Coco
v The Queen

Judges: Mason J
Brennan J
Gaudron J
McHugh J
Deane J
Dawson J

Toohey 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 by:
Toohey J

On 1 July 1993 the Court granted to the appellant, Santo Antonio Coco, special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of Queensland given on 27 May 1993. By its judgment, that Court dismissed the appellant's appeal against his conviction of the offence of offering to bribe Commonwealth officers contrary to s73(3) of the Crimes Act 1914 (Cth). The Court of Appeal refused the appellant leave to appeal against the sentence imposed for that offence.

In granting the appellant special leave to appeal, the Court excluded the matter of sentence and also a ground of appeal based upon Bunning v Cross ^[43] . At the same time the appellant was told that, on the hearing of the appeal, his counsel could renew the application for special leave to appeal based on Bunning v Cross. Counsel renewed the application in that regard but, with the agreement of the parties, the Court heard argument only on those matters the subject of the original grant of special leave to appeal. Argument on the other matter awaits the outcome of this appeal.

LISTENING DEVICES

The appeal itself concerns the meaning and operation of the Invasion of Privacy Act 1971 (Q) ("the Act"), described in its long title as: "An Act to make provision for the licensing and control of Credit Reporting Agents and Private Inquiry Agents, for regulating the Use of Listening Devices and for other purposes".

The issues arise under Pt4 - Listening Devices ^[44] . A "listening device" is defined by s4 to mean: "any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place".

The same section defines "private conversation" as meaning: "any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so".

S43 of the Act makes it an offence to use a listening device in relation to a private conversation. There are a number of exceptions. It is necessary to set out part of the section: "(1) A person is guilty of an offence against this Act if he uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a penalty not exceeding $2,000 or to imprisonment for not more than two years or to both such penalty and imprisonment.

(2) Subs(1) of this section does not apply - (a) where the person using the listening device is a party to the private conversation; (b) to the unintentional hearing of a private conversation by means of a telephone; (c) to or in relation to the use of any listening device by - (i) a member of the police force acting in the performance of his duty if he has been authorised in writing to use a listening device by - (a) the Commissioner of Police; (b) an Assistant Commissioner of Police; or an officer of police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorise the use of listening devices, under and in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval; (ii) an officer employed in the service of the Commonwealth in relation to customs authorised by a warrant under the hand of the Comptroller-General of Customs and Excise to use a listening device in the performance of his duty; (iii) a person employed in connexion with the security of the Commonwealth when acting in the performance of his duty under an Act passed by the Parliament of the Commonwealth relating to the security of the Commonwealth.

(3) In considering any application for approval to use a listening device pursuant to subpara(i) of para(c) of subs(2) of this section a judge of the Supreme Court shall have regard to -

(a)

the gravity of the matters being investigated;

(b)

the extent to which the privacy of any person is likely to be interfered with; and

(c)

the extent to which the prevention or detection of the offence in question is likely to be assisted, and the judge may grant his approval subject to such conditions, limitations and restrictions as are specified in his approval and as are in his opinion necessary in the public interest."

The section has important consequences for the admissibility of evidence in civil and criminal proceedings. This can be seen from the first two subsections of s46 which read: "(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of s43 of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings. (2) Subs(1) of this section does not render inadmissible -

(a)

evidence of a private conversation that has, in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, if a party to the conversation consents to that person giving the evidence;

(b)

evidence of a private conversation that has, otherwise than in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, notwithstanding that he also obtained knowledge of the conversation in such a manner; or

(c)

in any proceedings for an offence against this Act constituted by a contravention of, or a failure to comply with, any provision of this Part, evidence of a private conversation that has in the manner referred to in that subsection come to the knowledge of the person called to give the evidence."

