Barbaro and Ors -v- Dpp and Anor [1999] NSWSC 1338 (26 November 1999)

Last Updated: 20 September 2000

NEW SOUTH WALES SUPREME COURT

CITATION: Barbaro & Ors -v- DPP & Anor [1999] NSWSC 1338 revised - 12/09/2000

CURRENT JURISDICTION:

FILE NUMBER(S): SC 11323/99

HEARING DATE{S): 24/11/99, 25/11/99, 26/11/99

JUDGMENT DATE: 26/11/1999

PARTIES:

Pasquale Barbaro; Giuseppe Barbaro and Francesco Catanzariti (Plaintiffs)

Director of Public Prosecutions and Commissioner of Police (Defendants)

JUDGMENT OF: O'Keefe J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

J. V. Agius S.C. and A. Martin for the Plaintiffs

P.I. Lakatos for the Defendants

SOLICITORS:

Cater & Blumer,

112-144 Yambil Street,

Griffith NSW 2680

Telephone: [phone] (Plaintiffs)

C. Smith,

Acting Solicitor for Public Prosecutions

265 Castlereagh Street,

Sydney NSW 2000

Telephone: [phone] (First Defendant)

I.V. Knight

Crown Solicitor

Level 5, 60-70 Elizabeth Street

Sydney NSW 2000

Telephone: [phone] (Second Defendant)

CATCHWORDS:

Criminal Law

Evidence

Listening Devices

Warrants

Contents of warrant

Meaning of "shall specify", "use", "premises on which", "place at which"

Period of warrant

Validity of listening device warrants

ACTS CITED:

Listening Devices Act, 1984 S.5, Part 4, S.16 (1), (4), (6A), S.16(4), Schedule 2

DECISION:

Declaration as to invalidity of one warrant;

Defendant to pay half Plaintiff's costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

O'KEEFE J

FRIDAY 26 NOVEMBER 1999

No:11323/99 -

PASQUALE BARBARO & 2 ORS v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

JUDGMENT

1 HIS HONOUR: By summons dated 25 May 1999 the plaintiffs, Pasquale Barbaro, Guiseppe Barbaro and Franceco Catanzariti sought orders against the Director of Public Prosecutions that two warrants issued under the Listening Devices Act, 1984 (the Act) were void and, in the alternative, that the evidence obtained pursuant to each of such warrants was inadmissible in criminal proceedings against the plaintiffs currently pending in the Local Court at Griffith. The warrants in question were styled ST 97/263(b) and ST 97/286(a) and were dated 24 November 1997 and 15 December 1997 respectively.

2 On 23 August 1999 the plaintiffs filed an Amended Summons in which relief identical to that sought in the original summons was claimed but in which the Commissioner of Police was joined as an additional defendant. When the matter was called on for hearing the plaintiffs sought to file a Further Amended Summons and to discontinue the proceedings as against the Director of Public Prosecutions. This was consented to, subject to later argument as to certain costs.

3 The Further Amended Summons claimed:

"1. A declaration that the warrant styled ST 97/286(a) and issued by Dowd J on 15 December 1997 is void.

2. An Order quashing warrant styled ST 97/286(a).

3. A declaration that the use of a listening device by Michael Nanai on or after 15 December 1997 was not authorised by warrant styled ST 97/286(a), a warrant issued by Dowd J on 15 December 1997."

and other consequential relief.

4 During the course of argument senior counsel for the plaintiffs by way of alternative relief sought a declaration that warrant ST 97/286(a) did not authorise the use of a listening device at any time after 15 December 1997. The warrant, the subject of the proceedings, was obtained for the purposes of gathering evidence against the plaintiffs each of whom stands charged with an offence under s 319 of the Crimes Act 1900, namely that between 2 November 1997 and 21 December 1997 they did an act to pervert the course of justice. Guiseppe Barbaro also stands charged with an offence under s 323(a) of the Crimes Act 1900, namely influencing a witness on or about 13 December 1997.

THE FACTS

5 On 15 December 1997 warrant ST 97/286(a) was issued by Dowd J on an application made by Detective Senior Constable Jobson on behalf of Detective Senior Constable Littame. The warrant was in the following form:

"WARRANT

Listening Devices Act, 1984

Reference ST 97/286(a)

I, JOHN ROBERT ARTHUR DOWD, being an eligible Judge within the meaning of the Listening Devices Act 1984, having been satisfied that there are reasonable grounds for the suspicion or belief of Detective Senior Constable Lisa LITTAME, that either or both of the prescribed offences as set out in paragraph 1 have been committed.

