R v Cranston (No 6)

1. [1]

   PAYNE JA: On 20 September 2019, Adam Cranston, Lauren Cranston, Jason Onley and Dev Menon were committed for trial in this Court. On 6 December 2019, before Fullerton J, the accused pleaded not guilty to the following two counts in an indictment presented on that day:

2. [2]

   On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. For reasons related to the COVID-19 pandemic, in July 2020 that trial date was vacated.

3. [3]

   The matter came before me for pre-trial directions on 7 February 2020 and 9 April 2020. I made it clear on each occasion that I wished to consider all interlocutory and pre-trial issues as soon as possible. On 12 May 2020, there was a further pre-trial directions hearing. On that date, I made the following relevant orders designed to address the pre-trial applications made up to then:

4. [4]

   A notice of motion was filed on 4 June 2020 on behalf of Messrs Menon and Onley. Mr Adam Cranston, who was self-represented, supported the making of orders sought in the notice of motion. Ms Lauren Cranston did not actively participate in submissions on the motion but it was common ground that she would enjoy the benefit of any success enjoyed by the applicants. That notice of motion sought the following relief:

5. [5]

   On 7 July 2020, Messrs Onley and Menon caused a subpoena to be issued to the Commonwealth Director of Public Prosecutions (CDPP) and the Commissioner of the Australian Federal Police (AFP) in the terms of the draft subpoena referred to in the motion. The hearing of those pre-trial issues occurred over 7, 8, 14 and 15 July 2020 and 4 August 2020.

6. [6]

   On 24 August 2020, I delivered judgment in relation to the disclosure issue agitated by the notice of motion set out at [4] above: R v Cranston (No 2) [2020] NSWSC 1102 together with R v Cranston (No 3) [2020] NSWSC 1103 which addressed the application to set aside the subpoena; R v Cranston (No 4) [2020] NSWSC 1104 which addressed the motion by the Mr Onley, Mr Menon and Lauren Cranston for a separate trial from Adam Cranston given the failure of his Dietrich application; and R v Cranston (No 5) [2020] NSWSC 1105 which addressed the claims made for client legal privilege over any part of the Crown brief.

7. [7]

   Following delivery of this suite of judgments, there emerged, however, a number of additional pre-trial issues the accused wished to agitate. On 26 August 2020, I made the following presently relevant orders:

8. [8]

   On 28 October 2020, Mr Menon and Mr Onley filed a notice of motion seeking the following orders:

   1. (1)

      Leave be given, to the extent necessary, to withdraw the admission that Mr Menon as at 23 January 2017 was alleged to be a central participant in ongoing criminal conduct.

   2. (2)

      The Crown not be permitted to lead evidence of the following audio recordings (including transcripts thereof and oral evidence referring to the recordings or transcripts):

   3. (3)

      The Crown not be permitted to lead evidence of the following audio recordings (including transcripts thereof and oral evidence referring to the recordings or transcripts):

   4. (4)

      Following determination of this application, the prosecution on the indictment be stayed until:

   5. (5)

      Directions to schedule the steps in the preceding paragraph.

   6. (6)

      Further or other orders.

9. [9]

   On 28 October 2020, the applicants filed submissions in support of their application. On 29 October 2020, I made the orders foreshadowed in R v Cranston (No 4) separating the trial of Adam Cranston from the remaining accused and listing the trial of Adam Cranston to commence on 18 January 2021. Subject only to courtroom availability by reason of the COVID-19 pandemic, the trial of the remaining accused will commence as soon as possible after Adam Cranston’s trial has been completed. In consultation with the list judge, I have told the parties that the joint trial of Messrs Onley and Menon and Ms Cranston will not commence before 3 May 2021.

