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Alleged telephone interceptions - Royal Commission of Inquiry (Hon. Mr Justice D.G. Stewart) - Final report - Volume 1, dated 30 April 1986


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The Parliament of the Commonwealth of Australia

ROYAL COMMISSION OF INQUIRY INTO ALLEGED TELEPHONE INTERCEPTIONS

Commissioner: The Hon. Mr Justice D. G. Stewart

Report

1986

Presented I May 1986 Ordered to be printed 8 May 1986

Parliamentary Paper No. 155/1986

\

Cotntnissionoflnquiry

into Alleged Telephone Interceptions

The Government of the Commonwealth of Australia

and

The Governments of the States of New south Wales and

Victoria

ROYAL COMMISSION OF INQUIRY IN'ID

ALLEGED TELEPHONE INTERCEPTIONS

Commissioner: The Hon. Mr Justice D.G. Stewart

REPORT - VOLUME ONE

30 April 1986

Australian Government Publishing Service Canberra 1986

@) commonwealth of Australia 1986

ISBN 0 644 01344 3

Printed by Aiken Press Pty . Ltd. - Smithfield

ROYAL COMMISSION OF INQUIRY INTO ALLEGED TELEPHONE INTERCEPTIONS

om mi ss ioner: TH r HO!\ MR J l'ST ICE D. G. STEWA RT

.o1i ng Secreta ry: K . E. R A!\ SO ME

G.P.O. Box 7(t)6() Sydney. N.S.W. 2001 Australia.

Telephone: (02 ) 265 7255

30 April 1986

His Excellency the Right Honourable Sir Ninian Stephen, A.K., G. C.M.G., G. C. V.O., K.B.E. , Governor-General and Commander-in-Chief, Government House, CANBERRA A.C.T. 2600

Your Excellency,

In accord(1nce with Letters Patent issued to me on 29 March 1985 by the Government of the Commonwealth I now have the honour to present to you the report of my inquiry. A report in identical terms is being made to His Excellency the Governor of New South Wales . A separate report is being made

to His Excellency the Governor of Victoria in accordance with Letters Patent issued to me by the Government of Victoria.

As I have now concluded the tasks required under consecutive Letters Patent issued to me by the Government of the Commonwealth since 25 June 1981, I therefore return these various Letters Patent herewith. -----

Yours sincerely,

(D.G. Stewart) Royal Commissioner

ROYAL COMMISSION OF INQUIRY INTO ALLEGED TELEPHONE INTERCEPTIONS

TH r H OJ'\ . MR . J li ST ICE D . G. STEWAR T

\cting Secretary: K. E. RA!'iSOMF

His Excellency Air Marshal Sir James Rowland, K.B.E., D.F.C., A.F.C., Governor of New South Wales, Government House, SYDNEY N.S.W. 2000

Your Excellency,

G.P.O. Box 7060 Sydney. N.S.W. 2001 Australia.

Telephone: (02) 265 7255

30 April 1986

In accordance with Letters Patent issued to me on 3 April 1985 by the Government of New South Wales I now have the honour to present to you the report of my inquiry. A report in identical terms is being made to His Excellency the Governor-General. A separate report is being made to His Excellency the Governor of Victoria in accordance with Letters Patent issued to me by the Government of Victoria.

As I have now concluded the tasks required under consecutive Letters Patent issued to me by the Government of New South Wales since 24 June 1981, I therefore return these various Letters Patent herewith.

Yours sincerely,

(D.G. Stewart) Royal Commissioner

ROYAL COMMISSION OF INQUIRY INTO ALLEGED TELEPHONE INTERCEPTIONS

r:ommi ssioner: TH E HoK MR. J l! STICE D. G. STEWART

,A:cting Secretary: K . E. RA!"SOMF

His Excellency Dr Davis McCaughey, Governor of Victoria, Government House, MELBOURNE VIC 3000.

Your Excellency,

G.P.O. Box 7060 Sydney. N.S.W . 2001 Australia.

Telephone: (02) 265 7255

30 April 1986

In accordance with Letters Patent issued to me on 17 June 1985 by the Government of Victoria I now have the honour to present to you the report of my inquiry. Reports are also being made to His Excellency the Governor-General and His Excellency the Governor of New South Wales in

accordance with Letters Patent issued to me by the Governments of the Commonwealth and New South Wales.

As I have concluded the task required of me I return herewith the Letters Patent.

Yours sincerely,

(D.G. Stewart) Royal Commissioner

Chapter 1

Chapter 2

Chapter 3

- ix -

VOWME ONE

Establishment of the Commission

Introduction Newspaper Articles

Inquiries by the under the

Clark Reference

Publication of Transcripts of Telephone Conversations

Action by Governments Further Newspaper Articles

Senate Select committee on the Conduct of a Judge

Material Obtained by the Royal Commission of Inquiry into Drug Trafficking Amending Legislation Further Investigation Undertaken by

the conunission Matters for Investigation and Report

Interim Report No.8 . Advice of the Commonwealth Director of

Public Prosecutions Commonwealth Parliamentary Discussions

Amending Legislation and Extended Terms of Reference

The Terms of Reference

Conduct of the Inquiry

1

3

5

5

6

6

8

9

9

15

15 17

18

19 19

21

23

31

Interpretation of Terms of Reference 33

Procedures Adopted for Conduct of the Inquiry 35 Indemnities and Undertakings 40

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

- X -

The Standard of Proof 41

Communication of Material to Other Agencies 42

Staffing and Facilities

Hearings and Statistics Extension of Reporting Date Acknowledgements

Laws Involved in this Report

Material Obtained by this commission

History of Telephone Interceptions by

47

50 51

51

53

69

New south Wales Police 79

The Commencement of Telephone Interceptions 81

1974-1984 Role of the TSU and Relationship with the BCI 84

Expansion of the BCI 90

Equipment 94

Installations 103

Records Produced and Storage of Material 108

Administrative Procedure and Involvement of Senior Police Destruction of Material Meetings of TSU and BCI

Specific Operations

use of Telephone Interceptions Other than for the Investigation of Crime OVerview of Operations

Incidental Matters Arising from Unlawful Telephone Interceptions

112

122 124

lTI

135 137

165

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

- xi -

Illegal Telephone Interceptions Involving the Victoria Police

History, Extent and Nature of Liaison with TSU Conclusions

Other Organisations Involved in Unlawful Telephone Interceptions

173

175

193

197

Australian Federal Police 199

Federal Narcotics Bureau 205

CoiTU110nwealth/New South Wales Joint

Task Force on Drug Trafficking 215

Interceptions by a Private Inquiry Agent 220

The Role of Telecom

Assistance to NSW Police Undertaking Illegal Telephone Interceptions Devices Discovered by Telecom Conclusions

Interception Devices Available

Retailers \fuolesalers Advertisements and Instruction Manuals

Training courses The counter Measure Trade

Investigations by the Special Prosecutor and Inquiries by the Senate Select Committee on the conduct of a Judge

227

229

230

238

241

243 245 246

247

248

253

Chapter 14

Chapter 15

Chapter 16

Appendices

A

- xii -

Special Prosecutor Special Task Force of the NSW Police The AFP Investigation

senate Select Committee on the Conduct of a Judge

253 253 261

264

Authenticity of Material 269

AFP Records 273

Material Supplied by the Age Newspaper 274

Interceptions - car Telephones 274

Interceptions by NSW Police 275

Information Gathered by NSW Police Special

Task Force 281

Confirmation of Objective Facts by the

Commission 283

Identification of Material 285

commission's Observations Concerning Voices on Tapes 292

Conclusions 295

current Practices 301

Current System for Lawful Telephone Interceptions overseas Practices in the Interception of Telephone Communications Submissions

Conclusions and Recommendations

(i) Commonwealth Letters Patent, 29 March 1985

303

309 323

335

357

359

(ii) New SOuth Wales Letters Patent, 3 April 1985 367 (iii) Victorian Letters Patent, 17 June 1985

B

c

D

E

F

Index

- xiii -

Recommendations for Indemnities and Undertakings

Breakdown of Installations

Technical Description and Block Diagram of Transmitter located January 1984

Table of Administrative and Other Changes in TSU and BCI

Organisational Structure of TSU and BCI

381

389

393

397

401

407

- xiv -

EXPLANATORY roTE

Throughout this report:

A. Unless otherwise stated, the ranks of police officers are the

ranks held by them at the time of the events under discussion. Police officers are referred to by rank only and the designation 'detective' has not been used. Divisions within those ranks are not given.

B. Extracts from transcripts and summaries of intercepted telephone conversations are reproduced as appear in the material in

the possession of the Commission and may contain spelling errors and inconsistencies.

C. Certain abbreviations have been used:

TSU

BCI

NSW Police

AFP

ABCI

JTF

PM;

CIB

Technical survey Unit of the New South Wales Police force.

Bureau of Crime Intelligence of the New south Wales Police force unless otherwise stated eg Victorian BCI.

New South wales Police force.

Australian Federal Police.

Australian Bureau of Criminal Intelligence.

Commonwealth/State Joint Task Force on Drug Trafficking.

Postmaster-General's Department.

Criminal Investigation Branch.

- XV -

D. Although .the Technical survey Unit and the Bureau of Crime

Intelligence underwent several name changes during the period of the interception of telephone conversations, to avoid confusion these organisations are referred to as the TSU and the BCI

throughout this period.

E. Unless otherwise noted locations referred to are suburbs of

Sydney.

F. Certain abbreviations have been used in the endnotes which

appear at the end of each chapter:

E ••• , Smith is a reference to the transcript of evidence

heard by the Corrunission and the name of the relevant

witness. The numerals following the abbreviation indicate the relevant pages of the transcript of evidence.

s ••• , Smith is a reference to a statement made by a

witness to the Corrunission and the name of the relevant witness. The numerals following the abbreviation indicate the relevant page numbers of the Corrunission's volume

containing all statements.

ss ••• , Smith is a reference to a supplementary statement made by a witness to the Commission and the name of the

relevant witness. The numerals following the abbreviation indicate the relevant page numbers of the Commission's volume containing all supplementary statements.

RCIDT CT ••• , Smith is a reference to the confidential

transcript of the Royal Corrunission of Inquiry into Drug Trafficking and the name of the relevant witness. The

numerals following the abbreviation indicate the relevant

pages of the transcript.

- xvi -

TI... is a reference to an operational file held by the

commission. The numerals following the abbreviation

indicate the number allocated to the file.

ADM... is a reference to an administrative file held by

the Corranission. The numerals following the abbreviation indicate the number allocated to the file.

TlA/ •.. , TlB/ •.• , TlC/ ••• , TlD/ ••• , T2/ .•• , T3/ ••• ,

T3A/ •.• , T4/ ••. , T5/ ••• , refer to the volumes of

transcript and surranary material in the possesion of the Corranission·. Precise details of these volumes are

contained in Chapter 6 of the report. The numerals

following the abbreviation denote the page numbers of the particular volume.

CHAPrER 1

ESTABLISHMENT OF THE COMMISSION

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CHAPI'ER l ESTABLISHMENT OF THE COOMISSION

Introduction

l.l The Royal Corranission of Inquiry into Alleged Telephone

Interceptions was established pursuant to Letters Patent issued by the Governor-General on 29 March 1985 and by Letters Patent issued by the

Governor of New south Wales on 3 April 1985. on 17 June 1985 the

Governor of Victoria issued complementary Letters Patent. The Letters

Patent are reproduced at Appendix A. The three Letters Patent appointed the Hon. Mr Justice D G Stewart as Royal Corranissioner and varied the terms of reference of existing Letters Patent which had been issued to Mr Justice Stewart in 1981 and 1983. As there was a complicated history

of public debate and official inquiry preceding the issue of the present terms of reference, it is important to record in some detail the events leading up to the establishment of this Corranission.

1.2 On 25 June 1981 the Corranonwealth Government issued Letters

Patent which appointed Mr Justice Stewart as sole Royal Commissioner to inquire into and report upon the activities of Terrence John Clark and persons associated with him, which involved contravention of laws of the Corranonwealth. The Royal Commission of Inquiry into Drug Trafficking was

thereby constituted.

l. 3 On 24 June 1981 the Government of the State of New south Wales

appointed the Commission to inquire into similar matters insofar as they involved contravention of the laws of that State. The Governments of the States of Victoria and Queensland issued like commissions. For

convenience the Commission's work under these terms of reference is

referred to as the 'Clark reference'.

l. 4 On 28 March 1983 the Conmonwealth and New south Wales

Governments issued Letters Patent which varied the 1981 Letters Patent

and Mr Justice Stewart was qirected to inquire into the activities of the

- 4 -

Nugan Hand Group. The Corrmission' s inquiries into these activities are, for the most part, not relevant to the Corrmission 's present The work done under the 1983 Letters Patent will be referred to as the 'Nugan Hand reference'.

1 . 5 During the Clark reference Mr Justice _stewart identified Robert Trimbole as an associate of Clark. In the report it was stated:

It is clear that Robert Trimbole was an active member, if not a principal, of the Clark organisation, particularly in its later stages of operation in both Australia and the United Kingdom.l

1.6 The evidence available to the Corrmission disclosed that Trimbole was active in the Clark organisation until at least late in 1979.

Trimbole was surrmoned as a witness to the inquest into the deaths of

Douglas and Isobel Wilson (also associates of Clark) in Melbourne on 12 August 1980. On the application of Trimbole's Counsel he was excused by the coroner from being called as a witness on the grounds that his

answers to questions put to him may have incriminated him. Although the Royal Corrmission of Inquiry into Drug Trafficking was established on 25 June 1981, there had been public discussion of the various

Governments' intentions to establish the Commission for some time beforehand. On 7 May 1981 Trimbole left Australia and has probably remained overseas since that date. Efforts in late 1984 and early 1985 to have him extradited to Australia from the Republic of Ireland were unsuccessful.

1. 7 The public debate leading up to the establishment of the present

Corrmission commenced with allegations that Trimbole had been warned by an officer of the NSW Police to leave Australia before Mr Justice Stewart was appointed to inquire into the Clark matters. The public debate

continued over a long period and the allegations of wrongdoing by police officers and others multiplied. It was finally alleged that officers of the NSW Police had been illegally intercepting telephone calls. Several inquiries were conducted into this last allegation without positive results. These inquiries will be referred to later [see paragraphs

1.18-1.24, 1.26-1.27].

- 5 -

Newspaper Articles

1. 8 In June and July 1983 star ies were published in Sydney and

Melbourne newspapers suggesting that a detective of the NSW Police had warned Trimbole to leave Australia before the Royal Commission was established. . Further allegations were made in these newspaper articles about an association between Trimbole and a former officer of the NSW

Police and the destruction by 1 a senior New south Wales policeman 1 of information linking Trimbole with the detective.

1.9 'Ihese allegations prompted an investigation by the NSW Police

Internal Affairs Branch carried out at the direction of the then New

South Wales Commissioner of Police, Mr c R Abbott.

Inquiries by the Commission under the Clark Reference

1.10 On 5 July 1983 the Royal Commission requested a copy of the

report of the Police Internal Affairs Branch investigation. 2

1.11 On 14 July 1983 the author of the first of the newspaper stories

referred to in paragraph 1.8, Mr John Leslie Silvester, gave evidence to the Commission. Another journalist, Mr Robert Godier Bottom, gave evidence on 15 July 1983. The substance of their evidence was that Mr Bottom had obtained from an undisclosed source or sources pages of what appeared to be summaries and transcripts of intercepted telephone

conversations between Trimbole and others. Mr Silvester had been allowed access to the material before writing his story. 3 Part of the material produced to the Commission by M r Bottom indicated that a Sydney barrister had also suggested to Trimbole that he leave Australia before the

Commission was established. 4

1.12 On 19 July 1983 Mr Abbott supplied the Commission with a copy of the Departmental papers dealing with the investigation by the Internal Affairs Branch. 5 The Police Commissioner stated that he concurred with the finding of investigating that:

- 6 -

••• insufficient evidence has been forthcoming to identify the member of the Force who allegedly warned Mr Robert Trimbole to leave Australia to avoid appearance before the Stewart Royal Commission into Drugs.6

1.13 After reviewing evidence on Trimbole gathered in its earlier

inquiries, the Commission requested from the NSW Police all material in its possession relevant to Trimbole and his whereabouts. A body of such material was delivered to the Commission on 2 August 1983. 7

Publication of Transcripts of Telephone Conversations

1.14 In its issue dated 25 November to 1 December 1983 the

National Times published edited extracts from transcripts said to be of telephone conversations. These extracts were similar in format to the material supplied by Mr Bottom to the Commission.

1.15 The matter achieved prominence in the public eye when on

2, 3 and 4 February 1984 the Age published further extracts of

transcripts of tape recorded conversations. Transcripts relating

particularly to Trimbole were published on 4 February 1984. The material thereafter became known collectively as the 'Age tapes', although it consisted mainly of photocopies of typewritten pages and not of tapes.

1.16 on l and 2 February 1984, the editor of the Age had delivered to

the Corranonwealth Attorney-General, Senator G J EVans, what he said was a complete set of transcripts and tapes in his possession, upon which the published material was based.

1.17 On 8 February 1984, Mr Bottom gave further short evidence to the Commission. He indicated that he had no further information with regard to Trimbole or the interception of telephone conversations involving Trimbole. 8

Action by Governments

1.18 on 21 February 1984 Mr I D Temby, r;x:_, was appointed by the

Commonwealth Government as Special Prosecutor under the provisions of the

- 7 -

Special Prosecutors Act 1982 to supervise further investigations in relation to the tapes and transcripts delivered to the Attorney-General by the Age.

1.19 On 6 February 1984 the Cornnission had been asked by the New

south Wales Government to investigate matters concerning the materials so far as they were relevant to its terms of reference relating to the

activities of Terrence John Clark and his associates.

1.20 On 22 February 1984 the New South Wales Premier, the Hon. Mr N K wran, r;;r::, MP, tabled in Parliament a telex to the Prime Minister, the

Hon. R J L Hawke, AC, MP, referring to the appointment of the Special

Prosecutor, investigations completed and yet to be undertaken by the New South Wales Solicitor-General and the meeting between the Premier and the Royal Commissioner on 6 February 1984 at which the allegations concerning

Trirnbole had been discussed. The Premier wrote that the Royal

9

Commission had advised that 'investigations were already underway'.

