Ousley v The Queen

HIGH COURT OF AUSTRALIA

TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

DAVID PATRICK OUSLEY v. THE QUEEN; M 96/96
Criminal law

(1997) 192 CLR 69

20 October 1997
Criminal law

Criminal law—Warrants authorising use of listening devices issued under s 4A Listening Devices Act 1969 (Vic)—Whether warrants amenable to collateral review—Whether a warrant issued by a judge of a superior court must disclose jurisdiction on its face—Whether partial disclosure of jurisdiction may be used as evidence that the court has failed to take into account required considerations—Whether partial disclosure renders warrant invalid—Validity of O 7 r 7.05 Criminal Appeals and Procedures Rules 1988 (Vic).

Orders

ORDER

Appeal dismissed.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Decision

TOOHEY J

The appellant was charged on three counts under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He was convicted after trial on count 1, trafficking in a drug of dependence, methylamphetamine. He had earlier pleaded guilty to count 2, involving cultivation of a drug of dependence, Cannabis L. On count 3, involving possession of Cannabis L, a verdict of acquittal was entered.

The trial

The evidence against the appellant on the count on which he was convicted was obtained largely through listening devices installed at premises which the appellant frequented. There were some 50 tapes of recorded conversations. In this appeal the appellant challenged the reception of that evidence. He did so on the ground that the warrants authorising the use of the listening devices were invalid. There were two warrants issued by judges of the Supreme Court of Victoria, one by Marks J on 17 January 1992 and the other by Coldrey J on 6 February 1992.

At the trial, before the jury was empanelled, counsel for the appellant foreshadowed an attack on the admissibility of any evidence obtained by means of the listening devices. The trial judge doubted that he had jurisdiction, during the trial, to entertain a collateral attack on the validity of warrants authorised by the Supreme Court of Victoria. Counsel for the appellant declined an offer by the trial judge to consider an adjournment of the trial so that an application might be made to the Supreme Court for a ruling on the validity of the warrants. The trial judge then held that he had no jurisdiction to determine a collateral attack, the jury was empanelled and the trial proceeded.

Because of the course the trial took, no question arose as to the exercise of any discretion by the trial judge to exclude the recorded material on the ground that it had been procured illegally[1]. If the appellant succeeds in his argument before this Court and there is a new trial, the question of the exercise of the discretion will arise.

The Listening Devices Act

The scheme of the Listening Devices Act 1969 (Vic) ("the Act") is to make it a criminal offence for a person to use a listening device to overhear, record, monitor or listen to any private conversation, to which the person is not a party, without the express or implied consent of the parties to the conversation: s 4(1)(a). However, the provision establishing an offence does not apply to the use of a listening device by a designated police officer acting under and in accordance with a warrant granted under s 4A of the Act: s 4(3). Thus the use of a listening device in accordance with s 4(3) constitutes an exception to the general prohibition on listening devices.

Section 4A is critical to the outcome of the appeal. As the section appears in its entirety in other judgments, I shall repeat only those sub-sections which bear most directly on the issues raised by the appeal.

"(1) On complaint made by a member of the police force that he or she suspects or believes -

(a) that an offence has been, is about to be or is likely to be committed; and

(b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary -

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device.

...

(4) A warrant granted by the Supreme Court under this section must specify the following matters:

(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(c) The period (being a period not exceeding 21 days) during which the warrant is in force;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

(g) The time within which the person authorised to use a listening device pursuant to the warrant is required to report under section 5 to the Minister administering the Police Regulation Act 1958".

The Act itself does not identify any particular form of warrant nor is any form prescribed by regulations made under the Act[2]. However a form of warrant is to be found in the Criminal Appeals and Procedures Rules 1988 (Vic)[3] ("the Rules"). Order 7 r 7.05 provides that a warrant authorising the use and retrieval of a listening device "shall be in Form 7B". Form 7B is set out in the judgment of Kirby J. I shall not repeat it though reference to some parts of the form will be necessary.

The appellant mounted several challenges to the warrant. He argued that each warrant was invalid on its face. But he also attacked the validity of the relevant rules. The Rules are expressed[4] to be made under s 25 of the Supreme Court Act 1986 (Vic) and under s 50 of the Interpretation of Legislation Act 1984 (Vic). The Crown relied upon each of the statutes as authority for the relevant rules and Form 7B. Whether that reliance is justified is a matter discussed later in these reasons.

The warrants

Each warrant accords with Form 7B. It recites the satisfaction of the Supreme Court that there are reasonable grounds for the suspicion or belief of the police officer seeking the warrant that an offence has been, is about to be or is likely to be committed: see s 4A(1)(a) of the Act. However neither warrant recites that the Supreme Court is satisfied that the use of a listening device is necessary for the purpose of an investigation: see s 4A(1)(b) of the Act. The appellant argued that accordingly each warrant failed to show jurisdiction on its face and was invalid. He argued further that by reciting its satisfaction in terms of s 4A(1)(a) but not in terms of s 4A(1)(b), it must be taken that the Court was in fact not satisfied in terms of the latter paragraph and, accordingly, that the Court lacked authority to issue either warrant.

The Court of Appeal

A number of matters were canvassed before the Court of Appeal which have no relevance to the present appeal.
On matters which are relevant, the Court in a joint judgment[5] (Hayne JA, Southwell and Smith AJJA) began by emphasising that a listening device is an invasion of privacy and that there must be strict compliance with any statutory conditions attaching to the issue of a warrant which authorises such an invasion[6]. Nevertheless, the Court concluded that the omission of any recital in terms of s 4A(1)(b) was a result of adhering to Form 7B rather than evidence of an omission on the part of the judge issuing the warrant to give consideration to the requirements of that paragraph. In effect the Court said that since the omission was explicable by reason of the prescribed form, no inference should be drawn that the judge had not directed his attention to the requirements.

In this part of its judgment the Court focused on the argument that there had been a failure to consider a requisite matter. The Court then turned its attention to the argument that loomed large in this Court, namely, whether the warrants were invalid as failing to show jurisdiction on their face. After an extensive analysis of such matters as the presumption of regularity and whether the issue of the warrant was an administrative act, the Court concluded[7]:
"[N]either of these recitals is required by the statute and to hold that if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant".

This recital does scant justice to the analysis conducted by the Court of Appeal but it serves to set the scene for the argument presented to this Court. To that argument I now turn.

The argument in this Court

Four issues arose for consideration in this Court.

1. Was the trial judge correct in deciding that he lacked jurisdiction to determine the validity of the warrants, thereby depriving the appellant of the opportunity for his Honour to exercise a Bunning v Cross discretion in his favour? Put another way, were the warrants amenable to collateral review by the trial judge?

2. Was the failure of each warrant to state that the Supreme Court had considered the matter prescribed by s 4A(1)(b) evidence that the Court had not considered the matter and hence there was no authority to issue the warrant?

3. Was each warrant invalid for failing to show jurisdiction on its face?

4. In so far as the Rules of Court purported to authorise the form of warrant, were those Rules valid?

If the warrants are held invalid, a further question arises, namely, whether the trial judge should have exercised his discretion to exclude the evidence. Linked to this question is the applicability of the proviso to which s 568(1) of the Crimes Act 1958 (Vic) relates.

Collateral review

The trial judge reached his decision that he had no jurisdiction to determine the validity of the warrants after a consideration of Murphy v The Queen[8] and Carroll v Attorney-General (NSW)[9].

Murphy concerned a provision of the Listening Devices Act 1984 (NSW) which was not materially different to s 4A(1) of the Act. The primary judge, whose decision was upheld by the Court of Criminal Appeal, refused to allow counsel for the appellants to investigate the circumstances leading to the issue, by a judge of the Supreme Court, of a warrant to use a listening device. This Court held that to determine the admissibility of evidence obtained by the use of a listening device under the apparent authority of a warrant, the trial judge must decide merely whether the warrant was regularly granted by the Supreme Court and cannot inquire into the sufficiency of the material placed before the Court by the applicant for the warrant. Mason CJ and I said[10]:

"The admissibility of the evidence ... depended on the existence of the warrant, not on the sufficiency of the grounds for granting it."

In Carroll the plaintiff sought a review of warrants issued under the same legislation considered in Murphy. But the review was sought in advance of trial and was thus not by way of collateral review. The Court held that the evidence relied on by the plaintiff was insufficient to establish a case warranting the orders sought. The judgments in Carroll do not assist in resolving this particular challenge by the appellant.

To the extent that the appellant sought to challenge the warrants on the ground of insufficiency of material, that challenge must be rejected. However, that was not the extent of the appellant's challenge. I took him to be saying as well that, on its face, each warrant evidenced a lack of satisfaction by the judges of the requisite matters and hence that there was an irregularity in the issue of the warrants. The reasoning in Murphy does not dispose of that argument. Nor is it disposed of by McArthur v Williams[11] which was applied in Murphy. In the earlier case Dixon, Evatt and McTiernan JJ drew a distinction between the "validity" of the order for a warrant to issue and the "legal propriety" of its making[12]. Accordingly that decision does not preclude an argument which looks to a warrant on its face.

The availability of collateral review of a warrant on its face is often bound up with the nature of the authority which issues the warrant. In the present case the trial judge, a County Court judge, was reluctant to review the decisions of two judges of the Supreme Court. If the decision to issue a warrant was, in each case, a judicial act, his reluctance is understandable though s 4A(8) provides that, if the regulations so permit, the power to issue a warrant may be exercised by the County Court or a Magistrates' Court. Furthermore, the appellant's trial might have taken place in the Supreme Court instead of the County Court. In that event no reluctance based on hierarchy could have constituted a stumbling block.

If the decision to issue a warrant was an administrative act, concerns based on the inappropriateness of collateral review lose much of their significance. In Love v Attorney-General (NSW)[13] the Court held that the act of a judge issuing a warrant for the use of a listening device pursuant to a provision of the Customs Act 1901 (Cth) is an administrative, not a judicial, act. Having reached that conclusion the Court said[14]:

" Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority."

This proposition was affirmed in Coco v The Queen[15] and in Grollo v Palmer[16].

It follows that in respect of this part of the appellant's challenge there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements. The first of these propositions must be read subject to what follows later in these reasons as to whether the Act requires that a warrant disclose jurisdiction on its face.

Absence of reference to s 4A(1)(b)

It is important to understand the nature of the challenge to the warrants based on the absence of any mention of the matter identified in s 4A(1)(b).

The challenge is not identical with that based on the proposition that the warrants failed to disclose jurisdiction on their face. Nor is it the same as the argument just discussed though a somewhat fine line has to be drawn in this regard. The appellant's argument, as I understood it, was that in the absence of any reference to the matter identified in s 4A(1)(b) there was nothing to indicate that either judge had reached the requisite state of satisfaction as to the matters set out in s 4A(1). This, it was said, did not involve an inquiry into the sufficiency of the material placed before the judges; in the absence of any other evidence, a conclusion was inevitable from the face of the warrant that the judge did not have the requisite satisfaction.

In part the argument is no more than an attack on the sufficiency of the grounds on which the warrants were based. To that extent the argument must fail for the reasons I have already given. The argument gains more force when couched in terms that there must be jurisdiction to issue a warrant and that if a warrant asserts any jurisdictional factor, it must disclose all jurisdictional factors.

To support this argument, the appellant relied on Tran Nominees v Scheffler[17]. In that case a search warrant was issued pursuant to a provision of the Controlled Substances Act 1984 (SA) which required the issuing authority to be satisfied that there are reasonable grounds for suspecting that an offence against that Act has been, is being, or is about to be committed. The warrant stated that there were reasonable grounds for suspecting that "there is equipment used in connection with a prohibited substance" but it failed to mention any offence. In the Full Court Cox J, with whom O'Loughlin J agreed, said[18]:

"It is one thing for a warrant to be silent about the basis for its issue, leaving the reader to assume, perhaps, that all was done with due regularity ... It is a very different thing to state, even unnecessarily, the jurisdictional grounds and then to get them wrong ... It is really a question of what conclusion, if any, one is disposed to draw from an inappropriately expressed recital."

