought in advance of trial and was thus not by way of collateral review. The Court held that the evidence relied on by the plaintiff was insufficient to establish a case warranting the orders sought. The judgments in Carroll do not assist in resolving this particular challenge by the appellant.

To the extent that the appellant sought to challenge the warrants on the ground of insufficiency of material, that challenge must be rejected. However, that was not the extent of the appellant's challenge. I took him to be saying as well that, on its face, each warrant evidenced a lack of satisfaction by the judges of the requisite matters and hence that there was an irregularity in the issue of the warrants. The reasoning in Murphy does not dispose of that argument. Nor is it disposed of by McArthur v Williams¹¹ which was applied in Murphy. In the earlier case Dixon, Evatt and McTiernan JJ drew a distinction between the "validity" of the order for a warrant to issue and the "legal propriety" of its making[12]. Accordingly that decision does not preclude an argument which looks to a warrant on its face.

The availability of collateral review of a warrant on its face is often bound up with the nature of the authority which issues the warrant. In the present case the trial judge, a County Court judge, was reluctant to review the decisions of two judges of the Supreme Court. If the decision to issue a warrant was, in each case, a judicial act, his reluctance is understandable though s 4A(8) provides that, if the regulations so permit, the power to issue a warrant may be exercised by the County Court or a Magistrates' Court. Furthermore, the appellant's trial might have taken place in the Supreme Court instead of the County Court. In that event no reluctance based on hierarchy could have constituted a stumbling block.

If the decision to issue a warrant was an administrative act, concerns based on the inappropriateness of collateral review lose much of their significance. In Love v Attorney-General (NSW)[13] the Court held that the act of a judge issuing a warrant for the use of a listening device pursuant to a provision of the Customs Act 1901 (Cth) is an administrative, not a judicial, act. Having reached that conclusion the Court said[14]:

" Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority."

This proposition was affirmed in Coco v The Queen[15] and in Grollo v Palmer[16].

It follows that in respect of this part of the appellant's challenge there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements. The first of these propositions must be read subject to what follows later in these reasons as to whether the Act requires that a warrant disclose jurisdiction on its face.

Absence of reference to s 4A(1)(b)

It is important to understand the nature of the challenge to the warrants based on the absence of any mention of the matter identified in s 4A(1)(b).

The challenge is not identical with that based on the proposition that the warrants failed to disclose jurisdiction on their face. Nor is it the same as the argument just discussed though a somewhat fine line has to be drawn in this regard. The appellant's argument, as I understood it, was that in the absence of any reference to the matter identified in s 4A(1)(b) there was nothing to indicate that either judge had reached the requisite state of satisfaction as to the matters set out in s 4A(1). This, it was said, did not involve an inquiry into the sufficiency of the material placed before the judges; in the absence of any other evidence, a conclusion was inevitable from the face of the warrant that the judge did not have the requisite satisfaction.

In part the argument is no more than an attack on the sufficiency of the grounds on which the warrants were based. To that extent the argument must fail for the reasons I have already given. The argument gains more force when couched in terms that there must be jurisdiction to issue a warrant and that if a warrant asserts any jurisdictional factor, it must disclose all jurisdictional factors.

To support this argument, the appellant relied on Tran Nominees v Scheffler[17]. In that case a search warrant was issued pursuant to a provision of the Controlled Substances Act 1984 (SA) which required the issuing authority to be satisfied that there are reasonable grounds for suspecting that an offence against that Act has been, is being, or is about to be committed. The warrant stated that there were reasonable grounds for suspecting that "there is equipment used in connection with a prohibited substance" but it failed to mention any offence. In the Full Court Cox J, with whom O'Loughlin J agreed, said[18]:

"It is one thing for a warrant to be silent about the basis for its issue, leaving the reader to assume, perhaps, that all was done with due regularity ... It is a very different thing to state, even unnecessarily, the jurisdictional grounds and then to get them wrong ... It is really a question of what conclusion, if any, one is disposed to draw from an inappropriately expressed recital."

Of course what we have here is the situation of a ground of jurisdiction which has not been stated at all. If Tran Nominees is relevant, the question is: what inference can be drawn from the absence of any reference to s 4A(1)(b)? The Crown argued that Tran Nominees was readily distinguishable from the instant case because

(a) Tran Nominees related to a search warrant that had to be shown to the person whose premises were about to be searched or entered and certain rights and obligations arose on production of the warrant;

(b) in Tran Nominees the warrant was issued by a police officer; and

Tran Nominees is, I think, distinguishable and the grounds just mentioned offer the basis for distinction. In particular, while both search warrants and listening devices involve an invasion of privacy, any analogy between the two cannot be pressed too far. A search warrant will ordinarily be produced to the person whose premises are to be searched whereas the authority for a listening device will necessarily not be known to the person whose communications are to be recorded. It follows that in the case of a listening device no opportunity is provided for an assessment of its lawfulness at the time of its installation[19].

However the resolution of this particular issue lies in the fact that each warrant was in the form set out in the Rules. The reference in the warrant to the matter identified in s 4A(1)(a) does no more than show that the form was followed. Equally, the absence of any reference to the matter in s 4A(1)(b) does not warrant any inference being drawn save that the judge followed the printed form. This argument must fail.

Must a warrant disclose jurisdiction on its face?

There are two aspects to the question posed in the heading.

1. Does the Act provide a code of the matters which a warrant must state on its face?

2. If the Act does not exclude matters which are required at common law, what are those matters?

Section 4A(4) of the Act opens with the words "A warrant granted by the Supreme Court under this section must specify the following matters." There follows a list of matters which are of a practical nature, such as the premises on which a listening device is to be installed, the name of any person whose conversation is to be recorded and the period of the warrant. The sub-section is set out in full earlier in these reasons. Section 4A(3) requires that a warrant authorise and require the retrieval of the listening device and authorise entry on to the premises for that purpose. Again, these are practical matters.

Whether or not the Act be seen to provide a code of the matters which a warrant must stage on its face, it is apparent that the Act does not expressly require that the basis of jurisdiction be disclosed on the face of a warrant. The situation is similar to that considered by the Full Court of the Federal Court in Karina Fisheries Pty Ltd v Mitson[20].

In that case search warrants had been issued pursuant to two different statutes. Relevantly, s 71 of the Proceeds of Crime Act 1987 (Cth) listed matters to be stated in a search warrant issued under the section. These did not include any preconditions but it was argued, by reference to R v Tillett; Ex parte Newton[21], that the failure to show jurisdiction on their face rendered the warrants invalid. Having dealt with the requirements of the common law, the Full Court said[22]:

" There is in the present case a short answer to the appellants' submission. Section 71(7) sets out specifically the matters that are required to be stated in a warrant issued under that section. The matters required statutorily to be set out do not include the satisfaction of the judge pursuant to the matters referred to in s 71(5) or s 71(6)(b). In these circumstances the rule expressio unius est exclusio alterius has application. While as has been often said, that rule is to be applied with caution cf: Tasmania v Commonwealth and Victoria [1904] HCA 11; (1904) 1 CLR 329 at 343; Rylands Bros (Aust) Ltd v Morgan [1927] 27 SR (NSW) 161 at 168-169 ... it seems to us that the legislative intention in s 71(7) was to provide a code of the matters that were required to be stated in a search warrant to the exclusion of matters that would otherwise be required by the application of common law principles.

We should say however that while not a matter going to validity, it is extremely desirable that the warrant express in terms that the relevant satisfaction is held so that it is clear on its face to all to whom the warrant may be shown that the judge issuing it has given attention to the matters which he is required to consider under the provisions of s 71." (emphasis added)

The language of the Full Court is applicable to the present case. Section 4A(3) and (4) sets out comprehensively all the matters to be stated in a warrant, there is otherwise no statutory requirement to disclose jurisdiction on the face of a warrant and hence the omission of one precondition cannot of itself invalidate the warrant. As the Court of Appeal observed in the passage quoted earlier:

A contrary argument fastens on to the requirements of the common law and treats the Act as assuming that the warrant will state the matters on which its validity depends. There is some support for this approach in that, if the regulations so provide (which they do[24]), the County Court and a Magistrates' Court may issue a warrant. While it may not be necessary for a warrant issued by the Supreme Court to show jurisdiction on its face, so the argument runs, that cannot be so in the case of an inferior court. Since the Act draws no distinction between the possible issuing authorities, a warrant issued by the Supreme Court must show jurisdiction on its face.

Certainly concerns have been expressed by the courts where the issue of a warrant (usually a search warrant) is at the instance of an authority other than the Supreme Court and opinions have been expressed that there is no presumption of regularity in such a case[25]. However, it must be remembered that we are dealing here with an administrative, not a judicial act. The place of the issuing authority in the judicial hierarchy does not therefore offer a satisfactory basis for distinction. However there is no particular justification for concluding that because a presumption of regularity may not apply in certain cases, no presumption attaches in the case of the Supreme Court. A warrant issued at the instance of the Supreme Court must be dealt with on its own merits. It should also be noted that s 4A(8) enables the regulations to confer the power of the Supreme Court on the County Court and Magistrates' Court "in such circumstances as are prescribed". It is thus possible for the regulations to prescribe the circumstances in which those courts may issue a warrant and to differentiate them from the Supreme Court.

In the present case each warrant met the statutory requirements as to what must appear.

Are the Rules of Court invalid?

As mentioned earlier, the respondent submitted that the source of the power to make the Rules which prescribed Form 7B could be found in s 25(1)(f)(i) of the Supreme Court Act 1986 (Vic) and s 50 of the Interpretation of Legislation Act 1984 (Vic).

The former empowers the Judges of the Supreme Court to make rules with respect to "Any matter relating to ... the practice and procedure of the Court". Since a warrant is an administrative act unrelated to legal rights, this provision cannot support Form 7B.

The Interpretation of Legislation Act, s 50, provides:

"Where an Act ... confers any jurisdiction on a court ... the authority having for the time being power to make rules or orders regulating the practice and procedure of that court ... may, unless the contrary intention appears, make such rules or orders ... as appear to the authority to be necessary for regulating the practice and procedure of that court ... in the exercise of the jurisdiction so conferred".

This provision encompasses administrative as well as judicial functions; it is a sufficient source of authority for the relevant rules and the prescription of Form 7B.

Conclusion

The issuing of each warrant was an administrative act open to collateral review, limited to the validity of the warrant on its face. But on such a review the trial judge should have found that there was no requirement that the warrant disclose jurisdiction on its face, that no inference of invalidity should be drawn from the failure to include the matter mentioned in s 4A(1)(b), that the proper inference to be drawn was that each judge was simply complying with Form 7B, that in doing so each judge met the requirements of the Act as to what must appear, and that the warrant was valid.

Accordingly, had the matter reached that stage, the trial judge should have found that the appellant was not entitled to the exercise of a Bunning v Cross discretion to exclude the evidence obtained by the use of listening devices.

The appeal should be dismissed.

GAUDRON J. The appellant was presented for trial in the County Court of Victoria, charged with three offences relating to drugs. He pleaded guilty to one, was acquitted of another and was convicted on the third charge of trafficking in a drug of dependence[26]. Evidence was led at his trial of conversations which had been recorded by means of a listening device used in accordance with two warrants purportedly issued on 17 January and 6 February 1992 by the Supreme Court of Victoria pursuant to s 4A(1) of the Listening Devices Act 1969 (Vic) ("the Act"). Application was made to the trial judge, Judge Wodak, to exclude evidence of the conversations. It was put that the warrants were invalid and, thus, that the evidence was illegally obtained. His Honour declined to consider the application, holding that he had no power to rule on the validity of warrants issued by the Supreme Court.

Following his conviction, the appellant sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria, arguing, amongst other things, that the warrants were invalid and that he had been deprived of the opportunity of having the trial judge consider whether evidence of the recorded conversations should be excluded. His application was dismissed, it being held, so far as is presently relevant, that the warrants were valid[27]. The appellant now appeals to this Court, again contending that the warrants are invalid.

The power to issue warrants for the use of listening devices is conferred in a statutory context in which, broadly speaking and subject to certain exceptions, it is an offence to use a listening device to "overhear record monitor or listen to [a] private conversation"[28]. One of the exceptions relates to the use of listening devices by members of the police force pursuant to warrants issued under s 4A of the Act[29]. Warrants may be issued by the Supreme Court under sub-s (1) of s 4A or by the County Court or a Magistrates' Court under regulations made pursuant to ss 4A(8) and 9 of the Act.

For the moment, it is sufficient to refer to s 4A(1) of the Act which confers power on the Supreme Court in these terms:

" On complaint made by a member of the police force that he or she suspects or believes-

(a) that an offence has been, is about to be or is likely to be committed; and

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device."

The warrants in question recite the Supreme Court's satisfaction that there were reasonable grounds for the belief of the police officer to whom they were issued that, in terms used in s 4A(1)(a) of the Act, offences had been committed and were likely to be committed. They do not, however, make any reference to its satisfaction that there were reasonable grounds for the belief that, in the terms of s 4A(1)(b), the use of a listening device was necessary for the investigation of those offences or to enable evidence to be obtained of their commission or of the identity of the offender.

In so far as the warrants recite the satisfaction of the Supreme Court that there were reasonable grounds for belief as to matters specified in s 4A(1)(a) of the Act and are silent with respect to the matters specified in s 4A(1)(b), they follow the form prescribed in the Criminal Appeals and Procedures Rules 1988 (Vic) ("the Rules") as they stood in 1992[30]. This notwithstanding, it is contended that the warrants are invalid by reason that they do not recite the Court's satisfaction that there were reasonable grounds for the belief that a warrant was necessary for one or other of the purposes specified in s 4A(1)(b) of the Act.

Before turning to the validity of the warrants, it is convenient to note that it was held in Love v Attorney-General (NSW), with respect to a warrant issued by the Supreme Court of New South Wales pursuant to a provision which is not relevantly distinguishable from s 4A(1) of the Act[31], that a warrant is not a judicial order but an "instrument made pursuant to a circumscribed statutory authority."[32] In reaching that conclusion, this Court identified the issue of the warrant in question as "a step in [an] administrative process and ... thus an administrative function."[33] The same is necessarily true of the step of issuing a warrant under s 4A(1) of the Act.

Once it is accepted, as it must be, that, even though issued by the Supreme Court, a warrant under s 4A(1) of the Act is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings, no matter the court in which those proceedings are heard. It is to be remembered, however, that inquiry as to the validity of a warrant is a limited inquiry. Validity depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue[34].

The warrants involved in this case are challenged on two distinct grounds. First, it is argued that a warrant is only valid if it recites compliance with the conditions governing its issue, or, as it is sometimes said, if it discloses jurisdiction on its face. In this respect, it is common ground that a warrant may be issued only upon satisfaction that there are reasonable grounds for belief as to the matters specified in both pars (a) and (b) of s 4A(1) and that, if the Act requires that a warrant state the Supreme Court's satisfaction that there were reasonable grounds for belief as to both those matters, the Rules could not validly provide otherwise.

The second challenge is based on the proposition that, on their face, the warrants disclose a want of jurisdiction. In this regard, it is argued that, because they state the Supreme Court's satisfaction that there were reasonable grounds for the belief that offences had been and were likely to be committed, but not its satisfaction that there were reasonable grounds for the belief that the use of a listening device was necessary for one or other of the purposes specified in s 4A(1)(b), it must be taken that the Court was not satisfied as to that last matter and, therefore, lacked authority to issue the warrants.

It is convenient to deal first with the argument that the warrants disclose a want of jurisdiction on their face. If a warrant discloses that an essential or jurisdictional pre-condition was not satisfied, as was the case in Tran Nominees Pty Ltd v Scheffler[35], it is clearly invalid. A recital which misstates an essential pre-condition may be taken to indicate that that condition was not satisfied, whether or not it is necessary for the warrant to recite the matters upon which its validity depends[36]. However, it is a matter of inference in each case whether the misstatement has that effect[37]. So, too, it is a matter of inference whether the statement that one of two pre-conditions has been satisfied indicates that the other was not. In my view, it does not unless, perhaps, it is necessary that the warrant recite its satisfaction of that condition. And certainly no inference of that kind should be drawn where, as here, the omission is the result of adherence to a prescribed form.

The warrants involved in this appeal derive their force entirely from statute. Necessarily, the question whether they are valid only if they recite the matters upon which their validity depends is a question of statutory construction. More precisely, it is a question whether an inference should be drawn that recital of those matters is or is not necessary, the Act making no provision one way or the other in that regard. And in ascertaining which of those two inferences should be drawn, it is appropriate to have regard not only to the provisions of the Act but to the position with respect to warrants under the general law and, also, the nature of the warrants for which the Act provides.

It is clear from the decided cases that, under the general law, a distinction is to be made between warrants issued by a "subordinate authority"[38] or by "magistrates or others acting by special statutory authority and out of the course of the common law"[39], on the one hand, and, on the other, warrants issued by "a Superior Court acting according to the course of the common law"[40]. In the case of warrants issued by magistrates or inferior courts or tribunals, it is necessary for them "to shew their authority on the face of them by direct averment or reasonable intendment."[41] There is no such requirement with respect to warrants issued by a superior court[42].

It was suggested in R v Tillett; Ex parte Newton[43], by reference to Broom's A Selection of Legal Maxims[44], that the difference with respect to warrants issued by magistrates and inferior tribunals, as distinct from those issued by a superior court, is referable to the presumption of regularity expressed in the Latin maxim omnia praesumuntur rite et solemniter esse acta[45]. Attention was drawn in Tillett to the statement in Broom that the presumption does not apply to give jurisdiction to inferior courts and, also, to the statement that "in the case of an order by justices, their jurisdiction must appear on the face of [the] order; otherwise, it is a nullity ... unless, indeed, [it] follows a form authorized by statute."[46]

The presumption of regularity explains why it is unnecessary for the warrant of a superior court to disclose jurisdiction on its face. It does not, however, explain why it is necessary for jurisdiction to be disclosed in the case of warrants issued by magistrates and inferior tribunals. It may be that the rule to that effect developed as a means of ensuring that the supervisory jurisdiction of superior courts was not rendered nugatory[47]. Were there no such rule - or one to much the same effect - there would be no means of detecting the failure of magistrates and inferior courts to comply with statutory requirements and, relevantly, no means of ensuring that warrants are regularly issued[48].

Whatever the position under the general law for ensuring that warrants are regularly issued, there is, in practice, little opportunity for determining whether that is so in the case of warrants for the use of listening devices. This flows from the nature of the activity which the warrant authorises and the procedures which necessarily attend its issue. Those procedures are not significantly different from those involved in the issue of warrants for the interception of telephonic communications, which procedures were described in Grollo v Palmer[49] in these terms:

And in Grollo it was said of a decision to issue a warrant for the interception of telephone calls that:

"Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge's decision to issue a warrant. Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information."[50]

That description is equally true of a decision to issue a warrant for the use of a listening device.

It is necessary to turn now to the provisions of the Act. As already mentioned, the power to issue warrants is not confined to the Supreme Court. By s 4A(8) it is provided that:

" The regulations may provide that, in such circumstances as are prescribed, the powers of the Supreme Court under this section may be exercised by the County Court or a Magistrates' Court, and for that purpose a reference in this section to the Supreme Court is to be construed as a reference to the County Court or a Magistrates' Court, as the case requires."

The concluding words of sub-s (8) are important. They indicate that, in issuing warrants pursuant to regulations made under that sub-section, the County Court and Magistrates' Courts are not acting as delegates of the Supreme Court but as separate repositories of power.

Regulations were made pursuant to ss 4A(8) and 9[51] of the Act in 1987[52] and, again, in 1997[53]. In general terms, it has been possible since 1987 for a warrant to be issued by the County Court or by a Magistrates' Court for the installation or use of a listening device outside the Melbourne metropolitan area[54] if, in the case of a warrant issued by the County Court, that Court is satisfied that it is not practicable for the complaint to be made to the Supreme Court or, in the case of a warrant issued by a Magistrates' Court, if that Court is satisfied that it is not practicable for the complaint to be made to either the Supreme Court or the County Court.

There is nothing in the Act to indicate that the formal requirements for the validity of a warrant should differ according to whether it is issued by the Supreme Court, on the one hand, or by the County Court or a Magistrates' Court, on the other. Thus, if it is not necessary for a warrant of the Supreme Court to state those matters upon which its validity depends, it is not necessary for those matters to be stated in warrants issued by a Magistrates' Court or by the County Court. And if the Act is construed to that effect, there is no means of ensuring that those courts have complied with the requirements of ss 4A(1)(a) and (b), unless it happens that a warrant purports so to state and, in the process, so misstates one or both of those matters so as to give rise to the inference that the Act's requirements were not, in fact, satisfied.

If the Act provided for warrants to be issued by and only by the Supreme Court, it may be that it would properly be construed as evincing an intention that a warrant need not state the matters upon which its validity depends. Such a construction might properly follow from the Act's silence in a context in which power to issue warrants was conferred on a superior court. However, different considerations apply where, as here, power is also conferred on courts lower in the judicial hierarchy. The only means of ensuring that warrants issued by those courts have been regularly issued is the requirement which arises under the general law that they state the matters upon which their validity depends. That consideration directs the conclusion, in my view, that the Act should not be construed as abrogating that requirement unless there is a clear indication of an intention to that effect.

