Grech v The Queen; Kadir v The Queen [2019] HCATrans 199 (15 October 2019)

Last Updated: 15 October 2019

[2019] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S163 of 2019

B e t w e e n -

DONNA GRECH

Appellant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S160 of 2019

B e t w e e n -

ZEKI RAY KADIR

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 OCTOBER 2019, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR G.O’L. REYNOLDS, SC: May it please the Court, in the Kadir appeal I appear for the appellant, with my learned friends, MR D.P. HUME and MR R.W. HADDRICK. (instructed by Michael Bowe)

MR T.A. GAME, SC: If the Court please, I appear for the appellant Grech, with my learned friends, MS K.J. EDWARDS and MS K.I.H. LINDEMAN. (instructed by Legal Aid NSW)

MR H. BAKER, SC: May it please the Court, I appear for the respondent, the Crown, with my learned friends, MS H.R. ROBERTS and MS B.K. BAKER. (instructed by the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour. Your Honours should have a copy of our synopsis of argument, and I am going to follow that fairly closely. I will come back to that in a moment. Could I ask your Honours to have to hand two things, in particular; the first is the core appeal book in this matter and the second is my client’s – that is, the appellant’s ‑ submissions in the Kadir appeal.

Your Honours will have seen from both the ‑ our written submissions and, so far as you have had an opportunity to do so, also from our synopsis that we divide the argument into three, which reflects the three categories of evidence. I will be dealing in relation to each of those three categories with three sub‑issues, which I will explain, so it effectively means that there are nine issues that I am going to be addressing.

My submissions are going to focus on the detail of the case and my learned friend, Mr Game, will be addressing your Honours on the legal question of the appropriate standard of review and also, obviously, supplementing what I have to say to some extent.

If your Honours go to the synopsis of argument – that is, the first heading “Surveillance evidence” – the first three paragraphs look at the errors found by the Court of Criminal Appeal in the primary judge’s reasoning. There were a number of recordings and the primary judge excluded all of them. The Court of Criminal Appeal excluded all but one. And, the primary judge’s reasoning is to be found in the core appeal book at pages 32 to 41. We have attempted to summarise the effect of it in our submissions at paragraphs 27 to 30.

As I have said, the Court of Criminal Appeal differed from the primary judge by finding that the first recording was to be admitted, but they otherwise agreed with the primary judge’s reasoning in relation to all of the other recordings. There does not seem to have been any issue all the way through that the essential circumstances, relating to the first recording, were virtually identical to the other recordings, except for the fact that it was prior in time to the others.

The Court of Criminal Appeal in effect said that that had consequences in relation to the section 138 equation. As far as the errors found by the Court of Criminal Appeal in the primary judge’s reasons are concerned, there was certainly one, and possibly two. The first, as we have said in paragraph 3 of our outline, relates to section 138(3)(h). And at the back of our submissions, right on the very last page, we have set the text out of section 138 and your Honours will see (3)(h) talks there about:

the difficulty (if any) of obtaining the evidence without impropriety or contravention –

Now, the judge’s reasoning on that is at pages 38 to 39 of the core appeal book. I will not summarise the whole of that, but the perhaps most important passage is at page 39 – I will come back to that in a moment. But, importantly, at page 31, at about line 15, the judge noted the submission which had been put by the Crown, and at about line 22, there was a suggestion that “the Crown was in a less strong position” – I underline those words, after the first recording.

If we go back to page 39, at about line 25, that submission by the Crown is mirrored with an observation – this is at line 25, page 39, that:

Once the first recording was obtained, there was no reason why the police through the RSPCA could not have been approached and requested to apply for a warrant to install an optical surveillance device. No such approach was undertaken –

Et cetera. And again, importantly:

I am satisfied that there was some difficulty in obtaining the evidence in some other way which did not involve a contravention, but the degree of difficulty is not easily determined when no steps were taken to endeavour to obtain the evidence in a lawful way.

So, (h) is a factor which, if made out by the Crown, would be a factor which would assist them on the admissibility equation. But, what the judge is saying here is he accepts that, in a general sense, that there is some difficulty in obtaining the evidence without contravention but he is not able to quantify that. What he is able to do is distinguish, in relative terms, the first recording from the second. The point being that once the first recording had been obtained, then Animals Australia would have had enough evidence to approach the police and the RSPCA. There was “some difficulty” before that in garnering the evidence without a contravention but less difficulty thereafter – that is, after the first recording had been obtained. But, in the end, he says – this is at about line 35:

the degree of difficulty is not easily determined –

So, that is the primary judge’s reasoning. How does the Court of Criminal Appeal criticise this? If your Honours go – I am going to go particularly to paragraphs 103 to 105 of the Court of Criminal Appeal’s judgment and I will try and give your Honours both the paragraph and a more specific reference. The first thing that the Court of Criminal Appeal says, relevantly, is at paragraph 103 in the second and third sentences – that is, the sentences beginning “However” and “It stands to reason”. They say there that:

what is not apparent from his Honour’s reasons is that his Honour weighed the difficulty of obtaining evidence of criminal activity before the first recording was obtained against the difficulty of obtaining such evidence once the first recording had been obtained.

Our response to that criticism is that it is simply wrong to suggest that any part of this equation would have, necessarily, involved the judge weighing those two things against one another. If your Honours go to the third sentence, beginning “It stands”, it is there stated that:

It stands to reason that once there was evidence in the form of the first recording, then whatever difficulties were (or were perceived to be) attendant on investigation of an anonymous complaint must have been lessened.

We say that that is the substance of what the primary judge found at core appeal book, page 39, at about lines 25 to 35 but one cannot read that otherwise than as in substance a form of finding that there was less difficulty after the first recording had, in fact, been obtained. So, there is a relative evaluation of the difficulty under paragraph (h), both before the first recording and thereafter, but, in the end, the judge finds himself unable precisely to quantify the exact measure of difficulty.

The other criticism that is made is, if your Honours go to paragraph 105, to the first sentence, it is there stated that:

On an overall reading of the reasons it cannot be said that his Honour assessed the first recording in isolation from the others in assessing the difficulty of obtaining that evidence.

And I assume that in that sentence, the words at the end, “that evidence”, mean the surveillance evidence of the bullring. The problem with that, we submit, is that it is clear – again, we refer to page 39, lines 25 following that the judge did distinguish between the situations obtaining before and after the first and later recordings. It was not necessary, we submit, for him to engage in some kind of mechanical isolation process. He isolates, in substance, two periods of time, one before the first recording, one thereafter, and there was obviously less difficulty, in relative terms, after the first recording had been obtained.

The third criticism that the Court of Criminal Appeal makes of the primary judge’s reasoning is in the second sentence of paragraph 105, where it is stated that the judge expressed no reason why he reached the same conclusion for all of the recordings, in relation to the difficulty of obtaining the evidence without a contravention of the law.

We submit that that is based on a false premise, that observation there, and that the judge did not assess the difficulty of obtaining the evidence without contravention to be the same in relation to each recording. Again, he differentiated the situations before the first recording was obtained and thereafter and in the end the Crown was unable to establish to his satisfaction the relevant degree of difficulty in a way that would have him take it into account on the admissibility equation.

So if I can conclude with what the judge’s reasoning is in relation to factor (h) in section 138(3). We submit that none of those, with respect, suggested errors, hold water. The other thing I would add at that point is that to examine the judge’s reasoning the way the Court of Criminal Appeal did involves too anxious a scrutiny of, as it were, the minutiae in the judge’s wording on a judgment which was delivered, after all, at the trial.

So that is the first kind of error that the Court of Criminal Appeal appeal appears to find. There is also possibly an error identified by them in relation to factor (d), which if your Honours to go to section 138(3), which is at the back of our submissions, your Honours will see that that talks about:

the gravity of the impropriety or contravention –

Now, the judge – this is at page 37 of the core appeal book, at lines 10 to 21 ‑ twice held that the contraventions involved in these recordings were “very high and serious”. Importantly, at the end of paragraph 108 of the Court of Criminal Appeal’s judgment they came to the same conclusion, noting at page 82, line 50, that the judge was correct to make that conclusion and not adding anything further. In the last line of paragraph 110 it is also noted that the judge:

correctly assessed the contravention as very high and serious.

So everyone seems to be in great agreement about the seriousness of the contraventions. Does the Court of Criminal Appeal say there is any error here? Well, paragraph 107 would suggest not because, when they summarise the errors found, they only refer – if I may paraphrase – to the (h) factor; they do not refer to factor (d).

However, I do need to be candid with your Honours that there are a couple of earlier places where, on one view, their Honours, I respectfully submit somewhat surprisingly in the light of what I have taken your Honours to in the last minute or so – there are a couple of passages which seem to suggest that in relation to this factor that the primary judge was, at least according to the Court of Criminal Appeal, in error. The first of those is at paragraph 105, in the second sentence, and the point that is made here – you will see they talk at the bottom of the page about “the gravity of the contravention”. So reading it, focusing on that, what they are saying there is that the judge expressed no reason why he considered the gravity of the contravention to be the same in relation to all the recordings.

Well, it is true that the judge did not go into great detail on that point, but nor did, with respect, the Court of Criminal Appeal. They just bottom lined this and said, well, all of the contraventions were very high and serious and we agree with what the judge said. So we submit that it is a bit, in the circumstances, with very great respect, both hypercritical and hypocritical of the Court of Criminal Appeal to criticise the judge in that way, if that is what their Honours are doing. We submit the better view may be that they are not in fact finding an error but there certainly was not any material error, we submit. And paucity of reasoning is, we submit, neither here nor there, when everyone is agreed on what the correct conclusion is.

The other passage where the Court of Criminal Appeal touch on paragraph (d) and, on one view, may be suggesting that the judge erred is at the end of paragraph 104 of their reasons where their Honours say that:

the gravity of the breach should at least have been addressed separately with respect to the first recording –

from the gravity of the breach in relation to other recordings. Again, your Honours will have guessed that we submit that if there was any error there, and we submit there was and it was immaterial, both the judge and the Court of Criminal Appeal dealt with the gravity of the breach in relation to all of the recordings, without separating out one rather than the other. And we submit that the judge and the Court of Criminal Appeal were entitled to assess the gravity of the breach at the same time in that way.

So just pausing there, this is, of course, dealing with the issue of whether the Court of Criminal Appeal was correct to isolate error in the primary judge’s reasons in relation to this first category of evidence. We submit, that the Court of Criminal Appeal was not justified in finding error and that, making an assumption on the relevant standard of review, that it is House v The King, or similar, that the Court of Criminal Appeal should not have gone on further and redetermined the issue.

I do need – and this is the second of the three issues to deal with the Court of Criminal Appeal’s redetermination – and this is the second of the three segments and, we respectfully submit, that the redetermination on this first category of evidence was also, again, with respect, flawed. The relevant paragraphs are at 107 to 112 of the Court of Criminal Appeal’s judgment. My focus will be on paragraph 111 which deals – or seems to deal – with, primarily, the “factor (h)”, as we have been calling it, in section 138(3).

May I respectfully remind your Honours, at this point, that the Court of Criminal Appeal did not find any error by the primary judge in relation to any of the other recordings, and the only error that they found in relation to the first recording related only to this one factor – namely, “factor (h)”. So, one would fairly be expecting that there is going to be some very important point made here in paragraph 111 about that particular factor, one would hope different from the points that were made when the Court of Criminal Appeal reviewed the judge’s determination. But, if your Honours go to paragraph 111, it is there said that:

The factor which here tips the balance –

That is, in relation to the section 138 equation:

is the difficulty of obtaining that evidence . . . without a contravention of the Surveillance Devices Act.

Can I deal, I hope economically, with a few of the difficulties which, we submit, exist in this paragraph in the Court of Criminal Appeal’s reasoning in relation to (h) and I will number them for convenience? The first is – and the relevant page number is 83, at line 50 – this is all in paragraph 111, by the way – is that the Court of Criminal Appeal there notes:

the difficulty of obtaining that evidence without more than an anonymous complaint –

We submit that that fails to take into account what the judge’s findings were on that. If your Honours go to page 39, at about line 20, it is there noted that the chief inspector of the RSPCA said that an anonymous complaint into live baiting would have been investigated. In other words, that there was little, if any, difficulty in such evidence being obtained with an anonymous complaint.

NETTLE J: Surely that is against your interest. Is it not in your interest to demonstrate that it was very difficult to obtain it lawfully? Because if it were, that would be a powerful consideration in favour of exercising the power or discretion – whichever it be – under section 138 to exclude the evidence?

MR REYNOLDS: Well, your Honour, what I am trying to do is to undercut what the Court of Criminal Appeal has said.

NETTLE J: I do understand that but I can hardly see that it avails you to demonstrate that the evidence was relatively easy to obtain lawfully. It avails you to demonstrate that it was very difficult to obtain it lawfully.

MR REYNOLDS: Well, we submit that if there was little, if any, difficulty in such evidence being obtained with an anonymous complaint, that that can fairly be taken into account in the equation, in our favour.

NETTLE J: I just begin with Bunning v Cross, from which I take all of this labyrinth to have evolved. Certainly then it was considered that if it were difficult to obtain the evidence lawfully, that was a powerful consideration in favour of exclusion. And there have been a number of decisions since the enactment of this legislation that, under the Act, that is also the position.

MR REYNOLDS: Well, your Honour, if there is little, if any, difficulty in the relevant evidence being obtained without illegality, we still say that that is – well, two things. That is a factor that can be taken into account. And second of all, I am really trying to demonstrate that what the Court of Criminal Appeal says is wrong in this particular paragraph.

NETTLE J: I will not belabour it but at the moment the Court of Criminal Appeal says that the factor that tips the balance in favour of admission is that it was very difficult to obtain the evidence lawfully, whereas one would think, upon the basis of Bunning v Cross, and the decisions which have evolved a similar consideration under 138 since it was enacted, that the converse would be the true, namely that the factor that tipped the balance against admission was that it was very difficult to obtain the evidence lawfully.

MR REYNOLDS: Yes. If it is very difficult to obtain the evidence lawfully, and as a result there is a breach of the law in those circumstances, then I agree that is a factor which can be taken into account for the benefit of the Crown.

NETTLE J: I mean, if the Court of Criminal Appeal is correct, that it was very difficult to obtain it lawfully, and everyone seems to have agreed on all hands that the Court of Criminal Appeal was correct, as was the trial judge, in saying that it was a very grave breach of the law that was involved, you have got two powerful considerations militating against admission of the evidence, have you not?

MR REYNOLDS: Yes. I do not think I can take it any further, your Honour. The other thing here is that no steps were taken by the Animals Australia to see if an anonymous complaint would be investigated by the police or the RSPCA and that is clear from the primary judge’s reasons at page 39, line 11, page 38 at lines 41 and following.

My bottom line point here is that there was not any basis for the Court of Criminal Appeal to hold that there was any difficulty in getting an anonymous complaint investigated by the proper authorities. Indeed, such evidence as relating to that question contradicted the suggestion that there was any difficulty.

The other finding I had referred to at paragraph 111 is that the Court of Criminal Appeal says – and this is the second matter – that:

there were real concerns as to the likelihood of an anonymous complaint being able to be properly and effectively investigated ‑

We say that on factor (h), the existence of such concerns is irrelevant – that is, to whether there was any actual difficulty in obtaining the evidence without a contravention. As I have noted only a moment ago, there is no basis in the evidence for suggesting that such concerns in relation to the RSPCA and the police were well founded. Indeed, the judge’s findings, having heard the witnesses, are to the opposite effect.

The other thing is that at page 38 at line 41, the primary judge notes that Ms White’s concerns in that regard were speculative. The third difficulty, we submit, with paragraph 111 is that at page 84, at about line 20, it is stated that there was a:

risk that an official investigation or even the lodgement of a complaint might lead to a tip‑off by people associated with the greyhound racing industry –

We say that has difficulties as well, because there is not any finding that complaints to the police or the RSPCA were likely to result in tip‑offs to anyone. Secondly, as the judge himself held, this is at page 39 at line 20, any concerns about Greyhound Racing New South Wales in that regard could have been obviated fairly easily by not involving that body, involving the police at a senior level, and taking steps to ensure confidentiality. So it cannot be said that such a risk of a tip‑off existed, if a complaint was made to the police or the RSPCA.