CARTER J'S APPROVAL

On 26 October 1989 Carter J, acting pursuant to s43(2)(c)(i) of the Act, approved the use of listening devices "in connection with the matter of police investigations relating to corruption including an offence of corruptly influencing Commonwealth Officers under S73(3) of the Crimes Act 1914". The order spelled out the approval in the following terms: "1. That Kenneth Charles SCANLAN of the Queensland Police Force by himself or by means of any other person engaged in or, assisting the investigation of the said matter, use any listening device or devices capable of recording, overhearing, monitoring or listening to a private conversation simultaneously with its taking place, such listening device or devices to be installed in premises occupied by Santo Antonio COCO at were not really used' Anzac Road, Carina, and premises occupied by COSCO Holdings Pty Ltd, at corner of Antimony and Emery Streets, Carole Park in the State of Queensland. 2. That this authorisation apply until 12 noon on the 23rd day of November 1989 or until further order.

AND I DO ORDER THAT SUCH APPROVAL BE SUBJECT TO THE FOLLOWING CONDITIONS

(1)

That any authorised Police Officer or person engaged in, or assisting the investigation of the said offence, to enter and remain upon the said premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices.

(2)

That no such listening device or devices shall be used to record any conversation between Santo Antonio COCO, and his legal advisers.

(3)

That no notice or report relating to this application shall be published and no record of the application, summons and affidavit, or of any approval or order given or made thereon shall be available for search by any person except by direction or order of a Judge of this Honourable Court.

(4)

That the intended procedures set forth in the affidavits of Kenneth Charles SCANLAN and John William ADAMS both sworn the 26th day of October 1989 be complied with."

On 20 November 1989 Carter J extended the approval upon two further conditions. It is unnecessary to detail the terms of the extension.

On 27 October 1989, that is, the day after the approval by Carter J, Ronald Joseph Redmond, Acting Commissioner for Police in Queensland, authorised Detective Inspector Scanlan, who was mentioned in the approval, "in the use of listening devices under and in accordance with an approval given in writing by Mr Justice W CARTER, a Judge of the Supreme Court of Queensland". In support of the application for the approval which had been made by Commissioner Redmond, Det Insp Scanlan had, in an affidavit, nominated members of the Australian Federal Police Technical Unit to assist in the installation of listening devices, members of the Australian Federal Police Force as monitors of the listening devices and as investigating members and two transcribers who belonged to the Commonwealth Public Service. In the same affidavit it was made clear that 7 days might be needed to install the listening devices because the residential premises were occupied and the factory premises occupied by Cosco Holdings Pty Ltd were operated on a twentyfour hours basis.

Although the approval referred to the installation of listening devices in two premises, one residential and the other commercial, it was only in respect of the factory premises that installation took place.

THE CHALLENGE TO ADMISSIBILITY OF EVIDENCE

At the appellant's trial a body of evidence comprising tape recordings of conversations which took place at his office at the factory, and which was obtained by means of the listening device installed pursuant to the approval of Carter J., was admitted against the appellant's objection. It was said to be common ground that if the conversations so recorded should not have been admitted into evidence the appellant's conviction cannot be sustained. The appellant mounted a number of challenges to the reception of that evidence.

The starting point for these challenges ^[45] was s46 of the Act which precludes reception of evidence of a conversation that has come to the knowledge of a person by the "use of a listening device in contravention of s43". The factual basis of the appellant's argument was as follows. On 6 November 1989 two Federal Police officers installed a listening device at the factory. In order to do so they gained entrance to the premises by subterfuge. They impersonated Telecom employees and falsely claimed to employees of Cosco Holdings that they had come to investigate a fault in telephone lines. That conduct, it was said, was in breach of s75(b) of the Crimes Act. The listening devices were powered by electricity and were used without the knowledge or consent of the company over a period of almost 200 hours. That conduct, it was said, was in breach of s408 of the Criminal Code (Q). While the conduct itself is not in issue, this Court is not asked to find that offences were committed; it is enough that the officers acted unlawfully and were trespassers.

S43(1) creates the offence of using a listening device but s43(2) excludes the operation of subs(1) in the circumstances there mentioned. One of those exclusions is the use of a listening device by a member of the police force "acting in the performance of his duty" if that member has been so authorised in writing by a senior police officer "under and in accordance with an approval in writing given by a judge of the Supreme Court". Put broadly, evidence obtained by means of a listening device is inadmissible unless one of the excluding provisions of s43(2) of the Act is met. The relevant exclusion here is s43(2)(c)(i).

