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Supreme Court 26 November 1999

Barbaro & Ors -v- DPP & Anor

[1999] NSWSC 1338

Also reported as [1999] 49 NSWLR 68
Public order & justice offences
CRIMINAL LAW EVIDENCE LISTENING DEVICES WARRANTS CONTENTS OF WARRANT PERIOD OF WARRANT

Citation: Barbaro & Ors v DPP & Anor [1999] NSWSC 1338; reported at (1999) 49 NSWLR 68
Court: Supreme Court of New South Wales, Common Law Division
Date: 26 November 1999
Judge(s): O'Keefe J

Background

Three plaintiffs, each facing criminal charges in the Local Court at Griffith relating to perverting the course of justice and influencing a witness, challenged the validity of a listening device warrant obtained against them under the Listening Devices Act 1984 (NSW). The warrant in question (ST 97/286(a)) was issued by Dowd J on 15 December 1997 and authorised the use of listening devices attached to a named individual to record private conversations involving the plaintiffs.

The warrant was used on 15 December 1997 and again on 19 December 1997. Listening devices were fitted to the nominated person on each occasion, and conversations were transmitted, listened to, and recorded. The plaintiffs sought declarations that the warrant was void and that any evidence obtained under it was inadmissible in their pending criminal proceedings.

By the time of hearing, the plaintiffs had narrowed the dispute to the Commissioner of Police as the remaining defendant. The Director of Public Prosecutions was removed by consent, with costs left for later argument.

  • Whether warrant ST 97/286(a) was valid under the Listening Devices Act 1984, specifically whether it complied with the mandatory requirement under s 16(4)(c) to fix a period during which the warrant was to be in force
  • Whether a typographical error in the warrant's end date (stating "4.30pm on 4 January 1997" rather than the evident intended date of 4 January 1998) could be cured by the court through severance or amendment
  • Whether the court had jurisdiction to review and declare void a warrant issued under the Act
  • What relief was available to the plaintiffs if the warrant was found to be invalid

Decision

O'Keefe J held that the warrant was void. The critical defect lay in paragraph 3, which purported to fix the operative period of the warrant as "4.30pm on 15 December 1997 until 4.30pm on 4 January 1997." The end date of 4 January 1997 was plainly earlier than the start date of 15 December 1997, making the stated period impossible and self-contradictory on the face of the document.

The defendant argued that the obviously erroneous end date should be severed from the warrant, leaving either an instantaneous start time or an implied end at midnight on 15 December 1997. O'Keefe J rejected both approaches. Reducing the period to a single instant in time would not constitute a "period" as required by s 16(4)(c). Implying a midnight end time would require the court to read into the warrant something not present on its face, which was not permissible given the nature of the instrument.

His Honour further rejected the argument that the court could amend the warrant by deleting incorrect text and substituting different text. Warrants of this kind must be valid on their face, and the intention of the issuing judge is not a relevant consideration. The court agreed with the analysis of James J in the earlier decision of Haynes v Attorney General (NSW) on this point.

On jurisdiction, O'Keefe J confirmed that a warrant issued under the Act is an administrative act, not an exercise of judicial power, following the High Court's reasoning in Ousley v The Queen (1997) 192 CLR 69. This classification meant the plaintiffs were entitled to seek judicial review and a declaration of invalidity, and the relief sought in the Further Amended Summons was properly within jurisdiction.

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)
  • The defendant to pay half of the plaintiffs' costs

Key Takeaways

  • A listening device warrant that specifies an end date earlier than its start date does not fix a valid "period" within the meaning of s 16(4)(c) of the Listening Devices Act 1984 and is therefore void.
  • Under the Listening Devices Act 1984, the requirement to specify a period during which the warrant is in force is mandatory; non-compliance renders the warrant invalid, not merely irregular.
  • Courts cannot cure a defective warrant period by severing erroneous text or implying an end time not stated on the face of the document. The warrant must be good on its face, and the issuing judge's subjective intention is irrelevant.
  • Warrants issued under the Act are administrative acts rather than exercises of judicial power, following Ousley v The Queen (1997) 192 CLR 69, and are therefore amenable to judicial review and declarations of invalidity in the Supreme Court.
  • A party seeking to invalidate a listening device warrant on the basis of facial defects is entitled to declaratory and quashing relief; the Supreme Court confirmed this jurisdiction sits within the Common Law Division.

Legislation and Cases Referenced

Legislation:
- Listening Devices Act 1984 (NSW), ss 3A, 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 NSW, 9 February 1996, James J (unreported)