Of course what we have here is the situation of a ground of jurisdiction which has not been stated at all. If Tran Nominees is relevant, the question is: what inference can be drawn from the absence of any reference to s 4A(1)(b)? The Crown argued that Tran Nominees was readily distinguishable from the instant case because

(a) Tran Nominees related to a search warrant that had to be shown to the person whose premises were about to be searched or entered and certain rights and obligations arose on production of the warrant;

(b) in Tran Nominees the warrant was issued by a police officer; and

(c) in Tran Nominees the warrant disclosed on its face that the issuing officer had applied the wrong test.

Tran Nominees is, I think, distinguishable and the grounds just mentioned offer the basis for distinction. In particular, while both search warrants and listening devices involve an invasion of privacy, any analogy between the two cannot be pressed too far. A search warrant will ordinarily be produced to the person whose premises are to be searched whereas the authority for a listening device will necessarily not be known to the person whose communications are to be recorded. It follows that in the case of a listening device no opportunity is provided for an assessment of its lawfulness at the time of its installation[19].

However the resolution of this particular issue lies in the fact that each warrant was in the form set out in the Rules. The reference in the warrant to the matter identified in s 4A(1)(a) does no more than show that the form was followed. Equally, the absence of any reference to the matter in s 4A(1)(b) does not warrant any inference being drawn save that the judge followed the printed form. This argument must fail.

Must a warrant disclose jurisdiction on its face?

There are two aspects to the question posed in the heading.

1. Does the Act provide a code of the matters which a warrant must state on its face?

2. If the Act does not exclude matters which are required at common law, what are those matters?

Section 4A(4) of the Act opens with the words "A warrant granted by the Supreme Court under this section must specify the following matters." There follows a list of matters which are of a practical nature, such as the premises on which a listening device is to be installed, the name of any person whose conversation is to be recorded and the period of the warrant. The sub-section is set out in full earlier in these reasons. Section 4A(3) requires that a warrant authorise and require the retrieval of the listening device and authorise entry on to the premises for that purpose. Again, these are practical matters.

Whether or not the Act be seen to provide a code of the matters which a warrant must stage on its face, it is apparent that the Act does not expressly require that the basis of jurisdiction be disclosed on the face of a warrant. The situation is similar to that considered by the Full Court of the Federal Court in Karina Fisheries Pty Ltd v Mitson[20].

In that case search warrants had been issued pursuant to two different statutes. Relevantly, s 71 of the Proceeds of Crime Act 1987 (Cth) listed matters to be stated in a search warrant issued under the section. These did not include any preconditions but it was argued, by reference to R v Tillett; Ex parte Newton[21], that the failure to show jurisdiction on their face rendered the warrants invalid. Having dealt with the requirements of the common law, the Full Court said[22]:

" There is in the present case a short answer to the appellants' submission. Section 71(7) sets out specifically the matters that are required to be stated in a warrant issued under that section. The matters required statutorily to be set out do not include the satisfaction of the judge pursuant to the matters referred to in s 71(5) or s 71(6)(b). In these circumstances the rule expressio unius est exclusio alterius has application. While as has been often said, that rule is to be applied with caution cf: Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 at 343; Rylands Bros (Aust) Ltd v Morgan [1927] 27 SR (NSW) 161 at 168-169 ... it seems to us that the legislative intention in s 71(7) was to provide a code of the matters that were required to be stated in a search warrant to the exclusion of matters that would otherwise be required by the application of common law principles. We should say however that while not a matter going to validity, it is extremely desirable that the warrant express in terms that the relevant satisfaction is held so that it is clear on its face to all to whom the warrant may be shown that the judge issuing it has given attention to the matters which he is required to consider under the provisions of s 71." (emphasis added)

The language of the Full Court is applicable to the present case. Section 4A(3) and (4) sets out comprehensively all the matters to be stated in a warrant, there is otherwise no statutory requirement to disclose jurisdiction on the face of a warrant and hence the omission of one precondition cannot of itself invalidate the warrant. As the Court of Appeal observed in the passage quoted earlier:

"[N]either of these recitals is required by the statute and to hold that if they are not recorded on the face of the warrant, the warrant is bad would be to add impermissibly to the legislative statement of what is to be specified in the warrant"[23].

A contrary argument fastens on to the requirements of the common law and treats the Act as assuming that the warrant will state the matters on which its validity depends. There is some support for this approach in that, if the regulations so provide (which they do[24]), the County Court and a Magistrates' Court may issue a warrant. While it may not be necessary for a warrant issued by the Supreme Court to show jurisdiction on its face, so the argument runs, that cannot be so in the case of an inferior court. Since the Act draws no distinction between the possible issuing authorities, a warrant issued by the Supreme Court must show jurisdiction on its face.

Certainly concerns have been expressed by the courts where the issue of a warrant (usually a search warrant) is at the instance of an authority other than the Supreme Court and opinions have been expressed that there is no presumption of regularity in such a case[25]. However, it must be remembered that we are dealing here with an administrative, not a judicial act. The place of the issuing authority in the judicial hierarchy does not therefore offer a satisfactory basis for distinction. However there is no particular justification for concluding that because a presumption of regularity may not apply in certain cases, no presumption attaches in the case of the Supreme Court. A warrant issued at the instance of the Supreme Court must be dealt with on its own merits. It should also be noted that s 4A(8) enables the regulations to confer the power of the Supreme Court on the County Court and Magistrates' Court "in such circumstances as are prescribed". It is thus possible for the regulations to prescribe the circumstances in which those courts may issue a warrant and to differentiate them from the Supreme Court.

In the present case each warrant met the statutory requirements as to what must appear.

Are the Rules of Court invalid?

As mentioned earlier, the respondent submitted that the source of the power to make the Rules which prescribed Form 7B could be found in s 25(1)(f)(i) of the Supreme Court Act 1986 (Vic) and s 50 of the Interpretation of Legislation Act 1984 (Vic).

The former empowers the Judges of the Supreme Court to make rules with respect to "Any matter relating to ... the practice and procedure of the Court". Since a warrant is an administrative act unrelated to legal rights, this provision cannot support Form 7B.

The Interpretation of Legislation Act, s 50, provides:

"Where an Act ... confers any jurisdiction on a court ... the authority having for the time being power to make rules or orders regulating the practice and procedure of that court ... may, unless the contrary intention appears, make such rules or orders ... as appear to the authority to be necessary for regulating the practice and procedure of that court ... in the exercise of the jurisdiction so conferred".

This provision encompasses administrative as well as judicial functions; it is a sufficient source of authority for the relevant rules and the prescription of Form 7B.

Conclusion

The issuing of each warrant was an administrative act open to collateral review, limited to the validity of the warrant on its face. But on such a review the trial judge should have found that there was no requirement that the warrant disclose jurisdiction on its face, that no inference of invalidity should be drawn from the failure to include the matter mentioned in s 4A(1)(b), that the proper inference to be drawn was that each judge was simply complying with Form 7B, that in doing so each judge met the requirements of the Act as to what must appear, and that the warrant was valid.

Accordingly, had the matter reached that stage, the trial judge should have found that the appellant was not entitled to the exercise of a Bunning v Cross discretion to exclude the evidence obtained by the use of listening devices.

The appeal should be dismissed.

GAUDRON J

The appellant was presented for trial in the County Court of Victoria, charged with three offences relating to drugs. He pleaded guilty to one, was acquitted of another and was convicted on the third charge of trafficking in a drug of dependence[26]. Evidence was led at his trial of conversations which had been recorded by means of a listening device used in accordance with two warrants purportedly issued on 17 January and 6 February 1992 by the Supreme Court of Victoria pursuant to s 4A(1) of the Listening Devices Act 1969 (Vic) ("the Act"). Application was made to the trial judge, Judge Wodak, to exclude evidence of the conversations. It was put that the warrants were invalid and, thus, that the evidence was illegally obtained. His Honour declined to consider the application, holding that he had no power to rule on the validity of warrants issued by the Supreme Court.

Following his conviction, the appellant sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria, arguing, amongst other things, that the warrants were invalid and that he had been deprived of the opportunity of having the trial judge consider whether evidence of the recorded conversations should be excluded. His application was dismissed, it being held, so far as is presently relevant, that the warrants were valid[27]. The appellant now appeals to this Court, again contending that the warrants are invalid.

The power to issue warrants for the use of listening devices is conferred in a statutory context in which, broadly speaking and subject to certain exceptions, it is an offence to use a listening device to "overhear record monitor or listen to [a] private conversation"[28]. One of the exceptions relates to the use of listening devices by members of the police force pursuant to warrants issued under s 4A of the Act[29]. Warrants may be issued by the Supreme Court under sub-s (1) of s 4A or by the County Court or a Magistrates' Court under regulations made pursuant to ss 4A(8) and 9 of the Act.

For the moment, it is sufficient to refer to s 4A(1) of the Act which confers power on the Supreme Court in these terms:

" On complaint made by a member of the police force that he or she suspects or believes-

(a) that an offence has been, is about to be or is likely to be committed; and

(b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary-

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device."

The warrants in question recite the Supreme Court's satisfaction that there were reasonable grounds for the belief of the police officer to whom they were issued that, in terms used in s 4A(1)(a) of the Act, offences had been committed and were likely to be committed. They do not, however, make any reference to its satisfaction that there were reasonable grounds for the belief that, in the terms of s 4A(1)(b), the use of a listening device was necessary for the investigation of those offences or to enable evidence to be obtained of their commission or of the identity of the offender.

In so far as the warrants recite the satisfaction of the Supreme Court that there were reasonable grounds for belief as to matters specified in s 4A(1)(a) of the Act and are silent with respect to the matters specified in s 4A(1)(b), they follow the form prescribed in the Criminal Appeals and Procedures Rules 1988 (Vic) ("the Rules") as they stood in 1992[30]. This notwithstanding, it is contended that the warrants are invalid by reason that they do not recite the Court's satisfaction that there were reasonable grounds for the belief that a warrant was necessary for one or other of the purposes specified in s 4A(1)(b) of the Act.

Before turning to the validity of the warrants, it is convenient to note that it was held in Love v Attorney-General (NSW),with respect to a warrant issued by the Supreme Court of New South Wales pursuant to a provision which is not relevantly distinguishable from s 4A(1) of the Act[31], that a warrant is not a judicial order but an "instrument made pursuant to a circumscribed statutory authority."[32] In reaching that conclusion, this Court identified the issue of the warrant in question as "a step in [an] administrative process and ... thus an administrative function."[33] The same is necessarily true of the step of issuing a warrant under s 4A(1) of the Act.

Once it is accepted, as it must be, that, even though issued by the Supreme Court, a warrant under s 4A(1) of the Act is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings, no matter the court in which those proceedings are heard. It is to be remembered, however, that inquiry as to the validity of a warrant is a limited inquiry. Validity depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue[34].

The warrants involved in this case are challenged on two distinct grounds. First, it is argued that a warrant is only valid if it recites compliance with the conditions governing its issue, or, as it is sometimes said, if it discloses jurisdiction on its face. In this respect, it is common ground that a warrant may be issued only upon satisfaction that there are reasonable grounds for belief as to the matters specified in both pars (a) and (b) of s 4A(1) and that, if the Act requires that a warrant state the Supreme Court's satisfaction that there were reasonable grounds for belief as to both those matters, the Rules could not validly provide otherwise.