It was argued on behalf of the respondent that an indication that a warrant need not state the matters upon which its validity depends is to be found in sub-ss (3) and (4) of s 4A of the Act. Sub-section (3) provides:

" If a warrant granted by the Supreme Court under this section authorises the installation of a listening device on any premises, the Court must, by the warrant-

(a) authorise and require the retrieval of the listening device; and

(b) authorise entry onto those premises for the purpose of that installation and retrieval."

And sub-s (4) provides:

" A warrant granted by the Supreme Court under this section must specify the following matters:

(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

It was put on behalf of the respondent that sub-ss (3) and (4) of s 4A of the Act constitute an exhaustive statement of the matters which must be stated in a warrant and, thus, indicate an intention that it is not necessary that it also state those matters upon which its validity depends. In this regard, reference was made to Karina Fisheries Pty Ltd v Mitson[55], in which a similar approach was taken to a provision specifying the matters to be stated in warrants issued under the Proceeds of Crime Act 1987 (Cth).

The argument that sub-ss (3) and (4) of s 4A of the Act constitute an exhaustive statement of the matters to be stated in a warrant is, in effect, an argument that the Act should be construed by application of the rule of construction expressed in the Latin maxim expressio unius est exclusio alterius. However, that rule "must always be applied with care, for it is not [a rule] of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument"[56]. Moreover, the nature of the matters specified in sub-ss (3) and (4) tell against construing those provisions as revealing an intention that they are the only matters which need be specified.

The matters which by sub-ss (3) and (4) must be specified in a warrant are not matters which go to its validity. In the main, they are matters which define the scope of the authority conferred by the particular warrant that is issued. Thus, the warrant must specify the period for which it is in force (s 4A(4)(c)), the name of any person authorised to use a listening device and those who may use it on his or her behalf (s 4A(4)(d)), the premises on which it may be installed or the place at which it may be used (s 4A(4)(e)) and any conditions subject to which premises may be entered or a listening device used (s 4A(4)(f)), these all being matters upon which the Act is otherwise silent. So, too, a warrant that authorises the installation of a listening device on premises must authorise and require its retrieval and authorise entry onto the premises for the purpose of that installation and retrieval (s 4A(3)). Were a warrant silent as to these matters, there would be no means of ascertaining the extent of the authority which it confers.

Before turning to the other matters which, by ss 4A(4)(a), (b) and (g) of the Act, must be specified in a warrant, it is convenient to note that s 5 requires that a person to whom a warrant is granted report to the Minister administering the Police Regulation Act 1958 (Vic) with respect to the use of a listening device pursuant to the warrant. The report must specify, amongst other things, the name of any person, if known, whose conversation was recorded or listened to and the use made or to be made of any evidence or information obtained[57]. It would seem that the legislature intended to allow some flexibility with respect to the time in which a report should be made, allowing, in s 4A(4)(g), that that matter should be specified in the warrant when issued, rather than being specified in the Act itself. And the requirement that the warrant specify the offence in respect of which it is issued (s 4A(4)(a)) and, if practicable, the name of any person whose conversations are to be recorded or listened to (s 4A(4)(b)) seems directed to ensuring that a proper evaluation can be made of the effectiveness of the use made of a listening device by examining the warrant and perusing the report required by s 5.

Having regard to the nature of the matters referred to in ss 4A(3) and (4) of the Act, I am unable to conclude that those sub-sections evince an intention that they are the only matters which need be stated in a warrant. Rather, the preferable view is that the Act assumes that a warrant will state the matters upon which its validity depends and, in addition, directs that it state those matters which define the extent of the authority it confers and, also, those other matters which enable an evaluation to be made of the effectiveness of its use. I would so construe the Act. And it follows from that construction that, unless a warrant states the court's satisfaction as to both matters specified in ss 4A(1)(a) and (b) of the Act, it is invalid.

There is one consideration, albeit very much a subsidiary consideration, which tends to support the conclusion that the Act should be construed as requiring that a warrant state the court's satisfaction as to both matters specified in ss 4A(1)(a) and (b) of the Act. It may be assumed that the view was taken by the legislature that, by conferring power on courts to issue warrants, the Act would afford a measure of protection of the rights of individuals and ensure that "the appropriate balance [was] kept between ... law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other."[58] In this regard, it may be noted that it is a widely held view that it is desirable, in the public interest, that warrants for the use of electronic surveillance equipment only be issued by judges[59]. And in the main, that is the course that has been adopted in this country[60].

The view that it is appropriate for courts to issue warrants for the use of electronic surveillance equipment is, however, by no means universal[61]. At the very least, it must be acknowledged that the power to issue warrants may impact upon the discharge of judicial functions in that judges may have to disqualify themselves from cases involving persons in respect of whom they have been provided with information in the course of an application for the issue of a warrant[62]. Moreover, public confidence in the judicial process is put at risk if, as is suggested in this case, warrants are issued otherwise than in strict accordance with statutory requirements[63].

It seems to me that the public interest in ensuring that an appropriate balance is kept between the rights of the individual and the needs of law enforcement authorities is best protected and public confidence in the judicial process is best maintained if the Act is construed as requiring that a warrant recite the matters on which its validity depends.

It follows from what has been said that the warrants in issue in this case are invalid. However, it does not follow that the appeal should be allowed. The purpose of the discretion to exclude illegally obtained evidence is "to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."[64] In the present case, the conduct of the law enforcement officers was unlawful, if at all, only in a very technical sense: there is nothing to suggest that they were aware that the warrants in question were even arguably defective, much less any culpable impropriety on their part.

Given the purpose of the discretion to exclude illegally obtained evidence, it could not, in my view, have been properly exercised in favour of the appellant in this case. Thus, although the trial judge wrongly refused to consider whether evidence of the recorded conversations should have been excluded, that did not, in the circumstances, result in a substantial miscarriage of justice. Accordingly, this is an appropriate case for the application of the proviso to s 568(1) of the Crimes Act 1958 (Vic)[65].

The appeal should be dismissed.

McHUGH J. Pursuant to the grant of special leave, the appellant appeals against an order of the Court of Appeal of Victoria which upheld his conviction for trafficking in a drug of dependence (methylamphetamine) contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He contends that evidence obtained by use of warrants, issued by the Supreme Court of Victoria under the Listening Devices Act 1969 (Vic) ("the Act"), was unlawfully obtained and should have been excluded by the judge at his trial.

The questions in the appeal are:

(1) whether a trial judge in the County Court of Victoria has jurisdiction to rule on the validity of a warrant issued under the Act by the Supreme Court of Victoria; and

(2) whether a warrant issued under the Act by the Supreme Court of Victoria is valid where the warrant recites compliance with only one of the two statutory prerequisites for the issue of the warrant.

In my opinion, both questions in the appeal should be answered, Yes. The evidence was not unlawfully obtained. The appeal should be dismissed.

The factual and procedural background

In August 1994, the appellant was presented for trial on an indictment in the County Court of Victoria in Melbourne. The indictment contained three counts, all of which alleged offences against the Drugs, Poisons and Controlled Substances Act. The appellant pleaded not guilty to the first count which alleged he had trafficked in a drug of dependence (methylamphetamine). He pleaded guilty to the second count which alleged that he had cultivated a narcotic plant (cannabis). The trial judge, Judge Wodak, directed an acquittal in respect of the third count which alleged that he possessed a drug of dependence (cannabis).

At the commencement of the trial on the first count, counsel for the appellant objected to the admissibility of some 50 tapes of conversations obtained by the use of listening devices installed pursuant to two warrants issued under s 4A of the Act. He contended that the evidence was unlawfully obtained because the warrants were invalid. Judge Wodak held that he had no jurisdiction to entertain the application. He admitted the conversations as evidence. The appellant was convicted and sentenced to three years imprisonment with a non-parole period of two years. On an application for leave to appeal against the conviction, the Court of Appeal[66] unanimously held that the warrants were validly issued[67] and dismissed the application[68].

The statutory framework

Section 4(1) of the Act contains a general prohibition on the use of listening devices and relevantly prohibits a person from using:

"any listening device to overhear record monitor or listen to any private conversation to which he is not a party ... without the consent express or implied of the parties to the private conversation."

However, sub-s (1) of s 4 is subject to sub-s (3) which relevantly states that sub-s (1) shall not apply -

"(a) to or in relation to the use of any listening device by -

(i) a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by -

the Chief Commissioner of Police;

the Deputy Commissioner of Police; or

an officer of police of or above the rank of Inspector who has been appointed in writing by the Chief Commissioner to authorize the use of listening devices -

under and in accordance with a warrant granted under section 4A".

Section 4A is entitled "Warrants authorising use of listening devices" and sub-s (1) relevantly provides:

"On complaint made by a member of the police force that he or she suspects or believes -

(a) that an offence has been, is about to be or is likely to be committed; and

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device."

Sub-section (2) of s 4A provides for a number of matters that the Supreme Court must have regard to in determining whether a warrant should be granted under s 4A. Sub-section (3) specifies that warrants authorising installation of a listening device must authorise and require retrieval of the listening device and authorise entry for the purpose of installation and retrieval.

Sub-section (4) provides that warrants granted under s 4A must specify the following matters:

"(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

A County Court judge has jurisdiction to rule on the validity of a warrant issued under the Act by a Supreme Court judge

Both warrants issued by the Supreme Court judges recited compliance with s 4A(1)(a) of the Act, but neither recited compliance with s 4A(1)(b). They followed the form of warrant prescribed by O 7.05 of the Criminal Appeals and Procedures Rules 1988 (Vic)[69]. The Criminal Appeals and Procedures Rules constituted Ch VI of the Supreme Court Rules (Vic). Form 7B of those Rules contained[70] a recital of satisfaction with respect to s 4A(1)(a) but not with respect to s 4A(1)(b).

The appellant contends that on their face the warrants showed that the issuing judges had not been satisfied of the matter referred to in s 4A(1)(b) of the Act. That being so, he contends that the warrants were invalid and that the evidence obtained pursuant to the warrants had been obtained illegally. He contends that, in the exercise of his discretion, Judge Wodak should have rejected the tender of the taped conversations. The learned judge had said:

"It seems from my understanding of the matter that the application ... would require me to rule whether the warrant was validly issued by each of the judges of the Supreme Court, and I don't regard myself as having the power to embark upon such an exercise and I would refer to the decision of the New South Wales Court of Appeal in Carroll[71] and also ... Murphy[72] ... And on the basis of that, I rule that I have no jurisdiction to entertain this application."

This ruling raises the question whether a judge hearing a criminal trial in the County Court of Victoria has jurisdiction to hear a collateral attack on the validity of a warrant issued by a Supreme Court judge pursuant to the provisions of the Act.

A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision[73]. In In re Preston[74], however, Lord Scarman used the term "collateral challenge" to include any process challenging a decision - including an application for judicial review - other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term "collateral challenge" is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues[75].

The Supreme Court of Victoria is a superior court of record. Judicial orders of superior courts cannot be made the subject of a collateral challenge. Such orders are valid until they are set aside or varied by appeal to a higher court even if they have been made in excess of jurisdiction[76]. They cannot be treated as nullities[77]. It is not open to an inferior court to ignore them. Indeed, a superior court "which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law"[78]. If warrants issued under the Act by the Supreme Court are judicial orders, it follows that the trial judge was correct in holding that he had no jurisdiction to entertain a collateral challenge to their validity.

The nature of a warrant issued under the Act

A warrant is a document issued under the hand of a designated person authorising the person or persons to whom it is addressed to do some act which would otherwise be unlawful[79]. If it is issued by a court in the course or for the purpose of an exercise of judicial power, its issue will invariably be a judicial act and not challengeable in collateral proceedings. Writs of execution, attachment and commitment, for example, are warrants. When they are issued by courts, they are judicial acts. However, not all warrants issued by courts are judicial acts. The issue of a warrant may be so removed from the exercise of judicial power that its issue is properly classified as an administrative act unless by tradition its issue has been recognised as a judicial act.

A warrant issued under the Act is far removed from the exercise of the judicial power of the Supreme Court, the County Court and the Magistrates' Courts of Victoria. Its issue is an administrative, not a judicial act. In Love v Attorney-General (NSW)[80], this Court held that a judge considering an application for a warrant under legislation similar to the Act does not perform a judicial function and is bound to act judicially only in the sense that he or she must act in a just and fair manner and with judicial detachment[81]. Warrants issued under the Act cannot be distinguished from the warrants considered in Love.

Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally. In Posner v Collector for Inter-State Destitute Persons (Vict)[82], Dixon J pointed out that:

"when a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so."

Indeed, a litigant affected by an administrative act may challenge it collaterally even though the person most directly affected by it is not a party to the litigation. Thus, in Director of Public Prosecutions v Head[83], the House of Lords upheld an order of the Court of Criminal Appeal quashing a conviction for carnal knowledge of a "mental defective" within the meaning of the Mental Deficiency Act 1913 (UK) on the ground that the certification of the woman in question was invalid even though none of the parties to the certification were parties in the criminal proceedings.

Accordingly, in principle an accused person in a criminal trial must be able to challenge collaterally the validity of a warrant issued pursuant to the Act when the warrant has been used to obtain evidence which the prosecution seeks to tender against him or her[84].

In Carmody v Mackellar[85], a case concerned with the issue of warrants pursuant to the Customs Act 1901 (Cth) and the Telecommunications (Interception) Act 1979 (Cth), Merkel J expressed the view, correctly in my opinion, that Love removed any previous doubt about a trial judge's jurisdiction to entertain a collateral attack on the issue of a warrant under those two Acts or similar legislation. His Honour attributed that doubt at least in part to "the special position of judicial or court orders, particularly in a superior court of record"[86]. Merkel J quoted the following statement made by this Court in Love[87]: "[o]nce it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority".

His Honour went on to say[88]:

"it must be open to a trial court in which the issue of validity ... arises, to hear and determine that issue ... The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error."

Thus, in Coco v The Queen[89], this Court held that a warrant issued by a Supreme Court judge as persona designata pursuant to the Invasion of Privacy Act 1971 (Q) was void. The Court found that the issue of the warrant amounted to jurisdictional error. It is implicit in the Court's reasons that the judge who presided at the trial of Coco was entitled to determine whether the warrant was validly issued[90].

In Flanagan v Commissioner of the Australian Federal Police[91], the Full Federal Court declined to review the decision of a Federal Court judge as persona designata to issue a warrant pursuant to the Telecommunications (Interception) Act. The Full Court recognised the "extremely wide" power of a trial judge in criminal proceedings to exclude prejudicial material[92]. The Court was of the view[93] that "in the criminal trial, it is open to the applicants to urge that the product, and the fruits of the product, be excluded". Necessarily implicit in this ruling is the proposition that the trial judge in the pending County Court trial could determine the validity of warrants issued by Federal Court judges.

In Haynes v Attorney General (NSW)[94], James J ruled that he had jurisdiction to entertain an application for declarations that a number of warrants issued by the Supreme Court of New South Wales pursuant to the Listening Devices Act 1984 (NSW) were invalid. His Honour distinguished the two authorities relied on by the trial judge in this case, Murphy v The Queen[95] and Carroll v Attorney-General (NSW)[96] on the basis that they concerned claims to the insufficiency of material supporting the grant of a warrant rather than the regularity of a warrant. The proceedings before James J were for declaratory relief and did not involve a collateral challenge in the sense that I have defined the term. Nevertheless, his Honour declared[97] that warrants issued by the Supreme Court were "null and void". It is the logical corollary of the learned judge's decision that neither Murphy nor Carroll prevent trial judges from determining collateral attacks on warrants issued by the Supreme Court of New South Wales now that this Court's decision in Love classifies such warrants as administrative acts and not judicial orders.

Since this Court's decision in Coco, however, a collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant. In Coco, the Court held that the Supreme Court judge, acting as persona designata, who had made an order authorising the installation of a listening device, had "misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction"[98]. It is true that the Court said that the "error might also be characterized as an error on the face of the record"[99] and that the Crown accepted that the existence of the warrant "did not preclude an attack on its validity in these proceedings in order to determine whether the evidence obtained by use of the listening device was admissible against the appellant"[100]. But the important point for present purposes is that this Court quashed the conviction of the appellant and accepted implicitly that the trial judge had jurisdiction to determine whether the issue of a warrant was void by reason of jurisdictional errors that lay behind its issue.

Both principle and authority, therefore, support the conclusion that a warrant issued under the Act by a Supreme Court judge is open to collateral challenge in a trial in the County Court of Victoria.

Absent legislation excluding judicial review or collateral challenge, it makes no difference whether the administrative act has been performed by an agent of the executive government or by a judge of a superior court. If the tentative comment by Hunt AJA in the Court of Appeal of New South Wales in Carroll[101] was intended to suggest otherwise - and I do not think that it was - it would be contrary to this Court's decision in Coco. His Honour said[102] that, notwithstanding that in Love this Court had characterised the issue of a listening device warrant as an administrative act, "it is not immediately apparent to me why the observations made by Mason CJ and Toohey J in Murphy[103] as to the absence of such a challenge process should not be accepted as still correct". In Murphy, their Honours had characterised the issue of a listening device warrant as a judicial act. They also held[104] that challenges to the admissibility of evidence obtained pursuant to a warrant must be confined to attacks on the existence of the warrant rather than the sufficiency of the grounds for granting it. In analysing a challenge to a warrant issued under the Listening Devices Act 1984 (NSW), Mason CJ and Toohey J said[105]:

"To determine the admissibility of evidence obtained by use of a listening device purportedly under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the Supreme Court. It does not inquire into the sufficiency of the material which satisfied the Supreme Court of the matters referred to in s 18(2)(b). There was neither need nor occasion for the Court in the present case to investigate the basis on which the warrant had been granted."

Their Honours also said that[106]:

"Where a warrant can be issued by the appropriate authority only upon its being satisfied of prescribed matters to be shown by the applicant for the warrant, the validity of the warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of those matters".

I think that Hunt AJA was saying no more than that insufficiency of evidence is not itself a ground of collateral challenge, a view which is supported not only by Mason CJ and Toohey J in Murphy but by Dixon, Evatt and McTiernan JJ in McArthur v Williams[107].

Properly understood, nothing in Grollo v Palmer[108] lends any support to the conclusion that a judge in a criminal trial cannot determine the validity of a warrant issued under the Act. It is true that the judgment of the majority in that case contains a statement[109] that the decision to issue a warrant "is, for all practical purposes, an unreviewable in camera exercise of executive power". But that statement must be read in its context. The warrants under consideration in Grollo were issued under the Telecommunications (Interception) Act and, as such, were specified by Sched 1 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to be decisions outside the system of review provided for in that Act. It was to that consideration and not the availability of collateral challenge that the dictum in Grollo was directed.

No doubt the efficient administration of the criminal law would be better served if trial judges lacked the power to determine collateral attacks on the validity of warrants. Important public interests are served by "the expeditious resolution of accusations of crime"[110] and by avoiding fragmentation of the criminal process[111]. Allowing criminal trial judges to determine collateral attacks on warrants once a jury is empanelled can only disrupt the orderly course of the trial and inconvenience jurors who are forced to wait around while collateral attacks are decided. The length and therefore the cost of trials must also increase by permitting collateral attacks on the validity of warrants. Collateral challenges made, without notice, during the course of a trial must also affect the listing arrangements of the criminal trial courts.

The policy of avoiding fragmentation is no doubt subject to exceptions such as permitting collateral issues to be determined where the facts are few and simple and the point is one of law[112]. However, once it is accepted that collateral challenges can be made on grounds such as addressing the wrong issue and "bad faith and impropriety"[113], many challenges to the validity of listening device warrants will take time to determine. With the issue of listening device warrants increasing dramatically[114], challenges to their validity may substantially hamper the orderly administration of the criminal justice system and have judicial officers in that system performing tasks which should be done in the civil courts. To some extent, the problem of fragmentation can be overcome by having collateral challenges to the validity of warrants determined in pre-trial hearings. Even so, the time of criminal trial judges and the courts of criminal appeal is taken up on matters that should be dealt with in proceedings for judicial review.

I am conscious of the difficulties created by permitting the issue of warrants to be challenged in the course of a criminal trial. Nevertheless, once it is accepted that the issue of warrants for listening devices is merely an administrative act, the application of established principle compels the conclusion that the validity of a warrant may be challenged collaterally in the course of a criminal trial. The matter is one which seems to call for examination by the legislature, particularly since the costs sanction that is available in civil proceedings, a sanction that acts as a deterrent against barely arguable applications, is not applicable in a criminal trial on indictment.

It follows that the learned trial judge erred in declining to rule on the validity of the warrants.

It is not necessary for a warrant issued under the Act to disclose jurisdiction on its face

The appellant submits that a warrant issued under the Act is not valid unless its terms disclose that it was authorised by law. He contends that the principles developed by the common law in relation to warrants of arrest and searches of premises are applicable to warrants authorising the issue of listening devices.

The common law courts, anxious to protect the liberty and privacy of the citizen, have always insisted that those who would invade the liberty or privacy of the citizen must unambiguously show that they have authority to do so. In pursuance of that goal, the common law courts adopted two policies. First, they limited the cases where warrants could be issued under the common law. Second, they developed a rigorous set of principles, applicable to both statutory and common law warrants alike, for ensuring that a warrant had been properly issued and that those charged with executing it were acting within their powers.

