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Supreme Court of New South Wales |
COURT
IN THE SUPREME COURT OF NEW SOUTH WALES
COURT OF APPEAL
KIRBY P(1), COLE JA(2) AND SANTOW AJA(3)
HRNG
SYDNEY, 9 October 1995
#DATE 11:10:1995
#ADD 14:11:1995
Counsel for the Claimant (DPP): A M Blackmore
Solicitors for the Claimant (DPP):
S E O'Connor, Solicitor for
Public Prosecutions
Counsel for the Opponent (Accused,
applicant for bail): R S Toner
Solicitors for the Opponent
(Accused, applicant for bail): Macedone
Christie Willis
and Solari
ORDER
1. Declare that the application by John Serratore for
bail is not a
proceeding by way of a prosecution for a prescribed offence within the meaning
of s 5B(a) of the Telecommunications (Interception) Act 1979 (Cth); and
2. Order that the proceedings be returned to the Criminal Division of the
Supreme Court for the consideration of the
application by John Serratore for
bail, conformably with the opinion of this Court.
JUDGE1
KIRBY P These proceedings are before
the Court pursuant to an order of Smart
J, sitting in the Bails List of the Criminal Division of the Supreme Court.
His Honour, in
removing the proceedings under Part 12 Rule 2(l)(b) SCR, did so
at the request of the Director of Public Prosecutions (the claimant) (DPP). Cf
Sivakumar v Patterson and Anor (1984) 2 NSWLR 78 (CA), 81. The proceedings
concern Mr John Serratore (the opponent). He has been charged with murder. He
applied for bail. Smart J concluded
that:
"Substantially the bail application would appear to depend on the
admissibility of... intercepted material... "
Recorded
pursuant to the Telecommunications (Interception) Act 1979 (Cth) (the
Act)."
2. In earlier proceedings involving the opponent, at a time when he was
charged under s 26 of the Crimes Act 1900, with the offence of soliciting to
murder Levine J concluded, on his construction of the Act, that the record of
intercepted material
could not be received by the Court. At that stage, his
Honour rejected the tender of the record of the intercepted conversation and
proceeded to grant bail. Smart J, whilst respecting the principle of comity
with the decision of Levine J, was inclined to reach
a different view on the
point. This fact led him to accede to request of the DPP for a reference of
the question to this Court.
3. The Court returned the application, and heard it, with maximum expedition.
Clearly the issue which it presented is one of general
importance. The
reference should therefore be accepted by the Court and the point of
controversy determined.
4. First, however,
I will state, in a little more detail, the factual
background.
5. The DPP's case is that, whilst he was at school, the opponent
met and
formed a personal relationship with Ms Frances Tizzone. The couple planned to
wed in early 1994. However, their relationship
allegedly deteriorated. Ms
Tizzone was then attending lectures at Macquarie University. An apprehended
violence order was issued
by the Local Court at Burwood on 18 November 1994
directed to the opponent. This notwithstanding, for a time the relationship
between
the couple was resumed. They exchanged correspondence. However, by
March 1995 the relationship had again deteriorated. An arrangement
was
allegedly made for them to meet again on 29 March 1995 at the Strathfield
Railway Station. It was on that day that Ms Tizzone
was seen alive for the
last time. On 2 April 1995 her body was discovered at French's Forest, dumped
in bushland.
6. On 17 May
1995, the opponent was interviewed by police. The interview was
electronically recorded. He was then charged with one count of This
charge
arose out of an alleged conversation between the opponent and a friend of his
to whom, it was alleged, he had, in October
1994, confided an intention to
murder Ms Tizzone. The opponent was refused bail by police following that
charge. On 18 May 1995 he
was again refused bail by Mr Clearly LCM at Manly
Local Court. On 26 May 1995 bail was also refused by Mr Moore LCM. On 14 June
1995
bail was also refused by Mr Clearly LCM. An application for bail from the
Supreme Court was heard by Levine J on 29 June 1995. The
DPP opposed the grant
of bail. He sought to rely, inter alia, on a statement of Detective Jennifer
Rutledge. That statement contained
an outline of an alleged telephone
conversation, said to have been recorded as a result of a warrant issued under
the Act. The record
of the conversation was relied upon to support the DPP's
contention that, if released on bail, the opponent would interfere with
Crown
witnesses.
7. Levine J declined-to receive evidence of the record of the telephone
conversation. He then proceeded to grant
bail to the opponent.
8. On 20 September 1995, the opponent was arrested and charged with murder.
Police again refused bail. On
21 September 1995, Mr Simpson LCM, at Central
Local Court, also refused bail. Once again, the opponent filed an application
for bail
from the Supreme Court. It was that application which was heard by
Smart J on 5 October 1995 occasioning the removal of the proceedings
into this
Court.
Relevant provisions of the Interception Act
9. In order to understand the ruling of Levine J, questioned by
Smart J, it
is necessary to set out the relevant provisions of the Act. Its long title
indicates that its purpose is:
"To prohibit
the interception of telecommunications except where
authorised in special circumstances or for the purpose of tracing
the
location of callers in emergencies, and for related
purposes. "
The governing provision is s 7 under the heading "Telecommunications
not to be
intercepted":
"7(1) A person shall not:
(a) Intercept;
(b) Authorise, suffer or permit another person to intercept;
or
(c) Do any act or thing that will enable him or another person to
intercept; a communication passing over a telecommunications
system.
(2) Subsection (1) does not apply to or in relation to:
(b) The interception of a communication under a warrant."
Where an intercept has been authorised by warrant issued under the Act, strict
control on the use of the intercepted information
is established by s 63 of
the Act:
"63 Subject to this Part, a person shall not ...
(a) communicate to another person, make
use of, or make a record
of; or
(b) give in evidence in a proceeding;
Lawfully obtained information or information obtained
by
intercepting a communication in contravention of subsection
7(1)."
By s 67 of the Act it is provided:
"67 An officer
of an agency may, for a permitted purpose, or
permitted purposes, in relation to the agency, and for no other
purpose, communicate
to another person, make use of, or make a
record of, lawfully obtained information. ..." (emphasis added)
Section 74 (which
appears in Part VII of the Act, referred to in s 63)
provides, relevantly:
"74(1) A person may give lawfully obtained information
... in
evidence in an exempt proceeding. "
"Exempt proceedings" are defined in s 5B of the Act. Relevantly, it provides:
"5B A reference in this Act to an exempt proceeding is a
reference to
(a) A proceeding by way of a prosecution for a prescribed
offence. "
There follow a number of other proceedings which are specified. It will
suffice to notice the following:
"(b)
A proceeding for the confiscation or forfeiture of property
...
(c) A proceeding for the taking of evidence pursuant to section
43 of the Extradition Act 1988 ...
(d) A proceeding for the extradition of a person from a State or
Territory ...
(e) A police disciplinary proceeding
...
(f) Any other proceeding (not being a proceeding by way of a
prosecution for an offence) insofar as it relates to alleged
misbehaviour, or alleged improper conduct, of an officer of the
Commonwealth or of a State;
(g) A proceeding for the
recovery of an amount due to a carrier
in connection with the supply of a telecommunications service, or
(h) A proceeding
under section 13 of the Mutual Assistance in
Criminal Matters Act 1987... "
I draw attention to the distinction between the definitions of particular
kinds of proceedings in each of the following paragraphs
and the definition of
"a proceeding by way of a prosecution for a prescribed offence" in para (a),
which is the paragraph here in
question.
10. The phrase "prescribed offence" is defined in s 5 of the Act to mean,
relevantly:
(a) A serious offence.