The second challenge is based on the proposition that, on their face, the warrants disclose a want of jurisdiction. In this regard, it is argued that, because they state the Supreme Court's satisfaction that there were reasonable grounds for the belief that offences had been and were likely to be committed, but not its satisfaction that there were reasonable grounds for the belief that the use of a listening device was necessary for one or other of the purposes specified in s 4A(1)(b), it must be taken that the Court was not satisfied as to that last matter and, therefore, lacked authority to issue the warrants.

It is convenient to deal first with the argument that the warrants disclose a want of jurisdiction on their face. If a warrant discloses that an essential or jurisdictional pre-condition was not satisfied, as was the case in Tran Nominees Pty Ltd v Scheffler[35], it is clearly invalid. A recital which misstates an essential pre-condition may be taken to indicate that that condition was not satisfied, whether or not it is necessary for the warrant to recite the matters upon which its validity depends[36]. However, it is a matter of inference in each case whether the misstatement has that effect[37]. So, too, it is a matter of inference whether the statement that one of two pre-conditions has been satisfied indicates that the other was not. In my view, it does not unless, perhaps, it is necessary that the warrant recite its satisfaction of that condition. And certainly no inference of that kind should be drawn where, as here, the omission is the result of adherence to a prescribed form.

The warrants involved in this appeal derive their force entirely from statute. Necessarily, the question whether they are valid only if they recite the matters upon which their validity depends is a question of statutory construction. More precisely, it is a question whether an inference should be drawn that recital of those matters is or is not necessary, the Act making no provision one way or the other in that regard. And in ascertaining which of those two inferences should be drawn, it is appropriate to have regard not only to the provisions of the Act but to the position with respect to warrants under the general law and, also, the nature of the warrants for which the Act provides.

It is clear from the decided cases that, under the general law, a distinction is to be made between warrants issued by a "subordinate authority"[38] or by "magistrates or others acting by special statutory authority and out of the course of the common law"[39], on the one hand, and, on the other, warrants issued by "a Superior Court acting according to the course of the common law"[40]. In the case of warrants issued by magistrates or inferior courts or tribunals, it is necessary for them "to shew their authority on the face of them by direct averment or reasonable intendment."[41] There is no such requirement with respect to warrants issued by a superior court[42].

It was suggested in R v Tillett; Ex parte Newton[43], by reference to Broom's A Selection of Legal Maxims[44], that the difference with respect to warrants issued by magistrates and inferior tribunals, as distinct from those issued by a superior court, is referable to the presumption of regularity expressed in the Latin maxim omnia praesumuntur rite et solemniter esse acta[45]. Attention was drawn in Tillett to the statement in Broom that the presumption does not apply to give jurisdiction to inferior courts and, also, to the statement that "in the case of an order by justices, their jurisdiction must appear on the face of [the] order; otherwise, it is a nullity ... unless, indeed, [it] follows a form authorized by statute."[46]

The presumption of regularity explains why it is unnecessary for the warrant of a superior court to disclose jurisdiction on its face. It does not, however, explain why it is necessary for jurisdiction to be disclosed in the case of warrants issued by magistrates and inferior tribunals. It may be that the rule to that effect developed as a means of ensuring that the supervisory jurisdiction of superior courts was not rendered nugatory[47]. Were there no such rule - or one to much the same effect - there would be no means of detecting the failure of magistrates and inferior courts to comply with statutory requirements and, relevantly, no means of ensuring that warrants are regularly issued[48].

Whatever the position under the general law for ensuring that warrants are regularly issued, there is, in practice, little opportunity for determining whether that is so in the case of warrants for the use of listening devices. This flows from the nature of the activity which the warrant authorises and the procedures which necessarily attend its issue. Those procedures are not significantly different from those involved in the issue of warrants for the interception of telephonic communications, which procedures were described in Grollo v Palmer[49] in these terms:

"Not only is the application for an interception warrant made ex parte; the very issue of a warrant and the identity of the judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed. Unlike a warrant to enter, search and seize, there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution."

And in Grollo it was said of a decision to issue a warrant for the interception of telephone calls that:

"Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge's decision to issue a warrant. Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information."[50]

That description is equally true of a decision to issue a warrant for the use of a listening device.

It is necessary to turn now to the provisions of the Act. As already mentioned, the power to issue warrants is not confined to the Supreme Court. By s 4A(8) it is provided that:

" The regulations may provide that, in such circumstances as are prescribed, the powers of the Supreme Court under this section may be exercised by the County Court or a Magistrates' Court, and for that purpose a reference in this section to the Supreme Court is to be construed as a reference to the County Court or a Magistrates' Court, as the case requires."

The concluding words of sub-s (8) are important. They indicate that, in issuing warrants pursuant to regulations made under that sub-section, the County Court and Magistrates' Courts are not acting as delegates of the Supreme Court but as separate repositories of power.

Regulations were made pursuant to ss 4A(8) and 9[51] of the Act in 1987[52] and, again, in 1997[53]. In general terms, it has been possible since 1987 for a warrant to be issued by the County Court or by a Magistrates' Court for the installation or use of a listening device outside the Melbourne metropolitan area[54] if, in the case of a warrant issued by the County Court, that Court is satisfied that it is not practicable for the complaint to be made to the Supreme Court or, in the case of a warrant issued by a Magistrates' Court, if that Court is satisfied that it is not practicable for the complaint to be made to either the Supreme Court or the County Court.

There is nothing in the Act to indicate that the formal requirements for the validity of a warrant should differ according to whether it is issued by the Supreme Court, on the one hand, or by the County Court or a Magistrates' Court, on the other. Thus, if it is not necessary for a warrant of the Supreme Court to state those matters upon which its validity depends, it is not necessary for those matters to be stated in warrants issued by a Magistrates' Court or by the County Court. And if the Act is construed to that effect, there is no means of ensuring that those courts have complied with the requirements of ss 4A(1)(a) and (b), unless it happens that a warrant purports so to state and, in the process, so misstates one or both of those matters so as to give rise to the inference that the Act's requirements were not, in fact, satisfied.

If the Act provided for warrants to be issued by and only by the Supreme Court, it may be that it would properly be construed as evincing an intention that a warrant need not state the matters upon which its validity depends. Such a construction might properly follow from the Act's silence in a context in which power to issue warrants was conferred on a superior court. However, different considerations apply where, as here, power is also conferred on courts lower in the judicial hierarchy. The only means of ensuring that warrants issued by those courts have been regularly issued is the requirement which arises under the general law that they state the matters upon which their validity depends. That consideration directs the conclusion, in my view, that the Act should not be construed as abrogating that requirement unless there is a clear indication of an intention to that effect.

It was argued on behalf of the respondent that an indication that a warrant need not state the matters upon which its validity depends is to be found in sub-ss (3) and (4) of s 4A of the Act. Sub-section (3) provides:

" If a warrant granted by the Supreme Court under this section authorises the installation of a listening device on any premises, the Court must, by the warrant-

(a) authorise and require the retrieval of the listening device; and

(b) authorise entry onto those premises for the purpose of that installation and retrieval."

And sub-s (4) provides:

" A warrant granted by the Supreme Court under this section must specify the following matters:

(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(c) The period (being a period not exceeding 21 days) during which the warrant is in force;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

(g) The time within which the person authorised to use a listening device pursuant to the warrant is required to report under section 5 to the Minister administering the Police Regulation Act 1958."

It was put on behalf of the respondent that sub-ss (3) and (4) of s 4A of the Act constitute an exhaustive statement of the matters which must be stated in a warrant and, thus, indicate an intention that it is not necessary that it also state those matters upon which its validity depends. In this regard, reference was made to Karina Fisheries Pty Ltd v Mitson[55], in which a similar approach was taken to a provision specifying the matters to be stated in warrants issued under the Proceeds of Crime Act 1987 (Cth).

The argument that sub-ss (3) and (4) of s 4A of the Act constitute an exhaustive statement of the matters to be stated in a warrant is, in effect, an argument that the Act should be construed by application of the rule of construction expressed in the Latin maxim expressio unius est exclusio alterius. However, that rule "must always be applied with care, for it is not [a rule] of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument"[56]. Moreover, the nature of the matters specified in sub-ss (3) and (4) tell against construing those provisions as revealing an intention that they are the only matters which need be specified.

The matters which by sub-ss (3) and (4) must be specified in a warrant are not matters which go to its validity. In the main, they are matters which define the scope of the authority conferred by the particular warrant that is issued. Thus, the warrant must specify the period for which it is in force (s 4A(4)(c)), the name of any person authorised to use a listening device and those who may use it on his or her behalf (s 4A(4)(d)), the premises on which it may be installed or the place at which it may be used (s 4A(4)(e)) and any conditions subject to which premises may be entered or a listening device used (s 4A(4)(f)), these all being matters upon which the Act is otherwise silent. So, too, a warrant that authorises the installation of a listening device on premises must authorise and require its retrieval and authorise entry onto the premises for the purpose of that installation and retrieval (s 4A(3)). Were a warrant silent as to these matters, there would be no means of ascertaining the extent of the authority which it confers.

Before turning to the other matters which, by ss 4A(4)(a), (b) and (g) of the Act, must be specified in a warrant, it is convenient to note that s 5 requires that a person to whom a warrant is granted report to the Minister administering the Police Regulation Act 1958 (Vic) with respect to the use of a listening device pursuant to the warrant. The report must specify, amongst other things, the name of any person, if known, whose conversation was recorded or listened to and the use made or to be made of any evidence or information obtained[57]. It would seem that the legislature intended to allow some flexibility with respect to the time in which a report should be made, allowing, in s 4A(4)(g), that that matter should be specified in the warrant when issued, rather than being specified in the Act itself. And the requirement that the warrant specify the offence in respect of which it is issued (s 4A(4)(a)) and, if practicable, the name of any person whose conversations are to be recorded or listened to (s 4A(4)(b)) seems directed to ensuring that a proper evaluation can be made of the effectiveness of the use made of a listening device by examining the warrant and perusing the report required by s 5.

Having regard to the nature of the matters referred to in ss 4A(3) and (4) of the Act, I am unable to conclude that those sub-sections evince an intention that they are the only matters which need be stated in a warrant. Rather, the preferable view is that the Act assumes that a warrant will state the matters upon which its validity depends and, in addition, directs that it state those matters which define the extent of the authority it confers and, also, those other matters which enable an evaluation to be made of the effectiveness of its use. I would so construe the Act. And it follows from that construction that, unless a warrant states the court's satisfaction as to both matters specified in ss 4A(1)(a) and (b) of the Act, it is invalid.

There is one consideration, albeit very much a subsidiary consideration, which tends to support the conclusion that the Act should be construed as requiring that a warrant state the court's satisfaction as to both matters specified in ss 4A(1)(a) and (b) of the Act. It may be assumed that the view was taken by the legislature that, by conferring power on courts to issue warrants, the Act would afford a measure of protection of the rights of individuals and ensure that "the appropriate balance [was] kept between ... law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other."[58] In this regard, it may be noted that it is a widely held view that it is desirable, in the public interest, that warrants for the use of electronic surveillance equipment only be issued by judges[59]. And in the main, that is the course that has been adopted in this country[60].

The view that it is appropriate for courts to issue warrants for the use of electronic surveillance equipment is, however, by no means universal[61]. At the very least, it must be acknowledged that the power to issue warrants may impact upon the discharge of judicial functions in that judges may have to disqualify themselves from cases involving persons in respect of whom they have been provided with information in the course of an application for the issue of a warrant[62]. Moreover, public confidence in the judicial process is put at risk if, as is suggested in this case, warrants are issued otherwise than in strict accordance with statutory requirements[63].