The use of warrants seems to have commenced with the practice of justices of the peace issuing warrants to arrest persons suspected of felony. The statutes which defined the jurisdiction and duties of the justices of the peace enabled them to arrest a person who had committed, was committing or whom they suspected on reasonable grounds of committing a felony. In the course of time, the justices began to issue warrants for the arrest of persons suspected by others of committing felonies. This practice was initially condemned[115] but by the end of the seventeenth century it had become widespread[116]. At the same time, the justices of the peace began to issue warrants for the seizure of stolen goods suspected of being in a house or place. By the time Sir Matthew Hale's famous work on the Pleas of the Crown was published in 1736, it was "the constant practice ... notwithstanding the opinion of my lord Coke in his jurisdiction of courts"[117]. Apart from warrants involved in the execution of judicial power, however, warrants of arrest and search warrants for stolen goods were the only warrants which the common law recognised. Thus, in Entick v Carrington[118], Lord Camden CJ rejected the claim that the Secretary of State had a common law power to issue a search warrant to seize papers, saying:

"The case of searching for stolen goods crept into the law by imperceptible practice. It is the only case of the kind that is to be met with."

Moreover, the common law imposed stringent conditions on the issue of warrants. In the case of search warrants, for example[119]:

"There must be a full charge upon oath of a theft committed. The owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant to shew them to the officer, who must see that they answer the description. And, lastly, the owner must abide the event at his peril: for if the goods are not found, he is a trespasser; and the officer being an innocent person, will be always a ready and convenient witness against him."

The early common law also condemned the use of general warrants, that is, warrants to search all suspected places for stolen goods[120].

>From at least the seventeenth century, however, statutes have increasingly authorised the issue of warrants to search for and seize many classes of property. Early examples were the Licensing Ordinances and Acts authorising the search for and seizure of books and printings. In Inland Revenue Commissioners v Rossminster Ltd[121], Lord Wilberforce described the situation in the United Kingdom in words that are equally applicable to this country. He said:

"A formidable number of officials now have powers to enter people's premises, and to take property away, and these powers are frequently exercised, sometimes on a large scale."

The common law has met this challenge to the liberty and privacy of the subject by insisting that, subject to a legislative direction to the contrary, a warrant is invalid unless it meets certain conditions.

In Lindsay v Leigh[122], Baron Parke said that "[e]very instrument which is to affect a man's liberty or property out of the course of the common law ought, on the face of it, to shew the authority sufficiently". In the case of superior courts, the common law presumed until the contrary was shown that a judicial order had been made regularly. Omnia praesumuntur rite esse acta was the rule applied to superior courts. But in R v All Saints Southampton[123], Holroyd J said that "[t]he rule, that in Inferior Courts and proceedings by magistrates, the maxim 'omnia praesumuntur rite esse acta' does not apply to give jurisdiction, has never been questioned". In Mayor of London v Cox[124] Willes J said:

"the rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged."

Thus, subject to any statutory provision to the contrary, a warrant issued by a subordinate authority is bad unless it is apparent that it was issued by a person with jurisdiction to issue it[125] or if it fails to record the ground or grounds upon which it was issued[126] or is so vaguely worded that a person affected by it cannot know the object of the search[127] or fails to show that an offence has been committed or is suspected of having been committed[128] or fails to recite the information which was the basis of its issue[129] or fails to state an essential basis of jurisdiction[130] or fails to specify the person who is to execute the warrant[131] or indicates that the issuing authority has not addressed the right question[132] or, in the case of a search warrant, fails to specify precisely the place to be searched[133].

In support of his contention that the warrants in the present case were bad, the appellant relied on these principles and the statement of Fox J, sitting in the Supreme Court of the Australian Capital Territory R v Tillett; Ex parte Newton[134], that "a warrant issued by subordinate authority should disclose jurisdiction on its face". However, that statement is not universally true. As Lord Diplock pointed out in Rossminster[135]:

"What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute."

In Tillett, the warrants under consideration were issued by a Justice of the Peace pursuant to s 10(b) of the Crimes Act 1914 (Cth)[136]. Nothing in that legislation indicated that warrants issued by inferior courts or officers were to be given the benefit of a presumption of regularity. In the present case, although the Listening Devices Regulations 1987 (Vic)[137] prescribed circumstances in which warrants could be issued under the Act by the County Court or by a Magistrates' Court[138], the warrants in question were issued by the Supreme Court of Victoria. The proposition that a warrant must show jurisdiction on its face has so far been confined[139] to warrants issued by inferior courts and officers such as magistrates, justices of the peace and police officers, for whom the presumption of regularity applicable to processes issued by superior courts has no application[140]. Given the presumption of regularity in respect of the judicial orders of superior courts, I see no reason why that presumption should not apply to the issue of warrants by superior courts even when the issue is characterised as an administrative act. Many of the considerations that apply in the making of judicial orders apply to the issuing of such warrants by a superior court.

As I have said, in Love, this Court said that, although a judge considering an application for a warrant does not perform a judicial function, he or she is bound to act judicially in the sense that he or she must act in a just and fair manner and with judicial detachment[141]. Similarly, in Grollo, the rationale for entrusting Federal Court judges with the responsibility for issuing telephone interception warrants under the Telecommunications (Interception) Act was stated[142] to be to the "professional experience and cast of mind of a judge" which was seen as giving a "desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other". This rationale can be assumed to underlie the decision of the legislature to specifically require that the issue of warrants under the Act be carried out by the Supreme Court of Victoria[143]. Thus, although Supreme Court judges are exercising an administrative function when issuing warrants under the Act, they are still doing so as officers of a court of superior jurisdiction. The presumption is therefore applicable in this case.

However, the appellant contends that a litigant can rebut the presumption of regularity where process has been issued by a superior court. He relies on the statement in Gosset v Howard[144] that:

"it is presumed, with respect to such writs as are actually issued by Superior Courts, that they are duly issued, and in a case in which they have jurisdiction, unless the contrary appears on the face of them". (my emphasis)

The appellant contends that the recital of satisfaction with respect to only one of the conditions precedent for the issue of warrants under the Act gives rise to the inference that the issuing judges were not satisfied of the other condition precedent. That being so, he submits that "the contrary appears on the face of [the warrants]". He submits that the warrants constitute prima facie evidence that the issuing judges misdirected themselves as to the prerequisites for the issue of the warrants.

A recital of satisfaction of s 4A(1)(a) does not lead to an inference that the issuing judges were not satisfied of s 4A(1)(b)

If a statute requires two or more conditions to be satisfied before a warrant can be issued, the warrant's recitation of satisfaction with some but not all of those conditions ordinarily leads to the inference that the issuing authority was not satisfied as to all. Thus, in Tran Nominees v Scheffler[145], the applicant challenged the validity of a search warrant issued pursuant to s 52 of the Controlled Substances Act 1984 (SA). Sub-section (5) of s 52 provided that an officer of police, special magistrate or justice should not issue a warrant unless satisfied:

"(a) that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and

(b) that a warrant is reasonably required in the circumstances."

In Tran the warrant recited only that a named police inspector had reasonable grounds for suspecting "that there is equipment used in connection with a prohibited substance"[146]. In a decision which was upheld by the Full Court of the Supreme Court of South Australia, Jacobs J held[147] that the warrant recited a state of satisfaction "which, if it has any meaning at all, is not a state of satisfaction required by the statute, and therefore the warrant is bad on its face, whatever the true state of satisfaction may have been."

But there can be no universal rule that the failure of a warrant to recite satisfaction with all statutory conditions means that the warrant is invalid or that the issuing authority was not satisfied that all conditions had been fulfilled. It all depends on context. As Feldman points out[148]:

"The amount of evidence needed on the face of the warrant to show that the issuing authority exercised his discretion on proper grounds will vary from case to case, and may be affected by the relevant statute and by the identity of the issuing authority."

In Tran, the legislation was silent as to the requirements that were to be disclosed on the face of the warrant. So it was natural to conclude that the failure of the warrant to recite all the conditions for issue indicated that the issuing authority had not been satisfied as to all of them, particularly since the issuing authority was not a superior court and was obliged to show all facts going to jurisdiction. Its acts were not entitled to the presumption of regularity. On the other hand, where the statute prescribes the form of warrant, a warrant in this form will be valid even when it does not recite all the jurisdictional conditions[149]. Similarly, where the legislation specifies what the warrant must contain, nothing more can be required. Thus, in Karina Fisheries Pty Ltd v Mitson[150], the Full Court of the Federal Court held that the provisions contained in s 71(7) of the Proceeds of Crime Act 1987 (Cth) exhaustively described what the warrant must contain.

Against the background of the common law tradition of invalidating warrants, a legislature's statement as to what a warrant must contain should be regarded as exhaustive. Expressio unius est exclusio alterius. No doubt in interpreting legislation, the expressio unius est exclusio alterius rule is one to be applied with caution[151]. But given the history of the common law on this subject matter, it seems safe to proceed on the assumption that, when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose.

In the present case, s 4A(4) of the Act specifies a number of matters which must appear on warrants issued under the Act. The appellant argues that s 4A(4) should not be construed as an exhaustive list. But the present legislation cannot be persuasively distinguished from that considered by the Federal Court in Karina Fisheries. The express mention of seven matters to be contained on the face of a warrant issued under the Act must be regarded as excluding the need for any other unspecified matters to be disclosed. This conclusion is reinforced by the fact that the Act is dealing with a warrant of a very different kind from that considered in cases of arrest and the search of premises.

A listening device warrant differs from a search warrant because the execution of the former is by way of covert installation of the listening device. Its installation is intended to go undetected by the person against whom or against whose interests the warrant is executed[152]. In contrast, a search warrant is ordinarily presented to the person whose rights and liabilities stand to be affected. At common law, the requirement for the officer executing a search warrant to produce the warrant to the occupier of the premises to be searched was restricted to circumstances where the occupier requested to see the warrant[153] and this position is maintained in legislation such as the Search Warrants Act 1985 (NSW)[154]. However, provisions such as 3H of the Crimes Act 1914 (Cth) make it mandatory for the executing officer to make a copy of any search warrant issued under that Act available to the occupier of the premises. Such provisions reflect the desire to achieve an appropriate balance between a person's rights of privacy and the need to facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law[155]. Recognition is given to the importance of enabling persons whose rights of privacy stand to be affected to satisfy themselves of the authority for such action, as emphasised by Lord Wilberforce in Rossminster[156]:

"The person affected, of course, has the right to be satisfied that the power to issue [the warrant] exists: therefore the warrant should ... contain a reference to that power."

Thus although a requirement for disclosure of jurisdiction is easily understood in relation to search warrants, the need for such a requirement is less clear in the case of listening device warrants, which are not presented to affected persons prior to execution. Unlike a search warrant, a listening device warrant does not necessarily authorise what would otherwise amount to tortious conduct. Some listening devices may be installed at a remote location, so that no question of trespass will arise because there is no need to gain entry to the premises from which conversations are intended to be monitored[157]. Similarly, listening devices may be able to be installed on the premises in question without committing a trespass by utilising the co-operation of a person who has a legal right of entry to those premises[158]. The search of a person's premises and seizure of items contained therein without the permission of the occupier is however clearly tortious conduct, and any statutory authority for such conduct must be strictly construed[159]. Where an occupier is not to be given the opportunity to refuse entry for the purpose of installing a listening device, a requirement for a listening device warrant to disclose jurisdiction on its face would seem futile[160].

Because the occupier or person affected will not know of the warrant, the Act safeguards privacy and rights of property in two other ways. First, it requires the issuing authority to specify on the warrant any conditions subject to which the premises may be entered or the listening device used[161]. This ensures that the person or persons who are given authority to eavesdrop will know the limits of their authority. Second, it requires the persons to whom a warrant has been given to report to the Minister administering the Police Regulation Act 1958 (Vic)[162]. A report must provide details as to the use of the listening device and a fine and/or 12 month period of imprisonment may be imposed for non-compliance[163].

Accordingly, s 4A(4) should be regarded as an exhaustive statement of the matters that a warrant must contain. A warrant that specifies the seven matters is a valid warrant. Its failure to recite some other prerequisite of jurisdiction gives rise to no inference that the issuing judge or magistrate has misdirected him or herself and has acted without jurisdiction. Still less does it rebut the presumption of regularity applicable to Supreme Court warrants.

In any event, the partial recitation of jurisdictional factors in the present case can be explained by reference to the adoption by the issuing judges of a prescribed form.

The appellant submits that O 7.05 of the Criminal Appeals and Procedures Rules - the basis of the form - is inconsistent with both the rule-making powers of the Supreme Court and with the Act. He contends that it does not relate to the relevant "practice and procedure" of the Supreme Court of Victoria and that it purports to extend the operation of the Act by creating a situation in which judges may "work from" the form and thereby fail to reach the level of satisfaction prescribed by the legislation.

Although s 9 of the Act permits the Governor in Council to make regulations with respect to any matter permitted by the Act to be prescribed to give effect to the Act, no form of warrant has been prescribed by any statutory rule made under that section. Instead, O 7.05, which provides that "[a] warrant authorising the use and retrieval of a listening device shall be in Form 7B", was declared by the Supreme Court of Victoria to be made under the powers contained in s 25 of the Supreme Court Act 1986 (Vic) ("the Supreme Court Act"), s 50 of the Interpretation of Legislation Act 1984 (Vic) ("the Interpretation Act") and under "all other enabling powers"[164].

Section 25(1)(f)(i) of the Supreme Court Act relevantly provides:

"The Judges of the Court ... may make Rules of Court for or with respect to ... [a]ny matter relating to the practice and procedure of the Court".

Section 50 of the Interpretation Act relevantly provides:

The respondent submits that O 7.05 is a valid enactment which provides a form containing all of the matters required by the Act to be on the face of warrants issued under the Act. Order 7.05 is said to have the force of law[165]. The respondent also submits that this Court should be reluctant to find O 7.05 and form 7B to be invalid because they have operated for some time without challenge[166]. Order 7.05 and form 7B have existed in this form since 1988 and the prescription of a similar form[167] is contained in the Supreme Court Rules 1970 (NSW).

A rule made under rule-making powers is invalid if it is "altogether outside the province"[168] of the court as a rule-making authority or is "patently or absurdly irrelevant"[169] to the rule-making power. In less extreme cases, a rule will be invalid where it is not "capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose"[170]. In Williams v Melbourne Corporation[171], Dixon J expressed the test for invalidity as being whether the rule goes "beyond any restraint which could be reasonably adopted" for the prescribed purpose.

Section 25(1)(f)(i) of the Supreme Court Act and s 50 of the Interpretation Act enable bodies such as the Supreme Court of Victoria to ensure their efficient operation by providing means for the regulation of "practice and procedure", a term which has been expressed to denote[172]:

"the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product".

In Cleland v Boynes[173], the Full Court of the Supreme Court of South Australia approved the following description of "practice and procedure" given by Falconbridge in his work, Conflict of Laws[174]:

"Broadly speaking, it is customary in the conflict of laws to characterize as procedural such matters as forms of action, parties to an action, venue, rules of practice and pleading, proof of facts, admissibility of evidence, rebuttable presumptions and burdens of proof; and it has been suggested that the line between substance and procedure should be drawn on the basis of the general distinction between procedural rules which concern methods of presenting to a court the operative facts upon which legal relations depend, and substantive rules which concern the legal effect of those facts after they have been established."

The prescription of a form to be used when issuing warrants under the Act does not appear to fall within the scope of these explanations of "practice and procedure". It is not a means of enforcing a legal right and need not be a method of presenting a court with "the operative facts upon which legal relations depend". Moreover, these explanations of "practice and procedure" are limited to those matters which are associated with the exercise of judicial power. The same can be said of s 25(1)(f)(i) of the Supreme Court Act. Nothing in its terms suggests that it extends beyond matters of practice and procedure associated with the exercise of judicial power. In the light of this Court's decision in Love that the issue of a warrant is an administrative rather than a judicial act, these explanations of "practice and procedure" are of little assistance in determining the present issue.

However, although s 25(1)(f)(i) of the Supreme Court Act does not provide an appropriate rule-making power, such a power is contained in s 50 of the Interpretation Act.

The power contained in s 50 of the Interpretation Act, which extends to the regulation of "the practice and procedure of [the] court ... in the exercise of the jurisdiction so conferred, extended or varied" provides the Supreme Court of Victoria with a power to regulate "practice and procedure" beyond judicial acts and encompasses administrative acts. Section 50 of the Interpretation Act provides a wider rule-making power which permits the prescription of a form to be used in conjunction with the issue of warrants under the Act by the Supreme Court of Victoria.

For these reasons, O 7.05 is within the power provided by s 50 of the Interpretation Act and is "reasonably proportionate" to achieving the purpose of enabling the Supreme Court of Victoria to ensure its efficient operation by providing means for the regulation of non-substantive matters.

The appellant also contends that O 7.05 is invalid because it varies[175] the provisions of the Act and because it extends the scope or general operation of the Act[176]. Although it is desirable for the prescribed form of a warrant issued under the Act to contain no more and no less than the matters specified by the Act as required on the face of the warrant, the additional inclusion of one of two jurisdictional prerequisites does not extend or depart from s 4A of the Act. It cannot alter the Act and cannot rationally lead to the conclusion that it will mislead a judge of the Supreme Court to misunderstand his or her jurisdiction. To adopt such a proposition would be to endorse the view that a Supreme Court judge issues a warrant not in accordance with the substantive law but only in accordance with the procedural form on which he or she marks the stamp of approval.

Accordingly, the warrants in the present case were valid. The trial judge's failure to rule on the validity of the warrants has not led to any miscarriage of justice. It is not necessary to consider the appellant's submission that, if the warrants were invalid, the appellant was deprived of the opportunity to litigate the trial judge's discretion to exclude evidence which has been improperly or illegally obtained[177].

Order

The appeal should be dismissed.

GUMMOW J.

The facts

This appeal concerns the status of evidence obtained from the use of listening devices installed and used pursuant to warrants apparently granted under the Listening Devices Act 1969 (Vic) ("the Act"). The appellant, David Patrick Ousley, seeks to show that the warrants are "invalid, void and of no effect". The consequence is said to be that the evidence obtained from the use of the listening devices installed and used pursuant to the warrants was unlawfully obtained, within the meaning of the authorities in this Court[178].

On 17 January 1992 a judge of the Supreme Court of Victoria (Marks J) issued a warrant authorising the installation and use of a listening device. The warrant authorised the recording of the private conversations of "Barry William OWEN and divers other persons" at 6 Sharp Street, Northcote. The period for which the warrant was to be in force was from 17 January 1992 to 6 February 1992. On 6 February 1992 a second warrant was issued by another judge of the Supreme Court (Coldrey J) for the period 7 February 1992 to 27 February 1992. The second warrant authorised the recording of private conversations of "Barry William OWEN, Wayne Robert WORKMAN, David Patrick OUSLEY and divers other persons" at the premises at Northcote. The first and second warrants were to be used by Detective Inspector Ralph Dewhurst and on his behalf 47 and 48 other named police officers respectively. The warrants were granted in respect of the offences of "traffic in drug of dependence".

The warrants were executed and a listening device was installed at the premises at Northcote. The conversations that were overheard revealed that the three men named in the second warrant were engaged in preparing and selling methylamphetamine. The men were arrested on 19 February 1992.

The appellant was presented before the Melbourne County Court charged with trafficking in a drug of dependence (count 1), cultivation of a narcotic plant (count 2) and possession of a drug of dependence (count 3). The appellant eventually pleaded guilty to count 2 before Judge Wodak on 14 August 1995. On 15 August 1995 Judge Wodak directed that a verdict of acquittal be entered in respect of count 3.

The appellant pleaded not guilty to count 1 and a trial was conducted before Judge Wodak and a jury. He was convicted on count 1 and sentenced on 6 October 1995 to imprisonment for three years with a non-parole period of two years.

At the commencement of the trial, the appellant objected to the admission into evidence of material obtained by use of the listening devices installed pursuant to the warrants issued on 17 January 1992 and 6 February 1992. His Honour ruled that he had no jurisdiction to entertain the application because it would have required him to rule on the validity of warrants issued by judges of the Supreme Court.

The appellant applied for leave to appeal against his conviction to the Court of Appeal of Victoria. One of the grounds of appeal was that the trial judge had erred in declining to rule whether the warrants conformed with the necessary legal requirements pursuant to the Act. However, the substance of the appellant's complaint is that the course taken by the trial judge resulted in the denial to the appellant of the opportunity for the exercise in his favour of a Bunning v Cross[179] discretion. On 31 May 1996 the application for leave to appeal against conviction was dismissed by the Court of Appeal (Hayne JA, Southwell and Smith AJJA)[180]. The appellant was subsequently granted special leave to appeal to this Court from the whole of the judgment and order of the Court of Appeal.

The proper inquiry

A warrant is a document which is issued by a person or body in authority under power conferred upon that person or body and authorises the doing of an act which would otherwise be illegal[181]. "Illegal" may include tortious activity, and many of the decisions dealing with the common law limitations upon the issue and execution of warrants were actions for damages for tortious interference with the rights of the plaintiff, in which the defendant relied upon the authority of the warrant[182]. The common law did not permit general warrants to search, but justices of the peace were empowered to enter and search premises for stolen goods[183]. Other species of search warrants have been authorised by statute. In addition, statute may create an offence by proscribing certain conduct but excepting steps taken under the authority of a warrant.