1.21 On 28 February 1984 the Commonwealth Attorney-General, in a

Ministerial Statement to the Senate, informed the Parliament that:

in addition to being examined by Special Prosecutor Temby's team, some of the material had also been forwarded •.. to Royal Commissioner, Mr Justice Stewart, as it is possibly relevant to matters on which (he is) working or (has) worked.10

1. 22 In a letter of the same date, the Premier requested that the

Commission give consideration to 'giving high priority to finalising the

investigation of all aspects of the Trimbole matters and, if appropriate, submitting an early report' •11 The Prime Minister, speaking for the Commonwealth Government, concurred with the Premier's request on 5 April 1984. 12

1. 23 After publication of the articles in February 1984,

representatives of the Age provided to the New South Wales

Attorney-General materials consisting of three tapes and seven bundles of

photocopied transcript. These materials were a duplicate of those

previously supplied to the Commonwealth Attorney-General which had been

- 8 -

the subject of an advice given by the New South Wales Solicitor-General, Ms M Gaudron, on 17 February 1984. The Solicitor-General advised that

'disclosure of the material, even in the Parliament could constitute an offence under the Telecommunications (Interception) Act' and that 'unless and until the material is authenticated it is unlikely that inquiries

would lead to any significant outcome'. She recommended:

1) That State police be requested to co-operate with Federal police in inqu1r1es relevant to the interception of

telephone conversations.

2) That, should it be established that telephone interception was effected by a member of the New South Wales Police

Force, appropriate disciplinary action be taken. Inquiries and action in this regard may need to await the outcome of investigation by Federal authorities on the question of interception.

3) Because the material is unauthenticated and, if it is what

it purports to be, is inadmissible, it not be the subject

of any reference pursuant to the Special Commissions of Inquiry Act, 1983 or any similar inquiry.

4) That two (and possibly, three) matters above identified be the subject of further consideration by the Crown Solicitor and myself with a view to inquiries being undertaken by the Commissioner of Police.l3

l. 24 The material was passed to the New south Wales Commissioner of

Police, Mr C R Abbott, for the purpose of his causing certain inquiries to be made.

Further Newspaper Articles

l. 25 On 28 February 1984 the Melbourne sun published a story by

Mr John Silvester in which it was claimed that senior New South Wales

police officers 'deliberately withheld information from a Royal

Corranission and allowed drug boss Robert Trirnbole to flee Australia'.

This article was referred to in stories in the Melbourne sun, the

Sydney Morning Herald, the Daily Telegraph and the Australian on

29 February 1984. Further newspaper articles on the 'Age tapes' also

appeared on 1 March 1984.

- 9 -

Senate Select Committee on the COnduct of a Judge

1.26 The Senate Select Committee on the Conduct of a Judge was

appointed by the Senate on 28 March 1984 following allegations that the 'Age tapes' material contained references to improper conduct on the part of a senior .judge. The judge was alleged to l;>e the Hon. Mr Justice

Lionel Keith Murphy of the High court. The COmmittee was required to inquire into and report upon, inter alia, whether any or all of the tapes and transcripts delivered by the Age to the Attorney-General on

1 February 1984 and relating to the conduct of a federal judge were

'authentic and genuine•. 14

1. 27 In its report of 24 August 1984 the Committee was unable to

conclude whether the material was authentic 'in whole or in part except

to the extent that limited acknowledgements had been made to the

Committee ' 15 The Committee was of the view that the material

could not be authenticated unless the source could be identified. It

would therefore be necessary for the Committee to obtain admissions by

the police officers who took part in the placing of the interception

devices, the recording of telephone conversations, the transcription of the tapes and the preparation of surranaries. The Committee stated that the 'evidence · available to the Committee sufficiently indicated that such admissions have not been forthcoming and all efforts by the COmmittee to

16

pursue such admissions produced no useful results'.

Material Obtained by the Royal Commission of Inquiry into Drug Trafficking

1.28 On 6 March 1984 the Royal Commission of Inquiry into Drug

Trafficking requested from the Commonwealth Attorney-General the material supplied to him by the editor of the Age. On 13 March 1984 the

Commission received from the Attorney-General sixty seven folios of material apparently being copies of sixty seven of the sixty eight pages supplied by Mr Bottom. They were said to be a 'copy of the portion of

material supplied by the Age newspaper to the Attorney-General on 1 and 2 February 1984, purporting to be transcripts or summaries of

transcripts of • • • telephone conversations that apparently related to Mr R Trirnbole•. 17

- 10 -

1.29 en 8 June 1984, with the authority of the ColllllOnwealth

Attorney-General, the Corrunission received from Mr I D Temby, c;:t::., Speci al Prosecutor, the following material:

(a) Interim Report of the Special Prosecutor, which included an AFP report. 18

(b) Attachments to the AFP report :

( i) inquiries on behalf of the Special Prosecutor,

Volumes 1 and 2;

( ii) appendices A, B and c, V0lumes 1 and 2; and

(iii) appendices D, E and F, Volumes 1 and 2.19

(c) Revised flow chart of Morgan John Ryan surrmaries prepared by the AFP. 20

(d) Three TDK D60 cassette tapes being copies made by the AFP of those received from the Age newspaper, together with 105 pages of transcript of the conversations on those tapes prepared by the AFP. 21

(e) NSW Police Special Task Force documents:

( i) a copy of forty eight statements by NSW Police

officers to the Special Task Force; 22

(ii) a report dated 24 May 1984 in relation to a

conversation contained on the tapes which was recorded at a New south Wales gaol; 23

(iii) a report dated 9 May 1984 concerning

authentication of alleged conversations between an employee of Nancy Howe Real Estate and Ronald Dias during operation 'A oazzler•; 24

- 11 -

(iv) a record of an interview of 9 December 1983 with

representatives of the National Times newspaper regarding allegations made in the National Times of 25 November to 1 December 1983: and25

(V) a progress

to 'Bob

J M

report dated 1 March 1984 in relation Bottom's Tapes' by Superintendent

(f) A .report of NSW Police investigations into the Cessna/

Milner matter. 27

1. 30 The appendices to the AFP report referred to in sub-paragraphs

(b) (ii) and (iii) were photocopied pages of sliimlaries and transcripts

apparently of telephone conversations involving a number of persons. They may be described as follows:

A, B and c

(a) 106 pages headed 'Mad Dog';

(b) 146 pages headed 'A Dazzler':

(c) 64 pages headed 'Southern Comfort':

(d) 97 pages headed 'Rabid':

(e) 67 pages headed 'Lucerne' and 'Pasta' : and

(f) 44 pages headed 'Morgan John Ryan'.

Total: 524 pages.

D, E and F

533 pages which were photocopies of appendices A, B and c.

- 12 -

1.31 The discrepancy in the number of pages between Appendices

A, B and C on the one hand and D, E and F on the other requires

explanation.

l. 32 Appendices D, E and F, although supplied to the Special

Prosecutor directly by the Age as the 'original' material given to it by Bottom, are of a later generation than Appendices A, B and c. They were

photocopies of the pages of Appendices A, B and C but in a different and less coherent order, with some omissions and with some internal

duplication. Because of the duplication D, E and F had nine more pages than A, B and c.

1.33 The above material, together with:

(a) twenty seven pages of handwritten notes taken by Mr J L

Silvester from typewritten summaries and transcripts of telephone conversations involving Robert Trimbole and produced to the Commission by Mr Silvester on 14 July

198328 ; and .

(b) sixty eight pages of photocopied typewritten summaries and

transcripts of telephone conversations involving ":'rimbole, of similar content to that produced in summary form by

Mr Silvester, and produced to the Commission on 15 July

1983, 29

was the full extent of material said to evidence the interception of

telephone calls, in the Commission's possession in June 1984.

l. 34 On 5 July 1984 Messrs J L Silvester and R G Bottom again gave

evidence to the Commission. Mr F A Silvester, formerly Director of the Australian Bureau of Criminal Intelligence (ABCI), also gave evidence on · that day. 'Ihese witnesses had been called to enable the Commission to

ascertain if they could assist in any way in authenticating or providing information which might lead to the of the material

referred to above. Mr F A Silvester was unable to provide such

information, and Messrs J L Silvester and Bottom, for reasons of

- 13 -

'journalistic ethics' , were unwilling to reveal the sources from whom they had obtained copies of such materials. 30 Mr J L Silvester

indicated that it was his understanding that the interception of

telecorranunications had been undertaken by approximately thirty five NSW Police officers in the period 1976 to 1983. 31

1.35 The Commission had not, by the date of the Special Prosecutor's

final report (20 July 1984), proceeded further than indicated above as it took the view that such a course would be in breach of provisions of the Telecommunications (Interception) Act 1979. Section 7(4) of that Act

states (in part):

A person shall not divulge or communicate to another person, or make use of or record, any information obtained by intercepting a communication passing over a telecommunications system .••

1.36 A number of exceptions to this prohibition are set out in

sections 7(4) and 7(6) of the Act but are not relevant for present

purposes.

1. 37 The Commission carne to the view that it would be in

contravention of the provisions of section 7(4), if it investigated

matters disclosed by the material then in its possession, purportedly summaries and transcripts of intercepted telephone conversations. In a

letter dated 24 May 1984 the Commission requested the Commonwealth Attorney-General to consider amending the Telecommunications

(Interception) Act to overcome the prohibition contained in section 7(4) which would otherwise prevent the Royal Commission from pursuing its

inquiry. 32

l. 38 In anticipation of an appropriate amendment being made, the

Commission gave preliminary consideration to the material already made

available to it.

1. 39 On 21 August 1984 the CoiTU110nwealth Attorney-General tabled in Parliament the Special Prosecutor's final report of 20 July 1984. In

that report Mr Ternby stated:

- 14 -

Portions of the transcript relate to one Trimbole, an alleged malefactor who is now overseas. At the time of my interim

report the Honourable Mr Justice Stewart, in his capacity as a Royal Commissioner, had that portion of the materials. He had been requested by the commonwealth and New South Wales

Governments to give priority to investigating matters arising from the relevant transcript. I have had discussions with him on several occasions. It seems likely that in the course of

that investigation the Judge will see fit to enquire into the

circumstances in which the transcripts came to be prepared. That might well assist in identifying the person or persons

responsible for illegal interception of telephone conversations, if that is what has in fact happened. At this stage there is

room for strong suspicion to that effect but the gulf between suspicion of whatever strength on the one hand and proof on the other is very wide.33

1. 40 In tabling the report the Attorney-General indicated that the

Government accepted in toto Mr Temby's recommendation that the matter be left as it stood until Mr Justice Stewart and the senate Select Committee on the Conduct of a Judge had corrpleted their respective tasks. He

indicated that he would be introducing, as soon as possible, the

appropriate ainendments to the Telecommunications (Interception) Act to enable Mr Justice Stewart to conduct inquiries into the Age material. 34

1. 41 on 23 August 1984 Mr Bottom and another journalist, Ms Wendy

Bacon, were interviewed on the ABC program 'Pressure Point'. In that

interview, Mr Bottom indicated that he was of the view that there were in existence an original set of tapes and transcripts. Both journalists expressed the view that a Royal Commission was needed to investigate the contents of the materials.

1. 42 On the same day Sir Colin Woods, Commissioner of the AFP from

1979 to 1982, was interviewed on the ABC radio program 'AM'. In that

interview, Sir Colin indicated that he had been aware of information

originating .from tapes of intercepted telephone conversations, but that he was concerned with such information as an intelligence gathering medium and not with its authenticity.

- 15 -

Amending Legislation

1.43 On 5 September 1984 a Bill to amend the Telecommunications

(Interception) Act was introduced into the Senate. It passed through its final stages in the Corra:nonwealth Parliament on 10 October 1984. The Amendment Act (No 2) 1984 subsequently

came into operation on 17 October 1984. The principal Act was amended, inter alia, by adding section 7B. Its effect was to make it lawful for

the Royal COmmission in the course of its inquiry into Terrence John Clark and his associates to make use of documents which were or had been in the possession of Mr Temby provided that certain conditions were fulfilled.

Further Investigation Undertaken by the Commission

1. 44 As has been noted, in anticipation of the proclamation of the

appropriate amending legislatiqn, the commission undertook further preparatory steps and investigations [paragraph 1.38].

1. 45 On 21 September 1984 the COmmission requested the New South Wales Commissioner of Police, Mr J K Avery, to supply to the Commission information for the period January 1980 to June 1981 as to:

(a) the branch or group of persons within the force which

carried out (whether authorised or not) surveillance and recording of telephone or other conversations;

(b) if such a branch or group was identified, the

organisational structure thereof, and also the

organisational structure of the Criminal Intelligence Unit, the Radio Branch and/or the Electronic Services Branch;

(c)

(d)

the staffing arran, ements for those units or groups;

\

the arrangements fqr equipping such units or groups and details of surveillance and other technical equipment allocated;

- 16 -

(e) the existence of running sheets or other records disclosing information as to the interception of telephone

conversations; and

(f) the identities of all personnel staffing such units or

groups and records of such employment. 35

1. 46 As a result of the information supplied by the Police

Corranissioner on 4 October 1984, 36 some nine serving and retired members

of the BCI of the Police were interviewed by officers of the

Commission during September, October and November 1984. All denied

having any knowledge of the interception of telephone conversations in the course of their duties.

1. 47 On 23 October 1984 the Commissioner of Police was requested to

deliver to the Commission diaries, duty books, duty rosters and other documents relevant to the officers identified as conprising the BCI and the TSU from January 1980 to June 1981. 37 On 19 November 1984 material was delivered rm behalf of the Comnissioner of Police to the Commission

in response to that request. 38

1. 48 On 9 and 12 November 1984 retired Sergeant A ·Hawthorn, formerly second in charge of the TSU, gave evidence to the Commission wherein he denied any knowledge of the interception of telephone conversations. 39

1. 49 On 22 November 1984 Messrs w C Taylor and Scott, Solicitors,

acting on behalf of various serving and retired officers of the NSW

Police, wrote to the Col'T'Iffiission and indicated that the cooperation of those officers in the Commission's inquiries would be forthcoming upon the granting of appropriate indemnities against prosecution and

undertakings from the Police Corranissioner. Messrs W C Taylor and Scott further indicated that their clients were able to give evidence as to the interception of telephone conversations between 1976 and 1981 by members of the NSW Police. 40

1.50 On 23 November 1984 Mr Bottom gave further evidence to the

Corranission. In that evidence, he confirmed that he had no further

- 17 -

materials relating to the interception of telephone conversations his possession. He also confirmed that he was the source of the material

that had been supplied to the Age the National Times newspapers. 41 Mr Bottom's evidence did not assist the Commission in reaching a finding

that the material in the OOmmission's possession was genuine, as

Mr Bottom had no first hand knowledge of how it into existence.

Matters for Investigation and Report

1. 51 In accordance with the Letters Patent for the Clark reference,

the requests of the commissioning Governments and the terms of section 7B of the Telecommunications (Interception) Act cited above [paragraph 1.43] the Commission considered that it was required to investigate and report upon the following matters:

(a) Did the tapes and documents in the possession of the

Commission in fact record or purport to summarise

conversations? Were any of them telephone conversations?

(b) Could the persons conducting those conversations be

identified? If yes, who were those persons?

(c) Did the contents of the tapes and documents establish the likelihood of criminal activities relevant to the terms of reference of the commission being engaged in by any persons including persons conducting the telephone conversations?

If yes, what criminal activities?

(d) Cciuld the contents of the tapes and documents otherwise provide evidence admissible in a criminal trial of any

person?

(e) Did the contents of the tapes and documents otherwise

assist with the inquiry into Terrence John Clark and his associates?

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Interim Report No.8

1. 52 On 12 Decent>er 1984 the Royal Commissioner delivered to the

Governor-General of the Commonwealth and to the Governor of the State of New South Wales Interim Report No. 8 of the Royal Commission of Inquiry

into Drug Trafficking. In that report it was stated:

• • • I have concluded it is probable that there is not in the

possession of any presently identifiable person any further material (whether original or copy) which would assist in the task of authenticating the tapes and transcript of documents ••• If the material is to be "authenticated" it will need to be by

way of the pf those involved in its creation, that is,

by persons who are almost certainly members and former members of the New south Wales Police force.42

1. 53 The Royal Commissioner went on to state that it was unlikely

that the whole matter of illegal telephone interceptions by police would be clarified unless the police officers concerned voluntarily gave evidence and cooperated with the Commission. 43 The report further noted that the cooperation of the relevant officers would only be

forthcoming if indemnities against prosecution for breaches of relevant Commonwealth and State laws were granted to those officers. Without such cooperation there was little prospect that the material .relevant to the Commission's terms of reference could be used in further' inquiries into

the activities of Clark's associates such as Trimbole. The report

further observed that without the cooperation of the relevant officers there was little or no prospect of obtaining evidencP that would lead to the successful prosecution of any offences which might become apparent in the course of an inquiry. 44

1.54

1.

The Commission made the following recommendations:

That the Commonwealth Attorney-General indemnify against

prosecution for breaches of the Telecommunications

(Interception) Act 1979 in the form of Schedule 1 (to the Report) the persons referred to in the Report as potential witnesses and any persons in the same category who

subsequently came forward.

- 19 -

2. That the New south Wales Attorney-General give to the said persons· the indemnity in the form of Schedule 2 (to the

Report).

3. That the New South Wales Cornnissioner of Police give the undertaking in respect of the said persons in the form of Schedule 3 (to the Report).

4. That the Commonwealth and New South Wales Attorneys-General indemnify Arthur Hawthorn in respect of false swearing before the Gommission. 45

Advice of the Commonwealth Director of Public Prosecutions

1.55 On 16 December 1984, Mr I D Temby, QC, the commonwealth Director of Public Prosecutions, furnished to the Commonwealth Attorney-General an advice as to recommendations ( 1} and ( 4) above. Mr Temby recorranended against the grant of indemnities. However, Mr Temby further stated:

if to grant indemnities would in all likelihood lead to the arrest and conviction of persons involved in serious criminal activities, that would be a significant change in circumstances which might dictate a different conclusion. However, I think it

is unlikely that the 'Age' materials will be of much use except as a source of criminal intelligence, for which they

have no doubt been extensively used over the years. 6

Commonwealth Parliamentary Discussions

1. 56 On 28 February 1985, in answer to a question in' the House of

Representatives, the Cornmonwealth Attorney-General, the Hon. Mr Lionel Bowen, MP, indicated that in the light of the differing views held as to the question of granting indemnities, further consideration was to be given to the avenues available. Mr Bowen noted that the question was whether one could make one law for one person and another law for

another. 47

1. 57 on 20 March .1985, in answer to a question in the House of

Representatives the Attorney-General commented:

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• • • the New South Wales Police • • • (should) revise their

attitude that they want an indemnity and that they give all the information to Mr Justice Stewart. Hhether they will be

prosecuted is another matter ••• Those officers are not entitled to indemnity merely because they are police. In fact, they are not entitled to indemnity, particularly because they are

police. 'Ihey have a duty to disclose any offence within their knowledge.48

1. 58 On 22 March 1985 the Attorney-General, in response to questions

in the House of Representatives, indicated that the question of whether indemnities should be given was not yet finally resolved, and that

further consideration was being given to the question on the basis that it was essential that the police give as much evidence as they had about criminal conduct. A similar response was given in the Senate Chamber by Senator G J Evans on behalf of the Attorney-General. Senator Evans also said that copies of the Corranission' s Interim Report No.8 and Mr Temby' s aqvice would be supplied to the Leader of the Opposition and the Leader of the Australian Democrats on a confidential basis. 49

1. 59 It was further said by the Attorney-General that an anonymous

letter from a ' very concerned (New South Wales) Police Officer' had been received by the Corranission. He said the letter indicated that there was

extrinsic evidence available to authenticate the various documents and tapes and to substantiate the allegations arising therefrom. That letter also indicated that the illegal interception of telephone calls had

persisted after 1981. 50

1. 60 On 26 March 1985 the Attorney-General indicated that he would

now look favourably on granting indemnities wher e the illegally obtained

material could lead to prosecution of criminal figures. He also said

that the Government would issue Letters Patent extending the Clark terms of reference and requiring an inquiry into the full extent of the

unlawful interception of telephone conversations whether related to the activities of Clark and his associates or not. 51

1.61 On 28 March 1985 the commonwealth Government introduced the Telecorranunications (Interception) Amendment Bill 1985. Concurrently with the introduction of that Bill, it was announced that the

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Royal COmmissions Act, 1923 (NSW) would be amended to confer on

Mr Justice Stewart the powers of a Judge of the Supreme Court of New

South Wales under that Act. In addition, the Corranonwealth and New south

Wales terms of reference for this Commission would be amended to include

the recorranendation of indernities, based upon prescribed principles and requiring an inquiry into the full extent of the unlawful interception of telephone conversations. 52

Amending Legislation and Extended Terms of Reference

1. 62 The Telecommunications (Interception) Amendment Act 1985 came

into operation on 29 March 1985. The principal Act was amended, inter alia, by removing certain conditions that have first to be established before a document could be used in the course of an inquiry. The

amendment also made it lawful for a person in possession of material

obtained by unlawful telephone interceptions to give that material to the Commission.