It seems to me that the public interest in ensuring that an appropriate balance is kept between the rights of the individual and the needs of law enforcement authorities is best protected and public confidence in the judicial process is best maintained if the Act is construed as requiring that a warrant recite the matters on which its validity depends.

It follows from what has been said that the warrants in issue in this case are invalid. However, it does not follow that the appeal should be allowed. The purpose of the discretion to exclude illegally obtained evidence is "to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."[64] In the present case, the conduct of the law enforcement officers was unlawful, if at all, only in a very technical sense: there is nothing to suggest that they were aware that the warrants in question were even arguably defective, much less any culpable impropriety on their part.

Given the purpose of the discretion to exclude illegally obtained evidence, it could not, in my view, have been properly exercised in favour of the appellant in this case. Thus, although the trial judge wrongly refused to consider whether evidence of the recorded conversations should have been excluded, that did not, in the circumstances, result in a substantial miscarriage of justice. Accordingly, this is an appropriate case for the application of the proviso to s 568(1) of the Crimes Act 1958 (Vic)[65].

The appeal should be dismissed.

McHUGH J

Pursuant to the grant of special leave, the appellant appeals against an order of the Court of Appeal of Victoria which upheld his conviction for trafficking in a drug of dependence (methylamphetamine) contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He contends that evidence obtained by use of warrants, issued by the Supreme Court of Victoria under the Listening Devices Act 1969 (Vic) ("the Act"), was unlawfully obtained and should have been excluded by the judge at his trial.

The questions in the appeal are:

(1) whether a trial judge in the County Court of Victoria has jurisdiction to rule on the validity of a warrant issued under the Act by the Supreme Court of Victoria; and

(2) whether a warrant issued under the Act by the Supreme Court of Victoria is valid where the warrant recites compliance with only one of the two statutory prerequisites for the issue of the warrant.

In my opinion, both questions in the appeal should be answered, Yes. The evidence was not unlawfully obtained. The appeal should be dismissed.

The factual and procedural background

In August 1994, the appellant was presented for trial on an indictment in the County Court of Victoria in Melbourne. The indictment contained three counts, all of which alleged offences against the Drugs, Poisons and Controlled Substances Act. The appellant pleaded not guilty to the first count which alleged he had trafficked in a drug of dependence (methylamphetamine). He pleaded guilty to the second count which alleged that he had cultivated a narcotic plant (cannabis). The trial judge, Judge Wodak, directed an acquittal in respect of the third count which alleged that he possessed a drug of dependence (cannabis).

At the commencement of the trial on the first count, counsel for the appellant objected to the admissibility of some 50 tapes of conversations obtained by the use of listening devices installed pursuant to two warrants issued under s 4A of the Act. He contended that the evidence was unlawfully obtained because the warrants were invalid. Judge Wodak held that he had no jurisdiction to entertain the application. He admitted the conversations as evidence. The appellant was convicted and sentenced to three years imprisonment with a non-parole period of two years. On an application for leave to appeal against the conviction, the Court of Appeal[66] unanimously held that the warrants were validly issued[67] and dismissed the application[68].

The statutory framework

Section 4(1) of the Act contains a general prohibition on the use of listening devices and relevantly prohibits a person from using:

"any listening device to overhear record monitor or listen to any private conversation to which he is not a party ... without the consent express or implied of the parties to the private conversation."

However, sub-s (1) of s 4 is subject to sub-s (3) which relevantly states that sub-s (1) shall not apply -

"(a) to or in relation to the use of any listening device by -

(i) a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by -

the Chief Commissioner of Police;

the Deputy Commissioner of Police; or

an officer of police of or above the rank of Inspector who has been appointed in writing by the Chief Commissioner to authorize the use of listening devices -

under and in accordance with a warrant granted under section 4A".

Section 4A is entitled "Warrants authorising use of listening devices" and sub-s (1) relevantly provides:

"On complaint made by a member of the police force that he or she suspects or believes -

(a) that an offence has been, is about to be or is likely to be committed; and (b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary -

the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device."

Sub-section (2) of s 4A provides for a number of matters that the Supreme Court must have regard to in determining whether a warrant should be granted under s 4A. Sub-section (3) specifies that warrants authorising installation of a listening device must authorise and require retrieval of the listening device and authorise entry for the purpose of installation and retrieval.

Sub-section (4) provides that warrants granted under s 4A must specify the following matters:

"(a) The offence in respect of which the warrant is granted;

(b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant;

(c) The period (being a period not exceeding 21 days) during which the warrant is in force;

(d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person;

(e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant;

(f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant;

(g) The time within which the person authorised to use a listening device pursuant to the warrant is required to report under section 5 to the Minister administering the Police Regulation Act 1958."

A County Court judge has jurisdiction to rule on the validity of a warrant issued under the Act by a Supreme Court judge

Both warrants issued by the Supreme Court judges recited compliance with s 4A(1)(a) of the Act, but neither recited compliance with s 4A(1)(b). They followed the form of warrant prescribed by O 7.05 of the Criminal Appeals and Procedures Rules1988 (Vic)[69]. The Criminal Appeals and Procedures Rules constituted Ch VI of the Supreme Court Rules (Vic). Form 7B of those Rules contained[70] a recital of satisfaction with respect to s 4A(1)(a) but not with respect to s 4A(1)(b).

The appellant contends that on their face the warrants showed that the issuing judges had not been satisfied of the matter referred to in s 4A(1)(b) of the Act. That being so, he contends that the warrants were invalid and that the evidence obtained pursuant to the warrants had been obtained illegally. He contends that, in the exercise of his discretion, Judge Wodak should have rejected the tender of the taped conversations. The learned judge had said:

"It seems from my understanding of the matter that the application ... would require me to rule whether the warrant was validly issued by each of the judges of the Supreme Court, and I don't regard myself as having the power to embark upon such an exercise and I would refer to the decision of the New South Wales Court of Appeal in Carroll[71] and also ... Murphy[72]... And on the basis of that, I rule that I have no jurisdiction to entertain this application."

This ruling raises the question whether a judge hearing a criminal trial in the County Court of Victoria has jurisdiction to hear a collateral attack on the validity of a warrant issued by a Supreme Court judge pursuant to the provisions of the Act.

A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision[73]. In In re Preston[74], however, Lord Scarman used the term "collateral challenge" to include any process challenging a decision - including an application for judicial review - other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term "collateral challenge" is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues[75].

The Supreme Court of Victoria is a superior court of record. Judicial orders of superior courts cannot be made the subject of a collateral challenge. Such orders are valid until they are set aside or varied by appeal to a higher court even if they have been made in excess of jurisdiction[76]. They cannot be treated as nullities[77]. It is not open to an inferior court to ignore them. Indeed, a superior court "which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law"[78]. If warrants issued under the Act by the Supreme Court are judicial orders, it follows that the trial judge was correct in holding that he had no jurisdiction to entertain a collateral challenge to their validity.

The nature of a warrant issued under the Act

A warrant is a document issued under the hand of a designated person authorising the person or persons to whom it is addressed to do some act which would otherwise be unlawful[79]. If it is issued by a court in the course or for the purpose of an exercise of judicial power, its issue will invariably be a judicial act and not challengeable in collateral proceedings. Writs of execution, attachment and commitment, for example, are warrants. When they are issued by courts, they are judicial acts. However, not all warrants issued by courts are judicial acts. The issue of a warrant may be so removed from the exercise of judicial power that its issue is properly classified as an administrative act unless by tradition its issue has been recognised as a judicial act.

A warrant issued under the Act is far removed from the exercise of the judicial power of the Supreme Court, the County Court and the Magistrates' Courts of Victoria. Its issue is an administrative, not a judicial act. In Love v Attorney-General (NSW)[80],this Court held that a judge considering an application for a warrant under legislation similar to the Act does not perform a judicial function and is bound to act judicially only in the sense that he or she must act in a just and fair manner and with judicial detachment[81]. Warrants issued under the Act cannot be distinguished from the warrants considered in Love.

Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally. In Posner v Collector for Inter-State Destitute Persons (Vict)[82],Dixon J pointed out that:

"when a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so."

Indeed, a litigant affected by an administrative act may challenge it collaterally even though the person most directly affected by it is not a party to the litigation. Thus, in Director of Public Prosecutions v Head[83], the House of Lords upheld an order of the Court of Criminal Appeal quashing a conviction for carnal knowledge of a "mental defective" within the meaning of the Mental Deficiency Act 1913 (UK) on the ground that the certification of the woman in question was invalid even though none of the parties to the certification were parties in the criminal proceedings.

Accordingly, in principle an accused person in a criminal trial must be able to challenge collaterally the validity of a warrant issued pursuant to the Act when the warrant has been used to obtain evidence which the prosecution seeks to tender against him or her[84].

In Carmody v Mackellar[85],a case concerned with the issue of warrants pursuant to the Customs Act 1901 (Cth) and the Telecommunications (Interception) Act 1979 (Cth), Merkel J expressed the view, correctly in my opinion, that Love removed any previous doubt about a trial judge's jurisdiction to entertain a collateral attack on the issue of a warrant under those two Acts or similar legislation. His Honour attributed that doubt at least in part to "the special position of judicial or court orders, particularly in a superior court of record"[86]. Merkel J quoted the following statement made by this Court in Love[87]: "[o]nce it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority".

His Honour went on to say[88]:

"it must be open to a trial court in which the issue of validity ... arises, to hear and determine that issue ... The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error."

Thus, in Coco v The Queen[89],this Court held that a warrant issued by a Supreme Court judge as persona designata pursuant to the Invasion of Privacy Act 1971 (Q) was void. The Court found that the issue of the warrant amounted to jurisdictional error. It is implicit in the Court's reasons that the judge who presided at the trial of Coco was entitled to determine whether the warrant was validly issued[90].

In Flanagan v Commissioner of the Australian Federal Police[91], the Full Federal Court declined to review the decision of a Federal Court judge as persona designata to issue a warrant pursuant to the Telecommunications (Interception) Act. The Full Court recognised the "extremely wide" power of a trial judge in criminal proceedings to exclude prejudicial material[92]. The Court was of the view[93] that "in the criminal trial, it is open to the applicants to urge that the product, and the fruits of the product, be excluded". Necessarily implicit in this ruling is the proposition that the trial judge in the pending County Court trial could determine the validity of warrants issued by Federal Court judges.

In Haynes v Attorney General (NSW)[94], James J ruled that he had jurisdiction to entertain an application for declarations that a number of warrants issued by the Supreme Court of New South Wales pursuant to the Listening Devices Act 1984 (NSW) were invalid. His Honour distinguished the two authorities relied on by the trial judge in this case, Murphy v The Queen[95]and Carroll v Attorney-General (NSW)[96] on the basis that they concerned claims to the insufficiency of material supporting the grant of a warrant rather than the regularity of a warrant. The proceedings before James J were for declaratory relief and did not involve a collateral challenge in the sense that I have defined the term. Nevertheless, his Honour declared[97] that warrants issued by the Supreme Court were "null and void". It is the logical corollary of the learned judge's decision that neither Murphy nor Carroll prevent trial judges from determining collateral attacks on warrants issued by the Supreme Court of New South Wales now that this Court's decision in Love classifies such warrants as administrative acts and not judicial orders.

Since this Court's decision in Coco, however, a collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant. In Coco,the Court held that the Supreme Court judge, acting as persona designata, who had made an order authorising the installation of a listening device, had "misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction"[98]. It is true that the Court said that the "error might also be characterized as an error on the face of the record"[99] and that the Crown accepted that the existence of the warrant "did not preclude an attack on its validity in these proceedings in order to determine whether the evidence obtained by use of the listening device was admissible against the appellant"[100]. But the important point for present purposes is that this Court quashed the conviction of the appellant and accepted implicitly that the trial judge had jurisdiction to determine whether the issue of a warrant was void by reason of jurisdictional errors that lay behind its issue.

