Privacy Law & Policy Reporter --- "Cases and complaints" [1997] PrivLawPRpr 50; (1997) 4(5) Privacy Law & Policy Reporter 92

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• OUSLEY v THE QUEEN
  
• COVERT VIDEO-TAPING (HK)
  

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Cases & complaints

OUSLEY v THE QUEEN

High Court of Australia, 20 October 1997 (Toohey, Gaudron, McHugh, Gummow and Kirby JJ)

Listening devices — validity of warrants — Listening Devices Act 1969 (Vic), s 4A

Following a Victorian County Court trial, O was convicted on a charge of trafficking in a drug of dependence. Evidence was led at the trial of conversations recorded by means of a listening device purportedly used in accordance with two warrants issued by the Supreme Court of Victoria in 1992. Section 4A(1) of the Listening Devices Act 1969 (Vic) (the Act) conferred the power on the Supreme Court to authorise, by warrant, the use of a listening device if the court is satisfied that there are reasonable grounds for the suspicion or belief of a police officer that (a) an offence has been or is likely to be committed, and (b) the use of a listening device is necessary for the purpose of investigating that offence.

The warrants issued in this case were in a form prescribed by the Criminal Appeals and Procedures Rules 1988 (Vic) and recited the satisfaction of the Supreme Court of the matters set out in s 4A(1)(a), but were silent as to the matters set out in s 4A(1)(b), namely as to the necessity of the use of a listening device. Section 4A(4) provided that warrants issued under s 4A must specify a number of practical matters, including the period for which it is in force, the names of any persons authorised to use the listening device, the premises on which it may be installed and any conditions subject to which the premises may be entered or the device used. The warrants at issue did specify these details.

O challenged the validity of the warrants and the admission of the evidence obtained as a result of them.

Held (dismissing the appeal):

1. (per curium): A warrant issued under s 4A(1) of the Act is not a judicial order, but an instrument made in the discharge of an administrative function. Accordingly, its validity may be challenged in collateral proceedings. (Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307, followed.)
2. (per Toohey, Gaudron, McHugh and Gummow JJ; Kirby J not deciding): The validity of a warrant depends on it having been regularly issued, not on the sufficiency of the material supporting the application for its issue. (Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, McArthur v Williams (1936) 55 CLR 324, followed.)
3. (per Toohey, McHugh and Gummow JJ): The matters listed in s 4A(4) of the Act constitute a comprehensive list of the matters that must appear on the face of the warrant. Accordingly, there was no requirement to disclose the court’s jurisdiction (that is, the matters in ss 4A(1)(a) and (b)) on the face of the warrant. No inference of invalidity should be drawn merely because the warrants did recite the matters in s 4A(1)(a) but not s 4A(1)(b). (Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473, applied; Tran Nominees v Scheffler (1986) 42 SASR 361, R v Tillett; Ex parte Newtown (1969) 14 FLR 101, distinguished.)

(per Gaudron J): For a warrant to be valid it must state the Court’s satisfaction as to both matters specified in ss 4A(1)(a) and (b) of the Act, in addition to the matters listed in s 4A(4). Accordingly, the warrants were invalid. However, due to the technical nature of the invalidity and the lack of culpable impropriety on the part of the law enforcement officers, the discretion to exclude illegally obtained evidence could not have been exercised in favour of O.

(per Kirby J, dissenting): Strict compliance with the preconditions for the issue of a warrant authorising the use of a listening device will be demanded by the courts. Having recited part of the jurisdictional grounds for the issue of the warrant, the warrant was defective on its face by failing to recite the matters specified in s 4A(1)(b). The danger posed by the omission was that even a conscientious Supreme Court judge might, in considering whether to issue a warrant, fail to address attention to the matters specified in s 4A(1)(b), namely the necessity for the use of a listening device. An application to exclude the evidence obtained by the warrants was not bound to fail, so a new trial should be ordered.

Patrick Gunning, Solicitor, Mallesons Stephen Jaques, Sydney.

COVERT VIDEO-TAPING (HK)

Privacy Commissioner for Personal Data, Hong Kong, 13 October, 1997

Personal Data (Privacy) Ordinance (HK), Data Protection Principles 1(2) (fair collection) and 3 (use)

A university student was video-taped by a fellow student without her knowledge and consent in a hostel room in the university. The video tape was subsequently shown to a friend of the person complained against. The Privacy Commissioner is of the opinion that the person complained against contravened Data Protection Principles (DPPs) 1(2) and 3 in the Personal Data (Privacy) Ordinance.

DPP 1(2) stipulates that personal data shall be collected by means which are lawful and fair in the circumstances of the case. The Commissioner said:

A recorded image of a living individual from which it is practicable to identify that person and in a form in which access to or processing of the data is practicable is personal data of that individual. In the absence of any other overriding public interest, it is unfair to photograph or video-tape a person’s image in a private place with an intent to collect that person’s personal data without that person’s knowledge or consent.

DPP 3 stipulates that personal data shall not, without the prescribed consent of the individual concerned, be used for any purpose other than the purpose for which the data were collected or a directly related purpose.

The person complained against claimed that the purpose of his video-taping was to collect evidence of the presence of a person known to the complainant entering the said premises without proper authority. If this is so, we do not consider that the subsequent showing of the video to a friend who was not in a capacity to assist in the carrying out of this purpose was consistent with the claimed purpose of collecting the data. On this basis, there was a breach of Data Protection Principle 3.’

An enforcement notice has been issued to the person complained against directing him to retrieve and surrender to the complainant any video tapes made of the complainant whether they were still in his possession or not and to cease duplicating, using and showing any such tapes to any other persons. Contravention of an enforcement notice is an offence under the Ordinance, although breaches of data protection principles are not. The Commissioner was satisfied that in this case, the enforcement notice has been complied with. But if we find in the future that the enforcement notice has been breached, we would of course initiate prosecution action,’ he said.

The complainant, as a result of a contravention of the Ordinance, also has the right to seek compensation from the data user concerned for any damage, including injured feelings, through civil proceedings.

Commissioner Lau commented that the incident raised serious concerns about the adequacy of current laws in Hong Kong to deal with a serious invasion of privacy of this kind. The main concern is that currently surveillance by itself is not a criminal offence and becomes subject to the Personal Data (Privacy) Ordinance only if it results in the collection of personal data. He said he looks forward to the publication by the Law Reform Commission its final report on regulating surveillance expected early next year.

Copies of the report are available from the Office of the HK Privacy Commissioner. Edited from the Commissioner’s press release. (General Editor).