• Publication and communication of information obtained by the conduct of surveillance
• The use of illegally obtained surveillance material as evidence in legal proceedings
• Incidentally obtained evidence
• Pre-trial disclosure of surveillance evidence
• Suppressing the publication of surveillance evidence
• Security and storage of covert surveillance material
• Destruction of surveillance information

9.1 This chapter looks at the use of information obtained from covert surveillance. Typical purposes of covert surveillance include gathering information leading to the exposure of fraud, theft, corruption and other offences. The information may result in the arrest and prosecution of offenders, and may be used as evidence in legal proceedings. Surveillance material can also assist in private or media investigations. Placing restrictions on the use of information obtained from the conduct of surveillance assists in maintaining a balance between surveillance for legitimate and necessary purposes and the privacy of individuals. It also promotes the accountability of those conducting surveillance.

9.2 The first issue examined in this chapter relates to the publication or communication of information obtained as a result of covert surveillance. In particular, the chapter examines a number of issues relating to the use of evidence in legal proceedings. These are as follows:

• the admissibility of illegally obtained evidence;
• the admissibility of information which relates to matters other than those for which the warrant or authorisation was issued;
• pre-trial disclosure requirements where surveillance evidence is relevant or proposed to be used in legal proceedings; and
• the power to make suppression orders in proceedings involving surveillance evidence.

PUBLICATION AND COMMUNICATION OF INFORMATION OBTAINED BY THE CONDUCT OF SURVEILLANCE

9.3 Information is often obtained through the conduct of surveillance with the intention of publishing or communicating that information to other people. Publication or communication may be in the form of telling a colleague, informing the police, passing on police information to prosecutors, using the information in court proceedings or broadcasting the information in the print or electronic media. The Listening Devices Act 1984 (NSW) (“LDA”) contains two prohibitions on the publication and communication of private conversations recorded with the use of listening devices. The first, found in section 6 of the LDA, prohibits any person from knowingly communicating or publishing to any other person a private conversation, which has come to person’s knowledge as the result of the illegal use of a listening device. There are three exceptions to this prohibition.¹ The first class of exceptions is where the communication or publication is made to a party to the conversation, or with the express or implied consent of all of the principal parties to the conversation, or in proceedings for an offence against the LDA. The second is where the communication or publication is not more than is reasonably necessary in connection with: an imminent threat of serious violence to persons or of substantial damage to property; or a serious narcotics offence. The third is where the listening device was illegally used “to prevent a person who has gained knowledge of the conversation by means other than the illegal use of a listening device, even if they also have knowledge from such illegal use, from publishing or communicating information concerning the conversation.”

9.4 Section 6 of the LDA applies only to the situation where the private conversation was obtained through an unlawful use of listening devices. Therefore, private conversations recorded by a listening device authorised by a warrant may, as a general rule,² be used for any purpose without breaching section 6.

9.5 The second prohibition, found in section 7 of the LDA, makes it an offence for a person who has been a party to a private conversation and has used a listening device to record the conversation (whether in contravention of the LDA or not) from communicating or publishing any resulting record of that conversation.³ There are also exceptions to this section.⁴ These include where the communication or publication:

• is made to another party to the conversation or with the express or implied consent of all of the principal parties;⁵
• is made in the course of legal proceedings;
• is not more than is reasonable necessary for the protection of the lawful interests of the communicator or publisher;
• is communicated to a person who has, or is believed to have, such an interest in the conversation as to make the communication reasonable in the circumstances; or
• is made by a person who used the listening device pursuant to a warrant under the LDA or an authority granted under the Telecommunications (Interception) Act 1979 (Cth) (“Interception Act”) or any other Commonwealth law.

9.6 Listening or surveillance devices legislation in other Australian States and territories have varying approaches to the regulation of the use of surveillance information. The approach of the legislation in Queensland, Tasmania, and the Australian Capital Territory is similar to the LDA. This approach incorporates two basic rules. The first is a general rule prohibiting communication and publication of recorded private conversations, subject to certain exceptions.⁶ The prohibition applies only to private conversations unlawfully listened to, leaving the communication and publication of legally recorded private conversations unregulated. The second rule is one that applies specifically to parties to the conversation.⁷ This rule also consists of a general prohibition with exceptions, although these exceptions are different from the exceptions to the first rule. Moreover, in contrast to the first rule, the second rule applies regardless of whether a record of the private conversation was obtained legally or not.

9.7 In South Australia, the legislation prohibits, without exception, the communication or publication of information or material obtained unlawfully.⁸ Where the information was obtained under a warrant, it is likewise unlawful for a person to knowingly communicate or publish it, except in the course of duty or as required by law.⁹ The legislation then makes provisions for a separate rule to apply where the listening device was used by one of the parties (presumably a law enforcement officer) to the conversation for certain purposes. He or she may communicate the recordings if it is: in the course of their duty; in the public interest; or for the protection of their lawful interests. The South Australian legislation differs from the law in New South Wales, Queensland, Tasmania, and the Australian Capital Territory in two fundamental ways. First, it regulates legal recordings. Second, it does not provide for exceptions to the prohibition on the communication of unlawful recordings. However, illegally obtained recordings may be relevant for some purposes, such as in investigations and prosecutions of law enforcement officers who committed the illegality.

9.8 The Surveillance Devices Act 2000 (NT) does not makes a distinction between unlawful and lawful recordings and regulates both.¹⁰ Neither does it have a separate provision for persons who have been party to the private conversations or activities which were the subject of the surveillance.

9.9 The Surveillance Devices Act 1999 (Vic) prohibits the communication or publication of private conversations or activities that have been the direct or indirect result of the use of a listening device, an optical device, tracking device¹¹ or data surveillance device.¹² This is subject to a list of exceptions. It does not distinguish between private conversations or activities that were obtained by the lawful use of the device and those that were obtained unlawfully. It does not have a separate provision for persons who have been party to the private conversations or activities which were the subject of the surveillance.

9.10 The Surveillance Devices Act 1998 (WA) has a framework similar to that of the Victoria and Northern Territory legislation,¹³ although some of the exceptions are different. Moreover, it provides for a separate regime for information obtained through the unauthorised use of a surveillance device in the public interest. Private conversation or activity that has come to a person’s knowledge as a direct or indirect result of the use of a listening device or optical device in the public interest may be used only if authorised by an order made by a judge.¹⁴

Conclusion

9.11 The main shortcoming of the LDA provisions is that there are no limits on the use that can be made of information obtained legally under the LDA. For example, private conversations recorded by police with the use of a listening device pursuant to a warrant may be used not only in connection with the investigation and prosecution of a crime but may also be passed on to anybody, without violating the provisions of the LDA. The Commission considers that the protection the law affords the individual’s privacy interests should extend beyond ensuring that he or she is not subjected to unjustified surveillance. It should extend to protecting the information obtained from the surveillance activity. This protection should apply regardless of whether the information was obtained lawfully or unlawfully. The mere fact that a covert surveillance operation was lawful does not justify the use of the surveillance information for any purpose, however unrelated to the purpose for which the warrant was granted.

9.12 The Commission is also of the view that the distinction in the LDA between information recorded by parties and non-parties to a private conversation should not be adopted in the proposed surveillance legislation. The rule in the LDA which applies to communication or publication by parties to the private conversation is mainly aimed at complementing its participant monitoring provisions, which allow one party to a conversation to record it without the consent of the other parties when particular conditions have been met.¹⁵ In Chapter 2, the Commission recommends that the proposed surveillance legislation should not contain participant monitoring provisions. It follows from this recommendation that, in regulating the use of information obtained through the conduct of surveillance, there is no longer a need to distinguish between parties and non-parties.

9.13 The Commission favours an approach (adopted in Victoria, Western Australia and the Northern Territory) which generally prohibits every person, including parties and non-parties to the activity which was the subject of the surveillance, from communicating or publishing any information obtained as a result of surveillance, whether legal or illegal. The prohibition should be subject to exceptions which should, in the main, be limited to allowing the information to be used for the purposes for which the surveillance was authorised, or where such use is necessary or reasonable under the circumstances.