Both principle and authority, therefore, support the conclusion that a warrant issued under the Act by a Supreme Court judge is open to collateral challenge in a trial in the County Court of Victoria.

Absent legislation excluding judicial review or collateral challenge, it makes no difference whether the administrative act has been performed by an agent of the executive government or by a judge of a superior court. If the tentative comment by Hunt AJA in the Court of Appeal of New South Wales in Carroll[101] was intended to suggest otherwise - and I do not think that it was - it would be contrary to this Court's decision in Coco. His Honour said[102] that, notwithstanding that in Love this Court had characterised the issue of a listening device warrant as an administrative act, "it is not immediately apparent to me why the observations made by Mason CJ and Toohey J in Murphy[103]as to the absence of such a challenge process should not be accepted as still correct". In Murphy, their Honours had characterised the issue of a listening device warrant as a judicial act. They also held[104] that challenges to the admissibility of evidence obtained pursuant to a warrant must be confined to attacks on the existence of the warrant rather than the sufficiency of the grounds for granting it. In analysing a challenge to a warrant issued under the Listening Devices Act 1984 (NSW), Mason CJ and Toohey J said[105]:

"To determine the admissibility of evidence obtained by use of a listening device purportedly under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the Supreme Court. It does not inquire into the sufficiency of the material which satisfied the Supreme Court of the matters referred to in s 18(2)(b). There was neither need nor occasion for the Court in the present case to investigate the basis on which the warrant had been granted."

Their Honours also said that[106]:

"Where a warrant can be issued by the appropriate authority only upon its being satisfied of prescribed matters to be shown by the applicant for the warrant, the validity of the warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of those matters".

I think that Hunt AJA was saying no more than that insufficiency of evidence is not itself a ground of collateral challenge, a view which is supported not only by Mason CJ and Toohey J in Murphy but by Dixon, Evatt and McTiernan JJ in McArthur v Williams[107].

Properly understood, nothing in Grollo v Palmer[108] lends any support to the conclusion that a judge in a criminal trial cannot determine the validity of a warrant issued under the Act. It is true that the judgment of the majority in that case contains a statement[109] that the decision to issue a warrant "is, for all practical purposes, an unreviewable in camera exercise of executive power". But that statement must be read in its context. The warrants under consideration in Grollo were issued under the Telecommunications (Interception) Act and, as such, were specified by Sched 1 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to be decisions outside the system of review provided for in that Act. It was to that consideration and not the availability of collateral challenge that the dictum in Grollo was directed.

No doubt the efficient administration of the criminal law would be better served if trial judges lacked the power to determine collateral attacks on the validity of warrants. Important public interests are served by "the expeditious resolution of accusations of crime"[110] and by avoiding fragmentation of the criminal process[111]. Allowing criminal trial judges to determine collateral attacks on warrants once a jury is empanelled can only disrupt the orderly course of the trial and inconvenience jurors who are forced to wait around while collateral attacks are decided. The length and therefore the cost of trials must also increase by permitting collateral attacks on the validity of warrants. Collateral challenges made, without notice, during the course of a trial must also affect the listing arrangements of the criminal trial courts.

The policy of avoiding fragmentation is no doubt subject to exceptions such as permitting collateral issues to be determined where the facts are few and simple and the point is one of law[112]. However, once it is accepted that collateral challenges can be made on grounds such as addressing the wrong issue and "bad faith and impropriety"[113], many challenges to the validity of listening device warrants will take time to determine. With the issue of listening device warrants increasing dramatically[114], challenges to their validity may substantially hamper the orderly administration of the criminal justice system and have judicial officers in that system performing tasks which should be done in the civil courts. To some extent, the problem of fragmentation can be overcome by having collateral challenges to the validity of warrants determined in pre-trial hearings. Even so, the time of criminal trial judges and the courts of criminal appeal is taken up on matters that should be dealt with in proceedings for judicial review.

I am conscious of the difficulties created by permitting the issue of warrants to be challenged in the course of a criminal trial. Nevertheless, once it is accepted that the issue of warrants for listening devices is merely an administrative act, the application of established principle compels the conclusion that the validity of a warrant may be challenged collaterally in the course of a criminal trial. The matter is one which seems to call for examination by the legislature, particularly since the costs sanction that is available in civil proceedings, a sanction that acts as a deterrent against barely arguable applications, is not applicable in a criminal trial on indictment.

It follows that the learned trial judge erred in declining to rule on the validity of the warrants.

It is not necessary for a warrant issued under the Act to disclose jurisdiction on its face

The appellant submits that a warrant issued under the Act is not valid unless its terms disclose that it was authorised by law. He contends that the principles developed by the common law in relation to warrants of arrest and searches of premises are applicable to warrants authorising the issue of listening devices.

The common law courts, anxious to protect the liberty and privacy of the citizen, have always insisted that those who would invade the liberty or privacy of the citizen must unambiguously show that they have authority to do so. In pursuance of that goal, the common law courts adopted two policies. First, they limited the cases where warrants could be issued under the common law. Second, they developed a rigorous set of principles, applicable to both statutory and common law warrants alike, for ensuring that a warrant had been properly issued and that those charged with executing it were acting within their powers.

The use of warrants seems to have commenced with the practice of justices of the peace issuing warrants to arrest persons suspected of felony. The statutes which defined the jurisdiction and duties of the justices of the peace enabled them to arrest a person who had committed, was committing or whom they suspected on reasonable grounds of committing a felony. In the course of time, the justices began to issue warrants for the arrest of persons suspected by others of committing felonies. This practice was initially condemned[115] but by the end of the seventeenth century it had become widespread[116]. At the same time, the justices of the peace began to issue warrants for the seizure of stolen goods suspected of being in a house or place. By the time Sir Matthew Hale's famous work on the Pleas of the Crown in 1736, it was "the constant practice ... notwithstanding the opinion of my lord Coke in his jurisdiction of courts"[117]. Apart from warrants involved in the execution of judicial power, however, warrants of arrest and search warrants for stolen goods were the only warrants which the common law recognised. Thus, in Entick v Carrington[118], Lord Camden CJ rejected the claim that the Secretary of State had a common law power to issue a search warrant to seize papers, saying:

"The case of searching for stolen goods crept into the law by imperceptible practice. It is the only case of the kind that is to be met with."

Moreover, the common law imposed stringent conditions on the issue of warrants. In the case of search warrants, for example[119]:

"There must be a full charge upon oath of a theft committed. The owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant to shew them to the officer, who must see that they answer the description. And, lastly, the owner must abide the event at his peril: for if the goods are not found, he is a trespasser; and the officer being an innocent person, will be always a ready and convenient witness against him."

The early common law also condemned the use of general warrants, that is, warrants to search all suspected places for stolen goods[120].

From at least the seventeenth century, however, statutes have increasingly authorised the issue of warrants to search for and seize many classes of property. Early examples were the Licensing Ordinances and Acts authorising the search for and seizure of books and printings. In Inland Revenue Commissioners v Rossminster Ltd[121],Lord Wilberforce described the situation in the United Kingdom in words that are equally applicable to this country. He said:

"A formidable number of officials now have powers to enter people's premises, and to take property away, and these powers are frequently exercised, sometimes on a large scale."

The common law has met this challenge to the liberty and privacy of the subject by insisting that, subject to a legislative direction to the contrary, a warrant is invalid unless it meets certain conditions.

In Lindsay v Leigh[122], Baron Parke said that "[e]very instrument which is to affect a man's liberty or property out of the course of the common law ought, on the face of it, to shew the authority sufficiently". In the case of superior courts, the common law presumed until the contrary was shown that a judicial order had been made regularly. Omnia praesumuntur rite esse acta was the rule applied to superior courts. But in R v All Saints Southampton[123],Holroyd J said that "[t]he rule, that in Inferior Courts and proceedings by magistrates, the maxim 'omnia praesumuntur rite esse acta' does not apply to give jurisdiction, has never been questioned". In Mayor of London v Cox[124] Willes J said:

"the rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged."

Thus, subject to any statutory provision to the contrary, a warrant issued by a subordinate authority is bad unless it is apparent that it was issued by a person with jurisdiction to issue it[125] or if it fails to record the ground or grounds upon which it was issued[126] or is so vaguely worded that a person affected by it cannot know the object of the search[127] or fails to show that an offence has been committed or is suspected of having been committed[128] or fails to recite the information which was the basis of its issue[129] or fails to state an essential basis of jurisdiction[130] or fails to specify the person who is to execute the warrant[131] or indicates that the issuing authority has not addressed the right question[132] or, in the case of a search warrant, fails to specify precisely the place to be searched[133].

In support of his contention that the warrants in the present case were bad, the appellant relied on these principles and the statement of Fox J, sitting in the Supreme Court of the Australian Capital Territory R v Tillett; Ex parte Newton[134], that "a warrant issued by subordinate authority should disclose jurisdiction on its face". However, that statement is not universally true. As Lord Diplock pointed out in Rossminster[135]:

"What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute."

In Tillett, the warrants under consideration were issued by a Justice of the Peace pursuant to s 10(b) of the Crimes Act 1914 (Cth)[136]. Nothing in that legislation indicated that warrants issued by inferior courts or officers were to be given the benefit of a presumption of regularity. In the present case, although the Listening Devices Regulations1987 (Vic)[137] prescribed circumstances in which warrants could be issued under the Act by the County Court or by a Magistrates' Court[138], the warrants in question were issued by the Supreme Court of Victoria. The proposition that a warrant must show jurisdiction on its face has so far been confined[139] to warrants issued by inferior courts and officers such as magistrates, justices of the peace and police officers, for whom the presumption of regularity applicable to processes issued by superior courts has no application[140]. Given the presumption of regularity in respect of the judicial orders of superior courts, I see no reason why that presumption should not apply to the issue of warrants by superior courts even when the issue is characterised as an administrative act. Many of the considerations that apply in the making of judicial orders apply to the issuing of such warrants by a superior court.

As I have said, in Love, this Court said that, although a judge considering an application for a warrant does not perform a judicial function, he or she is bound to act judicially in the sense that he or she must act in a just and fair manner and with judicial detachment[141]. Similarly, in Grollo, the rationale for entrusting Federal Court judges with the responsibility for issuing telephone interception warrants under the Telecommunications (Interception) Act was stated[142] to be to the "professional experience and cast of mind of a judge" which was seen as giving a "desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other". This rationale can be assumed to underlie the decision of the legislature to specifically require that the issue of warrants under the Act be carried out by the Supreme Court of Victoria[143]. Thus, although Supreme Court judges are exercising an administrative function when issuing warrants under the Act, they are still doing so as officers of a court of superior jurisdiction. The presumption is therefore applicable in this case.