Lord Wilberforce pointed out in Inland Revenue Commissioners v Rossminster Ltd[184] that any inquiry into the form of search warrants at common law is of limited assistance where the form of the warrants in question is prescribed by statute. The matter is one of statutory interpretation[185], giving proper weight to the precept that a legislative intention to interfere with fundamental rights by the commission of what otherwise would be tortious or criminal acts "must be clearly manifested by unmistakable and unambiguous language"[186].

This appeal is concerned with a comparatively recently developed species of statutory warrant. The Act makes it an offence to use a listening device to listen to any private conversation without the consent of the parties to the conversation (s 4(1)). The Act also provides for the circumstances in which a warrant may be issued authorising the use of a listening device (s 4A). Thus, the issues that arise in this appeal concern the interpretation of the statute pursuant to which the warrants in question were issued.

Caution is required in applying principles developed in relation to search warrants to warrants authorising a listening device. For example, unlike search warrants, the use of a listening device will not always involve the commission of acts which, but for the warrant, would amount to a trespass[187]. A particular device might allow the monitoring of a conversation from a remote location or lawful entry may be gained to premises to effect installation through the co-operation of a person who has the legal right of entry to the premises[188]. In Grollo v Palmer[189], Brennan CJ, Deane, Dawson and Toohey JJ contrasted search warrants with warrants issued under the Telecommunications (Interception) Act 1979 (Cth):

"Not only is the application for an interception warrant made ex parte; the very issue of a warrant and the identity of the judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed. Unlike a warrant to enter, search and seize, there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution. Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge's decision to issue a warrant. Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information."

Warrants issued under the Act have more in common with interception warrants than search warrants.

A further distinction between the various classes of warrant is the identity of the relevant issuing authority. The power at common law to issue warrants to enter, search and seize was vested only in judicial officers or justices of the peace[190]. However, statute has extended the authority to issue certain warrants to persons such as police officers[191]. That stands in contrast to the Act which requires that listening device warrants be authorised by the Supreme Court or, in certain prescribed circumstances, by the County Court or a Magistrates' Court (s 4A(8))[192].

As I have indicated, statutory authority to engage in what otherwise would be tortious or criminal conduct must be expressed in unmistakable and unambiguous language[193]. However, whilst the courts will look very closely at legislation which impairs the integrity and privacy of private dwellings of citizens and any doubt in interpretation will be resolved in favour of the citizen, it is no part of the duty of the courts or within their power to restrict or impede what, upon its proper construction, is the operation of the legislation in question[194]. This appeal should be resolved with those principles in mind.

The Act

Section 4(1) of the Act prohibits the use of a listening device. Paragraph (a) provides that a person shall not "use any listening device to overhear record monitor or listen to any private conversation to which he is not a party ... without the consent express or implied of the parties to the private conversation". The penalty for an individual who does so is "40 penalty units or imprisonment for a term of 2 years or both".

Section 4(3) of the Act provides for an exception to the offence created in sub-s (1). It states:

"Sub-section (1) shall not apply -

(a) to or in relation to the use of any listening device by -

(i) a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by -

the Chief Commissioner of Police;

the Deputy Commissioner of Police; or

an officer of police of or above the rank of Inspector who has been appointed in writing by the Chief Commissioner to authorize the use of listening devices -

under and in accordance with a warrant granted under section 4A".

Section 4A provides for warrants authorising the use of listening devices. Steps taken "under and in accordance with a warrant" to which s 4A applies do not contravene the prohibition imposed by s 4(1). In this way, the warrant authorises the doing of acts which otherwise would be criminal.

Section 4A(1) sets out the matters of which the Supreme Court must be satisfied before it may issue a warrant. These involve satisfaction by the Supreme Court as to the existence of reasonable grounds for certain suspicions or beliefs averred by a member of the police force. The issuing authority is not required to hold those suspicions or beliefs[195]. Section 4A(1) states:

"On complaint made by a member of the police force that he or she suspects or believes -

(a) that an offence has been, is about to be or is likely to be committed; and

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device."

The exercise of these powers by the Supreme Court is essentially administrative in nature and the issue of a warrant is not a judicial order which determines the rights of parties. This follows from the reasoning in Love v Attorney-General (NSW)[196].

Section 4A(3) makes it clear that if a warrant granted under the section authorises the installation of a listening device on any premises then the warrant "must" authorise and require the retrieval of the listening device and authorise entry onto the premises for the purpose of that installation and retrieval. Section 4A(4) lists a number of matters that "must" be specified in the warrant as follows:

"A warrant granted by the Supreme Court under this section must specify the following matters:

(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

The form of the warrant

Apart from the requirements of sub-ss (3) and (4) of s 4A, the Act makes no mention of any particular form that the warrant must take. Section 9 of the Act provides that the Governor in Council may make regulations with respect to any matter permitted by the Act to be prescribed to give effect to the Act. However, the form of the warrant is not prescribed by any statutory rule made pursuant to that section.

In 1987 the judges of the Supreme Court made the Supreme Court (Listening Devices) Rules 1987 (Vic)[197]. These Rules were stated to have been made under the power in s 25 of the Supreme Court Act 1986 (Vic) ("the Supreme Court Act") "and all other enabling powers" (r 3). They established procedures for the grant of warrants under the Act. Subsequently the judges of the Supreme Court replaced those Rules with the Criminal Appeals and Procedures Rules 1988 (Vic)[198]. These commenced on 1 July 1988 and constituted Ch VI of the Supreme Court Rules (Vic) ("the SCR"). They were in force at the time of issue of the warrants with which this appeal is concerned. The new O 7 of the SCR is headed "LISTENING DEVICES RULES". Rule 7.05 provides that a "warrant authorising the use and retrieval of a listening device shall be in Form 7B". Form 7B is headed "In the Supreme Court of Victoria at ..." and "In the matter of the Listening Devices Act 1969; and in the matter of an application for a warrant pursuant to the Act".

The respondent submitted that r 7.05 of the SCR was made in exercise of the power conferred upon the judges of the Supreme Court by s 25(1)(f)(i) of the Supreme Court Act to make Rules of Court with respect to "any matter relating to ... the practice and procedure of the Court". The phrase "practice and procedure", at least in relation to a superior court of record, ordinarily denotes the mode whereby a legal right is established and enforced by orders of the Court. As indicated above, with reference to Love v Attorney-General (NSW)[199], the exercise by the Supreme Court of powers conferred by s 4A of the Act is essentially administrative in nature. Nor is this activity allied to or associated with any other steps by which legal rights are ascertained and enforced. Reliance upon s 25(1)(f)(i) of the Supreme Court Act is misplaced.

However, "jurisdiction" is a term used in association with the conferral of administrative as well as judicial functions. The phrase in administrative law "excess of jurisdiction" illustrates the point. In such a case the phrase "practice and procedure" takes its colour accordingly. Section 50 of the Interpretation of Legislation Act 1984 (Vic) applies not only to courts but to tribunals. It supplies the source for the authority to make the SCR. The section states:

"Where an Act or subordinate instrument confers any jurisdiction on a court or other tribunal or extends or varies the jurisdiction of a court or other tribunal, the authority having for the time being power to make rules or orders regulating the practice and procedure of that court or tribunal may, unless the contrary intention appears, make such rules or orders (including rules or orders with respect to costs) as appear to the authority to be necessary for regulating the practice and procedure of that court or tribunal in the exercise of the jurisdiction so conferred, extended or varied."

The warrants in question in this appeal were in Form 7B. In both cases that recital was as follows:

"The Court, being satisfied that there are reasonable grounds for the belief of Ralph DEWHURST, Detective Inspector of police, of the Bureau of Criminal Intelligence, that offences have been committed and are likely to be committed".

This text reflects the terms of par (a) of s 4A(1), but not those of par (b). The appellant's case rests upon the legal consequences of the limited terms of this recital.

The issues

The appellant supports by the following steps his case that he was denied the opportunity of the exercise of a Bunning v Cross discretion in his favour.

It is the case that each of the warrants disclosed on its face that the issuing judge was satisfied that there were reasonable grounds for the belief of the complainant, a police officer, of the matter prescribed by s 4A(1)(a) of the Act. However, the appellant relies upon the circumstance that there was no reference on the face of either of the warrants that the judge was satisfied that there were reasonable grounds for the suspicion or belief of a member of the police force as to the matter prescribed by s 4A(1)(b), namely that the use of a listening device was necessary for the purpose of an investigation into an offence, or of enabling evidence to be obtained of the commission of the offence, or the identity of the offender[200].

As I understood it, the appellant based his attack on the warrants on two arguments. The first was that the warrant was bad on its face. The second argument questioned whether the issuing judge had reached the requisite satisfaction of the matters contained in s 4A(1)(b) of the Act. The precise foundation for the second argument was expressed in a number of different ways. Counsel for the appellant submitted that to be valid a warrant "must disclose jurisdiction on its face". As an alternative, he submitted that, even if there is no requirement for a warrant to show jurisdiction on its face, a warrant is invalid if it discloses jurisdiction "incompletely". Counsel contended that the faces of the warrants in question indicated that the issuing judges had misdirected themselves as to the prerequisites under the Act for the issue of the warrants.

The appellant contends that, in the result, the trial judge erred in failing to determine that the warrants were invalid, void and of no effect and that the Court of Appeal should have intervened. It would follow that the use of the listening devices pursuant to the warrants was in contravention of s 4(1) of the Act and that the evidence of the appellant's conversations was the product of unlawful conduct[201]. When such unlawfulness appears the trial judge has a discretion, which must be exercised[202], to reject the evidence. Accordingly, the appellant's complaint is that he lost the opportunity to have that discretion exercised in his favour[203].

As I have indicated, the issue of the warrants by the Supreme Court was an administrative act rather than the making of a judicial order. Upon tender of the evidence obtained by use of the devices in question, it would have been (subject to what is said later with respect to Murphy v The Queen[204]) within the competence, and indeed the duty, of the trial judge to determine whether the evidence had been obtained by illegal means. The appellant correctly submits that the trial judge erred in declining to enter upon the matter. However, that is insufficient to secure the success of the appeal.

The pivot on which the appellant's argument rests is a finding that the evidence of the appellant's conversation was obtained in contravention of s 4(1) of the Act. Ultimately the appellant's arguments fail because the construction of ss 4 and 4A does not support that conclusion.

The listening device warrants

As I have outlined above, s 4(1) of the Act contains the relevant prohibition on the use of a listening device. Section 4(3) then provides that sub-s (1) shall not apply in certain prescribed circumstances. The appellant has not sought to argue that the use of the listening devices in question did not comply with the requirements in s 4(3)(a)(i) that "a member of the police force acting in the performance of his duty ... has been authorized in writing to use a listening device" by the Chief Commissioner of Police, the Deputy Commissioner of Police, or "an officer of police of or above the rank of Inspector who has been appointed in writing by the Chief Commissioner to authorize the use of listening devices".

The question is whether the listening device was used "under and in accordance with a warrant granted under section 4A". There are two competing possibilities as to what is meant by that phrase. On one view it would include the use of a listening device in reliance upon a document purporting to be a warrant. The existence of such a document on its own would be sufficient to exculpate a police officer from the terms of s 4(1) of the Act. Alternatively, a warrant would not be "granted under section 4A" unless the conditions specified in pars (a) and (b) of s 4A(1) are satisfied and reference made to them on the face of the warrant[205].

A similar question was considered in the context of the Listening Devices Act 1984 (NSW) ("the NSW Act")[206] in Murphy v The Queen. Section 5(1) of the NSW Act prohibits the use of a listening device to record or listen to a private conversation. The sub-section does not apply to "the use of a listening device pursuant to a warrant granted under Part 4" (s 5(2)). The power to issue warrants is conferred upon the Supreme Court of New South Wales (s 16). Section 13 provides that evidence may not be given in civil or criminal proceedings of a private conversation which has come to the knowledge of a person as a result of the use of a listening device in contravention of s 5.

The applicants in Murphy argued that the trial judge had erred in refusing to allow their counsel "to investigate the circumstances leading to the grant of a warrant under s 18 of [the NSW Act]"[207]. The reference appears to have been to the attempted introduction of evidence to challenge the sufficiency of the material which had been before the Supreme Court and to show there had been "some procedural or substantive error" in relation to the issue of the warrant[208]. A witness known as Miss X gave evidence of a conversation she had with one of the applicants while equipped with a listening device. Mason CJ and Toohey J (in a passage with which the other members of the Court agreed[209]) addressed that submission as follows[210]:

"The admissibility of the evidence of Miss X depended on the existence of the warrant, not on the sufficiency of the grounds for granting it. In McArthur v Williams[211] where the validity of a magistrate's warrant of arrest was in question, Dixon, Evatt and McTiernan JJ, referring to the necessity for a sworn information or complaint to found the issue of a warrant, said[212]:

'But it has never been considered that the validity of the warrant could depend upon the nature or sufficiency of the materials upon which a magistrate granted the warrant if there was an information on oath before him which, however irregular, was not a nullity. ... In general the sufficiency or character of materials which are required for the purpose of exercising a discretion is not a matter upon which the validity of the discretionary act is made to depend (cf Cooper v Booth[213]).'

... To determine the admissibility of evidence obtained by use of a listening device purportedly under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the Supreme Court. It does not inquire into the sufficiency of the material which satisfied the Supreme Court of the matters referred to in s 18(2)(b). There was neither need nor occasion for the Court in the present case to investigate the basis on which the warrant had been granted.

There was a warrant in existence authorizing the use of a listening device by Miss X at the time she used it. Section 5(2)(a) of the [NSW] Act was therefore applicable, with the consequence that there was no contravention of s 5 and therefore no exclusion in terms of s 13."

Counsel for the appellant accepted the principle that it is inappropriate for a court to examine the material placed before the person who issued the warrant in order to determine whether that person would necessarily have reached the requisite satisfaction. He also accepted the proposition that, in reviewing the issue of a warrant, a court may only have regard to what appears on the face of the warrant.

However, the terms in which counsel expressed some of his arguments were at odds with an acceptance of those propositions. He maintained that, from an examination of the two warrants, it is clear that, prior to issuing the warrants, the judges reached a state of satisfaction which was not prescribed by s 4A(1) of the Act. On that basis, it was said that the faces of the warrants themselves supplied evidence that the issuing judges misdirected themselves as to the prerequisites for the issue of the warrants. The argument in that form fails because, in the terms used in Murphy, it challenges the "sufficiency of the grounds for granting" the warrant rather than "the existence of the warrant"[214]. In McArthur v Williams[215], Dixon, Evatt and McTiernan JJ stated the relevant distinction as being between the "validity" of an order made by warrant and the "legal propriety" of the making of it.

As I outlined earlier, the present litigation does not involve any application for administrative review. At the commencement of the trial, Judge Wodak dealt with an objection to the admission of evidence and ruled that he had no jurisdiction to entertain an application as to "whether the warrant was validly issued by each of the judges of the Supreme Court". In so far as this ruling demonstrated a reluctance on his Honour's part to consider whether the listening devices were used "under and in accordance with a warrant granted under section 4A", Judge Wodak was in error. In order to determine the admissibility of evidence it was necessary to decide whether the use of the listening devices had been illegal. That, in turn, required consideration of compliance with the terms of s 4(3) of the Act. That consideration was mandatory and was distinct from a consideration of the nature or sufficiency of materials upon which the issuing judge based the grant of the warrants. Arguments based on the "legal propriety" of a warrant may be tested in separate proceedings for judicial review[216]. These proceedings may be commenced in the interval between committal and trial[217] without undue fragmentation of the criminal process.

Counsel addressed the question of whether there was in existence a warrant "granted under section 4A" in his submission in argument that the warrant was bad on its face because it failed to disclose jurisdiction. That question is resolved by consideration of the precise requirements of the section.

Section 4A(1) confers authority on the Supreme Court to authorise by warrant the use of a listening device if there are reasonable grounds for the suspicion or belief of a member of the police force of the matters listed in pars (a) and (b). The sub-section does not require that any of those matters be specified in the warrant. Sub-section (2) lists a number of matters that the Supreme Court must have regard to in determining whether a warrant should be granted.

Sub-sections (3) and (4) list certain matters that "must" be specified in a warrant granted under the Act. The requirements of s 4A(3) only apply if a warrant granted by the Supreme Court authorises the installation of a listening device on any premises. The requirements of s 4A(4) apply to every warrant granted by the Supreme Court under s 4A. The appellant did not suggest that either of the warrants failed to specify any of the matters that those sub-sections require on the face of the warrant.

The matters listed in sub-ss 4A(3) and (4) constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be a "warrant granted under section 4A" within the terms of s 4(3) of the Act. The comments of Lord Wilberforce in Rossminster[218], made in the context of a challenge to search warrants issued under the Taxes Management Act 1970 (UK), are apt:

"It would be wise to add to [the warrant] a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity."

In the Court of Appeal, Hayne JA, Southwell and Smith AJJA, in a passage with which I agree, answered the submission that the satisfaction of the issuing judge with respect to the matters contained in pars (a) and (b) of s 4A(1) must be stated on the face of the warrant. Their Honours said[219]:

The result is that the appellant was not denied any opportunity, properly open to him, for the exercise in his favour of the Bunning v Cross discretion.

Statute and warrants

Reference was made in submissions to a number of Australian authorities. That they provide limited assistance is best understood from further consideration of the relationship between statute law and the authority to issue warrants.

I have referred to the issue by justices of the peace of search warrants under the common law and to the use of statute to confer such authority. The authority so conferred would usually be attended by conditions which defined the jurisdiction of the justices. This enlivened the supervisory authority of the Court of King's Bench and produced an adaptation of the principle that, in proceedings of inferior courts, it was necessary to show they were within the jurisdiction of that court[220]. In argument in Kinning v Buchanan[221], it was submitted:

"that there is a distinction between process of superior and inferior courts; in the former, omnia praesumuntur ritè esse acta [all acts are presumed to have been done rightly]; in the latter, the rule de non apparentibus et non existentibus eadem est ratio [that which does not appear will not be presumed to exist], applies".

In adopting that proposition, Broom stated its effect as[222]:

"The superior Court need not, but the inferior Court must, show jurisdiction on the face of an order."

It became settled doctrine in the nineteenth century English cases that the authority of an inferior court or designated officer issuing a warrant under statute must appear on the face of the warrant "by direct averment or reasonable intendment"[223], unless the form or contents of the warrant were specified or provided for by the statute[224]. In Gosset v Howard, Parke B contrasted that with the position concerning superior courts which he stated as follows[225]:

"[W]rits issued by a Superior Court, not appearing to be out of the scope of their jurisdiction, are valid, and of themselves, without any further allegation, a protection to all officers and others in their aid acting under them".

The appellant relied on authorities which applied the reasoning in those nineteenth century decisions. In particular, he relied upon consideration of s 10 of the Crimes Act 1914 (Cth) ("the Crimes Act")[226] by Fox J in R v Tillett; Ex parte Newton[227] and s 52(5) of the Controlled Substances Act by Jacobs J[228] and the South Australian Full Court in Tran Nominees Pty Ltd v Scheffler[229]. Section 10 of the Crimes Act and s 52(5) of the Controlled Substances Act conferred authority not upon the Federal Court or the Supreme Court of a State or Territory, or a judge thereof, but upon justices of the peace, magistrates and police officers.

In another decision, Karina Fisheries Pty Ltd v Mitson[230], O'Loughlin J dealt with two classes of warrants. Some of the warrants were issued under s 10 of the Crimes Act by a justice of the peace. The remaining warrant was issued by a Supreme Court judge under s 71 of the Proceeds of Crime Act 1987 (Cth) and s 71(7) required the warrant to state certain matters. O'Loughlin J drew a distinction between the two classes of warrant and did not apply the reasoning in Tillett to the s 71 warrant. His Honour emphasised that there applied to the s 71 warrant a presumption of regularity, the warrant being issued by a judge of a superior court, and that the presumption did not apply to the s 10 warrants[231].

These decisions are of limited assistance to the appellant in the present case. First, there are significant differences between s 10 of the Crimes Act and s 52(5) of the Controlled Substances Act on the one hand, and the Act on the other hand. Secondly, the Act in the present case shares the features in common with s 71 of the Proceeds of Crimes Act that led O'Loughlin J to dismiss the challenge to the warrants. In both cases, the issue of the warrant was by the Supreme Court and the legislation specified certain contents of the warrant.

However, there is a more significant reason why those decisions do not provide assistance in this appeal. In 1990, after the decisions in Tillett and Tran Nominees, this Court held in Love v Attorney-General (NSW)[232] that the issue of warrants under legislation such as the Act involves an exercise of power which is essentially administrative in nature. Once that is understood, nineteenth century decisions which proceed on the basis that the issue of warrants is a judicial act are of limited relevance. The earlier decisions in Tillett and Tran Nominees and the later decision of O'Loughlin J in Karina Fisheries[233] did not proceed upon a full appreciation of the administrative nature of the activity in question. Distinctions between inferior and superior courts, and presumptions of regularity in relation to the acts of superior courts but not those of inferior courts, do not assist in a case such as the present.

The more appropriate principle is that the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings[234]. Where "acts are of an official nature ... everything is presumed to be rightly and duly performed until the contrary is shown"[235].