At page 84, about line 12, this is the fourth point, the Court of Criminal Appeal states that:

it might be inferred from the fact that access to the bull ring was only obtained through a neighbouring property that this would not have been available.

This, we take in that sentence, to mean evidence of activity in the bullring obtained by means of lawful surveillance. We submit that is also problematical in this context because what might be inferred, we submit, is irrelevant in the absence of an inference. And, moreover, one cannot infer simply from illegal access that illegal access was the only way of getting certain evidence lawfully. Of course, the Crown bore the onus on this, and there was not any evidence from Ms White or Ms Lynch, who were the Animals Australia operatives, no evidence from them that surveillance evidence of activity in the bullring could only be procured by illegal entry.

And I fifthly make a more general point – and I will not go into great detail about this – but in general terms the Court of Criminal Appeal simply ignores all the findings that the judge made in relation to (h). These are at pages 38 to 39 of the core appeal book. And, of course, many of these findings are made with the benefit of having seen the witnesses, these findings not having been overturned at all.

Can I conclude, sixthly, with this point, and that is when one looks carefully at this reasoning, in particular at 111, it is difficult to form the view that the Court of Criminal Appeal has applied the correct onus of proof, that is, place the onus of proof on the Crown to establish that – I will paraphrase ‑ that the desirability of admitting the evidence outweighed the desirability of rejecting it. There is not any express reference at all to onus. That, of course, is not determinative, but you get phrases like this, at page 84, line 10:

There is nothing to suggest –

Page 84, line 12:

it might be inferred –

Page 84, at line 18, that:

there were real concerns –

At line 20 on that page, there is a “risk”, and there is not really any what might be called bottom line holding in relation to factor (h). One cannot point to any really specific finding in that regard that establishes difficulty et cetera within (h) and, of course, we submit that this reasoning by the Court of Criminal Appeal is far from strong. So we submit in the end that only one error needs to be established by the appellants in relation to that reasoning and we submit there are a number of problems with the Court of Criminal Appeal’s redetermination.

Can I move, then, to the third category and, as I say, each of these categories go in this tripartite format, which is the issue of any redetermination by your Honours in relation to the surveillance evidence. Your Honours will have seen from a paragraph in our reply that we adopt a statement by her Honour Justice Branson to the effect that, if your Honours were to conclude that there were errors, your Honours would not redetermine the matter but, except in a clear case, have the matter redetermined by the primary judge.

I do understand that this cuts across, to some extent, the large and legal issue which your Honours need to deal with. But, putting that to one side and certainly on the assumption that House is the correct test, which is what we advocate, we submit that if your Honours got to the Court of Criminal Appeal’s redetermination and found that it was erroneous that your Honours would remit the matter to the primary judge.

If your Honours do come to redetermine the matter, for whatever reason, we do submit that there is a possibility within what Justice Branson said, that your Honours would form the view that this was a fairly clear case – that is, clear in our favour, but certainly not clear from the Crown’s point of view, particularly where the judge has rejected all the recordings. The Court of Criminal Appeal has rejected all of them but one, and there is not really, we submit, any reason why the first recording is any different category, except in relation to (h) and your Honours have heard me about that.

We do, respectfully, underline just a few points that your Honours may care to take into consideration if your Honours do redetermine it. Obviously, in general terms, we embrace what the primary judge has said. And also, in general terms and, with respect, we reject what the Court of Criminal Appeal has stated, for the reasons I have mentioned.

It is not disputed here that the evidence here was illegally obtained, and not just illegally obtained but there were a series of crimes. The onus, obviously, is on the Crown – as I have noted before – to justify the admission. One is not dealing just with criminal offences under the Surveillance Devices Act, there were also trespasses in relation to the – I withdraw that – in breach of the Inclosed Lands Protection Act. To some extent, that may have been lost sight of, particularly in the Court of Criminal Appeal, because that involved not only a trespass in relation to my client, Mr Kadir’s property, but also a trespass on a third party’s property, namely, the neighbour’s, and I underline that for your Honours’ consideration.

Breaches here – I do not think there is any issue – were deliberate, calculated, repeated and premeditated, and the consequence of these trespasses was that there was a breach of privacy which is relevant, as your Honours have seen under paragraph (f) of section 138(3), not only in relation to Mr Kadir but, perhaps, more importantly, your Honours may think in relation to the neighbour.

I will not dilate on this at length but a moment’s consideration by your Honours would reveal that this case is a species of a larger genus of illegal activity which may be productive of evidence for the courts. I am talking there about – and these, I suggest, are matters of notoriety – the sort of hacking that one gets, as it is called, on to telephones – mobiles and otherwise – also of computers – even ‑ ‑ ‑

KIEFEL CJ: Mr Reynolds, was the Court of Criminal Appeal’s views in relation to the invasion of privacy, which it regarded as not a factor which weighs heavily, is that part of your grounds of appeal? We seem to be expanding the territory here, a little.

MR REYNOLDS: I am coming to the issue of redetermination, your Honour – is where I am putting it – and I am suggesting that ‑ ‑ ‑

KIEFEL CJ: I should say, I assume that counsel had divided the time available today.

MR REYNOLDS: We have made an attempt at that, your Honour. I believe it will be successful – that is, in dividing today’s time between the three of us. Your Honour, we submit – again, if it comes to redetermination that the matter is at large and your Honours could give such weight to that factor as you deem fit if you come to redetermine it.

As a matter of policy, your Honours would not want to be encouraging that type of vigilantism, both the sort of vigilantism seen here specifically but, also, more generally. Not only would that condone such criminal conduct, it would also encourage vigilantism from groups within our society who have particular interests in particular sorts of crime.

You get, your Honours know, sections of the community who are particularly interested in drugs or sexual assault or what have you. If this sort of evidence is admitted, that would encourage such other vigilante groups in a variety of circumstances, not just the same as here, to go about their work in the hope that they may promote charges by obtaining evidence.

The final thing I would mention in that regard, in this section – and I will mention it as briefly as I may – I want to put a submission very briefly about the policy of the Surveillance Devices Act, which your Honours should have there. It may not be necessary to look at its text, but the point that I would make is that sections 7 and 8 proscribe both listening devices and optical surveillance.

Importantly, section 11, with very, very limited circumstances, prohibits publication of that material, and section 12 prohibits possession of that material with the requisite knowledge. Now, there is not any exception in there which deals with what one might call general investigation of various offences. The focus is rather only on the prosecution of breaches of this particular Act.

The point that I would make in short term is that the effect particularly of sections 11 and 12 is, in substance, to render any subsequent deployment of material obtained by a criminal offence, is to render the knowing, use of and dissemination of it in an investigation, as being itself a criminal offence and, obviously, your Honours would not condone that or encourage that for the future.

Can I move then to the next topic, which is the question of the search warrant evidence and your Honours see the heading on our written synopsis and can I deal briefly with the primary judge’s reasoning on that? That is to be found in the core appeal book at pages 41 and 42. There are two basic steps here. The judge, first of all, makes a finding that this search warrant evidence was obtained in consequence of a contravention of law, namely, the breach of the Surveillance Devices Act.

Your Honours will see at page 42 that it is the provision of that information:

that caused the RSPCA to apply for the search warrant and to exercise its powers –

At line 25, there is a relevant causal connection between the contraventions and the obtaining of the evidence as a consequence. At line 32, they refer to the “but for” test being satisfied and I will not take your Honours to that. The second part of the primary judge’s analysis focuses on what I will call, for shorthand, the desirability equation which is the words – the last few lines of section 138(1) – that is, whether:

the desirability of admitting the evidence outweighs the undesirability of admitting evidence –

Now, on that issue, your Honours will see, importantly, that the judge adopts the findings that – this is at page 42, at line 40:

in relation to the factors –

I underline that word and I will explain why later:

concerning the exercise of the discretion –

and he treats them as applicable:

directly applicable –

to this particular category of evidence. The way that pans out – and it is a shorthand way of doing it – is, we have submitted at paragraph 51 of our written submissions, where your Honours see, in effect, the way that reasoning works on the search warrant evidence which I do not think has been disputed by the Crown. So, that is the equation, albeit not an equation drawn out by his Honour in any detail.

His Honour – I said I would emphasise the word “factors” – we read that as picking up the various factors which end at about page 39. Your Honours will see on page 40, at about line 42, there is reference to a public policy issue which the judge then talks about. Importantly, at line 32 on page 41, says:

The result of the balancing of the factors . . . and the public policy matter I have just referred to –

We respectfully suggest that, in relation to the search warrant evidence, what his Honour is doing is picking up what he said about the factors – that is line 38, on page 42 – but not as we read it, picking up what he said about the public policy issue and he distinguishes between the factors and the public policy matter at line 32, on page 41. I will come back to that in a moment.

So, the effect of paragraph 51 of our submissions is to bottom line the various factors in relation to the search warrant evidence and that really picks up what we said about the first category of evidence at paragraph 28 of our submissions. In relation to paragraph (h) – which we did not deal with at paragraph 51 of our submissions – we submit that what his Honour has done there is to pick up the finding, in the middle of page 39 – that is, at line 32 – that:

there was some difficulty in obtaining the evidence . . . but the degree of difficulty is not easily determined –

Now, there were a number of errors found by the Court of Criminal Appeal in the judge’s reasoning. This is at paragraphs 123 to 126 of the judgment. And I want to submit ‑ ‑ ‑

EDELMAN J: Just before you move on from the primary judge’s judgment, do you say that the effect of the test that is being applied is basically a “but for” test? And if not, what else is being added to the “but for” test in relation to the search warrant evidence?

MR REYNOLDS: Well, his Honour, as your Honour will see from page 42, deals at lines 20 and following with this notion of consequence, and makes clear that there is, first of all, a consequence; that is, the evidence was:

obtained as a consequence of the execution of the search warrant –

Second of all:

there is the relevant causal connection ‑

And thirdly, for the reason he puts at line 31 on page 42, that the “but for” test was established, namely, that:

but for the contravention of the Surveillance Devices Act, no application for a search warrant would have been made and there would have been no exercise of the power –

et cetera. So in answer to your Honour’s question, he is picking up the words in section 138(1)(b), and the evidence must be obtained in consequence of an impropriety or contravention, and he is both providing an omnibus finding and also making two or three other points under that heading.

EDELMAN J: They all amount to basically the same thing.

MR REYNOLDS: I think that is right, your Honour.

EDELMAN J: So then where the primary judge goes on to say that the other factors in 138 are “directly applicable”, is that really just saying that once the “but for” type test is satisfied then one then carries over the same conclusion in relation to the factors that had been reached in relation to the surveillance evidence to a conclusion in relation to the search warrant evidence?

MR REYNOLDS: Yes. As we have set out at paragraph 51, the bottom line conclusions in relation to each of those categories.

EDELMAN J: Does that then become basically an American doctrine of the fruit of the poisoned evidence?

MR REYNOLDS: No, because we submit that he is still exercising the discretion. That is, he must be taken to have determined that the desirability of rejecting the evidence outweighs the desirability of admitting it and there is that additional component in his reasoning. It is not just once it is a consequence that is the end of the equation. That is how we, with respect, read his Honour’s reasoning. Not as endorsing, as your Honour pithily puts it, the American doctrine, which we would respectfully suggest would not apply, in substance, to the operation of section 138.

As far as the criticisms made by the judge are concerned – I withdraw that ‑ of the Court of Criminal Appeal, the judges’ reasoning, can I deal very briefly with those, as briefly as I can. At the end of paragraph 123, read with paragraph 124, what the Court of Criminal Appeal is essentially doing there is saying that the judge was wrong to apply the statements made about Animals Australia to the RSPCA because the RSPCA does have “legislative authority”, and secondly, did not have knowledge of the contravention.

Now, we submit that the judge is not saying – and his reasons would not be fairly read as saying, in effect, everything that I said about Animals Australia also applies to the RSPCA. If your Honours look at our ‑ ‑ ‑

KIEFEL CJ: Mr Reynolds, which factors do you say the primary judge took into account under section 138(3) in relation to this aspect of the evidence?

MR REYNOLDS: Your Honour, what I say he took into account is set out at paragraph 51. That is how I read his reasoning, when one fleshes it out. And, as I say, the Crown does not seem to have taken issue with that. That is the equation you get when you apply the bottom line findings made in relation to the first category of evidence ‑ ‑ ‑

KIEFEL CJ: Well, your 51(e) picks up the causal connection that the primary judge applied.

MR REYNOLDS: Yes.

KIEFEL CJ: How is that different from the US doctrine that, once evidence is tainted, all you need then is a connection with it?

MR REYNOLDS: If that is all we are talking about, on my limited understanding of the American doctrine, it would not.....but we submit that he has also taken into account the equation under the section. That is clear, if your Honours go to page 41, at about line 38, that equation is also picked up as part of his Honour’s conclusion in relation to the search warrant evidence.

EDELMAN J: That is the problem, is it not? I think the point is all your factors at 51 – that is all the exercises being performed in relation to the recordings but one does not see any of that in relation to the search warrant evidence. The conclusion is, effectively, that once those factors have been satisfied in relation to the recordings it follows that everything that is caused by the obtaining of that first category of evidence is tainted.

MR REYNOLDS: Well, your Honour, I cannot really take it any further. It is a matter of construction. We say it should be construed, as we have, at paragraph 51. It is here on page 42, and he is picking up, we submit, the same conclusion at page 41, at around line 38 also. If he picks up that conclusion – and I have to concede it is not crystal clear because of the compendious way he deals with it – but we submit that it is tolerably clear that what he is doing is picking up the equation we have put at paragraph 51 and that will include also the bottom line finding about desirability. Because if one adds that desirability component to the equation one does not, as I understand it, one is not in the same territory as with the American law which, again, as I understand it, says that once it is – I think the expression is “fruit of a forbidden tree” or something like that, or it is obtained in consequence, and that is the end of the inquiry.

That is not the end of the inquiry here because I concede, as a matter of construction of the section, one still has to go back to the ultimate desirability equation. Now, if his Honour did not do that, then his Honour would be wrong and would have erred. I concede that. But we submit that that is what his Honour has in fact done in substance at those two pages.

The second and we submit more fundamental problem with the Court of Criminal Appeal’s reasoning – that is at the end of paragraphs 123 and also at 124 – is that this passage that they are quoting from at 123 comes from the public policy discussion at page 41 of the core appeal book. And your Honours know the submission I made before, which is that that is not picked up by his Honour when he picks up at line 39, on page 42, the various factors. That is made clear, inter alia, by lines 31 and 32 on page 41. But that is, as it were, a supernumerary submission. The more basic point is that his Honour is not saying that everything he said earlier about Animals Australia applies identically to the RSPCA. That would not be a fair construction of his reasons.

The second criticism made by the Court of Criminal Appeal of the judge is at paragraph 125 where the Court of Criminal Appeal – this is at page 89, about line 40 – makes a number of points which all fall under the rubric of saying that the judge ought not to have applied the findings that he made on the surveillance evidence to the search warrant evidence.

Our general response, as your Honours will have gleaned, is that we say what we have set out at paragraph 51 of our submissions is an appropriate way of going through the exercise, together with the answers that I gave to your Honour Justice Edelman.

If I can deal very briefly with the more specific points that are made at this paragraph by the Court of Criminal Appeal, at page 89, at line 37, they suggest that the judge has stated that the surveillance evidence and the search warrant evidence were obtained in the same way, whereas the truth is that they were actually obtained in different ways.

If your Honours look at paragraph 51 of our written submissions that document does not say that the search warrant evidence – sorry, I withdraw that – that paragraph does not assert that the search warrant evidence was obtained in the same way as the surveillance evidence. It is obtained as a consequence of the surveillance evidence and it is very clear that his Honour is making that finding at page 42.