Exceptions to the prohibition on the communication or publication of surveillance information

9.14 Surveillance technology is increasingly being relied on in the detection and investigation of offences, and in order to gather evidence that will be used in legal proceedings. Electronic evidence gathering has significant advantages over more conventional means of obtaining information, such as providing a direct and contemporaneous account of an event, which may avoid many of the threshold evidentiary issues.¹⁶ The proposed surveillance legislation should allow the communication of surveillance information for the purpose of investigation and prosecution of offences. It should also allow the information to be used in related proceedings, such as bail proceedings or those involving the confiscation of the profits of a crime or the forfeiture of property that is tainted property in respect of an offence.¹⁷

9.15 Where surveillance has been conducted illegally, the information gathered from that surveillance will also be relevant in prosecuting the surveillance user, or, where applicable, in disciplinary proceedings. Furthermore, the Commission recommends in Chapter 10 that a civil right of action be available for people whose interests have been affected by unlawful surveillance. In order to establish a cause of action or substantiate a claim for relief, the plaintiff will need to obtain access to surveillance material and communicate it to counsel and the court. By the same token, the defendant to the action may also need to use the material in question for his or her defence.

9.16 The Commission considers it necessary to provide that surveillance information may be published in the interests of public safety. For example, if the subject of surveillance is suspected of having committed serious crimes, it may be in the public interest to publicise the fact that that person has a history of violence and may be dangerous, and/or to publish some of the material gathered through surveillance, such as the suspect’s photograph. The law enforcement officers and members of the media should be allowed to use the surveillance information in these circumstances.

9.17 Finally, if all parties to the private conversation or activity that was the subject of the surveillance consented to the communication or publication of the information obtained from the surveillance, they should be considered to have waived whatever protection the law otherwise gave them.

Recommendation 81

The proposed Surveillance Act should contain a general prohibition on the publication or communication of all information obtained as a result of the conduct of surveillance, whether the surveillance has been authorised or not, subject to the following exceptions. The prohibition should not apply where the communication or publication of the information is made:

(a) by a law enforcement officer:

• to another law enforcement officer for the purpose of investigating or prosecuting an offence;
• to the DPP or other prosecuting officer for the purpose of prosecuting an offence; or
• is otherwise made in the performance of his or her duty;
(b) in the course of, or for the purposes of, legal proceedings, including proceedings for the prosecution of offences, bail proceedings and those involving confiscation or forfeiture of property in relation to an offence;

(c) in the course of, or for the purposes of, investigations or criminal, civil or disciplinary proceedings related to any violation of the proposed Surveillance Act;

(d) in the belief based on reasonable grounds that it was necessary in connection with an imminent threat of serious violence to persons, or of substantial damage to property;

(e) with the consent of all of the parties to the conversation or activity.

Breach of this provision should be an offence.

Publication or communication of surveillance information obtained pursuant to a public interest or employment authorisation

9.18 The information obtained from surveillance pursuant to public interest and employment authorisations merits a different treatment from that obtained from surveillance pursuant to a warrant. While the main purpose of surveillance by law enforcement officers is to investigate offences and gather evidence, the purposes for which private individuals may need to conduct surveillance are more varied. The Commission is of the view that the exceptions that will allow law enforcement agencies to use information obtained from surveillance should not apply to the material gathered by employers, the media and other private individuals. The Commission agrees with the approach in Western Australia, where information obtained pursuant to surveillance in the public interest may be used only upon order by the court.¹⁸ . Further, since the Commission has recommended that prior authorisation must be obtained to conduct surveillance in the public interest or in the employment context,¹⁹ the Commission considers that an applicant should outline in the application for authorisation the intended use of the information. If the holder of the authorisation wants to use the surveillance information for a purpose not stated in the authorisation, he or she should apply to the issuing authority for approval to do so.

Recommendation 82

The proposed Surveillance Act should provide that when a public interest or employment authorisation is made, the order must specify the purposes for which the information obtained though the conduct of surveillance may be used and the circumstances under which the information may be published or communicated. Breach of the terms of the authorisation should constitute an offence. The proposed Surveillance Act should provide that the issuing authority may authorise, at the completion of the surveillance, the use of information obtained by the surveillance for a purpose other than that specified in the authorisation.

9.19 This section examines the issue of what treatment should be afforded material obtained illegally, but which may be relevant evidence in criminal or civil proceedings. The issue involves balancing two competing interests. On the one hand, there is the public interest in full information being available for the accurate determination of facts in legal proceedings. In criminal trials, in particular, there is a public interest in securing the conviction and punishment of those guilty of a crime. On the other hand, there is a public interest in protecting individuals from infringements of their rights by authorities who have the obligation of enforcing and upholding the law.

9.20 The Commission has considered three alternative approaches for dealing with evidence obtained illegally.

General admission of illegally obtained evidence

9.21 The first approach is to admit illegally obtained evidence. In England, although it is settled that a criminal trial judge has the discretion to refuse to admit evidence where its prejudicial effect outweighs its probative value,²⁰ it has been ruled that the judge “has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.”²¹ In R v Khan,²² for example, the House of Lords decided that an illegal covert recording of a conversation was admissible, even though obtaining the recording involved trespass and damage to property. Lord Nolan commented that it would be a “strange reflection on the law” if a person who had admitted involvement in an offence could have the conviction set aside because his privacy had been invaded.²³ One commentator has suggested that, on balance, the current English case law favours the admission of illegal or improper surveillance evidence “in the absence of blatant bad faith or oppression on the part of the investigators.”²⁴

9.22 The advantages of this approach include maximising the amount of evidence admitted for the consideration of the courts and reducing the complexity of the trial by circumventing issues such as the illegality of the evidence.²⁵ It is arguable that the illegality committed by law enforcement officers is better dealt with, not by excluding the evidence they have gathered but, by imposing administrative, civil or penal liability on them.

9.23 The counter argument is that this approach ignores the quality of the evidence. Evidence which was illegally or improperly obtained may not be reliable and, if so, its admission would result in an unfair trial. This approach is not consistent with the duty of the courts to ensure that the criminal process is fair.²⁶ It also ignores the reality that victims of unlawful methods of criminal investigation often do not have other avenues to obtain justice apart from having the incriminating evidence against them excluded. This approach may also be criticised on the ground that it involves the court itself in giving, or appearing to give, effect to illegality or impropriety. This perception may damage the repute and integrity of the judicial process.

Discretion to exclude evidence

9.24 Section 138 of the Evidence Act 1995 (NSW) (“Evidence Act”) provides that evidence that was illegally or improperly obtained “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.” This provision reflects the common law.

9.25 At common law in Australia, there is a discretion to exclude unlawfully or improperly obtained evidence. This is commonly referred to as the public policy discretion. The High Court has ruled that when unlawful means are employed to procure evidence, the judge has a discretion to reject it:

In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.²⁷

9.27 A distinction is made between the fairness and public policy discretions on the basis that while the former is focused on the effect of the illegality or impropriety on the fairness of the trial in question, the public policy discretion is directed at “large matters of public policy”³⁰ including the inherent quality of the conduct of the police or other person in a position of authority over the accused. It has, however, been recognised that there is an overlap between the area of focus of each.³¹ It has been suggested that fairness to an accused is just one relevant factor in the exercise of the public policy discretion.³²

9.28 A number of cases have applied or considered either or both of the public policy and fairness discretions in determining the admissibility of surveillance evidence.³³

9.29 Section 138 of Evidence Act implements the recommendation of the Australian Law Reform Commission,³⁴ which this Commission supported.³⁵ The courts have construed this section as co-extensive with the common law.³⁶ It differs, however, from the common law discretion in a number of ways. For example, section 138 applies to civil proceedings³⁷ while the common law discretion has largely been applied in criminal cases. At common law, the onus is on the accused to prove the illegality or impropriety and justify the exclusion. Under section 138, the party seeking exclusion of the evidence has the threshold onus of establishing that it was improperly or illegally obtained. If that onus is met, it is for the party seeking the admission of the evidence to satisfy the court that the desirability of admitting such evidence outweighs the undesirability of admitting it, given the way in which it was obtained.³⁸

9.30 Furthermore, section 138 identifies factors relevant in the exercise of the discretion³⁹ that are wider than those found in common law.⁴⁰ The listing of these factors in the legislation was considered necessary to “minimise 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”.⁴¹

9.31 Section 138 does not refer to unfairness to the defendant as a consideration in the exercise of the discretion. However, section 90 of the Evidence Act creates a discretion to refuse to admit evidence if “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”⁴² Moreover, section 137 of the Evidence Act provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

9.32 One of the main advantages of the discretionary approach found in the common law and now in the Evidence Act is that it gives courts flexibility in deciding whether or not to admit illegally obtained evidence. The courts are not bound to uphold a particular interest, for example, the public interest in upholding the rights of the accused which may have been violated by unlawful police conduct, over all others in all circumstances. It allows them to consider other interests, such as the public interest in the conviction and sentencing of offenders, and to decide each case based on all the relevant facts. The approach recognises the role of courts in balancing the rights of individuals against competing public interests.