10. [10]

    On 29 October 2020, I made orders, relevantly, that:

11. [11]

    On 10 November 2020, the Crown filed its submissions on the motion. The parties on the present application agreed that [93]-[97] of the Crown submissions could be treated as evidence to the extent that these paragraphs contain extracts from transcript of the recorded conversations. The parties also agreed that [58] of the Crown submissions was “supported by evidence”. Paragraph [58] contained the following schedule:

12. [12]

    An agreed chronology was also filed. The motion was heard on 16 November 2020. The applicants relied upon an affidavit of Christina Niagos sworn on 28 October 2020 and its exhibit as evidence on the motion. The parties also relied upon submissions and evidence filed in relation to the earlier application, specifically:

    1. (1)

       an affidavit of Christina Niagos, sworn on 3 June 2020; and

    2. (2)

       an affidavit of Christina Niagos, sworn on 6 July 2020.

13. [13]

    The applicants also tendered the transcripts contained in the four volumes of surveillance device transcripts. Those volumes, among other things, contain the transcripts prepared by reason of the operation of SD6116, and those in the Opera Room prepared by reason of surveillance device warrant SD6400. Counsel for Mr Menon, however, emphasised that he did not consider that the Court need read the transcripts:

Consideration

1. [14]

   There are two essential issues at the heart of the present motion. First, whether on its proper construction, the issue of warrant SD6116 was invalid by reason of non-compliance with s 18(5) of the Surveillance Devices Act 2004 (Cth)? Secondly, whether the installation of four surveillance devices in the offices of Clamenz Lawyers under the authority of SD6116 (and leaving one of those devices in the Opera Room at Clamenz Lawyers under the authority of SD6400) constituted excessive execution of that warrant. There is also a subsidiary issue, namely, if the applicants enjoy success on either of the central issues, what are the consequences for admissibility of material affected by that success?

2. [15]

   To put the matter in issue in some context, it is useful to set out the terms of SD6116 in full:

3. [16]

   The warrant was extended for a further 90 days on 20 December 2016 and again on 16 March 2017. A number of matters about the warrant should be noticed at the outset:

   1. (1)

      the warrant authorises the use of surveillance devices in respect of the conversations, activities or location of a specified person, Adam Michael Cranston;

   2. (2)

      the warrant was issued subject to the following conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant: “NIL”;

   3. (3)

      the warrant authorises the use of more than one surveillance device of a kind specified above if that is necessary to give effect to the warrant; and

   4. (4)

      the issuing officer recorded that he had had regard to the matters referred to in s 16(2) of the Surveillance Devices Act.

4. [17]

   It is common ground that on Monday 23 January 2017, four listening devices were installed within Clamenz Lawyers under purported authority of SD6116. It was also common ground that a specified premises warrant, specifying the offices of Clamenz Lawyers (SD6400) was issued on Wednesday 25 January 2017. The joint chronology recorded that the CDPP told the accused that three devices installed under SD6116 were removed “between 24 and 25 January 2017”. The parties agreed that one device remained on the premises of Clamenz Lawyers and continued to be used under the authority of SD6400. A further two devices were installed at Clamenz Lawyers under the authority of SD6400 on 1 February 2017.

5. [18]

   In addressing the proper construction of the Surveillance Devices Act, I take into account the following principles. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ said:

6. [19]

   In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 French CJ, Crennan and Bell JJ said:

7. [20]

   In the same case Gageler and Keane JJ said:

8. [21]

   I approach the issues raised on this application by reference to the clear rule explained by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427; [1994] HCA 1 at 435:

9. [22]

   The purposes of the Surveillance Devices Act are described in s 3 of the Act. At the time SD6116 was issued that section provided:

10. [23]

    Part 2 of the Surveillance Devices Act deals with the issue of warrants. The types of warrants dealt with in Part 2 were at the relevant time described in s 10:

11. [24]

    Surveillance device warrants are addressed in Division 2 of Part 2 of the Surveillance Devices Act. Subsections 14(1), (4) and (5) which are principally relevant here provided, as at 6 October 2016 (the date SD6116 was issued):

12. [25]

    At the time SD6116 was issued, “premises” was defined in s 6(1) of the Surveillance Devices Act as follows:

13. [26]

    The first point to notice is that the place where a surveillance device will or may be installed is not one of the matters that s 14 states “must” be specified in an application for a warrant.

