Protection from unlawful surveillance by law enforcement is of significant public importance, stated Brett J in his judgement against TasPol in the five year old case of Hobart lawyer Jeff Thompson, which was dropped (nolle prosequi) on August 8, 2022, and described as “appalling illegal conduct of TASPOL” by Thompson’s barrister David Edwardson QC.
The following are extracts from the Reasons For Ruling, by Brett J.
“This ruling concerns the second step in the process required by s 138 of the Evidence Act to determine the defence objection to the admission of the recording of the conversation between the accused and Stephen Gleeson, conducted in a professional meeting room at Risdon Prison on 16 June 2017. The basis of the objection is that the covert recording of the conversation was in contravention of an Australian law, and that the proper application of s 138 of the Evidence Act requires that the evidence be excluded. That provision provides that evidence obtained in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way. My ruling of 28 March 2022 established that the recording of the conversation was obtained in contravention of an Australian law, in particular s 5 of the Listening Devices Act 1991. That conclusion followed from my determination that the warrant which had purportedly been issued by a magistrate under the Police Powers (Surveillance Devices) Act 2006, upon which police relied to authorise the recording of the conversation by surveillance device and which would have brought the recording within an exception to the application of s 5, is invalid on its face.”
“I am simply not persuaded that police took sufficient care to either inform the magistrate of the proper operation of the system nor to obviate any risks related to the potential for the recording and/or monitoring of unrelated private or privileged conversations. The public interest in ensuring that such conversations are protected from unlawful surveillance by law enforcement authorities is of significant importance.”
“Balancing all of the above factors, I am not satisfied that the desirability of admitting the impugned evidence outweighs the undesirability of admitting evidence obtained in the manner described. In making this determination, I have taken into account all relevant factors including the seriousness of the alleged crimes, and the effect of exclusion on the prosecution case. However, ultimately, I am heavily influenced by the considerable risks to privacy which were inherent in this proposal for covert surveillance, and the failure of police to consider and properly address those risks and to fully inform the magistrate of the circumstances of the surveillance which compounded those risks. In my view, had the magistrate been properly informed then even if a valid warrant had been issued, it is highly likely that it would, or at least it should have contained conditions sufficient to properly obviate the said risks. The evidence which was presented fell far short of satisfying me that police had any significant insight into these problems and their importance, nor that anything has been done since to address similar situations.”
“The reality is that the invalidity of the warrant meant that the impugned evidence was obtained unlawfully … the impugned evidence is not to be admitted. I so order.”
In reporting the judgement, Amber Wilson of The Mercury quoted Brett saying “an intentional covert recording of a private conversation between a lawyer and a witness in a professional prison meeting room involved a “significant intrusion” into the privacy and professional privilege of that conversation, and if not lawfully authorised, “represented a grave contravention of the law by police”.
A technical services officer accepted he had capacity to turn the devices on and off to prevent them recording except at times relevant to the investigation, but said they were left on in case “technical issues arose” or if there was insufficient time to get into the prison to access the equipment prior to a scheduled meeting.
Justice Brett said he did not find that explanation “persuasive”.
“ … Police were always going to have significant notice of any relevant conversation and be able to gain risk-free covert access to the relevant room with the cooperation of the authorities,” he said. “It is obvious that any meeting between Gleeson and any person of interest would need to be schedule with prison authorities well in advance …”
Justice Brett said the upshot was that “there would have been many sensitive and privileged conversations between lawyers and their clients, and perhaps other private conversations, which were completely irrelevant to this investigation” that were recorded.
However the judge noted the mistake in the warrant had been “inadvertent”, with police believing they were acting lawfully and after having made a genuine attempt to obtain the relevant lawful authorisation.”
ABUSE OF POWER
Comment by Andrew L. Urban
TasPol will welcome Brett’s ‘get out of jail’ card when he said the mistake in the warrant had been ‘inadvertent’. Some readers may wish to believe that. Behind the careful, constrained words of the judgement is the brutal reality that Tasmanian police acted illegally in their pursuit of a charge of pervert course of justice against Thompson, a lawyer associated with Sue Neill-Fraser. And that pursuit was a continuation of their actions to protect Neill-Fraser’s murder conviction engineered by Tasmania’s legal system, facilitated by TasPol, the prosecution and the courts.
Once it became embarrassingly clear that the 2010 conviction lacked credibility – reflected in the absurd dismissal of the 2012 appeal – the entire Tasmanian legal system closed ranks and took an aggressive stance against anyone questioning it or supporting Neill-Fraser. This was one example.
Another was when police raided Sydney production company CJZ in November 2018. They collected over 500 hours of raw footage which investigated the disappearance and probable murder (or perhaps manslaughter) of Bob Chappell. The raw material was edited into the 6 episodes of Undercurrent on the Seven Network. The raid was intended not to discover any new evidence (8 years after the trial) but to try and find the filmmakers in an act of perverting justice and choke off any appeal. (The courts didn’t need any help with that task…)
The police demanded all the footage shot by Missing Man productions (Eve Ash’s company), who worked with CJZ Productions on Undercurrent. How did they know about it? Phone taps. Who authorised that process? On what grounds was a warrant issued? On what grounds was the footage seized?
“Surveillance and secret phone tapping of a film crew, seizing 500 hours of film footage? Civil Liberties Australia believes the underhand purpose of this police bastardry is to try to protect Tasmania police’s own reputation,” says Bill Rowlings, CEO of Civil Liberties Australia.
And all the while, giant legal elephants sat in the room, including:
The prosecution address to the jury was in breach of the legal rules and prosecution guidelines, and was seriously prejudicial. This error warrants the conviction being set aside.
The judge’s summing up was in breach of legal rules and was seriously prejudicial. This error warrants the conviction being set aside.
Yet these egregious errors will not persuade the appeal court to hear another appeal.
Here, exposed in a nutshell, is the weakness of the legislation that grants convicted persons the right to further appeal. While the Tasmanian Government invited public and professional comment while preparing the legislation, it proceeded without implementing the improvements suggested, namely that the further appeal not be restricted to a requirement for fresh and compelling evidence. The requirement should have been broader, so that appeal courts could consider any matter that contributed to a miscarriage of justice. That was the whole point of the proposed legislation; it should be amended.