Secondly, I think, again, on page 89, at lines 45 to 48, the Court of Criminal Appeal notes that Animals Australia broke the law and the RSPCA did not, and suggests that the judge erred in not drawing that distinction. Our response is that, at pages 36 and 37 of this core appeal book, the primary judge holds that Animals Australia did break the law and there is never any suggestion in this judgment that he made any such finding about the RSPCA.

Finally, at line 40 on that page – that is, at page 89 – the Court of Criminal Appeal suggests that the judge has applied the same undesirability equation to the search warrant evidence as he applied to the surveillance evidence. When one looks at paragraph 51 of our submissions, together with my responses, again, to your Honour Justice Edelman, we say it is clear that criticism does not hold water.

The third and final error that the Court of Criminal Appeal found with the primary judge’s reasoning on this second category of evidence, is at paragraph 126 of the Court of Criminal Appeal’s judgment and they make there a couple of criticisms of the primary judge. At about line 20, on page 90, they quote the judge – it is a quote from the core appeal book, page 39, at line 25, and they say that the judge there:

treated the failure . . . to apply for a warrant to install an optical surveillance device . . . as a factor that favoured exclusion of the evidence.

Our response is that the judge did not make that finding and that his conclusion, in relation to factor (h), is as set out at core appeal book page 39, line 37, namely, that:

the degree of difficulty –

under that factor:

is not easily determined ‑

The final point about this evidence is at the end of 126, they say the judge wrongly treated factor (h) as a factor supporting:

the rejection of the search warrant evidence –

Our response is that that is not correct and that when one looks at the judge’s reasoning in relation to factor (h) and the search warrant evidence that he simply said in the end that the degree of difficulty was “not easily determined” and did not take it into account as a factor one way or the other.

The next segment I want to look at – and I am moving as quickly as I can, I think I am on track for time – is the issue of the Court of Criminal Appeal’s redetermination on the search warrant evidence and their reasoning is set out at paragraphs 127 to 130 of the judgment, particularly at paragraphs 128 to 129. I can delineate very quickly the problems, or errors, that we say exist in relation to this redetermination. The first is that there are a number of mandatory factors in section 138(3) which we have gone to and if your Honours look at paragraph 127, your Honours will not see any reference at all to factor (h) and that is mandatory.

We also say that the substance of that paragraph is to omit any mention of factor (f). I will not go through it in detail, but the judge says (d), (e) and (f), but if your Honours look at what he says, he is clearly thinking of (c), (d) and (e). We have submitted in our written submissions that the judge failed to take account of factor (b) in this paragraph and I do not press that particular submission.

The second difficulty with this reasoning that I would like to focus on is in paragraph 129 ‑ and one takes that also with what is said in a quote at paragraph 26 of the judgment ‑ where the Court of Criminal Appeal says that the approach of Animals Australia, and the approach being of doing illegal work the RSPCA work could not do legally, and then handing over the illegally obtained evidence to the RSPCA.

They say that approach is undermined by rejecting all the recordings except the first. We respectfully submit that if you are going to receive into evidence the first recording, plus all of the search warrant evidence obtained by the use of all the recordings – because all the recordings were used in order to get the search warrant – then that validates Animals Australia’s approach. It does not undermine it, and it may not undermine it even one whit. It basically gives them everything that they want. They get good footage on the first recording, and then everything else is admitted as a consequence. They would be very happy with this result and would not feel that their approach had been undermined at all.

A similar point is made, this is the third point in paragraph 129, at page 91, line 40, where the Court of Criminal Appeal says that only admitting the first recording “diminishes” any “curial approval” of the illegal conduct by Animals Australia. That is, admitting the first recording and excluding the others.

We submit that if one is going to admit the first recording and/or the evidence obtained on a search warrant consequential on all of the recordings, plus all of the search warrant evidence, that that gives substantial curial approval to the illegal conduct of Animals Australia.

The fourth point is at the end of paragraph 129 at page 91, line 28, where the Court of Criminal Appeal refers to it being:

undesirable if a practice were to develop –

where vigilantes obtains evidence illegally and then pass it on to the authorities to garner other evidence. We submit that that fails altogether to take into account the obvious point that the effect of this decision is positively to encourage this kind of vigilante behaviour and the development of such practices.

The only take‑out, as it were, for budding vigilantes is that it is probably a good idea to make your first item of criminality effective and good – I have put that badly. What I mean is, you have got to do it well the first time, but you can be sure that any evidence that is obtained consequently, not only on that first piece of criminality, but everything else that you obtain illegally, will also be admitted into evidence.

In the second last line, and this is the fifth point in paragraph 128, the Court of Criminal Appeal takes account of legislative policy, but we submit that it was more important that they take into account the clear legislative policy of the Surveillance Devices Act. I took your Honours to that earlier, and in the interests of time, I will not develop that further other than to say that the clear effect and policy of that Act is that this form of illegal surveillance is not to be used generally by law enforcement when they know that it has been obtained illegally, because to possess and communicate such material, to deploy it within law enforcement would itself be a crime if one makes the supposition that they actually know that the material has been illegally obtained.

The final two points are these. Sixth, if one looks particularly at page 91 ‑ and I will not go through the detail in the interests of time ‑ we again submit, as we did in relation to the first category of evidence, that their Honours are not placing the onus on the Crown on this desirability equation. They obviously do not refer to that in express terms, but the use of words like “diminishes” at line 40, and “undermines” et cetera, and line 32 talks about “potential”, this is not the language of a court that has, as its focus, that the Crown needs to establish these things, and bears the onus in that regard.

The final point I would make, the seventh, if you like, is in the fourth line of paragraph 129, it is stated that the RSPCA acted lawfully. The same point is made in the third last line of paragraph 128, where it is said that the RSPCA:

did not contravene the law –

Now, there are no reasons given at all for that conclusion and it was, as your Honours can see from earlier in the Court of Criminal Appeal’s judgment at paragraph 7, there was a substantial issue about that matter.

I am not going to, your Honours will probably be pleased to hear, go through all of the evidence about that question, but there needed to be, we submit, a fairly thorough examination of that question because of the fact that when this surveillance evidence was handed over to the RSPCA there were – I will not take you to it, but this is clear from the Grech appellant’s further materials, particularly at page 153 to 154 ‑ there were at least three RSPCA officers who were shown all this material and there was not – only one of them was called and he said only at the top of 154 that he “had no knowledge” before he had been contacted about all of that. So there was quite a – it was not put to him, I should state, in cross‑examination that he did know but all of these other people were not called.

There was a fairly clear difficulty about whether or not one can formally make an affirmative finding in favour of the Crown that the RSPCA had not contravened the law. I have perhaps put that all too quickly. I could go on for half an hour about it. But the point is that they needed to do more than simply announce that there had not been any contravention of law, they needed to go through the material.

NETTLE J: What, to prove that they were not complicit in Animals Australia’s activities or simply to prove something else?

MR REYNOLDS: Well, your Honour, if they wanted to take that into account on this desirability equation and have that as a factor in favour of the Crown that, at least, the RSPCA did not contravene the law and had that as a finding made in their favour on that equation ‑ ‑ ‑

NETTLE J: There was no suggestion, was there, that they were complicit in the Animals Australia activities?

MR REYNOLDS: No, not prior.

NETTLE J: They just were presented with material and then acted upon it lawfully?

MR REYNOLDS: Yes. Here you are, here is the surveillance material, and when one looks at it, one can see ‑ ‑ ‑

NETTLE J: What it is.

MR REYNOLDS: ‑ ‑ ‑ what it is. One would reasonably infer that they knew what it was.

NETTLE J: Yes.

MR REYNOLDS: Material obtained by these vigilantes and not obtained with a search warrant.

NETTLE J: That does not make them act unlawfully.

MR REYNOLDS: Well, under sections 11 and 12 ‑ ‑ ‑

NETTLE J: You are talking about possession and publication?

MR REYNOLDS: Possession and publication. So the deployment within law enforcement ‑ generally, there is a specific exception in relation to investigation of an offence under the Surveillance Devices Act, but the policy, I have submitted before, the Surveillance Devices Act, is that the legislature is adverted to the issue of when that should be legal and when it should be illegal or criminal and it is only in very limited circumstances, which do not include the RSPCA’s actions here, which would be outside the purview of the criminal law.

NETTLE J: Well, fair enough, but that is not dependent on evidence or them calling people to rebut any inference that might otherwise arise. It is just a question of construction.

MR REYNOLDS: That particular issue, yes.

NETTLE J: Is there anything else?

MR REYNOLDS: Well, your Honour, as I say, it would be possible in the light of the evidential material that was before the court to suggest, at least, two things – well, three. The first is a submission I have already made that that finding in the Crown’s favour should not have been made as a matter relevant to discretion.

Second of all, and more generally, we would submit, or could submit, that it is clear from the evidence, drawing relevant inferences – your Honours know about Jones v Dunkel and that kind of thing, Ferrcom we have referred to in our submissions – that the RSPCA must have known that they were dealing with surveillance material obtained illegally.

KEANE J: How can you say that if it was never put to them?

MR REYNOLDS: Well, your Honour, I have been, with respect, quite candid about that to this extent. The only witness who was called was Mr O’Shannessy, and it was not put to him. I agree with that and I said that. The only evidence that he gave – and this is Kadir, appellant further materials, at the top of page 15, is that prior to being contacted he had no knowledge. He does not say, even after I received all this material, as set out at page 133, I had no idea this was obtained in breach of the Surveillance Devices Act.”

Anyway, the way I put it, your Honour – I have tried not to get into a kind of a deep evidential analysis. I have kind of parked that to one side, so your Honours can avoid that. I make a simple point, which is if this factor is going to be taken into account to the advantage of the Crown and that a finding is made that there was no contravention, then one would at least expect that this issue had been ventilated with proper reasons rather than just the bottom line conclusion. I see the time, your Honour.

KIEFEL CJ: Yes, that may be a convenient time. The Court will take its break.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11:34 AM:

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, I am not going to be very much longer. I will be wrapping things up fairly shortly. I am at paragraph 12 of my synopsis which looks at the issue of redetermination in relation to the search warrant evidence and what I have to say about that is fairly brief. We, basically, adopt what the judge said and, as your Honours will have inferred, we respectfully reject what the Court of Criminal Appeal has said. Can I just briefly stress a small number of things? One, is that admission of the evidence would, we submit, in substance condone Animals Australia’s criminality.

Next, that it would encourage conduct like that by Animals Australia and other vigilante operations to do what Animals Australia did and do it for their own purposes, such as phone and computer hackers, as I said previously. Finally, I remind your Honours, in this context of what we said about the policy of the Surveillance Devices Act and it being inconsistent with that policy to allow deployment of this sort of material by law enforcement otherwise than for a prosecution – to investigate a prosecution – under the Surveillance Devices Act. So, that deals with that point.

If we move, then, to the final category of evidence which is the admissions evidence and, again, putting the submissions under three different headings. Can I look briefly – very briefly – at the reasoning of the primary judge? He deals, first, with what I will call the section 138(1)(b) issue – that is, whether the admissions evidence was obtained in consequence of the contravention of the Surveillance Devices Act and your Honours will see his findings to that effect on page 43, particularly at lines 20, 22, and 38. Again, the “but for” test is satisfied.

Secondly, he addresses what I have been referring to as the “desirability equation”, under the last few lines of section 138(1), and I refer your Honours, in that regard, to page 43, at line 29, where your Honours will notice that he adopts the reasoning that he gave in relation to both the recordings and the search warrant evidence, not just the surveillance evidence.

One can summarise the primary judge’s reasoning on the admissions evidence by ‑ if I take your Honours back very briefly, I will not take you to the text, to paragraph 51 of our written submissions. And, in effect, if you were to read “admissions evidence” instead of “search warrant evidence” then you would get the relevant equation. So that is the substance of his reasoning.

The challenge that was made ‑ and I am moving on to the errors now found by the Court of Criminal Appeal ‑ the challenge that was made in the Court of Criminal Appeal – and this is clear from our submissions at paragraph 21 subparagraph 3, your Honours will see that the issue that was raised is whether, within the meaning of section 138:

the admissions were obtained “in consequence of a contravention of –

the Surveillance Devices Act, et cetera. The Court of Criminal Appeal does not, as we read their reasons, uphold that particular ground of appeal. Can I refer your Honours in particular to paragraphs 139 to 140 of the judgment. What they find is something different, which is – and there is a hint of it at page 86 of the core appeal book, dealing with an earlier issue at about line 38, they say there that:

as discussed below the degree of connection between the obtaining of the evidence and the contravention of Australian law can be significant.

What they are referring to when they say “discussed below” is, we submit, what is said at page 95, at about line 22. What they are saying in substance there is that the judge made a sort of House v The King error by failing to take into account a relevant matter, namely, the degree of connection, the degree of connection being, they say, “bare” or “tenuous”. So that puts things slightly differently from the way the case first of all was put in the notice of appeal and also the way it was put before the primary judge and the Court of Criminal Appeal.

The difficulty is that – if one is going to put – that submission was not put to them, but if one was going to – if that had been put in that form by the Crown, it would have run into the difficulty that one cannot assert that a judge failed to take into account a relevant consideration if it was not put to him in that way. Here, certainly, there was a challenge as to consequence – as to the relevant connection – but the Crown did not say, even if we lose on the relevant connection, we also say that the degree of connection is relevant as a general factor on the desirability equation. We also say – and I will not go on because we have said it in our submissions – that the point about this being a bare or tenuous connection is not correct and, essentially, we adopt what the judge said in that regard.

The other aspect of the Court of Criminal Appeal’s judgment where they appear to have found error by the primary judges is at paragraph 141. Can I make three brief points there? At line 16, on page 95, they say, in effect, that the judge cannot say that the admissions evidence was obtained in the same way as the surveillance evidence. Our response to that is that the judge just does not say that. If one looks at paragraph 51 of our submissions, and makes the relevant change, then what the judge finds is that the admissions evidence is obtained as a consequence of the surveillance evidence, not in the same way as the surveillance evidence.

On page 95, also, at line 18, the Court of Criminal Appeal says that the judge cannot say that the admissions evidence was procured by “direct illegality”, unlike the surveillance evidence. Our response is simply that the judge does not say that. As we have said in paragraph 51, mutatis mutandis, the judge finds that the admissions evidence was procured as a consequence of the surveillance evidence, not by direct illegality.

Thirdly, on the same page, 95, at line 23, the Court of Criminal Appeal says that the judge cannot say that:

the undesirability of admitting –

the admissions evidence is:

the same as the undesirability of admitting the surveillance evidence.

We say the judge, again, does not say that. If one looks at the equation we have set out in paragraph 51 of our submissions – again, making the change admissions evidence instead of search warrant evidence – then the undesirability equation adopted by the judge for the admissions evidence is different from that adopted in relation to the surveillance evidence.

Can I note, because I will be coming back to it very briefly, that if your Honours look at line 19 on page 95, it is suggested, “There was no direct . . . impropriety”. Now, that is not right, and I will go into that in a moment. There was clear impropriety by the – within section 138(2)(b) of the Evidence Act, because there was a false statement made by Ms Lynch in speaking to Mr Kadir, on her version, and that is that she posed as a potential client of Mr Kadir – that being a form of false statement which was, as it was said by the judge in the Court of Criminal Appeal, a ruse or a subterfuge, and it would likely cause him to make an admission ‑ ‑ ‑

KEANE J: Does that mean that every sting operation, every pretext phone call ‑ ‑ ‑

MR REYNOLDS: No, your Honour.

KIEFEL CJ: ‑ ‑ ‑ is excludable under section 138?

MR REYNOLDS: No, I do not say that, your Honour, and your Honour knows that I could not. I am just saying, this is part of the equation – is that first of all the judges have made an error at line 19. But we simply ask that that be taken into account as part of the panoply of factors that is taken into account. I do not suggest anything contrary to what your Honour is putting to me. With respect, your Honour probably knows I surmise that that submission would be untenable.