14. [27]

    Subsection 16(1)(a) and (2) provided at the time of issue of SD6116 the following relevant matters:

15. [28]

    Whilst the issuing officer was obliged to take into account “the extent to which the privacy of any person is likely to be affected”, there was no specific obligation under s 16(2) to consider the place where a surveillance device would or might be installed. As the warrant in this case discloses, the issuing officer in this case did take the matters in s 16(2) into account.

16. [29]

    At the time SD6116 was issued, s 17 of the Surveillance Devices Act provided, relevantly:

17. [30]

    Section 17 provided that if the warrant authorises the use of a surveillance device in respect of the conversations, activities or location of a person, the warrant is required to specify “the name of the person (if known) or the fact that the person’s identity is unknown”. Section 17 did not require that a warrant authorising the use of a surveillance device in respect of the conversations, activities or location of a person identify any premises where a surveillance device authorised by the warrant may be installed. The requirement that premises on which the use of the surveillance device is authorised be revealed on the face of the warrant was limited to a warrant of the kind described by s 17(1)(b)(vi).

18. [31]

    Section 17, which identified the matters a warrant “must” specify, did not require specification of the place or places the devices(s) authorised by a specified person warrant may be installed. Section 17 provided only that if the warrant authorises the installation of a device at specified premises, those premises must be identified. The text of the Surveillance Devices Act indicated that the validity of a warrant in respect of the conversations, activities or location of a person does not depend on the identification and description in the warrant of a place or places where a surveillance device under the warrant may be installed.

19. [32]

    Section 18(1), the pivotal provision in this application, specifically identifies the matters that a surveillance device warrant may authorise, subject to any conditions specified in the warrant. Section 18(1) provides: [1]

20. [33]

    A surveillance device warrant may thus authorise the use of a surveillance device on “specified premises”: s 18(1)(a), the use of a surveillance device in or on a “specified object”: s 18(1)(b) and the use of a surveillance device in respect of a “specified person” or a person whose identity is unknown: 18(1)(c).

21. [34]

    Section 18(2) sets out what is authorised by each kind of surveillance device warrant referred to in s 18(1). Section 18(2)(a) sets out what a specified premises warrant authorises; s 18(2)(b) what a specified object warrant authorises; and s 18(2)(c) what a specified person warrant authorises. Section 18(2) provided and provides:

22. [35]

    Section 18(2) thus characterises the three warrants identified in s 18(1) as differing in “kind”. By s 18(2)(a), a warrant authorising the use of a surveillance device on specified premises permitted entry, by force if necessary, onto “the premises” (i.e. the premises the subject of the warrant) and onto “other specified premises adjoining or providing access to the premises”.

23. [36]

    By s 18(2)(b) and (c), respectively, a warrant authorising the use of a surveillance device in or on a specified object or class of object and a warrant authorising the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown, authorises the installation of a device at premises where the object or the person the subject of the warrant is “reasonably believed or likely to be”. As I have explained, none of the provisions of the Surveillance Devices Act at the time of issue of the warrant required the place a specified person is or is likely to be to be identified in the warrant.

24. [37]

    Section 18(2) is clearly expressed in unmistakable and unambiguous language. A warrant authorising “the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown” authorised the installation of a surveillance device in premises where the person is reasonably believed to be or likely to be.

25. [38]

    Section 18(3) of the Surveillance Devices Act sets out further matters clearly expressed in unmistakable and unambiguous language that are authorised by a surveillance device warrant. Section 18(3) provides:

26. [39]

    Section 18(4) is in different terms. It sets out what a surveillance device warrant may authorise in relation to concealing the installation, maintenance, use or retrieval of a warrant. It provides:

27. [40]

    Section 18(5), which is at the heart of this application, sets out what a surveillance device warrant may authorise in relation to the interference with property of a person who is “not the subject of the investigation” on “premises not specified in the warrant”. The section provides the issuing officer with the power to authorise such interference with property, subject to being satisfied the interference is necessary in order to give effect to the warrant. Section 18(5) provides:

28. [41]

    Section 18(6) confirms that a surveillance device may only be used by a law enforcement officer in the performance of his or her duty. Finally, s 18(7) confirms that s 18 does not authorise the doing of anything for which a warrant is required by the Telecommunications (Interception and Access) Act 1979 (Cth).