Carter J's approval does not in its terms authorise any person to act contrary to law. But one of the conditions on which approval was granted was that those engaged in investigating the specified offence "enter and remain upon the premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices".

The appellant posed a dilemma for the respondent somewhat in the following terms. If the approval purported to authorise illegal entry, such authorisation would be beyond power and void. Further, the terms of the approval which purported to authorise illegal entry would be incapable of severance. The whole of the approval having been of no effect, the evidence was obtained in contravention of s43 of the Act and was therefore inadmissible under s46. However, if the authorisation did not purport to authorise illegal entry or if it were severable, the police officers were acting other than in performance of their duties by the continuing trespass brought about by the presence of the listening device and the abstraction of electricity. S43(2) only excuses a police officer acting pursuant to authority in performance of duty. Again, there had been a contravention of s43 and the evidence was inadmissible.

The respondent had a number of answers to these contentions. The primary submission was that the power to authorise the use of listening devices necessarily contained a power to authorise illegal entry in order to install such devices. Alternatively, the respondent argued that the authorisation of illegal entry could be severed and that, as the term "use" was restricted to "overhear, record, monitor or listen to", illegal entry did not fall within the scope of the prohibition in s43. On this view, the surreptitious entry would be relevant only to the issue arising under Bunning v Cross. As to the presence of the listening device and the abstraction of electricity, the respondent contended that these trespasses were very minor and did not detract from the performance of the police officers' duties.

AN IMPLICATION OF UNLAWFUL ENTRY?

There is nothing in the Act which in express terms authorises entry on to premises without the consent of the occupier ^[46] . Nevertheless, it was said by the respondent that unless unlawful entry is implied from the power to grant an approval the Act cannot be effective. There are situations in which an occupier of premises might consent to the installation of a listening device (for instance, where an employee is suspected of being involved in criminal activity or where an illegal deal is expected to be transacted in a hotel room) and situations in which the listening device does not require entry on to premises at all. Nevertheless, particularly where residential premises are involved, the practical operation of the Act is reduced if entry must be lawful, that is, with the consent of the occupier.

However, the weight of authority is strongly against the implication necessary for unlawful entry to fall within the general operation of s43(2). That authority is at least as early as 1765 when in Entick v Carrington Lord Camden LCJ said ^[47] : "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing. ... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him."

The principle in Entick v Carrington received affirmation by this Court in Plenty v Dillon ^[48] where a power to serve a summons was held not to authorise a police officer to go on to private premises in order to serve the summons. As Gaudron and McHugh JJ observed ^[49] : "A number of statutes also confer power to enter land or premises without the consent of the occupier. But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct".

Is there any basis for implying in Pt4 of the Act an authority to effect unlawful entry for the purpose of installing a listening device? The respondent contended that there was, relying heavily on the judgment of the Supreme Court of Canada in Lyons v The Queen ^[50] . Lyons concerned a charge of conspiracy to import cocaine. At trial the Crown introduced evidence of several private conversations which had been intercepted pursuant to court authorisations. The authorisations made no reference to the manner of installing the listening device, a radio transmitter, but each authorisation permitted the "interception" of private communications and referred to the use of "any electromagnetic, acoustic, mechanical or other device". The Supreme Court, by majority, held that although the relevant provisions of the Canadian Criminal Code did not expressly authorise entry into private premises, many of the kinds of interception provided for in the Code involved a trespass of some kind. Parliament should not be taken to have authorised the use of procedures and equipment without, at the same time, supplying the police with the appropriate means and authority to carry them out.

Estey J, with whom Beetz, McIntyre and Lamer JJ concurred, concluded a lengthy examination of the law in this way ^[51] : "When seeking the proper interpretation of these provisions one should ask if Parliament must be taken as intending to give an authority to the investigating forces which could not be put to use. The invocation of powers granted under Pt4.1 [of the Code] in aid of crime detection serves no purpose if the authorisation granted relates only to isolated pieces of equipment without any direction or authorisation that it be employed in association with authorised devices for interception either by wiretapping or for electronic or acoustic surveillance. It is one thing to leave too much to the discretion of the investigative agency but quite another to stultify the whole undertaking."