9.33 It has also been asserted that a clear advantage of the discretionary rule is that “it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities.”⁴³

9.34 However, it can also be argued that the discretionary approach introduces a degree of uncertainty and unpredictability into decision making.⁴⁴ Illegally obtained evidence may be excluded in one case but admitted in another, even where the circumstances are similar. The outcome may depend on an individual judge’s view on the weight of a particular interest. A seeming inconsistency in the application of the discretion may weaken the deterrent effect which is sought to be achieved by the exercise of the discretion.

9.35 The Australian Law Reform Commission recognised the difficulties surrounding the discretionary approach. To minimise them, it stated that it was important “to indicate precisely the nature of the competing interests which should be balanced and to articulate the factors which should be taken into account in the exercise of the discretion.”⁴⁵ Section 138 of the Evidence Act does not identify the competing interests but specifies factors which courts must consider when exercising their discretion.⁴⁶

Exclusionary rule

9.36 The third approach to illegally obtained evidence is to apply a blanket exclusion. This position is best exemplified in the United States where evidence obtained by means of illegal search and seizure methods is excluded,⁴⁷ if a timely application is made to suppress the evidence.⁴⁸ Once it is established that the means of gathering the evidence was unconstitutional or otherwise unlawful, the courts must hold the evidence as inadmissible. This exclusionary rule in the United States rests upon the prohibition of unreasonable searches and seizures contained in the Fourth Amendment of the Constitution,⁴⁹ although that Amendment contains no express provision precluding the use of evidence obtained in violation of its provisions.⁵⁰ The Federal statute which regulates wire-tapping and electronic surveillance implements the exclusionary rule developed by the US Supreme Court.⁵¹

9.37 Section 13 of the LDA deals with the question of admission of illegally obtained material in evidence by providing that evidence of a private conversation recorded in breach of the LDA may not be given in any civil or criminal proceedings. Section 13 provides for exceptions⁵² which are not found in the strict US model.⁵³ However, they are very limited in application. For example, the discretion to admit illegally obtained evidence under section 13(2)(d) applies only in proceedings for an offence punishable by penal servitude for life or for 20 years or more, or a serious narcotics offence. The exceptions in section 13 do not dilute the essentially exclusionary nature of the provision.

9.38 The arguments for the exclusionary rule include certainty and predictability. The stakeholders in the criminal justice system, namely the police, prosecution, the accused, the legal practitioners and the judge, know that if the rights of the accused are violated through an illegal method of investigation, the results of such illegality will not be admissible in court.⁵⁴ It may be argued that this approach has a greater impact on deterring illegal police action than a case by case discretionary approach. The clarity of the rule provides a strong disincentive to impropriety.⁵⁵ It can also be argued that, in matters involving competing public interests, such as those involving the right of the accused and the efficiency of the criminal justice system, it is the legislature which should decide which interest has priority and legislate accordingly instead of leaving this matter for the courts to resolve.⁵⁶

9.39 Several empirical studies have been conducted on the impact of the exclusionary rule on criminal prosecutions in the United States, in an attempt to determine whether the rule has any deterrent effect on illegal conduct by the police.⁵⁷ The United States Supreme Court has, with reference to the research, observed that it has not been conclusively established whether the exclusionary rule has the desired deterrent effect in situations where it is applied.⁵⁸ It appears that the US Supreme Court continues to rely on the rule on the basis of the Court’s own assumptions regarding human nature and the interrelationships between the various components of the law enforcement system, rather than on empirical evidence showing the rule’s effectiveness.⁵⁹

9.40 Apart from the lack of evidence demonstrating that the exclusionary rule is effective in deterring improper police conduct, the rule may be criticised for its inflexibility. It treats trivial illegalities in the same manner as deliberate and serious ones.⁶⁰ It also does not take into account the fact that the law enforcement officers involved have been, or are likely to be, punished or that the victim of the illegality may be compensated for the damage done.⁶¹

Conclusion

9.41 Courts in Australia have, in recent times, gradually recognised the public interest in upholding the rights of individuals against illegal or improper conduct by the authorities. Allowing illegally obtained evidence to be admitted in court proceedings would be contrary to this trend and, arguably, retrogressive. It ignores the supervisory role of courts in monitoring the operation of the criminal justice system, including ensuring that the rights of individuals are respected. The approach gives the appearance, if not the effect, of courts sanctioning illegality in a way that is incompatible with their fundamental function of upholding the law. Moreover, on occasions, evidence which was illegally or improperly obtained may not be reliable and to allow its admission would result in unfair trials.

9.42 Both the exclusionary and discretionary rules acknowledge the importance of policing abuses of authority which invariably involve violation of rights. The exclusionary rule in the US was developed as a means of deterring police misconduct and is designed to enforce constitutional rights, mainly the right not to be subjected to unreasonable searches and seizures. The public policy discretion was developed in Australia to serve a similar function but differs markedly from the exclusionary rule by the fact that other interests which come into play in the criminal process are balanced against the public interest in protecting individuals from illegal or improper investigation procedures.

9.43 For the purposes of the proposed surveillance legislation, the Commission prefers the discretionary approach to the exclusionary rule. The Commission does not subscribe to elevating a particular public interest as superior to all others in every given case, as the exclusionary rule does. The public interest in securing the conviction of the guilty, upholding the rights of individuals, deterring misconduct by law enforcement agencies, and others such as private investigators, and maintaining the legitimacy of the judicial system should all be weighed together in deciding the propriety of admitting illegally obtained evidence.

9.44 Furthermore, the exclusionary rule is too inflexible. As noted above, the rule generally does not distinguish between illegalities committed deliberately and those committed as a result of mistake. It also does not take into account the fact that the law enforcement officers involved have been or are likely to be punished or that the victim of the illegality may have other forms of redress. The Commission is of the view that circumstances such as these should be considered relevant in the admission or exclusion of the illegally obtained evidence.

9.45 There are, in the Commission’s view, no sound policy reasons to support a special rule for the admissibility of illegal evidence, when it was obtained through the conduct of surveillance. The rule for evidence procured by illegal surveillance ought to be in line with the rule for all illegally obtained evidence, obtained in any other circumstances.

Recommendation 83

The admission of evidence obtained in violation of the proposed Surveillance Act should be governed by the Evidence Act 1995 (NSW) and the general law on evidence.

9.46 Based on the Commission’s consultations with the police and private investigation groups, it would appear that in conducting investigations, it is common for them to encounter material relating to an offence that they had not sought to investigate. The LDA contains provisions regarding the admissibility of evidence obtained incidentally under a listening device warrant. Section 14 of the LDA provides:

(1) Where a private conversation has inadvertently or unexpectedly come to the knowledge of a person as a result, direct or indirect, of the use of a listening device pursuant to a warrant granted under Part 4:

(a) evidence of the conversation, or

(b) evidence obtained as a consequence of the conversation so coming to the knowledge of that person,

may be given by that person in any criminal proceedings (including proceedings for or in connection with the grant of bail) notwithstanding that the warrant was not granted for the purpose of allowing the evidence to be obtained.


(2) Subsection (1) does not render any evidence admissible if:

(a) the evidence relates to an offence in respect of which a warrant could not be granted in Part 4, or
(b) the application upon which the warrant was granted was not, in the opinion of the court, made in good faith.