1. Specify as the prescribed offences in respect of which the warrant is granted the following: - "Influencing a Witness" and "Intimidating a Witness" contrary to the provisions of the Crimes Act, 1900 (NSW).

2. Authorise the use by Detective Senior Constable Lisa LITTAME and on her behalf: - Detective Sergeant C PHEENY, Detective Senior Constable B BLANCHARD, Detective Senior Constable J MARTIN, PC Senior Constable D CASSERLY, Sergeant D BAXTER, Senior Constable D JOYCE, Senior Constable K KREUZER, Senior Constable J WILLIAMSON, Constable M CHENERY, Probationary Constable T HURST, Senior Constable R WIGG, Sergeant L BODDY, Constable G ORR, Constable J WADSWORTH, Constable G NORRIS, Senior Constable J JOYCE, Senior Constable B BYRNES, Senior Constable W SORENSON, Senior Constable T BRIGGS, Constable M FERRIS, Constable G MUTTON, Probationary Constable I MEINS, Senior Constable P RICHARDS, Senior Constable L LORD, Senior Constable P SMEETH, Senior Constable G BALIND, Senior Constable K CALLOW, Constable M THORNEYCROFT, Duty Officer G BINGHAM, Duty Officer A HAHN, Duty Officer G EIPPER, Duty Officer J KAIN, Detective Sergeant M HANDLEY, Detective Senior Constable M STOLTENBERG, Detective Senior Constable G COLES, Detective Senior Constable P CAMPBELL, Senior Constable M BOURKE, Superintendent P KEYS, Detective Superintendent A P SCIPIONE, Inspector C M RODDAN, Inspector B J SHEPHERD, Detective Senior Sergeant B F AUST, Senior Sergeant M J ORR, Detective Senior Sergeant I G BROWN, Detective Senior Sergeant S E REYNARD, Senior Sergeant P S SCHLOEFFEL, Senior Sergeant G J TAYLOR, Senior Sergeant J F CONLY, Senior Sergeant R L STERCHOW, Senior Sergeant L A FINUCCI, Sergeant J R MURPHY, Sergeant M TRUSWELL, Sergeant K L HOWITT, Sergeant K M PARKER, Sergeant M O HAYES, Sergeant G P RUBENACH, Sergeant A R O'HEARN, Sergeant T HOLT, Senior Constable D KELLOWAY, Senior Constable G W COMAN, Senior Constable S D DUBEDAT, Senior Constable R A DEN-BESTEN, Senior Constable T P CRILLY, Senior Constable C W MILWARD, Senior Constable S JONES, Senior Constable S J PEARSON, Senior Constable K BRADLEY, Senior Constable P A GRIFFITHS, Senior Constable G P STYLIANOU, Senior Constable C A SHERWELL, Senior Constable P J DUNCOMBE, Senior Constable P R LESSLIE, Senior Constable P J HENNESSY, Senior Constable J R T BROWN, Senior Constable J BECKETT, Senior Constable S R JAMIESON, Senior Constable S C KENT, Senior Constable S D MARTIN, Senior Constable R DEANS, Senior Constable N CARSON, Senior Constable G SIMPSON, Senior Constable G WILES, Senior Constable D I SNELSON, Senior Constable A C MCKELLAR, Senior Constable A M MCKELLAR, Senior Constable M BILIC, Special Constable S GRIFFITH, Special Constable R LOEBLER, and M ELLIOTT of a listening device by which to record or listen to the private conversations of Frank CATANZARITI, Guiseppe "Joe" BARBARO, Pasquale BARBARO, Sam ZIRILLI, Michael NANAI and any other person or persons who may participate in such conversations by attaching such device on or about the person of Michael NANAI.

3. Fix the period 4.30pm on 15 December 1997 until 4.30pm on 4 January 1997 as the period during which this warrant is to be in force.

4. Fix the period of 28 days after the expiry of this warrant as the period within which the person authorised to use the listening device pursuant to this warrant is required to report pursuant to Section 19 of the Listening Devices Act 1984 to an eligible Judge and to the Attorney General.

Dated: 15 December 1997

............................

The Honourable Justice DOWD"

6 Later on the same day Sergeant O'Hearn of the Special Technical Investigations Branch of the New South Wales Police Service fitted two listening devices (the devices) to Michael Nanai (Nanai) at the Griffith Detective Office. One of the devices was a transmitter, the other a recorder. Later on that evening Sergeant O'Hearn operated the devices and they were used to transmit, listen to and record a private conversation between Nanai and another person. Later on the same evening the devices were removed from Nanai by Sergeant O'Hearn.