(d) Any other offence punishable by imprisonment for life or for
a period, or maximum period, of at least 3 years. ... "
The phrase "serious offence" is defined by the same section to mean
an offence
that is or has been a class 1 offence. That expression is, in turn, defined by
the Act to mean:
"'Class 1 offence'
means:
(a) A murder, or an offence of a kind equivalent to murder. "
11. The scheme of the Act can be seen. In harmony with
past traditions and
general community expectations, communication by the telecommunications system
is to be regarded as strictly
private. Exceptions are allowed, relevantly,
upon a warrant which, it may be assumed, was issued to police in this case.
But even
then, limitations are imposed upon dealing with intercepted
information, specifically on the giving of evidence in a proceeding even
of
information lawfully obtained by intercepting a communication. Such
information may only be given in "exempt proceedings". These
extend to
proceedings on a charge of murder, because it is a prescribed serious offence.
The evidence must then be given, and only
be given, if it is offered in:
"... a proceeding by way of a prosecution for a prescribed
offence. "
It is those words
which present the difficulty for the argument of the DPP
which caused Levine J to exclude the tendered evidence concerning the lawfully
obtained information relevant to the opponent and resulted in the earlier
grant of bail which the DPP now resists.
Reasons of
the primary judges
12. In rejecting the tender of the record of the intercept, Levine J referred
to the provisions of the Act just
mentioned. He noted that objection was taken
to the tender of the intercept record on the basis that the proceedings before
him,
in the application for bail:
"...were "not exempt proceedings and were not proceedings which
by any strain of language construction
can be considered to be 'a
proceeding by way of a prosecution for a prescribed offence "'.
His Honour pointed out that the relief
sought by the opponent was pursuant to
the Bail Act 1978. He recited that the Interception Act imposed:
"... in a fairly strict sort of way the regulation of the
interception of
communications which ordinary tenants of good
citizenship, morality and commonsense would regard as private,
protected, precious
is not inviolable...."
He then came to his conclusion:
"One's immediate reaction to those words in their natural and
ordinary
meaning focuses on those concerned to prosecute for a
prescribed offence rather than a person in the position of the
applicant.
That definition of an exempt proceeding was not, for
example, worded as 'a proceeding by way of and in connection
with a
prosecution for a prescribed offence.' I have little
difficulty in coming to the view that a bail application under
the New
South Wales legislation does not fall within s 5B of
the Commonwealth Act. " (emphasis in original)
Levine J then turned to
other arguments which have not been pressed upon this
Court. As a result of his ruling, he declined to receive the information
tendered.
As I have said, in the absence of that information, he then
proceeded to grant bail on the charge first brought against the opponent.
13. After the second charge, the re-arrest of the opponent and the refusal of
bail by the police and the Local Court, Smart J
had to reconsider exactly the
same point. After referring to a number of authorities which I will later
mention, his Honour noted
the amendment of the Act to include, s 6J, the
following provision:
"6J A reference in this Act to a proceeding by way of a
prosecution for an offence includes a reference to a proceeding
with a view to the committal of a person for trial for the
offence."
As his Honour pointed out, whether that section was strictly necessary was
open to question because Jenkinson J, in
the Federal Court of Australia, had
earlier held that a committal was within the phrase "a proceeding by way of a
prosecution for
a prescribed offence", without the need of statutory
elaboration. See Shepherd v Griffiths and A nor [1985] FCA 126; (1985) 60 ALR 176 (FC), 185.
But whether needed or not, and despite his Honour's construction of the
section, Federal Parliament thought it necessary, and
useful, to enact an
amendment in the terms of s 6J by the amending Act No 89 of 1987. Obviously
the drafter had some doubts about
the scope of the phrase in s 5B(a) and its
availability to support the holding of a single judge of the Federal Court. By
inference,
it was decided to put the matter beyond doubt or the prospect of
further challenge and the possibility of a contrary decision. At
the time s 6J
was inserted, no occasion was taken to enact a generally broader definition in
s 5B(a).
14. The reasons which suggested
to Smart J a conclusion different from that
offered by Levine J were briefly stated:
"Bail applications arise once somebody
has been charged with an
offence or an information has been laid. When looking at the
phrase 'a proceeding by way of a prosecution
for a prescribed
offence' regard must be had to the statutory context, including
its Australia wide operation. References
to the procedures of
each State or Territory would not be expected I regard a bail
application as an incident of, or incidental
to, a proceeding
by way of a prosecution for a prescribed offence and thus falling
within s 5B(a). "
It was in these circumstances
that his Honour felt it better that this Court
should consider the matter and provide an authoritative determination of the
point.
Matters of approach
15. A number of general considerations which govern the approach of the Court
to the task presented by this
reference may usefully be stated:
1. Traditionally, in out law, liberty has been regarded as a most precious
civic right. Legislation
which has the effect of derogating from the right of
an individual to enjoy liberty is conventionally accorded (in the case of
ambiguity)
a strict construction which favours liberty. Piper v Corrective
Services Commission of New South Wales (1986) 6 NSWLR 352 (CA), 358;
2. Bail is a particular feature of the systems of law which derive their
origins from the common law of England. It was not
a feature usual to other
legal systems, such as those of civil law countries, although in recent times
the influence of the privilege
to seek bail has come to be felt in the
municipal systems of non-common law States and in the international statements
of basic civil
rights. The International Covenant on Civil and Political
Rights, (ICCPR), Article 9, for example, provides:
"9.1 Everyone has
the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one
shall be
deprived of his liberty except on such grounds and in
accordance with such procedures as are established by law.
(3) Anyone
arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorised by
law to
exercise judicial power and shall be entitled to trial
within a reasonable time or to release. It shall not be the
general
rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for
trial,
at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgment."
(Emphasis added)
Australia is a party to the International Covenant. In the event of
uncertainty of the common law or ambiguity of legislation, an
Australia court
may have regard to the provisions of the International Covenant to help
resolve the uncertainty or ambiguity. See
Mabo v The State of Queensland (No
21 (1992) 175 CLR 1, 42. Minister for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20; (1995) 69 ALJR 423 (HC), 431, 447; 3. Another important civil right which is
reflected in the statement of fundamental rights contained in the
International
Covenant, and also reflected in our common law, is the right to
privacy. This extends to privacy of telecommunications. See Article
17. 1,
ICCPR. In Klass and Ors v Federal Republic of Germany [1978] ECHR 4; (1978) 2 EHRR 214
(ECHR), the European Court of Human Rights described German legislation for
the interception of telephone conversations as presenting "a
menace of
surveillance". That decision was cited by Gleeson CJ in support of his
conclusions in John Fairfax Publications Pty Limited
v Doe, Court of Appeal
(NSW), unreported, 21 June 1995; (1995) NSWJB 58. In my judgment in that case,
I drew attention to the strict
regime established by the Interception Act. At
p 13 of my reasons I said:
"Such a detailed scheme of control is not accidental
It is
designed to protect the privacy and confidentiality of
communications passing over the telecommunications system. This
is to the benefit of all persons having telecommunication
connection within, to or from Australia Section 63 should
not
be given a narrow construction, although it appears in a
provision to which penal sanctions are attached. This is
because
of the high public policy, recognised and given effect
to by the Act, for the protection of privacy and confidentiality
of
telecommunications. It takes little imagination to appreciate
that (in interceptions as had occurred there) the telephone
conversations of many law abiding citizens will have been
recorded ... They will have expressed themselves, in a high
expectation
of privacy and confidentiality, about matters
which are personal, potentially embarrassing, hurtful and
destructive of relationships
as well as banal and harmless.