I have earlier set out a passage from the judgment of Mason CJ and Toohey J in Murphy where their Honours stated that the admissibility of the evidence, obtained through the use of a listening device, depended on the existence of a warrant rather than the sufficiency of the grounds for granting it. In that judgment, Mason CJ and Toohey J had earlier referred to the view of the New South Wales Court of Criminal Appeal that, because the warrant was granted by a judge of the Supreme Court and was an order of a superior court, its validity was presumed "until it be set aside or corrected on appeal or by other due process of law"[236]. Their Honours continued[237]:

"The question is whether the presumption of validity could be displaced by a collateral attack upon the warrant founded on an alleged insufficiency of the materials placed before the Supreme Court by the applicant for the warrant."

In Love, the appellants relied on the comments of Mason CJ and Toohey J in Murphy to support the view that the grant of the warrant in question was a judicial order[238]. The Court in Love did not consider that the comments made in Murphy governed the issue of whether the grant of the warrant was administrative or judicial in nature because that precise issue had not been under consideration in Murphy[239]. However, once it is recognised that an administrative act is presumed to be regular until set aside, the statement of principle from Murphy outlined earlier still stands, notwithstanding the subsequent recharacterisation of the nature of the grant of a warrant in Love.

In the present case, while the trial judge was required to determine whether the warrants were regularly "granted under section 4A" of the Act, the warrants were otherwise to be taken as effective until set aside in proceedings for judicial review.

Form 7B

The conclusion that I have reached follows from the construction of ss 4 and 4A of the Act. This makes it unnecessary to deal with the appellant's further submissions that Form 7B and the rule which prescribed it (r 7.05 of the SCR) go beyond the relevant rule-making power and are invalid. These submissions appear to present a paradox. A warrant which complied with Form 7B would not comply with the Act, whilst a warrant which stated that which the appellant contends it had to state would not comply with r 7.05[240].

As I have outlined above, for s 4(1) not to apply to or in relation to the use of a listening device, the Act does not require that the warrant comply with Form 7B. The alleged inadequacy in the terms of that Form and its validity are therefore irrelevant to this appeal. The matters required by sub-ss 4A(3) and (4) appeared on the warrant and it was granted "under section 4A".

The appeal should be dismissed.

KIRBY J. This appeal concerns the validity of warrants authorising the installation and use of listening devices. A person, convicted as a result of the evidence thereby obtained, asserts that the warrants were bad in law. Either they were invalid on their face and should have been so held by the trial judge. Or, in their terms, they recited that the judges signing them had satisfied themselves of one, but not another, of two requirements enacted by Parliament as preconditions for the issue of such warrants. In either event they were invalid, enlivening a discretion to exclude the evidence obtained from their use[241]. Having been denied the benefit of that discretion, the trial and hence the conviction of the accused miscarried.

The parties addressed many arguments to the attack upon, and defence of, the warrants. The form of the warrants, giving rise to the attack, has now been altered to remove the source of difficulty[242]. The appellant has served in full the non-parole period of his sentence, rendering a retrial, in which he could reagitate his arguments[243], an unlikely prospect as a matter of practicality. The police and judges concerned acted with complete apparent propriety, following as they did the form of warrant then provided by law. The evidence procured by the use of the listening device authorised by the warrants was cogent. It would otherwise sustain the appellant's conviction upon the charge to which it was relevant. In a sense, therefore, the attack on the warrants presents a legal technicality.

However, our criminal law and procedure are replete with technicalities raised in the vindication of legal requirements, including those defensive of basic rights. At the heart of the appellant's arguments lies an appeal to an attitude of strictness which courts in common law jurisdictions have taken in challenges to warrants, including those permitting undisclosed listening to, and recording of, private conversations. Except for a valid warrant, such eavesdropping would involve both criminal offences[244] and civil wrongs[245]. This Court has consistently required a strict approach. It should do so again on this occasion.

Conviction upon evidence obtained by a listening device

Mr David Ousley ("the appellant") was presented for trial in the County Court of Victoria at Melbourne. He was charged under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) upon three counts relating to various drug offences. He initially pleaded not guilty to all counts. Subsequently, he pleaded guilty to count 2 (involving cultivation of a drug of dependence[246]). In due course a verdict of acquittal was entered in respect of count 3[247]. The jury found him guilty upon count 1 which charged him with trafficking in a drug of dependence (methylamphetamine)[248]. The trial judge (Judge Wodak) convicted him on counts 1 and 2. Upon count 2 he was sentenced to 1 month's imprisonment, to be served concurrently with the sentence imposed in respect of the conviction upon count 1. That sentence was of 3 years imprisonment with a non-parole period of 2 years, expiring in the first week of October 1997. No stay or other order was made whilst the appellant's legal challenges were proceeding.

At the trial, the Crown's case was almost entirely based upon the material obtained as a result of the use of listening devices installed at premises in Melbourne frequented by the appellant. There were some 50 tapes of conversations. Based upon this evidence, the Crown alleged that the appellant and certain co-offenders were engaged in the trafficking in methylamphetamine.

At the commencement of the trial, and before the jury had been empanelled, the vigilant eye of trial counsel noticed an apparent discrepancy between the form of warrants issued under the Listening Devices Act 1969 (Vic) ("the Act") by two judges of the Supreme Court of Victoria[249] and what counsel took to be the requirements of the Act. The discrepancy was raised with the trial judge. An objection was foreshadowed to the admission into evidence of all material procured by the use of the listening device dependent upon the warrants.

By reference to dicta in Murphy v The Queen[250] and Carroll v Attorney-General (NSW)[251], Judge Wodak expressed doubt that he had the jurisdiction, in the course of the trial, to entertain a collateral attack on the validity of warrants authorised by the Supreme Court of Victoria. He offered to consider the adjournment of the commencement of the trial to permit an application to be made[252] to the Supreme Court for a ruling. This course was not adopted by the appellant. Judge Wodak then ruled that he had no jurisdiction to determine the attack on the validity of the warrants. The jury was empanelled. The trial proceeded. The evidence was received. The appellant was convicted.

Following the foregoing ruling, there was no foundation in the trial for an application that the judge exercise a discretion to exclude the recorded material on the basis of the illegality affecting its procurement. It was not suggested that the point had not been properly reserved in the trial or that the appellant had forfeited it by failing to take the opportunity offered by the judge. Although, during argument in this Court, a proposition was advanced that separate legal proceedings might be taken to set aside a warrant signed by a Supreme Court judge, this was not the view adopted by this Court in Coco v The Queen[253]. It is implicit in the reasons and orders of this Court that the objections could be taken in the course of a trial or at least in an appeal against conviction where such conviction rested, in whole or part, upon private conversations obtained otherwise than pursuant to a valid warrant under the Queensland equivalent of the Act.

The relevant legislation

The Act is the Victorian version of legislation enacted in other States of Australia some of which has already come under the attention of this Court[254]. By s 4(1) of the Act it is made a criminal offence to use a listening device to overhear, record, monitor or listen to any private conversation to which the person is not a party, without the express or implied consent of the parties to the conversation[255]. Under s 4(3) such a criminal offence does not apply to the use of a listening device by a designated police officer acting "under and in accordance with a warrant granted under section 4A".

Section 4A deals, as its heading indicates, with "warrants authorising use of listening devices". Its relevant provisions include:

"4A(1) On complaint made by a member of the police force that he or she suspects or believes -

(a) that an offence has been, is about to be or is likely to be committed; and

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device.

2. In determining whether a warrant should be granted under this section, the Supreme Court must have regard to -

(a) the nature and gravity of the offence in respect of which the warrant is sought; and

(b) the extent to which the privacy of any person is likely to be affected; and

(d) the evidentiary value of any evidence sought to be obtained; and

(e) any previous warrant sought or granted under this section in connection with the same offence.

(3) If a warrant granted by the Supreme Court under this section authorises the installation of a listening device on any premises, the Court must, by the warrant -

(a) authorise and require the retrieval of the listening device; and

(b) authorise entry onto those premises for the purpose of that installation and retrieval.

(4) A warrant granted by the Supreme Court under this section must specify the following matters:

(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

There follow sub-sections dealing with the revocation of a warrant[256], the grant of a further warrant[257], the conduct of the proceedings in the Supreme Court "in closed court[258]" and provision for regulations to provide that, in prescribed circumstances, the powers of the Supreme Court may be exercised by the County Court or a Magistrates' Court[259]. The person to whom a warrant is granted is obliged to furnish a prompt report in writing to the Minister[260]. Records of private conversations not likely to be of assistance are to be destroyed forthwith under sanction of criminal punishment for the breach[261]. The Governor in Council is empowered to make regulations "for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act[262]".

The form of the warrant contemplated by s 4A of the Act was not prescribed by regulations made under the Act. Instead, provision was made by Rules of the Supreme Court of Victoria ("the Rules"). The Rules are found in O 7 of the Criminal Appeals and Procedures Rules 1988 (Vic)[263]. Order 7 r 7.05 provides that a warrant authorising the use and retrieval of a listening device "shall be in Form 7B". That form, which is annexed to the Rules in question provides, relevantly:

"Warrant

The Court, being satisfied that there are reasonable grounds for the suspicion or belief of [name of member of police force making complaint], [rank of member] of Police, of [station to which member is attached] that an offence *has been/*is about to be/*is likely to be committed -

1. Authorises the *installation/*use of a listening device and specifies the following:

(a) The warrant is granted in respect of [name of offence];

(b) The warrant authorises the recording of or listening to the private conversation(s) of [name of person(s)]; (1)

(c) The period for which the warrant is in force is from [date (and time if applicable) for commencement of warrant] to [date (and time if applicable) or termination of warrant], both inclusive;

(d) The listening device may be used by ...

(e) *The listening device is to be installed in [description of premises] ...

(f) The conditions upon which the said premises may be entered or a listening device may be used are -

[specify conditions];

(g) [Person(s) authorised to use warrant] *is/*are required to report under section 5 ... to the Minister ... on or before [time within which person must report].

2. Authorises and requires the retrieval of the listening device and authorises entry to [description of premises] for the purposes of installation and retrieval. (2)

Date:

[signature of Judge authorising use of device]

*Delete if not applicable.

[Notes: 1. Item (b) should be completed if it is practicable to do so.

2. Paragraph 2 must be completed if the warrant authorises installation of a listening device.]".

In the opening provision of the Rules providing for the warrant in question, it is declared[264] that the Rules are made, relevantly, under s 25 of the Supreme Court Act 1986 (Vic) and s 50 of the Interpretation of Legislation Act 1984 (Vic). The appellant attacked the validity of the Rules. The Crown defended both the Rules and Form 7B. It did so in terms of the two statutory provisions referred to. The Supreme Court Act, s 25 contains a general power to make rules including "for or with respect to" any matter "relating to ... the practice and procedure of the Court"[265]. The Interpretation of Legislation Act s 50, reads relevantly:

" Where an Act ... confers any jurisdiction on a court ... the authority having for the time being power to make rules or orders regulating the practice and procedure of that court ... may, unless the contrary intention appears, make such rules or orders ... as appear to the authority to be necessary for regulating the practice and procedure of that court ... in the exercise of the jurisdiction so conferred...".

The warrants executed in the present case follow precisely the form authorised by the foregoing Rules and specified in Form 7B. The warrants were successively signed by judges of the Supreme Court of Victoria: by Marks J on 17 January 1992 and by Coldrey J on 6 February 1992. The warrants are typed, apparently in the form in which they were presented to the respective judges for signature. In par 1(d) in addition to the principal nominated user of the listening device, a schedule of nearly fifty named police officers is included. Nothing turns on the form of the warrant save for the opening recital. It was that recital which the appellant attacked.

The appellant argued that an averment that the Court was "satisfied that there are reasonable grounds for the belief of [a named police officer] that offences have been committed and are likely to be committed" indicated, on the face of the warrant, a failure to comply with the requirements of s 4A(1)(a) and (b) of the Act. By that sub-section, a dual requirement for "that suspicion or belief" is enacted. Yet the recital made no reference to the second requirement concerning the necessity of the use of a listening device. Reference to the second requirement being absent from each warrant, and apparently absent from the disclosed satisfaction of the judges authorising its issue, the warrants were defective. The eavesdropping was therefore illegal. The evidence gathered as a consequence should have been excluded from the trial of the appellant. So went the appellant's argument.

Decision of the Court of Appeal

The appellant unsuccessfully applied for leave to appeal against his conviction. The Court of Appeal of the Supreme Court of Victoria dismissed his application[266]. Much of the reasoning of that Court was addressed to two grounds which have not been argued in this Court.

On the challenge to the listening device warrants, the Court of Appeal acknowledged the importance of the legal and personal interests which a warrant under the Act is designed to protect. The Court reserved the question whether a collateral attack could be made upon a warrant issued by the Supreme Court. It proceeded to consider whether each of the warrants was "bad on its face for the want of a recital[267]". Adapting what had been said by this Court in Grollo v Palmer[268], the Court of Appeal held that the warrants issued in this case were "for all practical purposes, an unreviewable in camera exercise[269]". Because, unlike a search warrant, they were not designed to be shown to the subject of the intrusion, some of the strict law developed around search warrants was regarded as inapplicable to warrants under the Act.

The Court of Appeal discussed whether a presumption of regularity would apply to protect such warrants because they were issued by Supreme Court judges. It then came to its essential reason for refusing relief. This was that the Act expressly provided certain matters which a warrant "must specify"[270]. The warrants in question conformed to those requirements in terms of the form approved by the Rules provided for them. The averment missing from the recital, of which the appellant complained, was not an obligatory matter. The absence could therefore not invalidate the warrant. Their Honours went on[271]:

" In our opinion neither of these recitals is required by the statute and to hold that if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant. That is not to say that it may not be desirable to record the judge's satisfaction with the pars (a) and (b) matters on the face of the warrant but we consider that to require such a statement to be made would be to add to the list of matters specified by the legislature as the matters that must appear in the warrant when the statutory list was intended to be an exhaustive list of the mandatory requirements. In this respect we consider that the Listening Devices Act is similar to the Proceeds of Crime Act provisions considered in the Karina Fisheries case[272] and held by the Full Federal Court to contain a code of the matters that are required to be stated in a warrant under that Act. ... [E]ven if, contrary to the view we have expressed, the legislation was not inconsistent with a requirement that to be valid the warrant must disclose that the court was satisfied of the matters mentioned in s 4A(1)(a) and (b), there was no such requirement at common law in respect of a warrant issued by a superior court. The common law rule was a rule about the instruments of inferior courts."

From the dismissal of his application by the Court of Appeal, the appellant, by special leave, appeals to this Court.

Arguments of the parties

The appellant advanced three grounds for his attack on the validity of the warrants used in his case:

First, that they were bad on their face. It may not have been necessary to show that the judges of the Supreme Court had been satisfied that there were reasonable grounds for the suspicion or belief referred to in s 4A(1)(a) and (b). However, once the warrants recited satisfaction of the matters referred to in par (a) but made no reference to satisfaction about the matters referred to in par (b), they were defective on their face. The Act required satisfaction of both specified matters. It was insufficient to be satisfied with one only. By the omission of reference to par (b), and in the context, it was plain that both judges, on behalf of the Court, had not done what the Act required. Accordingly, the exemption which the warrants would otherwise provide[273] from conduct rendered illegal by the Act[274], was unavailable.

Secondly, that the recital in each warrant gave rise to the inference that the judges were not in fact satisfied in relation to the matters in par (b). Put another way, there was no evidence that the judges were so satisfied and there was evidence that they were only satisfied of the matters in par (a). As this was not sufficient to authorise the use of a listening device, the appellant was entitled to relief on the ground that each judge had, on the face of the warrant, failed to take into account the considerations in par (b) prerequisite to the lawful exercise of the discretion to issue a warrant.

Thirdly that, in so far as the Rules had purported to authorise the form of warrant used, such Rules, and the form they purportedly approved, were invalid. Either they did not come within the power conferred on the judges of the Supreme Court to authorise their making or they were contrary to the express requirements of the Act and invalid to the extent of the inconsistency[275]. The first foundation for the Court of Appeal's decision (observance of the Rules and the form lawfully made) having been knocked away, the second (the status of the Supreme Court as the body issuing the warrants) was met by the appellant in various ways. For the purpose of issuing such warrants the Court, by its judges, was merely performing an administrative or executive function[276]. As such, the warrants were susceptible to judicial review or collateral attack[277]. Whatever may have been the entitlement to raise the point at the trial in the County Court, it was certainly reserved and raised before the Court of Appeal in the Supreme Court. Any presumption of validity in favour of a warrant issued by the Supreme Court (which was not conceded) was subject to rebuttal. It was in fact rebutted in this case because of the deficiencies on the face of the warrants which both authorised and required the intervention which the Court of Appeal had denied[278].

The Crown resisted the appellant's claims. It submitted that the form authorised by the Rules was made within the nominated grants of legislative power and was thus valid. No defect could be disclosed on the face of a warrant conforming to this form. The only matters which were required by the Act to be included in the warrant, were so included. A form of warrant complying with a legal prescription could not be impugned. But even if it could, no common law principle was available to invalidate the warrants. The supposed rule that all warrants must show jurisdiction on their face was one confined to the warrants of inferior authorities or to search warrants intended to be shown to the subject of intrusion before it occurred. It did not apply to warrants to install and use a listening device issued by a Supreme Court. As to such warrants, there was a presumption of regularity. The trial judge, in the County Court, had correctly ruled that he had no jurisdiction to permit a collateral attack on the validity of the warrants. Even if such an attack were permitted in the present proceedings, it would lead nowhere. The defect in the warrants, if any, was purely technical. There had been no defiance of the Act's requirement. On the contrary, the Act and the form apparently authorised by law had been scrupulously observed. A favourable exercise of the Bunning v Cross discretion to exclude evidence obtained by the use of the listening device was therefore a "forlorn" hope. Even if the appellant succeeded in all of his arguments, the appeal was one for the application of the proviso[279].

The strict approach to search and other warrants

It is well established that legislation authorising intrusion into an individual's property and privacy is strictly construed. In part, this rule is but an illustration of the general principle that laws diminishing, or authorising the diminution of, the rights of the individual must be clear. The principle rests upon the presumption, imputed to Parliament, that it will ordinarily respect such rights and derogate from them as little as possible, and then upon strict conditions, and subject to effective protective procedures[280]. In part, the rule of strictness reflects the particular attitude of the common law to the enjoyment of an individual's property and privacy. Historically, the justification for the limitations imposed upon the power of entry and search upon another's property was based on the rights of private property[281]. However, as this Court noted in George v Rockett[282], in modern times the justification has shifted increasingly to the protection of the right to privacy[283].

A recognition of this development appears in several of the speeches in the House of Lords in R v IRC; Ex parte Rossminster[284], a case involving a statutory search warrant. Lord Wilberforce[285] observed:

" The integrity and privacy of a man's home, and of his place of business, an important human right has, since the second world war, been eroded by a number of statutes passed by Parliament in the belief, presumably, that this right of privacy ought in some cases to be over-ridden by the interest which the public has in preventing evasions of the law. ... The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens' right to privacy".

Lord Diplock[286] was equally emphatic. Lord Salmon[287] (in dissent) spoke of the need to construe strictly the "wide inroad into the citizen's basic human rights, the right to privacy in his own home and business premises and the right to keep what belongs to him". Lord Denning MR in the English Court of Appeal had said of the statutory power of intrusion in that case[288]:

"Once great power is granted, there is a danger of it being abused. Rather than risk such abuse, it is ... the duty of the courts so to construe the statute as to see that it encroaches as little as possible upon the liberties of the people of England".

This appeal does not provide the occasion to resolve the differences between the judges in Rossminster's Case[289]. It is sufficient to say that this Court has consistently adopted the rule of strictness expressed in the foregoing passages[290]. The basic human rights referred to by their Lordships include the right to protection of the law against interference or attacks upon the individual's privacy and home[291]. International expressions of the right to privacy do no more than to reflect the applicable common law. It is impermissible to justify a breach of the law's requirements, protective of property and privacy, by reference to the utility of the materials thereby gained[292]. The strict approach is required to ensure that provisions enacted by Parliaments, protective of fundamental rights, are not treated as mere formalities[293] but as a real check on the exercise of the Executive's power. The establishment of preconditions for the issue of a warrant under the Act is not to be viewed as "some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature[294]". The conduct of the person issuing the warrant must be no mere cipher[295], careless of the fundamental rights of citizens[296]. What is required is that those authorised by law to issue such warrants, whoever they are[297]:

"should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs".

There is nothing in the Act which runs counter to these strict requirements of the common law. On the contrary, the provisions of the Act reinforce such requirements. The Act recognises that it will normally involve a criminal offence to install and use a listening device. It creates a new criminal offence to use such a device or to communicate a conversation overheard by such use[298]. Only if a valid warrant authorises the installation and use of such a device is relief granted to the recipient against what would otherwise be criminal liability and an actionable civil wrong. Therefore, consistent with established authority and principle, strict compliance with the preconditions for the issue of a warrant authorising use of a listening device will be demanded by the courts as the imputed expectation of Parliament itself in enacting the protective provisions of the Act as it did[299].

If the law is clear, and authorises what has been done, it is not the function of the courts to frustrate the will of Parliament simply because a judge may consider that the power given to officials is excessive[300]. Courts recognise that modern criminality needs to be combated with the use of modern technology and, occasionally, the enlargement of powers beyond those traditionally enjoyed by police and other officials[301]. Nor should judges be "over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because [they] are out of sympathy with the policy to which the Act appears to give effect"[302]. This said, the approach of strictness requires, for the protection of the fundamental rights involved, that a court should not be overly astute to sustain a warrant which, on its face, reveals relevant defects. Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them[303]. But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected.