[48] See R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 159.
[49] (1995) 184 CLR 348 at 367. See also at 379 per McHugh J, 390 per Gummow J.
[50] (1995) 184 CLR 348 at 367 (footnote omitted).
[51] Section 9 allows for regulations to be made with respect to matters required or permitted by the Act to be prescribed or necessary to be prescribed to give effect to the Act.
[52] Listening Devices Regulations 1987 (Vic).
[53] Listening Devices Regulations 1997 (Vic).
[54] The terms used, namely, "metropolitan area" in the Listening Devices Regulations 1987 (Vic) and "metropolitan municipal district" in the Listening Devices Regulations 1997 (Vic), are defined by reference to other legislation.
[55] (1990) 26 FCR 473 at 488-489; 96 ALR 629 at 644.
[56] Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94, referring to Saunders v Evans (1861) 8 HLC 721 at 729 [11 ER 611 at 615]. See also O'Sullivan v Farrer (1989) 168 CLR 210 at 214-216; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 311-312.
[57] Sections 5(b)(i) and (iv).
[58] Grollo v Palmer (1995) 184 CLR 348 at 367, referring to the conferring of power on judges to grant warrants under the Telecommunications (Interception) Act 1979 (Cth). See also Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1019 per Lord Salmon (dissenting).
[59] See the discussion in Grollo v Palmer (1995) 184 CLR 348 at 367-368.
[60] See Customs Act 1901 (Cth); Australian Federal Police Act 1979 (Cth); Telecommunications (Interception) Act 1979 (Cth); Listening Devices Act 1984 (NSW); Listening Devices Act 1969 (Vic); Invasion of Privacy Act 1971 (Q); Listening Devices Act 1972 (SA); Listening Devices Act 1990 (NT); Listening Devices Act 1992 (ACT); cf Listening Devices Act 1978 (WA) and Listening Devices Act 1991 (Tas) which confer power on senior members of the police force and magistrates respectively. Note also the limited powers of the Commonwealth Attorney-General and Director-General of Security to issue warrants in matters of security pursuant to ss 9, 10 and 11A of the Telecommunications (Interception) Act 1979 (Cth) and ss 26, 27A and 29 of the Australian Security Intelligence Organization Act 1979 (Cth).
[61] Note the dissenting judgment of McHugh J in Grollo v Palmer (1995) 184 CLR 348 at 378-384.
[62] See Love v Attorney-General (NSW) (1990) 169 CLR 307 at 322 where reference is made to disqualification. See also Grollo v Palmer (1995) 184 CLR 348 at 366-367, 380-381.
[63] See George v Rockett (1990) 170 CLR 104 at 110-111 in the context of search warrants.
[64] Bunning v Cross (1978) 141 CLR 54 at 74 per Stephen and Aickin JJ. See also Ridgeway v The Queen (1995) 184 CLR 19 at 30-31 per Mason CJ, Deane and Dawson JJ.
[65] The proviso allows that an appeal against conviction may be dismissed if "no substantial miscarriage of justice has actually occurred."
[66] Hayne JA, Southwell and Smith AJJA.
[67] Ousley (1996) 87 A Crim R 326 at 335.
[68] Ousley (1996) 87 A Crim R 326 at 345.
[69] SR No 127/1988.
[70] The form has been amended by the Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic), SR No 57/1996, and now recites satisfaction in terms of both s 4A(1)(a) and (b).
[71] (1993) 70 A Crim R 162.
[72] (1989) 40 A Crim R 361.
[73] See Davy v Spelthorne Borough Council [1984] AC 262 at 277; Rubinstein, Jurisdiction and Illegality,(1965) at 37-38; Aronson and Franklin, Review of Administrative Action,(1987) at 211. See also the discussion of Beazley J in Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 112-122.
[74] [1985] AC 835 at 852.
[75] cf Aronson and Dyer, Judicial Review of Administrative Action, (1996) at 644.
[76] Scott v Bennett (1871) LR 5 HL 234 at 245; Cameron v Cole (1944) 68 CLR 571 at 590; DMW v CGW (1982) 151 CLR 491 at 504-505.
[77] Sanders v Sanders (1967) 116 CLR 366 at 376.
[78] Cameron v Cole (1944) 68 CLR 571 at 590.
[79] Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1000.
[80] (1990) 169 CLR 307.
[81] (1990) 169 CLR 307 at 322; see also Coco v The Queen (1994) 179 CLR 427 at 444.
[82] (1946) 74 CLR 461 at 483.
[83] [1959] AC 83.
[84] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 179; Coco (1994) 179 CLR 427 at 443; Haynes v Attorney-General (NSW) unreported, Supreme Court of New South Wales, 9 February 1996 at 8-9.
[85] (1996) 68 FCR 265.
[86] (1996) 68 FCR 265 at 276.
[87] (1990) 169 CLR 307 at 322-323.
[88] (1996) 68 FCR 265 at 277.
[89] (1994) 179 CLR 427.
[90] (1994) 179 CLR 427 at 435, 445-446, 462.
[91] (1996) 60 FCR 149; 134 ALR 495.
[92] (1996) 60 FCR 149 at 212; 134 ALR 495 at 551.
[93] (1996) 60 FCR 149 at 204; 134 ALR 495 at 545.
[94] Unreported, Supreme Court of New South Wales, 9 February 1996.
[95] (1989) 167 CLR 94.
[96] (1993) 70 A Crim R 162.
[97] Unreported, Supreme Court of New South Wales, 9 February 1996 at 13.
[98] (1994) 179 CLR 427 at 443.
[99] (1994) 179 CLR 427 at 443.
[100] (1994) 179 CLR 427 at 444.
[101] (1993) 70 A Crim R 162.
[102] (1993) 70 A Crim R 162 at 184.
[103] (1989) 167 CLR 94 at 105-106.
[104] (1989) 167 CLR 94 at 105.
[105] (1989) 167 CLR 94 at 106. See also McArthur v Williams (1936) 55 CLR 324 at 365-366.
[106] (1989) 167 CLR 94 at 106.
[107] (1936) 55 CLR 324 at 365-366.
[108] (1995) 184 CLR 348.
[109] (1995) 184 CLR 348 at 367.
[110] Flanagan (1996) 60 FCR 149 at 187, 204; 134 ALR 495 at 528, 544; Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501; 57 ALR 68 at 71.
[111] Sankey v Whitlam (1978) 142 CLR 1 at 25-26, 82; R v Iorlano (1983) 151 CLR 678 at 680; Clyne v Director of Public Prosecutions (1984) 154 CLR 640 at 643, 660; Yates v Wilson (1989) 168 CLR 338 at 339; Vereker v O'Donovan [1988] 6 Leg Rep SL 3; Beljajev v Director of Public Prosecutions (1991) 173 CLR 28 at 31-32; Elliott v Seymour (1993) 68 ALJR 173 at 175; 119 ALR 1 at 4; Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373; 120 ALR 193 at 195; Parker v Taylor (1994) 68 ALJR496 at 496; Flanagan (1996) 60 FCR 149 at 187; 134 ALR 495 at 528.
[112] See, for example, Young v Quin (1985) 4 FCR 483; 59 ALR 225.
[113] Flanagan (1996) 60 FCR 149 at 204; 134 ALR 495 at 545.
[114] For example, there has been a 370 per cent increase in the recorded use of listening devices by law enforcement agencies in New South Wales since 1989: see Bronitt, "Electronic Surveillance, Human Rights and Criminal Justice", (1997) 3(2) Australian Journal of Human Rights 183 at 184. See also Grollo (1995) 184 CLR 348 at 382.
[115] Holdsworth, A History of English Law, 7th ed (1956), vol 1 at 294-295.
[116] Stephen, A History of the Criminal Law of England,(1883), vol 1 at 190; Holdsworth, A History of English Law, 7th ed (1956), vol 1 at 295.
[117] Hale, The History of the Pleas of the Crown, (1800), vol 2, ch 13 at 113.
[118] (1765) 19 How St Tr 1030 at 1067.
[119] Entick v Carrington (1765) 19 How St Tr 1030 at 1067.
[120] Hale, The History of the Pleas of the Crown, (1800), vol 2, ch 18 at 150; Hawkins, Pleas of the Crown, 6th ed (1787), vol 2, ch 13, ss 10 and 17.
[121] [1980] AC 952 at 997.
[122] (1848) 11 QB 455 at 465 [116 ER 547 at 551].
[123] (1828) 7 B & C 785 at 790 [108 ER 916 at 918].
[124] (1867) LR 2 HL 239 at 259 citing Peacock v Bell (1667) 1 Wms Saund 69 at 74 [85 ER 81 at 87-88].
[125] Feldman, The Law Relating to Entry, Search and Seizure, (1986) at 131.
[126] Carroll v Mijovich (1991) 25 NSWLR 441.
[127] Re United Distillers Ltd [1947] 3 DLR 900; R v Tillett; Ex parte Newton (1969) 14 FLR 101; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; 57 ALR 72; Arno v Forsyth (1986) 9 FCR 576; 65 ALR 125. A warrant need not specify particular things to be seized, however, if the class of such things is sufficiently identified by reference to an offence: cf R v Tillett; Ex parte Newton (1969) 14 FLR 101at 114.
[128] R v La Vesque (1918) 30 CCC 190; R v Solloway Mills & Co (1930) 53 CCC 261; Tillett (1969) 14 FLR 101; Cloran (1984) 4 FCR 151.
[129] Caudle v Seymour (1841) 1 QB 889 [113 ER 1372]; Ex parte Marks (1906) 6 SR(NSW) 428.
[130] Feather v Rogers (1909) 9 SR(NSW) 192; Bowden v Box [1916] NZ Gaz LR 443; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663; Tillett (1969) 14 FLR 101; Coghill v McDermott [1983] 1 VR 751; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263.
[131] Sheehan v Gallagher [1902] QSR 319. However, a warrant was not necessarily bad because it directed a member of a class of persons to execute it (MacDonald v Beare (1904) 1 CLR 513).
[132] Tillett (1969) 14 FLR 101 at 108.
[133] R v Conley (1979) 21 SASR 166; Walker v West [1981] 2 NSWLR 570.
[134] (1969) 14 FLR 101 at 106.
[135] [1980] AC 952 at 1008.
[136] Repealed by s 5 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth).
[137] SR No 9/1987, made pursuant to ss 4A(8) and 9 of the Act. The Listening Devices Regulations1987 (Vic) have since been replaced by the Listening Devices Regulations1997 (Vic), SR No 2/1997.
[138] reg 4.
[139] Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663; Morse & Thompson v Harlock [1977] WAR 65; Re Arno; Ex parte Forsyth (1985) 9 FCR 557; 65 ALR 125; Arno v Forsyth (1986) 9 FCR 576; 63 ALR 130; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263; Tran Nominees v Scheffler (1986) 42 SASR 361; Swanevelder v Holmes (1990) 52 SASR 549; Lemesk Pty Ltd v Easterby (1993) 66 A Crim R 337.
[140] Peacock v Bell (1667) 1 Wms Saund 69 at 74 [85 ER 81 at 87-88]; Taylor v Clemson (1844) 11 Cl & F 610 at 640-641 [8 ER 1233 at 1245-1246]; Gosset v Howard (1845) 10 QB 411 at 452-454 [116 ER 158 at 172-173]; Mayor of London v Cox (1867) LR 2 HL 239 at 259; Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 569-570. See also Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 646. In Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 644, however, the Full Court of the Federal Court expressed reservations about the refusal to extend the presumption beyond superior courts, citing the requirement for magistrates to now be legally trained as removing the historical rationale based on confining the presumption to those with legal training.