9.48 In one case, a listening device warrant was granted under the LDA on the basis of a suspicion that the subject of the warrant application was about to commit the offence of supplying the prohibited drug of cocaine.⁶³ The recordings made pursuant to the warrant revealed transactions involving methylamphetamine (not cocaine) and the surveillance subject was charged and convicted of possessing that particular drug, for the purpose of sale. In discussing the admissibility of the recordings, the court observed that section 14 of the LDA, if applicable, would render the recordings admissible because “a warrant could have been obtained in New South Wales on the basis of a suspicion that the offence of supplying methylamphetamine was about to be committed.”⁶⁴

9.49 One issue which arises from section 14 is whether evidence of an offence committed by a person other than the suspect named in the warrant is admissible. If police applied for a warrant in connection with the suspected commission by X of the offence of murder and they recorded material incriminating X and Y for the offence of manufacturing prohibited drugs, would this be admissible under section 14 in proceedings against Y? Will it make a difference if the incidental evidence implicated only Y? The courts have not had the opportunity settle these questions. However, section 14 states that evidence of private conversations inadvertently or unexpectedly recorded may be given “in any criminal proceedings.” This language seems broad enough to allow the admission of incidental evidence which incriminates a third person, whether or not such evidence also incriminates the person named in the warrant.

Conclusion

9.50 The Commission agrees with the basic rule contained in section 14. Evidence of crimes committed by the subject other than those authorised in the surveillance warrant should be admitted in evidence. Excluding the evidence would not further any significant privacy interest as the privacy of the individual has already been invaded (lawfully) by the surveillance which was conducted for a designated offence. Formulating a rule which would prevent the use of the inadvertently or incidentally obtained evidence may not change police conduct in the future or protect the privacy of the individual. Furthermore, once the surveillance is authorised by law, there is a public interest in collecting evidence of wrong-doing by the subject of the surveillance. Excluding incidentally obtained evidence may have the effect of insulating a suspect from evidence of one of his or her unlawful activities gathered during the course of a bona fide investigation of another of his or her illegal activities. The Commission considers that a provision similar to section 14 of the LDA should be adopted in the proposed legislation.

Recommendation 84

The proposed Surveillance Act should provide that where a private conversation or activity has inadvertently or unexpectedly come to the knowledge of a person as a result of the conduct of surveillance pursuant to a warrant or authorisation:

(a) evidence of the conversation or activity; and

(b) evidence obtained as a consequence of the conversation or activity

may be given by that person in any criminal proceedings even if the warrant or authorisation was not issued for the purpose of allowing that evidence to be obtained.

This should be subject to the proviso that such evidence will not be admissible if the application upon which the warrant or authorisation was granted was not, in the opinion of the court, made in good faith.

9.51 In certain overseas jurisdictions, the admissibility of surveillance evidence is contingent on the prosecution giving notice to the accused of the intention to bring forward surveillance evidence. For example, the Crimes Act 1961 (NZ) requires, as a condition of admissibility of lawfully intercepted material, that the party intending to adduce the evidence give reasonable notice of such intention, together with: (1) a transcript of the private communication (where evidence is to be given in the form of recording); or (2) a written statement setting out the full particulars of the private communication (where evidence is to be given orally); and (3) a statement regarding the time, place and date of the private communication, and the parties to it, if known.⁶⁵

9.52 The Canadian Criminal Code has an almost identical provision.⁶⁶ Further, section 190 of the Canadian Criminal Code empowers a judge to order that further particulars be given of the private communication which the prosecution intends to adduce in evidence.⁶⁷

9.53 United States legislation also has a similar provision whereby evidence will be inadmissible in any trial or other proceeding in a Federal or State court unless each party has, not less than 10 days before, been furnished with a copy of the court order and application upon which the authorisation for the intercept was based. This requirement may be waived if the judge finds it was not possible to furnish this material, and that the other party will not be prejudiced by a delay or by not receiving it.⁶⁸

9.54 There are a number of reasons for requiring pre-trial disclosures. Thorough pre-trial disclosure is necessary to enable the defendant to decide how to plead. The defendant should understand the facts alleged by the prosecution and the case which he or she would be required to meet.⁶⁹ A fair trial also requires that the defence be informed of all material available to the prosecution, whether or not it is formally admissible, which may be of assistance to the defence, including that which the prosecution does not intend to use as part of its case.⁷⁰ Compulsory prosecution pre-trial disclosure also addresses, to some extent, the inequality of resources between the prosecution and the defendant.⁷¹

9.55 By the same token, compulsory pre-trial disclosure by the defence would facilitate the determination of objections to the admissibility of particular evidence on the grounds of relevance. For the purpose of ruling on questions of admissibility, the trial judge will often need information about the defence case to determine the relevance of evidence. Research conducted on juries in New Zealand⁷² shows that juries were greatly assisted in understanding the evidence if they were informed at an early stage of the issues in the trial. This can only be effectively done if the issues in the trial have been ascertained by some kind of pre-trial procedure.

9.56 Compulsory pre-trial disclosure on the part of both the prosecution and the defence would improve the efficiency of the criminal justice system. Pre-trial disclosure enhances plea discussions and identifies charges to which the defendant might plead, increasing the number of defendants who plead guilty and encouraging guilty pleas at an earlier stage. Early identification of guilty pleas improves the accuracy of court lists, reduces time wasted by all parties preparing for trial, minimises time wasted by all parties on unnecessary court attendances and also reduces wasted court time. It also leads to earlier and improved identification of the issues, facilitating more efficient trial preparation for both parties, shorter trials, fewer adjournments and fewer defence witnesses.⁷³

9.57 The LDA does not currently contain any provision for pre-trial disclosure of material obtained by covert surveillance. None of the other Australian jurisdictions currently makes specific statutory provision for pre-trial disclosure between parties where surveillance is involved although some require police-prosecution disclosure.⁷⁴

9.58 The Commission has recently looked at the issues surrounding pre-trial disclosure as part of its reference on the right to silence. In its report,⁷⁵ the Commission expressed the view that the various pre-trial disclosure obligations, which are mainly contained in guidelines,⁷⁶ should be formalised in legislation.⁷⁷ It also made recommendations specifically on defence disclosures involving surveillance evidence. It recommended that where the prosecution relies on surveillance evidence (electronic or otherwise), the defence must disclose whether strict proof is required and if so, to what extent.⁷⁸ Furthermore, in respect of listening device transcripts proposed by the prosecution to be used or tendered, the Commission recommended that the defence should disclose whether the transcripts are accepted as accurate and, if not, in what respects issue is taken.⁷⁹ The Commission makes no further recommendations on this matter.

9.59 Subsequent to the Commission’s report on the right to silence, the NSW Parliament introduced the Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2000, which would give courts the power to order, in criminal proceedings relating to the trial of a person on indictment, both the prosecution and the accused to undertake pre-trial disclosure.

9.60 The Commission is of the view that there is no need for provisions in the proposed surveillance legislation to deal with pre-trial disclosure of surveillance material. The provisions in the Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2000, if enacted,⁸⁰ are wide enough to require the prosecution to disclose material obtained through surveillance that the prosecution proposes to use or is relevant at the trial, as well as to require the defence to give notice as the whether or not it accepts the accuracy of the proposed surveillance evidence.