Can I move then almost to the end, and that is to the issue of whether there are errors in the CCA’s redetermination in relation to the admissions evidence. If your Honours go to paragraph 142, there is almost nothing
there, with respect. They say, well, see “the above analysis”, which of course was directed or supposedly directed to formulating error in the primary judge’s reasoning – the effect of paragraph 142 is that none of the mandatory relevant factors that are to be found in subsection (3) of section 138 are taken into account.

Secondly, as I have just noted, there is a clear finding – an error at line 19 on page 95 about there being no impropriety. And also at the end of paragraph 141, the Court of Criminal Appeal says that there was no approval of the unlawful conduct, or encouragement of future illegal conduct. That does not take into account that if one bears in mind that there was improper conduct here, for the reason I have mentioned, namely the subterfuge, to admit this evidence would, we submit, both condone that sort of conduct and also encourage such action in the future. Again, we say that there has not been any account taken, certainly not expressly, of the onus of proof that was on the Crown, but in the interests of time, I will not go into that.

Contrary to the finding of line 35 on page 94, we submit that Ms Lynch was in a better position to interrogate Mr Kadir as a result of obtaining the surveillance evidence. If one compares the position, for example, of someone wanting to cross‑examine Mr Kadir, one would want to view the surveillance evidence in order to be able to ask him various questions about his activities. That made it easier for her and she was, therefore, in a better position to ask him those questions. Finally, we submit, that the relevant connection was not tenuous.

Can I deal with a final issue which is the redetermination. If your Honours get to that in relation to the admissions evidence, the main point that I would stress here is that one is dealing with both an illegality, as the judge found, but also the impropriety, which I have mentioned in the last few minutes, and the admissions evidence was obtained as a direct result of the lies and subterfuge of Ms Lynch. The admission of the evidence would also condone both the original illegality and also the impropriety and would encourage this kind of subterfuge in the future.

EDELMAN J: Your primary submission, is it not, is that the whole lot ought to go back to the primary judge for redetermination if there has been an error by the CCA?

MR REYNOLDS: Yes. We adopt the statement made in our reply by Justice Branson in that regard. If the Court pleases, those are my submissions.

KIEFEL CJ: Yes, Mr Game.

MR GAME: Somewhere in my travels, I have lost my glasses. Anyway, I will do my best. If the Court pleases, you will see from our outline – actually you will see from my outline, but I will not ‑ ‑ ‑

KIEFEL CJ: Do you want a moment to try to find them?

MR GAME: I might just see if I can find them, your Honour.

KIEFEL CJ: You certainly had them this morning before the break.

MR GAME: I had them when I walked over here. They were in my case. That should not be recorded.

So, your Honours, the structure of our submissions, by the time agreement it is intended I finish by lunchtime, and I will endeavour to do so. I will touch only briefly on the circumstances and focus my attention on the nature of the review. That is, strictly speaking ‑ ‑ ‑

EDELMAN J: Mr Game, before you start, can I just raise one point with you.

MR GAME: Yes.

EDELMAN J: It is only because it is not in your submissions, and it may be a matter that you might wish to consider over lunch, and certainly the respondent may wish to consider it as well. And that is that the central issue about which you are making submissions may, on one view, be said to have some synergy or overlap with the same type of issue that is considered in the context of abuse of process.

The relevance of that is that in Ridgeway, this Court treated the power to exclude evidence that is illegally or improperly obtained, and the power to order a permanent stay based on evidence that is illegally or improperly obtained, as a distinction that is of no practical importance. Then one goes to the line of authorities in both the civil and the criminal context that have treated abuse of process as a decision akin to a discretionary decision, and to follow the same pattern. Now, a number of judges, particularly myself, have raised questions about whether that approach to abuse of process is the correct approach but there is that line of decisions in relation to abuse of process.

MR GAME: So, your Honour, I can deal with it, but what we do say is that abuse of process picks up the same principles as a section 138 determination.

EDELMAN J: Yes.

MR GAME: That is to say, it is a true discretion. And it comes up in a couple of cases I am going to take you to shortly. So I will actually – I appreciate your Honour raising that with me. I think I can probably ‑ ‑ ‑

EDELMAN J: So it will be your submission, then, that the respondent needs to reopen or to invite, to the extent that it was part of the ratio of the decision in cases like Batistatos or, in the criminal context, a case like Carroll, that approach that was taken in the abuse of process context?

MR GAME: Well, I had not thought about it that way but what I do say is that there is a thick seam of authority at common law that was fed into section 138 deliberately and that all treated what was called the Bunning v Cross discretion as a true discretion and, interchangeably, in a sense, the question of review by appeal courts of determinations about abuse of process.

That comes up quite – yes, your Honour, but I had not thought about it in terms of actually overturning specific cases. But I had thought about it in terms of the way in which this issue has been dealt with by this Court. So the answer is yes, but I had not specifically kind of thought about it in terms of overturning specific authorities.

I will explain to your Honours shortly how we see the thing. Of course, this is the notice of contention, but it does make sense for me to deal with this issue in‑chief, and I propose to read the whole of my argument, apart from a couple of matters I want to deal with in addition to Mr Reynolds’ submissions on the facts.

So the first thing is this. If you look at our outline, one has to commence with the nature of the appeal. Now, we and the Crown are agreed on two crucial things about this, I think, and they may be the two crucial things that are needed for this appeal. One is that an appeal under section 5F is error based – that is to say, it is not a de novo hearing. Two, that the nature of the review depends on the decision appealed from. And we take that from DAO, which is in joint book of authorities D. If I can take your Honours to that straight away, and the passage is in D, at page 574, actually, in Justice Allsop’s judgment.

If one looks at paragraph 83 there is a discussion about a line of authorities in New South Wales in which there is a dispute about the nature of the review under section 5F and that is in ‑ ‑ ‑

GORDON J: I am sorry, what page is this in DAO?

BELL J: If one is looking at the authority and not the ‑ ‑ ‑

MR GAME: Page 585 in the authority; my apologies, your Honour. Page 585 to 586 in the authority, paragraphs 83 to 84. That is a line of authorities in which there was a divergence of opinion about the nature of the appeal and, although it was not kind of finally resolved by DAO, that is the question that was being addressed. And the answer to the question, we submit, is that which Justice Allsop gives at paragraph 84, namely, that it depends on the nature of the thing that one is appealing from. One needs to be also mindful in this whole discussion that these are only interlocutory appeals, and if one kind of granted something substantially more in a 5F appeal, then there would be a real disharmony with final appeals because people would be practically obliged to bring 5F appeals if they had larger rights.

BELL J: Can I raise one matter ‑ ‑ ‑

MR GAME: Yes, certainly, your Honour.

BELL J: ‑ ‑ ‑ arising out of that, Mr Game. Whilst it may be, undoubtedly, true to say that the nature of the appeal depends on the decision that is the subject of it, when one looks at interlocutory appeals 5F(3A) is singular in conferring on the prosecution a power to appeal against an evidentiary ruling. And, perhaps on one view, one could say that all evidentiary rulings give rise to the same form of appeal and in that connection one might note an odd thing about this form of interlocutory appeal is that the right only arises where the evidentiary ruling deprives the prosecution of critical aspects of the case.

MR GAME: Yes.

BELL J: The ruling must substantially weaken the prosecution case and, as a matter of practical reality, it would be the case that frequently a ruling adverse to the prosecution that is tested under 5F(3A) has the effect that if the ruling stands, the prosecution does not have a case that will get to the jury.

MR GAME: True, everything – yes.

BELL J: In those circumstances one is looking at a peculiar form of interlocutory appeal on evidence that is confined to evidentiary rulings that have that effect.

MR GAME: Yes, your Honour. But what I said before was actually not about that kind of case. It was about people appealing things like a change of venue or ‑ ‑ ‑

BELL J: Plainly practice and procedural rulings are different.

MR GAME: Yes, but also the kind of weird thing about the whole jurisprudence was that these provisions were created for the purposes of dealing with the numerous stay applications that were being brought in New South Wales ‑ ‑ ‑

BELL J: Yes.

MR GAME: ‑ ‑ ‑ in the face of lengthy delays in the District Court. But my point about – I would submit that (3A), in terms of the nature of the appeal, should not be distinguished from the other provisions. What happened in 1987, the legislation is enacted absent (3A), 2003 the (3A) comes in and the only other amendment is the addition of the world “ruling” in subsection (5). So (4) and (5) are the kind of – or particularly (5), they are the driving provisions about which one draws a conclusion about the nature of the appeal, and they are the same.

But, moreover, where the decisions have moved from is the idea that Justice Hunt endorsed in BWM, that it was an appeal stricto sensu, in effect, but that position is no longer maintainable. But what BWM did establish is that error must be established and we say that much, at least, must flow in respect of all of it, including (3A). And then one is driven to ask oneself, what is the nature of the error?

Now, the idea that the Evidence Act necessarily produces a different outcome is, in my submission – that is to say a uniform approach – things like public interest immunity and discovery are dealt with in the Evidence Act, they are dealt with in the admission, but they also touch on matters of procedure, so it ‑ ‑ ‑

KIEFEL CJ: Mr Game, if it is the nature of the decision which informs the operation of subsection (3A) ‑ ‑ ‑

MR GAME: Yes.

KIEFEL CJ: ‑ ‑ ‑ is not the focus really on the Evidence Act ‑ ‑ ‑

MR GAME: Yes, your Honour, absolutely.

KIEFEL CJ: ‑ ‑ ‑ rather than this subsection?

MR GAME: That is all I am trying to – all I am trying to do is say that is where you end up, is in – you end up in the Evidence Act.

KIEFEL CJ: Yes.

MR GAME: But just before I leave this very interesting conversation about Dao, if I could just refer you to a couple of passages. If you look at page 645 of that book, in Justice Gleeson’s judgment in BWM, which just happens to be Brian William Maxwell, which is Maxwell when it came back from the High Court, this Court, page 645, his Honour observes that the decision, if you have a rehearing, then the nature of the appeal may well be driven by the nature of the ruling which is appealed against.

BELL J: Yes.

MR GAME: And that is the point he makes there. And with respect to Justice Edelman’s question to me, if one goes to page 568 in this book ‑ ‑ ‑

BELL J: Can you give me the report?

MR GAME: I am sorry.

BELL J: Sorry.

MR GAME: I will not do it again. Page 261 of 91 A Crim R, third paragraph. I apologise, your Honour:

The nature of an appeal by way of rehearing was explained by Mason J in . . . The question whether an appeal is by way of rehearing is not identical with the question whether, on an appeal . . . is either entitled or obliged to exercise its own discretion.

So his Honour is there focusing on the nature of the ruling appealed from. But, if one goes back in DAO in the report to page 580 of the report, which is page 568 of the book, if one looks at paragraphs 57 to 59, Matovski is about a stay application and it is a question about factual errors in respect of a stay application. So, the language used at the top of 581, or 569 of the book, is the language of House v The King. If you:

took a particular view of the facts after hearing detailed evidence and argument and it seems . . . which was at least open to him. The case is not one –

et cetera. Then, Chief Justice Spigelman observes in the following paragraph that that is very:

closely analogous to the House v The King –

So, there is a symmetry there in terms of approaches.

BELL J: Can I just raise this with you?

MR GAME: Yes.

BELL J: Is the test under 5F(3A) different to the test that the Court applies following conviction to the determination of a ground of appeal that challenges the admission of evidence still legally obtained upon a contention that it was wrongly admitted and there has been a miscarriage of justice?

MR GAME: We would say it is identical.

BELL J: So that the correct approach for the Court dealing with a conviction appeal is to say, notwithstanding that we would have determined that the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence obtained in that way.

MR GAME: Yes.

BELL J: Nonetheless, it was open to the trial judge to come to the contrary view and admit it and to conclude, therefore, that the appeal should be dismissed, assuming that is the only ground.

MR GAME: Yes, yes, subject to the language of the proviso – so subject to the separate question.

BELL J: The proviso is not engaged here.

MR GAME: Its wrong decision of law is the provision that is engaged.

BELL J: There is consideration, of course, of miscarriage which, I suppose, muddies the waters somewhat.

MR GAME: It could do. Yes, I agree with your Honour on the fundamental point. That is exactly how we would put it.

BELL J: So that it would be appropriate for the appellate court to say, notwithstanding we are unanimously of the view that we would have carried out the 138 exercise and reached the contrary conclusion, since it was open to the trial judge to come to a different view we will dismiss the appeal.

MR GAME: Yes, and also we would suggest that there should be some symmetry in terms of how one deals, for example, with judge’s findings in a judge‑alone trial so that Filippou would be kind of that discussion about those kinds of reviews – there would be some symmetry there as well. But could I just say this: the language of Warren v Coombes has never entered into the conversation about discretionary judgments on review.

But when one comes to the Evidence Act there are some quite different kinds of decisions. Even a decision about hearsay could involve a disputed question of fact, so whether something was unintended implied representation might depend – because there is an onus – on some evidence saying “must take John to such and such” was unintended, is actually something about which you could have a triable issue. And the language of Warren v Coombes has never entered into that discussion, which is curious when, for example, the very same evidentiary issues can arise in the Court of Appeal where you have a different type of appeal. So it has got to be both. One has to understand both, but in the context of ‑ ‑ ‑

BELL J: It may be, Mr Game, that the answer is that, in the matter that I posed, ordinarily the focus of the Court would be on a consideration of miscarriage of justice and in the way – and it may be that that is the answer to the distinction in relation to an appeal from a conviction.

MR GAME: Yes.

NETTLE J: There would be no miscarriage of justice if the Court of Criminal Appeal were of the view that, despite the fact that it took a different view as to the admissibility of the evidence, accepted it was within the range open to the judge to conclude.

MR GAME: That is right, yes. Well, the judge was entitled to disbelieve the evidence which suggested that something was an unintended representation for the purposes of ‑ ‑ ‑

NETTLE J: It is odd, is it not, that the Court of Criminal Appeal should be saddled with a decision with which it disagrees that puts a man in gaol?

MR GAME: Yes, I see the problem, your Honour, but in a way section 138 – it may be best to focus on 138 because 138 raises very special issues that are, except for public interest immunity, unlike other provisions in the Act.

NETTLE J: Is it discretionary or just appellate deference to the considerations involved and therefore reticenced in reaching a different conclusion?

MR GAME: Well, we say there is a true discretion in section 138 and I will ‑ ‑ ‑

BELL J: If one goes back – just looking, for example, at the reasoning, I think it was of Chief Justice Gibbs in Maric v The Queen – dealing, admittedly, with a decision involving a failure to discharge a jury, I think. But, the point that the Chief Justice was making was, on conviction, the appellate court is not concerned to look to the rightness or wrongness of the decision whether to discharge the jury but, rather, to whether a miscarriage of justice has occurred by reason of the failure. And, in a sense, that is the matter that I am – it seems to me difficult to accept that the appellate court might come to a view that evidence was wrongly admitted under 138, having regard to the way the Court would exercise the powers that are conferred, and yet stay its hand following a conviction.

MR GAME: I accept that, your Honour. But, what I was trying to say about 5F is, what one gives in (3A) really has to apply to all of it because there are leave provisions that apply to the accused and they need leave. The Crown does not need leave and, as I said at the beginning, the driving provisions are the same. So, it is difficult to see why I admit the evidence as opposed to I reject the evidence should found two different criteria for review – one for the Crown on a 5F(3A) and a different, more limited one, for an accused person on a section 6 appeal. That just cannot be correct, in my submission.

NETTLE J: Except that he gets a second go on appeal against conviction.

MR GAME: Yes, but an accused person cannot appeal a ruling on evidence, so that is specifically excluded. So, an accused person cannot do a section (3A) appeal. That is just for the Crown.

NETTLE J: I appreciate that. But, on appeal against a conviction, assuming he loses an interlocutory appeal and the evidence goes in, he gets the go then.

MR GAME: He does.

NETTLE J: Which the Crown does not, of course.