It would be an affront to the obvious purpose of the Parliament
in the Act if the record of
such conversations, or any of them,
came into the public domain except to the extent permitted by
the Act, relevantly in
a prescribed proceeding. "
After referring to United States court decisions, those of England, other
decisions of the European Court
of Human Rights and the Commission and court
decisions in Canada, I concluded:
"These cases show the uniform vigilance in countries
like
Australia to protect the fundamental values which are
potentially challenged by telephonic interception unless that
facility is limited in its operation and kept under the close
supervision of the law ... The Act, by providing as it does
in s 63, gives effects to the will of the Parliament that such
misuse will not occur in Australia but will be strictly
controlled. It is the duty of this Court, unless the Act is
shown to be invalid, to give effect to its terms in proper
proceedings and to accept its declaration of the high public
interest which exists in this country in the protection of the
record of information lawfully obtained, under a warrant. "
4. The validity of the Interception Act generally has been upheld.
Its
predecessor, the Telephonic Communications (Interception) Act 1960 (Cth) was
upheld by the High Court in Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 and Hilton v
Wells and Ors [1985] HCA 16; (1985) 157 CLR 57, 74. It was found in Miller that the Act was
intended to be the whole law on the subject of interception of
telecommunications. In
Doe, this Court rejected an argument that s 63 of the
Act was beyond power. No question of the validity of the Act was raised in
the
present case. Accordingly, the duty of the Court is to apply the Act according
to its terms;
5. That duty is to find the meaning
of the Act which best achieves its
purpose. Ministerial speeches and other background material including
statements of basic rights
may be useful for resolving ambiguities. But if the
language of the Act is ultimately clear enough, the duty of the Court is also
clear:
"It is always possible that through oversight or inadvertence the
clear intention of the Parliament fails to be translated
into the
text of the law. However unfortunate it may be when that happens,
the task of the Court remains clear. The function
of the Court
is to give effect to the will of Parliament as expressed in the
law."
See Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518. That is why so much of
the time of the Court, in considering this referred matter, has been taken up
in analysis of the language
of s 5B(a) properly understood in its context and
by reference to the other provisions of the Act;
Some arguments favour the DPP's
construction
16. Very properly, the DPP conceded that there was no specific statement in
the Act which helped to resolve the problem
before the Court. Nor was any
authority upon its meaning called to our notice, save for the opinions of
Levine J and of Smart J.
Certainly, no decision of a court, binding on this
Court, requires us to give a particular meaning to the Act. This Court must
therefore
seek to derive the preferable construction using the available
techniques of statutory construction but never straying far from the
language
used by Parliament to which the ultimate loyalty of the Court must be offered.
17. Certain arguments favour the submissions
advanced for the DPP:,
1. Unlike the other paragraphs of s 5B, the relevant description of the
"exempt proceeding" in this case
is preceded by the phrase "a proceeding by
way of a prosecution'. By juxtaposition with the other paragraphs, it must be
assumed
that Parliament had a particular purpose in adding that phrase. It
repeated the phrase in para (f). So it is a deliberate addition.
It appears to
be intended to soften the classification of a "prosecution for a prescribed
offence" and to extend the application
of that expression to a wider range of
proceedings than might otherwise be embraced by a "prosecution", strictly so
called;
2. The
words "by way of', when used adjectively, have been considered in
authority. In NEC Information Systems Australia Pty Limited v Lockhart
(1991)
22 NSWLR 518 (CA), I examined the phrase "a proceeding by way of an appeal" in
s 6(8) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. I pointed out
that, by juxtaposition, the phrase was not accidental. It appeared in a number
of subsections of that Act, both in
the Federal statute and in its cognate
State equivalents. Quite possibly, it is the product of the same drafting
hand. Of this expression
I said, at 522:
"Proceedings are thus included which though not an 'appeal'
strictly so-called can properly be viewed as
being in the nature
of an appeal or for the purpose of an appeal or 'by way of an
appeal."
With this extension in mind,
I held that a summons for leave to appeal to this
Court was a "proceeding by way of an appeal". Its object was directed to the
same
end. It was the pursuit of an appellate right. Meagher JA (with whom
Samuels JA agreed) did not dissent from this opinion;
3. Likewise
the word "proceeding" has a wide denotation. It is defined in s 5
of the Act to mean, relevantly, "a proceeding ... in a Court of
a State or
Territory". Curiously para (c) of the definition is wider still:
"(c) An examination or proposed examination by or
before such a
Tribunal, body, authority or person. "
This paragraph does not, however, extend to an examination before such
a court
as is referred to in para (c). Had it done so, it would probably have embraced
the examination of the accused in a proceeding
by way of a prosecution for a
prescribed offence. The DPP urged that it would be extremely odd. if an
examination ancillary to a
"tribunal, body, authority or person" could permit
the use of information secured by an intercept yet a proceeding in a court,
incidental
to the very substantive prosecution for a prescribed offence was
excluded; 4. The word "proceeding", standing alone, has traditionally
also
been given a wide meaning by the common law. Because the statutory definition
in s 5 repeats the word "proceeding", this broad
definition is incorporated
into the Act. In Krextile Holdings Pty Limited v Widdows [1974] VicRp 83; (1974) VR 689 (SCV),
Gillard J, at 693, in the context of the Companies Act 1961, s 243 gave the
word "proceedings" a very broad ambit:
"In my opinion all the matters that flow, directly from or are
invoked
by the making of an order as a part of a process of
winding up under the provisions of the Companies Act 1961 are
'proceedings in relation to the winding up'."
Of course, the words "in relation to" are broad words of connection. They
do
not appear in s 5B(a) of the Act; 5. One of the reasons which lay behind the
strict view of the Act taken by this Court in Doe
(above) and in the opinions
expressed in Parliament concerning the operation of the Act when the Bill was
being debated, was the
concern that information, secured by a lawful
intercept, should not haemorrhage. Once it does, it is difficult, even
impossible,
to retrieve it. In Doe, I emphasised that the Act established a
regime whereby, even in the case of legally obtained information,
its use was
to be "limited ... and kept under the close supervision of the law". (See
ibid, 16). The DPP pointed out that, in a bail
application, the use of the
intercepted information would remain under the strict control of a judicial
officer who could adopt such
expedients as were compatible with an open
hearing to avoid the revelation of irrelevant or prejudicial material not
strictly necessary
to the application in hand. To that extent, some of the
anxieties expressed in Doe, in the context of a threatened general publication
of information, said originally to have been obtained legally but "leaked" to
the media, would be averted. If a bail application
were regarded as part and
parcel of "a proceeding by way of a prosecution for a prescribed offence", the
dangers of the misuse of
the information which were troubling the Court in Doe
would be reduced by the retention of judicial control;
6. Bail is such a common
incidental feature of criminal prosecutions. It is so
universal in cases of serious offences, of the kind with which the Act is,
by
definition, concerned, that to divorce a bail application from the proceedings
by way of a prosecution for a prescribed offence"
is to draw a distinction
which is unwarranted by the practicalities of Australian criminal procedure.
It was an absurd distinction.