7 At about 5.45pm on 19 December 1997 Senior Constable Kerman, also of the Special Investigation Branch of the New South Wales Police Service, fitted two devices to Nanai at the Griffith Detective Office, one a transmitter, the other a tape recorder. Shortly thereafter he activated both devices and they were later used to transmit, listen to and record private conversations. Later that same evening Senior Constable Kerman removed the devices from Nanai.

8 At about 5.30pm on 20 December 1997 Senior Constable Stylianou, another officer of the Special Technical Investigation Branch of the New South Wales Police Service, fitted two devices to Nanai at the Detectives Office at Griffith police station. Again, one of the devices was a transmitter, the other was a tape recorder. The devices were activated by Senior Constable Stylianou shortly after 6.30pm and de-activated by him shortly after 8pm. They were re-activated by him shortly before 10.45pm and then used to transmit, listen to and record a private conversation. A littler later Senior Constable Stylianou de-activated the devices and they were removed from Nanai by him.

9 The police wish to use the evidentiary material gathered in the manner set out above in the prosecution of the plaintiffs. The plaintiffs resist this on what ultimately became two bases, namely:

1. That Nanai used the devices although not authorised to do so by warrant ST 97/286(a) of 15 December 1997 because Nanai was not named in the warrant as an authorised user of the devices.

2. The use of the devices by Nanai was outside the terms of the relevant warrant since no period was specified in the warrant during which it was to remain in force.

THE LEGISLATION

10 The Act imposes a prohibition on a person using a listening device to record or listen to a private conversation (s 5(1)). This is subject to certain exceptions, the relevant one being that set out in s 5(2) of the Act which provides:

"(2) Sub-section (1) does not apply to:

(a) the use of a listening device pursuant to a warrant granted under Pt 4."

11 A listening device is defined as:

"Any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with it taking place." (s 3)

12 Part 4 (ss 15-21) of the Act deals with warrants. Section 16 provides that:

"(1) Upon application made by a person that the person suspects or believes:

(a) that a prescribed offence has been or 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,

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

13 Section 16(2) specifies five criteria to which the eligible Judge shall have regard in determining whether a warrant should be granted. Provision is then made in s 16(3) in relation to the authorisation of entry onto premises for the purposes of installing and retrieving a listening device.

14 Section 16(4) prescribes those matters which are to be specified in the warrant:

"(4) A warrant granted by an eligible Judge under this section shall specify:

(a) the prescribed offence in respect of which the warrant is granted,

(b) where practical 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,

(c) the period (being a period not exceeding 21 days) during which the warrant is in force,

(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) where practicable, the premises on which a listening device is to be installed, or the place 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, and

(g) the time within which the person authorised to use the listening device pursuant to the warrant is required to report pursuant to s 19 to an eligible Judge and the Attorney General."

15 Whilst no form of warrant is prescribed, s 16(6A) provides that a warrant may be in or to the effect of the form set out in Schedule 2.

RELIEF SOUGHT

16 A warrant under the Act is issued under the hand of an eligible Judge (s 16(1)). An eligible Judge is one who has consented to be nominated by the Attorney General under s 3A(3) of the Act as an eligible Judge. Such a person has, in relation to any function conferred by the Act, the same protection and immunity as a judge of the Supreme Court has in relation to proceedings in the Supreme Court (s 3A(4)). Thus the person who issues a warrant under the Act does so as a designated person authorised as such to do so.

17 This statutory regime and the very nature of the warrant mark out its issue as different from an exercise of conventional judicial power. This was recognised in Ousley v The Queen (1997) 192 CLR 69 at 100 per McHugh J where it was said that the issue of a warrant under the Victorian equivalent Act was far removed from the exercise of the judicial power of the Supreme Court and an administrative not a judicial act. Once so classified the person affected by the warrant may seek judicial review of it and have it declared void or set aside.

18 The relief sought by the plaintiffs in the Further Amended Summons and in the course of argument is therefore within jurisdiction and properly framed.

CONSTRUCTION OF THE ACT

19 The right to integrity of property is axiomatic in our law. The claim to privacy of conversations is of more recent origin and recognition (see for example Ousley v The Queen (1997) 192 CLR 69 at 141). The Act authorises intrusion into private property and permits an impingement on the privacy of the conversations of particular individuals.