MR GAME: No, no, but what I am saying is that that review of a judgment – admit or not admit – should be according to the same criteria – whether it is the section 5(3A) appeal or a section 6 appeal – depending on whether it is the accused or the Crown. One could not have a different standard of review because that would work an injustice to the accused – that one was reviewing, in effect, unfettered the decision to exclude, but one was placing fetters on the nature of the appeal, the decision to admit, and that does not seem to be feasible.

BELL J: You accept that there is no appeal available to the accused in relation to evidentiary rulings.

MR GAME: That is right, absolutely.

BELL J: It is a bespoke provision.

MR GAME: Yes. Anyway, so whether or not one gets there by one means or another, we do submit that one has to, ultimately, look at the nature of the provision appealed from. We set out in paragraph 4 in – and I will not read them out – the specific points that we make and I have made some of those points now. So, if one comes to section 138 and I wanted, actually, to begin by taking you to something which I had provided to the Court this morning which is the relevant part of Report No. 26.

So, your Honours, if one looks at Report No. 26, and this is the 1984 report, if one looks to paragraph 961 at page 532, one sees the reference to the “American approach”. And then if one turns over to 964, one sees that the question is resolved by saying that “A discretionary approach seems the most appropriate”. So that the fruit of the forbidden tree is – it is still a factor that gets considered, it is just not decisive. And then we see a little bit further down under:

Guidance in the Exercise of the Discretion. One method of minimising the inherent difficulties in the exercise of discretionary power, and, to a certain extent, of avoiding the danger of too great a disparity between legal decisions, is to indicate precisely the nature of the conflicting interests.

So it is deliberately a structured discretion. Then, and this picks up the point that your Honour Justice Nettle raised this morning about the ease of compliance. If one looks at page 535, (e) it says, “Seriousness of Misconduct”. It says in the second sentence:

Similarly, there is a greater public interest in deterring serious misconduct than in deterring minor, technical breaches.

And that kind of feeds into the ease of compliance. Towards the bottom of the page:

Evidence that it would have been easy to comply with legal requirements or other standards of behaviour may, depending on the circumstances, either support or detract from an argument for exclusion. A deliberate ‘cutting of corners’ would support exclusion, particularly from a deterrence perspective. But failure to comply with a rule which could have been simply complied with may suggest that the rule was trivial and that therefore the misconduct was not serious.

And if you look at footnote 32, that same point about it looking both ways is made at page 79 in Bunning v Cross, which I will not take your Honours to.

So in the context of this case, it would be very difficult for Ms White to have obtained the evidence by way of Surveillance Devices Act. On the other hand – and that favours exclusion. But on the other hand, it would have been quite easy for proper investigators to have the anonymous complaint brought to their attention, and that favours admission, because she was trying to explain her conduct on the basis that it was too hard to get the evidence otherwise.

So although it cuts both ways, in this case we say it cuts very strongly in favour of exclusion when you get to the point that Ms White’s – the credibility of Ms White on that critical issue went, whether it be disbelief or unreliable. That part of her evidence was not accepted. So that is how we say that works. Then if we just finish off in the relevant – 966 picks up “Consequentially Discovered Evidence”. We see “could be excluded applying the Bunning v Cross discretion” and one sees there that there is specific reference to – so, yes, it can be excluded, but there is no rule that it must be. Then we come to the end, and 968 refers to judge’s discretion and:

This judicial restraint is understandable.

And so I will not read that out to your Honours. Then, again, without going through the cases, in Ireland, which was really the start of the strong development of Bunning v Cross – Ireland, Bunning v Cross, Cleland were all regarded as the exercise of a judicial discretion. And whether that is by way of judicial restraint or otherwise, it was treated as if the rules in House applied. And we would say that if House applies it is kind of going to have to apply to the whole thing, including the factual findings. It would be difficult to say that a different standard applied to different aspects of the ruling.

EDELMAN J: You have not given us page 261, but on 261, paragraph 473, there is a statement that:

The question on appeal is whether the discretion was reasonably exercised, taking into account all relevant factors and ignoring irrelevant ones. The appeal court does not re‑consider the question and exercise the discretion itself.

MR GAME: Is that Bunning v Cross, your Honour – I missed that.

EDELMAN J: I think this was ‑ ‑ ‑

BELL J: The ALRC.

MR GAME: The ALRC, sorry. I only had volume 26. I do not have that; I will get it at lunchtime. That must be in ‑ ‑ ‑

EDELMAN J: It is paragraph 473 of page 261.

MR GAME: So, your Honour, that must be in the report 38, because there is not that paragraph in 26 that I can see. I will look and see if we can get the relevant part of 38 at lunchtime. So if I come, then, to the provision, section 138, which is in your volume Part A. Now, first of all, one sees that a decision has to be made about whether or not the evidence was improperly obtained or in contravention of an Australian law and that can involve, and it does involve frequently, disputed factual issues – in fact, almost entire trials about the issue. So that involves potentially both findings of fact and assessments along a spectrum about conduct.

Then (b) picks up in consequence ‑ so (b) does contemplate linkage which is not direct. Now, whether or not it is a “but for” test, there is a nominative aspect to it, which looks to the question of responsibility but that really resides in the discretions outlined in subsection (3). So, yes, it would appear to be a “but for” test at that point but that is not all there is to it. That is to say, the idea of responsibility for the conduct is not – so that the fact that the warrant was lawfully obtained is a relevant circumstance, clearly enough, but it is not the only circumstance.

If one has a brief look at subsection (2) – and this is about admissions – it actually includes evidence obtained in consequence of the admission. So that is derivative use and so derivative use is specifically provided for in subsection (2) with respect to admissions. Subsection (2) picks up earlier discretionary rules – in fact, some of them statutory – about both importuning inducements and false statements which had separate statutory reflection.

So, if one goes back to subsection (1), the onus shifts at the point of “is not to be admitted”. And then one has the weighing – I will come back to the weighing – but, we say, the weighing actually is of incommensurates because you are weighing how important against how bad, in a sense and those things are things that cannot be directly weighed. There has to be an instinctive aspect to that judgment. It is very difficult to actually articulate it. But the legislature has gone to the extent of saying – we saw from the Report 26 – these are the matters that you must take into account in subsection (3).

When one comes to them, the first is probative value. Now, probative value is like the decision in Bauer in respect of section 97. It is something that can be measured in the context of the case, as can the importance of the evidence in the case. But, curiously, the importance of the evidence might in a specific instance – and the legislature does not define it – it might cut both ways. So, if there was a practice of, in cases where there was no evidence, cutting corners, then the cutting of the corners to prove the case might actually be a factor attracting exclusion. So, there could be a case in which the importance of the evidence would weigh in favour of exclusion.

KEANE J: Mr Game, when you are talking about cutting of corners, you are talking about cutting of corners by agents of the executive – agents of the prosecuting authorities. All of the discussion in the Law Reform Commission paper you have given us is about a discussion of an exclusionary rule directed to disciplining the police.

MR GAME: It is not limited to State authorities.

KEANE J: Is it not?

MR GAME: No, your Honour.

KEANE J: I mean, I am talking about the discussion. I am not talking the scope of the Act.

MR GAME: Yes, I accept the discussion is about – I accept that.

KEANE J: The discussion about cutting corners is all about prosecuting authorities, is it not?

MR GAME: No, your Honour, because often enough there will be somebody who – say somebody behaved improperly at an antecedent point in the investigative process but is not even the investigative agency and is not the prosecution – so a policeman giving information to the ACCC about a cartel case that then gets prosecuted, knows that the ACCC or the DPP necessarily did anything improper, but you have an antecedent impropriety and in consequence of – in subsection (1)(b) – picks up the idea of things being more distant. So, there is nothing in subsection (3) that does or excludes the operation of these provisions to what could be described as State agencies. That would be an unreasonable limitation on the operation of the provision.

But I do accept that the discussion in – the discussion in the report is about investigative agencies because that is obviously the principal focus of it. But this case is an extreme case in a way, but it is – what the judge did with these provisions, in our submission, particularly in respect of the surveillance material, was entirely conventional and appropriate exercise that was the proper and the only approach that he could take to it, that is to say, weighing the various considerations. So, yes, I accept that the focus of it is on investigative agencies, but that is not all.

I should say this also, that there is the same awkwardness about applying this test to investigative agencies quite often, as there is about non-State agents. So, for example, the victim of a rape is not going to understand particularly well some meaning behind the misconduct of a police officer in respect of the obtaining of a confession, yet in a particular case it might result in exclusion of the evidence. So, if one is looking at the different parties involved, then one has to look at the perspective of the person in that instance who is – one has to bear in mind that there is some other person in this case. So the state agency thing, in my submission, does not govern the whole exercise. You have to kind of look at the thing holistically, as Judge Buscombe did in this case. And it does involve an explicit judicial decision and then an explicit legislative decision about what to do with improperly obtained evidence.

BELL J: Just looking at the circumstance that, as at 2004, provision was made for the prosecution to be able to bring an appeal against an evidentiary ruling that substantially weakened its case and, as you accept, Mr Game, in many instances that would – whilst it is interlocutory, if the decision to exclude evidence that substantially weakened the prosecution case has the effect that there is not sufficient evidence to go to the jury, one can see it as having, as it were, a quality of being final.

MR GAME: Yes.

BELL J: In those circumstances, you contend that the function on the determination of that appeal, of the appellate court, looking at 138, is to say, well, the primary judge looked at each of the non-exhaustive considerations in sub (3), his Honour considered the gravity of the impropriety to be less great than we unanimously would consider it, and his Honour – in other words, that the court expresses its view that it would differently weigh each of the considerations, but that it cannot be said that the trial judge failed to consider each relevant matter, nor can the determination be said to be manifestly unreasonable, that is the end of the matter.

MR GAME: We embrace all of that, your Honour. We say it is as simple as that. All I am trying to do is to pick out to the Court what it is that is happening at the various stages to show that it really cannot be other than viewed as a discretionary exercise. That is all I am doing.

BELL J: I understand that. But the other view, I suppose, is to say that with all rulings on evidence, ultimately evidence is either admissible or it is not.

MR GAME: Quite. But we submit that is not the answer to this question because the question is how you get there. There is plenty of scope for establishing error within this, for example, not dealing with a mandatory consideration or not exercising that law. There are numerous ways in which error can be identified. But if the judge exercised the judge’s discretion within jurisdiction appropriately addressing each of the questions, making findings of fact that were reasonably open, then that is the end of it.

BELL J: Yes, that is it.

MR GAME: And we say that that is conventional and, we say, importantly, that is consistent with the way in which these kinds of errors have always been dealt with on appeal.

BELL J: The matter I am raising with you, until 2004 these were never dealt with on appeal.

MR GAME: Quite, quite.

BELL J: So it does require consideration in the particular statutory context.

MR GAME: I do, your Honour, but I do make the point strongly that one cannot look at 5F(3A) divorced from the other provisions that are around it and enlarging the nature of the review would actually cause a significant disharmony with those provisions, particularly where the Crown does not require leave, particularly where the accused cannot appeal against rulings on evidence and particularly when, as I said, the driving provisions in subsections (4) and (5) are identical. So I have sort of said what I wanted to say about that.

But if one comes back to these items, then we have (d) “the gravity of the impropriety”. So one is measuring there how serious – so something is on a gradation and that – so there is an instinctive assessment aspect to that, particularly in the context of improprieties. But then when one gets to (e), it actually goes to an assessment of the subjectivity of that which was done, namely – so if one combines (d) and (e) with (a), one sees impropriety, then the gravity, then the motive.

So that is quite a strong combination of things that – and I will not draw the analogy too strongly with sentencing, but how serious something is or whether it was deliberate. These are the kinds of assessments one makes when one is trying to work out something as difficult as this. And not only that, one then has to carry these things through to the balancing exercise.

So then when one comes to – I will just run through the others – (f) and (g); (g) is important, but in this context, which is it is kind of the idea that sits behind the inception of the principle at common law, which is we cannot do anything about the misbehaviour of those that bring the cases here, but we can exclude the evidence and that is the reason that is adopted, that is (g). (h), that is to say, if action is likely to be taken, then that is a consideration favouring admission.

KIEFEL CJ: I am sorry, how do you read (h)?

MR GAME: So:

whether any other proceeding . . . is likely to be taken in –

BELL J: That is (g).

KIEFEL CJ: That is (g).

MR GAME: (g), sorry, (g). If the policeman is likely to lose his job, then that would be a factor favouring admission.

KIEFEL CJ: Yes, and then in relation to (h)?

MR GAME: So I put this before, the difficulty can cut both ways and that is said in the cases, it is said in the report, and we say it can be seen in this case. It would be very difficult for Ms White to obtain a surveillance warrant, in fact impossible, but her argument was that it was too difficult to obtain the evidence otherwise. In fact, it seems from the evidence from Mr O’Shannessy there would be no problem in investigating an anonymous report. So that is how we would put (h) in this case. And that is pretty much what we have to say about how section 138 works.

So when one comes to the 5F(3A) appeal, or in the case of the accused, the section 6 appeal, the discipline is whether or not it was reasonably open for his Honour to come to the conclusions which he did. But that is not to say that discrete failures of logic, discrete failures of addressing particular considerations, factual errors, it is not to say they cannot be considered, but they are considered through those spectacles, is my submission.

So, that is really all we want to say about section 5F and section 138. That enables me to fairly briefly – sorry, I should say also, if one looks at our submissions in paragraph 7 – and I will not take your Honours to Coal and Allied Operations – but to describe it as no one consideration and no combination of considerations is necessarily determinative is the kind of world within which one is. The idea of a unique outcome is, really, not so – well, minds differing is not at the heart of it because you get to a decision and the decision is to admit – it is how you got there is the question.

BELL J: Can I just take this up with you?

MR GAME: Yes.

BELL J: In a decision of Ford, Justice Campbell reasoned that, in relation to tendency evidence, the assessment under section 97 of whether evidence has significant probative value is determined by the appellate court rehearing the matter in, I suppose, what one might describe in shorthand, Warren v Coombes fashion, but then when it comes to 101(2), the Court applies House v The King. So, that one has – to an ultimate conclusion that tendency evidence is admissible – an appellate review at two levels.

MR GAME: That does not seem coherent, and that is the difficulty with this. I think perhaps the answer is in this. Neither a section 5 appeal nor a section 6 appeal is a rehearing in the sense of a section 75A appeal in a civil proceeding where the court just sits down and decides – I do not mean decides the case for itself – even though it is error based. But the area of dispute, ultimately, would really only be about credibility findings, not based on demeanour because the rest of it would be caught by ideas of logic. I mean, one would only be in the area that Warren v Coombes takes up.

The idea that a rehearing occurs in a 5F appeal, if that is the case in the full sense of a rehearing of the issues in a section 75A sense, by which I mean a civil rehearing, then section 6 of the Criminal Appeal Act would have to be revisited because how would one have these different processes under the same legislation? But this was the issue that was touched upon in Filippou but not finally resolved, because Filippou was against a line of cases in O’Donoghue that said that you had to show that the factual finding was perverse, and that this Court really put that to one side and did not adopt that approach, which was the approach that was left standing in Fleming, which is the earlier judge‑alone decision.

So, I would prefer, your Honour, to, if at all possible, leave the question about the nature of the re‑hearing in a section 97 case to another day because this case can be resolved on the basis that House v The King applies to a ruling of the kind in section 138.

BELL J: Well, Bauer has dealt with it in relation to section 97.

MR GAME: Yes, of course, of course.

BELL J: And, 101 was not raised.

MR GAME: Yes, of course, understood. I should have said 101. But what I am saying is, what is left for another day is just how far one goes down the Warren v Coombes, Fox v Percy line of reasoning in criminal appeals, whether they be interlocutory or final.

BELL J: Yes.

MR GAME: That is the argument that I would submit can be left for another day. It was not adopted in Filippou, which is the last ..... case in which the issue was alive, and that was about judge‑only findings and judge‑only findings is the area where it is likely to arise, when people are disbelieved and such. So, I am sorry, I cannot actually, coherently, answer that final question without saying that you would have to embrace – if one is driven to it, one would have to embrace the proposition that within the one ruling, different standards apply. So that in a 138 exercise, if you are talking about findings of fact, you would review them according to your own view of the facts, subject to credibility findings and not based on – subject to credibility findings made on the basis of demeanour. So, you could review credibility findings not made on the basis of demeanour.