On the other hand Dickson J, with whom Chouinard J concurred, dissented with these words ^[52] : "For the reasons I have already given in the Wiretap Reference, it is my view that Parliament did not intend ... to authorise the police to trespass to install a listening device. Accordingly, an authorisation does not implicitly carry with it a right of entry to private premises. And equally, a judge does not possess any authority to include a right of entry as a term of an authorisation."

Dickson J's allusion to the Wiretap Reference was to his judgment in Reference re an Application for an Authorisation ^[53] . It is not possible to do justice to his Lordship's judgment in a few words but he stressed the "inviolability of a person's property [which] has from earliest times been vigorously asserted and resolutely defended by the courts" ^[54] and said that "[t]here has been no material presented to this Court to support the suggestion that oral communications cannot be effectively intercepted without the power to trespass to install listening devices" ^[55] . While the basis underlying the decision in Lyons is relevant to the present case, the Supreme Court of Canada was, as it expressly acknowledged, faced with a question of statutory construction, in particular the meaning to be attached to "interception". The language of the Act is markedly different and there is a real difficulty in seeking to transpose the meaning attached by a court to one set of words to another set of words the meaning of which is to be determined by a different court ^[56] . Rather than a term such as "interception", the Act contains a prohibition on the use of a listening device except where one of the identified exclusions operates. Relevantly, that means a written authorisation by a Supreme Court judge. An inference that an authorisation of itself carries permission to go on to private premises is one that cannot readily be drawn. To say this is not to lose sight of the fact that the Act is directed to invading privacy as well as protecting it ^[57] . But the structure of Pt4 is to protect privacy of conversations except where expressly provided. Any suggested parallel between inferences to be made from "interception" and inferences to be drawn from a prohibition, albeit a prohibition subject to exceptions, is unconvincing.

I find persuasive the observations of Dickson J mentioned earlier and also this passage from his Lordship's judgment ^[58] : "The appellants' claim that police officers are permitted to enter private premises to install listening devices is broad and indiscriminate. It is worthwhile to examine briefly the consequence of accepting that such a sweeping rights exists. The power so granted would go much further than authorising surreptitious entry and would allow the police to act openly and utilise whatever means to achieve entry they found most expedient. Thus, access could be obtained by forcing doors or windows or through trickery or coercion. Further, if police acting under Pt4.1 are implicitly authorised to make entry, s25 of the Code would permit them to effect such entry by overcoming force a property owner is normally entitled to assert, to prevent anyone, including the police, from entering the premises without permission. If the right exists, it must exist in respect of premises of persons who, at the time the entry is made, are innocent of any offence as well as those who have more than passing acquaintance with the criminal process."

USING A LISTENING DEVICE

However, the respondent further argued that the prohibition in s43(1) of the Act is a prohibition against using a listening device, that entry on to premises and the installation of a listening device is not using a listening device, hence there was no contravention of s43(1) in these activities. The definition of listening device appears earlier in this judgment. Drawing on the definition, the respondent submitted that activities not falling within the description "overhear, record, monitor or listen to" cannot constitute using a listening device and so are outside the terms of s43(1). Such activities, even if unlawful, do not detract from an approval, so the argument ran, for the approval is to "use", that is "to overhear, record, monitor or listen to a private conversation".

Whatever force that argument might have in terms of the proper construction of the Act, it cannot succeed here because the approval carried with it in express terms an authority "to enter and remain upon the said premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices". This authority to enter and remain upon the premises cannot be severed from the approval. Indeed, installation of the listening device was mentioned within the principle paragraph of the approval and also expressed to be a condition of use. Clearly it was regarded as an essential element of the approval and if it fails so does the approval.

AUTHORITY TO USE

There is however what appears to be a variation to the arguments of the respondent which have been discussed thus far. As I understand it, the starting point is that para(c)(i) of s43(2) excludes from the operation of s43(1) a conversation overheard, recorded, monitored or listened to by a member of the police force authorised to use a listening device in accordance with an approval.