There is nothing new in this approach. It is well established in this country, in England, and in other countries of the common law, and for the same basic reasons. It is well known to police and other officials who propound warrants for authorisation. Its strictures encourage a properly vigilant exercise of the power conferred on those permitted by law to issue warrants. Any other approach by the law would encourage an attitude of mind on the part of those who seek, and those who grant, warrants which has been repeatedly and firmly rejected by this Court and by other courts of high authority.

Review of a Supreme Court warrant

In most cases involving challenges to the validity of warrants, the warrants have been issued by an inferior authority, such as a police officer[304], a justice of the peace[305] or a magistrate[306]. Does the fact that the warrants in the present case were each issued under the hand of a Supreme Court judge and were, by the Act, authorised by "the Supreme Court"[307] make a difference either to the principles to be applied or to the remedies available to meet the complaint of the appellant?

In Murphy v The Queen[308], Mason CJ and Toohey J suggested that the act of a judge of the Supreme Court in granting a listening devices warrant was to be characterised as judicial. A judicial order of a superior court would ordinarily place difficulties of various kinds in the way of the provision of judicial review resulting in orders directed by one member of a superior court to that court or to another of its members[309]. However, in Love v Attorney-General (NSW)[310] a unanimous decision of this Court (including Mason CJ and Toohey J), the Court drew a distinction between the duty to act judicially and the characterisation of the act in question as judicial. It was held that "the better view" was that the issue of a warrant under the New South Wales equivalent to the Act was "a step in the administrative process and is thus an administrative function"[311].

Once that conclusion was reached, it was clear that such a warrant has to be construed so as "not to do what the statute itself does not purport to do[312]". This Court in Love confirmed declarations of the invalidity of the warrants issued by judges of the Supreme Court of New South Wales[313]. It did so, notwithstanding the status of the signatories to the warrants. Similarly, in Coco[314], this Court held that the action of a judge of the Supreme Court of Queensland in purportedly authorising entry upon private property when not sanctioned by statute, was wholly void. The judge had exceeded his powers in an error which appeared on the face of the record. The fact that the conduct impugned was that of a superior court judge did not, in the circumstances, provide immunity from judicial review. Such conduct was administrative in character, although performed by a Supreme Court judge.

The same approach should be taken in this case. The fact that in Coco[315] the relevant statutory power was conferred on a judge of the Supreme Court as persona designata[316] whilst the power under the Act in question here was conferred on the Supreme Court as such[317], makes no difference. No judicial act, even of an ex parte kind, was involved. The judges were simply performing an administrative function for the Executive Government. Judges were presumably chosen because of the professional training and cast of mind of a judge[318]. However, the function is administrative in character, and is therefore subject to judicial scrutiny for its validity. Subject to legislative exceptions, such scrutiny could be obtained by proceedings for judicial review in the Supreme Court[319]. Alternatively, a collateral attack on the validity of the warrant could be mounted in the course of the trial, so long as the trial judge had the jurisdiction to determine such an attack[320].

Matters unnecessary of resolution

The last point is one of several matters argued which do not need to be finally determined in this appeal. Those matters include:

(a) Whether a judge of the County Court has jurisdiction to hold that a warrant issued by the Supreme Court is invalid on its face.

(b) Whether the Rules and the form of warrant approved by them are validly made under the enabling legislation.

(d) Whether the judges of the Supreme Court who issued the warrants in question here were not, as a matter of fact, satisfied of the matters mentioned in s 4A(1)(b) of the Act.

(e) Whether a presumption of regularity is available to sustain warrants issued by the Supreme Court.

(f) Whether, if the warrants be invalid, the appellant's application for the exclusion of the evidence gained pursuant to them was futile, having regard to the principles established in Bunning v Cross[321].

Each of these questions raises difficult problems of legal authority and principle. I shall comment upon each of them in order to indicate why it is unnecessary to resolve them in this case and preferable to "leave [them] for decision on another day[322]".

(a) Jurisdiction of a County Court judge

A controversy has existed for some time about the extent to which a trial judge may permit a collateral attack on the validity of a warrant where that attack is mounted in the course of the trial. For reasons which are readily understandable, judges of District and County Courts have expressed reluctance, rising to the point of unwillingness, to entertain challenges to the validity of warrants issued by judges of a Supreme Court. So it was in the case of a judge of the District Court of New South Wales in Carroll v Attorney-General (NSW)[323]. So it was in the present case. The availability of pre-trial hearings and the hierarchical nature of the courts make such reluctance understandable. I have previously expressed sympathy for it[324]. There are, as well, practical reasons, as a matter of legal policy, for discouraging collateral attacks upon search and other warrants in the course of a trial. The consequence of collateral attacks may be time-consuming explorations of peripheral procedural questions resulting in the diversion of attention from the substantive charges against the accused[325].

Nevertheless, the arguments against denying the trial judge the jurisdiction and authority to rule upon a challenge to the lawfulness of a warrant (such as was mounted in the present case) now seems stronger to me than previously they did. This Court has regularly expressed its opposition to the fragmentation of criminal trials[326]. The trial judge has the responsibility of ruling on all relevant legal objections raised in the trial. There seems no good reason to excise an objection directed to the validity of a warrant except for the status of the judge who signed it. But if, as is now clear, that judge, in signing the warrant, was not performing a judicial act but solely an administrative one, the reasons for deference by a judicial officer, lower in the hierarchy, are not so compelling. The Act envisages that the power of the Supreme Court may, by regulation, be exercised by the County Court or Magistrates' Court[327]. The suggestion that a different response would be appropriate to the same challenge to the validity of a warrant, depending upon which judicial officer happened to have signed it, seems unpersuasive. The fact that the Director of Public Prosecutions elected to send the present matter for trial in the County Court, when he might easily have elected for trial in the Supreme Court, could not finally deprive a person in the position of the appellant of having an authoritative ruling on his objection, at least in the Court of Appeal. In respect of legal challenges based upon suggested defects appearing on the face of a warrant, the trial judge appears competent to make the necessary ruling whatever place he holds in the judicial scheme of things. If that ruling is wrong, there are procedures for correcting it. If it is right, it saves fragmentation of the trial and may save time and costs. In either event, it ensures observance of the rule of law throughout the conduct of the trial.

In the events which have occurred, the point does not need to be resolved in this appeal. It was clearly reserved at the trial. It was advanced in the Court of Appeal. That court plainly had power to review the lawfulness of the warrant. If the Court of Appeal erred in its ruling on the point, the appellant may seek correction in this Court.

(b) Validity of the warrant under the Rules

The Rules prescribed the form of the warrants used in this case. A number of arguments were advanced to the effect that the Rules in question (and thus the form of the warrants) went beyond the power conferred by the legislation purportedly invoked. Thus, it was argued that, properly understood, the Rules did not relate to "the practice and procedure of the Court" as envisaged by s 25(1)(f)(i) of the Supreme Court Act. This was so because that phrase would be construed to relate to "the practice and procedure of the Court" acting judicially. Similarly, so far as reliance on s 50 of the Interpretation of Legislation Act was concerned, it was argued that the requirement in that section that the Rule be for the practice and procedure of the court "in the exercise of the jurisdiction so conferred" expressly restricted the rule-making power to the exercise of the jurisdiction of the Court conferred by the Listening Devices Act. According to the appellant's argument, the Rule prescribing the form of the warrant, by empowering a recital directing attention solely to par 4A(1)(a) of the Act and not to par 4A(1)(b), was contrary to "the exercise of the jurisdiction so conferred". It was thus outside the grant of rule-making power in the Interpretation of Legislation Act.

It is unnecessary to resolve these controversies. Any rule-making power may only be exercised for the purpose of carrying into effect the substantive provisions of the relevant Act. To the extent that a rule conflicts with, or derogates from, the Act, such a rule will be of no effect. It is not competent to the Executive Government or the judiciary in the making of subordinate legislation, such as the Rules, to act in a way that is inconsistent with a statute enacted by Parliament[328]. Therefore, the essential argument presented by the appellant cannot be avoided. The Rules, and the form they authorise, cannot enjoy a validity which would conflict with the requirements of the Act to which they are ancillary.

In any case, the fact that the Rules authorising a form of warrant were duly made having, so far as they provided, the force of law, does not, as such, sustain the warrants in question as "warrants" of the kind envisaged by Parliament when s 4A of the Act was enacted. It is to the Act, and what it provided, that the law attends in the case of a suggested defect in the exercise of a subordinate law-making power. From time to time mistakes occur. After this litigation commenced, the Rules, and the form, were amended to overcome, for the future, the point now being debated[329]. The position would be different where the form was included in the legislation and thus had the authority of Parliament[330]. A number of the problems present in this appeal would then be removed. But here, the form was not part of the Act nor even of regulations made under the Act. No extraneous or additional evidence was adduced to supplement the matters appearing on the face of the warrant. Even if the validity of the Rules, and of the form authorised by them is assumed, the question whether the resulting warrants were defective remains to be decided upon the appellant's challenge to their validity.

(c) Validity of Supreme Court warrants

The Crown contested the appellant's submission that the warrants had to disclose their validity on their face. Various reasons were advanced as to why this was not so in the present instance. Although dicta appear from time to time to suggest the existence of a general proposition that "all warrants must show jurisdiction on their face"[331], such statements are typically made in cases where the inferior authority[332] issuing the warrants is a police officer, justice of the peace or magistrate. The Crown submitted that the same requirement was inappropriate to the case of a warrant issued by the Supreme Court under the hand of one of its judges. Such a warrant had to comply with certain mandatory requirements as stated in the Act. But so long as it did so (and in the present case the contrary was not suggested) the warrants conformed to the Act. Other matters (including by way of recital) were irrelevant and superfluous to their validity According to the Crown, the appellant was seeking to import additional requirements into the form of the warrants beyond those stated by Parliament.

There are arguments both ways on this point. On the one hand, because the warrant is issued under the Act as a result of a proceeding that is "for all practical purposes, an unreviewable in camera exercise"[333] some of the reasons which have been cited for the need to demonstrate jurisdiction on the face of a warrant may not exist, at least to the same extent. Such a warrant, unlike a search warrant, does not have to be shown, before execution, to the person affected. On the contrary, its purpose denies any such obligation. Police officers and other officials to whom such warrants are addressed may be presumed to be aware of the requirements of the Act. The judges who sign such warrants may be assumed to satisfy themselves as to the statutory preconditions for doing so. At least so much may be presumed where they are judges of superior courts[334].

On the other hand, once it is accepted that the act in question is administrative and not judicial in character, the status for other purposes of the person performing it does not have the same significance, historically or legally, to attract immunity from a challenge to the validity of the warrant[335]. Although the subject may not examine the authority provided by the warrant prior to its execution, he or she is certainly entitled to examine it subsequently and to question its lawfulness (as the appellant has) by reference to its terms. Furthermore, the public generally have an interest in the lawful conduct of police and other officials and in the scrutiny of conduct invading an individual's property and privacy[336]. Police and other public officials who receive such warrants are obliged to satisfy themselves as to the authority provided to them. The notion that a warrant to install and use a listening device need not be accurate and complete on its face because it does not have to be given in advance to the subject is quite unpersuasive. As this appeal demonstrates, examination of the warrant after the event may be very thorough indeed. Awareness that such examination may follow is an important sanction against issuing or executing warrants otherwise than strictly in accordance with law.

It is unnecessary finally to determine this question because of the way the appellant ultimately put his case. He asserted that, whatever must as a matter of law be contained within a warrant issued by a Supreme Court and signed by one of its judges, in the present case, in fact, the warrant contained a recital which was inadequate, misleading or both. In this appeal it is therefore unnecessary to decide whether any recital was essential (as the appellant urged and the Crown denied) to establish validity of the warrant on its face. The only question requiring determination is whether the recital actually contained in each of the warrants invalidated it, notwithstanding that it did no more than follow the form approved by the Rules.

(d) Satisfaction in fact of Judges issuing the warrants

For similar reasons it is unnecessary to consider the appellant's secondary argument. This was that a compelling inference arose from the face of the warrants that the judges who signed them were in fact satisfied only with the first prerequisite (par 4A(1)(a)) and not, additionally, with the second (par 4A(1)(b)). The appellant argued that this Court would draw such an inference and conclude that the judges in his case overlooked or ignored the second prerequisite because they asserted satisfaction only with the first.

This argument, addressed to the subjective satisfaction of two of the judges of the Supreme Court, runs into various difficulties. It would seem inappropriate for a court to receive evidence from a person such as a Supreme Court judge (even acting administratively) that he or she did reach the requisite satisfaction[337]. The task of the Court being the examination of the warrant on the material appearing on its face, the actual state of subjective satisfaction of the signatory appears to be of dubious relevance. Be that as it may, the issue can be ignored in this appeal because the appeal may be resolved on the appellant's primary argument concerning validity of the warrants on the face of the documents. An inquiry into what the judicial signatories actually took into account, assuming that to be permissible, can safely be left aside.

(e) The suggested presumption of regularity

The Crown argued, and the appellant denied, that, because the warrants in question were signed by judges of the Supreme Court such warrants were entitled to the benefit of a presumption of regularity. This would involve the presumption that, whatever the warrant recited on its face, a judge of the Supreme Court would not have signed it without satisfying himself or herself that the provisions of the Act, and all of them, had been complied with[338].

Clearly, as a matter of legal policy, it may be said that warrants issued by superior court judges are not readily impugned[339]. Although, in defence of the rule of strictness relating to the validity of warrants, it has sometimes been claimed that the presumption of regularity does not apply to warrants, these remarks have generally been made in the context of search warrants issued by subordinate officials who are not Supreme Court judges[340]. Some authorities suggest that a different rule applies to such judges, even where they are acting administratively[341]. It has even been proposed that now that most magistrates have legal training, warrants issued by them may attract the presumption of regularity hitherto enjoyed by judges[342]. The appellant contested these arguments. He submitted that a presumption devised for the judicial acts of superior court judges, typically performed after hearing both parties in open court, was inappropriate for, and inapplicable to, an executive function performed in camera having great potential to invade the liberties of those affected. A rule of vigilance rather than of presumed legality was urged as being more in keeping with the approach of the courts to such functions.

I am inclined to agree with the appellant's arguments on this point. However, it is unnecessary to resolve the issue in this case. Nobody suggested that any presumption, such as the Crown supported, was irrebuttable[343]. A presumption is merely a tool in the process of reasoning to a decision. The appellant's primary argument was that the express mention of par 4A(1)(a) and the omission of any mention of par (b) necessarily invalidated the warrants on its face. To the extent that any presumption of regularity supported the validity of what the judges had done in signing the warrants executed in this case, it was rebutted by the express language of the warrants which they actually signed.

(f) Exclusion of the evidence

The relief ordinarily available to a person in the position of the appellant, upon proof of the invalidity of warrants, is an application for the exclusion of the evidence obtained as a consequence of the conduct of the authorities thereby rendered illegal.

The Crown submitted that because the evidence secured pursuant to the warrants was, upon any view, obtained following legally prescribed forms, and because the evidence was relevant and cogent and the crime under investigation serious, any exercise of the Bunning v Cross discretion was extremely unlikely to result in the exclusion of the evidence obtained in this case. There is force in this submission. On the other hand, absent a lawful warrant, interception and recording of private conversations such as occurred here was a crime. A judge might determine that, for the defence of property and privacy interests and to uphold the strict standards repeatedly endorsed by this Court, such evidence should be treated as inadmissible[344]. Such a ruling would have to be made in the context of the trial. It would need to take into account any other evidence available against the appellant. Once illegality is established it would be for the Crown to persuade a trial judge to admit the evidence notwithstanding such illegality. The ruling is not one easily made in an appeal even where, as in this case, it is accepted that the listening device evidence was substantially the only evidence against the appellant on the remaining contested count.

At the very least, the appellant lost the opportunity to argue at trial that the evidence unlawfully obtained should be excluded[345]. This is not an opportunity which would readily be denied to him, given the importance of that evidence to the prosecution case and the importance of the societal interests which the requirement of a [lawful] warrant is designed to uphold. If, therefore, the appellant can make good his attack on the warrants, the case would not be one, in my view, for the application of the proviso. His conviction would have to be set aside. A new trial would have to be ordered at which he could renew his application.

The warrants were invalid

These conclusions take me directly to the appellant's principal attack on the validity of the warrants. He asserted that, on their face, the warrants were defective because the recital evidenced an inadequate and incomplete consideration of matters which, by the Act, had to be taken into account by the judges of the Supreme Court issuing them.

This case presents a problem similar to that considered in the Supreme Court of South Australia in Tran Nominees v Scheffler[346]. In that case, the Controlled Substances Act 1984 (SA) empowered an officer of police and certain other named persons to issue warrants to enter premises for the purpose of ascertaining whether the provisions of the Act were being complied with and, where necessary, to seize specified goods[347]. The legislation provided that the designated person issuing the warrant shall not do so unless satisfied on information given upon oath that there were reasonable grounds for suspecting that an offence against the Act had been, was being or was about to be, committed. Although the information given by a police officer to the inspector who issued the warrant may, in fact, have afforded reasonable grounds for suspecting that an offence against the Act had been, was being or was about to be, committed, the warrant contained on its face a statement which did not disclose any offence. It asserted that the inspector was satisfied that there were reasonable grounds for suspecting "that there is equipment used in connection with a prohibited substance".

In the Supreme Court of South Australia, Jacobs J[348] found the warrant to be invalid because of the incorrect or inadequate recital contained within it. He made absolute an order nisi for certiorari to quash the warrant[349]. The Full Court[350] unanimously dismissed the police appeal.

In the course of his reasons, Jacobs J referred to the rule which requires that warrants, and the statutes under which they are issued, should be construed strictly[351]. He then turned to the consequence of an incorrect or inadequate recital appearing on the face of the warrant[352]:

" In the present case ... the warrant did recite the state of satisfaction of the issuing officer, but what was recited was a state of satisfaction that did not authorise the issue of the warrant. It made no reference to a suspected offence, but stated only a suspicion of conduct that was not itself an offence, and I can see no reason why, consistently with the general principles enunciated earlier, the Court should be astute to sustain the warrant by attributing to the issuing officer a state of satisfaction which, on the face of the warrant, he does not claim to have had. It is not enough to say ... that [the issuing officer] expressed himself loosely, or even carelessly, for in the result there is on the face of the warrant a statement that does not authorise its issue.

[It is apparently assumed] that the warrant, as a matter of law, should recite compliance with the conditions of its issue. I am not convinced that such a recital is necessary, but that does not mean that one must, or can, ignore a recital which denies the statutory authority for the issue of the warrant".

In the Full Court, the principal judgment was given by Cox J, with whom O'Loughlin J concurred; with Zelling ACJ to like effect. All judges agreed that the appeal could be decided "on quite a short point"[353]. Cox J said[354]:

"[T]he courts have always insisted that those who issue or execute a warrant of this sort should comply strictly with the statutory requirements. That includes the limitations, expressed or implied, upon the power to issue the warrant. The issuing authority must take care to ensure that all conditions precedent to issue have been met. If they have not, it is very likely that the warrant will be, at the least, seriously defective".

Cox J then turned to the facts of the case in hand and continued[355]:

"I do not accept ... that any deficiency in the wording of the recital is unimportant because this was an unessential part of the warrant. The law (it was said) does not require the issuing authority to state the object of his suspicion in that explicit way. Even if the premise be correct - and I say nothing about that - the conclusion is, in my opinion, unsound. It is one thing for a warrant to be silent about the basis for its issue, leaving the reader to assume, perhaps, that all was done with due regularity. (But cf Reg v Tillett; Ex parte Newton[356]). It is a very different thing to state, even unnecessarily, the jurisdictional grounds and then to get them wrong".

Both Zelling ACJ[357] and Cox J[358] went on to draw conclusions, as a matter of fact, as to the state of mind of the police officer who issued the warrant, based upon what was recited and what was omitted on the face of the warrant. However, the essential flaw in the warrant appeared on its face without the need to draw inferences about the subjective considerations affecting the officer who signed it. The omission on the face of the warrant was sufficient to deprive it of validity.[359]

Attempts were made by the Crown in this appeal to distinguish Tran Nominees. It was argued that the case related to a search warrant available to be shown to a person whose premises are about to be entered and searched and therefore entitled, on the face of the document, to be convinced of the adequacy of its authority. Furthermore, the warrant was issued by a police officer and not a Supreme Court judge. It referred on its face to a consideration outside the statute rather than (as here) an incomplete statement of the statutory requirements authorised by a Rule of Court. None of these points is a distinction of significance. In my view Tran Nominees was correctly decided. To adapt what Cox J said, it is one thing for warrants to be silent about the basis for their issue. It is a very different thing to state in a recital, even unnecessarily, jurisdictional grounds and then to get them wrong.

That is what occurred in the present case. The recital was incomplete. Therefore, on the face of the warrants, it was inaccurate. The requirements of par (b), which were omitted are, by no means, insignificant. Indeed they are vitally important to the protection of privacy as Parliament has recognised and enacted. The duty of the issuing judge is not to issue a warrant for the use of a listening device unless he or she is satisfied that there are reasonable grounds for the police officer's sworn suspicion or belief that, for the purpose of the investigation in hand, the use of a listening device is necessary. Satisfaction with the police evidence that an offence has been, is about to be or is likely to be committed is, on its own, inadequate.