1. 63 The Royal Corranissions (Amendment) Act, 1985 (NSW) was assented

to on 15 May 1985. The principal Act was amended to give Mr Justice

Stewart, as Royal Commissioner, powers equal to those he would have been able to exercise were he a Judge of the Supreme Court of New South Wales.

1. 64 As stated in paragraph 1.1 Letters Patent were issued by the

Commonwealth Government on 29 March 1985 and the Royal Commission of Inquiry into Alleged Telephone Interceptions was established. The Governments of New South Wales and Victoria issued complementary Letters Patent. The terms of reference in all three Letters Patent are for the

most part identical and are discussed in the next Chapter.

Endnotes

1

2

3

Final Report of the Royal Commission of into Drug

Mr D G Stewart, February page 108

TI66 folio 70 RCIDT CT14758, Bottom; RCIDT CT14740-41, Silvester

4

5

6

7

8

9

10 11 12 13 14 15

16 17 18 19

20 21 22 23 24 25 26 27 28 29 30 31 32 33

34 35 36

37 38 39 40 41 42

43 44 45 46 47 48 49

50 51 52

_;, 22 -

RCIDT CT14772-73 Bottom; TI160 folio 2 TI66 folios 38-68 TI66 folio 39 TI68 RCIDT C'I'l9914, Bottom

22 February 1984, pages 4526-27

senate rd, 28 February 1984, page 23

ADM 24 folio 14

ADM 82 folio 2 ADM 4 7 folio 2 Senate Hansard, 28 March 1984, page 767 of Senate select Conlnittee on the COnduct of a Judge

Paper No 16S/1984, page 19

ibid page 14 ADM 22 folio 75 TI369 TI172, TI173 Til TI77 TI2 TI3 TI4 TIS TI6 TI7 TI264

TI160 folios 1-68 RCIDT CT22053, J L Silvester; RCIDT CT22068, Bottom RCIDT CT22052, J L Silvester ADM 22 folio 79 Re rt of into the A e

Senate Hansard, ADM 26 ·iollo 42 ibid folio 48 ibid folio 49 TI54 RCIDT CT23697 Hawthorn

ADM 34 folio 9 RCIDT CT24050-51, Bottom Interim Report No 8 of the Royal COmmission of Inquiry into Drug Mr Justice D G Stewart, December 1984, pages 17-18

1b1d page 5 ibid page 38 ibid page 55 TI157 folios 97-98 House of Representatives Hansard, 28 February 1985, page 384

House of Representatives Hansard, 20 March 1985, page 573 House of Representat1ves Hansaro, 22 March 1985, pages 769-70; Senate Hansard, 22 March 1985, pages 669-71 House of Representatives Hansard, 22 March 1985, pages 772-73 House of Representatives Hansard, 26 March 1985, pages 885-86 House of Representatives Hansard, 28 March 1985, page 1073

CHAP.rER 2

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CHAPTER 2 THE TERMS OF REFERENCE

2.1 The terms of reference in the three Letters Patent, which are

for most purposes identical, require the Commission to carry out five main tasks.

2.2 The first task is to discover whether there in fact exists, in

the possession of any person, any information or material (including documents or tape recordings) arising out of or relating to the unlawful interception in New south Wales of telephone conversations on or before 28 March 1985 and whether that information or material discloses the

commission of criminal offences or the possible commission of criminal offences against a law of the Commonwealth or of a State or of a

Territory and which warrants further investigation.

2. 3 Secondly the Commission is asked to state the nature of the

offences or possible offences so disclosed.

2.4 The third task is quite different from the first two. The

Commission must identify any person for whom the Commission would

recommend an indemnity against prosecution for actions done in the course

of or in connection with the illegal interception of telephone

conversations. It must be stressed that the indemnity is limited to

those actions. The Commission is not asked to make recommendations for indemnities for persons whose actions fall outside the narrow limits contained in the terms of reference. It must be expected that the

Commission would make such a recommendation in favour of a person outside these limits only in an exceptional case. The narrow limits for the

recommendation of an indemnity are set by four conditions upon which the

Commission must form an opinion, as follows:

the person can give evidence which will tend or would have tended to render material admissible in a criminal

prosecution;

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the person can give information that may lead or that may have led to the discovery of evidence of such an offence;

the person concerned gives his or her cooperation in the conduct of the inquiry including the giving of evidence truthfully and withholding nothing of relevance; and

the acts to which the indernni ty would relate were done solely for the purpose of obtaining information for use in the investigation of crime.

2. 5 The Corrmission is also asked to report on the extent to which

the four conditions set out above have been complied with by the persons to whom they relate.

2. 6 Fourthly, the Conmission is asked to report upon the extent to

which documents have been given or information conmunicated pursuant to section 7BA( 4) of the Telecommunications (Interception) Act 1979. 'Itlat section is as follows:

Where, in the course of holding an inquiry referred to in

sub-section ( 2), the Honourable Donald Gerard Stewart obtains a document or information that or that may relate, to the

commission of an offence against a law of the Commonwealth, of a State or of a Territory, he may, if in his opinion it is

appropriate so to do, give the document or corrmunicate the information, as the case may be, to -(a) the Attorney-General of the Commonwealth, of a State or of the Northern Territory;

(b) the Director of Public Prosecutions;

(c) a Special Prosecutor appointed under the Special

Prosecutors Act 1982;

(d) the Commissioner of the Australian Federal Police or of the Police Force of a State or of the Northern Territory;

(e) the authority or person responsible for the administration or enforcement of that law; or

(f) the National Crime Authority.

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2. 7 There is then the fifth and last matter. The Commission is

requested to make such further recommendations arising out of its inquiry as it thinks appropriate 'including recorranendations as to the method of enforcement of the criminal law and the legislative or administrative changes (if any) that are necessary or desirable in the light of the

results of your inquiry'.

2. 8 The Victorian terms of reference are similar to those of the

Commonwealth and New South Wales, save that the inquiry is limited to unlawful interceptions by members of the police force of Victoria acting

in collaboration with, or in the course of an investigation conducted by members of. the police force of Victoria with members of the NSW Police or

the AFP, which took place on or before 28 March 1985 in Victoria or New South Wales.

2.9 It is appropriate here to make some comment upon the five areas

of inquiry and recommendations sought by the terms of reference.

2.10 The terms of reference in all three Letters Patent express the

initial inquiry as one into 'whether there exists in the possession of any person ••• any information or material (including documents or tape recordings) arising out of or relating to the unlawful interception'. It

is obvious that the information or material need not be in a documentary form or contained on a tape recording. The information or material may be in the possession of a person simply because it resides in his or her

memory and it is able to be recalled.

2.11 The terms go well beyond requiring the Commission to inquire

into the documents and tapes known as the 'Age tapes'. The only

limitation placed upon the nature of the information disclosing the corranission or the possible commission of criminal offences is that the information warrants further investigation. Whether the information

warrants further investigation is a question which the Commission must decide. No guidelines are given for the making of this decision. It

would appear proper, however, to reject trifling matters as not

warranting further investigation.

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2.12 It should be noted that the COmmission is not required to go

beyond inquiring into the nature of the offences and possible offences

and reporting thereon. It is not necessary for the Corrndssion to itemise every piece of information or to attach to it a catalogue of possible

offences.

2.13 It must be observed that it is not essential that a person be

able to give evidence that will tend to render documents, information or material admissible in a prosecution for a criminal offence, before that person can be identified and recorranended for an indemnity; it is enough that such persons can give evidence which would have tended to make material admissible in a prosecution in the past whether such a

prosecution was actually brought or not. A similar use of the past tense occurs in the alternative qualification: a person can give information

that may lead or that may have led to the discovery of evidence of such an offence.

2.14 The power given by section 7BA{4) of the Telecommunications

(Interception) Act is not unlike the power given to the Corrndssion by section 6P of the Commonwealth Royal Commissions Act. That provision is as follows:

Where, in the course of inquiring into a matter, a Commission obtains information that relates, or that may relate, to the

corranission of an offence, against a law of the Commonwealth, of a State or of a Territory, the COmmission may, if in the opinion of the Commission it is appropriate so to do, communicate the information or furnish the evidence, as the case may be, to -

{a) the Attorney-General of the Commonwealth, of a State or of the Northern Territory;

{b) the Director of Public Prosecutions;

{c) a Special Prosecutor appointed

Prosecutors Act 1982;

under the Special

{d) the Commissioner of the Australian Federal Police or of the Police Force of a State or of the Northern Territory; or

{e) the authority or person responsible for the administration or enforcement of that law.

- 29 -

2.15 Section 6P( 2A) permits a COmmission to pass information,

=vidence and documents or things to the National Crime Authority.

2.16 The four conditions relating to the recommendation for the

granting of an indemnity, set out in full above [paragraph 2.4], involve the formation by the Commissioner of an opinion. It would of course be possible for a person to deceive the Commission, notwithstanding that he or she gave evidence on oath and thereby committed perjury. It would also be possible for a person to obtain an indemnity by fulfilling all

four conditions but then to . refuse to cooperate further with the

Commission. These difficulties arise from the wording of the terms of

reference and at an early stage it became necessary for the Commission to develop a procedure which would satisfy the conditions of the terms of reference and operate expeditiously in practice. This is discussed later in .chapter 3 of this report [paragraphs 3.6-3.7, 3.18-3.20].

2.17 All that need be noted about the fifth task of the Commission is

that no limitations are imposed upon the recommendations arising out of the inquiry which may be made. The Commission is required to make such further recommendations as it thinks appropriate. It is not limited to recommendations relating to the method of enforcement of the criminal law

and the legislative or administrative changes that are necessary or

desirable.

CHAPI'ER 3

CONDUcr OF THE INCUIRY

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CHAPI'ER 3 CONDUC!' OF THE INOOIRY

Interpretation of Terms of Reference

3.1 The

Chapter 2. terms of reference have been discussed in detail in

At the commencement of the Commission the ambit of the Cooonission' s inquiry and the procedure to be adopted in the conduct of it were defined. Like many Royal Commissions this Commission was established after much public accusation and rurnour.

the broad scope of that controversy rendered it

In this instance, necessary for the

Commission to consider its terms of reference with care in order to

identify with precision those matters on which the Commission was obliged to report.

3. 2 The matters which a Royal Commission should consider when the

obligation arises to construe its terms of reference are varied. The fact that a Royal Commission has been established to conduct the inquiry indicates that the terms should be construed so that no matters of a

trivial nature are required to be reported upon. A further fact is that a Royal Commission provides a valuable means of comprehensive fact finding for the purposes of resolving public controversies and expectations and qS a basis for legislative and adrninistrati ve reform. Where a Royal

Commission considers that it is clearly not possible for it to inquire

into every issue contained within a literal interpretation of the terms of reference, it must necessarily read down the terms to practical

limits, or be selective as to which of the total allegations within the terms it will investigate. 1

3. 3 It was necessary to adopt such an approach on this occasion.

The material obtained by the Commission at the outset had previously been in the possession of the Age newspaper and was alleged to have originated from the activities of police investigating crime. Perusal of this

material indicated that its content was consistent with that allegation in that, for the most part, it purported to relate conversations

- 34 -

connected with possible criminal activities rather than conversations involving personal matters. The activities disclosed in the material revolved around numerous and diverse personalities and environments and

raised the possibility of breaches of many different laws which ranged from serious offences, either because of the nature of 1;:he offences or because of the public identities alleged to be involved, to minor matters apparently committed a number of years ago. It was obvious that a wide ranging and protracted inquiry would be required to investigate fully all possible criminal offences disclosed by the material.

3.4 Furthermore, in response to a notice published by the Commission on 1 June 1985, 115 persons gave notice of their intention to appear

before the Commission. Those persons were willing to give evidence relating solely to the unlawful interceptions themselves and in turn led to the identification of other potential witnesses relating to the same matters. All of these witnesses had to be interviewed and then called to give evidence, in the course of which other matters were likely to come to light requiring additional witnesses to be interviewed and summoned to give evidence relevant to those matters. To then embark upon a full

investigation of the offences to be disclosed in the material and in the information provided by those witnesses, clearly had the potential for a hearing of almost indefinite length. In addition, some of the telephone conversations purportedly recorded in the material had occurred over ri{ne years ago and the most recent conversations recorded had taken place approximately two years ago. The Commission was conscious of the need .to

ensure that any value from its inquiry would not be diminished by a

prolonged investigation which made the events even more irrelevant to current circumstances than is at present the case.

3. 5 Reinforced by such practical considerations the Commission took the view that the terms of reference did not call for an investigation to establish whether -the possible criminal offences to which attention was drawn by the material had in fact been committed. The Commission considered that the terms of reference required it, first, to inquire

into and report upon the authenticity, in the sense described in

paragraph 14.4, of the material which caused the controversy leading to the creation of the Commission. Secondly, the Commission considered it

- 35 -

should report upon the nature of any criminal offences or possible

criminal offences disclosed by the material, found to be authentic, with the expectation that those matters which warranted further investigation would be referred to the appropriate agency. While there may be some advantage to be gained by the use of the powers of investigation

available to a Royal Corranission as distinct from those available to an investigating team of police, such evidence would not in any case be admissible against witnesses in subsequent prosecution proceedings for those offences.

Procedures Adopted for Conduct of the Inquiry

3.6 The Commission furnished to the responding to the notice

of 1 June 1985 [see paragraph 3.4] a set of guidelines for making

statements to the Corranission and requested each person to provide an . unsigned written statement prepared in accordance with those guidelines. With varying delays, the witnesses duly furnished to the Commission such statements. Subsequently a conference between each person and a

solicitor on the staff of the Corranission was held. During that

conference the person was asked if he or she could identify any of the material in the possession of the Commission. The solicitor then

questioned the witness upon the existence of any other material and upon other· issues relevant to the terms of reference.

3. 7 As a result of each conference, a supplementary statement was

prepared, but not signed, before the witness gave evidence. All of the witnesses dealt with in this manner were serving or retired police

officers. Apart from persons interested in policy matters, no other witnesses volunteered to give evidence to the Corranission without first being approached by the staff of the Commission. Based on the

information contained in the statements and supplementary statements and the evidence obtained during hearings, the Commission was able to

approach .other witnesses who appeared likely to be able give evidence relating to material issues.

3. 8 Because of the construction of the terms of reference settled

upon by the Corranission, it was neither necessary nor desirable to embark

- 36 -

on a series of subordinate inquiries into each of the possible criminal

offences revealed by the information and material obtained by the

Canmission. However, as the intercepted telephone conversations were recorded in non-specific terms and some of the material was in sununary form, it was nevertheless necessary for . the Canmission ·to seek

information which would enable it to better understand the possible background of the various conversations. The Corrnnission would thus be

able to make a more sensible and useful report upon the criminal offences or possible criminal offences disclosed by the material.

3. 9 The Commission was also obliged to weigh the practical

considerations referred to earlier and its obligations to conduct an inquiry in accordance with its construction of the terms of reference against the necessity to ensure fairness to those persons who may be

affected by its report concerning criminal offences or possible criminal offences disclosed by the material.

3 .10 The question of the obligations of a Royal Canmission to meet

the requirements of the rules of natural justice, when matters to be

inquired into involve allegations of crime that can be tried in the

oourts, was canvassed in the report of the Royal Commission of Inquiry into the Activities of the Nugan Hand Group. 2 The often quoted passage setting forth the principles of natural justice in this oontext is in the following terms:

The requirements of natural justice rrust depend on the

circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is

being dealt with, and so forth.3

This passage was recently referred to with approval by the Chief Justice of the High court. He said:

the Authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires

fairness in all the circumstances . • . and may also vary from

case to case though each be conducted before one and the same tribunal or person.4

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3.11 It still appears to be an open question whether or not the rules

of natural justice apply to inquisitorial procedures such as Royal

Corranissions. One view has been that because the function of a Royal Corranission is merely to investigate and report, recorranendations do not

affect the rights of any persons. The Salmon Royal Corranission said in 1966:

There are important distinctions between inquisitorial procedure and the procedure in an ordinary civil or criminal case. The

Tribunal directs the inquiry and the witnesses are necessarily the Tribunal's witnesses. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining issues to be tried, no charges, indictments or depositions. The

inquiry may take a fresh turn at any moment. It is therefore

difficult for persons involved to know in advance of the hearing what allegations may be said against them.S

3.12 The nature of this inquiry highlights the conundrum which may occur. As mentioned earlier, the terms of reference embrace subject matter of considerable breadth which called for evidence from a large number of witnesses. The practical difficulties of providing witnesses with the opportunity of cross examining other witnesses who may have been

at odds with their evidence and of answering or dealing with various

issues as they arose consistently throughout the hearing, proved to be ihsurrnountable. In the judgment mentioned in paragraph 3.10 above, the

Chief Justice, when considering this problem, said:

If the Corranission were to accord to all persons whose reputation might possibly be affected by the hearing a right to

cross-examine the witnesses and call evidence as though they were in a court of law, the might become so protracted

as to render it practically futile.

3.13 On the other hand·, while it may be a fair corranent that the

report of the Corranissiori may not strictly affect the rights of individuals, it is equally clear that the publication of this report has potential to affect gravely the reputation and lives of persons who are the subject of adverse comment or findings. It is at least

arguable that having regard to such possible consequences, inquiries of this nature should incorporate the rules of natural justice into

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their procedures at least the extent of ensuring fairness 1n all

the circumstances. It may be that recent cases suggest a change is approaching or has even arrived and that in the future courts will be more inclined to the view that the rules of natural justice,

properly understood, should apply to inquisitorial inquiries, or at least to those inquiring into alleged crimes.