SUPPRESSING THE PUBLICATION OF SURVEILLANCE EVIDENCE

9.61 The LDA, in section 13(4), gives courts the power to make suppression orders, that is, orders that limit what may be published about legal proceedings. Their function is to restrict publicity that may prejudice a fair trial or the administration of justice in general. The power given by section 13(4) is limited to orders for the non-publication of evidence obtained in breach of the LDA provisions.⁸¹ Moreover, such orders can be made only in two situations:⁸² for offences against the LDA or its regulations; and for offences punishable by penal servitude for life or for 20 years or more, ⁸³ or a serious narcotics offence.⁸⁴

9.62 The common law has long recognised that a judge may, in certain circumstances, order reports of proceedings to be postponed where such an order would further the interests of justice.⁸⁵ The general position as to whether and to what extent such a non-publication order may bind non-parties to the proceedings remains unclear in New South Wales.⁸⁶ There is dicta to the effect that courts do have the power to make orders, binding on those not present at court, which prohibit or postpone the reporting of what has been heard in open court.⁸⁷ However, in a number of other cases, such a power has also been doubted or denied.⁸⁸ Overall, the weight of common law authority in New South Wales seems to support the position that if courts have an inherent power to make non-publication orders, such an order will only be binding on the parties, witnesses and other persons present in the courtroom. It cannot apply to persons outside the courtroom (media persons, for example) who have no connection with the proceedings in question. The main argument against the existence of such a power is based on the separation of powers between the judiciary and the legislature: an order purporting to bind people generally is in the nature of an exercise of legislative power and therefore beyond the power of a court.⁸⁹

9.63 Some statutory provisions in New South Wales empower tribunals or commissions to issue suppression orders in certain circumstances. The Administrative Decisions Tribunal,⁹⁰ Royal Commissioners and others holding official inquiries of a similar nature⁹¹ and the coroner⁹² are among those who have the power to make suppression orders. In criminal proceedings, section 119 of the Criminal Procedure Act 1986 (NSW) confers a power on any judge to make suppression orders forbidding publication of the evidence in proceedings before him or her. However, the power contained in section 119 is limited in that it applies only to criminal, not civil proceedings and only to proceedings for specific sexual offences. It is subject to the veto power of parties to the proceedings and cannot be invoked in preliminary proceedings like bail applications.

9.64 The Commission has recently published a Discussion Paper, Contempt by Publication (“DP 43”), which deals in part with suppression orders and includes a detailed analysis of section 578 of the Crimes Act 1900 (NSW), the precursor to section 119 of the Criminal Procedure Act 1986 (NSW). In DP 43, the Commission proposed the adoption of a new statutory provision which would grant any court in any proceedings the power to suppress the publication of reports of any part of the proceedings (including documentary material), where such publication would create a substantial risk of prejudice to the administration of justice. The proposed section is not intended to replace the common law or existing statutory powers (such as section 13(4) of the LDA) to restrict publication of court proceedings. The proposal is discussed in detail in Chapter 10 of DP 43. The Commission notes, however, that some of the issues discussed in DP 43 apply equally to the power to issue suppression orders contained in section 13(4) of the LDA. These issues include: the appropriate test for the exercise of the power; the power to suppress names; and the extent of the application of the power.

A test for the use of the power to issue suppression orders

9.65 The Commission considers it essential that any statutory power to issue suppression orders should be governed by a clear test. A possible test is whether the publication of the surveillance evidence will prejudice a fair trial. This test focuses on the potential risk of prejudice which the publication of the evidence may create in the minds of the jurors. An example of an application of this test is where surveillance evidence which is damaging to persons not party to the proceedings, and who do not have an opportunity of rebuttal, is given in a pending proceeding. Where such persons are themselves the subject of separate proceedings, this evidence may prejudice the fairness of their future trial and publication may, therefore, need to be suppressed. Another example is the use of surveillance evidence in preliminary proceedings. If the media were permitted to report on the nature of evidence given at the preliminary hearing, there is a risk that potential jurors in the substantive proceedings will be made aware of, and be influenced by, material that is not subsequently admitted by the court as evidence in the substantive proceedings.

9.66 An alternative test for restricting the publication of surveillance material is whether it would be in the interests of, or in order to prevent prejudice to, the administration of justice. A number of jurisdictions in Australia and overseas have adopted this test, although in varying formulations.⁹³ This test is broader than the fair trial test as it looks at the issue of the fair and efficient administration of justice rather than the fairness of one particular proceeding. In DP 43, the Commission discusses the meaning of the administration of justice and how suppression orders may be used to protect it:

The administration of justice is a very broad term, which covers the detection, prosecution and punishment of offenders. Its proper administration requires not only that trials be fair, but that persons who can assist in its administration be encouraged to participate. Damaging personal publicity may have a negative effect on necessary requirements of the proper administration of justice such as the reporting of crimes, the institution of proceedings or the giving of testimony in court. Publication of court proceedings may also deter law enforcement or national security agencies from giving accurate testimony, where, for example, public knowledge of the details of secret operations or agents would undermine the efficacy of the work of the agency.
The power of courts to issue suppression orders in terms of the “administration of justice” therefore incorporates both the need to prevent prejudice to a fair trial and the need to restrict publicity where this would be prejudicial to the judicial system generally because it would deter popular participation.⁹⁴

9.68 This is not to say that harm, hurt or embarrassment to individuals should be a sufficient basis for a suppression order.⁹⁵ While these factors may be taken into account, the basis of any legislative power to issue suppression orders must be primarily to secure justice.⁹⁶

The power to suppress names as well as evidence

9.69 An order made under section 13(4) of the LDA operates only to suppress evidence, not names. Some New South Wales statutes contain a presumption in favour of non-publication of names in certain cases such as those involving children, participants in adoption and family law proceedings, or sexual offence complaints.⁹⁷ The coroner can also suppress names as well as evidence where media reporting of such information would render impracticable the administration of justice.⁹⁸ Most other jurisdictions provide a general power for suppression of publication of identifying particulars as well as evidence.⁹⁹ Some jurisdictions specifically provide that the publication of identifying particulars of witnesses and of defendants may also be prohibited, irrespective of whether such publication would lead to identification of the complainant.¹⁰⁰

9.70 The Commission has formed the view that the power to make suppression orders under the new surveillance legislation should be extended to cover material which would lead to the identification of parties and witnesses, where suppression is necessary to prevent a substantial risk of prejudice to the administration of justice. The courts should be able to consider whether the publication of identities of witnesses and parties may for some reason, such as fears for their safety, deter them from participating in the particular or similar legal proceedings.

The extent of the application of the power

9.71 The power to issue suppression orders under section 13(4) of the LDA applies to very specific situations. The power cannot be used to prohibit the publication of surveillance evidence which was legally obtained. Nor can it be used in criminal proceedings other than those identified in the section and it cannot be invoked at all in civil proceedings.

9.72 There are clear arguments for suppressing the publication of illegally obtained evidence, especially in proceedings relating to the breach of the law. The non-disclosure of the evidence, as well as the identity of the victims of illegal surveillance, may be an effective means of encouraging the victims and other witnesses to participate fully in the prosecution of those who violated the legislation. However, if the standard for the issue of suppression orders is the prevention of substantial risk to the administration of justice, distinguishing between legally and illegally obtained surveillance evidence cannot be justified. The risk of prejudice in the publication of the evidence may occur regardless of how the evidence was gathered. Legally obtained surveillance evidence which incriminates X and Y, and is admitted in proceedings against X alone, may need to be suppressed to prevent a risk of prejudice in separate proceedings against Y. The publication of evidence from a covert surveillance operation conducted lawfully may cause a risk of prejudice to the administration of justice if parties or witness are deterred from participating in the process. The power to order the non-publication of surveillance material and the identity of participants in these proceedings should depend, not on whether the evidence was legally or illegally obtained, but on the risk of prejudice to the administration of justice which the publication of the evidence may create.

9.73 A distinction has also traditionally been drawn between civil and criminal proceedings and the extent to which restrictions upon their openness should be imposed. This was based on the assumption that derogation from the principle of open justice in the criminal context should be more strictly controlled because the public has a greater interest and role to play in criminal proceedings. If members of the public were deterred by publicity and did not notify the commission of a crime or give testimony in court, a broader public interest was seen to be affected than if a person decided not to bring a civil action or aid in its adjudication.¹⁰¹ A greater public interest was also said to arise where there is some moral component in the wrongdoer being brought to justice.¹⁰²

9.74 However, this distinction between civil and criminal proceedings has been questioned.¹⁰³ There are many civil issues such as discrimination, defamation and civil actions for assault, including sexual assault, which raise issues of great public interest and importance. The Commission’s view is that the power of courts to restrict publication in matters such as these should be based on the same grounds as in criminal matters. The public interest in the proper administration of justice is equally important in such cases, and the courts should only be able to restrict reporting of court proceedings where publication would create a substantial risk of prejudice to the administration of justice.