20 A statute which has such an effect should be strictly construed (Ousley v The Queen (1997) 192 CLR 69 at 141; Inland Revenue Commissioners v Rossminster Limited [1979] UKHL 5; [1980] AC 952 at 997, 1008, 1017; Haynes v Attorney General (NSW), Supreme Court of NSW (unreported, 9 February 1996, James J)). However, it is important to bear in mind that "a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those the subject of them" should be taken (Ousley v The Queen, supra, at 141 per Kirby J), and that courts should "not be over zealous to search for ambiguities or obscurities in words which on the face of them are plain" (Inland Revenue Commissioners v Rossminster, supra, at 1008).

21 It behoves those who wish to rely on warrants that permit intrusion into private property or impingement on private conversations to exercise a high degree of care in the preparation of the warrants they seek, so that on or from their faces they correctly and clearly specify those matters required by the relevant legislation.

ATTACKS ON THE WARRANT

22 The first provision of the Act relied on by the plaintiffs in their attack on the warrant is s 16(4)(d). It provides that:

"(4) A warrant granted by an eligible Judge under this section shall specify

(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."

23 The word "shall" should be given its ordinary mandatory or obligatory meaning, that is, it is the equivalent of "must". The section is in a form almost identical to s 4A(c) of the Listening Devices Act 1969 (Vic), in which the word "must" is used instead of the word "shall". The effect of the two words in the corresponding sections is however in my opinion the same.

24 Senior counsel for the plaintiffs argued that unless the warrant in the present case expressly stated on its face that Nanai was either the user or a person who may use the device on behalf of the user of the device, the requirements of s 16(4)(d) of the Act were not complied with. He argued that the warrant had to include Nanai's name in the list of persons that follows the words "and on her behalf" in par 2 of the warrant, if Nanai was to be authorised to use the devices.

25 Even if it be assumed that merely being the carrier of the devices, as Nanai was, constitutes use of such devices, in my opinion the warrant as issued was not in breach of s16(4)(d). If having the devices attached to his person for the purposes of recording or listening to certain private conversations constitutes use of the devices, then par 2 of the warrant makes it clear that Nanai was to use the devices. Not only is his name specified in the warrant but the actual nature of the activity to be undertaken by him, which on the assumption made above constitutes use, is also specified.

26 This is to be contrasted with the situation of those police officers whose names are referred to in the long list of names set out in par 2 of the warrant. Whether such officers would be activating, adjusting or monitoring the output from the listening device and tape recorder in question is not specified in the warrant, nor need it be.

27 The warrant in my opinion not only specifies Nanai's name but also specifies the nature of the role he is to undertake in elation to the devices. That conclusion is sufficient to dispose of the first argument advanced by the plaintiffs in the attack upon the warrant. However, in my opinion, the attack upon the warrant based upon s 16(4)(d) fails for an additional reason, namely that Nanai did not within the meaning of that sub-section use the devices.

28 The word "use" is not defined in the statute. It must therefore bear its ordinary English meaning in the context in which it occurs. It was submitted on behalf of the plaintiffs that a number of steps were involved in gathering evidentiary material by means of a listening device. These were placement, activation, operation and consequent recording of private conversations. Senior counsel for the plaintiffs contended that each of these steps involved its "use" within the meaning of s 16(4)(d) as did its servicing, that is adjusting and ensuring that it operated effectively.

29 In s 16(4)(d) the word "use" is a verb. As a verb its ordinary meaning is to cause to act, put into operation, serve for a purpose or put to some purpose. The purpose to which the listening devices were to be put or which they were to serve was to record or listen to certain private conversations simultaneously with their taking place. Their use involved them being put into operation, that is their activation and the recording by them of a conversation or conversations. Before activation and recording occurred, a placement of the devices in particular premises, place or places, or on a particular person is required. However, the premises or places in which a listening device is installed are not part of its use, rather they are the circumstances in which the use is to take place.

30 The terms of s 16(4)(e), which speak of the premises "on which" and the place "at which" a device "is to be used", make a distinction between the premises and place on the one hand and the use of the device on the other.

31 I see no distinction in principle between premises, a place and a person in this regard. The premises or place is where the device is to be used. Each is the depository for the device. So too may a person be. In such a case he or she is where or on whom the device is installed, that is the depository for the device, the place or situation at or in which the device is to be used. That the person is capable of movement is not to the point. A car in which a listening device may be fitted is also movable, but the car in question does not use the device.

32 Nanai did not fit the devices to himself nor did he activate the devices, nor did he operate them. All of these things were done by police officers whose names were included as persons who may use the device on behalf of Constable Littame. Likewise Nanai did not record the conversations in which he took part nor did he cause them to be recorded on the tape recorder affixed to him or listened to or recorded at the listening post to which the transmitter was directed. In relation to the devices he was a mere carrier and in the circumstances I am of the opinion that this does not constitute use by him of the devices within the meaning of s 16(4)(d) of the Act.