29. [42]

    There are some remaining features of the Surveillance Devices Act which should be noticed and to which I will return. The admissibility of evidence or information obtained pursuant to a surveillance device warrant is governed principally by the terms of the Surveillance Devices Act. Section 45 contains a general prohibition on the use of protected information, except in certain identified circumstances. Section 65 sets out when evidence obtained pursuant to the purported authority of a warrant may nevertheless be used and admitted into evidence.

30. [43]

    The text of ss 18(2) and 18(3) provided and provides in “unmistakable and unambiguous language” a statutory permission to install a surveillance device in the case of a specified person warrant identified in s 18(1)(c) “on premises where the person [the subject of the warrant] is reasonably believed to be or likely to be”. The applicants accepted that, unless s 18(5) reads down or qualifies the clear permission provided by ss 18(2) and 18(3), their argument could not succeed and the Australian Federal Police were given the necessary statutory permission to install the devices at Clamenz Lawyers pursuant to SD6116.

31. [44]

    As I have said, it is clear in the text of the Surveillance Devices Act that a warrant of the kind referred to in s 18(1)(c) is not required by any provision of the Surveillance Devices Act to identify the premises (if any) where devices authorised by the warrant may in the future be installed. The applicants accepted that the “reasonable belief” referred to in s 18(2) permitting the entry onto premises to install a device must be that of the officer authorised by the warrant to install the device at the time the device is installed (albeit, determined objectively). Indeed, in the earlier application for disclosure (Cranston (No 2)), it was the applicants’ case that a reasonable belief of the type required on the part of the AFP had not been shown at the time the warrant was installed, merely a belief that Adam Cranston “might” be at the place the devices were installed.

32. [45]

    The applicants’ case on the present application is that s 18(5) operates to qualify the statutory permission to enter premises granted by section 18(2)(c)(i):

33. [46]

    I have concluded that s 18(5) does not have the effect contended for by the applicants. By s 18(2)(a), a warrant of the kind identified in s 18(1)(a) authorises installation of a device at “the premises” and “onto other specified premises adjoining or providing access to the premises”. That is, the warrant itself must identify the premises which may be entered.

34. [47]

    Section 18(2)(c) contains no such express or implied requirement. To require a specific s 18(5) authorisation to be included in a warrant of the kind described in s 18(1)(c) as a condition of the exercise of the express statutory authorisation to enter premises in s 18(2)(c) gives rise to an incoherence in the operation of the provisions. The Surveillance Devices Act carefully sets out and describes in detail the types of warrants which may be issued, the information which must be included in an application to obtain a warrant, the considerations an issuing officer must take into account and the information that warrants of a particular kind must include on their face. The Surveillance Devices Act sets out in detail the procedures necessary to be followed by law enforcement officers to obtain warrants. None of the provisions of the Surveillance Devices Act governing the application for, or issue of, a warrant of a kind referred to in s 18(1)(c) of the Act require information about, or identification of, any “premises” where the specified person is or may be found.

35. [48]

    A warrant issued following the procedures clearly set out in the Surveillance Devices Act provides in ss 18(2) and (3) a clearly expressed authorisation in unmistakable and unambiguous language to install a device on premises where the person the subject of the warrant “is reasonably believed to be or likely to be.”

36. [49]

    It would be contrary to that unambiguous statutory authorisation to install a warrant on premises where the person described in the warrant was reasonably believed to be if the validity of the warrant was subject to an implied reading down of the s 18(2) authorisation to install the warrant effected by s 18(5). If the applicants’ argument were correct, a warrant of the kind in s 18(1)(c) issued in respect of a specified person would also need to identify specified premises before a device could be installed in those premises. If that were the correct construction of the Surveillance Devices Act ss 18(2)(b) and 18(2)(c) would be unnecessary or at least would have a very limited operation, permitting the installation of a device only where a device issued in relation to a person or an object was not planned to be, and could not be, installed in “premises” as defined. If a warrant of the kind in s 18(1)(c) issued in respect of a specified person is limited in its operation to installation other than on “premises” as defined, the express permission in s 18(2) to install, use and maintain a surveillance device on premises where the person is reasonably believed to be or likely to be would be unnecessary.