Recommendation 85

The proposed Surveillance Act should provide that any court, in any proceedings where evidence obtained through the conduct of surveillance is relevant or admitted in evidence, has the power to suppress the publication of reports of any part of the proceedings, where such publication would create a substantial risk of prejudice to the administration of justice, either generally, or in relation to specific proceedings (including the proceedings in which the order is made). The power should apply in both civil and criminal proceedings and should extend to suppression of publication of the evidence as well as material which would lead to the identification of parties and witnesses involved in proceedings before the court. Breach of a suppression order should constitute a criminal offence.

9.75 The LDA does not deal with storage and security of material obtained as a result of the use of a listening device. This can be contrasted to the covert use of video cameras in the workplace where the regulation under the Workplace Video Surveillance Act 1998 (NSW) requires that the licensed security operator who conducts the covert surveillance for the employer should take all reasonable “security safeguards” to ensure that the material is “protected from loss or unauthorised access.¹⁰⁴ The Workplace Video Surveillance Act 1998 (NSW) itself contains provisions designed to protect the security of the video recordings by: (a) restricting what the security operator may supply to the employer to only such portion of the video recordings as is relevant to the suspected involvement of the employee in an unlawful activity in the workplace; and (b) prohibiting the operator from giving any other person access to the video recordings.¹⁰⁵

9.76 Surveillance legislation in some other Australian States provides for secure storage. For example, the Surveillance Devices Act 1999 (Vic) provides that the chief law enforcement officer in an investigation must ensure that every record or report obtained by the use of a surveillance device “is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report”.¹⁰⁶ The legislation in South Australia and Western Australia contain provisions which use very similar language. ¹⁰⁷

9.77 Recent changes to the law in the United Kingdom contain a requirement that the Secretary of State make such arrangements as he or she considers necessary to ensure that the storage of covert surveillance material (and copies of such material) is secure.¹⁰⁸ The relevant legislative provisions in the United States require that material obtained pursuant to a surveillance warrant be “sealed” immediately after the expiration of the warrant (or extensions thereof) by the issuing judge.¹⁰⁹ The judge who seals the record also makes provision for its safe custody.¹¹⁰

9.78 There are two reasons for making legislative provision for the secure storage of material obtained by covert surveillance. The first is to protect the confidentiality of the material, and thus the privacy of the persons subject of the surveillance.¹¹¹ People who are not entitled to deal with the record or report should be prevented from gaining access to it. The second rationale is to protect the reliability and integrity of the material. The United States Supreme Court has stated that the relevant US provisions are directed at preventing law enforcement agencies from having an opportunity to tamper, alter or edit the recorded conversations.¹¹²

9.79 The protection of individual privacy, within the constraints of a realistic legal framework for surveillance, as well as the need to ensure the integrity of material obtained by surveillance, requires provision for safe storage to be included in the proposed surveillance legislation.

Recommendation 86

The proposed Surveillance Act should provide that a person who has obtained material through the conduct of surveillance must ensure that the material and all copies, extracts, summaries or reports of it must be kept in a secure place that is not accessible to people who are not entitled to deal with it. Breach of this requirement should be an offence.

9.80 Section 22 of the LDA provides that “a person shall, as soon a practicable after it has been made, cause to be destroyed so much of the record, whether in writing or otherwise, of any evidence or information obtained by the person by the use of a listening device … as does not relate directly or indirectly to the commission of a prescribed offence.”

9.81 Section 22 presents a number of difficulties. The first relates to its restricted coverage. It applies only where a listening device is used: (a) pursuant to a warrant; or (b) in connection with (i) an imminent threat of serious violence to persons or of substantial damage to property, or (ii) a serious narcotics offence, if it is necessary to use the device immediately to obtain evidence or information.¹¹³ It does not apply to other circumstances where use of a listening device without a warrant is authorised by the LDA.¹¹⁴ Hence, for example, a recording by the police of a refusal by a suspect to consent to the recording of an interview need not be destroyed, regardless of whether the police proceed with the investigation or not.

9.82 Section 22 also does not apply to illegally obtained material. The LDA has not provided for the destruction of this type of material. Consequently, if the police recorded a private conversation in breach of the LDA, they are not required to destroy the recording even if it turns out to be irrelevant for the purposes of an investigation or subsequently ruled by the court to be inadmissible.

9.83 It is unclear why section 22 applies to certain cases where the listening device was used lawfully but not in others. Neither is there an apparent policy reason why its intended benefit does not extend to information obtained illegally. If the aim is to minimise the unnecessary storage of information about individuals and to discard that which is not relevant for any purpose, then a “destruction” provision such as section 22 should apply in every case, regardless of the manner in which the surveillance was conducted.

9.84 Another issue with respect to section 22 relates to the basis for the destruction of the recorded conversation. Under section 22, the recording of the conversation will be destroyed if the person who used the listening device has determined that the recording is not relevant to the commission of a prescribed offence. The surveillance legislation of most of the other Australian States and territories similarly makes the destruction of surveillance material depend upon whether it is relevant to the offence for which use of the device was authorised.¹¹⁵ This, however, fails to consider that the material may have other uses. If for example, the surveillance was conducted illegally, the surveillance material may be used as evidence in the proceedings prosecuting the illegality. Moreover, if the Commission’s recommendations in this report on a civil right of action in respect of a breach of the surveillance legislation are adopted,¹¹⁶ the material will be relevant to such an action. The material may also be relevant to disciplinary proceedings, if any are available, which may be taken against the persons who conducted the surveillance illegally. The “destruction” provision in the Surveillance Devices Act 1999 (Vic), for example, recognises the relevance of surveillance material in disciplinary proceedings.¹¹⁷

9.85 The concern to prevent destruction of material which might assist the subject of the surveillance, either in a civil or in a criminal context, is the basis for the provision in the United States which prohibits, rather than provides for, destruction. Section 2518(8)(b) of the United States Code provides that surveillance records are not to be destroyed except on the order of a judge, and not before ten years have elapsed.¹¹⁸

9.86 Another important issue which the LDA does not address is the destruction of relevant material once it is no longer relevant. Recordings of private conversations which are useful to a police investigation need not be destroyed under section 22 because they relate to an offence. If, however, the material turns out to be irrelevant for prosecution purposes, it is unclear whether the police and the prosecution officers are under an obligation to destroy them. It appears, however, that material which may have been relevant, and in fact used in criminal proceedings, may be retained after the proceedings have terminated. The police can hold indefinitely recordings of private conversations even if the accused was acquitted of the charges. While the law correctly provides for the destruction of surveillance material which are irrelevant from the start as a way of minimising the effects of the intrusion on the subject’s privacy, the law should likewise provide for the destruction of relevant material once it ceases to have any purpose.

The law in other Australian jurisdictions

9.87 The “destruction” provisions in the surveillance legislation in Tasmania and Queensland use terms similar to section 22 of the LDA: recordings of private conversations should be destroyed if they do not relate directly or indirectly to the commission of an offence.¹¹⁹ In South Australia, Western Australia and the Northern Territory, the relevant chief law enforcement officer is required to destroy material where it is not likely to be required in connection with: the investigation in respect of which the warrant (or the emergency authorisation) was issued (or the investigation of another offence); the making of a decision whether or not to prosecute for any offence; or the prosecution of any offence.¹²⁰ The destruction provisions in these States provides a clearer guidance for the destruction of surveillance material by specifying the purposes for which the material may be relevant. Furthermore, it gives a more precise test for determining relevance – whether or not the material is not likely to be required in the specified relevant purposes.

9.88 The Surveillance Devices Act 1999 (Vic) applies the same test as that applied in the South Australian, Western Australian and Northern Territory legislation, but identifies a broader number of proceedings where the surveillance material may be relevant by including: the making of an application under its law on the confiscation of profits from criminal offences; and any disciplinary proceedings.¹²¹

9.89 None of the surveillance legislation of the other Australian jurisdictions makes provision for the eventual destruction of relevant surveillance material.