It should not be one ascribed to Parliament;
7. This point was reinforced by the DPP's submission that the procedure
contemplated
by the opponent's construction of the Act was so unworkable that
it could not have been Parliament's intention. Thus, a magistrate
hearing a
committal, would be obliged to receive information obtained by a lawful
intercept because such was an "exempt proceeding"
by s 5B(a) (as interpreted)
and expressly by s 6J. Yet, at the end of the day's hearing, if an application
for bail were made, the
magistrate would not be entitled to receive in
evidence, as relevant to the bail application, the very information which
earlier
in the day he or she had received as relevant to the "prescribed
offence". Although the information in the record might be available
for public
reporting to the world at large, based upon material received in open court,
the magistrate would have to dissect his
or her mind and to put the record of
the interception completely out of account. So inconvenient, even ridiculous,
was this suggestion
that it could not have been Parliament's purpose;
8. Bail is not the only interlocutory proceeding annexed to a prosecution for
a prescribed offence. There are others, including applications for a stay of a
criminal prosecution, applications for procedural
orders etc. Unless a broad
construction were adopted, which subsumed such proceedings within the scope of
the statutory definition
in s 5B(a) incongruous and inconvenient results would
follow. By the ordinary canons of constructions, the Court would adopt an
approach
to the meaning of the Act which endeavoured to avoid such
consequences; and
9. The Act is intended to operate in all States and
Territories of Australia.
Bail rights and procedures are different in these several jurisdictions.
There is no Federal Bail Act. It can therefore be assumed that when the
Federal Parliament enacted S 5B(a), it did so intending the broad language of
the paragraph
to operate upon the differential criminal procedure, including
the bail law of the several States and Territories. This understanding
of the
intended operation of the Act reinforced the need to provide a large ambit for
the application of the phrase "by way of a
prosecution".
The foregoing arguments are not without force. In particular, the arguments of
inconvenience are strong. The avoidance
of absurd, incongruous and highly
inconvenient results in legislation is a function of the courts, derived from
the presumption that
Parliament would not intend such results. Cf Bermingham v
Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 (CA),
299. The modem approach to the construction of legislation is to endeavour to
avoid such outcomes. In Kingston v Keprose Pty Limited
(1987) 11 NSWLR 404
(CA) at 424, McHugh JA, in an often quoted explanation of the purposive
approach to construction of statutes, cited Lord Diplock's injunction:
"If... the Courts can identify the target of Parliamentary
legislation their proper function is to see that it is hit: not
merely to record that it has been missed": "The Courts as
Legislators", The Lawyer and Justice (Sweet and Maxwell) (1978)
at
274.
I approach the present task of construction in this positive spirit.
The language does not bear the DPP's construction
18. Unfortunately, I do not consider that the language of the Act will
tolerate the construction urged by the DPP. My reasons are
as follows:
1. An application for "bail" could not, in the ordinary use of that word of
the English language, be classified as "a
proceeding by way of a prosecution
for a prescribed offence". It is connected to such a proceeding. It is adjunct
to it. It arises
out of it. It is related to it. But it is not such a
proceeding. This is the essential reason why Levine J declined the invitation
to classify it so. A bail application, of itself, simply cannot be put into
that description
2. Nor is an application for bail a
proceeding "by way of" a prosecution. In
order to find the genus of this extended phrase, it is necessary to ask, as
was done in
Lockhart, what is the characteristic of a 'prosecution" which the
phrase "by way of' is intended to extend. A prosecution is a proceeding
on a
charge of criminal offence designed to lead to a conviction with consequent
criminal punishment. That is why in Shepherd, Jenkinson
J, rightly in my view,
held that a committal was a "proceeding by way of a prosecution". It was a
proceeding which had the same object.
Not so in the case of a bail
application. It is no part of the purpose of a bail application to punish an
accused person. It would
be a misuse of the bail discretion to refuse bail in
order to impose a criminal sanction on the applicant. Although the effect of
the refusal is a loss of liberty, that is not its purpose and object. Yet the
purpose and object of a 'prosecution for a prescribed
offence" may well be, in
a given case, the deprivation of liberty. This is the fundamental distinction
between a "proceeding by way
of a prosecution" and a bail proceeding. In most
cases, they have antithetical, and in all cases different, objectives;
3. The scheme
of the Act, as I have demonstrated in Doe and in this case, is
unusually strict. It is designed to attain the high objectives of
protecting
the individual privacy of telecommunications and community trust in the
integrity of the telecommunications system and
those who lawfully intercept
it. The Court is obliged to conform to this strict regime. If Parliament
wishes to make exceptions,
it can do so. If it wishes to amend the Act, it can
do so, as it did in the case of s 6J relevant to the content of the very
phrase
now under scrutiny;
4. The amendment to the Act by the addition of s 6J, even after the favourable
decision in Shepherd (above),
runs against the arguments of the DPP. Care must
be taken in the use of the canon of construction known as expressio unius. See
Housein
v Under-Secretary, Department of Industrial Relations and Technology
(NSW), [1982] HCA 2; (1982) 148 CLR 88, 94. But the addition to the Act of s 6J cannot be
regarded as entirely irrelevant. It suggests that those advising the
Government
and Parliament contemplated that even a committal proceeding would
not come within s 5B(a). This was all the more remarkable because
the decision
of Jenkinson J in Shepherd held that it did. By specifically providing for
committals, it is arguable that Parliament
acknowledged that other related
proceedings which were not strictly "by way of a prosecution" were to be taken
as being outside the
phrase; 5. The arguments of inconvenience and absurdity
which were addressed to the Court, were answered by Sackville J when a similar
submission was put in Taciak v Commissioner of Australian Federal Police,
Federal Court, unreported, 24 August 1995. There the question
arose whether
lawfully intercepted information was available to the Commissioner of Police
in deciding not to reappoint a member
of the Australian Federal Police. It was
held that it was not. The arguments of absurdity were strongly pressed.
Sackville J was
unconvinced:
"It is well established that the Court should not impute to the
legislature an intention to interfere with
fundamental rights,
freedoms or immunities; such an intention must be clearly
manifested by clear and unmistakable language:
Coco v The Queen
[1994] HCA 15; (1994) 179 CLR 427 at 436-437. ... The close link between the
fundamental right to be secure against trespass and the right to
privacy is illustrated
by the observations by Lord Scarman in
Morris v Beardmore (1981) AC 446 ... Parliament itself has ...
recognised, in the context of telecommunications, the
fundamental importance of protecting
individual privacy,
although also recognising that the value of privacy can be
over-ridden where it conflicts with other
significant community
values, provided that detailed safeguards are observed. The
recognition and protection of privacy in
the Intercept Act,
in my view, justifies a restrictive approach to the
construction of the statutory exceptions to the prohibitions
on interception. ... where there is a genuine doubt as to whether
the statutory language authorises the use of intercept
information for a particular purpose, that doubt should be
resolved in favour of a narrow, rather than a broad
construction
of the statutory authorisation."
6. If this view results in a construction which is deemed by Parliament to be
too narrow, it is
open to Parliament to amend the Act, as it did in the case
of s 6J. At least then the strict scheme, sanctioned by Parliament, will
be
reviewed by Parliament and not modified by a judicial decision based upon
perceived inconvenience. Such decisions are not only
an illicit usurpation of
the responsibility of Parliament in such an important matter. They have a
tendency to erode parliament's
purpose which is always to be derived from the
language it has used.
Conclusion and orders
19. The result is that I consider
that the opinion expressed by Levine J was
correct. It accords with an analogous decision of the Federal Court in Taciak.
The record
of the information obtained by the lawful intercept may not be
received in a bail application because that application is not a proceeding
by
way of a prosecution for a prescribed offence. No other basis for its
reception was argued. Levine J was thus correct to reject
the tender of the
record in the first bail application in the Supreme Court. The judge hearing
the second bail application should
do likewise.