The argument accepts that the approval is not itself concerned with the means employed to make a listening device effective but contends that an authority to use a listening device necessarily carries authority to install the device where a conversation may be overheard, recorded, monitored or listened to. In other words, when s43(2)(c)(i) speaks of "authorised ... to use" the expression denotes authority to overhear, record, monitor and listen to a private conversation. If that can only be done by going on to premises, that activity is necessarily embraced by the expression.

I have no quarrel with the initial premise in this argument. But the second is suspect and the conclusion is unsustainable. The prohibition in s43(1) is in absolute terms. The exclusions in subs(2) must be construed against this background and authority to use cannot be read as an authority to enter upon premises surreptitiously in order to use, unless the language of subs(2)(c) says so in clear terms. It does not do so.

MEMBER OF THE POLICE FORCE ACTING IN THE PERFORMANCE OF DUTY

Because of the conclusions reached thus far, it is strictly unnecessary to consider the appellant's argument that the police officers had acted other than in the performance of their duty. Nonetheless, it is desirable to say something about the matter. The argument was that even had the approval been valid and s43(1) nothing to say as to illegal entry, the acts of the various police officers in overhearing, recording, monitoring and listening to private conversations of the appellant involved trespass such that each police officer was acting other than "in the performance of his duty" and, therefore, in contravention of s43(1). The trespasses complained of were the continuing presence of the listening device and the abstraction of electricity.

The requirement "a member of the police force acting in the performance of his duty" has two aspects. The first is that the listening device be used by a member of the police force. The second is that it be used by that member in the performance of his duty. The first is concerned with characterisation, the second with function.

The concept of performance of duty was expressed in the following way by Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton ^[59] : "The word 'duty' there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'. The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of an officer's employment'; that is to say, the functions and proper actions which his employment authorises."

It was no part of the officers' duty to trespass upon premises or to make use of Cosco Holdings' electricity. In Halliday v Nevill ^[60] Brennan J commented ^[61] : "A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorised or excused by law."

Nevertheless, if the police officers used the listening device in the honest and reasonable belief that their action was validly authorised by Carter J's approval, they may have obtained the benefit of s22 of the Criminal Code which declares a person to be not criminally responsible for an act done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud ^[62] . But this does not resolve the issue as to whether the police officers were acting in the performance of their duty as required by s43(2)(c). The respondent argued that, notwithstanding the decision in Halliday v Nevill, the trespasses of the listening device's presence and the abstraction of electricity were so minor as not to detract from the performance of duty. Although this argument may have some force in relation to the presence of the listening device, it is difficult to conceive that the abstraction of electricity over a period of almost 200 hours could amount to anything other than a substantial trespass. However, as I have said, it is not necessary to decide the matter as in my view the approval was wholly invalid.

THE MEANING OF POLICE FORCE A number of arguments were mounted as to the meaning of the term "member of the police force" and the operation of the Australian Federal Police Act 1979 (Cth). The threshold question is whether the Federal Police officers involved in the surveillance of the appellant were members of the police force in terms of s43(2)(c)(i) of the Act.

The Act contains no definition of "member of the police force". But s35 of the Acts Interpretation Act 1954 (Q) reads: "In every Act, unless the contrary intention appears - (a) References to any officer or office shall be construed as references to such officer or office in and for this State; Furthermore, as the trial judge de Jersey J observed, the immediate impression on reading the Act is that "police force" is a reference only to the Queensland police force. The impression derives very much from the reference in s43 to particular officers such as the Commissioner of Police, an Assistant Commissioner of Police and officers above the rank of Inspector. In each case the reference is clearly to members of the Queensland police force, especially when it is seen that the Commissioner of Police must inform the Registrar of Commercial Acts, a State officer, of authorisations granted ^[63] . The impression is strengthened further when it is seen that s26(1)(a) of the Act, dealing with private inquiry agents, makes specific reference to "any member of the Commonwealth Police Force or of the police force of this State or any other State or a Territory of the Commonwealth or any part of Her Majesty's Dominions".