3.14 With those observations in mind, it was necessary for the

Commission to decide what was fair in all the circumstances. As discussed in paragraphs 2.11-2.12, it was resolved that the

Commission would not set out to make findings of criminal offences, but would confine its report to the identification of areas

involving possible criminal offences with the intention that any such matters would be the subject of further investigation if

warranted. Those persons affected would thereby have the

opportunity of answering any allegations and being placed in the same position as suspects who investigated in the usual way. It

was also contemplated, consistent with this approach, that

confidentiality would be necessary for the publication of those parts of this report which comment upon matters which are likely to be the subject of further investigation. For this reason the

Commission has presented a confidential Volume TWo of the report tc the commissioning governments. Although the report will not go further than adverting to the possibility of criminal offences

having been committed, the mention of persons even in such a context is likely to affect adversely their lives, careers and reputations.

3.15 With those limitations in mind, the Commission embarked upon the hearing of the inquiry without proposing to call before it all of the persons who may be potentially affected by criticisms in this report. Instead, it was proposed to call as witnesses those

persons upon whose telephone services an interception device allegedly had been placed. This would enable the Commission to deal with the more fundamental question of the authenticity of the

material arising· from the intercepted conversations. Some of those persons were not available. Those that were available were called

- 39 -

before the Commdssion and questioned. At the same time the

opportunity was taken to examine those witnesses about some of the matters which appeared to involve them in criminal offences as

disclosed by the material. As it was not the objective of the

Conunission to embark upon a full fact finding investigation, there

appeared to ·be little to be gained by questioning these witnesses about all matters which emerged in the material iz. an unlawful

context. To examine these witnesses in that manner would have

required the very investigation which the Commission had decided not to undertake.

3.16 'nlose police witnesses who had participated in unlawful

telephone interceptions, thereby conunitting criminal offences, were also in potential jeopardy from the findings of the Commission. _ 'nleir position was different from that of the other witnesses likely

to be affected by the report, as they were protected substantially by the agreement that had been reached concerning recommendations

for indemnities with respect to such offences.

3.17 Their evidence was also in a different position because the Commission had embarked upon a full inquiry into the circumstances of those offences and was thus reasonably able to test the various versions of evidence given by them. The Commission is obliged by the terms of reference to report in finite terms upon the activities of these witnesses, and for that reason, the Commission has

endeavoured so far as has ·been reasonably possible to ensure that

each witness has had the opportunity to answer allegations which have been made about him or - her by other witnesses. The ongoing

nature of the hearing of such an inquiry, as adverted to in the

passage quoted above from the salmon Royal Commission [ paragratil 3.11] and the remark of the Chief Justice [paragraph 3.10], presents the practical difficulty in having witnesses in attendance at every opportunity to meet allegations made from time to time. However, in

the course of receiving· submissions relating to indemities, these witnesses had a fair opportunity to answer matters which may be the subject of adverse report upon them by the Commission.

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Indemnities and Undertakings

3.18 The Corranission was required by the terms of reference to

recommend to the Commonwealth Attormey-General, the New South Wales Attorney-General and the Victorian Director of Public Prosecutions, that indemnities against prosecution be granted to those witnesses who fell within the criteria set forth. A total of 138 witnesses

applied for a recorranendation of indemnities. Appendix B to this report contains a list of witnesses for whom a Commonwealth and/or a State indemnity was recorranended. It should not be assumed that because a particular witness's name does not appear in that list

that that witness failed to fully cooperate with the Corranission. In some instances the evidence of witnesses who had sought the

recorranendation of an indemnity did not disclose the corranission of an offence against the laws of the Commonwealth and/or a State, and accordingly there was no purpose in making such a recommendation. In other cases, however, the Commission declined to make a

recorranendation because the witness did not satisfy the criteria in the terms of reference for the making of such a recommendation.

3.19 The Commission was also required to make recommendations to the NSW Corranissioner of Police and the Chief Corranissioner of the Victoria Police that no disciplinary action be taken against

witnesses fulfilling the criteria for the making of such

recorranendations. Details of such recorranendations are also contained in Appendix B. In some instances a recommendation was unnecessary as a witness had retired or resigned from the police force.

3.20 There was no requirement for the Commission to make such a recommendation to the Commissioner of the AFP. That omission put officers of the AFP who gave evidence of their involvement in the unlawful interception of telephone conversations in jeopardy of having disciplinary action taken against them whereas their

counterparts in the Victoria Police and NSW Police were protected. Accordingly, the Commission did, in some cases, recommend to the Commissioner of the AFP that no such disciplinary action be.__ taken against those officers.

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'!he Standard of Proof

3. 21 In the case of some Royal Corranissions and inquiries the

terms of reference have included an express direction as to the

relevant standard of proof and the nature of the evidence which may be relied upon. No such direction is contained in the terms of

reference governing this Commission.

3. 22 It has been an important factor in determining the

standards to be applied in previous Royal Commissions that there has been an obligation to whether a person has engaged in conduct

amounting to a criminal offence. such an obligation requires a

stricter approach to the standard of proof and the rules of evidence than would otherwise be the case. The absence of such a requirement in this Commission and the nature of the inquiry defined by the

terms of reference, led the Commission to resolve that the rules of evidence need not apply. This approach was considered appropriate particularly in relation to the inquiry into the authenticity of the material because the witnesses, upon meeting certain conditions, were to be indemnified for their participation in criminal offences

involved in the unlawful telephone interceptions which led to the · creation of that material.

3.23 It was also considered that the same approach could be

applied to that part of the inquiry which calls for a report upon

the possible criminal offences disclosed in the material, as it was not the intention of the Commission to report upon actual criminal offences but merely to give some direction to the areas requiring further investigation.

3. 24 It was also decided to apply the civil standard of proof

based on the balance of probabilities, in order to make findings of fact or to resolve areas of dispute within the evidence.

3. 25 The Commission took into account section 6DD of the Royal

Commissions Act 1902 which provides:

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A statement or disclosure made by any witness in the course of giving evidence before a Corranission is not (except in

proceedings for an offence against this Act) admissible in

evidence against that witness in any civil or criminal

proceedings in any court of the CoiTDTIOnweal th, or of a state or of a Territory.

3. 26 The terms of reference require the corrunission to identify from the material possible criminal offences which warrant further

investigation. However, having accepted evidence without necessarily following the rules of evidence, having conducted an inquiry only in relation to the possibility of criminal offences, having not purported to give witnesses a full opportunity to be heard and having resolved matters by reference to the civil standard of proof, it would be inappropriate for the Commission to go beyond recommendations for further investigation in order to suggest that certain matters be the subject of prosecution. In any event it would seem, as a matter of principle, that it is not for

a Royal Commission to recommend prosecutions, that function being

properly one for the crown.

Communication of Material to Other Agencies

3. 27 The terms of reference for the Corrunission also require the

Corrunission to report upon:

the extent to which documents have been given or information communicated pursuant to sub-section 7BA( 4) of the

Telecommunications (Interception) Act 1979.

3.28 Section 7BA(4) is referred to in Chapter 2 of the report as is

section 6P of the Royal Commissions Act 1902 [paragraphs 2:6, 2.14-2.15].

3.29 When section 6P was introduced it enabled Royal Commissions to transmit material to certain law enforcement agencies. Royal

Commissions had been obliged to report only to governments. Since its

introduction the power has been used extensively by this Corranission to communicate information and furnish evidence obtained during the course

of the Commission • s previous inquiries into drug trafficking and the Nugan Hand Group. It has also been used to some extent in relation to the inquiry which is the subject of this report. Section 7BA( 4) was

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introduced with otner to the Telecommunications (Interception)

Act 1979 to facilitate dealing with material which has been unlawfully obtained. The necessity for that legislation was partially removed when the High court decided on 14 March 1985 that the prohibitions in

section 7(4) of the Act do not apply to unlawfully obtained material.7

3. 30 In the event material was usually furnished pursuant to both

sections. This was regarded as the more prudent course as the Commission noted that there was a slight difference in the wording of the sections. The reasons for this difference are not clear. section 6P of the Royal Commissions Act authorises the communication of information that relates

may relate to the commission of an offence and the furnishing of

evidence of the commission of an offence. section 7BA ( 4) of the

Telecommunications (Interception) Act authorises the giving of documents or the communication of information that relates or may relate to the commission of an offence. Although evidence of the commission of an offence is referred to in that section there is no separate authority to

furnish it as is found in section 6P. The Commission was also conscious that the sections require a connection with an offence and it was careful in transmitting material not to exceed the limitations of the sections. This proved to be a difficult task especially in cases where material was

requested by an agency in respect of a particular offence the details of which were not within the knowledge of the Commission.

3. 31 'Ihe following table indicates the nurrber of occasions on which material was supplied:

Material relating to present inquiry

Director of Public Prosecutions 7

Natonal crime Authority 5

Attorney-General for New south Wales 1

Commissioner of the New South Wales Police 2

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Commissioner of the Australian Federal Police 1

Material relating to drug trafficking inquiry I

Commissioner of the Australian Federal Police 3

Commonwealth/New South Wales Joint Prosecution Team 7

National Crime Authority 1

New South Wales Attorney-General's Department 3

Commissioner of the New South Wales Police 1

Chief Commissioner of the Victoria Police 1

Material relating to Nugan Hand Group inquiry

Commissioner of the Australian Federal Police 2

Australian Taxation Office 80

New South Wales Attorney-General's Department 1

Reserve Bank of Australia 2

Endnotes

1 Report of the Royal Commission of Inquiry into the Activities of

the . Nugan Hand Group, Mr Justice D G Stewart, June 1985,

paragraphs 1.2.3 and 1.2.4 2 ibid .paragraph 1.2.32

3 Russell v Duke of Norfolk [1949] 1 All ER 109 page 118

4 National Companies and Securities Commission v News Corporation L1m1ted 52 ALR 417 pages 42/-428 5 Re rt of the Royal Commission on Tribunals of Inquiry 1966,

un er e c a1rmans 1p o e on 1ce a mon (Great

Britain, 1966, cmnd 3121) page 117

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6 National Companies and Securities Corranission v News Corporation Lmu.ted 52 ALR 417 page 429 7 Hilton v Wells and ors. 58 ALR 245

CHAPI'ER 4

STAFFING AND FACILITIES

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CHAPTER 4 STAFFING AND FACILITIES

4.1 Following the issue of the Letters Patent establishing the

Commission by the Governments of the Corranonwealth and New south Wales,

the Commission's secretary and the first permanent members of the

administrative and legal staff took up duty from 6 May 1985. Prior to

that date an acting secretary, drawn from the staff of the Royal

Commission of Inquiry into the Activities of the Nugan Hand Group, had

dealt with the preliminary matters.

4. 2 Further staff took up duty progressively and the maximum staff

attached to the Commission at any one time corrprised eighteen persons: the secretary, ten administrative staff, five solicitors, a research officer and a police investigator. In addition, Senior and Junior

Counsel Assisting the Commission were appointed. Mr N R Cowdery of the

Sydney Bar had initially been appointed to assist the Royal Commission of

Inquiry into Drug Trafficking prior to the delivery of Interim Report No.8 on 12 December 1984. After the issue of the Letters Patent,

Mr Cowdery was unable to continue and was replaced on 12 July 1985 by

Mr P S Hastings, also of the Sydney Bar. Mr C E K Hampson, OC, of the

Queensland Bar was appointed as Senior Counsel Assisting the Corranission. Mr Hampson was based in Brisbane, and for that purpose an administrative

assistant and office facilities were provided there. 'IWo instructing solicitors were provided by the Corrunonwealth Government and two were provided by the New South Wales Government. On the issue of the Letters Patent from the Victorian Government on 17 June 1985, another solicitor,

based in Melbourne, was provided by that Government.

4.3 Unlike the inquiries conducted by the Commission under its

previous terms of reference it was anticipated that the scope of the

present inquiry would, by comparison, be limited in terms of information and material to be processed. For this reason, it was not considered

necessary to establish a large or complex corrputer based information retrieval system. Information obtained by the Commission was accordingly

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processed using a manual filing system, assisted by word processing facilities where appropriate. This system was cost effective and worked efficiently.

Hearings and Statistics

4. 4 The Commission's intention to hold public hearings was notified in the national press on 21 May 1985. At the first public hearing of the Commission on 24 May 1985 the procedures which were proposed to be followed in the inquiry were promulgated. Following the issue of Letters Patent by the Victorian Government a second public hearing was held in Sydney on 7 November 1985. A third public hearing, to enable interested

organisations and individuals to make written and oral submissions relevant to the terms of reference, was held on 17 December 1985.

4. 5 All other hearings of the Commission were conducted in camera. There were several reasons for adopting this course. The collection of evidence and the conduct of inquiries into illegal activities would be rendered useless if each step in the process were to be made public.

Further, as part of the subject matter of the inquiry were the contents of telephone conversations intercepted by police it was likely that quite innocent persons could be referred to and that the giving of their names

in public could lead to a mistaken conclusion that they were guilty of some offence or were associated with criminals. For these reasons and in

order to avoid the likelihood of serious harm being caused to the

reputation of persons as a result of the publication of unsubstantiated allegations, and the risk that such publication might not only affect further investigation but also the right of persons to fair trials in the future, the Commission reluctantly concluded that the evidence should be heard in camera.

4.6 The Commission sat to hear evidence and submissions for a of forty nine days, the final hearing being on 19 December 1985. All Commission's hearings were conducted in Sydney. A total of 173 witnesses gave evidence to the Commission, and the transcript of evidence received totalled 3984 pages. Court reporting services were provided by the

Corranonwealth Reporting Service. '!here were 237 documentary exhibits.

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The statements made to the Corrmission by witnesses totalled 1110 pages and the supplementary statements totalled 1001 pages.

Extension of Reporting Date

4. 7 The terms of reference issued by the corrmissioning governments stipulated 31 December 1985 as the reporting date for the Royal

Commission. In early November it became apparent that the Commission was unlikely to be able to meet this requirement and an extension of time was requested.

4. 8 The extension of time was necessary for a number of reasons.

First, the Royal Commissioner is also Chairman of the National Crime Authority which placed heavY demands on his time. secondly, the number of witnesses who appeared before the far exceeded the number

initially anticipated and involved the Commission in additional sitting days. In addition, the Victorian Government issued Letters Patent on 17 June 1985 requiring the Commission to inquire into certain matters arising from unlawful telephone interceptions conducted in Victoria or New South Wales by members of the Victoria Police in conjunction with

members of the NSW Police or the AFP.

4. 9 So that hearings could be completed and the report finalised,

having regard to other commitments, on 11 November 1985 an extension of time to 30 April 1986 was requested. This request met with approval and revised Letters Patent were subsequently issued by the commissioning governments.

Acknowledgements

4.10 The Commission was initially accommodated in the premises of the Royal Corrmission into the Activities of the Nugan Hand Group and subsequently in the Central Office of the National Crime Authority. Due to the co-location, the Authority provided the Corrmission with valuable administrative support. The Department of the Special Minister of State,

which has administrative responsibility for Royal Commissiens, also was of great assistance to the Commission.

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4.11 Although relatively small in number, the staff of the Commission performed their duties effectively and well. This report is a tribute to their dedication.

CHAPrER 5

LAWS INVOLVED IN THIS REPORT

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CHAPI'ER 5 LAWS INVOLVED IN THIS REPORT

5.1 Section 5l(v) of the Commonwealth Constitution provides that the Parliament of the Commonwealth shall, subject' to the Constitution, have power to make laws for the peace, order and good government of the

Commonwealth with respect to 'postal, telegraphic, telephonic and other like services'. The Commonwealth Parliament has in fact so legislated. Any State law inconsistent with Commonwealth law on the topic of

telephonic services would be invalidated by section 109 of the

Constitution which provides that 'when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid'.

5. 2 One of the earliest Commonwealth Acts passed was the Post and

Telegraph Act .l901 which came into force on 1 December 1901. The control of telephone services was vested in the Postmaster General's Department by section 4 of that Act; control of the Department was vested in the

Postmaster-General by section 5. As Isaacs J. said in Gibson v Mitchell, '... the telephone services are the property of the Postmaster-General and no one has any right to use them without his permission•.1 Section 120 of the Act prohibited interference with telegraph services (defined

to include telephone services) but the emphasis was upon physical

interference and disruption of services rather than interception of conversations.

5.3 In October 1957 a Committee of Privy Councillors reported to the Prime Minister of Great Britain on the interception of corranunications. The Committee reviewed the law relating to the interception of

communications and concluded that it was likely that in the absence of an overriding statute, the prerogative of the Crown to intercept

communications by letter extended to the interception of telephone

communications. The Corranittee noted that this power, vested in the Secretary of State, was recognised by the various statutes relating to

- 56 -

the communications system. The common law position, as stated by the Committee, applied to the interception of telephone communications in

Australia prior to 1960. 2

5.4 In 1960 the Commonwealth Parliament passed the Telephonic

Communications (Interception) Act which prescribed penalties for the

interception of telephone conversations.

5.5 The Act gave the Australian Security Intelligence Organisation (ASIO) the power, on certain conditions, to conduct interceptions in

relation to matters of national security. 'Ihis Act remained in force

until 1979.

5.6

4.

Section 4 of the Act defined 'interception' thus:

( l) For the purposes of this Act, but subject to the next

succeeding sub-section, interception of a communication passing over the telephone system consists of listening to or recording, by any means, such a communication in its

passage over the telephone system without the knowledge of the person making the communication.

(2) Where a person lawfully on premises to which a

telephone service is provided, by means of a telephone

instrument or other device that is part of that service -(a) listens to or records a communication passing over a

telephone line that is part of that service, being a

communication that is being made to or from that

service; or

(b) listens to a communication passing over such a

telephone line as a result of a technical defect in

the telephone system or the mistake of an officer of

the Department,

the listening . or recording does not, for the purposes of

this Act, constitute the interception of the communication.

(3) For the purposes of the last preceding sub-section, two or more telephone services that are connected by the same telephone line to a telephone exchange shall be deemed to be the one telephone service.'

5.7 Section 5(1) of the Act provided:

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5. (1) A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to

intercept; or

(c) do any act or thing that will enable him or another

person to intercept,

a communication passing over the telephone system.

5. 8 This Act was repealed by the Telecommunications (Interception)

Act 1979, section 6 of which slightly altered the meaning of

'interception':

6 • ( 1) For t.. = of this Act, but subject to

sub-section ( 2), interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its

passage over that telecommunications system without the knowledge of the person making the communication.

(2) Where a person lawfully on premises, or in a vessel,

vehicle or aircraft, to which a telecommunications service is provided by the commission, by means of any apparatus or equipment that is part of that service -(a) listens to or records a communication passing over the

telecommunications system of which that service forms a part, being a communication that is being made to or from that service;

(b) listens to or records a communication passing over the telecommunications system of which that service forms a part, being a communication that is being received at that service in the ordinary course of the

operation of that telecommunications system; or

(c) listens to or records a communication passing over the telecommunications system of which that service forms a part as a result of a technical defect in that

system or the mistake of an officer of the commission,

the listening or recording does not, for the purposes of

this Act, constitute the interception of the communication ..