So that if there was a factual finding underlying, for example, that question about whether something was hearsay, the Court would really conduct a re‑hearing. On the other hand, in the 138 issue, there would be both principles from one set of ideas applying a principle from another set of ideas applying to the assessment. That solution does not seem to be coherent and it seems to be problematic. But that is where one is driven to in the propositions that your Honour is putting to me.

I am saying in this case, hopefully one can avoid the problem, because we say we clearly fall on the side of this being a discretionary judgment. So then if I return to our submissions, if your Honours look then at paragraph 9, most of this has been dealt with in argument already, but I will just say a couple of things about what the Court of Criminal Appeal did. So, obviously, our principal concern relates to the first recording and also the search warrant. So if one looks, your Honours, to the Court of Criminal Appeal, how they dealt with this question, if one goes to paragraphs 99 and following.

Now, your Honours have been taken to three passages in his Honour’s judgment where his Honour clearly identified the sequence, and clearly addressed himself to the first, and the position of the Crown worsening after the first. And there is a passage in the appellant’s further materials book, page 101. At the bottom of the page, there is an explicit exchange between the judge and the Crown Prosecutor about that very thing because his Honour says:

but you accept you’re in a lesser position there, because . . . concerns that have been articulated have less weight.

CROWN PROSECUTOR: Yes. I accept that.

So, that is the context within which those – so, at the bottom of page 101, we see there that the matter is specifically framed. So, those passages that your Honours were taken to where his Honour points out that the Crown accepted that they were in a different position – that was at 35 – and then the passages at 31, 35 and 39. Then, one comes to the passage at page 80 of the appeal book. So, in effect, paragraph 99 is saying – apart from what we were saying about the first recording – there is no error.

Then, paragraph 100, is accepting that the recordings were not treated as a single piece of evidence. So, there is an acknowledgment of that. It is very difficult to see how appeal ground 1(a) could survive that – there are three grounds – so, the first ground could survive that. But, then one goes on – you have been taken to 103 and 104 – but then at 105, the court seems to be saying that there was an obligation to deal with the first recording in isolation. If that were really the case, it would be a mistake to do so.

BELL J: Mr Game, going back to the Crown’s concession, to which you took us ‑ ‑ ‑

MR GAME: Yes.

BELL J: ‑ ‑ ‑ all of this was in the context of his Honour appearing to take the view that, because it was difficult to lawfully obtain evidence of this conduct, that would be a view favouring the blatant illegality of the means by which it was obtained. Do you say that, within the exercise of the 138 discretion, it was open to the trial judge to place that emphasis on factor (h)?

MR GAME: Well, if I could just back to what his Honour said. If one goes back on this to page 39, we say that is correct because what was being said by Ms White was I had to do this there was no other way it could be done but his Honour rejected that.

KIEFEL CJ: So, his Honour is saying there is no difficulty in getting the RSPCA to act.

MR GAME: That is right. That is right. So her explanation for her illegality collapses.

BELL J: But the matter I am raising with you, you took us to the fact that it seems – the proceeding seems to have been conducted on the basis that subsequent recordings were in a different category because the first recording was the Crown’s strong point and it was its strong point because it was very difficult to get evidence of that kind. His Honour appears to have accepted that up to a point.

MR GAME: If that were the given – if I am wrong about that, then that works further in my client’s favour.

BELL J: That is the matter I am raising with you. Has not the whole thing ‑ ‑ ‑

MR GAME: It does work further in my client’s favour if that is the case. But I think what is happening is his Honour is trying to deal with what – ignore the question about difficulty. His Honour is trying to deal with, shall I call it, the excuse for what was done.

BELL J: But he is dealing with it under sub (h) and the matter that I am raising with you is it open to give sub (h) that interpretation?

MR GAME: Well, in the context of this case, we would say, yes, but if it is not, then we would say that helps our argument, does not detract from it.

NETTLE J: Why is it in the context of this case?

MR GAME: Because in the context of this case, if one talks about difficulty of obtaining the evidence – if one looks at paragraph 107:

in relation to the assessment of the difficulty of obtaining the first recording –

Well, the difficulty of obtaining that lawfully would be very high, because she is not going to be able to get a surveillance warrant.

NETTLE J: Just so, and that is why they say at 111 that is “The factor which here tips” it, they say, “in favour of admission”.

MR GAME: It should actually tip it back the other way.

GORDON J: The other way.

KIEFEL CJ: That is not the way in which his Honour approached it ‑ ‑ ‑

MR GAME: That is correct.

KIEFEL CJ: ‑ ‑ ‑ because he is talking about degrees of difficulty and once you are n that territory ‑ ‑ ‑

MR GAME: That is right, your Honour, but we do say, however, the Court of Criminal Appeal’s reasoning found it does not stand up to analysis when you look at these particular ‑ ‑ ‑

BELL J: There may be a more fundamental reason why it does not in relation to the recordings.

MR GAME: Yes, your Honour, but what we say about the recordings at heart is that which we say in paragraph (d) on the third page. That is to say, if you look at this thing properly through House lens, he has had regard to all of the factors. He has waived them. He has given the first one a particular weight. All that is really being said is that he should have weighted the first one in a different way. But he has addressed himself in the most distinct way that he could to this subject, having regard to that which was put to him. So that we say that (d) in our submissions is actually the answer to the appeal. That is how we put it.

KIEFEL CJ: The Court needs to adjourn now, Mr Game.

MR GAME: I will only be a few more minutes after lunch.

KIEFEL CJ: The Court will adjourn till 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. At lunch time we obtained some further pages from Report No. 26, which I have had provided to your Honours and I apologise, Justice Edelman. It is a much earlier part of the report. There are a couple of pages to which your Honour referred – pages 260 and 261. The only part I wanted to refer to is that passage I think your Honour referred to, paragraph 473:

An appeal court has limited scope to vary a trial judge’s exercise of a discretion.

That, we say, reinforces the point we are making. With respect to a comment about Ridgeway, with respect to the jurisprudence about excluding improperly obtained evidence and then that, in the worst cases, leading to permanent stays I would say this. It may not be a question of overturning Ridgeway but it would involve a mighty departure from a strong position of doctrine that this Court has taken over the years in relation to this kind of evidence and nothing that has been said about section 138 suggests that that approach should be departed from.

Bearing in mind the continuum, the cases of Bunning v Cross, Ireland, Ridgeway, into the report, into the Evidence Act, into the content of section 138, that is a consistent line of approach. The only limit is the limit we saw in subsection (3), which is explained by the Commissioners in their report. That is what I wanted to say about that.

Now, returning to the submissions I was making about – and I have almost finished, just a few more things to take your Honours to. There was an exchange about paragraph 111 in the Court of Criminal Appeal’s judgment and your Honours have already been taken to the problems in the earlier parts of the judgment, but what we say about – first of all, there is the illogicality that has been pointed out, but, secondly, those kind of qualified findings or suggestions at the top of page 84 in para 111, they are really not warranted bearing in mind that back at paragraph 106 the second ground of appeal had been rejected. So there are no findings to base that upon and we submit that with good reason we put to the Court that that does, in fact, involve a reversal of onus. So that is the only other point I wanted to make about that.

Now, with respect to the search warrant material, if you go back to page 42, we do not suggest that once you have got the causal relation between the contravention and the obtaining of the evidence you just carry that over as a finding and if that is the way that the judgment is to be construed then from our perspective there is a problem with the judgment. However, we submit that this should be viewed in context and the context is that his Honour had already made the findings about what we rely on is the repeated deliberate reaches back at 36 and the strong findings at 41 and 42 in relation to curial approval of conduct of this kind and when you get to page 42, it is not as if there was just one breach. It is as if there were numerous breaches over a lengthy period.

So that our way of reading that part of the judgment is that it is not just a carry‑over, it is also taking into account that which his Honour has already found about the gravity of the breaches and curial approval of this conduct. That is how we say that passage should be read. But we do not submit that it is anything like the American system and we do not submit that that is the only question. But we say you should read page 52 in a more sympathetic way, than has ‑ ‑ ‑

BELL J: Reading it sympathetically ‑ ‑ ‑

MR GAME: I withdraw the word “sympathetic”, your Honour. Reading it mindful of that which has preceded it, your Honour.

BELL J: But that which precedes it is the discussion of the repeated infringements ‑ ‑ ‑

MR GAME: Understood.

BELL J: ‑ ‑ ‑ involved by Animals Australia. Where do we get consideration of the factors – the sub (3) factors – in relation to the RSPCA?

MR GAME: Well, it is only by those factors being mentioned again at line 39. So, yes, there is a – I have to concede there is a problem there, but I am not conceding that the problem is fatal. But if you go back to page 22 and 23, you will see that his Honour is focusing on a question which is – and it is not fair to the Crown to say that this is all that they were saying – but the Crown was putting at the forefront of their submission that it could have been lawful, therefore it was excused because it could have been lawful under section 24G. That was the forensic battle that was going on between the parties.

I will just give your Honours one page reference to the further materials. It is at page 105 of the appellant’s further materials and it is Ms Roberts’ submissions to the Court, under “Thirdly” and “In those circumstances”. So, again, I can only take it so far, but that was the focus of the debate, at least by that stage. So what his Honour said is understandable in the context that he is rejecting the proposition that the thing could be justified because it could have been justified under section 24G. That is what is actually happening, we submit, at page 42. So, that is what I say about that.

Then if you go to the Court of Criminal Appeal’s treatment of it – and we say the same thing as Mr Reynolds – if his Honour erred on this, that the Court of Criminal Appeal erred on this and this alone on this, then we would say that should be submitted to the trial judge. But, if you go to the Court of Criminal Appeal’s decision on this question, one then has paragraphs 113 and following, and one sees at the end of paragraph 113 a reference to the argument that the Crown was putting that we saw back at page 105, the Crown just submits that evidence “could therefore have been obtained”. So that the “could have” becomes “was not obtained”, and that is what we say his Honour was rejecting.

But then when one goes on in the judgment, what we say in respect of how it is dealt with in 122 is – again, there is no reference to the onus question, and if you did, the question as framed at the end of 122, does the illegality outweigh the interest, then that would be stating the onus wrongly. But I am putting a little but not great store on that. I am just saying that the onus is not addressed there, but in the last line suggests – is a suggestion to the contrary. But then when one comes to 125, we say that is excessively critical because the way in which the search warrant evidence was obtained – yes, the search warrant was obtained lawfully, but the way in which it was obtained, when one goes to the exercise, as a matter of substance, includes all that came before it.

So that is what we say about that. Then we say ‑ and I will do this as quickly as I can ‑ but the last couple of lines in paragraph 125. It is difficult to see how in these circumstances that the RSPCA did not contravene the law has the potential to undermine their legislative policy of vesting it with regulatory functions. And similarly, we say that the last line of 128 is not logical. And the last line of 129 is not logical. In fact, the last line of 129 is wholly impracticable because there is never going to be a circumstance where you learn in a case that evidence has been unlawfully obtained and then you go and get some more evidence.

So we say for those reasons, if Judge Buscombe erred on this, then for the reasons both Mr Reynolds and I have given, the Court of Criminal Appeal erred in its treatment of this subject and, in that circumstance, this question would, in our submission, go back to the trial judge. So those are our submissions, if the Court pleases.

KIEFEL CJ: Thank you, Mr Game. Yes, Mr Baker.

MR BAKER: Thank you. Your Honours, if I can refer you to the respondent’s outline of oral argument, which I will work through. If I can start with the notice of contention which the Crown has filed and raise the question of the standard of review. If I could move directly to paragraph 4, which has been the focus of the debate in this area essentially, which was to focus on whether or not, when one looks at the interaction between section 5F and the question that ‑ or the decision that is under review, section 138, whether or not one can, for those considerations, determine whether or not it is a standard review that is House v The King, or something that is referred to as the correctness, or the Warren v Coombes test.

So when we look to the way in which those provisions interact, the respondent very quickly moves to the question of how one looks at section 138 and whether or not it is actually a discretionary decision, a discretionary provision. Or whether or not what has happened when the legislature created section 138 was to change the way in which the common law had been looked at, and referred to as a discretionary provision, and that the section had in fact enacted mandatory considerations.

So when we look at section 138 and we question whether Parliament intended the primary judge to be able to select from a range of outcomes is a question of statutory interpretation, and if we look at section 138 there are a number of things that indicate that it is not a discretionary provision. It has been raised this morning about what has been said in the ALRC or the Law Reform Commission papers about section 138 and Mr Game provided those final parts of the report.

If we look to the final paragraph on page 539 where it discusses appellate review, it talks about the fact that:

An issue that needs to be considered is whether it is appropriate to retain the existing limited appellate control where a discretion involves consideration of matters of public interest. At this stage it is not proposed to change the existing law.

It seems clear from the Australian Law Reform Commission reports that this is a question that has been considered but seems to be, to a large extent, one that is unresolved. In those circumstances, the respondent’s submission is that, again, we need to look at the particular provision and what we can discern from section 138. And, with that in mind, if I could ask your Honours to turn to that section, which is on page 122 of the joint book of authorities ‑ ‑ ‑

EDELMAN J: This was only the interim report of the Law Reform Commission. Is there anything in the final report?

MR BAKER: Nothing was said on the question of the appellate review. It seems that this was the extent of that consideration. We referred in our written submissions to the changes to the heading of Part 3.11, which related to – we referred to the fact that there was that change made to the heading to include a mandatory exclusion, the reference to that, and that was by reference to section 137.

If we now turn to the provision, section 138, there are a number of things which the respondent points to to indicate that there are clear indicators that this is not a discretionary provision. When we look at the text of 138, it states immediately that:

(1) Evidence that was obtained:

(a) [illegally or] improperly or . . .

(b) in consequence of an impropriety . . .

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

The respondent’s submission is that this is a clear indicator that what the legislature has intended to do is to create a provision that is mandatory in nature. There are, of course, other features of that drafting of section 138(1) and that is that by drafting it in those terms where it is not to be admitted, that it is clearly making a decision that the mandatory nature of the provision indicates that a binary determination rather than a choice of outcomes from a spectrum can be seen.

Whether that is determinative of the question remains to be considered, but, more importantly, it is a clear indicator – it is not a complete answer, but it is a clear indicator that what the legislature was doing was changing the way in which this question was being considered. There are also no textual indications within the provision that it is discretionary in nature. The aspects of the provision that are relevant from the respondent’s submission are that it is very similar in nature to other provisions within the Act where they talk about evidence not being admitted and it is the submission of the respondent that these features are also relevant here.

There are no textual indications that it would allow for a discretion in the similar way that section 135 does. In section 135, which is on that same page in the joint book of authorities, it talks about a general discretion and also about the court may refuse to admit the evidence, or may limit the use of the evidence. It is drafted in similar terms, the respondent submits, to the mandatory nature of section 137.

When one turns to look at the provision, section 138(3), whilst the initial words used are “Without limiting the matters that the court may take into account”, which might suggest that there is an aspect of discretion there, what the provision then says is it must take into account, in effect, the eight subparagraphs that are found within subsection (3). The Crown’s submission is that those evaluative decisions or those weighing of those factors does not indicate that this is a discretionary provision but rather that the Court of Criminal Appeal or an appellate court is in a good a position as the primary judge to balance out those same factors. Ultimately, it is the respondent’s submission that whilst there are features of evaluation within the subsection (3) provision, they do not indicate that there should be judicial restraint.

NETTLE J: Mr Baker, the explanatory memorandum to the Evidence Bill 1995 (NSW) had something to say about this, namely, that clause 138 was intended to reflect with some modifications the exclusionary discretion at common law known as the rule in Bunning v Cross. Does that have any weight in the interpretation of the provision we are concerned with?