20. In earlier times, bail was conventionally refused to an accused charged
with murder. See R v Borsboom (1887) 4 WN (NSW) 14 (SC); R v Strong (1935) 52
WN (NSW), 179 (SC); Re bail application [1966] VicRp 71; (1966) VR 506 (SC). See also R v Higgs
(1962) 79 WN (NSW) 335 (SC). The statutory change to bail law in New South
Wales has introduced different general considerations, although it is still
relevant
to consider whether a person facing a serious charge may attempt to
flee to escape a severe penalty. See Reg v Walters (1979) 2 NSWLR 284 (SC),
285. Or interfere with witnesses. ibid, 286. At the time when murder was a
capital offence, it was considered that it was too risky
to grant bail for the
accused had every motivation to flee. That position has now been changed by
the Bail Act 1978. However, by s 9(1) of that Act the presumption in favour of
bail in s 9(2) is inapplicable to a person charged with the offence of murder.
See s 9(1)(f).
21. It is not possible for this Court to determine the bail application on
its merits. Nor would that be a correct course. It
will be necessary for the
bail application now to be heard; but without consideration of the information
obtained by the lawful intercept.
22. The orders which I favour are:
1. Declare that the application by John Serratore for bail is not a
proceeding by way of
a prosecution for a prescribed offence within the meaning
of s 5B(a) of the Telecommunications (Interception) Act 1979 (Cth); and
2. Order that the proceedings be returned to the Criminal Division of the
Supreme Court for the consideration of the
application by John Serratore for
bail, conformably with the opinion of this Court.
JUDGE2
COLE JA Smart J removed to the Court
of Appeal pursuant to Part 12 rule 2(1)
for determination by this Court the question:
"Whether, for the purpose of s.5(a) of the Telecommunication
(Interception)
Act 1979 (Commonwealth), a bail application
pursuant to the Bail Act 1978 (NSW) is an exempt proceeding."
BACKGROUND
2. The matter arises in the following circumstances.
On 17 April 1995 John Serratore,
the opponent, was taken into custody charged
with the offence of 'soliciting to murder" pursuant to s.26 Crimes Act 1900.
An application for bail was made to a magistrate and refused. An application
for bail was lodged in the Supreme Court on 7 June
1995. The matter came
before Levine J on 29 June 1995. On the bail application the Crown sought to
place before Levine J certain
material being transcript of recordings of
intercepted telephone conversations which were alleged to be between the
opponent and
others. Levine J declined to receive that material. His Honour
referred to ss.63. 63A, 74 and 5B Telecommunication (Interception) Act 1979
(Commonwealth). Bail was granted.
3. On 20 September 1995 the opponent
was charged with murder and taken into
custody. He was refused bail by a magistrate and made application for bail to
Smart J on 6
October 1995. Smart J did not determine the bail application but
referred the question I have set out to this Court. His Honour stated:
"I regard a bail application as an incident or ancillary to a
proceeding by way of a prosecution for a prescribed offence
and
thus failing within the s5B(a)."
4. That decision was contrary to the view expressed by Levine J. The matter
was referred
to the Court of Appeal to resolve the conflict of views.
THE STATUTORY PROVISIONS
5. The use which can be made of legally intercepted
telecommunications is
found in the Telecommunication Interception Act 1979 (Commonwealth). The
provisions material to the question
to be answered are the following. Section
7 provides:
"7.(1) A person shall not:
(a) intercept;
(b) authorize, suffer
or permit another person to intercept; or
(c) do any act or thing that will enable him or another person to
intercept; a
communication passing over a telecommunications
system.
(2) Subsection (1) does not apply to or in relation to:
(a) an
act or thing done by an employee of a carrier in the
course of his duties for or in connection with:
(i) the installation
of any line, or the installation of any
equipment, used or intended for use in connection with a
telecommunications service
or the operation or maintenance
of a telecommunications system; or
(ii) the identifying or tracing of any person who has
contravened. or is suspected of having contravened or being
likely to contravene, a provision of Part VIIB of the Crimes Act
1914;
(aa) the interception of a communication by another person
lawfully engaged in duties relating to the installation,
connection or maintenance of equipment or a line;
(b) the interception of a communication under a warrant; or
(c) the interception
of a communication pursuant to a request
made, or purporting to be made, under subsection 30(1) or (2)."
6. Thus the general
position is that interception of telecommunications is
unlawful except for the circumstances contemplated by s.7(2). It was accepted
for the purposes of the argument before the Court that the material sought to
be tendered falls within an exception within s.7(2).
7. Section 74 provides:
"74(1) A person may give lawfully obtained information (other
than section 11A information) in
evidence in an exempt
proceeding.
(2) For the purposes of applying subsection (1) in relation to
information, the question
whether or not a communication was
intercepted in contravention of subsection 7(1) may be determined
on the balance of probabilities."
8. Thus lawfully intercepted information may be given in evidence, but only
in an exempt proceeding".
9. Further, s.63 provides:
"63. Subject to this Part, a person shall not, after the
commencement of this Part:
(a) communicate to another person,
make use of, or make a
record of; or
(b) give in evidence in a proceeding;
lawfully obtained information or information
obtained by
intercepting a communication in contravention of subsection
7(1)."
10. The issue thus becomes whether a bail
application under the Bail Act is
an "exempt proceeding".
11. "Exempt proceedings" are defined in s.5B. That section provides:
"5B. A reference in this
Act to an exempt proceeding is a
reference to:
(a) a proceeding by way of prosecution for a prescribed offence;
(b) a
proceeding for the confiscation or forfeiture of
property, or for the imposition of a pecuniary penalty. in
connection with
the commission of a prescribed offence;
(c) a proceeding for the taking of evidence pursuant to section
43 of the Extradition Act 1988, in so far as the proceeding
relates to a prescribed offence;
(d) a proceeding for the extradition of a person from a
State or Territory to another State or Territory, in so far
as the proceeding relates to a prescribed offence;
(e) a police
disciplinary proceeding;
(f) any other proceeding (not being a proceeding by way of a
prosecution for an offence) in so far
as it relates to
alleged misbehaviour, or alleged improper conduct, of an
officer of the Commonwealth or of a State;
(g) a proceeding for the recovery of an amount due to a
carrier in connection with the supply of a telecommunications
service;
or
(h) a proceeding under section 13 of the Mutual Assistance in
Criminal Matters Act 1987 in relation to a criminal matter
(within the meaning of that Act) that concerns an offence,
against the laws of the foreign
country that made the request
resulting in the proceeding, that is punishable by imprisonment
for life or for a period, or
maximum period, of at least 3
years."
12. It was accepted by the Crown that the only subsection into which a bail
application
might fall is subsection (a).
13. "Proceeding" is defined in s.5 to mean:
"(a) a proceeding or proposed proceeding in a federal
court or in
a court of a State or Territory;
(b) a proceeding or proposed proceeding, or a hearing or proposed
hearing,
before a tribunal in Australia, or before any other body,
authority or person in Australia having power to hear or examine
evidence; or
(c) an examination or proposed examination by or before such a
tribunal, body, authority or person..."
14.
Murder is a 'prescribed offence" within the definition of that expression
as conviction attracts a permissible punishment of at
least three years.
15. The natural use of language does not permit one to say that a bail
application is "a prosecution for a
prescribed offence". Indeed, it is rather
the contrary. The Crown prosecutes for offences. A person so prosecuted may be
taken into
custody. That person may seek his liberty pending committal or
trial. "Bail" is defined under the Bail Act 1978 to mean "authorisation to be
at liberty under this Act, instead of in custody". It has long had that
meaning at common law((1) See
R v Nottingham Corporation (1897) 2 QB 502 per
Pollack B; The Law of Bail: D H K Donovan p.20). The power to grant bail was
thus a common law power which power has been superseded
by the statutory
provisions found in the Bail Act 1978. The power to grant bail is found in
s.6. The application is by the person detained in custody. It is thus by the
person prosecuted, rather than by the party who would bring
"a proceeding by
way of a prosecution for a prescribed offence", in New South Wales that being
the Director of Public Prosecutions.