5.9 Section 7 of the Act makes unlawful, subject to limited

exceptions, the interception of communications passing over a

telecommunications system. The Act as originally enacted in 1979 gave

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the power to intercept telephone conversations to ASIO and to the

Department of CUstoms in relation to narcotics offences because of that Department's responsibility for the Federal Narcotics Bureau. section 7 is as follows:

7. (1) A person shall not -

(a) intercept;

(b) authorise, suffer or permit another person to

intercept; or

(c) do any act or thing that will enable him or another

person to intercept,

a communication passing over a telecommunications system.

Penalty: $5,000 or imprisonment for 2 years.

(2) Sub-section (1) does not apply to or in relation to -(a) an act or thing done by an officer of the Commission in the course of his duties for or in connection with -(i) the installation of any line, or the installation

of any apparatus or equipment, used or intended for use in connection with a- telecommunications service or the operation or maintenance of a

telecommunications system; or

(ii) the identifying or tracing of any person who has contravened, or is suspected of having

contravened or being likely to contravene, a

provision of the Telecommunications Act 1975 or of any regulat · ')n or by-law in force under that Act; or

(b) the interception of a comrnunicat1on in pursuance of a warrant.

( 3) The reference in sub-section ( 2) to a line shall be

read as a reference to a wire, cable, tube, conduit, fibre, waveguide or other physical medium installed or maintained by or with the authority of the Commission and used, or intended for use, in connection with a telecOmmunications service.

( 4) A person shall not divulge or communicate to another person, or make use of or record, any information obtained by intercepting a communication passing over a

telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21, except

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(a) in or in connection with the performance by

Organisation of its functions or otherwise for

purposes of security;

(b) for the purpose of narcotics inqu1r1es that are being, or have been, made by officers of customs; or

(c) in the performance of any duty of that first mentioned person as an officer of the COmmission.

Penalty: $5,000 or imprisonment for 2 Y.ears.

(5) Notwithstanding sub-section (4) -(a) the Director-General of Security may, by himself or by an officer authorised by him, cornmunicate, in

accordance with paragraph 18 (3) (a), (b) or (c) of

the Australian Security Intelligence Organisation Act 1979, information obtained by intercepting a

cornmunication passing over a telecornmunications system, or obtained by virtue of a warrant issued

under section 11;

(b) the Comptroller-General of CUstomS may, in accordance with the following sub-paragraphs, by himself or by an officer of CUstoms authorised by him, cornmunicate information obtained by intercepting a cornmunication

passing over a telecornmunications system, or obtained by virtue of a warrant issued under section 21:

(i) where the information relates, or appears to

relate, to the cornmission, or intended

commission, of an offence against the law of the COmmonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than

3 years - the information may be communicated to an officer of the cornmonwealth Police Force or of the Police Force of a State or Territory; or

(ii) where the information relates, or appears to

relate, to activities prejudicial to security '­ the information may be communicated to the

Director-General of Security; and

(c) an officer of the Cornmonwealth _Police Force or of the Police Force of a State or Territory may, in the

course of performing his duties as such an officer,

cornmunicate to another officer of that Police Force information that was communicated to him in accordance with paragraph 18 ( 3) (a) of the Australian security

Intelligence Organisation Act 1979 or with

sub-paragraph (b) (i) of this sub-section.

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(6) Without limiting the application of sub-section (4), a person. give obtained .bY .intercepting a

over a system, or

obtained by virtue of a warrant issued under section 11 or 21, in evidence in a proceeding -(a) by way of a prosecution for a narcotics offence;

(b) by way of a prosecution for an offence against the

Telecommunications Act 1975 or a regulation or by-law in force under that Act;

(c) by way of a prosecution for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years;

(d) by way of dl1 application for an order under

sub-section 243B(l) of the CUstoms Act 1901; or

(e) for the condemnation or recovery of a ship or

aircraft, or of goods, seized under section 203 of the CUstoms Act 1901 in connection with the commission of a narcotics offence.

( 7) An offence against this section may be prosecuted

either summarily or upon indictment, but -(a) an offender is not liable to be punished more than

once in respect of the same offence;

(b) the offence shall not be prosecuted summarily except in the name of the Attorney-General; and

(c) where the offence is prosecuted summarily, the court shall not impose a penalty exceeding a fine of $1,000 or imprisonment for 6 months.

5.10 Consequent upon the disbanding of the Narcotics Bureau the Act

was amended in December 1979 to substitute the Australian Federal Police for the Department of CUstoms.

5.11 Amendments later made to this Act in 1983, 1984 and 1985 all

related to the communication to particular agencies of information obtained by the interception of telephone conversations and are not

relevant to the law which governed telephone interceptions from 1960 to 28 March 1985, the cut-off date in the terms of reference of this

Commission.

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5.12 In June 1985 section 7 of the Act was further amended to permit

the interception of telephone conversations and the communication of information derived therefrom, in certain cases of emergency. That

amendment is not relevant to the Commission's inquiries as it was not i n

force prior to 28 March 1985.

5.13 It is clear that merrbers of the NSW Police could not intercept

telephone conversations lawfully. Only ASIO and later the AFP could · lawfully intercept telephone conversations and interceptions by these bodies had to fall within narrowly limits. The AFP could

institute interceptions only pursuant to Part IV of the Act. It was

necessary to satisfy a Judge that there were reasonable grounds for

suspecting that the telecommunications service was being used by a person who had committed or was suspected on reasonable grounds of having

committed or of being likely to cormnit a narcotics offence and that an interception was likely to assist inquiries. The Judge could then issue a warrant authorising the interception. 'Narcotics offence' was defined as an offence punishable as provided by section 235 of the Customs Act 1901.

5.14 It was permissible for the AFP, when information was obtained

which did not relate to a narcotics offence, to pass that information to other members of the AFP or to an officer of the police force of a State or Territory provided that the information related or appeared to relate to the commission or intended cormnission of an offence against the l9w of the Commonwealth or of a state or Territory punishable by a period of at

least three years imprisonment. It was therefore possible in theory that any material in the possession of the NSW Police or Viqtoria Police could

have been derived lawfully from the AFP. It was apparent that unless this were the case, any material in the possession of officers of those police forces was obtained in contravention of section 5(1) of the 1960 Act or section 7(1) of the 1979 Act.

5.15 It is profitable to examine more clearly the definition of

interception in section 6 of the 1979 Act, noting in passing that for

present purposes it does not differ materially from that in section 4 of

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the 1960 Act. If the exceptions provided for in sub-section (2) are put to one side, 'interception of a communication passing over a

telecommunications system' takes place when:

(a) a communication is passing over the telecommunications system; and

(b) a person listens to or records the communication in its

passage without the knowledge of the person making the communication.

5.16 In examining the complex question of when a communication ceases to pass over the telecommunications system, it is helpful to consider the matters traversed in paragraphs 5.20-5.23.

5.17 A 'telecommunications system' is defined as 'a system controlled by the Commission in connection with the provision of a

·telecommunications service'. A 'telecommunications service' is defined as:

a telecommunications service, within the meaning of the

Telecommunications Act 1975, that is provided or used by, or used with the authority of, the Commission, and includes such a service, whether known as a private line or by some other name, that is not connected to the switching equipment at an exchange operated by or on behalf of the Commission.

5.18 In the Telecommunications Act 1975 a 'telecommunications

service' is defined as:

(a) a service for transmitting, oy means of electric or

electro-magnetic energy -(i)

(ii) (iii)

(iv)

sounds, including speech and music;

visual images;

signals for the communication, whether as between persons and persons, things and things or persons and things, of any matter otherwise than in the form of sounds or visual images; or

signals for the actuation or control ·of machinery or apparatus; or

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(b) a service for rece1v1ng any such sounds, images or signals that have been transmitted by means of electric or

electro-magnetic energy.

5.19 From time to time Australian courts have considered whether

various procedures for listening to or recording telephone conversations amounted to the interception of a communication passing over the

telecomnunications system. In the Victorian Supreme court, in the case of Harvey -v- Baumgart, 3 GONans J held that an; procedure by which the sounds of a conversation emitted from the receiver of a telephone were recorded on a tape recorder so that the sounds of the conversation could be reproduced, was prohibited by the provisions of Regulation 16A(c) of

the Regulations made under the Post and Telegraph Act.

5.20 Cl1 19 February 1980 the then Attorney-General of the

Commonwealth, senator the Hon. P D nurack, r::/2, issued a press release revealing the contents of an advice he had obtained from the

Solicitor-ceneral, Sir Maurice Byers, r::/2, on the legality of certain practices used to record telephone conversations. The Solicitor-General had formed the opinion that recording a telephone conversation by means of a device which records sound entering or leaving a telephone receiver with a microphone did not contravene either the Telephonic Communications

(Interception) Act 1960 or the by-laws made under the Telecommunications Act 1975. 'Itle Attorney-ceneral' s statement went on to say that the

Commissioner of the AFP had instructed his members to comply with the law as explained by the Solicitor-ceneral.

5.21 The press release by the Attorney-General also said that

induction devices that could be attached to a telephone instrument by a suction cap had been on general sale for some time and seemed to be

widely used in the community. He said that there appeared to exist some belief in the community, which over a period of years had extended to many Federal police officers, that these devices could be used legally by

one party to a telephone conversation to record the conversation without the knONledge of the other party. In the supreme court of Tasmania in the case of R -v- Padman4 Crawford J had held that a police officer who affixed a device to a telephone which was wired to a cassette recorder was in breach of section 5(1) of the 1960 Act. 'Itle advice of the

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Solicitor-General was similarly that recording a telephone conversation by means of an inductive device, that is to say, a device placed on or

near the telephone instrument that picks up by induction the electrical impulses passing over the telephone system, contravened the 1960 Act.

5.22 In the Supreme Court of Victoria in the case of R -v- curran and

Torney5, McGarvie J took a different view from the Solicitor-General

and ruled that the use of a portable tape recorder to record the sounds of voices from the earpiece of a telephone amounted to an offence against section 7( 1) of the 1979 Act. McGarvie J said that one listened to a

conversation in its passage over a telecommunications system by listening to the sounds of the conversation produced by the passage of electric or electromagnetic energy through the system. The ear hears the sounds which the system emits. The position must be . the same when, instead of

listening to the sounds emitted by the system, a person records those sounds. Thus, he said, the conversation had been recorded in its passage over the telecommunications system when a record was made of the sounds

of the communication that the system emitted.

5. 23 Subsequently, in the Supreme court of Tasmania in the case of

R -v- Migliorini 6 , Cosgrove J held that the use of apparatus consisting of a suction cap, a coil, some wire, a plug and a tape recorder to record a telephone conversation was unlawful by virtue of section 7 ( 1) of the 1979 Act. Evidence had been given to the Court by a Telecom engineer explaining that the sound waves created by the voice of the caller were converted into alternating current electrical impulses which passed along the telephone wires. In the cradle of the telephone, this current passed through a coil and then on to the ear piece of the receiver where it was converted back into sound waves (ie voice). As the current passed along the wire and through the coil in the cradle, it created an

electromagnetic field. This field extended around the wire and the coil for some distance. in diminishing strength The cup on the cradle

cut into the field and transferred some of the electrical energy to the tape recorder enabling the recording to be made • . On this evidence, the Court was satisfied that the suction device did intercept a communication

in its passage over the telecommunications system.

- 65 -

5.24 However, any uncertainty concerning the scope of activity caught by the provisions of the legislation had little bearing upon the minds of .

police officers involved in the interception of telephone conversations of which evidence was given before the Commission. The methods used for telephone interceptions revealed by the evidence generally differed substantially .from those referred to in the above authorities and, with

one notable exception, police witnesses did not assert that their

involvement in telephone interceptions did not breach the law.

5.25 The exception involved the · proposition that the Listening

Devices Act, 1969 (NSW) provided for the authorisation of recording of telephone communications. Section 4 of this Act, which has now been repealed by the Listening Devices Act, 1984 (NSW), prohibited the use of a listening device to hear, record or listen to a private conversation. That prohibition did not apply where, inter alia, the person using the

listening device did so in accordance with an authorisation given to him under section 8 of the Act. Section 8 empowered a prescribed police

officer, which included the Commissioner and an Assistant Commissioner, to authorise the use of a listening device where that officer was

satisfied that the use of the device was necessary for the investigation of an offence which had been committed, for obtaining evidence of an offence that was about to be or was reasonably likely to be committed, or to identify the offender.

5. 26 In Miller -v- Miller 7 the High Court held that the Listening,

Devices Act, 1969 (NSW) was invalid insofar as it purported to deal with the use of listening devices to listen to a private conversation on a

telephone which is part of the telephone system of Australian

Telecommunications Commission. The High Court confirmed that the 1960

Act was intended to express completely the law governing the interception of communications passing over a telephone system, and accordingly any State legislation covering the same subject matter was invalid under section 109 of the Constitution. For that and other reasons the view

that was professed to justify the particular interception was not

accepted by the Commission.

- 66 -

5. 27 '!he Listening Devices Act, 1969 (NSW) also permitted listening to or recording conversations provided that one of the parties to the conversation consented to that course. The Listening Devices Act, 1984 (NSW) has abolished that provision and the use of listening devices to

record ·or listen to private conversations is now prohibited unless done pursuant to a warrant issued by the supreme Court of New south Wales, or if it is necessary to use the device inrnediately in order to obtain

evidence or information in connection with:

an imminent threat of serious violence to persons or of

substantial damage to property; or,

a serious narcotics offence.

5.28 The evidence received by the Corranission dealt in the main with the interception of telephone conversations taking place on the

conventional telephone system in use throughout the community. However, the COmmission also heard evidence relating to the interception of conversations taking place by means of mobile telephone services in motor vehicles. Interceptions of this nature were effected by the use of radio scanners which are readily available. Mobile telephone services are provided by Telecom. In Sydney and environs the system involves radio

transmission of messages to and from mobile telephones from Telecom base stations which relay the messages into the telecommunications network. Although a conversation on a mobile telephone service may be picked up on receiving equipment by people who are not parties to the call, some protection against deliberate eavesdropping and recording of particular conversations is provided because the system is designed to select one of approximately 180 channels at random for each call. As the mobile

telephone system involves the use of telecommunications services as defined in the Telecommunications (Interception) Act, there seems no doubt, although several witnesses professed that there was, that to

listen to or record conversations taking place on a car telephone, is in breach of section 7 of the Act.

5.29 When considering the law which has relevance for the

purposes of this inquiry, it is pertinent to refer to the decision of the

- 67 -

High Court in Hilton -v- Wells & Ors.

8

in which a majority of the

judges held that section 7 of the 1979 Act did not prohibit the admission into evidence, in proceedings relating' to an offence as described in section 7(6)(c) of the Act, information obtained by an illegal

interception of a communication passing over a telecommunications system. The . effect of this decision is that the law pertaining to

evidence obtained by such interceptions is no different from that

applying to other unlawfully obtained evidence. A court when confronted with evidence which was unlawfully obtained has a discretion to admit or exclude the evidence. The exercise of this discretion involves the

consideration and weighing of competing public interests, being primarily the public need to bring to conviction those who commit offences on the one hand, and the protection of individuals from unlawful and unfair 9

treatment, on the other.

5.30

10

In Bunning v Cross the High Court set out the factors to be

considered in exercising the discretion to admit or exclude evidence which has been unlawfully obtained. At page 651 Barwick c J said that he

agreed entirely with the observations of Stephen and Aicken JJ on the proper principles to be followed in exercising a discretion to exclude admissible evidence because of the circumstances or manner in which it was obtained or came into existence. These observations are set out at

pages 661-663, and in summary form are as follows:

Consideration of whether the unlawfulness resulted from a mistake or a lack of appreciation by law enforcement

authorities of the illegality of their actions and not from deliberate or reckless disregard of the law.

Where the illegality in obtaining the evidence was neither

deliberate nor reckless, consideration of the cogency of the evidence obtained. The cogency of the evidence should not be considered where the illegality is deliberate or

reckless as such an approach 'may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality

involved in procuring it'. An exception may be where the

Endnotes

- 68 -

evidence is both vi tal and of a • perishable or evanescent nature so that if there were a delay in securing it, it

would have ceased to exist'.

Consideration of the ease with which the law might have

been complied with in procuring the evidence. A deliberate 'cutting of corners • would tend against the adrnissibili ty of evidence illegally obtained.

Consideration of the nature of the offence charged. Some examination of the comparative seriousness of the offence

and of the unlawful conduct of the law enforcement

authority should be made.

Consideration of the legislation in an endeavour to

ascertain whether there was a deliberate intent on the part of the legislature narrowly to restrict the officers of the law enforcement agency in the exercise of their powers to procure evidence.

1 (1928-29) 2 ALJ 333

2 Report of the Committee of Privy Councillors appointed to

1nqu1re into the interception of communications, (Great Britain 1957 Cmnd, 283) page 15; Adm 60, Part 2 folio 117 3 (1965) VR 632

4 (1979) 25 ALR 36

5 (1983) 2 VR 133

6 (1981) 4 A Crim R 458

7 (1978) 141 CLR

8 (1985) 58 ALR 245

9 R -v- Ireland (1970) 126 CLR 321 at pp 334-335; also see Cleland

-v- R (1983) 57 ALJR 15 10 (1]7g) 19 ALR 641 at pp 661-663

CHAP!'ER 6

MATERIAL OBTAINED BY THIS

- 71 -

CHAPTER 6 MATERIAL OBTAINED BY THIS COMMISSION

6.1 Details of the material obtained during 1984 by the Royal

Commission of Inquiry into Drug Trafficking from two journalists (Mr J L Silvester and · Mr R G Bottom), the Commonwealth Attorney-General

(Senator G J Evans, QC) and the Special Prosecutor ( Mr I D Temby, QC) are provided in Chapter 1 of this report [paragraphs 1.10-1.12, 1.28-1.34].

6. 2 Following amendment of the Commission's terms of reference to require a broader inquiry into alleged illegal telephone interceptions, certain other documents and tapes were received:

1. On 10 July 1985 Sergeant G W Slade from the BCI produced ninety eight pages of transcripts and summaries of

telephone conversations entitled 'Gorilla'. This material was said to be the product of the interception of

conversations passing over the telephone service of

Christopher Dale Flannery during November 1983.1 The material was retained by BCI officers despite the

destruction process referred to in Chapter 7 [see

paragraphs 7.152-7.160] due to its perceived value and the fact that it had not been fully analysed. 2

2. On the same day, Sergeant K E McDonald from the BCI

produced transcripts and summaries which he said were the product of the interception of conversations passing over the telephone service of Robert Trimbole. The mc:oterial had been found by Sergeant G w Slade early in 1984 in a

cupboard at the BCI used exclusively by Slade and Sergeant J F Withers. Slade told the Commission that he did not

think the material could have been there 'more than a day' because that cupboard was in constant use. 3 Neither

Slade nor Withers could explain how the folder of material had come to be ip the cuiX>oard. 4 The Commission is of

- 72 -

the view that it had been in the possession of a police

officer who secretly placed it in the cupboard. The

evidence is such that it is not possible for the

to determine who that officer was. The material produced consisted of seventy three pages of transcripts and

summaries relating to Trimbole, six . pages more than the

version already in the s possession. In

addition, there were typed and handwritten notations in the material which did not appear in the material already in

the Commission's possession.