MR BAKER: The respondent’s submission is that if the legislature wanted to make it a discretionary provision they could have drafted it in completely different terms. There is certainly an indicator that they were considering the discretion in Bunning v Cross, but what is meant by the discretion in those terms is – the respondent’s submission, the question – here what the legislature has done has, in fact, enacted a provision which allows for the very factors that can be found within Bunning v Cross to be considered, but those evaluative factors could equally be considered by an appellate court.

NETTLE J: I see. So, the effect was really to exclude or to change the discretionary nature of Bunning v Cross to something different?

MR BAKER: In that sense, yes.

BELL J: Another way of looking at it might be this Court in Dwyer v Calco Timbers in 234 CLR 124, at 138, 139, paragraph 40, looking at a similar question but in the context of the nature of an appeal under workers compensation legislation, commented that the inquiry is not advanced by describing the decision making process of the primary judge as discretionary. Rather, the focus should be on the nature and scope of the particularly statutory appeal, which really drives one back to the function of 5F(3A).

MR BAKER: Yes, thank you, your Honour. The interaction between the two, as your Honour refers to, is what is critical, because the respondent does say that it is that interaction when one looks at 5F(3A). I think your Honour Justice Bell described it at peculiar the way that it came about.

NETTLE J: Is that to say that 5F(3A) overrides the ordinary principle that the nature of appellate review is informed by the nature of the decision the subject of appeal?

MR BAKER: It is to say that it is the interaction and the considerations that come from both of those areas, from section 5F(3A) and what it actually is creating, and also how section 138 interacts there.

NETTLE J: If the true view is that 138 remains a discretion, subject to some limitations of the kind described in sub (3), is it the Crown’s submission that 5F(3A) so much overcomes that as to convert an appeal from such a decision into a Warren v Coombes rather than House v The King?

MR BAKER: No. The overriding feature would be the discretionary nature of section 138. The influence of 5F(3A) is a relevant factor and that is why when the respondent – I think Justice Bell talked about the fact that it is a peculiar provision, and it does have some influence here, but it is important to look at the interaction between the two of those.

NETTLE J: Just what I have in mind is this; 138 obviously precedes by a long time 5F(3A).

MR BAKER: Yes.

NETTLE J: So it presumably is to be construed as it stands by itself without regard to 5F(3A).

MR BAKER: Well, it is the way in which that question is considered on appeal that is also, to some extent ‑ ‑ ‑

NETTLE J: Well, certainly. That is why I ask you, is it the Crown’s submission that 5F(3A) changes the nature of the ordinary rule that the nature of appellant process is informed by the nature of the decision the subject of appeal?

MR BAKER: No. No, is the short answer, we do not submit that.

NETTLE J: Then if it be the correct view that 138 was always intended by the Parliament to be discretionary, albeit subject to the limitations in (3), can it be that 5F(3A) at all changes the position?

MR BAKER: Well, by my earlier answer, no. The influence that 5F(3A) would bring to that particular question would not overcome the nature of that discretion.

NETTLE J: So ultimately we have to go back to what 138 was intended to do?

MR BAKER: That is the respondent’s submission. And what it is intended to do insofar as whether it changed the discretion as it is referred to in Bunning v Cross or whether it is essentially now a mandatory provision which requires the issues that I have raised to be considered, which is the way in which it is constructed, and whether or not the legislature intended to replace it with a mandatory provision with those considerations.

NETTLE J: Thank you.

BELL J: On an appeal against conviction, assume the sole ground is that evidence that was illegally obtained was wrongly admitted, if the appellate court considers that the primary judge placed greater weight, or lesser weight, than the gravity of the impropriety of the contravention, does the appellate court have to stay its hand? In other words, what is the nature of the appeal – not at this point confining you to an interlocutory 5F(3A) appeal – but on an appeal against conviction, is the inquiry for the appellate court – was it open to the trial judge to admit this evidence or does the appellate court consider whether, in its view, the evidence was admissible having regard to the factors under section 138?

MR BAKER: The respondent’s submission is, in light of the position taken on section 138, that it would be the same on appellate review. Your Honour Justice Bell also mentioned the aspect of the miscarriage of justice which comes into play in section 6 earlier this morning and in that way it is of relevance, but the respondent’s position is that it would be the same and the submission that is being made is that it is the Warren v Coombes test at that 5F(3A) stage.

BELL J: If that is right, it is because the appellate court is itself undertaking the task of the weighing of the sub (3) factors, as opposed to considering whether the primary judges weighting of those factors went beyond the bounds of reasonableness or whether there was a failure to consider (1) or something of that character.

MR BAKER: Yes. I think that is the way in which it would be approached. I am sorry, Justice Bell, I am not sure if I answered your question.

BELL J: Yes, yes. Just to be clear, I think your position is – and correct me if I am wrong – that the nature of the appeal, whether it is under 5F or under section 6, is the same.

MR BAKER: Yes. That is the position we take.

BELL J: Yes, yes.

EDELMAN J: Does that mean ultimately that you say that 5F(3A) does not really have any role to play in relation to this issue, that this is just a question of construction of 134 and 5F is just a general power?

MR BAKER: Sorry, 138?

EDELMAN J: Sorry, 138.

MR BAKER: Yes. The respondent submits that to say that 5F3A has no influence at all is against what I started out by saying that it is the interaction between the two provisions, but it is a question of whether or not there is as a result of that some additional need for restraint as a result of whatever the provision is.

EDELMAN J: Well, put it this way. I suppose the flip-side of the question that Justice Nettle put to you, suppose you are right about your construction of 138 but you are wrong about your construction of section 5F(3A) for all the reasons which Mr Game gave this morning, what is the result then?

MR BAKER: The position in relation to 5F(3A) is that the history that Mr Game has taken the Court through in terms of the background to section 5F and the need in the submissions Ms Grech refers to the fact that – the history of section 5F means that there is some need for restraint, fragmentation and of the trial process, the need for restraint in that regards. In terms of 5F(3A) it is an unusual subsection of 5F because it was brought in to allow the director and the attorney to appeal against the loss of evidence which effectively meant that the prosecution could not continue. So, it is a rather unusual sub‑provision of 5F and so – it is a question of whether or not when one looks at 5F(3A) is it that there is some additional restraint placed upon the appellate court as a result of that provision. The respondent’s submission is that there is not.

If I can turn then to working through the outline, I think I can now move on to, in the alternative, where the House error was demonstrated. This brings up the issue of how we approach what the trial judge did and how the Court of Criminal Appeal came to find error in the trial judge’s findings. The respondent’s submission is that in terms of the first recording, the Court of Criminal Appeal was correct to find that the primary judge considered the admissibility of the recordings globally or compendiously. The judgment needs to be read in context of the submissions that are advanced. The context has been shown to be very important by both Mr Game and Mr Reynolds, that we need to look at the way in which this came about and it is important to know that the primary judge’s approach accorded with the appellant, Ms Grech’s, submissions, at first instance and is directly contrasted with the Crown’s approach to the recordings.

If I could take your Honours to the appellant’s further materials, Grech, book and the transcript of the proceedings before the trial judge. Could I take your Honours to page 92 and at this point this is where the Crown prosecutor is making submissions to Judge Buscombe about the submissions and, in particular, draws a couple of points to his Honour’s attention and at line 17 and onwards the Crown prosecutor says:

In particular, I’d like to commence by recalling that there is not one piece of disputed evidence, but seven pieces of disputed evidence in this matter, because there are seven occasions with respect to Mr Kadir, and six with respect to both accused, upon which Ms Lynch enters the property and places the camera in contravention of the Surveillance Devices Act. And the considerations, or the balance of those considerations, have the potential – and I say, in fact, do change over time if your Honour considers those pieces of evidence on each of those dates as individual pieces of disputed evidence.

And the Crown Prosecutor goes on:

And perhaps the most obviously change points are, first, after 5 December, when Ms Lynch has recorded footage in her possession depicting “activity”. The second point is after 12 December, when Ms White has seen the footage. And at that point, she’s at a different position from the position she was in on 4 December, with respect to a number of aspects of her evidence and the balance in exercise.

And then, again, perhaps in January, once there are – there seems to be another – the complicating involvement of communication with the media – although I don’t say that that’s such a significant factor as my friends would put it – so that the Crown’s position is perhaps – well, is certainly at its strongest before 5 December 2014, with respect to the issues about, in particular, the difficulty of obtaining evidence by another means. And that’s one of the significant factors that is significantly in dispute, perhaps, in these proceedings. And the majority of the evidence, or certainly a significant portion of the evidence yesterday, focused on that aspect.

And so when one looks at the context of the submissions, the appellant’s submission was that the recording should be looked at globally and the Crown was making it very clear that it was very important to look at the individual recordings separately.

BELL J: Mr Baker, all of this was in aid of a submission that it is very difficult to obtain evidence against people in the position of the respondents in relation to conduct of this kind, ergo the court might admit evidence obtained in gross violation of the statutory scheme because it is difficult to get it legally.

MR BAKER: Yes.

BELL J: Does the Crown support that analysis?

MR BAKER: The analysis that the respondent points to, or makes in this case, is that when Justice Nettle raised this this morning about it depends on whether or not – if there is easy compliance with a particular law and that is breached, then that may indicate towards admitting the evidence, whereas if it is more difficult, it tends towards exclusion, referring to Bunning v Cross.

BELL J: Yes.

MR BAKER: The question of whether or not a police officer could easily have complied with a particular requirement, whether it be for the breath testing of an individual or some other easily complied with provision, but fails to do that because they are either unaware of it, or for some other innocent explanation, that that would indicate that, in those circumstances, it is more likely that you would admit the evidence, whereas if it was something difficult, that may cut the other way.

What is important in this case, the respondent submits, is that in the present case the difficulty in obtaining the evidence in some other way, other than the use of the unlawful optical surveillance device, is the fact that it tends towards – in favour of admission. And that is because of the reason that the difficulty in this case was created as a result of what the Court of Criminal Appeal recognised at paragraph 111, which we saw this morning, and by the trial judge, that there was a risk of a tip‑off to the Greyhound Racing New South Wales. And so the difficulty that was relevant in this case was the inability for a private body, Animals Australia, to be able to obtain evidence with which to take to the authorities, to be able to be the foundation for an optical surveillance device.

So, the difficulty – the respondent’s submission is that it is important to focus on what the nature of the difficulty was and the difficulty, in this case, was that, as a result of – and this was not challenged, it was accepted by the parties and the trial judge – that there were real difficulties in being able to take steps to avoid a tip‑off. The trial judge put forward some alternative possibilities such as being able to confidentially speak to senior police and ask for there to be no contact with Greyhound Racing New South Wales.

But, what is important in this case – and this is something that the Chief Inspector O’Shannessy spoke about – was that there was a memorandum of understanding between the RSPCA and Greyhound Racing New South Wales. So that any complaint that was made – and certainly Mr O’Shannessy did give evidence that an anonymous complaint would be acted on if it involved serious animal cruelty as there was here – but the important point is that, in all of those circumstances, they would notify Greyhound Racing New South Wales. So, there was this concern that if that was to occur, there would be a tip‑off to trainers and there would be a difficulty in being able to obtain the evidence.

There were real concerns as the unlikelihood of an anonymous complaint being able to be properly and effectively investigated because of that risk of tip‑offs. That evidence, as I submitted, was largely unchallenged and when questioning Ms White, the trial judge made the point that after the first recording, that difficulty reduced. The undisputed and unchallenged evidence was that prior to that point there was a risk of tip‑off. There were things that were said to be done by the trial judge, as I mentioned, but, in this case, the finding by the Court of Criminal Appeal at paragraph 111 relates to this question of the difficulty that exists.

The reason that I refer to those at this point, your Honours, is because when it is put against the respondent that the degree of difficulty which is great tends in favour of admitting rather than – or can tend in favour of admitting – rather than the ease of compliance, one needs to look at what it is that is difficult in this case. What the respondent points to is the difficulty surrounding the obtaining of evidence which could be the foundation for an optical surveillance device or there could have been evidence that went to the commission of the offences.

BELL J: So, the existence of a memorandum of understanding between the RSPCA – which has statutory functions associated with the protection of animals – a memorandum of understanding between the RSPCA is what might be described as the proper authority and the body, the peak body, representing the industry, the existence of that understanding made it, practically speaking, difficult – so it was thought – to obtain the evidence legally and for some reason that justifies recourse by a private body to illegality.

MR BAKER: The difficulty is what is important when considering this exercise of whether or not the desirability outweighs the undesirability and one of the factors that is relevant is how difficult it is to obtain the evidence. The reason that I go to the question of what is the difficulty is because if it is suggested that in this case the difficulty which was high meant that it was more likely that the evidence should be admitted, not less, the respondent says that you need to look at what the nature of that difficulty is because if the difficulty is that this private body was confronted with a situation where there was an inability to get the evidence because of this existing memorandum and the way in which those tip‑offs would occur, that that is a matter, a factor, that is relevant when considering whether or not the evidence should be admitted.

BELL J: Does this submission seek to make something of the fact that Animals Australia is not a law enforcement agency or anything of that kind?

MR BAKER: It does to some extent in the fact that it is not a law enforcement body, it is a private body with limited ability, for example, to be able to go to the Commissioner of Police and undertake the steps that the trial judge suggested were available to Animals Australia.

NETTLE J: What is the difficulty in going to the Commissioner of Police?

MR BAKER: Well, whether or not a private body would be able to persuade senior police to act confidentially in those circumstances is something that the ‑ ‑ ‑

NETTLE J: As the trial judge said, it is a matter of sheer speculation. Prima facie one would assume that if a serious complaint were made by a body like Animals Australia to senior police they would do something about it.

MR BAKER: In circumstances where there was ‑ all they would have is an anonymous complaint. So, what the Animals Australia received was a phone call from someone within the industry who was not prepared to identify themselves and says that there is – these offences occurring, so if Animals Australia went to the police and said we have got an anonymous complaint it is questionable what action could be taken on that and whether or not senior police would be prepared to do things on the basis of an anonymous complaint.

Could I take your Honours to the appellant’s further materials for Ms Grech which contains the materials that were – I am sorry, which contain the materials that were tendered on the voir dire, including Mr O’Shannessy’s affidavit, or statement, I think it is, that is at page 199, where Mr O’Shannessy in his statement details the relationship between the RSPCA and New South Wales RSPCA and Greyhound Racing’s New South Wales.

Greyhound Racing New South Wales ‑ we can see from Mr O’Shannessy’s statement he is stating that Greyhound Racing New South Wales, in effect, is not just a representative body but it is the regulator in the industry. In this particular case, the RSPCA did not give Greyhound Racing New South Wales any notice of the Animals Australia complaint or its investigation of that complaint until 12 February 2015 and this was an intentional decision to exclude Greyhound Racing New South Wales because of the factors that are set out at paragraph 13 of his statement.

NETTLE J: Do those factors, Mr Baker, include the covertly obtained recordings or simply the effect of Ms White’s complaints to the RSPCA?

MR BAKER: They include – just excuse me. The answer is both, your Honour, because he is referring to the matters that are within her letter, which are annexed to his statement.

NETTLE J: Yes, thank you.

MR BAKER: So it is both the concerns that she raises, and the matters that came from the ‑ ‑ ‑

NETTLE J: Recordings.

MR BAKER: From the recording. I moved on to that point as a result of the question asked by Justice Bell. Perhaps I will return to the submission that I was making about the need to read the judgment in context, and particularly have regard to the submissions that were being made by the parties.

I took your Honours to the Crown Prosecutor’s position, and the appellant’s position was that it should be dealt with compendiously. That was something that was also contended for in the Court of Criminal Appeal. That can be seen in the submissions that were filed by the parties in the Court of Criminal Appeal and just for completeness, if I can take your Honours to the further materials by Mr Kadir.

The submissions are contained within that book. These are the submissions that were filed for the Court of Criminal Appeal. Could I take your Honours by way of illustration of the position taken by Mr Kadir at page 256 of these further materials, and paragraph 31 on page 256 where a submission was made:

Therefore for his Honour to consider ‘the recordings’, which were all obtained by the same method, ‘as a single piece of evidence to which the balancing test must be applied’, as the Crown complains in [78], was not in error.