16. The argument advanced on behalf of the Crown may be briefly stated. It
was that some meaning must be given to the words "a
proceeding by way of' in
s.5B(a). "By way of' must be taken to mean a proceeding which is
"intrinsically linked to the proceedings
by way of a prosecution". Bail
proceedings have no independent existence outside the criminal prosecution,
and must thus be said
to be so "intrinsically linked". Being "ancillary
proceedings" to the prosecution for a prescribed offence, such proceedings
must
be read as being included within s.5B(a).
17. The expression "proceedings" has been the subject of judicial
consideration((2)
NEC information Systems v Lockhart (1991) 22 NSWLR 518;
Krextile holdings Pty Limited v Widows [1974] VicRp 83; (1974) VR 689; Make v Norris (1990) 20
NSWLR 300-, Yates v The Queen (1884) 14 QBD 648 at 654.). In some
circumstances, the meaning given to the word may be extended.
18. Further, in Shepherd v Griffiths and Anor((3)
[1985] FCA 126; (1985) 60 ALR 176),
Jenkinson J was called upon to consider the admissibility of intercepted
telecommunications in committal proceedings. His Honour
was of the view that a
committal proceeding could properly be described as a "prosecution" and thus
within the expression "a proceeding
.. by way of a prosecution". Thus the
evidence was held admissible. Notwithstanding that decision, there was
subsequently enacted
by amending legislation s.6J Telecommunication
(Interception) Act 1979 (Commonwealth). It provides:
"A reference in this Act
to a proceeding by way of a prosecution
for an offence includes a reference to a proceedings with a view
to the committal
of a person for trial for the offence."
19. The Crown sought to rely upon Jenkinson J's decision to contend that an
application
for bail "naturally conforms with what would be regarded as
proceedings by way of a prosecution".
20. Additionally, the Crown
contended that it would be absurd if the material
legally intercepted was not admissible in a bail application. That was said to
be so because the material was obviously admissible in committal proceedings,
or in a trial. A bail application could be brought
at any time; for instance,
whilst committal proceedings were being heard. The legislature could not have
intended that a magistrate
hearing committal proceedings and having received
the legally intercepted material for consideration in the committal
proceedings
should nonetheless not be permitted to have regard to it if
application were made by the accused person for bail.
21. There is
much to be said for the patent absurdity which flows from a
magistrate or a judge being obliged to disregard material which otherwise
may
be admitted in committal or criminal proceedings, which may be heard by
members of the public in court, and which may be widely
disseminated by the
media, being nonetheless unavailable to be considered by a judge on a bail
application.
22. Nonetheless, the
court is bound by the expressions used by Parliament in
defining "exempt proceedings", they being the only proceedings in which such
material may be received. The legislature did not enact that an exempt
proceeding is a proceeding associated with, or ancillary to,
or in consequence
of, a prosecution for a prescribed offence. There is no justification for
reading those words into s.5B(a).
23.
That view is reinforced by other provisions in the Act. Section 63A used
expressions such as "for a purpose connected with", and
"or otherwise arising
out of" in connection with proceedings or applications begun prior to the
commencement of the Telecommunication
(Interception) Act 1979 (Commonwealth).
In addition, by enacting s.6J confirming the decision in Shepherd v Griffiths,
the legislature
thought it necessary to enact that a "proceeding by way of a
prosecution" included a reference to a proceeding "with a view to the
committal of a person for trial". What else maybe "included" is not clear, but
there is nothing in ss.6J or 5B to suggest that it
includes an application for
bail by the person charged, as distinct from a step being taken by the
prosecuting authority as part
of "a prosecution for a prescribed offence".
24. As the legislature has enacted that it is only in "exempt proceedings"
that lawfully
obtained telecommunication interceptions may be given in
evidence, the narrow issue is whether a bail proceeding is an exempt
proceeding
being "a proceeding by way of a prosecution for a prescribed
offence". For the reasons given, in my view it is not.
25. The question
should be answered "No".
26. The bail application should be referred back to a judge of the Common Law
Division to be dealt with
in accordance with law.
27. In view of the public importance of this matter, these reasons for
judgment should be drawn to the
attention of the Commonwealth Attorney
General.
JUDGE3
SANTOW AJA The factual circumstances are set out in the Judgment of Kirby
P
and I do not therefore need to repeat them.
2. The fundamental issue to be determined is whether an application for bail
made
by a person accused of a "prescribed offence", within the meaning of
s5(1) of the Telecommunication (Interception) Act 1979 (Cth)
("the Act")
constitutes "an exempt proceeding" within the meaning of s5B(a) of that Act.
This is so as to permit certain telephone
intercepts assumed to have been
lawfully made to be given in evidence at that application for bail in
accordance with Part 7 of the
Act and in particular s74. This is as an
exception to the prohibition on the communication of such telephone intercepts
in s63 of
Part 7.
3. Section 5B(a) of the Act provides as follows:
"5B A reference in this Act to an exempt proceeding is a
reference
to:
(a) a proceeding by way of a prosecution for a prescribed
offence; or...
4. It is of assistance in the interpretation
of this critical definition that
I quote paragraphs (b) through (d) of s5B as these are the only other
references in the definition
of "exempt proceedings" to a "prescribed offence"
and each of which paragraphs define an alternative "exempt proceeding". The
remaining
paragraphs (e) through (i) involve other proceedings of various
kinds not related to a "prescribed offence".
"(b) a proceeding
for the confiscation or forfeiture of property,
or for the imposition of a pecuniary penalty, in connection with
the commission
of a prescribed offence; or
(c) a proceeding for the taking of evidence pursuant to section
43 of the Extradition Act 1988 in so far as the proceeding
relates to a prescribed offence; or
(d) a proceeding for the extradition of a person from a
State or Territory to another State or Territory, in so far
as the proceeding relates to a prescribed offence;"
"Proceeding"
in s5(1) of the Act is defined to mean, inter alia,
"a proceeding or proposed proceeding in a federal court or in a court of a
State
or Territory" as well as encompassing proceedings before a tribunal in
Australia or other body having power to hear or examine evidence,
or an
examination or proposed examination by or before such a tribunal or body.
"Prescribed offence" is defined by s5(1) of
the Act to mean,
inter alia, "(a) a serious offence".
5. By s5(1) of the Act a "serious offence" means "an offence that is
or has
been a class 1 offence or a class 2 offence". Those terms are in turn defined
to include various serious offences including,
relevantly in the present case,
murder.
6. Finally, s6J of the Act states
"6J. A reference in this Act to a proceeding by
way of a
prosecution for an offence includes a reference to a proceeding
with a view to the committal of a person for trial
for the
offence."
7. In John Fairfax Publications Pty Limited v Doe (Court of Appeal, 21 June
1995 unreported), the Court
of Appeal dealt with the constitutionality of the
Act in the context of contempt proceedings. Gleeson CJ at 13 characterised the
Act in these words:
"It is not surprising that Parliament, in enacting a law to
permit secret surveillance of citizens,
should limit,
stringently, the use to which the products of such surveillance
can be put."
8. Earlier, at 8, in dealing
with the basal prohibition in s63 of the Act, he
identified the problem inherent in the present case when he said:
"The problem
is to give s63 a meaning which is not so narrow as
to defeat the purpose of the legislation, and not so wide as to
make the
legislation unreasonably oppressive. "
9. In both Gleeson CJ's Judgment (at 13) and in the Judgment of Kirby P (at
14 to 16),
as well as in the Minister's Second Reading Speech, there is
recognition of the requirement, recognised also in a number of jurisdictions
and under international law, of the need for stringent controls in relation to
the circumstances in which the fight of privacy of
an individual may be
subordinated. This is in permitting telephone interception, or access to its
results, in the limited cases allowed
by the Act for its purposes.