3. on 11 July 1985 Sergeant R Kilburn, formerly an officer of

the TSU, produced to the Commission three tapes, consisting of a seven inch reel to reel, a compact cassette and a

five inch reel to reel, which he said contained recordings of conversations passing over the telephone service of

George David Freeman. The conversations contained on the

cassette tape appeared on each of the reel to reel tapes.

Some conversations on the cassette tape and the five inch

tape had been deleted from the seven inch tape by recording an interview (which was not relevant to the Commission's

inquiry) over the conversations. 5 The cassette tape was made by copying the seven inch tape prior to recording the

interview and the five inch tape was recorded by copying the cassette. These telephone conversations when

transcribed by Commission staff amounted to 175 pages of transcript and appeared to be the basis for some of the

summaries contained in the transcript entitled 'southern

Comfort' which had previously been supplied to the

Commission by the Special Prosecutor.

Officers of the TSU compiled the tape recording contained on the seven inch tape by extracting conversations from

other tape recordings of intercepted telephone

conversations. A number of master tapes had been created in this way. The seven inch tape was retained by sergeant G P Smith at his home.

6

As far as the Commission is

- 73 -

aware it is the only master tape in existence, the others

having been erased during the course of the destruction

processes referred to in paragraphs 7.152-7.160.

4. On 23 July 1985 sergeant G Shelley of the BCI produced to

the .Corrunission 146 pages of transcripts and surrnnaries entitled 'A Dazzler•. 7 The material was identical to

that previously supplied to the Commission by the Special Prosecutor [see paragraph 1.29]. This material was said by Sergeant R Kilburn of the TSU and sergeant A w Graham of the Victorian BCI to be the product of the interception of conversations passing over the telephone service of Ronald

. 8 .

Lopes Dl.as. Thl.s material had been provided to Shelley

by Mr R G Bottom in August 1983. Mr Bottom had told

Shelley that the material had come from 'your compatriots down south' or words to that effect. This was apparently a

reference to the Victoria Police at whose request the

telephone interception operation on Dias had been conducted [see paragraphs 8.57-8.59, 9.58-9.63]. 9

5. The involvement of the AFP in unlawful telephone

interceptions conducted by members of the NSW Police is described in Chapter 10. In the course of inquiring into

that matter the Conunission obtained from the AFP documents marked 'Trident: Ryan, Morgan John'. 'Trident' was an

operation conducted by B Division of the AFP in Sydney. The particular volume furnished to the Commission on

22 August 1985 contained documents relating to Ryan. These

documents included file notes, information reports and

other documents 'containing information provided by sergeant A Hawthorn of the T&J to Inspector P J Lamb and others of

. . . 10 h . 'd d h B Dl.Vl.sl.on. T e informat1on proVl. e by Hawt orn to the AFP was obtained during the interception of Ryan's

telephone conversations by NSW Police. several of the

documents contain information from telephone conversations

which are also referred to in the transcripts and summaries

previously obtained by the co:rrmission from the Special

,'

- 74-

Prosecutor. Others, particularly those relating to

conversations occurring in 1981 during the operation

carried out at the request of the AFP are not referred to

in any transcripts, summaries or tape recordings.

Included in the material received from the Special

Prosecutor referred to earlier in this report [paragraph 1.29], was a further document relating to information

obtained by Larrb from Hawthorn. 11 The document consists of a three page file note prepared by Lamb. It relates to

telephone conversations which occurred in the period

7 February to 6 May 1980. This document was located in a

container at the B Division offices of the AFP on

9 February 1984 by superintendent

conducting inquiries on behalf

Prosecutor.12

A Brown of the

who was

Special

6. soon after the Corrunission corrunenced inquiries a document was obtained by the Commission entitled 'Preliminary

Analysis of the NSW Police Tapes of Morgan John Ryan' • This document is an annotated version of the transcripts and surrunaries contained in Volumes TlA, TlB and TlC [see paragraph 6.3] which had previously been delivered to the Corrunission by the Special Prosecutor. The material is arranged under the names of some of the parties mentioned in the transcripts and surranaries. Inquiries made by the Conmission established that this document was prepared by

Mr G Sturgess, an employee of the leader •of the NSW

Opposition, Mr N F Greiner, MP. on 13 February 1986

Mr Sturgess produced to the corrunission photocopies of

documents relating to the interception of telephone

conversations of Ryan, Tr imbole, Dias and Freeman. These were substantially the same as the transcripts and

summaries which the Commission had received from the

Special Prosecutor. One folio of the Ryan material

relating to a conversation on 8 February 1980 had not been in the material provided to the corrunission by the Special

- 75 -

Prosecutor. However, this folio was contained in the

'Preliminary Analysis of the NSW Police Tapes' prepared by Mr Sturgess and previously supplied to the Commission.

Another folio relating to the interception of telephone conversations of Ryan on l May 1980 had not previously been held by. the Commission.

6.3 Using the clearest copy of the material available the Commission prepared volumes of transcript for use by the Commission in the course of its inquiries. The following table indicates the source and contents of each volume:

VOWME

NAME

TlA

TlB

TlC

TlD

SOORCE

Special Prosecutor

Special Prosecutor

Special Prosecutor

Special Prosecutor

DESCRIPTION

Pages l to 105 'Mad Dog':

transcripts and summaries

relat; ng to M J Ryan for the

period 18.3.79- 12.4.79.

Pages 106 to 155 'Rabid':

transcripts and summaries

relating to M J Ryan for the

period 6.2.80 - 9.2.80.

Pages 156 to 199 'Morgan John Ryan' : profile and summaries

relating to M J Ryan for the

period 7.2.80- 10.5.80.

Pages 200 to 304: transcript

of tape prepared by the AFP

from material produced to

the Age and amended by the

commission relating to M J

Ryan for the period 2.3.80 -

c. 2.6.80.

T2 Special Prosecutor

T3 Special Prosecutor

T3A R Kilburn

T4 K R McDonald

T5 G W Slade

- 76 -

Pages 1 to 149 'A Dazzler':

transcripts and surranaries

relating to R L Dias for the

period 10.6.79- c.2.8.79.

Pages 1. to 64 •southern

Comfort': transcripts and

sununaries relating to G D

Freeman for the period 5.3. 76

- 30.3.76.

Pages 1 to 175: transcripts

prepared by the Cormnission

from tape recordings produced

by R Kilburn relating to G D

Freeman {1976}.

Pages 1 to 73 'Pasta' and

'Lucerne': transcripts and

summaries relating to R

Trirnbole for the period

29.3.81 - 6.5.81.

Pages 1 to 98 'Gorilla':

transcripts and summaries

relating to c D Flannery for

the period 8.11.83 - 30.11.83.

6.4 On 18 October 1985 the Commission received four compact cassette tapes from the NSW Commissioner of Police. 13 on 21 october 1985, a

private inquiry agent produced four compact cassette tapes which were said to be tapes from which those produced by the Police Commissioner had been copied. 14

Subsequently the private inquiry agent produced a .

further twenty one compact cassette tapes of intercepted telephone

conversations together with notebooks containing handwritten details of h

. 15

some of t e conversat1ons.

- 77 -

6.5 On 31 October 1985 the NSW Commissioner of Police produced a

further seventy four tapes which largely duplicated the conversations contained on the tapes provided by the private inquiry agent. There were some conversations contained on the tapes produced by the private inquiry

agent which were not contained on those produced by the Police

Commissioner. The vast majority of conversations were recorded by the private inquiry agent during the interception of conversations held over mobile car telephones.

6. 6 Details of the contents of these tapes, insofar as they are

relevant to this inquiry are dealt with in Volume Two of this Report.

Endnotes

1 TI200

2 E984, Slade

3 Ss235, E975, Slade

4 S332, Slade; S727, Withers

5 TI169; El31, Kilburn

6 E253, Smith

7 TI182

8 El36, Kilburn; E2961, Graham

9 E2564, Shelley

10 TI212

11 TI69 Volume 1 Part 19

12 ibid

13 TI277

14 TI280

15 E2706, E27ll; TI281; TI282

CHAPI'ER 7

HISTORY OF 'IELEPHCNE INI'ERCEPI'ICNS BY NEW saJTH WALES POLICE

- 81 -

CHAPTER 7 HISTORY OF TELEPHONE INI'ERCEPTIONS BY NEW sa.JTH WALES POLICE

The Commencement of Telephone Interceptions

7.1 In approximately 1967 sergeant D R Williams was attached to the

Communications Branch of the NSW Police as a senior technician. In that year, according to Williams, the Commissioner of Police, Mr N T w Allen (now deceased) , asked Williams to attend Police Headquarters in order to

discuss new electronic means of obtaining criminal information. At a meeting between Williams, Allen and Inspector D Ferguson, Allen stressed that police could no longer obtain information by the traditional method of· paying criminal informants. Williams's recollection of the

conversation is that the Commissioner requested him to explore the

possibility of utilising both listening devices and devices for the

interception of telephone conversations. Allen, according to Williams, envisaged that these devices could be utilised in the investigation of major crimes such as aircraft hijacks. Williams consulted various

members of the Police Communications Branch about Allen's proposal and

undertook some initial research. 1

7. 2 Williams said he was joined in the task by Constable G P Smith

early in 1968. 2 smith had been attached to the Radio Technical Unit of

the Police Communications Branch since 1966. His recollection was that during the period 1966 to 1967 he developed, on a part time basis,

several small transistorised transmitter devices. These devices were used as listening devices and were not at that stage used for the

interception of telephone conversations. According to Smith the success of such devices prompted investigating detectives from the CIB to inquire whether a similar facility could be provided for the interception of

telephone conversations. As a result of those inquiries, Smith began to experiment with the notion of using the transistorised transmitter

1 . 3

devices on telephone 1nes.

- 82 -

7. 3 Williams said that the first device suitable for the

interception of telephone conversations was constructed by himself and Smith in 1968. This device was built using electronic components from

the stores held by the Police Department and was described by Williams as being 'a frequency modulated oscillator transmitter of a few milliwatts output producing excellent fidelity transmission at about 94 Mega-Hertz'. The device had a range of approximately 100 metres.

4

7.4 Williams and smith attended

Commissioner Allen to demonstrate the

the Phillip Street office of

device. Williams placed this

meeting in early autumn 1968, while Smith gave evidence that the meeting occurred in March 1967. Williams said that Ferguson was also present at that meeting. 5

7. 5 Both Allen and Ferguson expressed their satisfaction with the

effectiveness of the device. Allen agreed that a small group should be formed within the force to deal specifically with electronic

surveillance. To facilitate this, Allen gave oral instructions to the then Superintendent in Charge of the Communications Branch, Mr D Hans, that Smith and Williams were to be assigned to that task. 6

7. 6 Premises on the fourth floor of police offices at 113 Campbell

Street, Surry Hills were made available for use by the new section. A

short time later Constable R Kilburn was attached to the group, initially on a part time basis. The new section was provisionally known as the

Electronics Section and came under the administrative control of the Police Communications Branch. 7

7. 7 The charter given orally to the group by Allen was that the

group's activities should be devoted solely to major criminal matters and that the group was not to become involved in the investigation of police misdemeanours or the operations of the Internal Affairs Branch.

Williams's evidence is that Allen only reluctantly included the condition that the group would not be involved in the investigation of police

. d 8 Inls emeanours.

- 83 -

7.8 In 1969 Williams visited the United States to study the progress

and development of radar speed detection equipment. Williams was

instructed by Allen that in the course of that visit he was to obtain any information available in relation to listening devices and telephone interceptions. According to Williams, however, he obtained very little information relating to such devices. 9

7. 9 In May 1970 the group was oore formally established. It was

known as the Electronics Facilities Section, Police Communications Branch

and was staffed by Williams, who was the Officer in Charge, smith and Kilburn. 10 The principar activities of the section were:

to develop the police television system for the

transmission from Central Police Station of particulars of recently arrested persons;

to deal with all matters involving investigations in which radio or electronics were a key factor ; and

t . h d ed d . . t

11

o serv1ce t e ra ar spe etect1on equ1pmen .

7.10 The section carne under the administrative control of the

Superintendent in Charge of the Scientific Technical and Other services Branch but was, for operational purposes, under the control of the

Superintendent in Charge of the CIB. 12

7.11 On 17 April 1980, concurrent with the transfer of administrative control to the CIB, the Electronics Facilities Section was renamed the Technical Support Group. on 10 June 1982 it became the Technical Survey . wh h k . 1 f . t . . t. 13 Un1t, en t e BCI too contro o ·1ts ac 1v1 1es.

7.12 According to the Historical overview prepared by members of the TSU, in the period 1968 to 1974 the section undertook the installation

f . 1 1 1 h . . d .

14 f o approxunate y e even te ep one 1ntercept1on ev1ces. 0 these

interceptions, approximately seven were undertaken in the course of the investigation into the borrbing of several Slavic travel agencies.

- 84 -

Retired Inspector K R Brown, however, recalled installing ten to fifteen interceptions in. this investigation [see paragraph 8.26].

7.13 By 1974, the personnel attached to the section !Jad increased

from the initial three in 1969 to six officers, with a sergeant first

class as Officer in Charge. 15 Of these officers, all but one, senior

Constable K L Huber, possessed technical qualifications in the nature of Radio Trade course Certificates and Broadcast Station Operators

Certificates of Proficiency.16

7.14 The interceptions carried out in the years between 1968 and 1974 were all requested by officers from the CIB. The approval of the

Superintendent of the CIB was obtained .... by the Officer in Charge of the TSU prior to the installation of an interception. Alternatively, the CIB

investigating officers would obtain approval prior to contacting the Tsu. 17 superintendent L V Moore, who was superintendent

in Charge of the CIB from 1971 until his retirement in Noverrber 1973, gave evidence that Williams had been that the approval of the

Superintendent in Charge of the CIB was to be obtained in every case

where a telephone interception was requested. 18 All such requests and approvals were oral. 19 Retired superintendent E E canacott, who was Superintendent in Charge of the CIB from January 1974 to January 1976, told the Corranission that when approving requests for telephone

interceptions he would obtain details of the particular inquiry from the investigating officers and would then make an assessment of the necesSity for a telephone interception. If approval was given, he would authorise the investigating officers to approach the TSu. 20

7.15 The methods and equipment utilised by the TSU during the period in which telephone interceptions were conducted are dealt with later in this Chapter [paragraphs 7.48-7.97].

1974-1984 Role of the TSU and Relationship with the BCI

7.16 Mr Justice A R Moffitt in his report of the Royal of

Inquiry into Organised Crime in New South Wales Clubs in 1973-74

recommended the establishment within the NSW Police of an effective

- 85 -

intelligence gathering system to identify areas of organised crime and for a task force approach to be adopted to concentrate on particular

targets.

7.17 On 3 October 1973 a unit designed to satisfy that recommendation was established within the force. The unit was originally named the

Crime Intelligence Unit. Its charter and functions were detailed in

Police Instruction No. 65. 21 on 3 July 1981 this unit became known as

the Bureau of Crime Intelligence.

7.18 Between 12 April and 20 July 1974 Inspector B K DOyle and

Sergeant A J Jones undertook a world study tour in an effort to gain

sufficient knowledge to establish the unit. 22 In the course of that

tour various overseas crime intelligence units were examined and some inquiries were made regarding the interception of telephone conversations by police in other countries. Jones formed the impression that rrost

police forces were reluctant to discuss the subject. He was of the view that the use of telephone interceptions would be a useful weapon in the . . . . d . 23

1nvest1gat1on of organ1se cr1me.

7 .19 Jones was allocated the task of establishing the BCI , under the

supervision of Inspector J Black. 24 The founding members of the OCI

consisted of Jones, as Officer in Charge, two other detective sergeants and six constables. 25 The OCI was responsible to the Superintendent

in Charge of the CIB, who at the time of the BCI's formation was

Superintendent E E canacott. 26 The offices of. the OCI were originally located on the third floor of the CIB premises at Smith and Campbell

Streets, surry Hills, and the TSU offices were located on the fourth

floor of that building. 27

7. 20 The evidence of the origina-l members of the OCI is 'that they

commenced investigations into the targets identified by Mr Justice Moffitt, ·namely Walter Dean, George David Freeman, Murray stewart Riley 28 and Stuart John Regan. Inspector A R Lauer, who was attached to the

BCI between 1974 and 1977 as a Sergeant Third Class, gave evidence that

the resources of the BCI, in both manpower and equipment, were

insufficient to properly out the task of investigating the

- 86 -

nominated targets. Lauer also gave evidence, as did Inspector B W Dunn,

who was attached to the BCI between 1975 and 1981 as a sergeant Third

Class, that given the lack of adequate resources available to the ocr, the facilities of other groups outside the BCI had to be utilised in

order to achieve the BCI 's objectives. 29 Both Lauer and Dunn stated

that the officers attached to the BCI at its inception had no prior

training in the collection of intelligence information relating to

organised crime, nor in the investigation of organised crime targets. 30

7. 21 Accordingly, the BCI developed its own strategy for the

collection of intelligence. The BCI nominated Information Officers in various police stations and these officers encouraged police to submit information reports to the BCI. This system of intelligence gathering depended upon the confidence of other police -in the integrity of the BCI

and their willingness to supply information. Lauer gave evidence that

there were elements within the police force which actively discouraged cooperation with the BCI. In Lauer's op1n1on, the centralised

intelligence gathering system being established by the BCI threatened the corrupt elements within the force who had survived because of the

previously fragmented system. According to Lauer, these corrupt elements used the example of the establishment of the Queensland equivalent of the

BCI, which had commenced operations by charging some police officers, to

suggest that the BCI was involved in the investigation of complaints against police officers. Accordingly they discouraged other police from cooperating with the ocr. 31

'While Lauer and the other founding members

of the BCI who gave evidence were unable to provide specific examples or other evidence of such corrupt behaviour, it is clear that those founding members held the honest belief that elements of the force were tainted

with corruption and that such corruption extended to senior

ff . 32 mb o 1cers. These me ers of the BCI, in turn, perceived themselves as honest, incorruptible policemen, and ascribed to themselves the nickname 'The Untouchables' . 33

7. 22 As part of the establishment of an effective intelligence

gathering network the BCI sought the use of the facilities of the TSU as a means of obtaining current criminal intelligence of quality. 34 use of the TSU's facilities by the BCI developed gradually. The first

- 87 -

telephone interception undertaken by the TSU on behalf of the ECI

occurred in 1976 with the interception of the telephone conversations of George David Freeman [see paragraphs 8.31-8.36 for details]. 35

7.23 As previously mentioned [paragraph 7.14], the use of the

t,acilities of · the TSU by the and by any other units of the police

force, required the approval of the Superintendent in Charge of the CIB. The facilities for which such approval was required included the

interception of telephone conversations. 36

7.24 While the ocr did not have exclusive use of the TSU's facility

for the interception of telephone conversations, the vast majority of such interceptions were effected at the instigation of the ECI.