DETECTIVE INSPECTOR SCANLAN'S AUTHORITY

A further question arises out of the preceding paragraph of these reasons. It is this. While the Federal Police officers were not members of the police force, Det Insp Scanlan certainly was. Carter J's approval for the use of a listening device was an approval directed to Det Insp Scanlan "by himself or by means of any other person engaged in or, assisting the investigation of the said matter". The respondent contended that when the approval is read with Commissioner Redmond's authority to Det Insp Scanlan "in the use of listening devices under and in accordance with [the] approval", those nominated by Det Insp Scanlan to assist him were necessarily authorised in writing to use a listening device. The approval, it was said, contemplated the very thing that happened, namely the use of a listening device by those engaged in the investigation.

The argument has a certain attraction but it breaks down when regard is had to the language of s43(2)(c)(i). There must be use of a listening device by a member of the police force authorised in writing by the Commissioner (or other senior officer mentioned) of that member. That did not occur here because the officers nominated by Det Insp Scanlan were not members of the police force.

AUSTRALIAN FEDERAL POLICE ACT

The respondent called upon s9(2) of the Australian Federal Police Act 1979 (Cth) which reads: "Where any provisions of a law of a State apply in relation to offences against the laws of the Commonwealth or of a Territory, those provisions so apply as if:

(a)

any reference in those provisions to a constable or to an officer of police included a reference to a member; and

(b)

any reference in those provisions to an officer of police of a particular rank included a reference to a member holding the rank that is, or is declared by the regulations to be, the equivalent of that rank."

S43(2) of the Act contains references consistent with para(a) and para(b) of s9(2) of the Australian Federal Police Act. The question however is whether any provision of a law of a State applies in relation to offences against the laws of the Commonwealth.

De Jersey J held that s9(2) was applicable for the following reasons. Federal Police officers are subject to the prohibition in s43(1) of the Act. Therefore, in the detection of offences under Commonwealth law committed in Queensland they are denied the use of listening devices except in accordance with s43(2). The facility for the granting of approval by a judge is directed to the detection of offences committed in Queensland, whether under State or Commonwealth laws. In consequence, the opening words of s9(2) apply and the necessary transposition of State police officers to Federal Police officers may be made.

While de Jersey J's conclusion is correct, it does not assist the respondent unless Carter J's approval authorised unlawful entry on to the premises of Coco Holdings. For the reasons already given, it did not.

Before the Court of Criminal Appeal the respondent conceded that s12 of the Australian Federal Police Act was not applicable. Before this Court the respondent sought to withdraw that concession though it did not press strongly a case for the application of s12. S12 reads: "A member or staff member is not required under, or by reason of, a law of a State or Territory: (a) to obtain or have a licence or permission for doing any act or thing in the exercise of his powers or the performance of his duties as a member or staff member; or ..." The obstacle to applying s12 in the present case is that authority to use the listening device emanated from Det Insp Scanlan, albeit with the approval of Carter J. And Det Insp Scanlan was a member of the Queensland police force; he was not a "member" within the meaning of the Australian Federal Police Act ^[64] . If it is sought to apply s12 to the Federal Police officers in question, the removal of a need to have a licence or permission does not avail them for they are faced with the blanket prohibition in s43(1) of the Act.

CONCLUSION

In summary then, none of the respondent's arguments warrants a conclusion that the approval of Carter J brought the actions of the various police officers involved in the surveillance of the factory premises of Cosco Holdings within s43(2)(c)(i) or that they otherwise escape the prohibition against the use of a listening device found in s43(1). The evidence of the appellant's private conversations was obtained by the use of a listening device in contravention of s43(1) of the Act and was therefore inadmissible against the appellant.

It follows that the appeal to this Court must be allowed. It is unnecessary therefore to deal with the application for special leave to appeal based on Bunning v Cross. The appellant's notice of appeal seeks an order that the judgment and orders of the Court of Appeal be set aside and that, in lieu thereof, "the appeal to that Court against conviction be allowed". In view of the concession made by the respondent that, in the absence of evidence obtained by use of the listening device, the appellant's conviction cannot be sustained, the conviction must be quashed and a new trial ordered.