37. [50]

    The final words of s 18(5) “if the interference would be on premises not specified in the warrant” are also important. Those words indicate the necessary state of knowledge that must exist at the time the warrant is issued; that interference with property “would be” on premises not specified in the warrant. A warrant authorising “the use of a surveillance device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown”, in the context it appears, contemplates that the officer seeking the warrant and the issuing officer will not know at the time of issue of the warrant where in the next 90 days that the identified person will be or will likely be. Section 18(5) addresses a case where the officer seeking the warrant and the issuing officer are able to identify the premises where there “would be” an interference with property rights by installation of a device.

38. [51]

    The unambiguous language of ss 18(1)(c) and 18(2)(c) does not require the existence of any belief on the part of the officer seeking the warrant or the issuing officer at the time of issue of the warrant about whether the specified person “would be” on any identified premises. This is a further indication that the authorisation in unmistakable and unambiguous language in s 18(2)(c) to install a device on premises where the person the subject of the warrant “is reasonably believed to be or likely to be” at the time a device is installed should not be read down by an implication derived from s 18(5).

39. [52]

    Section 18(5) has work to do without providing any overarching restraint upon the authorisation granted by ss 18(2)(b) and 18(2)(c). Section 18(5) applies in a case where there “would be” interference with premises not specified in the warrant. In context, that is an important indication in the text that s 18(5) applies only to a warrant where premises have been specified. As I have explained, only warrants of the kind identified in s 18(1)(a) are required to specify any premises. Section 18(5) provides a mechanism in the case of a specified premises warrant to extend the statutory permission to install devices beyond the premises specified (and those adjoining those premises) to include premises not specified in the warrant where an issuing officer is persuaded that there “would be” interference with other premises and the extension is needed for the effective execution of the warrant.

40. [53]

    SD6116 was issued pursuant to s 16(1)(a) of the Surveillance Devices Act. Pursuant to s 18(1)(c) of that Act, the warrant authorised the use of a surveillance device or devices in respect of the conversations, activities or location of the person specified in the warrant. SD6116 set out the subject matter of the warrant being the conversations, activities or location of Adam Cranston, the type of devices that may be installed and the number of devices that may be installed. SD6116 specified the conditions under which premises may be entered, or a surveillance device may be used, under the warrant as “NIL”.

41. [54]

    SD6116, when read together with the authorisations in ss 18(2) and 18(3), therefore authorised:

    1. (1)

       the installation and use of a surveillance device, or surveillance devices, on premises where Adam Cranston was reasonably believed to be or likely to be: SD6116 and s 18(2)(c)(i);

    2. (2)

       the entry, by force if necessary, onto those premises (i.e. where Adam Cranston was reasonably believed to be or likely to be) or other premises adjoining or providing access to those premises, for the purposes of installing, using, maintaining and retrieving the device: SD6116 and s 18(2)(c)(ii);

    3. (3)

       the breaking open of anything for the installation, maintenance or retrieval of the surveillance device or enhancement equipment: s 18(3)(d); and

    4. (4)

       the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant: SD6116 and s 18(4).

42. [55]

    I find that the conduct of installing the surveillance devices under SD6116 at Clamenz Lawyers was authorised by the “unmistakable and unambiguous language” of ss 18(2) and 18(3) of the Surveillance Devices Act, and the language of the warrant itself.

43. [56]

    I have considered whether I should address the admissibility of the material gathered by the devices installed under the authority of SD6116 on the contingent hypothesis that I am wrong. There are real difficulties in doing so but, nonetheless, I will attempt to answer the question of admissibility on that contingent hypothesis.

44. [57]

    The starting point is the concept of protected information. Section 44 of the Surveillance Devices Act defines protected information. Relevantly, it provided:

45. [58]

    Section 45 set out the general prohibition on the use of protected information: s 45(1), including prohibiting its use as evidence in any proceedings: s 45(3). Section 45 then provided for exceptions to those prohibitions, in particular, in relation to the investigation and prosecution of a relevant offence: s 45(5).