According to the evidence before the Commission, approximately 187

interceptions were carried out by the TSU in the period between 1976 and 1984, and of these, over seventy percent were instigated by the BCI.

Some of these interceptions of the telephone services of individual

targets continued over lengthy periods. 37 Appearing at Appendix c is a table showing the number of telephone interceptions requested by

particular units.

7.25 The evidence of the founding officers of the ECI is that

initially the officers of the TSU were reluctant to allow BCI officers access to TSU premises and to the material obtained from telephone

interceptions. 38 This reluctance was attributed by officers of the BCI to a concern on the part of TSU officers that strict security be

maintained in relation to its operations. 39 Accordingly, information from the telephone interceptions instigated by the BCI was initially

relayed orally to officers of the BCI by officers of the TSU or by brief written notes or surrunaries. ocr officers were not permitted access to f h . ed .

40 . lb h tapes o t e sergeant R urn, w o was

attached to the TSU from 1968, told the Commission that the officers of the TSU were conscious of the illegality of their actions in intercepting telephone conversations and wished to restrict access to the illegally obtained material. Prior to the establishment of the BCI, investigating officers who had requested a telephone interception had been permitted to attend the offices of the TSU and listen to the tapes of the intercepted

- 88 -

conversations. Members of the TSU were anxious to restrict access to such information but as their confidence grew in the integrity of the BCI officers, individuals from the BCI were permitted greater access to tapes and transcripts.

41

7.26 The form of information conveyed to the BCI by the TSU gradually changed during the interception of the telephone conversations of Freeman

in 1976. Sergeant M K Ogg said in evidence that the TSU permitted

selected BCI officers to attend the TSU offices to listen to the tapes obtained and to type precis of the information contained therein.

Initially, only Ogg and Senior Constable A L Rudd were permitted to attend for that purpose. At a later stage Senior Constable G E Schuberg was also permitted to undertake that task. It was not until 1978,

according to the evidence of Ogg, that the TSU permitted full transcripts of the taped conversations to be typed and given to officers of the

BCI.42

7. 27 The liinited access to information arising from the intercepted

telephone conversations caused some frustration aiOOng officers of the BCI. 43 Not only did those officers regard the information provided by

TSU officers as being inadequate for the purposes of an investigation,

but it was also felt that relevant information was not conveyed in

sufficient time to allow it to be acted upon by the BCI. 44 To overcome the frustration in receiving information from telephone interceptions which was too old to be acted upon effectively, in approximately 197i,

Ogg acquired from Tandy Australia Ltd, a retail trader in electronic

equipment, a small VHF radio called a Realistic Patrolman 5. This radio

was purchased for a small amount of rroney using the ·BCI petty cash

account and could be used to intercept transmissions from a transmitter installed by the TSJ. 45 As the frequency of the transmissions was not

known to BCI officers, the - radio had to be tuned up and down the

frequency band while in the vicinity of the transmitter until a telephone 46 conversation was heard. The radio was used without the knowledge of

the TSU. 47

7. 28 The use of the radio by the BCI in 1978 led directly to the

48

arrest of two men, Bertram Kidd and Michael Sayers. A transmitter

- 89 -

had been installed by the TSU on the telephone service of one James

B 1 . f d 49 . o ass at K1ngs or . The investigat1on into Bolass centred on

11 t . f f d . he h . .

50 . h a ega 1ons o rau 1n t orse rac1ng 1ndustry. By us1ng t e

radio receiver Ogg overheard a telephone conversation between Sayers and Bolass. Sayers was heard to request the use of a large 1 jenmy 1 from

51

Bolass. Bolass informed sayers that he did not have such an

inplement, but that he did have a large screwdriver. Kidd and sayers

were observed by officers of the BCI to attend Bolass 1 s residence where

they obtained the screwdriver. They were followed to the Maroubra Bay Hotel where they broke open and stole the contents of a safe on the

52

premises arrl Sayers was then arrested. Kidd escaped but was arrested by Ogg the following day. 53

7. 29 Ogg told the Commission that on the day following the break-in

at the notel, the TSU produced to the BCI their tape of the conversations intercepted the previous day. Ogg stated that the conversation which he 54 intercepted by use of the radio receiver did not appear on the tape.

It was Ogg 1 s opinion that officers of the TSU had deleted the relevant conversation from the tape as they were embarrassed by the fact that the delay in providing the information may have allowed Kidd and Sayers to 55 escape.

7. 30 Shortly after the liaison between the OCI and TSU began, the

procedure for requesting a telephone interception was changed at the instigation of the TSU. The procedure which was agreed to by the

superintendent in Charge of the CIB was that all requests for telephone interceptions were to be vetted by the ocr ·before being considered for approval by the Superintendent in Charge of the CIB. The purpose of such a procedure was to assess what, if any, priority should be given to

particular operations and whether a telephone interception was

·. 'f' d 56 JUStl 1e •

7. 31 Although it was the usual practice for the TSU to erase the

tapes of intercepted conversations and destroy the transcripts, there were exceptional cases where the material was retained. Ole particular

instance was the retention of the material arising from the interception of the telephone conversations of George David Freeman. 57 Some of that

- 90 -

material was placed in a safe deposit box at the CoimiOnwealth Bank in Martin Place. The box was taken in the names of sergeants K R Brown and J D Lewis and Constable w J McKinnqn. 58

7. 32 The evidence before the Conunission , indicates that there was a

growing perception am:mg the officers then in the BCI and TSU,

and passed on to officers later attached to those units, that senior

police · were corrupted by their association with organised crime figures and would actively assist those figures by interfering with the

investigations of the various units of the police force. In addition to the safe deposit box mentioned above, one officer told the Conunission that some material was transferred to the Victorian BCI for

f k

. 59

sa e eep1.ng.

Expansion of the BCI

7. 33 On 12 February 1978 Inspector R H Stevenson (now deceased) was appointed Officer in Charge of the BCI and was responsible to the

Superintendent in Charge of the CIB. 60 The position of Officer in

Charge had previously been filled by a sergeant third class.

7 . 34 Various members of the BCI and TSU believed that the reason for

the appointment of an inspector to the role of Officer in Charge of the

BCI arose out of a desire by senior officers to have greater control over

its activities. The belief was held by :OCI officers that Stevenson's

appointment signalled the end of the secure and close-knit working

relationship existing within the BCI and from the date of his appointment the integrity and security of . the group began to be threatened from

within. 61

7.35 On 1 May 1979 the first superintendent, Mr J F Palmer, was

appointed as Officer in Charge of the BCI. Palmer was responsible to Assistant Commissioner (Crime). on 17 June 1979, the staffing of the BC1 was increased by the addition of seven surveillance officers, making a

total of fourteen officers. 62 Palmer attributed the increase of staff and his appointment as Officer in Charge to a desire by the Government to

- 91 --

devote further resources to the task of combating organised crime. 63 Palmer, as Superintendent in Charge of the BCI, had the responsibilty for approving requests for telephone interceptions. 64

7. 36 The functions of the OCI after this increase in the staff in

1979 continued to be primarily centred on intelligence gathering,

surveillance and court appearances. Several of the officers attached to the BCI in 1979 were 'hand picked' on the recommendation of original

merrt>ers of the OCI. 65 Informal discussions were held with the newly attached officers wherein they were informed of the activities of the BCI, including the use of telephone interceptions. The need for security

of the BCI's operations, in particular those involving telephone

interceptions, was stressed in these discussions. 66 one officer who was attached to the BCI in June 1979, gave evidence that the discussions

made clear to the newly attached officers that if they had any misgivings

as to the methods employed by the OCI then they should transfer to

h . f h 1.. f

67

anot er o t e po orce.

7. 37 Following the appointment on 14 November 1979 of Mr c R Abbott

to the position of Assistant Corrunissioner (Crime) the BCI was divorced from the control of the Chief Superintendent of the CIB. This was done on the recommendation of Abbott to the then Corrunissioner, Mr J T Lees .

Abbott gave evidence that he had made this decision because he could

foresee that the BCI would expand to a stage where it would be as large

as the CIB. Accordingly, for adrninistrati ve and security reasons, the responsibility for the BCI was transferred to the Assistant Commissioner (Crime) in approximately 1980 or 1981. 68

7.38 On 12 October 1980, pursuant to a Police Area , order, an

operational arm of nine detectives was attached to the BCI. The role of the operational arm was to undertake arrests and subsequent court

appearances. 69 The existing surveillance team maintained its previous . 70

functions and did not participate i n arrests and court appearances.

7.39 The addition of the operational arm was greeted with concern by

the existing officers of the BCI. It was the view of rrany of the

surveillance officers that the detectives in the operational arm, who

: ' .

,.

- 92 -

were largely drawn from CIB squads, had little experience of surveillance

techniques, little commitment to surveillance as an investigative tool and they did not share the concern of the existing officers in

maintaining strict security. 71 These officers believed that, by

continuing to socialise with their colleagues from the various CIB

squads, the newly attached officers threatened the security and

effectiveness of the BCI. Officers of the TSU held similar views. 72

It was alleged by a surveillance officer that none of the members of the operational arm volunteered for their transfer to the BCI and that all resented having been so transferred. 73 That allegation was refuted by various merrbers of the operational arm and by Chief Inspector

R P Morrison who was a senior officer of the BCI at the time.

74

However, such an allegation is indicative of the distrust held by the

surveillance arm of the :SCI for the members of the new operational arm.

7.40 On 1 Noverrber 1980, shortly after the attachment of the

operational arm to the BG.I, Superintendent B Blissett became

Superintendent in Charge of the ocr. Blissett remained in that position until November 1982.75 Inspector R c Shepherd was second in Charge of the BCI from March 1980.

7. 41 Shortly after Blissett's attachment to the ocr he became aware

that the BCI and the TSU were retaining copies of transcripts of

intercepted telephone conversations. Blissett told the Corranission that in approximately December 1980 a meeting was held with BCI and ']SU

officers where it was agreed, although with sane dissent, that all old material arising fran telephone interceptions would be destroyed. It was further agreed, again with same dissent, that in future ·only one copy of transcript would be made. The transcript would be held by Blissett at the :SCI and after relevant information had been extracted it would be shredded. Tapes of intercepted telephone conversations would be retained

for three days and then erased. Blissett stated that he took the

decision to destroy transcripts as outlined above because he regarded the . . . . k 76 prev1ous pract1ce as a secur1ty r1s .

7. 42 On 10 June 1982 the administrative and operational control of

the TSU was vested in the Superintendent in Charge of the BCI. 77 This

- 93 -

change apparently resulted, at least to some extent, from an examination of the structure and method of operation of the Victorian BCI in 1981 by Blissett and Morrison. 78 on 24 June 1982 the TSU moved to new premises at 56 Ramsay Street, Haberfield, formerly the site of the Five Dock

Police Station. 79

7.43 In November 1982 Superintendent R c Shepherd became Acting

Officer in Charge of the BCI and was appointed to that position in

January 1983. 01. 1 December 1982, the Observation Squad, consisting of approximately twenty five officers, previously attached to the CIB, amalgamated with the surveillance arm of the ocr. several officers of

the surveillance arm regarded the attachment of the Observation Squad to the BCI as yet another example of the infiltration of the BCI by

untrustworthy members of the police force and as a further factor in the

reduction of the BCI's effectiveness against organised criminals. 80

7. 44 Following the discovery by Telecom of a TSU transmitter

installed in the Bondi area in April 1983, Shepherd ordered the cessation of telephone interceptions. Action taken by Telecom on the discovery of the transmitter is dealt with later in this Chapter [paragraph 7.55] and in Chapter 11 [paragraphs 11.12-11.15].

7.45 The interception of telephone conversations recommenced in

August 1983 and Shepherd introduced a new system for applying for

telephone interceptions. Thenceforth, applications were made on blue forms entitled 'Application for Authorised Assistance' which contained no

reference to the circumstance that 'authorised assistance' could take the form of telephone interception. 81 A copy of the form was passed to the TSU upon being approved by Shepherd or the Acting Officer in Charge of

the BCI. 82 This new form was rodelled on forms used for all requests

for technical assistance and physical surveillance by the Victorian BCI, which Shepherd visited in early 1982. 83

7. 46 on 30 November i983, Shepherd was instructed by Commissioner

Abbott to investigate allegations contained in the National Tirres of

25 Noverrber to 1 December 1983 relating to the · unlawful interception of

telephone conversations. In, his report to the Conunissioner dated

- 94 -

9 December 1983 Shepherd stated that 'the only telephone intercepts

(with) which this Department is involved are those where a ccmbined

operation is taking place with the Australian Federal Police and the warrant for such intercepts are taken out by . the Australian Federal

Police'. This statement was blatantly untrue, both to the knowledge of Shepherd and Abbott. 84

7.47 On 4 January 1984, a transmitter used by the TSU was discovered

by Telecom in the Kogarah area. Shepherd ordered the cessation of

telephone interceptions on 18 January 1984. 01 2 February 1984, the so called 'Age tapes' were published in the Age in Melbourne. 85 The

action taken by the BCI and the TSJ following such publication is dealt with later in this Chapter [paragraphs 7.152-7.169).

Equipment

7. 48 The equipment required to effect a telephone interception varied

according to which of the two available methods was errployed by the TSJ. The more carunon method entailed gaining access to the telephone pillar

located on the public footpath, which contained the cables for the

targeted telephone service and installing a transmitting device on those cables. The second method, which was used less frequently, was known as 'hardwiring'. This entailed the direct wiring of the subscriber's

telephone service to a service in other premises rented by the TSU or BCI.

Transmitters

7. 49 The equipment required for the more canmon method of effecting telephone interceptions consisted of a transmitting device, a receiver and a tape recorder. The second method of 'hardwiring' required only a tape recorder.

7. 50 The transmitters were manufactured by officers of the TSU. T-he original transmitter was that made by Williams and Smith in 1968 and described earlier in this Chapter [paragraph 7.3). Between 1970 and 1973 further transmitters were constructed. These were described in evidence as being about the size of a cigarette packet, with a wire antenna about

- 95 -

fifty centimetres long plus two wires for the purpose of hooking the

transmitter to the relevant telephone line. These devices transmitted on the FM band at a frequency between 88 MHZ and 108 MHz. No firm estimate of the nwnber of such transmitters in existence during this period was given, but Sergeant K H Hofer believed that a 'considerable number' had been manufactured in this time.

86

Williams estimated that in this

period the TSU would have had seven or eight such devices which could be used for telephone interceptions. 87

7. 51 The TSJ continually upgraded and improved the transmitters used in the interception of telephone conversations. The transmitters

utilised from about 1974 to August 1983 were housed in metal ammunition type boxes designed to be installed not in the telephone pillar itself

but in an adjacent pit where discovery was less likely. 88 The

transmitter drew its power from batteries fitted in the box. 89

7. 52 On the evidence of sergeant w s Stanton, a former TSU officer,

by 1978 there were only two transmitters suitable for telephone

interceptions available for use. 90 In 1978 and 1979 a new transmitter was designed by McKinnon, Kilburn and Smith. 91 The transmitter was

designed so that it was activated by a fall in the line voltage which

occurred when the handset of the telephone was lifted, thus saving

battery power and tape and enabling the transmitters to be left

unattended for long periods. 92 A line switch was used to record the

voltage drop and activate the recorder. 93 The two transmitters made to

this design were later fitted with sophisticated audio compressors in an effort to restore the imbalance between sound levels from the intercepted service and that of the other party. Telephone numbers dialled were

initially identified by slowing the tape and counting the 'clicks' on the line. The transmitters were adapted to translate these 'clicks' into

'tone bursts' thus simplifying the task of reconstructing a number

dialled. 94

7. 53 Between 1979 and August 1983 three to four units were available

. 95 h

at any one time for the interception of telephone conversat1ons. T e

transmitters carried stickers indicating that they were the property of Telecom which was of course not the case. 96

- 96 -

7.54 Following the discovery by Telecom of a TSU transmitter in April 1983 [see paragraph 11.12], telephone interceptions ceased for a time and work began on designing a new type of box to house the transmitter. The

new transmitters, which came into service in August 1983 were .housed in a

watertight grey plastic box measuring about thirty centimetres square by fifteen centimetres high, with an aerial protruding from the top and two connecting wires coming from the - side. 97

Approximately six of these

waterproof and reliable transmitter boxes were constructed. 98 These transmitters were said to have a range of approximately 300-400

99

metres.

7.55 The transmitters which were discovered by Telecom staff in April 1983 and January 1984 were referred by Telecom to the AFP for

investigation [see paragraphs 11.13-11.15, 11.18-11.20].

7. 56 In a minute dated 28 March 1984 Chief Inspector P J Br ittliff,

the Officer in Charge of the Electronic services Branch of the AFP, provided a technical description of both transmitters. He described the device discovered in April 1983 as consisting of one circuit board for control and transmission contained in an ammunition box with an external battery pack. The transmitter had a power output of 100 milliwatts and transmitted on a frequency of 163.45 MHZ. That frequency was an assigned

1

classified 1 frequency allocated by the Frequency Management Branch, Department of Communications, to State Police Bureaus of Crime

Intelligence. The frequency was on record as a NSW Police surveillapce frequency. The control circuitry had a facility for tone decoding the number dialled. The power and audio signal were supplied to the

transmitter when the target telephone was activated.

7.57 Brittliff concluded from the construction of the device that the printed circuit board had been produced in a laboratory or workshcp and that the device had been designed by technical officers.

7.58 The transmitter located in January 1984 was described by

Brittliff as consisting of control circuitry and transmitter contained in a PVC water-tight box with an external battery pack. The transmitter had a power output of 200 milliwatts and transmitted at a frequency of 162.85

- 97 -

MHz. That frequency had not been officially allocated, but it was not

used commercially in the Sydney metropolitan area. The exciter board was said by Brittliff to have originated from a canmercial ten channel two way radio, probably a Philips or Pye portable or hand held model. The

construction and control circuitry were identical to that of the earlier transmitter, except that the device was able to detect the Telecom

disconnect tone and remove the transmitter power to preserve battery life.

7. 59 Brittliff also made some general comments on the ti!.Q devices. He concluded that both devices were assembled to accept received and

transmitted clear voice telephone conversations and to relay the signal by radio frequency for a distance of approximately one kilometre. Both

units enabled telephone numbers which had been dialled to be identified.

7.-60 Bri ttl iff concluded that the technology employed in both

transmitters was at a 'reasonably advanced' level aoo that the units

100

performed as expected.