10. The question in the present case is the extent to which Parliament has
curtailed the individual
fight to privacy in creating a category of exception
to the prohibition in s63 of the Act for an "exempt proceeding". Resolution
of
that question in favour of a narrow curtailment of that fight of privacy
accords with the approach taken by the Court of Appeal
in John Fairfax
Publications Pty Ltd, in the absence of clear language to the contrary.
11. In identifying the purpose of the
legislation, one may start with the
preamble to the Act. This is "an Act to prohibit the interception of
telecommunications except
where authorised in special circumstances or for the
purpose of tracing the location of callers in emergencies, and for related
purposes."
The Minister's Second Reading Speech of 30 April 1987 recognised
that the existing provisions of the then legislation
"would
be inadequate for the purpose of controlling the flow, of
intercepted information, given that the National Crime Authority,
the State Drug Crime commission and the State and Territory
police forces are to be able to apply for interception warrants."
12. He then pointed to what he characterised as the stringent controls on the
communication of information lawfully obtained.
In so doing he makes reference
to the new Part 7 and paraphrases what became s5B(a), as follows:
"For this reason, the Bill
provides for a new Part VII to be
inserted in the legislation, which provides stringent controls on
the communication of
information lawfully obtained by
telecommunications interception, whether obtained on a warrant
issued to the Australian
Federal Police, National Crime
Authority or a State or Territory law enforcement agency. The
Bill provides that lawfully
intercepted information may be used
in evidence in proceedings for the prosecution of an offence,
punishable by three years
imprisonment or longer; in proceedings
for the confiscation or forfeiture of property in connection with
the commission of
an offence punishable by three years
imprisonment or longer; in certain extradition proceedings; in
proceedings of a disciplinary
nature against a police officer,
whether Federal, State or Territory; or in proceedings for
alleged misbehaviour against
an officer of the Commonwealth, a
State or Territory. (Hansard 30 April 1987 at 2308)
13. Earlier references in the Second
Reading Speech deal with the process for
permitting warrants under the Act to be issued. They recognise that a Judge
will be required
to consider, "in addition to the matters to be considered for
class 1 offences, how much the privacy of any person would be likely
to be
interfered with if an interception were issued; and the gravity of the
particular conduct being investigated."
14. At 2307
the Minister states,
"In the Government's view, allowing interception warrants to be
obtained for these classes of offences
will provide an effective
tool for law enforcement agencies, and assist in the fight
against organised crime. At the same
time, the community is
assured that telecommunications interception powers will only be
used for the more serious criminal
offences; and that this
particular power will not be used as part of any ordinary
criminal investigation. This is a further
indication of the
Government's recognition of the very important privacy interests
involved in the exercise of the telecommunications
interception
power. "
15. It is thus clear that there is no suggestion in the Minister's Second
Reading Speech that the safeguards
applicable to the issuance of a warrant
authorising interception obviate the need for the further stringent controls
on the communication
of such information lawfully obtained, under Part 7 of
the Act. The Minister refers specifically in the earlier quoted passage (at
2308 of Hansard) to the permitted use of lawfully intercepted information "in
evidence in proceedings for the prosecution of an offence,
punishable by three
years imprisonment or longer ..." (my emphasis). There is no suggestion of any
legislative intention to dilute
those stringent controls by permitting the use
of such intercepted information in what are not strictly proceedings for the
prosecution
of an offence so punishable. This might have been suggested by an
expansive interpretation of "proceeding by way of prosecution"
in s5B(a) of
the Act. But it is significant that the Minister used the word "for", rather
suggesting a narrower scope to those words
in the Act.
16. The Director of Public Prosecutions contended that a bail application was
an exempt proceedings under s5B(a) and
that to interpret "bail proceedings' as
did Levine J as falling outside s5B(a) was an overly narrow construction of
the words used.
He contended that it would also prevent the Crown from
tendering evidence so obtained which might show that the accused was a danger
to the community, when that same evidence could be available and permitted to
be tendered in the conduct of the Crown case against
the accused.
17. The DPP introduced his argument by contending that a bail application is
no more than an ancillary proceedings
in the overall prosecutorial proceedings
and not separate proceedings initiated to obtain bail. It is important that I
set out the
basis put by the DPP for that proposition.
"A bail application call only be made after "a proceedings by way
of a prosecution"
has been initiated. Bail is defined in the Bail
Act as an "authorisation to be at liberty under this Act, instead
of in custody". (Section 4(a) Bail Act). Bail call only be granted
to an "accused person " (section 6 Bail Act). An accused person
includes a person charged with all offence (section 4(2) Bail
Act). It is submitted that the application for bail is thereby
intrinsically linked to the proceedings by way of a prosecution.
The bail proceedings have no independent existence outside the
criminal prosecution. A prosecution itself is commenced by
the
laying of a charge or an information((4) Regina -v- Hull (1989)
16 NSWLR 385 at 393A-C, Allerton and Craig -v- DPP (1991) 24 NSWLR
550 at 557F-558C (see also 53 A Crim R 33 at 40.1-5)) and this
act invokes the operation of the Bail Act((5) Regina -v-
Rademeyer (1985) 1 NSWLR 285 at 288.9 page 306A-E). It is
therefore submitted that the bail application is no more than all
ancillary proceeding in the
overall proceedings and not separate
proceedings "initiated by Mr Serratore to obtain bail" as
Suggested in the judgment
of Levine J."
18. He then contended that the words "proceedings by way of a prosecution"
necessarily have a wider meaning than
if simply prosecution had been referred
to. Thus in NEC Information Systems Australia Pty Limited v Lockhart (1991) 22
NSWLR 518 Kirby P in considering the meaning of the term "proceedings by way
of trial" treated the words "by way of' as encompassing that which
can
properly be viewed as being "in the nature of an appeal, for the purpose of an
appeal, or 'by way of an appeal" and that "the
word 'appeal' can, in a
particular context, be given a wide meaning" at 522 D-E. It should be noted
however that Kirby P was simply
construing those words in a particular
context. The issue in the present case is whether the very different context
of an exception
to the strict controls on the use of intercepted information
should be given a wider or a narrower ambit.
19. The DPP referred
to a number of other cases in different contexts where
an expansive interpretation of "proceedings" was given, such as in the context
of a winding up (Krextile Holdings Pty. Limited v Widdows [1974] VicRp 83; (1974) VR 689 per
Gillard J). However, all of these are but illustrations of the proposition
that the word "proceedings" is capable of a variety
of meanings so that it is
therefore necessary to have regard to the statutory context in which the term
is used; Blake v Norris
(1990) 20 NSWLR 300 per Smart J.
20. In Shepherd v Griffiths and Anor [1985] FCA 126; (1985) 60 ALR 176 Jenkinson J concluded
that the phrase "a proceeding ... by way of prosecution" when used in s7 of
the Act before it was amended necessarily
included "committal proceedings". He
first acknowledged that committal has been differentiated from prosecution.
Thus William Blackstone
commences the 21st chapter of Book IV of his
Commentaries with a progressive order for proceeding in the courts of criminal
jurisdiction
where "commitment and bail" precede "prosecution". Nonetheless in
the somewhat different statutory context with which he was dealing,
he
concluded:
"I think that it is in accordance with common usage in legal
discourse to speak of a committal proceedings
as a prosecution.