The dual requirement is established for very good reason. The requirements of par (b) address the mind of the issuing judge to alternative, non-privacy invasive means of carrying out the investigation. Consideration of such alternatives is necessary because eavesdropping on private conversations in ostensibly private circumstances has the inherent tendency to catch in its net large numbers of completely innocent and uninvolved persons[360]. The numbers will be greater as the technology of eavesdropping and interception available to police and other officials expands. People overheard may carry on conversations, revealing aspects of their private lives and business affairs, which have absolutely nothing to do with the State or its agencies. They may do so upon the assumption that the occasion is private. To the extent that the necessity for the serious invasion of privacy which listening devices permits is not taken into account, as required by par (b), a vital protection for the individual enacted by Parliament is not fulfilled. Moreover, a safeguard for the protection of the privacy of uninvolved third parties is set at nought. If this became, or was believed to be, common it would have a serious effect on the confidence of citizens in the privacy of their conversations. Cases exist where the power of interception and intrusion has been abused by officials[361]. Vigilance and strictness are the proper responses of the courts.

It may have been unnecessary for the warrant to refer in the recital to par (a). But having done so, and having omitted reference to par (b), it was defective on its face. The mischief to which the strict rule concerning the content of such warrants is addressed includes the risk that even a conscientious Supreme Court judge, busily performing such an administrative function amidst pressing judicial duties might, on the face of the document, and reading it as accurately setting out the matters to be taken into account, address attention to the considerations in par (a) and not the dual requirements of pars (a) and (b) as the Act requires. The introduction of this element of realism concerning what can all too easily occur in the actual issue of warrants by judicial officers, however conscientious, encourages reference to be made to another element of realism, all too often overlooked. The suggestion that persons presented with search warrants examine their recitals and satisfy themselves calmly of their contents and preconditions overlooks the actual circumstances in which such warrants are typically executed. It ignores the surprise and disorientation which the unheralded arrival of officials executing such warrants usually occasions. In that sense, search warrants, like warrants under listening devices legislation, play in fact a practical role beyond a priori satisfaction to the subject of the warrants. They afford that subject facilities of ex post scrutiny of lawfulness. But they also oblige applicant officials and authorising personnel to satisfy themselves that all necessary preconditions are fulfilled. Hence the considerable importance of ensuring that the preconditions, if stated at all, are accurately stated, conformably with the legislation. That is what was missing here. And it was a serious omission not merely a technical one.

Because, on its face, each warrant was incomplete and misleading it was defective. Because it did not conform to the Act, it could not be saved from such defects by the mere fact that it followed a form complying to the imperfect endeavours of a subordinate rulemaker. Unsurprisingly, that form has now been changed. The change does not avail the Crown in this case.

Conclusion and orders

For the reasons already given, this is not a case for the application of the proviso[362]. The appellant lost the chance to exercise the right to have a judicial determination of the admissibility of the evidence obtained from the illegal use of the listening device. In all the circumstances, I would not be prepared to say that such an application was futile or bound to fail.

At the time of hearing of this appeal the appellant had served most of the custodial part of his sentence. By the time the Court's orders are made he will have completed the non-parole period. An application was made at the hearing, if the appeal were to be allowed, for orders quashing the conviction and entering a judgment of acquittal. Such an order would not be appropriate. It would be tantamount to accepting that exclusion of the evidence, objected to by the appellant, was inevitable. That is not certain. A new trial should therefore be ordered in the full understanding that, for practical reasons, it may be unlikely to be had in this case. The decision on whether a retrial is conducted should rest with the prosecuting authorities. It is essential to make that order to uphold the principle which the appellant brought to this Court for vindication.

The appeal should be allowed. The order of the Court of Appeal of the Supreme Court of Victoria should be set aside. In lieu thereof, it should be ordered that the appellant have leave to appeal to that Court; his appeal should be upheld; his conviction and sentence should be quashed and a new trial ordered.

[1] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[2] Section 9 empowers the Governor to "make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act".

[3] Statutory Rule No 127 of 1988 (Vic) made 30 March 1988.

[4] Order 1 r 1.04.

[5] Ousley (1996) 87 A Crim R 326 at 327, 329.

[6] In the context of search warrants, see George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111. In the context of listening devices, see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 435-436.

[7] (1996) 87 A Crim R 326 at 334.

[8] [1989] HCA 28; (1989) 167 CLR 94.

[9] (1993) 70 A Crim R 162.

[10] [1989] HCA 28; (1989) 167 CLR 94 at 105; see also at 106.

11 (1936) 55 CLR 324.

[12] (1936) 55 CLR 324 at 364.

[13] [1990] HCA 4; (1990) 169 CLR 307.

[14] [1990] HCA 4; (1990) 169 CLR 307 at 322-323.

[15] [1994] HCA 15; (1994) 179 CLR 427 at 444.

[16] [1995] HCA 26; (1995) 184 CLR 348 at 360, 389.

[17] (1986) 42 SASR 361.

[18] (1986) 42 SASR 361 at 392-393.

[19] See Grollo [1995] HCA 26; (1995) 184 CLR 348 at 367.

[20] [1990] FCA 154; (1990) 26 FCR 473; 96 ALR 629.

[21] (1969) 14 FLR 101.

[22] [1990] FCA 154; (1990) 26 FCR 473 at 488-489; [1990] FCA 154; 96 ALR 629 at 644.

[23] The Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic) amended Form 7B so as to make reference to the matters in s 4A(1)(a) and (b). The amendment took effect from 1 July 1996.

[24] Listening Devices Regulations 1987 (Vic) and Listening Devices Regulations 1997 (Vic).

[25] Tillett (1969) 14 FLR 101 at 106; Karina Fisheries (1990) 95 ALR 557 at 569-570.

[26] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71(1). The charge was, in fact, the first count in the presentment.

[27] (1996) 87 A Crim R 326.

[28] Section 4(1)(a).

[29] Note that by s 4(3)(a)(i), only police officers who have been authorised in writing by the Chief Commissioner of Police, the Deputy Commissioner of Police or an officer of or above the rank of Inspector and authorised in that behalf, may use a listening device pursuant to a warrant issued under s 4A.

[30] Rule 7.05 and Form 7B. The prescribed form was amended with effect from 1 July 1996 by the Supreme Court (Chapter VI Amendment No 8) Rules 1996 to make reference to the matters specified in ss 4A(1)(a) and (b).

[31] The provision in question, s 16(1) of the Listening Devices Act 1984 (NSW), then provided: " Upon complaint made by a person that the person suspects or believes-

(a) that a prescribed offence has been, is about to be or is likely to be committed; and

the Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of the listening device."

[32] [1990] HCA 4; (1990) 169 CLR 307 at 322-323. See also Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 444; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359-360.

[33] [1990] HCA 4; (1990) 169 CLR 307 at 322.

[34] See Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 106 where it was said by Mason CJ and Toohey J that "[w]here a warrant can be issued by [an] appropriate authority only upon its being satisfied of prescribed matters to be shown by the applicant for the warrant, the validity of the warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of those matters". See also McArthur v Williams [1936] HCA 10; (1936) 55 CLR 324 at 365-366 per Dixon, Evatt and McTiernan JJ.

[35] (1986) 42 SASR 361.

[36] Note, however, that in Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952, where there was no need for any recital, the recital of the existence and the terms of the information laid, which terms did not reflect all the matters upon which the validity of the warrant depended, was held not to indicate a want of satisfaction as to any of those matters.

[37] See Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 at 393 per Cox J.

[38] R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106.

[39] Gosset v Howard (1845) 10 QB 411 at 452 [1845] EngR 233; [116 ER 158 at 172-173].

[40] Gosset v Howard (1845) 10 QB 411 at 452 [1845] EngR 233; [116 ER 158 at 173].

[41] Gosset v Howard (1845) 10 QB 411 at 452-453 [1845] EngR 233; [116 ER 158 at 173]. See also Caudle v Seymour [1841] EngR 777; (1841) 1 QB 889 [113 ER 1372]; Taylor v Clemson (1844) 11 Cl & F 610 at 640 [8 ER 1233 at 1245]; Attorney-General for the Northern Territory v The Queen; Ex parte Tomlinson [1981] FCA 24; (1981) 50 FLR 475 at 481.

[42] Gosset v Howard (1845) 10 QB 411 at 452-454 [1845] EngR 233; [116 ER 158 at 173].

[43] (1969) 14 FLR 101 at 107.

[44] 10th ed Kersley (1939) at 646. See also at 101.

[45] See also Peacock v Bell and Kendal [1845] EngR 175; (1667) 1 Wms Saund 69 at 74 [85 ER 81 at 87-88]; R v All Saints Southampton (1828) 7 B & C 785 at 790 [1828] EngR 410; [108 ER 916 at 918]; Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 569-570 per O'Loughlin J at first instance.

[46] (1969) 14 FLR 101 at 107.

[47] See Farquharson v Morgan [1894] 1 QB 552 at 556, 559, 562-563. See also Taylor v Clemson (1844) 11 Cl & F 610 at 641 [1844] EngR 26; [8 ER 1233 at 1246]; R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 118; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359.

[48] See R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 159.

[49] [1995] HCA 26; (1995) 184 CLR 348 at 367. See also at 379 per McHugh J, 390 per Gummow J.

[50] [1995] HCA 26; (1995) 184 CLR 348 at 367 (footnote omitted).

[51] Section 9 allows for regulations to be made with respect to matters required or permitted by the Act to be prescribed or necessary to be prescribed to give effect to the Act.

[52] Listening Devices Regulations 1987 (Vic).

[53] Listening Devices Regulations 1997 (Vic).

[54] The terms used, namely, "metropolitan area" in the Listening Devices Regulations 1987 (Vic) and "metropolitan municipal district" in the Listening Devices Regulations 1997 (Vic), are defined by reference to other legislation.

[55] [1990] FCA 154; (1990) 26 FCR 473 at 488-489; [1990] FCA 154; 96 ALR 629 at 644.

[56] Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94, referring to Saunders v Evans [1861] EngR 335; (1861) 8 HLC 721 at 729 [11 ER 611 at 615]. See also O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 214-216; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 575; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 311-312.

[57] Sections 5(b)(i) and (iv).

[58] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 367, referring to the conferring of power on judges to grant warrants under the Telecommunications (Interception) Act 1979 (Cth). See also Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952 at 1019 per Lord Salmon (dissenting).

[59] See the discussion in Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 367-368.

[60] See Customs Act 1901 (Cth); Australian Federal Police Act 1979 (Cth); Telecommunications (Interception) Act 1979 (Cth); Listening Devices Act 1984 (NSW); Listening Devices Act 1969 (Vic); Invasion of Privacy Act 1971 (Q); Listening Devices Act 1972 (SA); Listening Devices Act 1990 (NT); Listening Devices Act 1992 (ACT); cf Listening Devices Act 1978 (WA) and Listening Devices Act 1991 (Tas) which confer power on senior members of the police force and magistrates respectively. Note also the limited powers of the Commonwealth Attorney-General and Director-General of Security to issue warrants in matters of security pursuant to ss 9, 10 and 11A of the Telecommunications (Interception) Act 1979 (Cth) and ss 26, 27A and 29 of the Australian Security Intelligence Organization Act 1979 (Cth).

[61] Note the dissenting judgment of McHugh J in Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 378-384.

[62] See Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 at 322 where reference is made to disqualification. See also Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 366-367, 380-381.

[63] See George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111 in the context of search warrants.

[64] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74 per Stephen and Aickin JJ. See also Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 30-31 per Mason CJ, Deane and Dawson JJ.

[65] The proviso allows that an appeal against conviction may be dismissed if "no substantial miscarriage of justice has actually occurred."

[66] Hayne JA, Southwell and Smith AJJA.

[67] Ousley (1996) 87 A Crim R 326 at 335.

[68] Ousley (1996) 87 A Crim R 326 at 345.

[69] SR No 127/1988.

[70] The form has been amended by the Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic), SR No 57/1996, and now recites satisfaction in terms of both s 4A(1)(a) and (b).

[71] (1993) 70 A Crim R 162.

[72] [1989] HCA 28; (1989) 40 A Crim R 361.

[73] See Davy v Spelthorne Borough Council [1983] UKHL 3; [1984] AC 262 at 277; Rubinstein, Jurisdiction and Illegality, (1965) at 37-38; Aronson and Franklin, Review of Administrative Action, (1987) at 211. See also the discussion of Beazley J in Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 112-122.

[74] [1984] UKHL 5; [1985] AC 835 at 852.

[75] cf Aronson and Dyer, Judicial Review of Administrative Action, (1996) at 644.

[76] Scott v Bennett (1871) LR 5 HL 234 at 245; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590; DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 at 504-505.

[77] Sanders v Sanders [1967] HCA 33; (1967) 116 CLR 366 at 376.

[78] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 590.

[79] Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952 at 1000.

[80] [1990] HCA 4; (1990) 169 CLR 307.

[81] [1990] HCA 4; (1990) 169 CLR 307 at 322; see also Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 444.

[82] [1946] HCA 50; (1946) 74 CLR 461 at 483.

[83] [1959] AC 83.

[84] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 179; Coco (1994) 179 CLR 427 at 443; Haynes v Attorney-General (NSW) unreported, Supreme Court of New South Wales, 9 February 1996 at 8-9.

[85] (1996) 68 FCR 265.

[86] (1996) 68 FCR 265 at 276.

[87] [1990] HCA 4; (1990) 169 CLR 307 at 322-323.

[88] (1996) 68 FCR 265 at 277.

[89] [1994] HCA 15; (1994) 179 CLR 427.

[90] [1994] HCA 15; (1994) 179 CLR 427 at 435, 445-446, 462.

[91] (1996) 60 FCR 149; 134 ALR 495.

[92] (1996) 60 FCR 149 at 212; 134 ALR 495 at 551.

[93] (1996) 60 FCR 149 at 204; 134 ALR 495 at 545.

[94] Unreported, Supreme Court of New South Wales, 9 February 1996.

[95] [1989] HCA 28; (1989) 167 CLR 94.

[96] (1993) 70 A Crim R 162.

[97] Unreported, Supreme Court of New South Wales, 9 February 1996 at 13.

[98] [1994] HCA 15; (1994) 179 CLR 427 at 443.

[99] [1994] HCA 15; (1994) 179 CLR 427 at 443.

[100] [1994] HCA 15; (1994) 179 CLR 427 at 444.

[101] (1993) 70 A Crim R 162.

[102] (1993) 70 A Crim R 162 at 184.

[103] [1989] HCA 28; (1989) 167 CLR 94 at 105-106.

[104] [1989] HCA 28; (1989) 167 CLR 94 at 105.

[105] [1989] HCA 28; (1989) 167 CLR 94 at 106. See also McArthur v Williams (1936) 55 CLR 324 at 365-366.

[106] [1989] HCA 28; (1989) 167 CLR 94 at 106.

[107] (1936) 55 CLR 324 at 365-366.

[108] [1995] HCA 26; (1995) 184 CLR 348.

[109] [1995] HCA 26; (1995) 184 CLR 348 at 367.

[110] Flanagan (1996) 60 FCR 149 at 187, 204; 134 ALR 495 at 528, 544; Seymour v Attorney-General (Cth) [1984] FCA 329; (1984) 4 FCR 498 at 501; [1984] FCA 329; 57 ALR 68 at 71.

[111] Sankey v Whitlam (1978) 142 CLR 1 at 25-26, 82; R v Iorlano [1983] HCA 43; (1983) 151 CLR 678 at 680; Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 643, 660; Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339; Vereker v O'Donovan [1988] 6 Leg Rep SL 3; Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 at 31-32; Elliott v Seymour [1993] HCA 70; (1993) 68 ALJR 173 at 175; [1993] HCA 70; 119 ALR 1 at 4; Re Rozenes; Ex parte Burd [1994] HCA 11; (1994) 68 ALJR 372 at 373; [1994] HCA 11; [1994] HCA 11; 120 ALR 193 at 195; Parker v Taylor (1994) 68 ALJR 496 at 496; Flanagan (1996) 60 FCR 149 at 187; 134 ALR 495 at 528.

[112] See, for example, Young v Quin (1985) 4 FCR 483; 59 ALR 225.

[113] Flanagan (1996) 60 FCR 149 at 204; 134 ALR 495 at 545.

[114] For example, there has been a 370 per cent increase in the recorded use of listening devices by law enforcement agencies in New South Wales since 1989: see Bronitt, "Electronic Surveillance, Human Rights and Criminal Justice", (1997) 3(2) Australian Journal of Human Rights 183 at 184. See also Grollo [1995] HCA 26; (1995) 184 CLR 348 at 382.

[115] Holdsworth, A History of English Law, 7th ed (1956), vol 1 at 294-295.

[116] Stephen, A History of the Criminal Law of England, (1883), vol 1 at 190; Holdsworth, A History of English Law, 7th ed (1956), vol 1 at 295.

[117] Hale, The History of the Pleas of the Crown, (1800), vol 2, ch 13 at 113.

[118] [1765] EWHC J98; (1765) 19 How St Tr 1030 at 1067.

[119] Entick v Carrington [1765] EWHC J98; (1765) 19 How St Tr 1030 at 1067.

[120] Hale, The History of the Pleas of the Crown, (1800), vol 2, ch 18 at 150; Hawkins, Pleas of the Crown, 6th ed (1787), vol 2, ch 13, ss 10 and 17.

[121] [1979] UKHL 5; [1980] AC 952 at 997.

[122] (1848) 11 QB 455 at 465 [1848] EngR 233; [116 ER 547 at 551].

[123] (1828) 7 B & C 785 at 790 [108 ER 916 at 918].

[124] (1867) LR 2 HL 239 at 259 citing Peacock v Bell [1845] EngR 175; (1667) 1 Wms Saund 69 at 74 [85 ER 81 at 87-88].

[125] Feldman, The Law Relating to Entry, Search and Seizure, (1986) at 131.

[126] Carroll v Mijovich (1991) 25 NSWLR 441.

[127] Re United Distillers Ltd [1947] 3 DLR 900; R v Tillett; Ex parte Newton (1969) 14 FLR 101; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; 57 ALR 72; Arno v Forsyth (1986) 9 FCR 576; 65 ALR 125. A warrant need not specify particular things to be seized, however, if the class of such things is sufficiently identified by reference to an offence: cf R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 114.

[128] R v La Vesque (1918) 30 CCC 190; R v Solloway Mills & Co (1930) 53 CCC 261; Tillett (1969) 14 FLR 101; Cloran (1984) 4 FCR 151.

[129] Caudle v Seymour [1841] EngR 777; (1841) 1 QB 889 [113 ER 1372]; Ex parte Marks (1906) 6 SR(NSW) 428.

[130] Feather v Rogers (1909) 9 SR(NSW) 192; Bowden v Box [1916] NZ Gaz LR 443; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663; Tillett (1969) 14 FLR 101; Coghill v McDermott [1983] 1 VR 751; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263.

[131] Sheehan v Gallagher [1902] QSR 319. However, a warrant was not necessarily bad because it directed a member of a class of persons to execute it (MacDonald v Beare [1904] HCA 22; (1904) 1 CLR 513).

[132] Tillett (1969) 14 FLR 101 at 108.

[133] R v Conley (1979) 21 SASR 166; Walker v West [1981] 2 NSWLR 570.

[134] (1969) 14 FLR 101 at 106.

[135] [1979] UKHL 5; [1980] AC 952 at 1008.

[136] Repealed by s 5 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth).

[137] SR No 9/1987, made pursuant to ss 4A(8) and 9 of the Act. The Listening Devices Regulations 1987 (Vic) have since been replaced by the Listening Devices Regulations 1997 (Vic), SR No 2/1997.

[138] reg 4.

[139] Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663; Morse & Thompson v Harlock [1977] WAR 65; Re Arno; Ex parte Forsyth (1985) 9 FCR 557; 65 ALR 125; Arno v Forsyth (1986) 9 FCR 576; 63 ALR 130; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263; Tran Nominees v Scheffler (1986) 42 SASR 361; Swanevelder v Holmes (1990) 52 SASR 549; Lemesk Pty Ltd v Easterby (1993) 66 A Crim R 337.

[140] Peacock v Bell [1845] EngR 175; (1667) 1 Wms Saund 69 at 74 [85 ER 81 at 87-88]; Taylor v Clemson (1844) 11 Cl & F 610 at 640-641 [1844] EngR 26; [8 ER 1233 at 1245-1246]; Gosset v Howard [1845] EngR 233; (1845) 10 QB 411 at 452-454 [1845] EngR 233; [116 ER 158 at 172-173]; Mayor of London v Cox (1867) LR 2 HL 239 at 259; Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 569-570. See also Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 646. In Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 644, however, the Full Court of the Federal Court expressed reservations about the refusal to extend the presumption beyond superior courts, citing the requirement for magistrates to now be legally trained as removing the historical rationale based on confining the presumption to those with legal training.

[141] [1990] HCA 4; (1990) 169 CLR 307 at 322.

[142] [1995] HCA 26; (1995) 184 CLR 348 at 367.

[143] Except outside the Melbourne metropolitan area, where for reasons of practicality, the Listening Devices Regulations 1987 (Vic) permitted warrants to be issued by the County Court or by a Magistrates' Court.

[144] (1845) 10 QB 411 at 453 [1845] EngR 233; [116 ER 158 at 173].

[145] (1986) 42 SASR 361.

[146] (1986) 42 SASR 361 at 368.

[147] (1986) 42 SASR 361 at 371.

[148] The Law Relating to Entry, Search and Seizure, (1986) at 132.