46. [59]

    Section 45 relevantly provided:

47. [60]

    The definition of relevant offence is found in s 6. Relevantly, it meant “an offence against the law of the Commonwealth that is punishable by a maximum term of imprisonment of 3 years or more or for life”. A relevant proceeding is defined in s 6 to mean “the prosecution of a relevant offence”.

48. [61]

    Each of the offences in the indictment is a relevant offence within the meaning of the Surveillance Devices Act, and the present proceeding is a relevant proceeding. Despite the inclusion of information obtained in purported authority of a warrant within the meaning of protected information in s 44(1)(d), by operation of s 45(6), information of the kind referred to in s 44(1)(d), that is information obtained in contravention of the requirement of a warrant, may not be given in evidence.

49. [62]

    Section 45(6) provided:

50. [63]

    Section 65 provides a further exception to that exception in circumstances where there is a warrant and where the nature of the contravention that results in the information falling within the meaning of s 44(1)(d) is something other than a “substantial defect or irregularity”.

51. [64]

    The maximum penalty for conspiring to defraud the Commonwealth is 10 years’ imprisonment. The maximum penalty for conspiring to deal in the proceeds of crime worth $1,000,000 or more is 25 years’ imprisonment.

52. [65]

    Section 65(1) provided that information purportedly obtained through the use of a device authorised by a warrant (i.e. there must be a warrant for s 65 to apply), may be given in evidence in certain circumstances. It reads (and provided at the relevant time):

53. [66]

    The effect of s 65(1) is that if a warrant exists and but for the relevant defect would have authorised the use, then the use of the device is to be treated as valid and the information may be used or given in evidence.

54. [67]

    Section 65(2) explains the concept of a “defect or irregularity”. It provided:

55. [68]

    In cases where the defect or irregularity is substantial, the combined effect of ss 44, 45 and 65 mean that any such protected information cannot be admitted in evidence in court. However, in cases where the defect or irregularity is other than “substantial”, the information is to be treated as if there was no such defect or irregularity.

56. [69]

    On its face, SD6116 does not authorise the entry onto any premises. As I have explained, s 18(2)(c) contained the relevant authorisation to enter the premises. “The premises” in s 18(2)(c)(ii) are the premises where the person is reasonably believed to be or likely to be. They were not “specified”, nor were they required to be specified.

57. [70]

    In this part of the judgment, however, I am addressing the applicants’ motion on the contingent hypothesis that the applicants’ submission about the construction of s 18(5) is correct. I have concluded that if s 18(5) operates to read down the unmistakable and unambiguous language of s 18(2), such that the warrant(s) contain a defect on their face, being the non-appearance of authorisation under s 18(5) for the entry onto particular premises, the defect or irregularity in SD6116 is “substantial”.

58. [71]

    Given that contingent conclusion, the combined effect of ss 44, 45 and 65 is that any such protected information could not be admitted in evidence. If the applicants’ construction of s 18(5) of the Surveillance Devices Act were correct, I would exclude from evidence all of the material identified in the notice of motion described at [8] above.

Excessive execution

1. [72]

   In R v Cranston (No 2) I addressed the applicants’ claim that a stay should be granted to permit disclosure of material which was before the issuing officer for warrants SD6116 and SD6400. I declined to grant a stay and dismissed the applicants’ motion. My reasoning in Cranston (No 2) may be summarised as follows:

   1. (1)

      I was bound by Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142 and the cases referred to in that case to conclude that the applicants could not go behind the face of the warrant and obtain a stay until disclosure of material presented to the issuing officer was given. This was the ratio of Cranston (No 2);

   2. (2)

      on the contingent hypothesis that the Court was permitted to go behind the face of the warrant, I would not in any event order a stay pending disclosure. This was because, on the reasoning in Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839 which was equally applicable to the Surveillance Devices Act, surveillance device warrants are not invalid merely by reason of their being deployed in circumstances where privileged material may be recorded. I concluded that nothing on the face of SD6116 prohibited installation of surveillance devices at Clamenz Lawyers, being a place that viewed objectively at the time of installing the devices, Adam Cranston was likely to be; and

   3. (3)

      on the further contingent hypothesis that the Court was permitted to go behind face of the warrant and that there was a principle that a surveillance device warrant issued under the Surveillance Devices Act did not permit the installation of a surveillance device in a lawyer’s office by reason of a risk that privileged material may be recorded, that principle did not apply where the relevant lawyer, Mr Menon, was allegedly a central participant in the crime being investigated by use of the surveillance device.