[141] (1990) 169 CLR 307 at 322.
[142] (1995) 184 CLR 348 at 367.
[143] Except outside the Melbourne metropolitan area, where for reasons of practicality, the Listening Devices Regulations 1987 (Vic) permitted warrants to be issued by the County Court or by a Magistrates' Court.
[144] (1845) 10 QB 411 at 453 [116 ER 158 at 173].
[145] (1986) 42 SASR 361.
[146] (1986) 42 SASR 361 at 368.
[147] (1986) 42 SASR 361 at 371.
[148] The Law Relating to Entry, Search and Seizure, (1986) at 132.
[149] Re BX Development Inc and The Queen (1976) 70 DLR (3d) 366 at 372.
[150] (1990) 26 FCR 473 at 488-489; 96 ALR 629 at 644. See also Flanagan (1996) 60 FCR 149; 134 ALR 495 for a similar interpretation in relation to the Telecommunications (Interception) Act.
[151] State of Tasmania v The Commonwealth of Australia and State of Victoria (1904) 1 CLR 329 at 343; Rylands Brothers (Australia) Ltd v Morgan (1927) 27 SR(NSW) 161 at 168-169; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575; Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250.
[152] Grollo (1995) 184 CLR 348 at 367.
[153] Galliard v Laxton (1862) 2 B & S 363 at 372-373 [121 ER 1109 at 1112].
[154] s 16.
[155] George v Rockett (1990) 170 CLR 104 at 110.
[156] [1980] AC 952 at 1000.
[157] Coco (1994) 179 CLR 427 at 441.
[158] Coco (1994) 179 CLR 427 at 441, citing Dickson J in Re Application for an Authorization (Wiretap Reference) [1984] 2 SCR 697 at 712-713; 14 DLR (4th) 546 at 559.
[159] George v Rockett (1990) 170 CLR 104 at 110-113; Plenty v Dillon (1991) 171 CLR 635 at 648; Coco (1994) 179 CLR 427 at 436.
[160] See Haynes unreported, Supreme Court of New South Wales, 9 February 1996 at 12.
[161] s 4A(4)(f) of the Act.
[162] s 5 of the Act.
[163] s 5 of the Act.
[164] Order 1.04 of the Criminal Appeals and Procedures Rules.
[165] Ex parte Young; In re Young (1881) 19 Ch 124 at 134; Malpas v Malpas (1885) 11 VLR 670; McCheane v Gyles [1902] 1 Ch 287 at 301; Kayley v Hothersall [1925] 1 KB 607 at 612; SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; Donald Campbell & Co v Pollak [1927] AC 732 at 804.
[166] See Poyser v Minors (1881) 7 QBD 329 at 333, 337-338; Naughton v Colonial Provident Life and General Assurance Co Ltd [1928] VLR 533 at 538.
[167] Pt 77 r 73 and form 89C.
[168] Lynch v Brisbane City Council (1961) 104 CLR 353 at 365.
[169] Foster v Aloni [1951] VLR 481 at 484. See also State Bank (SA) v Hellaby (1992) 59 SASR 304 at 309.
[170] South Australia v Tanner (1989) 166 CLR 161 at 165.
[171] (1933) 49 CLR 142 at 156.
[172] Poyser v Minors (1881) 7 QBD 329 at 333 per Lush LJ. See also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-177; The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 75.
[173] (1978) 19 SASR 464 at 470.
[174] (1947) at 265.
[175] Harrington v Lowe (1996) 70 ALJR 495 at 501; 136 ALR 42 at 49.
[176] Shanahan v Scott (1957) 96 CLR 245 at 250.
[177] Bunning v Cross (1978) 141 CLR 54. See also Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; Flanagan (1996) 60 FCR 149 at 212-213; 134 ALR 495 at 552-553.
[178] R v Ireland (1970) 126 CLR 321 at 334-335; Bunning v Cross (1978) 141 CLR 54 at 64-65, 73-75; Pollard v The Queen (1992) 176 CLR 177 at 201-203, 234-235.
[179] (1978) 141 CLR 54.
[180] Ousley (1996) 87 A Crim R 326.
[181] Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1000, 1008.
[182] Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327 at 359-360; 141 ALR 545 at 588.
[183] George v Rockett (1990) 170 CLR 104 at 110; Grollo v Palmer (1995) 184 CLR 348 at 359.
[184] [1980] AC 952 at 999-1000; see also at 1008 per Lord Diplock.
[185] See Cooper v Booth (1785) 3 Esp 135 at 144 [170 ER 564 at 567] where Lord Mansfield described as depending entirely upon the statute under which the warrant in question had been granted, the issues arising on an action in trespass against those who had executed the warrant.
[186] Coco v The Queen (1994) 179 CLR 427 at 437.
[187] See Coco v The Queen (1994) 179 CLR 427 at 441.
[188] Wiretap Reference [1984] 2 SCR 697 at 710-711.
[189] (1995) 184 CLR 348 at 367 (footnote omitted).
[190] Grollo v Palmer (1995) 184 CLR 348 at 359.
[191] See, for example, s 52(5) of the Controlled Substances Act 1984 (SA) ("the Controlled Substances Act"), considered in Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361.
[192] The circumstances in which these Courts may exercise the powers of the Supreme Court were prescribed by the Listening Devices Regulations 1987 (Vic) (SR No 9/1987), which were replaced by the Listening Devices Regulations 1997 (Vic) (SR No 2/1997).
[193] Plenty v Dillon (1991) 171 CLR 635 at 648; Coco v The Queen (1994) 179 CLR 427 at 436, 437.
[194] Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 997-998.
[195] George v Rockett (1990) 170 CLR 104 at 112.
[196] (1990) 169 CLR 307 at 320-322. See also Coco v The Queen (1994) 179 CLR 427 at 444; Grollo v Palmer (1995) 184 CLR 348 at 359-360, 389.
[197] SR No 74/1987.
[198] SR No 127/1988.
[199] (1990) 169 CLR 307.
[200] The alleged defect in Form 7B has been remedied by the Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic) (SR No 57/1996), which amended Form 7B by inserting a reference to the matter prescribed by s 4A(1)(b) of the Act. The amendment came into operation on 1 July 1996.
[201] Bunning v Cross (1978) 141 CLR 54 at 75.
[202] R v Ireland (1970) 126 CLR 321 at 335.
[203] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
[204] (1989) 167 CLR 94.
[205] cf R v Robinson (1996) 129 FLR 409 at 426.
[206] The NSW Act was amended by the Listening Devices Amendment Act 1996 (NSW). Schedule 2 was inserted. It sets out the form of warrant. Section 16(6A), which was also added, states that a warrant "under this section may be in or to the effect of the form set out in Schedule 2".
[207] (1989) 167 CLR 94 at 104.
[208] (1989) 167 CLR 94 at 104; Murdoch, Murphy, Murphy & Murphy (1987) 37 A Crim R 118 at 129.
[209] (1989) 167 CLR 94 at 118 per Brennan J, 124 per Deane J, 128 per Dawson J.
[210] (1989) 167 CLR 94 at 105-106.
[211] (1936) 55 CLR 324.
[212] (1936) 55 CLR 324 at 365-366.
[213] (1785) 3 Esp 135 at 144 [170 ER 564 at 567-568].
[214] Murphy v The Queen (1989) 167 CLR 94 at 105.
[215] (1936) 55 CLR 324 at 364.
[216] Grollo v Palmer (1995) 184 CLR 348 at 359.
[217] As in Love v Attorney-General (NSW) (1990) 169 CLR 307. See also Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 186-188; 134 ALR 495 at 527-529.
[218] [1980] AC 952 at 1000; see also at 1005, 1026.
[219] (1996) 87 A Crim R 326 at 334.
[220] Stanton v Styles (1850) 5 Ex 578 at 583 [155 ER 253 at 256].
[221] (1849) 8 CB 271 at 286 [137 ER 513 at 519].
[222] Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 101.
[223] Gosset v Howard (1845) 10 QB 411 at 453 [116 ER 158 at 173].
[224] See Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 646.
[225] (1845) 10 QB 411 at 453-454 [116 ER 158 at 173].
[226] Repealed by s 5 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth).
[227] (1969) 14 FLR 101.
[228] (1986) 42 SASR 361.
[229] (1986) 42 SASR 382. See also George v Rockett (1990) 170 CLR 104.
[230] (1990) 95 ALR 557; affd (1990) 26 FCR 473; 96 ALR 629.
[231] (1990) 95 ALR 557 at 569-570.
[232] (1990) 169 CLR 307 at 318-322.
[233] cf the consideration by the Full Court: Karina Fisheries Pty Limited v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 644.
[234] Hoffman-La Roche v Trade Secretary [1975] AC 295 at 365. See Campbell, "Inferior and Superior Courts and Courts of Record", (1997) 6 Journal of Judicial Administration 249 at 258; Aronson and Dyer, Judicial Review of Administrative Action, (1996) at 653.
[235] Broom, A Selection of Legal Maxims, 10th ed Kersley (1939) at 642.
[236] (1989) 167 CLR 94 at 105.
[237] (1989) 167 CLR 94 at 105.
[238] (1990) 169 CLR 307 at 322.
[239] (1990) 169 CLR 307 at 322.
[240] The warrant in the latter case might be saved by s 53 of the Interpretation of Legislation Act 1984 (Vic) which states: "Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law."
[241] Bunning v Cross (1978) 141 CLR 54 at 64-65, 75, 78-80; Pollard v The Queen (1992) 176 CLR 177 at 234-235.
[242] Supreme Court (Chapter VI Amendment No 8) Rules 1996 (Vic); Statutory Rule No 57 of 1996 (Vic).
[243] Under Bunning v Cross (1978) 141 CLR 54.
[244] Listening Devices Act 1969 (Vic), s 4(1).
[245] Coco v The Queen (1994) 179 CLR 427 at 436, 447. See Ghani v Jones [1970] 1 QB 693 at 706; R v IRC; Ex parte Rossminster [1980] AC 952 at 971, 983; cf Cooper v Booth (1785) 3 Esp 135 at 136; 170 ER 564 at 565.
[246] Cannabis L contrary to s 72 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[247] Possession of a drug of dependence (Cannabis L) contrary to s 73 of that Act.
[248] Contrary to s 71(1) of that Act.
[249] Marks J and Coldrey J.
[250] (1989) 167 CLR 94 at 105.
[251] (1993) 70 A Crim R 162 at 168-169.
[252] Under the Crimes Act 1958 (Vic), s 446(2).
[253] (1994) 179 CLR 427.
[254] Listening Devices Act 1984 (NSW) in Love v Attorney-General (NSW) (1990) 169 CLR 307 and Invasion of Privacy Act 1971 (Q) in Coco v The Queen (1994) 179 CLR 427. The warrant under s 16 of the Listening Devices Act 1984 (NSW) was in the same form as the warrants signed in the present case. The New South Wales Act has now been amended and replaced by the Listening Devices Amendment Act 1996 (NSW). It contains a form of warrant in Schedule 2 which follows the form used in the present case but is now sanctioned by express statutory enactment.