[149] Re BX Development Inc and The Queen (1976) 70 DLR (3d) 366 at 372.

[150] [1990] FCA 154; (1990) 26 FCR 473 at 488-489; [1990] FCA 154; 96 ALR 629 at 644. See also Flanagan (1996) 60 FCR 149; 134 ALR 495 for a similar interpretation in relation to the Telecommunications (Interception) Act.

[151] State of Tasmania v The Commonwealth of Australia and State of Victoria [1904] HCA 11; (1904) 1 CLR 329 at 343; Rylands Brothers (Australia) Ltd v Morgan (1927) 27 SR(NSW) 161 at 168-169; Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 575; Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250.

[152] Grollo [1995] HCA 26; (1995) 184 CLR 348 at 367.

[153] Galliard v Laxton (1862) 2 B & S 363 at 372-373 [1862] EngR 474; [121 ER 1109 at 1112].

[154] s 16.

[155] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110.

[156] [1979] UKHL 5; [1980] AC 952 at 1000.

[157] Coco [1994] HCA 15; (1994) 179 CLR 427 at 441.

[158] Coco [1994] HCA 15; (1994) 179 CLR 427 at 441, citing Dickson J in Re Application for an Authorization (Wiretap Reference) [1984] 2 SCR 697 at 712-713; 14 DLR (4th) 546 at 559.

[159] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-113; Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 648; Coco (1994) 179 CLR 427 at 436.

[160] See Haynes unreported, Supreme Court of New South Wales, 9 February 1996 at 12.

[161] s 4A(4)(f) of the Act.

[162] s 5 of the Act.

[163] s 5 of the Act.

[164] Order 1.04 of the Criminal Appeals and Procedures Rules.

[165] Ex parte Young; In re Young (1881) 19 Ch 124 at 134; Malpas v Malpas (1885) 11 VLR 670; McCheane v Gyles [1902] 1 Ch 287 at 301; Kayley v Hothersall [1925] 1 KB 607 at 612; SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; Donald Campbell & Co v Pollak [1927] AC 732 at 804.

[166] See Poyser v Minors (1881) 7 QBD 329 at 333, 337-338; Naughton v Colonial Provident Life and General Assurance Co Ltd [1928] VicLawRp 78; [1928] VLR 533 at 538.

[167] Pt 77 r 73 and form 89C.

[168] Lynch v Brisbane City Council [1961] HCA 19; (1961) 104 CLR 353 at 365.

[169] Foster v Aloni [1951] VicLawRp 69; [1951] VLR 481 at 484. See also State Bank (SA) v Hellaby (1992) 59 SASR 304 at 309.

[170] South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 165.

[171] [1933] HCA 56; (1933) 49 CLR 142 at 156.

[172] Poyser v Minors (1881) 7 QBD 329 at 333 per Lush LJ. See also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-177; The Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 at 75.

[173] (1978) 19 SASR 464 at 470.

[174] (1947) at 265.

[175] Harrington v Lowe (1996) 70 ALJR 495 at 501; 136 ALR 42 at 49.

[176] Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250.

[177] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. See also Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19; Flanagan (1996) 60 FCR 149 at 212-213; 134 ALR 495 at 552-553.

[178] R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334-335; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 64-65, 73-75; Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 201-203, 234-235.

[179] [1978] HCA 22; (1978) 141 CLR 54.

[180] Ousley (1996) 87 A Crim R 326.

[181] Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952 at 1000, 1008.

[182] Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327 at 359-360; [1996] HCA 3; 141 ALR 545 at 588.

[183] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359.

[184] [1979] UKHL 5; [1980] AC 952 at 999-1000; see also at 1008 per Lord Diplock.

[185] See Cooper v Booth [1785] EngR 7; (1785) 3 Esp 135 at 144 [170 ER 564 at 567] where Lord Mansfield described as depending entirely upon the statute under which the warrant in question had been granted, the issues arising on an action in trespass against those who had executed the warrant.

[186] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437.

[187] See Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 441.

[188] Wiretap Reference [1984] 2 SCR 697 at 710-711.

[189] [1995] HCA 26; (1995) 184 CLR 348 at 367 (footnote omitted).

[190] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359.

[191] See, for example, s 52(5) of the Controlled Substances Act 1984 (SA) ("the Controlled Substances Act"), considered in Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361.

[192] The circumstances in which these Courts may exercise the powers of the Supreme Court were prescribed by the Listening Devices Regulations 1987 (Vic) (SR No 9/1987), which were replaced by the Listening Devices Regulations 1997 (Vic) (SR No 2/1997).

[193] Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 648; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436, 437.

[194] Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952 at 997-998.

[195] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112.

[196] [1990] HCA 4; (1990) 169 CLR 307 at 320-322. See also Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 444; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359-360, 389.

[197] SR No 74/1987.

[198] SR No 127/1988.

[199] [1990] HCA 4; (1990) 169 CLR 307.

[200] The alleged defect in Form 7B has been remedied by the Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic) (SR No 57/1996), which amended Form 7B by inserting a reference to the matter prescribed by s 4A(1)(b) of the Act. The amendment came into operation on 1 July 1996.

[201] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 75.

[202] R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335.

[203] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.

[204] [1989] HCA 28; (1989) 167 CLR 94.

[205] cf R v Robinson (1996) 129 FLR 409 at 426.

[206] The NSW Act was amended by the Listening Devices Amendment Act 1996 (NSW). Schedule 2 was inserted. It sets out the form of warrant. Section 16(6A), which was also added, states that a warrant "under this section may be in or to the effect of the form set out in Schedule 2".

[207] [1989] HCA 28; (1989) 167 CLR 94 at 104.

[208] [1989] HCA 28; (1989) 167 CLR 94 at 104; Murdoch, Murphy, Murphy & Murphy (1987) 37 A Crim R 118 at 129.

[209] [1989] HCA 28; (1989) 167 CLR 94 at 118 per Brennan J, 124 per Deane J, 128 per Dawson J.

[210] [1989] HCA 28; (1989) 167 CLR 94 at 105-106.

[211] (1936) 55 CLR 324.

[212] (1936) 55 CLR 324 at 365-366.

[213] [1785] EngR 7; (1785) 3 Esp 135 at 144 [170 ER 564 at 567-568].

[214] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 105.

[215] (1936) 55 CLR 324 at 364.

[216] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359.

[217] As in Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307. See also Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 186-188; 134 ALR 495 at 527-529.

[218] [1979] UKHL 5; [1980] AC 952 at 1000; see also at 1005, 1026.

[219] (1996) 87 A Crim R 326 at 334.

[220] Stanton v Styles [1850] EngR 694; (1850) 5 Ex 578 at 583 [155 ER 253 at 256].

[221] [1849] EngR 787; (1849) 8 CB 271 at 286 [137 ER 513 at 519].

[222] Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 101.

[223] Gosset v Howard (1845) 10 QB 411 at 453 [1845] EngR 233; [116 ER 158 at 173].

[224] See Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 646.

[225] (1845) 10 QB 411 at 453-454 [116 ER 158 at 173].

[226] Repealed by s 5 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth).

[227] (1969) 14 FLR 101.

[228] (1986) 42 SASR 361.

[229] (1986) 42 SASR 382. See also George v Rockett [1990] HCA 26; (1990) 170 CLR 104.

[230] (1990) 95 ALR 557; affd [1990] FCA 154; (1990) 26 FCR 473; 96 ALR 629.

[231] (1990) 95 ALR 557 at 569-570.

[232] [1990] HCA 4; (1990) 169 CLR 307 at 318-322.

[233] cf the consideration by the Full Court: Karina Fisheries Pty Limited v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 644.

[234] Hoffman-La Roche v Trade Secretary [1975] AC 295 at 365. See Campbell, "Inferior and Superior Courts and Courts of Record", (1997) 6 Journal of Judicial Administration 249 at 258; Aronson and Dyer, Judicial Review of Administrative Action, (1996) at 653.

[235] Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 642.

[236] [1989] HCA 28; (1989) 167 CLR 94 at 105.

[237] [1989] HCA 28; (1989) 167 CLR 94 at 105.

[238] [1990] HCA 4; (1990) 169 CLR 307 at 322.

[239] [1990] HCA 4; (1990) 169 CLR 307 at 322.

[240] The warrant in the latter case might be saved by s 53 of the Interpretation of Legislation Act 1984 (Vic) which states: "Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law."

[241] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 64-65, 75, 78-80; Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 234-235.

[242] Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic); Statutory Rule No 57 of 1996 (Vic).

[243] Under Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[244] Listening Devices Act 1969 (Vic), s 4(1).

[245] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436, 447. See Ghani v Jones [1970] 1 QB 693 at 706; R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 971, 983; cf Cooper v Booth [1785] EngR 7; (1785) 3 Esp 135 at 136; [1785] EngR 7; 170 ER 564 at 565.

[246] Cannabis L contrary to s 72 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[247] Possession of a drug of dependence (Cannabis L) contrary to s 73 of that Act.

[248] Contrary to s 71(1) of that Act.

[249] Marks J and Coldrey J.

[250] [1989] HCA 28; (1989) 167 CLR 94 at 105.

[251] (1993) 70 A Crim R 162 at 168-169.

[252] Under the Crimes Act 1958 (Vic), s 446(2).

[253] [1994] HCA 15; (1994) 179 CLR 427.

[254] Listening Devices Act 1984 (NSW) in Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 and Invasion of Privacy Act 1971 (Q) in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427. The warrant under s 16 of the Listening Devices Act 1984 (NSW) was in the same form as the warrants signed in the present case. The New South Wales Act has now been amended and replaced by the Listening Devices Amendment Act 1996 (NSW). It contains a form of warrant in Schedule 2 which follows the form used in the present case but is now sanctioned by express statutory enactment.

[255] Further penalties are provided for communicating or publishing the substance of a recorded conversation otherwise than in the course of duty. See the Act, s 6.

[256] s 4A(5).

[257] s 4A(6).

[258] s 4A(7).

[259] s 4A(8).

[260] s 5.

[261] s 7.

[262] s 9.

[263] Statutory Rule No 127 of 1988 (Vic), dated 30 March 1988. See Ch VI r 7.05; Form 7B.

[264] Order 1 r 1.04 of the Rules.

[265] s 25(1)(f).

[266] Ousley (1996) 87 A Crim R 326 per Hayne JA, Southwell and Smith AJJA.

[267] Ousley (1996) 87 A Crim R 326 at 330.

[268] [1995] HCA 26; (1995) 184 CLR 348 at 367.

[269] Ousley (1996) 87 A Crim R 326 at 331.

[270] Ousley (1996) 87 A Crim R 326 at 333.

[271] Ousley (1996) 87 A Crim R 326 at 334.

[272] Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 644 (Full Court) (citation added).

[273] By s 4(3).

[274] By s 4(1).

[275] Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250.

[276] Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 at 322; Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 106. See also Ousley (1996) 87 A Crim R 326 at 333.

[277] cf Haynes v Attorney-General of New South Wales unreported, Supreme Court of New South Wales, 9 February 1996.

[278] Tran Nominees v Scheffler (1986) 42 SASR 361 at 373-374.

[279] Crimes Act 1958 (Vic), s 568(1).

[280] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 523 per Brennan J; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; cf Carroll v Mijovich (1991) 25 NSWLR 441 at 450.

[281] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110 citing Entick v Carrington (1765) 2 Wils KB 275 [95 ER 807].

[282] [1990] HCA 26; (1990) 170 CLR 104.

[283] cf Feeney v The Queen unreported, Supreme Court of Canada, 22 May 1997 at 22-23 per Sopinka J; Dalia v United States [1979] USSC 69; 441 US 238 at 279 (1979) per Stevens J and Wiretap Reference [1984] 2 SCR 697 at 710 per Dickson J approved Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 447. Feldman, The Law Relating to Entry, Search and Seizure (1986) at 1-2.

[284] [1979] UKHL 5; [1980] AC 952.

[285] [1979] UKHL 5; [1980] AC 952 at 997.

[286] [1979] UKHL 5; [1980] AC 952 at 1008.

[287] [1979] UKHL 5; [1980] AC 952 at 1019.

[288] [1979] UKHL 5; [1980] AC 952 at 972 cited with approval by Lord Salmon [1979] UKHL 5; [1980] AC 952 at 1017.

[289] See OPSM Pty Ltd v Withers (1987) 13 FCR 594 at 598-599; 71 ALR 269 at 273-274; Pressler v Holzberger (1989) 44 A Crim R 261; Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 643-644.

[290] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111; Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 at 317; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-438.

[291] See Universal Declaration of Human Rights, Art 12; International Covenant on Civil and Political Rights, Art 17; cf Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 175.

[292] "A good end does not justify a bad means" R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 976 per Lord Denning MR; cf Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 175.

[293] Carroll v Mijovich (1991) 25 NSWLR 441 at 450.

[294] Parker v Churchill (1985) 9 FCR 316 at 322 per Burchett J; 63 ALR 326 at 333, approved and applied in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 111; see also Tran Nominees v Scheffler (1986) 42 SASR 361 at 389-390 per Cox J; cf Mitchell v New Plymouth Club (Inc) [1958] NZLR 1070 applied R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106; Feeney v The Queen unreported, Supreme Court of Canada, 22 May 1997 at 21-24 per Sopinka J.

[295] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 176.

[296] R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 1023 per Lord Scarman.

[297] Parker v Churchill (1985) 9 FCR 316 at 322 per Burchett J; 63 ALR 326 at 333; see also Morse v Thompson [1977] WAR 65 at 77; George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 111.

[298] s 4(1).

[299] Tran Nominees v Scheffler (1986) 42 SASR 361 at 369.

[300] R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 997 per Lord Wilberforce; Tran Nominees v Scheffler (1986) 42 SASR 361 at 393 per Cox J; Ghani v Jones [1970] 1 QB 693 at 708 per Lord Denning MR.

[301] Conway v Rimmer [1968] UKHL 2; [1968] AC 910 at 953-954 per Lord Reid; R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 997 per Lord Wilberforce; cf Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ.

[302] R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 1008 per Lord Diplock.

[303] Tran Nominees v Scheffler (1986) 42 SASR 361 at 385 per Zelling ACJ.

[304] Tran Nominees v Scheffler (1986) 42 SASR 361; Swanevelder v Holmes (1990) 52 SASR 549.

[305] R v Tillett; Ex parte Newton (1969) 14 FLR 101; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263; but see George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 111-112; Lemesk Pty Ltd v Easterby (1993) 66 A Crim R 337.

[306] Seven Seas Publishing Ltd v Sullivan [1968] NZLR 663 at 667; Morse v Thompson [1977] WAR 65.

[307] s 4A(1).

[308] [1989] HCA 28; (1989) 167 CLR 94 at 105-106.

[309] Re Jarman & Ors; Ex parte Cook [No 1] (1997) 71 ALJR 557; 143 ALR 129; cf R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 385.

[310] [1990] HCA 4; (1990) 169 CLR 307 at 320-322; see also Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 360.

[311] [1990] HCA 4; (1990) 169 CLR 307 at 322.

[312] [1990] HCA 4; (1990) 169 CLR 307 at 323.

[313] [1990] HCA 4; (1990) 169 CLR 307; see also Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 42.

[314] [1994] HCA 15; (1994) 179 CLR 427.

[315] [1994] HCA 15; (1994) 179 CLR 427 at 435.

[316] Invasion of Privacy Act 1971 (Q), s 43(2)(c).

[317] s 4A(1).

[318] Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 644.

[319] Haynes v Attorney General of New South Wales unreported, Supreme Court of New South Wales, 9 February 1996 at 13 per James J.

[320] Swanevelder v Holmes (1990) 52 SASR 549; Flanagan v AFP (1996) 60 FCR 149 at 204, 208; 134 ALR 495 at 544, 547-548; Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 at 560-565.

[321] [1978] HCA 22; (1978) 141 CLR 54 at 78-80.

[322] cf George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 114.

[323] (1994) 70 A Crim R 162 at 169.

[324] (1994) 70 A Crim R 162 at 169, 176-9; see also Murdoch, Murphy, Murphy & Murphy v The Queen (1987) 37 A Crim R 118 at 129; Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 104-106; Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 at 322.

[325] See for example McArthur v Williams (1936) 55 CLR 324 at 365-366; Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 105; Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 570 per O'Loughlin J affd [1990] FCA 154; (1990) 26 FCR 473; 96 ALR 629; cf Nakkuda Ali v Jayaratne [1951] AC 66 at 76-77; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1047; R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 979.

[326] Sankey v Whitlam (1978) 142 CLR 1 at 22-24; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 104; R v Iorlano [1983] HCA 43; (1983) 151 CLR 678 at 680; Clyne v Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 643, 660; Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339; R v Elliott [1996] HCA 21; (1996) 185 CLR 250 at 256; cf Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235; Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 at 599; Lamb v Moss [1983] FCA 254; ; (1983) 49 ALR 533 at 545. The existence of the power of the trial judge in the County Court to exclude evidence unlawfully obtained under a warrant issued by a Federal Court judge was a reason given by the Full Federal Court in Flanagan v AFP (1996) 60 FCR 149 at 212-213; 134 ALR 495 at 552-553 for declining the relief sought by the accused in pre-trial proceedings.

[327] s 4A(8).

[328] Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250; Coulter v The Queen [1988] HCA 3; (1988) 164 CLR 350 at 362-363; Harrington v Lowe (1996) 70 ALJR 495 at 501, 510-512; [1996] HCA 8; 136 ALR 42 at 49-50, 62-64; R v Social Security Secretary; Ex parte Joint Council [1997] 1 WLR 275 at 281-282.

[329] Supreme Court (Chapter VI Amendment No 8) Rules 1996; Statutory Rule No 57 of 1996.

[330] Listening Devices Amendment Act 1996 (NSW), s 16, Sched 2 ("Form of warrant").

[331] Taylor v Clemson (1844) 11 Cl & F 610 at 627; [1844] EngR 26; [8 ER 1233 at 1241].

[332] R v Tillett; Ex parte Newton (1969) 14 FLR 101.

[333] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 367.

[334] cf Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 443; see also R v Murdoch, Murphy, Murphy & Murphy (1987) 37 A Crim R 118 at 130.

[335] cf Haynes v Attorney-General of New South Wales unreported, Supreme Court of New South Wales, 9 February 1996 at 13-14 per James J. The view that the legislature may have intended no review of warrants issued by Supreme Court judges [R v Murdoch, Murphy, Murphy & Murphy (1987) 37 A Crim R 118 at 130] must now be taken to be overruled.

[336] cf Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 234-235.

[337] Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663 at 668-669; Morse v Thompson [1977] WAR 65 at 73; cf Zanatta v McCleary [1976] 1 NSWLR 230; Warren v Warren [1996] 3 WLR 1129 at 1136-1138; [1996] 4 All ER 664 at 670-672.

[338] cf R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 1004, 1009.

[339] Posner v Collector for Inter-State Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461 at 476; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 366-369.

[340] Gosset v Howard (1845) 10 QB 411 at 452-453 [1845] EngR 233; [116 ER 158 at 173]; R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106; Swanevelder v Holmes (1990) 52 SASR 549 at 557; cf Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 569-570.

[341] Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 644; Malcolm v Selby unreported, Court of Appeal of New South Wales, 3 June 1994 at 4.

[342] Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 488; [1990] FCA 154; 96 ALR 629 at 644.

[343] R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 at 1013 per Lord Diplock; cf Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 at 319.

[344] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 445-446, 462; cf Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 at 277; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 30-34.

[345] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. See Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 at 77; Flanagan v AFP (1996) 60 FCR 149 at 211-212; 134 ALR 495 at 551; Swanevelder v Holmes (1990) 52 SASR 549 at 557; R v McNamara [1995] 1 VR 263 at 270-272; cf Cooper v Booth [1785] EngR 7; (1785) 3 Esp 135 at 136; [1785] EngR 7; 170 ER 564 at 565.

[346] (1986) 42 SASR 361.

[347] Controlled Substances Act 1984 (SA), s 52.

[348] (1986) 42 SASR 361 at 380-381.

[349] (1986) 42 SASR 361 at 382.

[350] Zelling ACJ, Cox and O'Loughlin JJ.

[351] (1986) 42 SASR 361 at 369 referring to R v IRC; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952 and Crowley v Murphy (1980) 34 ALR 491.

[352] (1986) 42 SASR 361 at 373-374.

[353] (1986) 42 SASR 361 at 389 per Cox J; see also 385 per Zelling ACJ.

[354] (1986) 42 SASR 361 at 390.

[355] (1986) 42 SASR 361 at 392.

[356] (1969) 14 FLR 101.

[357] (1986) 42 SASR 361 at 385.

[358] (1986) 42 SASR 361 at 393-394.

[359] Crimes Act, s 568(1).

[360] See Australian Law Reform Commission, Criminal Investigation ALRC 2, 1975 at 102 reporting United States research by Professor H Schwartz that "271 eavesdropping operations installed in 1969 in fact involved 31,436 people overheard in 173,711 conversations". The Commission accepted that the same ratios might not apply in Australian operations. See also Bronitt, "Electronic Surveillance, Human Rights and Criminal Justice", (1997) 3(2) Australian Journal of Human Rights 183 at 184, which notes a 370 per cent increase in the recorded use of listening devices by New South Wales law enforcement agencies since 1989.

[361] Halford v United Kingdom Decision of the European Court of Human Rights, unreported, 25 June 1997. Case no 73/1996/692/884.

[362] Crimes Act, s 568(1).

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1997/49.html