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Privacy Law and Policy Reporter (PLPR)
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Gunning, Patrick --- "Coco v The Queen" [1994] PrivLawPRpr 34; (1994) 1(3) Privacy Law & Policy Reporter 51

COCO v THE QUEEN

Unreported, High Court of Australia; Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; 13 April 1994

Invasion of Privacy Act 1971 (Qld) - listening devices - trespass to install - statutory interpretation - fundamental common law rights

The appellant, Santo Antonio Coco, was convicted of an offence of offering to bribe Commonwealth officers, and his conviction was upheld by the Queensland Court of Appeal. Much of the evidence was obtained by the use of listeningdevices installed on the appellant's premises. s43(1) of the Invasion of Privacy Act 1971 (Qld) (the Act) provided that it was an offence to use ''a listening device to overhear, record, monitor or listen to a privateconversation'. s43(2) provided that s43(1) did not apply in a number of situations, including ''in relation to the use of a listening device by ... a member of the police force acting in the performance of his duty ... under and in accordance with an approval in writing given by a judge of the Supreme Courtin relation to any particular matter specified in the approval.' s43(3) concerned the granting of approval by a judge. It provided that the judge was to consider:

"(a) the gravity of the matters being investigated;

(b) the extent to which the privacy of any person is likely to be interfered with; and

(c) the extent to which the prevention or detection of the offence in question is likely to be assisted, and the judge may grant his approval subject to such conditions, limitations and restrictions as are specified in his approval and as are in his opinion necessary in the public interest."

Evidence of a private conversation obtained by use of a listening device incontravention of s43 was inadmissible by virtue of s46. It was common ground that if the conversations in question were inadmissible, the appellant's conviction could not be sustained.

The conversations at issue were said to be recorded pursuant to an approval granted by Carter J. One of the conditions of approval was ''that any authorised police officer ... to enter and remain upon the said premises for the purposes of installing, maintaining, servicing and retrieving the said listening device'. The listening devices were installed by two federal police officers impersonating telephone repairmen. The federal police officers were not identified by name in the approval, but they were acting in co-operation withthe authorised Queensland police officer. It was argued that s12 of the Australian Federal Police Act 1979 (Cth) removed the need for approval unders43(2) of the Act. s12 provided:

''A member or staff member is not required under, or by reason of, a law of a State or Territory:

(a) to obtain or have a licence or permission for doing any act or thing in the exercise of his powers or the performance of his duties as a member or staff member.''

Held (unanimously) allowing the appeal and quashing the conviction:

  1. It is a fundamental common law right of a person in possession of premises to exclude others from those premises. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question (Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, followed).

  2. (Per Mason CJ, Brennan, Toohey, Gaudron and McHugh JJ) The regulatory regime established by the Act was clearly intended to protect persons from the invasion of privacy involved in the use of a listening device to overhear and record private conversations except where expressly provided. The absence of any reference to a power of entry on to property in this detailed and protective scheme told against the argument that such a power was to be implied.Accordingly, s43 did not empower a judge to authorise conduct which otherwise would amount to trespass.

    (Per Deane and Dawson JJ) It was not a necessary implication that the legislature intended to empower a judge to authorise unlawful acts in introducing or maintaining a listening device on private property. Such devices could be installed without clandestine entry pursuant to the consent of the occupier, or need not be installed on private property (reference Re an Application for an authorisation (1984) 14 DLR (4th) 546; Lyons v The Queen (1984) 14 DLR (4th) 482; Dalia v United States [1979] USSC 69; 441 US 238 (1979), considered).

  3. By addressing the question of whether he had power to approve the installation of listening devices on private property Carter J misapprehended the power conferred by the Act. Carter J misconstrued the statute giving him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction. Accordingly, the approval was wholly void (Anisminic v Foreign Compensation Commission [1969] 2 AC 147; Reg v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351, followed). 4. s12 of the Australian Federal Police Act did not confer on the federal police powers wider than those enjoyed by the State police. Its function was to place a federal police officer in substantially the same position as aState officer. Accordingly, s12 did not allow federal police officers to do, without authority, what could be done by State police officers only with authority.

Comment

All charges against Coco and his brother-in-law, the former Queensland Supreme Court judge Angelo Vasta QC, were dropped by the Commonwealth Director of Public Prosecutions after the High Court decision. Mr Coco's solicitor said that he would take steps to have the federal police destroy the tapes of conversations obtained by use of the listening devices.

Coco illustrates the approach that the court will take when interpreting statutes with the potential to abrogate or curtail a ''citizen's common law rights or immunities'. It provides an example of how the courts in countries without an express entrenched Bill of Rights may promote the values contained in such instruments without usurping the legislative function. In this regard, the majority judges (Mason CJ, Brennan, Gaudron and McHugh JJ) cited with approval an article by England's Lord Browne-Wilkinson (''The Infiltration of a Bill of Rights' [1992] Public Law 397) and the important case (for the protection of privacy) of Marcel v Commissioner of Police [1992] Ch 225. Readers will recall that Marcel was followed by the High Court in Johns v ASC (1994) 1 PLPR 1.

In order to determine whether the protection of privacy is enhanced by this approach, it is necessary to identify those aspects of privacy which the courts will regard as ''basic immunities which are the foundation of our freedom'. As Coco (and Plenty v Dillon before it) made clear, the courts have long recognised territorial privacy as an essential element of common law ownership of land. Physical or bodily privacy is also jealously protected by the common law (see P v P , Unreported, High Court of Australia, 20 April 1994, per Brennan J (dissenting)). Information privacy is more problematic. Reputation is an interest which the courts have recognised in a variety of circumstances, such as in the granting of suppression orders or injunctions to prevent the publication of defamatory or confidential information. In these cases the courts must also place weight upon competing public interests, such as freedom of expression and the principle of open justice. In the absence of concrete factual circumstances, it is virtually impossible to speculate as to the importance to be placed upon an individual's interest in controlling the collection and dissemination of personal information. However, it cannot be doubted that the courts are aware of the importance of these questions. For example, the High Court has reserved its decision in matters concerning suppression orders and whether there should be a defence to defamation akin to the US ''public figure' doctrine (Stevens v WA Newspapers; Theophanus v John Fairfax Pty Ltd).

The observation that it is hard to predict the value to be placed upon privacy by the courts is underscored by comparing the decision in Coco to equivalent Canadian and US authority on the same question. The highest courts in both Canada and the US were willing to imply a right of entry on to property in legislation authorising the use of listening devices. In Coco, the High Court unanimously preferred to adopt the dissenting judgments in the relevant cases.

Patrick Gunning


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