That usage is exemplified in the judgment of Stephen J in Sankey
v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 79; [1978] HCA 43; 21 ALR 505 at 558, as it is also
in the language of statutory provisions regulating committal
proceedings in Victoria and New south
Wales, to which I have
referred. And the legal conception of a criminal prosecution
comprehends, in my opinion, the preliminary
investigation which
is set in train by the laying before a stipendiary magistrate of
an information charging the commission
of an indictable offence
against the Jaw of the commonwealth or of a State or Territory.
A committal proceeding was regarded
by Brett MR as within the
conception of "criminal prosecution, in Yates v R (1885) 14 QBD
648 at 655, 657, 658."
21. To the argument that the bail proceedings have no independent existence
outside the criminal prosecution
and that a bail application can only be made
after "a proceedings by way of prosecution" there is a short answer. In for
example
New South Wales, a bail application, may be made only by "an accused
person" (s4(2) of the Bail Act 1978 (NSW)), defined as "a person charged with,
convicted of or found guilty of an offence". Nonetheless that bail application
may pre-date
the commencement of the prosecution. This is because as R v
Rademeyer (supra) held, "charged" does not mean the formal charging with
an
offence before a Court. Rather it "relates to the formal verbal statement of
the charge, usually by a police officer, following
upon arrest" typically at
the scene of an alleged crime or at a police station, per Yeldham J at 288. At
that point while a condition
precedent for a prosecution later to be brought
may be fulfilled, the prosecution has yet to be commenced as a proceeding. An
applicant
for bail at that time in those circumstances would be applying for
bail prior to the commencement of a proceeding by way of prosecution
in the
normal sense. Bail and prosecution may be frequently associated with one
another, but they are by no means inevitable concomitants
of one another. It
is self-evident that the application for bail is an application to be released
from imprisonment. It is in no
sense a proceeding "in the nature of' a
prosecution or "for the purpose of' a prosecution, or otherwise "by way of'
prosecution or
in its furtherance. It is, on the contrary, an application by
the subject (not prosecutor) seeking liberty from imprisonment.
22.
In sum, the fact that both prosecution and bail application require,
inter alia, an "accused person" duly charged, does not render
a bail
application ancillary to the prosecution or an Aspect of it. This is to argue
from correlation to causation. In logic, merely
because events B and C may
depend in a causal sense in part on a prior event A, does not render B an
aspect of C or vice versa.
23. It is true that the prosecutor may have a vital interest in opposing the
application for bail. Indeed under s48(1)(a)(iv) of the Bail Act 1978 (NSW)
the DPP may also initiate a review of a bail decision, though that latter is
not what is occurring here. Furthermore, amongst
the criteria to be considered
in bail applications is the probability of whether or not the person will
appear in court in respect
of the offence for which bail is being considered,
having regard to various matters. However, it should be noted that this is but
one of the criteria for bail to be considered; see s32(1) of the Bail Act 1978
(NSW). Indeed that fact emphasises that the Bail Act 1978 (NSW) is in fact a
self-contained code (R v Hilton (1986) 7 NSWLR 745 at 750) in which the
matters to be considered in a bail application are exhaustively and
exclusively set out.
24. The position
is not uniform in every State but it is accurate enough to
state that bail, whether as a common law right or by statute, is a distinct
code applicable to a charged person. Its grant permits a charged person, in
essence, to obtain liberty from prison, conditional upon
that person appearing
at a later time before court to answer bail, generally upon that person's
guarantee to so appear; see B H K
Donovan the Law of Bail, Legal Books Pty
Limited 1981, for a history of bail and its modem features. Thus bail is
wholly distinct
from prosecution. It calls for consideration of matters
differentiated from those pertaining to the establishment of guilt or
innocence
via a prosecution.
25. Indeed when one turns to the statutory context and in particular s5B(a)
through (d) of the Act, it is clear
that each of the proceedings there
referred to are proceedings which would not be initiated by the accused. They
rather have to do
with the furtherance of proceedings against the accused or
the accused's property or for the imposition of a pecuniary penalty or
for the
taking of evidence or the extradition of a person, in each case concerned with
a " prescribed offence". Such a context does
not suggest that bail proceedings
are similar in kind to the common genus of this group of exempt proceedings.
26. It is also
significant that s6J of the Act expressly includes "a
proceeding with a view to the committal of a person for trial" in any
reference
to "a proceeding by way of a prosecution for an offence". As was
said in an analogous context in John Fairfax Publications "That
being a
subject upon which express provision has been made, it would be contrary to
principle to conclude that there is an implication
which covers the subject
matter of the express provisions and takes them somewhat further"; per Gleeson
CJ at 10. Thus it is difficult
to see why s6J of the Act were added if s5B(a)
already included a committal proceeding. It might have been done for abundant
caution
and by way of clarification, particularly as it adds committal
proceedings with the word "includes". Even were that so, a committal
can
readily be seen to be in furtherance of the prosecutorial process and an
integral part of it, in contradistinction to a bail
application.
27. Indeed were s5B(a) of the Act to be read as embracing any proceeding for
a bail application which the prosecutor
opposed, this would be to characterise
the proceeding as being by way of a prosecution merely because of that
opposition. The alternative
of treating all bail applications, opposed or not
by the prosecutor, as being proceedings "by way of" a prosecution, leads also
to
an absurd result. It is certainly not an interpretation to be adopted
consonant with the purposes of the Act, more especially in
the absence of
clear language requiring that result. Put simply, a bail application is not a
proceeding by the prosecution nor in
furtherance of the prosecution. The role
of the prosecutor when opposing bail does not give the application the
character of a "proceeding
by way of a prosecution", though a prosecution may
be expected to ensue or already be in train.
28. Finally, it is said that as
a matter of public policy it would be absurd
and capable of bringing the administration of justice into disrepute were
telephone
intercepts lawfully obtained, able to be used in the actual Crown
case but not in the bail application itself The answer to that
contention,
apart from the language of the Act itself, is that a bail application may
occur before the time when the Crown first
presents its case. Indeed the Crown
may never present a case which includes the telephone intercepts. The
telephone intercepts may
be relevant, if at all, only to the bail application
or for other reasons may not be used in the Crown case. Thus it does not
follow
that the interests of privacy would inevitably be invaded when the
Crown presents its case with the result that there is no injury
to that right
of privacy by reason of use of the telephone intercepts at the bail
application. But recognising there may be an anomalous
result in some
circumstances (though not inevitably), that should not compel a result which
is contrary to the terms of the Act,
properly construed and which fails to
reflect the stringent controls emphasised by the Minister in his Second
Reading Speech earlier
quoted. Sackville J in Taciak v The Commissioner of the
Australian Federal Police (Federal Court 24 August 1995, unreported) was
not
deterred by such a possible anomaly from the proper construction of the Act.
He favoured a restrictive approach to exceptions
to the prohibitions on
interception where there was genuine doubt whether the statutory language
authorises the use of intercept
information; here I do not consider there is
much room for doubt.
29. It is open to the Legislature by future amendment if it
so desires, and
with whatever appropriate safeguards, to alter the balance struck by the Act
between the individual's right of privacy
and the prosecution of serious
crime; that is, to do so by expressly permitting the use of telephone
intercepts in a wider category
of proceeding to embrace bail applications or
the review of bail applications particularly where the community may be at
risk by
release.
30. As Sackville J put it in Taciak
"Parliament itself has ... recognised in the context of
telecommunications,
the fundamental importance of protecting
individual privacy, although also recognising that the value
of privacy can be overridden
where it conflicts with other
significant community values, provided that detailed
safeguards are observed"
31. However,
I am satisfied that the legislation in its present form and
context and as a matter of its plain meaning, does not permit the use
of such
telephone intercepts in bail applications.
32. I agree with the orders and declaration of Kirby P.
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