If I could take your Honours to Ms Grech’s submissions, they are at page 262 and 263, where the submissions were made that the respondent – this is at paragraphs 3 to 6.

KIEFEL CJ: I am sorry, which page are you on?

MR BAKER: I am sorry, 262 and 263. Paragraph 3 to 6, the submission was made that:

the contravention comprised a course of conduct joined by a common purpose in a determined disregard of the law. In assessing the gravity of the contravention it was necessary for the learned trial judge to consider a course of conduct in which each unlawful act played a part. It was necessary to consider the totality of the unlawful acts in assessing the gravity of the contravention in all of the circumstances.

4. His Honour was not in error in proceeding upon the basis that each successive criminal did not diminish or alleviate the totality of the criminality of the informants in the execution of their joint criminal enterprise. Any approach to the contrary would have been a novel approach.

And then it goes on in paragraphs 5 and 6 again to talk about the series of acts and the need to look at all the circumstances in combination.

Those positions were also set out in the CCA judgment. That is back in the core appeal book at page 72, paragraphs 74 and 75. The Court of Criminal Appeal in paragraph 74 sets out that Mr Kadir submits that there was no error in considering as a single piece of evidence to which the balancing test must be applied. And Ms Grech submitted that:

the contravention comprised a course of conduct joined by a common purpose in a determined disregard of the law –

And a submission that the totality of the unlawful conduct needed to be considered. With that background and the context of the submissions in mind, if I could ask your Honours then to turn to the trial judge’s judgment. On page 31 of the core appeal book we have seen that this is where the findings of the trial judge begin. On page 31, at about line 48, at the outset of the reasons the primary judge stated that:

There are essentially three pieces of evidence to which the voir dire was directed. I propose to deal with them separately.

That is each of those separate three pieces, not the recordings:

In relation to each piece of evidence, s 138 The Evidence Act was relied upon.

Thereafter, we can see that the trial judge treated the recordings as a single piece of evidence to which he applied the balancing considerations of section 138. We can see at different points through this part of the reasoning that his Honour is defining the evidence as the recordings as one compendious group. That can be seen at core appeal book 32 point 48 towards the bottom of that page, 32 point 52, the very bottom of that page, the top of page 33, so 33 point 12. The recordings are also referred to at 33 point 24, 33 point 52. Then over on page 34 point 12, 34 point 25, and then if I can ask your Honours to turn to the ultimate findings on page 41 where the primary judge concluded that the recordings would not be admitted. This is at 41 point 41.

The respondent’s submission is that when we now look to the passage which is of concern, which is the passage that relates to the difficulty of obtaining the evidence, where the Court of Criminal Appeal found that the trial judge dealt with this compendiously rather than separately, if we look to the top of page 39 we can see as we move through that passage that what the trial judge has done is he has considered, firstly, the situation prior to the decision being made to breach the Surveillance Devices Act. So that is before the first recording. Then at line 20:

The evidence from the chief inspector of the RSPCA was that the RSPCA would have conducted an investigation into an anonymous complaint of live baiting.

That is before:

No doubt given the concerns held about Greyhound Racing New South Wales, appropriate steps could have been taken by the RSPCA not to involve that organisation, but involve the police at a senior level and to ensure confidentiality.

Again, a consideration before. But then what we see is that the trial judge moves on and says:

Once the first recording was obtained, there was no reason why the police through the RSPCA could not have been approached and requested to apply for a warrant to install an optical surveillance device. No such approach was undertaken and multiple breaches of the Surveillance Devices Act were then engaged in.

This is after. So the trial judge has moved from before to look at what happened after. Then the trial judge says:

I am satisfied that there was some difficulty in obtaining the evidence –

Again the respondent points to the fact that the evidence has been defined as “the recordings”:

I am satisfied that there was some difficulty in obtaining the evidence in some other way which did not involve a contravention, but the degree of difficulty is not easily determined when no steps –

That would seem to suggest both before and after –

were taken to endeavour to obtain the evidence in a lawful way.

Then, the trial judge says:

There clearly were other investigatory steps, such as by way of covert visual surveillance, that could have been attempted prior to engaging in the deliberate breach of the Surveillance Devices Act –

Again, at this point the trial judge has returned to the first recording. So, when the Court of Criminal Appeal comes to consider this passage of the trial judge’s reasoning, it is clear that they have looked at this in context and that they have considered whether or not the primary judge has at that point only been talking about the first recordings and then made a decision after that about the subsequent recordings individually or whether or not it has been grouped compendiously. The respondent’s submission is that the CCA was correct to find that it was the primary judge’s intention in what he did was to consider them altogether, as was submitted by the appellants. He did not look at those in isolation but rather, when assessing the difficulty of obtaining the evidence, he did it altogether.

Contrary to the appellant’s submission in this Court, the primary judge did not approach the 138 assessment by first considering the admissibility of the first recording. In considering the gravity of the contravention, the primary judge referred to repeated deliberate breaches. The question arises as to what the significance of that is. The Court of Criminal Appeal at paragraph 104 stated that:

His Honour’s reference to “repeated deliberate breaches”, when read in context, is not easily read as referable to repeated breaches relating to the first recording in isolation (see at p 30 –

which I have read:

Therefore, while it was not necessarily incumbent on his Honour to address each of the s 138 factors separately ad seriatim in relation to each successive recording obtained by Ms Lynch, the weight to be attributed to factors such as the difficulty of obtaining the evidence and the gravity of the breach should at least have been addressed separately with respect to the first recording –

The Crown submits that it was an error of principle, which the Court of Criminal Appeal found, for the primary judge to consider the admissibility of the recordings in this global or compendious manner. The application of section 138 of the Evidence Act requires the analysis and balancing of those characteristics and the circumstances for each particular item of impugned evidence to be considered separately.

If I can move to the search evidence, which is ground 2, those passages of the trial judge’s judgment which relate to the search evidence you were taken to earlier this morning. The respondent submits that the Court of Criminal Appeal correctly found that the primary judge erred in concluding that his section 138 findings in relation to the recordings were directly applicable to his considerations of the evidence obtained following the issue of the search warrant and that was because the way in which the search evidence was obtained was materially different to the way in which the recordings were obtained.

The respondent submits that considerations could not be directly applicable because, as the CCA correctly found, the RSPCA was acting in discharge of its lawful functions. They were doing the only relevant step they could have taken in the circumstances. So to find that all of those features and factors that were considered when the trial judge looked at the recordings directly applied, in the respondent’s submission, as the CCA correctly found, was an error.

In effect, the Court of Criminal Appeal looked at the way in which the trial judge went through and the same three errors occurred. It was the same compendious approach, just grouping the things together; the recordings, the search warrant evidence and then the third aspect, which is relevant against Mr Kadir only, are the admissions, because the Court of Criminal Appeal correctly held that the primary judge erred in applying his reasons for rejecting the recordings directly to the admissions.

The admissions, Mr Reynolds submitted that there was an error in the way the Court of Criminal Appeal approached the bare causal connection. It is the respondent’s submission that there was no such error and there was simply a bare causal connection between the contravention and the obtaining of the admissions by Ms Lynch and the CCA ultimately concluded that that evidence was admissible.

The primary judge held that the circumstances in which the admissions were obtained was not unfair. So it was put against the respondent this morning that it was an impropriety to have gone to speak to Mr Kadir in those circumstances, but your Honours will see when your Honours turn to the judgment by the primary judge and by the Court of Criminal Appeal that it was not suggested that those admissions were obtained in an unfair way or a relevant unfairness.

While I deal with Mr Reynolds’ submissions, if I can turn to the question of what is found at paragraph 19 of the outline of oral argument for Mr Kadir, this relates to the redetermination of the evidence but I will deal with it at this point just for convenience. It relates to this question of privacy and the breach of privacy. Both the primary judge and the Court of Criminal Appeal each correctly held that the breach of privacy was not a factor that weighs heavily against the admission of the evidence. Mr Reynolds pointed to the trespass that occurred but the focus in the voir dire was on the trespass resulting in the recordings of Mr Kadir’s business activities and the training facility was a part of the business that was subject to inspection by the RSPCA inspectors – that is not a private activity.

And the recordings that took place were only depicting the area in which the appellant conducted that business. The appellant’s residence cannot be seen in the recordings. The recordings were tendered before the trial judge, and they are available if – they have not been tendered in this Court, but they were part of the voir dire material if your Honours felt that, in redetermining it, you needed to see that material.

In turning then to the redetermination of the admissibility of the first recording ‑ this is now at paragraph 15 of the outline of oral argument by the respondent in relation to Ms Grech ‑ as the identification of House error was not required, on the respondent’s submission, and as House error was demonstrated in any event, the CCA was entitled to redetermine the admissibility of the recordings and the search evidence.

The respondent’s submission is that there was no error in this redetermination. There has been raised against the respondent the fact that the CCA is said to have not – or incorrectly, improperly considered the question of onus. Again, it is a question of context. And at all times, the onus was on the Crown. It was made clear in the voir dire, it was clear throughout the proceedings in that voir dire, and also on appeal. The CCA correctly applied the onus. When the judgment as a whole, and the CCA’s ultimate conclusion is considered, the respondent’s submission is that the onus was correctly applied.

When turning to the statutory task, the Court of Criminal Appeal expressly considered the statutory factors for the first recording and the search, and the weighing of the exercise was expressly undertaken. When the judgment is looked at carefully, it is quite clear that the Court of Criminal Appeal has gone through each of those factors and assessed them. They have also then turned to undertake the weighing process, and they have done so correctly.

The CCA held that the Crown had not demonstrated that the primary judge’s description of Ms White’s opinion as to the difficulty of obtaining the evidence ‑ the surveillance evidence ‑ as sheer speculation constituted a House error. And it is relevant to consider that when you are looking at paragraph 111 because, on one view, what is said in paragraph 106, when compared to paragraph 111, might seem to be inconsistent. As the respondent submits, when the Court of Criminal Appeal came to look at this question of Ms White’s assessment in paragraph 106, that was in response to the Crown’s position that there was House error, in his Honour’s determination of that assessment.

At paragraph 106, the Court of Criminal Appeal found that it was open for his Honour to find that it was sheer speculation. They later went on to describe it as informed speculation, but, nonetheless, it is important to realise that at that point in the judgment the Court is considering the Crown’s submission concerning House error. So when they then come to redetermine themselves this point – at paragraph 111 – they then turn to the question of what other evidence was available to find whether the difficulty was high.

They refer to matters that were not the subject of challenge, the fact that lawful visual surveillance could have been undertaken, but what it could have achieved, in the circumstances, is unlikely because the area where the bullring was was quite remote from the roadway, what could have been seen from outside.

There was before the primary judge not only the video recording, but also an aerial map which would assist in terms of being able to make a finding of whether or not there was anything that could have been done by way of covert video surveillance. Perhaps if I could take your Honours to that map to illustrate that point. In the respondent’s further materials there is, at page 169 and 170, the aerial maps that were before the primary judge. Perhaps page 170 is the best illustration of the difficulty.

KIEFEL CJ: What do we get out of this, Mr Baker?

MR BAKER: How difficult it would be for lawful visual surveillance to have enabled the evidence to have been obtained. We can see that the bullring, and where the cameras were located, is some considerable distance from the road. There was an electric fence front. The reason I take your Honours to this is because there was a suggestion by the trial judge that some lawful covert visual surveillance may have been able to have obtained some evidence towards proving the offences.

The Court of Criminal Appeal found that there was nothing to suggest that that covert lawful surveillance would have enabled evidence to have been obtained of activity in the bullring. That is found in paragraph 111. I simply bring that map to your Honours’ attention just to show the circumstances.

NETTLE J: Do they mean by that that a warrant under the Surveillance Devices Act would not have enabled the police or the RSPCA to place a covert device in the position that Animals Australia did?

MR BAKER: No. If they were to stand outside the gates of ‑ ‑ ‑

NETTLE J: Sure.

MR BAKER: ‑ ‑ ‑ the property and record it lawfully without being on someone’s private property ‑ ‑ ‑

NETTLE J: But there would be nothing to stop them if they had the appropriate warrant to place the device as necessary to record the action, would there?

MR BAKER: There was nothing to stop if they got a lawful warrant – if that could be obtained – which comes back to the question of the difficulty to obtain that warrant in circumstances where ‑ ‑ ‑

NETTLE J: It was only an anonymous tip‑off.

MR BAKER: It was only an anonymous tip‑off and to be able to get a warrant based on an anonymous tip‑off was difficult, if not impossible, in those circumstances.

Moving then through the outline of oral argument, perhaps if I can turn at this point then to the question of remittal. If contrary to the above this Court finds that there was error in the Court of Criminal Appeal’s redetermination, this Court should determine the admissibility of the evidence for itself or, alternatively, the appeal should be remitted to the Court of Criminal Appeal.

Mr Reynolds has raised issues concerning further cross‑examination that could have been undertaken with Mr O’Shannessy. That is directly referred to in the reply, I understand, of Mr Kadir. There was no application before the Court of Criminal Appeal, despite the fact that section 5F(4) allows for leave to be granted to allow for further evidence or cross‑examination of witnesses.

This area was not the subject of cross‑examination of Mr O’Shannessy ‑ those areas concerning what his understanding was, what his knowledge was. As I understand the submission by Mr Reynolds, it is submitted that there will be further matters that could be litigated and that that should result in it being returned to the trial judge. The respondent’s submission is that if it is going to be redetermined it can be done by this Court and alternatively by the Court of Criminal Appeal. Yes, thank you.

KIEFEL CJ: Thank you, Mr Baker. Replies?

MR REYNOLDS: Your Honours, I have no reply.

KIEFEL CJ: Thank you. Yes, Mr Game.

MR GAME: If the Court pleases, with respect to the argument about 138 not proposing a discretion, the words “not to be admitted” are just about onus and the word “unless” is just a proviso. Sure, it is not concerned with a range of outcomes. It is concerned with a range of decisions and an ultimate balancing act. We say that nothing that has been said is really in any way detracted from the proposition that 138 is a discretion.

In terms of the language, we take the point that your Honour Justice Bell raised in respect of Dwyer v Calco. Dwyer v Calco was a case about assessment of serious injury where, for some reason, the Court of Appeal had decided that House v The King applied to that, and Barwon was disapproved so it is a different thing.

BELL J: It is a point not far removed from the point that Chief Justice Gleeson was making in BWM ‑ ‑ ‑

MR GAME: That is exactly right.

BELL J: ‑ ‑ ‑ when his Honour declined to adopt Justice Hunt’s analysis.

MR GAME: Exactly.

NETTLE J: I think the Court of Appeal adopted it as a matter of self‑preservation, Mr Game.

MR GAME: I see – did not want to be dealing with a tsunami of cases coming from the County Court.

NETTLE J: Something along ‑ ‑ ‑

MR GAME: That is the way the judgment reads, your Honours. Just a couple of other short points, and they really are very short. We have been through this in submissions, but what is said by Judge Buscombe at pages 38 and 39 really answers everything that is said about the way in which the first and other tapes are dealt with. And, as I said before, the Court of Criminal Appeal did not accept the proposition that his Honour had failed to deal with them separately. The question was whether they were dealt with in isolation.

Two more points. One is, the submissions that were read out from our submissions below at 262 and 263 of the further material of Kadir, that is not an invitation to error, in our submission. Lastly, we say there is in 106 – in effect, there is an acceptance that ground 2 did not succeed which involved a challenge to the judge’s rejection of Ms White’s evidence. In 111 we say there is an attempt to – it is not uncontroversial – there is an attempt to bring back the things which have been rejected and we say that does engage the principle stated by this Court in Betts about one does not get a free go about other findings made in a discretionary judgment. So that is how we say 106 and 111 work. Those are our submissions in reply, if the Court pleases.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 3.32 PM THE MATTER WAS ADJOURNED