Gunning, Patrick --- "Carroll v Attorney-General (NSW)" [1994] PrivLawPRpr 56; (1994) 1(4) Privacy Law & Policy Reporter 71

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CARROLL v ATTORNEY-GENERAL (NSW)

Court of Appeal of NSW, Kirby ACJ, Mahoney AP, Hunt AJA, unreported 29 October 1993

Criminal procedure - listening devices - validity of warrant - ''reasonable suspicion' - Listening Devices Act 1984 (NSW), s16(1)

International Covenant on Civil and Political Rights (ICCPR) - privacy

C was accused of conspiracy to commit offences against certain provisions of the Passports Act 1938 (Cth). Most, if not all, of the evidence available to the prosecution took the form of recorded conversations between C and his alleged co- conspirator. The conversations were recorded pursuant to warrants issued by Federal Court judges under the Telecommunications (Interception) Act 1979 (Cth) and pursuant to warrants issued by Supreme Court judges under the Listening Devices Act 1984 (NSW) (''the Act'). C sought to challenge the validity of the warrants issued under the Act. s16(1) of the Act provided that, on receipt of a complaint, the Supreme Court could authorise, by warrant, the use of a listening device for the purpose of an investigation into an offence or to enable evidence to be obtained of the commission of an offence. Before issuing a warrant the court was required to be satisfied that the belief or suspicion of the complainant that an offence has been, is about to be or is likely to be committed, was based on reasonable grounds.

C contended that there was not sufficient material before the judges of the Supreme Court to constitute reasonable grounds for the suspicion or belief that an offence had or was likely to occur. A declaration that the warrants were invalid was sought.

In order to make good this argument, C sought access to the affidavits of the complainants which were before the Supreme Court judges by requesting that the court issue a subpoena to the Commissioner of Police. A subpoena was issued, the Commissioner produced the documents to the court, and C sought to inspect them. The Commissioner of Police opposed access to the documents by C.

Held

1. Per totam curiam: In order to secure access to documents subpoenaed from a third party, a party to litigation must establish with precision a legitimate forensic purpose for which access is sought. The court must be satisfied that it is ''on the cards' that the documents would materially assist the party's case (R v Saleam (1989) 16 NSWLR 14, followed; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250; Maddison v Goldrick (1976) 1 NSWLR 651; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, considered).

2. Per Mahoney AP and Hunt AJA (Kirby ACJ dissenting): The plaintiff did not establish that it was ''on the cards' that the affidavits before the judges would assist him in his application to have the warrants declared invalid.

Per Kirby ACJ dissenting: The plaintiff presented enough evidence to raise a serious concern about the existence of reasonable grounds for the suspicion or belief of the police complainant seeking the warrant that an offence had been or was about to be committed.

Comment

In his judgment Kirby ACJ went to some lengths to identify the purpose for which the judges of the Supreme Court were assigned a role in the authorisation of warrants for the use of listening devices. In his Honour's opinion the role of the court is to protect the privacy of conversations of persons carried on in the belief that they are not being recorded or intercepted. His Honour referred to the recognition of privacy as a fundamental human right in the International Covenant on Civil and Political Rights and concluded that:

To the extent that it may lawfully do so, this court should seek to construe the Listening Devices Act, and to determine its own powers, by reference to the basic right to privacy and its protection.

The consequences of not taking this approach were identified:

Unless a stringent approach is taken to the establishment of ''reasonable grounds' for the belief claimed by a complainant seeking a warrant to invade anothers private conversations, there is a risk that the important safeguard provided by s16(1) of the Listening Devices Act will be reduced to a mere formality. The Supreme Court, trusted by Parliament as a guardian of privacy, may then become a mere cipher.

It appears that the majority did not approach the matter in the same way as Kirby ACJ. Hunt AJA said that he accepted ''that the concept of privacy which is protected by the Listening Devices Act is of grave importance, but I do not accept that its existence should distort the usual process of fact finding.' The majority judges were content for the admissibility of the evidence to be determined at trial in the usual way, namely by reference to established authority concerning the admission of illegally or improperly obtained evidence, and not by reference to the ''technicalities' of the Listening Devices Act.

Patrick Gunning