[255] Further penalties are provided for communicating or publishing the substance of a recorded conversation otherwise than in the course of duty. See the Act, s 6.
[256] s 4A(5).
[257] s 4A(6).
[258] s 4A(7).
[259] s 4A(8).
[260] s 5.
[261] s 7.
[262] s 9.
[263] Statutory Rule No 127 of 1988 (Vic), dated 30 March 1988. See Ch VI r 7.05; Form 7B.
[264] Order 1 r 1.04 of the Rules.
[265] s 25(1)(f).
[266] Ousley (1996) 87 A Crim R 326 per Hayne JA, Southwell and Smith AJJA.
[267] Ousley (1996) 87 A Crim R 326 at 330.
[268] (1995) 184 CLR 348 at 367.
[269] Ousley (1996) 87 A Crim R 326 at 331.
[270] Ousley (1996) 87 A Crim R 326 at 333.
[271] Ousley (1996) 87 A Crim R 326 at 334.
[272] Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 644 (Full Court) (citation added).
[273] By s 4(3).
[274] By s 4(1).
[275] Shanahan v Scott (1957) 96 CLR 245 at 250.
[276] Love v Attorney-General (NSW) (1990) 169 CLR 307 at 322; Murphy v The Queen (1989) 167 CLR 94 at 106. See also Ousley (1996) 87 A Crim R 326 at 333.
[277] cf Haynes v Attorney-General of New South Wales unreported,Supreme Court of New South Wales, 9 February 1996.
[278] Tran Nominees v Scheffler (1986) 42 SASR 361 at 373-374.
[279] Crimes Act 1958 (Vic), s 568(1).
[280] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J; Bropho v Western Australia (1990) 171 CLR 1 at 18; cf Carroll v Mijovich (1991) 25 NSWLR 441 at 450.
[281] George v Rockett (1990) 170 CLR 104 at 110 citing Entick v Carrington (1765) 2 Wils KB 275 [95 ER 807].
[282] (1990) 170 CLR 104.
[283] cf Feeney v The Queen unreported, Supreme Court of Canada, 22 May 1997 at 22-23 per Sopinka J; Dalia v United States 441 US 238 at 279 (1979) per Stevens J and Wiretap Reference [1984] 2 SCR 697 at 710 per Dickson J approved Coco v The Queen (1994) 179 CLR 427 at 447. Feldman, The Law Relating to Entry, Search and Seizure (1986) at 1-2.
[284] [1980] AC 952.
[285] [1980] AC 952 at 997.
[286] [1980] AC 952 at 1008.
[287] [1980] AC 952 at 1019.
[288] [1980] AC 952 at 972 cited with approval by Lord Salmon [1980] AC 952 at 1017.
[289] See OPSM Pty Ltd v Withers (1987) 13 FCR 594 at 598-599; 71 ALR 269 at 273-274; Pressler v Holzberger (1989) 44 A Crim R 261; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 643-644.
[290] George v Rockett (1990) 170 CLR 104 at 110-111; Love v Attorney-General (NSW) (1990) 169 CLR 307 at 317; Coco v The Queen (1994) 179 CLR 427 at 436-438.
[291] See Universal Declaration of Human Rights, Art 12; International Covenant on Civil and Political Rights, Art 17; cf Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 175.
[292] "A good end does not justify a bad means" R v IRC; Ex parte Rossminster [1980] AC 952 at 976 per Lord Denning MR; cf Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 175.
[293] Carroll v Mijovich (1991) 25 NSWLR 441 at 450.
[294] Parker v Churchill (1985) 9 FCR 316 at 322 per Burchett J; 63 ALR 326 at 333, approved and applied in George v Rockett (1990) 170 CLR 104 at 111; see also Tran Nominees v Scheffler (1986) 42 SASR 361 at 389-390 per Cox J; cf Mitchell v New Plymouth Club (Inc) [1958] NZLR 1070 applied R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106; Feeney v The Queen unreported, Supreme Court of Canada, 22 May 1997 at 21-24 per Sopinka J.
[295] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 176.
[296] R v IRC; Ex parte Rossminster [1980] AC 952 at 1023 per Lord Scarman.
[297] Parker v Churchill (1985) 9 FCR 316 at 322 per Burchett J; 63 ALR 326 at 333; see also Morse v Thompson [1977] WAR 65 at 77; George v Rockett (1990) 170 CLR 104 at 111.
[298] s 4(1).
[299] Tran Nominees v Scheffler (1986) 42 SASR 361 at 369.
[300] R v IRC; Ex parte Rossminster [1980] AC 952 at 997 per Lord Wilberforce; Tran Nominees v Scheffler (1986) 42 SASR 361 at 393 per Cox J; Ghani v Jones [1970] 1 QB 693 at 708 per Lord Denning MR.
[301] Conway v Rimmer [1968] AC 910 at 953-954 per Lord Reid; R v IRC; Ex parte Rossminster [1980] AC 952 at 997 per Lord Wilberforce; cf Bunning v Cross (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ.
[302] R v IRC; Ex parte Rossminster [1980] AC 952 at 1008 per Lord Diplock.
[303] Tran Nominees v Scheffler (1986) 42 SASR 361 at 385 per Zelling ACJ.
[304] Tran Nominees v Scheffler (1986) 42 SASR 361; Swanevelder v Holmes (1990) 52 SASR 549.
[305] R v Tillett; Ex parte Newton (1969) 14 FLR 101; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263; but see George v Rockett (1990) 170 CLR 104 at 111-112; Lemesk Pty Ltd v Easterby (1993) 66 A Crim R 337.
[306] Seven Seas Publishing Ltd v Sullivan [1968] NZLR 663 at 667; Morse v Thompson [1977] WAR 65.
[307] s 4A(1).
[308] (1989) 167 CLR 94 at 105-106.
[309] Re Jarman & Ors; Ex parte Cook [No 1] (1997) 71 ALJR 557; 143 ALR 129;cf R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 385.
[310] (1990) 169 CLR 307 at 320-322; see also Grollo v Palmer (1995) 184 CLR 348 at 360.
[311] (1990) 169 CLR 307 at 322.
[312] (1990) 169 CLR 307 at 323.
[313] (1990) 169 CLR 307; see also Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 42.
[314] (1994) 179 CLR 427.
[315] (1994) 179 CLR 427 at 435.
[316] Invasion of Privacy Act 1971 (Q), s 43(2)(c).
[317] s 4A(1).
[318] Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 644.
[319] Haynes v Attorney General of New South Wales unreported, Supreme Court of New South Wales, 9 February 1996 at 13 per James J.
[320] Swanevelder v Holmes (1990) 52 SASR 549; Flanagan v AFP (1996) 60 FCR 149 at 204, 208; 134 ALR 495 at 544, 547-548; Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 at 560-565.
[321] (1978) 141 CLR 54 at 78-80.
[322] cf George v Rockett (1990) 170 CLR 104 at 114.
[323] (1994) 70 A Crim R 162 at 169.
[324] (1994) 70 A Crim R 162 at 169, 176-9; see also Murdoch, Murphy, Murphy & Murphy v The Queen (1987) 37 A Crim R 118 at 129; Murphy v The Queen (1989) 167 CLR 94 at 104-106; Love v Attorney-General (NSW) (1990) 169 CLR 307 at 322.
[325] See for example McArthur v Williams (1936) 55 CLR 324 at 365-366; Murphy v The Queen (1989) 167 CLR 94 at 105; Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 570 per O'Loughlin J affd (1990) 26 FCR 473; 96 ALR 629; cf Nakkuda Ali v Jayaratne [1951] AC 66 at 76-77; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047; R v IRC; Ex parte Rossminster [1980] AC 952 at 979.
[326] Sankey v Whitlam (1978) 142 CLR 1 at 22-24; Barton v The Queen (1980) 147 CLR 75 at 104; R v Iorlano (1983) 151 CLR 678 at 680; Clyne v Director of Public Prosecutions (1984) 154 CLR 640 at 643, 660; Yates v Wilson (1989) 168 CLR 338 at 339; R v Elliott (1996) 185 CLR 250 at 256; cf Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235; Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 at 599; Lamb v Moss (1983) 49 ALR 533 at 545. The existence of the power of the trial judge in the County Court to exclude evidence unlawfully obtained under a warrant issued by a Federal Court judge was a reason given by the Full Federal Court in Flanagan v AFP (1996) 60 FCR 149 at 212-213; 134 ALR 495 at 552-553 for declining the relief sought by the accused in pre-trial proceedings.
[327] s 4A(8).
[328] Shanahan v Scott (1957) 96 CLR 245 at 250; Coulter v The Queen (1988) 164 CLR 350 at 362-363; Harrington v Lowe (1996) 70 ALJR 495 at 501, 510-512; 136 ALR 42 at 49-50, 62-64; R v Social Security Secretary; Ex parte Joint Council [1997] 1 WLR 275 at 281-282.
[329] Supreme Court (Chapter VI Amendment No 8) Rules 1996; Statutory Rule No 57 of 1996.
[330] Listening Devices Amendment Act 1996 (NSW), s 16, Sched 2 ("Form of warrant").
[331] Taylor v Clemson (1844) 11 Cl & F 610 at 627; [8 ER 1233 at 1241].
[332] R v Tillett; Ex parte Newton (1969) 14 FLR 101.
[333] Grollo v Palmer (1995) 184 CLR 348 at 367.
[334] cf Coco v The Queen (1994) 179 CLR 427 at 443; see also R v Murdoch, Murphy, Murphy & Murphy (1987) 37 A Crim R 118 at 130.
[335] cf Haynes v Attorney-General of New South Wales unreported,Supreme Court of New South Wales, 9 February 1996 at 13-14 per James J. The view that the legislature may have intended no review of warrants issued by Supreme Court judges [R v Murdoch, Murphy, Murphy & Murphy (1987) 37 A Crim R 118 at 130] must now be taken to be overruled.
[336] cf Mills v Meeking (1990) 169 CLR 214 at 234-235.
[337] Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663 at 668-669; Morse v Thompson [1977] WAR 65 at 73; cf Zanatta v McCleary [1976] 1 NSWLR 230; Warren v Warren [1996] 3 WLR 1129 at 1136-1138; [1996] 4 All ER 664 at 670-672.
[338] cf R v IRC; Ex parte Rossminster [1980] AC 952 at 1004, 1009.
[339] Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461 at 476; Grollo v Palmer (1995) 184 CLR 348 at 366-369.
[340] Gosset v Howard (1845) 10 QB 411 at 452-453 [116 ER 158 at 173]; R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106; Swanevelder v Holmes (1990) 52 SASR 549 at 557; cf Karina Fisheries Pty Ltd v Mitson (1990) 95 ALR 557 at 569-570.
[341] Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 644; Malcolm v Selby unreported, Court of Appeal of New South Wales, 3 June 1994 at 4.
[342] Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488; 96 ALR 629 at 644.
[343] R v IRC; Ex parte Rossminster [1980] AC 952 at 1013 per Lord Diplock; cf Love v Attorney-General (NSW) (1990) 169 CLR 307 at 319.
[344] Coco v The Queen (1994) 179 CLR 427 at 445-446, 462; cf Miller v Miller (1978) 141 CLR 269 at 277; Ridgeway v The Queen (1995) 184 CLR 19 at 30-34.
[345] Bunning v Cross (1978) 141 CLR 54. See Hilton v Wells (1985) 157 CLR 57 at 77; Flanagan v AFP (1996) 60 FCR 149 at 211-212; 134 ALR 495 at 551; Swanevelder v Holmes (1990) 52 SASR 549 at 557; R v McNamara [1995] 1 VR 263 at 270-272; cf Cooper v Booth (1785) 3 Esp 135 at 136; 170 ER 564 at 565.
[346] (1986) 42 SASR 361.
[347] Controlled Substances Act 1984 (SA), s 52.
[348] (1986) 42 SASR 361 at 380-381.
[349] (1986) 42 SASR 361 at 382.
[350] Zelling ACJ, Cox and O'Loughlin JJ.
[351] (1986) 42 SASR 361 at 369 referring to R v IRC; Ex parte Rossminster [1980] AC 952 and Crowley v Murphy (1980) 34 ALR 491.
[352] (1986) 42 SASR 361 at 373-374.
[353] (1986) 42 SASR 361 at 389 per Cox J; see also 385 per Zelling ACJ.
[354] (1986) 42 SASR 361 at 390.
[355] (1986) 42 SASR 361 at 392.
[356] (1969) 14 FLR 101.
[357] (1986) 42 SASR 361 at 385.
[358] (1986) 42 SASR 361 at 393-394.
[359] Crimes Act, s 568(1).
[360] See Australian Law Reform Commission, Criminal Investigation ALRC 2, 1975 at 102 reporting United States research by Professor H Schwartz that "271 eavesdropping operations installed in 1969 in fact involved 31,436 people overheard in 173,711 conversations". The Commission accepted that the same ratios might not apply in Australian operations. See also Bronitt, "Electronic Surveillance, Human Rights and Criminal Justice", (1997) 3(2) Australian Journal of Human Rights 183 at 184, which notes a 370 per cent increase in the recorded use of listening devices by New South Wales law enforcement agencies since 1989.
[361] Halford v United Kingdom Decision of the European Court of Human Rights, unreported, 25 June 1997. Case no 73/1996/692/884.
[362] Crimes Act, s 568(1).