AS TO SECTION 16(4)(c)

33 The second ground on which the plaintiffs seek to avoid the warrant styled ST 97/286(a) is that no period was specified in it during which it was to remain in force. This attack is based upon s 16(4)(c) of the Act:

"(c) The period (being a period not exceeding 21 days) during which the warrant is in force."

34 For present purposes the critical word in s 16(4)(c) is "period". The ordinary meaning of "period" connotes an interval of time. In order to determine what that interval is, it is necessary to know the event or circumstance which constitutes the beginning and the event or circumstance which constitutes the end. The interval between the two is properly described as a period. It is this which must be specified in the warrant.

35 That such a meaning was intended by the Legislature is to some extent supported by the provisions of Schedule 2 to the Act. Although the form set out in that schedule does not have to be used, the Act provides that a warrant under s 16 may be in or to the effect of the form set out in the schedule. That form provides for a number of matters including the period during which the warrant is to be in force and the period within which a report is to be made pursuant to s 19 of the Act to the Attorney General and to an eligible Judge. The relevant parts of the form of warrant set out in Schedule 2 of the Act are:

"6. Fix the period ___ am on _________ 19__ until __ pm on 19__ (or as the case may be) as the period during which this warrant is to be in force.

7. Fix (period after event) as the period within which the person authorised to use the listening device pursuant to this warrant is required to report pursuant to s 19 of the Listening Devices Act 1984 to an eligible Judge and to the Attorney General."

36 The period that the warrant is to remain in force is relevant not merely to the provisions of s 5(2)(a) of the Act, which permits the recording of private conversations in specified circumstances, but also to the reporting provisions in s 19 of the Act. In the instant case the time for reporting under s 19 of the Act was fixed as "the period of 28 days after the expiry of this warrant."

37 It was argued on behalf of the defendant that the date 4 January 1997 was clearly an error and was undoubtedly intended to be 4 January 1998. No argument to the contrary was advanced by senior counsel for the plaintiffs, indeed in the course of his submissions he conceded that the typing of the year 1997 "was probably intended to read 1998". Thus it is common ground that there was an error on the part of the person preparing the warrant and an oversight on the part of the designated person, that is the eligible Judge, who granted it. According to the argument of counsel for the defendant, his intention must have been to have the warrant cease to be in force on 4 January, 1998.

38 In this context it is relevant to recall what was said by Kirby J in Ousley v The Queen (supra at 144):

"...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...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."

39 However, senior counsel for the plaintiffs further submitted, correctly in my opinion, that the intention of the eligible Judge who issued the warrant is not relevant. He further submitted that the warrant must be good on its face in order to be valid.

40 Counsel for the defendant sought to meet this attack on the warrant by submitting that the words and figures "until 4.30pm on 4 January 1997" in par 3 of the warrant should be severed from the warrant. If this were done, so the argument ran, the warrant would have in it a definite starting point nominated and, by inference, a fixed end point, namely 12 midnight on 15 December 1997. However, if the words referred to above were deleted then par 3 of the warrant would read as follows:

"Fix the period 4.30pm on 15 December 1997 as the period during which this warrant is to be in force".

41 Such a construction of the warrant would involve it applying only at one instant in time. This is not a period and would not comply with the requirements of s 16(4)(c). Even if the deletions from par 3 of the warrant merely extended to the words and figures "4.30pm on 4 January 1997" (leaving the word "until" in place) there would still be a problem, because there is no specified end point on the face of the warrant and having regard to its nature I do not think that it is appropriate or open for the court to infer 12 midnight on 15 December 1997 into par 3 of the warrant as the time when it ceased to be in force.

42 In any event the argument on behalf of the defendant on this aspect of the case assumes that it is appropriate for the court to amend the warrant by deleting something which is included in it and by substituting for the portion deleted something that is not in the warrant. I do not think that the jurisdiction of the court extends to this. In this regard I agree with what was said by James J in Haynes v Attorney General for New South Wales (Supreme Court of New South Wales, unreported, 9 February 1996).

43 For the foregoing reasons I am of the opinion that the warrant styled ST 97/286(a) does not comply with the requirements of s 16(4)(c) of the Act, and that as these provisions are mandatory the warrant is void as a consequence.

44 In my opinion a declaration should be made in accordance with par 1 of the plaintiffs' Further Amended Summons and an order should be made in accordance with par 2 of such Further Amended Summons. I make a declaration and order accordingly.

45 I order the defendant to pay half of the plaintiffs' costs.

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LAST UPDATED: 12/09/2000