2. [73]

   The applicants’ submission about “excessive execution” of SD6116 jumped straight to the third issue. The unstated premise for the applicants’ argument about excessive execution was that there was a principle that a surveillance device warrant, otherwise valid on its face, issued under the Surveillance Devices Act did not permit the installation of a surveillance device in a lawyer’s office by reason of a risk that privileged material may be recorded.

3. [74]

   I remain of the view expressed in Cranston (No 2) that the reasoning in Carmody v McKellar is equally applicable to the Surveillance Devices Act, and that surveillance device warrants issued under the Surveillance Devices Act are not invalid merely by reason of their being deployed in circumstances where privileged material may be recorded. I have concluded that nothing on the face of SD6116 prohibited installation of surveillance devices at Clamenz Lawyers, being a place that viewed objectively, Adam Cranston was likely to be. Put in terms of the applicants’ motion, it was not demonstrated that the installation of four devices at Clamenz Lawyers under the authority of SD6116 constituted “excessive execution” such that the recordings thereby obtained became inadmissible.

4. [75]

   On the contingent hypothesis that I am wrong in that conclusion, and, as the applicants’ submitted, “excessive execution” of the warrant would be demonstrated by the mere fact of installation of a surveillance device in a lawyer’s office where privileged material may be recorded, I will address the further submission of the applicants. It was submitted that I should conclude that as a specified person warrant for Mr Menon was only issued on 25 January 2017, Mr Menon was not believed to be implicated in the offending or a central participant in the offending until after that date. I am not prepared to draw that conclusion. That, in a practical sense, is the end of this part of the application.

5. [76]

   Whilst there is merit in the complaint by the Crown that the applicants did not provide an explanation of what “excessive execution” actually means, I will consider this aspect of the complaint in any event. That is, I will consider the applicants’ case on the contingent hypothesis that surveillance device warrants issued under the Surveillance Devices Act may be invalid merely by reason of “excessive execution” in circumstances where devices are installed in circumstances where privileged material may be recorded.

6. [77]

   I have concluded that even on this contingent hypothesis both the number of devices and the installation of them in the board rooms of Clamenz Lawyers were authorised by SD6116.

7. [78]

   The first issue is the number of devices installed. SD6116 authorised “the use of more than one surveillance device if that is necessary to give effect to this warrant” and, by operation of s 18(2)(c), the warrant authorised the installation of a device or devices on premises where Adam Cranston was reasonably believed to be or was likely to be.

8. [79]

   The applicants submitted that the total of four devices installed in all the conference rooms of Clamenz Lawyers was “excessive”. SD6116, however, permitted the installation of more than one device. Installation of devices in multiple rooms proved objectively to be necessary to give effect to the warrant. I am not persuaded there is any evidence that Adam Cranston was not either reasonably believed to be or likely to be in the places within the offices of Clamenz Lawyers where the devices were installed. That much is made clear by his presence in both the Opera Room and the Bridge Room on the day after the installation of the devices, and throughout the operation of the devices, discussing matters relevant to the subject offences.

9. [80]

   It has not been shown that the installation of multiple devices was other than “necessary” regardless of whether the “premises” are identified as each individual room or the offices of Clamenz Lawyers more generally.

10. [81]

    If each individual meeting room is considered to be the “premises” (being “a part of a building”), I find that the only requirement of the Surveillance Devices Act here relevant was that the person to whom the warrant was issued had a reasonable belief Adam Cranston was going to be there or that it was likely he was going to be there, and that it was necessary to give effect to the purpose of the warrant to install the device. There is no reason to think that such a reasonable belief did not exist. The installations of the four devices was authorised.

