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Court of Criminal Appeal 4 March 1999

REGINA v EID & ORS

[1999] NSWCCA 59

Fraud & dishonestyPublic order & justice offences
LISTENING DEVICE WARRANT EFFECT ON VALIDITY OF WARRANT S 5F CRIMINAL APPEAL ACT 1912 INTERLOCUTORY JUDGMENT NATURE OF RULING THAT WARRANT VALID

Citation: [1999] NSWCCA 59
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 1999 (reasons published 29 March 1999)
Judge(s): Abadee J, Barr J, Adams J (unanimous, reasons by Adams J)

Background

Police obtained listening device warrants (styled 91A and 91B of 1996) to investigate an alleged conspiracy to defraud New South Wales of revenue. The alleged conspiracy concerned the evasion of tobacco licence fees required under the Business Franchise Licences (Tobacco) Act 1987. Conversations were recorded pursuant to those warrants and the Crown proposed to rely on them in committal proceedings against three appellants.

In August 1997, the High Court declared the Business Franchise Licences (Tobacco) Act 1987 unconstitutional in Ha v New South Wales. With the tobacco licensing regime invalidated, the charges ultimately brought against the appellants related to the creation of false statements of account under s 178BB of the Crimes Act 1900, not to any conspiracy involving the tobacco licence fees.

Before the Local Court, the appellants objected that the warrants were invalid and the recordings therefore inadmissible. The Magistrate rejected that argument and ruled the warrants valid. The appellants appealed to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the Magistrate's ruling on the validity of the warrants constituted an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912, making it susceptible to appeal at that stage of proceedings.
  • Whether a listening device warrant issued to investigate a conspiracy to breach legislation later declared unconstitutional was itself valid.
  • Whether a conspiracy to commit an act that is not, and never was, a criminal offence can sustain a valid warrant or criminal liability.

Decision

Appellability under s 5F

The Court first addressed whether the Magistrate's ruling was an interlocutory judgment or order capable of being appealed. Adams J reasoned that the ruling did more than decide the admissibility of evidence: it effectively determined whether police had a lawful right to place a listening device and record conversations that would otherwise have been unlawful. A ruling of that character, the Court held, was properly characterised as a judgment or order under s 5F rather than a mere evidentiary ruling. The certificate issued by the Magistrate confirmed the matter was appropriate for appellate determination.

Validity of the warrants

The warrants were issued to investigate a conspiracy to defraud the State of tobacco licence fee revenue. That revenue regime rested entirely on the Business Franchise Licences (Tobacco) Act 1987, which the High Court subsequently held was unconstitutional. Because the High Court's declaration of invalidity operated retrospectively, the statute was treated as having never been valid law. There was therefore no criminal offence capable of founding the warrant at the time it was issued.

Conspiracy to commit a non-existent offence

The Court considered whether a conspiracy could remain criminally significant even where the substantive offence it targeted turned out to be non-existent. Adams J acknowledged some theoretical force in the view that conspiracy is inherently culpable because the agreement itself is the wrong. However, he rejected the argument as applied here: it cannot be inimical to the public good to agree to do something that is not a crime at all. An agreement to evade a statutory obligation that never lawfully existed cannot constitute a criminal conspiracy. The Court reasoned that had a conviction been entered before Ha was decided, it would necessarily have been quashed once the invalidity of the legislation became apparent. The same logic prevented the conspiracy from grounding the warrants.

Orders Made

  • Appeal allowed.
  • Warrants 91A and 91B of 1996 held to be invalid.
  • Matter remitted to the Magistrate to be determined in accordance with the Court's orders.

Key Takeaways

  • A Magistrate's ruling that a listening device warrant is valid amounts to an interlocutory judgment or order under s 5F of the Criminal Appeal Act 1912, not merely an evidentiary ruling, because it determines whether police conduct that would otherwise have been unlawful was legally authorised.
  • Where the statute creating the underlying offence is later declared unconstitutional with retrospective effect, a listening device warrant issued to investigate that offence is invalid from the outset.
  • A criminal conspiracy requires an agreement to commit an actual offence. An agreement to do something that is not, and was never, a crime cannot constitute a punishable conspiracy, regardless of what the parties believed at the time of the agreement.
  • The Court of Criminal Appeal confirmed that the retrospective invalidity of the Business Franchise Licences (Tobacco) Act 1987 (following Ha v New South Wales) extended to proceedings and warrants that depended on it, including warrants issued before the High Court's ruling.
  • Recordings obtained under a warrant issued for the purpose of investigating a non-existent offence are inadmissible under s 13(1) of the Listening Devices Act 1984.

Legislation and Cases Referenced

Legislation
- Listening Devices Act 1984 (NSW), ss 5(1), 13(1)
- Business Franchise Licences (Tobacco) Act 1987 (NSW), s 41(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 178BB
- Invasion of Privacy Act 1971 (Qld)
- Customs Act 1901 (Cth)

Cases
- Ha v New South Wales; Hammond & Associates Pty Ltd v New South Wales (1997) 189 CLR 465
- Coco v The Queen (1994) 179 CLR 427
- Ousley v The Queen (1997) 71 ALJR 1548
- R v Steffan (1993) 30 NSWLR 633
- R v Bozatsis; R v Spanakis (1997) 97 A Crim R 296
- Grollo v Palmer (1995) 184 CLR 348
- DPP v Nock [1978] AC 979
- Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
- Peters v Attorney General (NSW) (1988) 84 ALR 319
- Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport (1955) 93 CLR 83
- Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 237