9.90 At the Commonwealth level, the Customs Act 1901 (Cth) provides that the chief officer of a Commonwealth law enforcement agency which receives a surveillance warrant is required to destroy surveillance records where he or she is satisfied that they will not assist in narcotics inquiries or are not likely to be required in connection with a relevant proceeding.¹²² The Australian Federal Police Act 1979 (Cth) contains the same provisions in relation to offences generally.¹²³ The Interception Act requires the chief officer of the agency conducting the surveillance to destroy the restricted record where the officer is “satisfied that the restricted record is not likely to be required for a permitted purpose in relation to the agency”.¹²⁴ However, this provision in the Interception Act differs from corresponding provisions in other Australian legislation in that it provides for supervision by the Minister for Police and makes provision for the destruction of records which are illegally, as well as legally, obtained.¹²⁵

The law in foreign jurisdictions

9.91 In Canada, the agent of the State who intercepts a private communication in order to prevent bodily harm, is required to destroy, as soon as practicable, any material or notes relating to that interception if nothing in the private conversation suggests that actual, attempted or threatened bodily harm has occurred, or is likely to occur.¹²⁶

9.92 The Crimes Act 1961 (NZ) makes a distinction between relevant and irrelevant material. The law requires the Commissioner of Police to destroy every record of the information lawfully obtained through a listening device and which relates to the offence for which a warrant or emergency permit was granted “as soon as it appears that no proceedings, or no further proceedings, will be taken in which the information would be likely to be required to be produced in evidence.”¹²⁷ Under this provision, material which was relevant to the investigation must be destroyed as soon as it becomes clear that it will not be required in criminal proceedings. The requirement also operates where the material was used in a trial but the proceedings (including appeal proceedings) have terminated. On the other hand, the law requires the destruction of irrelevant material at an earlier stage by providing that every person who lawfully intercepts a private communication in pursuance of an interception warrant or any emergency permit, shall, as soon as practicable after it has been made, destroy information that does not relate directly or indirectly to the commission of an offence for which a listening device may be used.¹²⁸

9.93 In the United Kingdom, general safeguards in the Regulation of Investigatory Powers Act 2000 (UK) require that intercepted material and any related communications data be destroyed “as soon as there are no longer any grounds for retaining it as necessary for the authorised purposes”.¹²⁹

Submissions and Response

9.94 In Issues Paper 12 (“IP 12”), the Commission raised two issues with respect to the destruction of surveillance evidence. The first was whether information obtained illegally pursuant to a listening device warrant should be destroyed if it is excluded from trial on that basis.¹³⁰ Submissions on this issue were divided.

9.95 The Director of Public Prosecutions (“DPP”) submitted that “mandatory destruction of illegally obtained material could potentially prejudice ongoing or future police investigation or future prosecutions or other related proceedings (for example, confiscation proceedings or disciplinary proceedings)”.¹³¹ However, the DPP is in favour of the inclusion of a provision which permits the destruction of illegally obtained material after a specified period, subject to provision being made for cases where the significance of particular material changes in light of new circumstances, or having regard to information not known to those initially assessing the material.¹³²

9.96 The New South Wales Crime Commission, the Independent Commission Against Corruption, the Police Integrity Commission and the National Crime Authority, in their joint submission opposed compulsory destruction of illegally obtained surveillance for the following reasons:

• There may be an appeal of the decision which found the material illegal;
• Material may be required in trial of co-defenders or an unrelated matter such as a Royal Commission;
• Evidence ruled inadmissible in a criminal trial may nevertheless be admitted in civil confiscation proceedings, tribunals and examinations in other jurisdictions or in hearings conducted by an agency; or may be relevant to an investigation being conducted by an agency. The relevance of a piece of listening device material may not become evident until much later.¹³³

9.97 The NSW Police Special Services Group submitted that no agency wishes to retain information unnecessarily. It favoured a provision which permits, but does not require, the destruction of illegally obtained information within a specified period. It said that requiring the destruction of such information should not be compulsory as it may be relevant in appeal proceedings, civil proceedings, or where such information may be relevant in another unrelated matter.¹³⁴ It suggested that the material should not be confiscated for a period of five years.¹³⁵

9.98 Judge Sides QC (formerly Senior Public Defender) drew a distinction between material which is presented in court as evidence and that which never reaches the court. For material used in court proceedings, he argued that the court should be given the power to destroy those parts of the information that have been ruled inadmissible. For information not used in legal proceedings, Judge Sides stated that its destruction should be required after a specific period.¹³⁶

9.99 Price Waterhouse submitted that evidence obtained illegally, excluded from trial for that reason, should be considered for destruction on a case by case basis by either the presiding trial judge or a Supreme Court judge. It suggested that arguments for preserving the integrity of our legal system by destroying illegally obtained evidence may have to give way to considerations of the overall public good.¹³⁷

9.100 The Registered Clubs Association approved of the destruction of video surveillance which has been obtained illegally and excluded from trial, subject to the need to retain the information for other proceedings.¹³⁸

9.101 The Privacy Committee saw no justification for keeping illegally obtained evidence rejected by the court and submitted that it should be destroyed as it has the potential to be extremely damaging to subject.¹³⁹ The NSW Council for Civil Liberties submitted that all illegally obtained evidence should be “destroyed by court officers, with stiff penalties for the retention of such information.”¹⁴⁰

9.102 The related issue raised in IP 12 was whether a specific period of time should be inserted for the destruction of records made from information obtained through a listening device used in accordance with the LDA. This was raised out of concern as to whether the phrase “as soon as practicable” in section 22 of the LDA “is sufficient, or whether a finite period of time should be included.”¹⁴¹ The submissions were divided on this issue.

9.103 The Privacy Committee favoured destruction within a specified period after the surveillance, providing the records are not intended to be used in criminal proceedings.¹⁴² The NSW Young Lawyers Criminal Law Committee expressed the same view.¹⁴³ The Law Society of NSW submitted that the period within which records should be destroyed should be two years.¹⁴⁴ Judge Sides submitted that legislation should provide for the destruction of records within six or twelve months where prosecution has not been instituted.¹⁴⁵ The NSW Police Special Services Group submitted that destruction should be at the discretion of the senior investigator for a period of up to five years, with automatic destruction thereafter.¹⁴⁶

9.104 On the other hand, Price Waterhouse submitted that there should be no specific time set for destruction of material other than “as soon as practicable” because further information may come to light which may, in conjunction with the surveillance material, be relevant to the investigation and prosecution of a crime.¹⁴⁷ The Registered Clubs Association favoured keeping records as long as there is a real prospect of claims (such as unfair dismissal and insurance fraud) being filed based upon the information.¹⁴⁸ The New South Wales Crime Commission, the Independent Commission Against Corruption, the Police Integrity Commission and the National Crime Authority, in their joint submission, were not in favour of a specific time period for the destruction of records.¹⁴⁹ The Director of Public Prosecutions was of the same view, arguing that the significance of particular material may change in light of future circumstances, or having regard to information not known to those initially assessing the material.¹⁵⁰

Conclusion

9.105 The Commission agrees with the underlying policy of section 22 of the LDA, requiring the immediate destruction of surveillance information which is not relevant to an offence. However, the Commission considers that the requirement should apply not just to the cases specified in section 22 but in all cases where surveillance is conducted, whether authorised or not.

9.106 The LDA does not currently provide for the destruction of material which, although initially relevant, subsequently becomes irrelevant or which has simply served its purpose. Surveillance legislation should regulate these situations. Information about individuals should only be stored for as long as there is justification for doing so. For example, law enforcement officers should not be able to hold surveillance information about a person once a decision not to prosecute has been made or once the proceedings where the material may have been relevant have terminated.

9.107 The Commission is also of the view that the destruction of surveillance material should not be based solely on whether or not it is relevant to the offence for which the device was authorised. Section 22 of the LDA assumes that the material is only relevant to the persons who conducted the surveillance. The proposed surveillance legislation should recognise that surveillance material may be relevant for other purposes. In particular, where the surveillance involved an offence or a breach of some kind, the material may be relevant in criminal, civil, administrative or disciplinary proceedings that may be taken as a result of the wrongdoing. The law should ensure that material that is relevant in those proceedings should only be destroyed when the proceedings are finalised.

9.108 In connection with surveillance pursuant to a public interest or employment authorisation, the purpose may not be to investigate or prosecute offences. For example, a public interest authorisation may be granted to a private investigation agency which is investigating an insurance fraud. The test for the relevance of the information obtained through the warrants system will not be applicable to information gathered through public interest and employment authorisations. The Commission considers that this type of information, and every record of it, should be destroyed when it appears that: the material is not likely to be relevant or useful to the purpose for which the authorisation was issued; or the purpose for which the authorisation was issued has been accomplished.