11. [82]

    Similarly, if the “premises” be the offices of Clamenz Lawyers (again, being “part of a building”), the only requirement of the Surveillance Devices Act here relevant was that the person to whom the warrant was issued had a reasonable belief Adam Cranston was going to be there or it was likely he was going to be there, and it was necessary to give effect to the purpose of the warrant to install the devices. It has not been shown that such a reasonable belief did not exist.

12. [83]

    Accepting for the purposes of argument that at some point it might not be “necessary to give effect to the warrant” to install any further devices, the installation here of four devices in three rooms does not cross that threshold.

13. [84]

    SD6116 authorised the installation of surveillance devices at premises where Adam Cranston was either believed to be or likely to be. That Adam Cranston was present in the offices of Clamenz Lawyers and at least in the Opera Room and the Bridge Room in the days and weeks after the devices were installed is not consistent with the contention that the AFP had an insufficient basis for a reasonable belief that he was likely to be there, or that it was unnecessary to install multiple devices. I find that there is no reason to conclude that such a reasonable belief did not exist.

14. [85]

    As I have explained, it is the belief or expectation about the location of the person the subject of the warrant that is relevant, not the nature of that location, or the other persons with whom the specified person is speaking.

15. [86]

    I remain of the view that the fact that devices were installed in a law firm is not relevant. The warrant authorised the recording of conversations between Adam Cranston and any of his legal advisers: Carmody v MacKeller. As I said in Cranston (No 2) at [145]:

16. [87]

    On the contingent hypothesis that I am wrong in this conclusion, I will consider the applicants’ submission that the installation of surveillance devices in the offices of a law firm is “excessive” per se. On this topic in Cranston (No 3) at [35] I said:

17. [88]

    It remains my view that, at least where a lawyer is alleged to be a central participant in ongoing criminal conduct, there is no reason to think that the installation of a Surveillance Devices Act warrant in the conference rooms of that lawyer’s firm amounts, for that reason alone, to excessive execution of a warrant. It does not follow from that passage, or a similar passage in Cranston (No 2), that in a case where a lawyer is not alleged to be a central participant in ongoing criminal conduct that it follows that if a surveillance device is installed in that lawyer’s firm, “excessive execution” is thereby made out.

18. [89]

    I accept that there may be cases where installation of a surveillance device in a lawyer’s office may amount to “excessive execution” by reference to the principles of accusatorial justice: see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39. A device installed after a person has been charged would give rise to significant issues. It was also accepted by the Crown that in a case, unlike the present, where the surveillance device recorded a privileged conversation, evidence of that conversation would be inadmissible and the investigative and prosecution teams would need to be separate: see in a different context R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 232 A Crim R 249. None of these issues arise here.

19. [90]

    If this was a case in which installation of a device in a lawyer’s office could per se amount to excessive execution, I remain of the view that any such principle could not apply in this case where there was information available to the AFP from which they could reasonably conclude that the lawyer, Mr Menon, was a central participant in ongoing criminal conduct.

20. [91]

    The applicants’ response to this finding was that because a specified person warrant for Mr Menon was only issued on 25 January 2017, Mr Menon was not known to be implicated in the offending or believed to be a central participant in the offending until that date. I am not satisfied that this is correct. I find that evidence obtained pursuant to warrants granted under the Telecommunications (Interception and Access) Act provide a basis from at least 6 October 2016 for the AFP reasonably to conclude that Mr Menon was implicated in the offending alleged.

21. [92]

    Even if I am wrong in my principal conclusion, and the installation of a surveillance device in a lawyer’s office is, for that reason also, capable of amounting to “excessive execution” of the warrant, such a principle did not apply in the present case.

22. [93]

    Finally, I should record that in dealing with this motion I have not found it necessary to reason by reference to what was submitted may have been an admission. It is unnecessary in those circumstances to determine whether an admission was made or whether leave should be given to withdraw that admission.

Conclusion and orders

1. [94]

   For the foregoing reasons I make the following order:

   1. (1)

      The notice of motion filed on 28 October 2020 is dismissed.