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Supreme Court 26 November 1999

Barbaro & Ors. v. Director of Public Prosecutions & Anor.

[2000] NSWSC 474

Public order & justice offences
CRIMINAL LAW EVIDENCE LISTENING DEVICES WARRANTS CONTENTS OF WARRANT PERIOD OF WARRANT

Citation: Barbaro & Ors v Director of Public Prosecutions & Anor [2000] NSWSC 474
Court: Supreme Court of New South Wales (Common Law Division)
Date: 26 November 1999
Judge(s): O'Keefe J

Background

Three individuals charged with offences relating to perverting the course of justice and influencing a witness challenged the validity of a listening device warrant that police had used to gather evidence against them. The warrant in question, styled ST 97/286(a), was issued on 15 December 1997 by an eligible Judge under the Listening Devices Act 1984 (NSW). Police used the warrant to attach recording and transmitting devices to a third party, who then engaged in conversations with the plaintiffs on multiple occasions across December 1997.

The proceedings were brought by way of summons in the Supreme Court. The plaintiffs sought declarations that the warrant was void and that evidence gathered under it was inadmissible in the Local Court criminal proceedings pending against them.

By the time of the final hearing, the plaintiffs had narrowed their challenge to warrant ST 97/286(a) only and discontinued against the Director of Public Prosecutions, proceeding solely against the Commissioner of Police.

  • Whether warrant ST 97/286(a) complied with the mandatory requirements of s 16(4)(c) of the Listening Devices Act 1984 (NSW), which requires a warrant to specify the period during which it is to be in force
  • Whether the warrant authorised the use of a listening device on dates after 15 December 1997, given that the warrant's stated expiry date contained an apparent typographical error (referring to "4.30pm on 4 January 1997" rather than 1998)
  • Whether the court could cure the defect by severing or amending the erroneous portion of the warrant
  • Whether the warrant was issued as a judicial or administrative act, and whether the Supreme Court had jurisdiction to declare it void

Decision

O'Keefe J first addressed the jurisdictional question. The Judge accepted that the issue of a warrant under the Listening Devices Act 1984 is an administrative act, not an exercise of conventional judicial power, following the reasoning of McHugh J in Ousley v The Queen (1997) 192 CLR 69. Because the warrant's issue was administrative rather than judicial, the Supreme Court had jurisdiction to review and, if appropriate, declare it void.

The central defect was in paragraph 3 of the warrant, which purported to fix the operative period as "4.30pm on 15 December 1997 until 4.30pm on 4 January 1997." The year "1997" was plainly erroneous: the warrant was itself dated 15 December 1997, so a stated end date of 4 January 1997 predated the warrant's own commencement. This meant that, read literally, the end date fell before the warrant was issued, producing an operative period that was either zero or, on any sensible reading, unspecified.

O'Keefe J held that the requirements of s 16(4)(c) are mandatory and that a warrant which fails to comply with them is void. The defendants argued that the court should sever the erroneous end-date language, leaving the warrant to operate only until midnight on 15 December 1997. O'Keefe J rejected this approach on two grounds. First, deleting the end-date language would leave a provision fixing a single point in time, not a "period," which s 16(4)(c) requires. Second, it is not within the court's jurisdiction to amend a warrant by deleting text and substituting something not present on its face, a position consistent with James J's reasoning in Haynes v Attorney General (NSW) (unreported, 9 February 1996).

Accordingly, the court declared warrant ST 97/286(a) void and made an order quashing it. The defendants were ordered to pay half the plaintiffs' costs, reflecting the limited scope of the ultimate relief obtained.

Orders Made

  • Declaration that warrant ST 97/286(a), issued by Dowd J on 15 December 1997, is void
  • Order quashing warrant ST 97/286(a)
  • Order that the defendant (Commissioner of Police) pay half of the plaintiffs' costs

Key Takeaways

  • Under the Listening Devices Act 1984 (NSW), the requirement in s 16(4)(c) that a warrant specify the period during which it is to be in force is mandatory; a warrant that fails to comply is void, not merely irregular
  • A typographical error in the stated expiry date of a listening device warrant, which caused the nominal end date to fall before the warrant's commencement, was sufficient to render the warrant void for non-compliance with the mandatory period requirement
  • The Supreme Court confirmed, following Ousley v The Queen (1997) 192 CLR 69, that the issue of a warrant under the Listening Devices Act 1984 is an administrative rather than a judicial act, placing it within the court's supervisory jurisdiction
  • A court cannot cure a defective listening device warrant by severing an erroneous provision and implying a replacement term not present on the face of the document; judicial amendment of the warrant in this way falls outside the court's jurisdiction
  • The intent of the eligible Judge who issued the warrant is irrelevant to questions of validity; the warrant must be good on its face

Legislation and Cases Referenced

Legislation
- Listening Devices Act 1984 (NSW), ss 3A(3), 3A(4), 5, 16(1), 16(4), 16(4)(c), 16(6A), 19, Schedule 2
- Crimes Act 1900 (NSW), ss 319, 323(a)

Cases
- Ousley v The Queen (1997) 192 CLR 69
- Inland Revenue Commissioners v Rossminster Limited [1980] AC 952
- Haynes v Attorney General (NSW), Supreme Court of New South Wales, 9 February 1996, James J (unreported)