9.109 The subject of the surveillance who obtains possession of surveillance information solely about him or her need not be bound by the same requirements to destroy the material. There can be no policy objections to an individual retaining information about himself or herself, unless the information affects or concerns another person.

Recommendation 87

The proposed Surveillance Act should provide that every person who obtains information through the conduct of surveillance is required to destroy the information and any record of it as soon as it appears that none of the information directly or indirectly relates to the commission of an offence.

The proposed Surveillance Act should also provide that every person who obtains information through the conduct of surveillance that relates wholly or partly to the commission of an offence is required to destroy the information and any record of it as soon as it appears that no investigations or proceedings will be taken in which the information would be likely to be relevant.

The requirements in these provisions should apply in all cases where information is obtained through the conduct of surveillance, whether the surveillance is authorised or not.

These provisions should be subject to three provisos:

(1) The information should not be destroyed if the person who obtained it is notified that it may be required in criminal, civil, administrative or disciplinary proceedings in connection with the breach of the proposed Surveillance Act. In such case, the information should be destroyed as soon as the proceedings are terminated or it becomes clear that none of them will proceed.

(2) Where the information was gathered under the authority of a public interest or employment authorisation, the information and every record of it should be destroyed as soon as it appears that:

• the material is not likely to be relevant or useful to the purpose for which the authorisation was issued; or
• the purpose for which the authorisation was issued has been accomplished.
(3) A person who was the subject of surveillance need not destroy the information about him or her obtained as a result of the surveillance and which is in his or her possession unless the information affects or concerns another person.

Information obtained through the conduct of surveillance should not be retained for a period of more than 5 years, unless it remains relevant as provided in the preceding paragraphs. Where information is stored for such length of time, the relevant organisation should conduct periodic reviews to confirm that the justification for its retention remains valid.

The proposed Surveillance Act should provide that the requirements to destroy surveillance information do not apply to material which has been received into evidence in legal proceedings.

Breach of these provisions should constitute an offence.

2. An exception is where the person who wishes to use the private conversation has been a party to the private conversation: LDA s 7.

3. LDA s 7(1).

4. LDA s 7(2).

5. The LDA authorises a party to a private conversation to record it if a principal party to the conversation consents to the use of the listening device and the recording is not made for the purpose of communicating or publishing the conversation or a report of it to non-parties: s 5(3)(b)(ii).

6. Invasion of Privacy Act 1971 (Qld) s 44; Listening Devices Act 1991 (Tas) s 9; Listening Devices Act 1992 (ACT) s 6.

7. Invasion of Privacy Act 1971 (Qld) s 45; Listening Devices Act 1991 (Tas) s 10; Listening Devices Act 1992 (ACT) s 5.

8. Listening Devices Act 1972 (SA) s 6.

9. Listening Devices Act 1972 (SA) s 6a.

10. Surveillance Devices Act 2000 (NT) s 40.

11. Surveillance Devices Act 1999 (Vic) s 11.

12. Surveillance Devices Act 1999 (Vic) s 12.

13. Surveillance Devices Act 1998 (WA) s 9.

14. Surveillance Devices Act 1998 (WA) s 31.

15. LDA s 5(3)(b).

16. The High Court has acknowledged the importance of recorded evidence, particularly where confessions and admissions in criminal trials are concerned: see McKinney v The Queen (1991) 171 CLR 468 at 473-474 (Mason, Deane, Gaudron and McHugh JJ).

17. See Confiscation of Proceeds of Crime Act 1989 (NSW).

18. Surveillance Devices Act 1998 (WA) s 31.

19. See ch 6 and 7. In Western Australia, the use of optical surveillance devices or listening devices in the public interest without a warrant is allowed by the legislation in certain circumstances: Surveillance Devices Act 1998 (WA).

20. R v Sang [1980] AC 402; Selvey v DPP [1970] AC 304; Noor Mohamed v The Queen [1949] AC 182; R v Christie [1914] AC 545.

21. R v Sang [1980] AC 402 at 437 (Diplock J). See also Kuruma v The Queen [1955] 1 All ER 236; King v The Queen [1968] 2 All ER 610.

22. R v Khan [1996] 3 WLR 162.

23. [1996] 3 WLR 162 at 175. For a discussion on the ramifications of R v Khan, and the impact of the Police Act 1997 (UK) on English common law discretions so far as electronic surveillance evidence is concerned, see S Sharpe, “Electronic Eavesdropping: A Chance For Accountability?” (1996) 146 New Law Journal 1088; P B Carter, “Evidence Obtained by the Use of a Covert Listening Device” (1997) 113 Law Quarterly Review 468.

24. S Sharpe “Electronic Eavesdropping: A Chance For Accountability?” (1996) 146 New Law Journal 1088 at 1091.

25. Australian Law Reform Commission, Evidence (Interim Report 26, 1985) Vol 1 at para 960.

26. ALRC Report 26 at para 960.

27. R v Ireland (1970) 126 CLR 321 at 335 (Barwick J); See also Bunning v Cross (1978) 141 CLR 54 at 72 (Stephen and Aickin JJ); Cleland v The Queen (1982) 151 CLR 1 at 19-20 (Deane J); Ridgeway v The Queen (1995) 184 CLR 19 at 30-36 (Mason, Deane and Dawson JJ).

28. R v Lee (1950) 82 CLR 133.

29. See R v Lee (1950) 82 CLR 133; see also Cleland v The Queen (1982) 151 CLR 1 at 9 (Gibbs J), at 19 (Deane J), and at 33 (Dawson J). Other decisions suggest that the unfairness discretion focuses not just on reliability and on securing a fair trial but also embodies a demand for procedural propriety, that is, a recognition of the accused’s rights and privileges within the criminal justice system. For example, in R v Swaffield (1998) 192 CLR 159 at 197 Toohey, Gaudron and Gummow JJ stated: “Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of rights and privileges of the accused. Those rights include procedural rights.”

30. Foster v The Queen (1993) 113 ALR 1 at 7.

31. R v Swaffield (1998) 192 CLR 159 at 181-183 (Brennan J), at 191 (Toohey, Gaudron and Gummow JJ).

32. R v Swaffield (1998) 192 CLR 159 at 178 (Brennan J).

33. R v Smith [1994] 75 A Crim R 327; R v O’Neill (1996) 2 Qd R 257; R v Truong (1996) 86 A Crim R 188; R v Swaffield (1998) 192 CLR 159; R v Suckling [1999] NSWCCA 36; R v Cassar [1999] NSWSC 650.

34. See ALRC Report 26, ch 39.

35. New South Wales Law Reform Commission, Evidence (Report 56, 1988).

36. R v Cassar [1999] NSWSC 650 at para 16 (Sperling J).

37. See Klein v Bryant [1998] ACTSC 89. This case also demonstrates that the discretion in s 138 applies to evidence obtained by private individuals, such as private investigators.

38. R v Coombe (NSW, Court of Criminal Appeal, No 60239/96, 24 April 1997, unreported); R v Salem (1997) 96 A Crim R 421; R v Rooke (NSW, Court of Criminal Appeal, No 60550/96, 2 September 1997, unreported); R v Nabalarua (NSW, Court of Criminal Appeal, No 60124/97, 19 December 1997, unreported); R v Coulstock (1998) 99 A Crim R 143.

39. Section 138(3) of the Evidence Act 1995 (NSW) identifies these factors: (a) the probative value of the evidence; (b) the importance of the evidence in the proceeding; (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings; (d) the gravity of the impropriety or contravention; (e) whether the impropriety or contravention was deliberate or reckless; (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. These factors are non-exhaustive: R v Truong (1996) 86 A Crim R 188 at 196 (Miles J).

40. See specifically those set out in Bunning v Cross (1978) 141 CLR 54.

41. ALRC Report 26 at para 964.

42. This provision is limited to evidence of admissions.

43. Law of Evidence Project (Canada), Compellability of the Accused and the Admissibility of His Statements (The Law Reform Commission, Ottawa, 1973).

44. Sharpe, “Electronic Eavesdroppin