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Supreme Court 6 March 2003

R v Lawrence (No. 2)

[2003] NSWSC 656

DrugsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE EVIDENCE VALIDITY OF LISTENING DEVICE WARRANTS

Citation: R v Lawrence (No. 2) [2003] NSWSC 656 revised 19/08/2004
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 March 2003
Judge(s): Howie J

Background

The accused was charged with conspiracy to import a commercial quantity of cocaine. Part of the Crown's case rested on recorded conversations between the accused and alleged co-conspirators, captured using listening devices authorised by warrants purportedly issued under the Customs Act 1901 (Cth). Those warrants were obtained by the National Crime Authority (NCA) from nominated members of the Administrative Appeals Tribunal (AAT).

The defence challenged the validity of all the listening device warrants on procedural grounds, arguing that the warrants were issued unlawfully. The challenge was also adopted by co-accused whose conversations had been recorded under the same warrants. If the warrants were found to be invalid, the defence argued the recorded conversations should be excluded from evidence under s 138 of the Evidence Act 1995.

  • Whether the Customs Act required the issuing AAT member to personally administer the oath to the warrant applicant, such that sworn affidavits presented to the member by NCA officers were insufficient.
  • Whether the warrants were invalid for failing to specify each offence, person, or premises with sufficient particularity.
  • Whether the revocation of an authority to use a listening device under a particular warrant had the effect of rendering unlawful everything done under that authority before the revocation.

Decision

On the oath requirement: Howie J found that neither Division 1A of the Customs Act nor s 219C imposed any requirement that the issuing officer personally administer the oath. Section 219C expressly permitted information to be given orally or in writing, and did not confine oath-taking to any particular procedure. The practice of furnishing a sworn affidavit to the AAT member satisfied the statutory requirement of "information on oath." On the face of each warrant, the AAT member had been satisfied by information on oath, and no further proof of the manner in which that satisfaction was reached was required of the Crown, consistent with Ousley v The Queen (1997) 192 CLR 69.

On warrant particularity: The court rejected the argument that each warrant needed to specify individual offences, persons, or premises with the specificity demanded for search warrants. Following Jackson v Wells (1985) 64 ALR 147, Howie J accepted that listening device warrants operate differently from search warrants due to the distinct nature of the authorised conduct. The defence did not attempt to distinguish that authority once it was raised.

On revocation of the authority: An authorised official had revoked a particular authority to use a listening device under one warrant and immediately issued a fresh authority in substitution. The defence argued that revocation annulled the original authority retrospectively, rendering inadmissible conversations recorded before the revocation. Howie J rejected this argument without hesitation. There was no basis in the Customs Act to read "revoke" as annulling prior lawful acts, and the court found the point was completely without merit.

Accordingly, subject to rulings on particular individual objections, all conversations obtained under the warrants were admitted into evidence.

Orders Made

  • Subject to rulings on particular objections, the evidence of conversations obtained through listening devices authorised by warrants issued under the Customs Act was admitted.

Key Takeaways

  • A warrant issued under s 219B of the Customs Act is not invalid merely because the AAT member did not personally administer the oath to the applicant; presentation of a sworn affidavit to the issuing officer satisfies the statutory requirement of "information on oath."
  • Where a warrant recites on its face that the issuing officer was satisfied by information on oath, no additional evidentiary burden falls on the Crown to prove the procedural circumstances in which that satisfaction was formed.
  • Listening device warrants under the Customs Act do not require the same degree of specificity as search warrants, given the materially different nature of the conduct each type of warrant authorises.
  • Revocation of an authority to use a listening device operates prospectively; it does not retrospectively nullify or render unlawful the recording of conversations made lawfully under the authority before revocation occurred.
  • Under s 219C of the Customs Act, information furnished to an issuing officer may be given orally or in writing, and nothing in Division 1A limits the procedure by which an oath may be administered.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 219A, 219B, 219C, 219D, 219AB, 235, Division 1A
- Evidence Act 1995 (NSW), s 138
- Telecommunications (Interception) Act, ss 40(1), 42, 44(1), 44(2)
- Crimes Act 1912 (Cth), s 10

Cases:
- Ousley v The Queen (1997) 192 CLR 69
- R v Tillett; Ex parte Newton (1969) 14 FLR 101
- Jackson v Wells (1985) 64 ALR 147
- George v Rockett (1990) 170 CLR 104
- Thompson v Goold & Co [1910] AC 409
- R v A [2000] SASC 51
- Selbeck v McDonald [1978] 1 NSWLR 1
- English v Complaints Committee (1986) 41 SASR 217
- Caudle v Seymour (1841) 1 QB 1372
- Feather v Rogers (1909) 9 State Reports (NSW) 192