Coco v The Queen
(1994) 72 A Crim R 32
(1994) 120 ALR 415
[1994] Aust Torts Reports 81-270
(Judgment by: Deane J, Dawson J)
Coco
v The Queen
Judges:
Mason J
Brennan J
Gaudron J
McHugh J
Deane J
Dawson JToohey J
Legislative References:
Invasion of Privacy Act 1971 - s 43(2); s 43(1); s 46; Part IV
Australian Federal Police Act 1979 - s 12; s 35
Commonwealth Police Act 1957 - s 6(4)
Crimes Act 1914 - s 73(3)
Case References:
Entick v Carrington - (1765) 2 Wils KB 275
Halliday v Nevill - (1984) 155 CLR 1
Plenty v Dillon - (1991) 171 CLR 635
Colet v The Queen - (1981) 119 DLR 521
Morris v Beardmore - [1981] AC 446
Wheeler v Leicester City Council - [1985] AC 1054
Marcel v Commissioner of Police - [1992] Ch 225
Chu Kheng Lim v Minister for Immigration - (1992) 176 CLR 1
Lyons v The Queen - (1984) 14 DLR 482
Anisminic v Foreign Compensation Commission - [1969] 2 AC 147
Baker v Campbell - (1983) 153 CLR 52
Hamilton v Oades - (1989) 166 CLR 486
Bropho v Western Australia - (1990) 171 CLR 1
Mortimer v Brown - (1970) 122 CLR 493
Pyneboard Pty Ltd v Trade Practices Commission - (1983) 152 CLR 328
Sorby v The Commonwealth - (1983) 152 CLR 281
Dalia v United States - (1979) 441 US 238
National Mutual Life Association of Australasia Ltd v Godrich - (1910) 10 CLR 1
Shaw v Coco - (1991) 102 ALR 75
Judgment date: 13 April 1994
Subject to the comments which follow, we agree with the judgment of Mason CJ, Brennan, Gaudron and McHugh JJ. It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear [36] . Obviously, the most satisfactory means of manifesting a legislative intent to that effect is by express and specific words. There can, however, be circumstances where such a legislative intent is made unambiguously clear notwithstanding the absence of express words [37] . One example of such circumstances is where the relevant legislative provisions would otherwise be rendered either inoperative or nonsensical. Indeed, the relevant provisions of the Invasion of Privacy Act 1971 (Q) ("the Act") would provide such an example if the definition of "listening device" in s4 of the Act were expanded by adding the words "concealed on private premises without the knowledge or consent of the occupier".
Again, if the circumstances in which a listening device could be used were, as a practical matter, confined to cases where the listening device was installed in premises without the knowledge of the occupier, it would be strongly arguable that the relevant provisions of the Act manifested a clear legislative intent to authorise the clandestine entry of private premises to the extent necessary to install and maintain a listening device whose use was authorised by those provisions. There are, however, a variety of circumstances in which a listening device can be used without any clandestine entry of premises being necessary. Listening devices can be used to monitor conversations in circumstances where they are installed and maintained on premises pursuant to the consent of the occupier. They can also be used in circumstances where they are not even on premises. That being so, it simply cannot be said that the provisions of the Act impliedly [38] empowering a judge to grant authority for the use of a listening device would be rendered either inoperative or nonsensical by a refusal to impute to the legislature an intention to authorise, directly or indirectly, what would otherwise be an unlawful entry on premises. Nor is there anything else in the Act which supports and makes manifest a clear and unambiguous legislative intent to that effect. It follows that the provisions of the Act impliedly authorising a judge to grant authority to use a listening device do not also empower a judge granting such authority to authorise the commission of otherwise unlawful acts in introducing or maintaining the device on private property.
We are, of course, conscious of the fact that our conclusion that the relevant provisions of the Act do not directly or indirectly authorise an otherwise unlawful entry upon premises does not lie well with the decisions of the United States Supreme Court in Dalia v United States [39] and of the Supreme Court of Canada in Lyons v The Queen [40] and Reference re an Application for an Authorisation ("the Wiretap Case") [41] . With all due respect, however, we consider that the reasoning in the dissenting judgments of Dickson J in the two Canadian cases is to be preferred in this country. In that regard, we note that Dickson J clearly recognised that a legislative intent to authorise trespass could be made manifest by necessary implication as well as by express words [42] . The wording of the authority to use listening devices in the present case is unsatisfactory in that some words would seem to have been accidentally omitted from the first of its "conditions". It is at least possible that the missing words would have expressly purported to authorise those installing the devices to commit acts which would otherwise constitute trespass to property. Be that as it may, the material placed before Carter J in support of the application for the authority clearly disclosed that the listening devices would be clandestinely concealed in private premises by conduct which involved such acts. The inference is unavoidable that his Honour mistakenly considered or assumed that he was empowered by the Act to grant express or implied authority to engage in that otherwise unlawful conduct. That mistake resulted in a fundamental misapprehension by Carter J about the extent of the powers being exercised and the nature and extent of the authority which was given. The effect of that misapprehension was to nullify the authority. Indeed, it is unlikely in the extreme that Carter J. would, but for that fundamental misapprehension, have given the authority in the face of the material disclosing an intention to engage in otherwise unlawful conduct.