7.61 The transmitter discovered in January 1984 was also the subject of a technical report from the Radio Section of Telecom's Broadcasting Service Centre. This report was in considerably greater detail than that prepared by Brittliff. The technical description and a block diagram of the device are at Appendix D.

The report commented on the construction of the transmitter as follows:

the transmitter section appeared to have been commercially made and adapted, as the board was well made and the power

supply used, +13.8V, was commonly used in mobile 'rigs';

the workmanship was reasonable but not of a precise

standard. All components used were readily available from several sources;

the printed circuit board used appeared to have been

designed for other functions to be incorporated. This was

'.

- 98 -

apparent from the large number of drilled but unused holes on the board and the large number of straps;

the dial tone detector circuit exhibited a narrow band

width and had a 'pot' for fine adjustment of its tuning.

This indicated that the need to halt operation when the

telephone was not in use was of high priority to the

designer; and

all joints of the casing were very water tight. 101

7. 62 According to members of the TSU the canponents for the first

102

transmitters were obtained from Police Department stocks.

Components for later transmitters were purchased from various electronics

outlets in Sydney using the TSU petty cash account allocation of

approximately $200. 103 Vouchers drawn on the petty cash account did not disclose the true nature of the components being purchased, and would either naninate 'electronics equipment' generally or falsely naninate specific components, for example a quantity of resistors or

capacitors.104

7. 63 Estimates as to the value of the transmitters varied, although

it was agreed by Williams, Brown and Hofer that the cost of the early

105

transmitters was low, in the order of between $1 and $30 each. The

later transmitters were sai.d to be rrore expensive, but no accurate

estimate could be given. Sergeant W S Stanton, however, estimated that the value of the transmitters when they were destroyed in 1984 was in the order of $10,000. 106 The destruction of equipment is dealt with in

detail later in this Chapter [paragraphs 7.155, 7.157-7.160).

Receivers

7. 64 Signals from the transmitting devices were picked up on radio

receivers usually located in a vehicle parked within range of the

transmitter. 107 These receivers were standard crystal locked VHF radio receivers purchased by Departmental requisition. Although they were six

- 99 -

channel models, they were operated using only four channels. A time recorder, described below [paragraph 7. 69] was connected to one

108

channel. This type of receiver, used from at least 1980, is now

used by the NSW Police in conjunction with listening devices installed pursuant to the Listening Devices Act, 1984 (NSW). 109

Tape Recorders

7.65 The tape recorders used to record intercepted conversations were generally of the reel to reel type. Five such National brand TR3

recorders were used by the TSU by 1974. Uher brand tape recorders were also used. 110 The cost of these recorders was estimated by retired

Inspector K R Brown, former Officer in Charge of the TSU, at between $60 and $90. 111 Initially the recorders were activated manually by an

. h . h . . f h ' 1 112 off1cer of t e TSU monitor1ng t e 1nterception rom a motor ve 1c e.

7.66 The tape recorders were modified by improving the 'Vox Operator' facility provided in the recorders. This modification allowed the

automatic operation of the tape recorde.r upon the presence of a radio frequency signal from the transmitter. on the presence of such a signal, ll3 ·relay contacts were closed thereby activating the tape recorder . The improvement of the 'Vox Operator' facility, together with the

improvements described above to the transmitter design, allowed the receiving and recording equipment to be left unattended for long

periods. The equipment would usually be located in the boot of a vehicle . ed . h' f h . t ll4 he t t ' t ' stat1on w1t 1n range o t e transm1t er. T au oma 1c opera 1on of the recorder equipment was not, according to Brown, foolproof and the recorder would often be activated by the presence on the line of

. ll5

extraneous noise or stat1c.

7. 67 Recorders were also used in the transcription process. The TSU had available a Sony TC730 reel to reel recorder with a variable speed capability which was used, together with other recorders, in the

transcription of tapes. 116 The sony TC730 was purchased by the Police Department at a cost of approximately $800. 117

- 100 -

7.68 By 1984, the TSU had available approximately twelve reel to reel tape recorders which were used for a variety of purposes, including the recording of intercepted telephone conversations. 118

7. 69 DUring 1983, stereo recorders -were used by the TSU to take

advantage of the development of a 'talking clock' which recorded the time

at intervals on the vacant channel. 119 The 'talking clock' consisted of a digital display vocal clock which was modified by sergeants

w s Stanton and R Kilburn to all

7. 70 Equipment used in the transcription process, in addition to the

t d . ted f d' .... 1 ' 121 TW ape recor ers, cons1.s o au 1.0 compressors auu equa 1.sers. o

equalisers were purchased by the Department at a cost of approximately $500 each. 122

Motor Vehicles

7.71 Vehicles were used by the TSU to house the receiver and

recording equipment and also to transport officers of the TSU to target locations . They were generally either hire vehicles or specially

disguised TSU vehicles.

7. 72 The first of the TSU vehicles acquired specifically to be used

in the installation of telephone interceptions was purchased • in

approximately 1976. 123 It was a Pz.G type vehicle acquired second hand at an auction of Australian Government vehicles. It was purchased using funds provided by the Officer in Charge of the CIB. 124

7. 73 The second of the TSJ vehicles was purchased in approximately

1978, again at an auction of Australian Government vehicles. The

requisition for the purchase of this vehicle was, according to Brown, initially rejected because of an austerity program then being conducted by the Department. Brown then informed the Officer in Charge of the BCI,

Inspector R H stevenson, that the vehicle was essential to the TSU' s

continuing activities. He was then provided with $4,000 in cash by the

- 101 -

Officer in Charge of the Department 1 s Finance Section for the purchase of the vehicle. 125

7 • 7 4 The vehicles were

home address of Brown

126

registered in a false

and subsequently that

name

of

using the

sergeant

127

R F Slucher. . The running costs of

out the of

vehicles, including

registration 128

account.

and insurance, were paid the CIB petty cash

7. 75 By 1984 the TSU had available three vehicles which could be

disguised to resemble Telecom vehicles. These vehicles were a Toyota Hi Ace, a Ford Escort van and a Holden shuttle.

129 The vehicles were

fitted with Conunonwealth mnnber plates beginning with a red letter 1 Z 1 and magnetic Telecom signs were affixed to the body of the vehicle before

each interception operation. Before the acquisition by the TSU of

Commonwealth number plates, New South Wales number plates acquired from

wrecked and abandoned vehicles were used to disguise the identity of the h . 1 130 ve 1c es.

7. 76 No officer of the TSU could offer an explanation as to the

source of the Conroonwealth number plates. Constable P T Lowe, who was attached to the TSU between 20 December 1981 and 26 February 1984, stated in evidence that the number plates appeared to be authentic, although . 131

somewhat old.

7. 77 The Telecom signs affixed to the TSU vehicles were obtained by

officers of the TSU from Mr Kenneth Stanley Papworth, the Chief

_ Investigator for the Australian Teleconununications Commission. In his

evidence, Mr Papworth stated that he had been approached by officers of the TSU, either Hawthorn, Kilburn or McKinnon, who had requested him to obtain a number of Telecom logos. The TSU officers indicated, according to Mr Papworth, that they required the logos for affixing to a

surveillance vehicle. Mr Pai_:Morth stated that no mention was made of any unlawful activity and, as he assumed that the logos were to be used to

assist in police surveillance operations, he provided them in accordance , h 1 I 1 , f ' , th 1 f t , 13 2 w1t Te ecom s po 1cy o cooperat1ng w1 aw en orcemen agenc1es. Mr Papworth denied supplying the TSU with other articles such as

- 102 -

Commonwealth number plates and keys used by TSU members to gain access to

the telephone pillars. 133 [For a description of the use made of

telephone pillars see paragraphs 7.90-7.92.]

7. 78 It is clear from Mr Papworth' s evidence, which is roc>re fully

discussed in Chapter 11 of this report, that .he was aware that the TSU had undertaken the unlawful interception of telephone conversations. However, there is no evidence to indicate that he assisted the TSU in

those operations beyond supplying the Telecom logos and details of the names of subscribers to particular telephone numbers, which he said was

part of the normal assistance provided to police by Telecom [see

paragraphs 11.2-11.4, 11.9-11.10].

7. 79 While TSU vehicles, disguised with Telecom markings, were used to transport TSU officers to the location where a telephone interception was to be carried out, different vehicles were required to house the

receiving and recording equipment.

7.80 These vehicles were hired either from the Avis or Budget

rent-a-car corrpanies by an officer of the TSU in the name of Combined Assurances Pty Ltd, which, the Commission was told, was a registered company used by the Police Department specifically for obtaining such

services. 134 No evidence of the incorporation of such a company or

registration of this business name in New South Wales could be found at h f . . .

135 11 h h. 1 t e Corporate A fa1rs comm1Ss1on. Usua y two sue ve 1c es were used during the course of an operation and were hired by members of the BCI.l36

Miscellaneous Equipment

7. 81 The TSU had in its possession miscellaneous pieces of equipment which were specifically designed to assist in the interception of /

telephone conversations. These included leather ·tool bags which wera manufactured by the TSU as facsimiles of the tool bags used by

Telecom. 137 The TSU also had in its possession study notes from

138

courses for technicians conducted by Telecom. Keys used to unlock

the telephone pillars were also in the possession of TSU officers. Each

- 103 -

officer had keys suitable for this I?Urpose. No explanation was offered by the various TSU officers who gave evidence, as to how those keys were obtained. 139

Installations

7.,82 As mentioned earlier in this Chapter [paragraph 7.48], two basic methods were used by the TSU in installing a telephone interception. The

roost carunonly used method was the ·installation of a transmitting device on the subscriber's telephone line. The second method, known as

'hardwiring', did not require the use of a transmitter. The preliminary steps in the operation were the same irrespective of which method was used.

7. 83 A request for an interception would usually include the name and address of the target and the target's telephone number. The task of

installing the telephone interception device would be assigned by the Officer in Charge of the TSU to one of the senior sergeants, who would gather a crew from the available staff on .duty at the Tsu. 140

7.84 In the early period of such operations, only two officers would

be involved in the installation process. Later, when transmitters were

installed in cable pits, the procedure became labour intensive with up to six officers being involved, some of whom acted as lookouts, in order to minimise connection time and the risk of detection and to d::>serve any 141

activity on the part of the target or associates of the target.

7.85 The officers assigned to the installation task would dress

either in casual clothes or in blue overalls. When the PM:; or Telecom

type vehicles had been obtained, these vehicles would be driven to a

secluded location and fitted with the Commonwealth number plates and the 142

Telecom logos mentioned in paragraphs 7. 75 and 7. 77. Prior to the

acquisition of these vehicles rented light trucks or vans had been used in installations. 143 The installation of interception devices would usually take place after 4.30 p.m. to avoid contact with Telecom

staff.144

- 104 -

7.86 TSU officers assigned to the task would .travel to the Telecom

distribution pillar nearest to the targeted subscriber's address. A key, of which there were multiple copies, was used to unlock the lid of the

pillar. Once the lid was unlocked, the nut under the lid was unscrewed, releasing the cover and exposing the wiring. 145

7.87 Distribution pillars perform the function of permitting main

cables to be connected with distribution cables. Main cables carry pairs of telephone wires, or services, from a telephone exchange to a general geographic location. Main cables carrying large numbers of services are split at various points convenient for distribution to subscribers. The main cables or pairs terminate in the distribution pillar on a pair of

metal terminals. These terminals are arranged in vertical columns on the pillar. Terminals are also allocated for the connection of distribution cables or pairs to the subscriber's premises. The telephone circuit

between the exchange and the subscriber's telephone is corrpleted by

connecting the subscriber's allocated main pair to the distribution pair within the pillar. This is known as 'bridging' and is effected by

connecting the main pair to the distribution pair by wires travelling over the top of the pillar. 146

7. 88 The TSU found that distribution pillars sanetimes contained a

map of the distribution area served by each pillar. It was therefore

possible to determine whether the particular pillar chosen by TSU

officers in fact served the targeted subscriber's telephone. In some cases the distribution pillars also contained a manilla folder in book form which set out the main cable pair number, subscriber's address, in . some cases the subscriber's name, the last four digits of the exchange number and the distribution pair number. Both the map and the manilla folder identified the relevant distribution pairs by numbers. such numbers were indicated on the columns of terminals within the pillar. Distribution pair numbers were usually two or three digits, the first digit. being '0'. Main pairs had higher numbers. It was rare for such a book to be located by a TSU officPr in the course of carrying out an interception and according to sergeant R Kilburn the information contained in such documents was often unreliable. 147

- 105 -

7.89 Where no documentdry information was available, the TSU officers would select the distribution pillar closest to the targeted subscriber's

address. The subscriber's telephone . number would then be dialled from the pillar by connecting a hand held telephone (known as a 'buff') to

anQther subscriber's line. While the number was ringing the officers

would use a to identify the distribution pair which was receiving

the call. If the telephone at the targeted subscriber's address was

answered the officers would pretend to have called the wrong number and just prior to termination of the call a signal would be transmitted along the wire so that the search could continue after the conversation had

terminated. Having identified the distribution pair the main pair could then be identified by following the connecting wires. 148

Transmitter Method

7. 90 The first telephone interceptions were effected by connecting

the transmitter to the targeted subscriber's line at the appropriate distribution pillar. 149 Later when the transmitters were housed in the metal ammunition boxes [see paragra};h 7. 51] they were too large to be

installed in a distribution pillar and were then located in a cable pit near the distribution pillar. 15 ° Cable pits, which are located both on

the main side and distribution side of a pillar, are concrete receptacles located in footpaths. The pits serve various functions such as

'1' . 1 . . . . d . 151 fac1 1tat1ng cab e draw1ng, 1nspect1on, ma1ntenance an connect1on.

7. 91 While the pillar identification process was in progress, a TSU

officer would locate a distribution pit. The pits contained several

spare cable pairs connecting the pit with the pillar. usually two cable pairs enter the premises while only one pair is actually used. The spare cable pair in the pit would be identified by the TSU officer and a signal transmitted the pair so that it could identified at the

distribution pillar. The pillar terminal of the spare pair was then

connected to the main pair terminal of the subscriber's l.ine. The pit

terminal of the spare pair was then connected to the transmitter. The main pair terminal of the subscriber's . line was . used for connection in

the pillar as Telecom technicians would usually only service the

subscriber's distribution pai,r, making detection of the transmitter less

- 106 -

likely. Accordingly, there would be two cable pairs connected to the

main side, one pair connected to the subscriber's distribution pair and

the other pair to the TSU transmitter. 152

7. 92 As indicated in paragraph 7. 84, the installation of the

telephone interception by connecting the transmitter to a spare pair in a cable pit became labour intensive. TWo officers identified the pairs at the pillar, while two officers identified the suitable cable pit and

performed the connection of the transmitter. TWo additional officers were stationed in vehicles at vantage points in order to alert the

officers involved in the connection of any activity by the targeted

subscriber or of possible interference by Telecom staff. All officers involved in the installation were in contact by means of radio. 153

7. 93 When the transmitter was in place a rental vehicle with the

receiver and tape recorder located in the boot was parked within range of the transmitter. An aerial was installed on the vehicle and connected to the boot.

154

The transmitter was activated by a fall in line voltage

when the targeted subscriber lifted the handset on the telephone. The

signal was then transmitted to the receiver, the recorder activated and the conversation recorded. 155

7.94 When it became necessary to clear the tapes of intercepted

telephone conversations a second vehicle, also fitted with a receiver and recorder, was driven to the location with the receiver activated. This second vehicle was parked within range of the transmitter. The first

vehicle, containing the tapes to be cleared, was then driven fMay from the location and the tapes wer.e duly processed. 156

'Hardwiring' Method

7.95 When effecting a telephone interception by the

/

method the preliminary steps of identification of the relevant

distribution pillar, main pairs, distribution and spare · pairs were

identical to installations using a transmitter. In the 'hardwiring'

method, however, the spare pair, instead of being connected to a

transmitter was connected to a distribution pair for a service in

- 107 -

premises rented in the vicinity by the TSU. The service in the rented

premises was then connected directly to a tape recorder and a line switch used to record the voltage drop when the handset was lifted thus

t . t' h 157 ac 1va 1ng t e tape recorder.

7.96 This method was more suitable for interceptions extending over a lengthy period and where the risk of detection by the target,, residents and Telecom employees was high. The cost of using the method and the

availability of suitably located premises were other factors taken into 158 account. Funds for the rental of such premises were generally

provided by the OCI • 159 ·In cases where an interception was requested by police other · than the BCI, funds were provided by the requesting

police.

7.97 Arrangements for the rental of .premises were made by an

officer, usually from the BCI, who then recouped his expenses from BCI funds. 160 Some particular operations in which this rrethod was used are

described in detail in Chapter 8.

overtime

7. 98 The officers of the TSU were required, when working on an

operation involving telephone interceptions, to work overtime because of the requirerrent to install transmitters outside Telecom working hours and to clear and transcribe tapes.

7.99 While overtime was not restricted to operations involving

telephone interceptions, it was stated by one witness in evidence that seventy or eighty percent · of the approximately forty hours of overtime worked by officers each fortnight was attributable to telephone

. . k 161 1ntercept1on wor .

7.100 The procedure for claiming overtime was that an officer would

type an overtime form, which was signed by the claiming officer and

submitted first to the Officer in Charge of the TSU and then to the

superintendent in Charge of the BCI. The overtime forms would note the reason for the overtime as being 'duties of a confidential nature known

- 108 - ';

to (the relevant) , de I 162 Supen.nten nt • This notation was used

irrespective of whether the reason for the overtime was a legitimate activity or the unlawful interception of telephone conversations.

7.101 When Mr c R Abbott was appointed Assistant Commissioner

(Crime), the forms stated that the duties were known to Abbott .

163

Mr Abbott told the Commission that he was not aware of the specific

duties as claimed by the forms, nor had he approved the use of that form of words. 164 There is no doubt, however, that he knew of the illegal

interception of telephone conversations [see paragraph 7.134).

Records Produced and Storage of Material

7.102 The procedures used by the TSU and the BCI for producing,

processing and storing material arising from telephone interceptions changed over the years, gradually becoming more formalised. These procedures were not always followed by officers of the OCI and TSU, particularly regarding the routine destruction of transcripts. The procedure also varied in cases where a request for a telephone

interception originated from units not within the NSW Police.

7.103 Transcripts or summaries of the intercepted telephone

conversations were typed at the offices of the TSU by officers of the TSU or the OCI. The decision as to whether a full verbatim transcript or, a

precis was produced depended upon the transcriber's assessment of the irrportance of the conversation. If the conversation intercepted was regarded as trivial or irrelevant this would often be. denoted in the

transcripts . 165 Other transcribers stated that they invariably

od ced b

. . 166

pr u a ver atLID transcr1pt.

7.104 Initially only one copy of a transcript was prepared and stored at the offices of the TSU in a storeroom located behind the office of the Officer in Charge. 167

The transcripts were kept in individual folders marked with the names of the operations. It appears that prior to 1980 there was no policy within the TSU concerning the destruction of

transcripts but generally the transcripts of the conversations were shred:led and the tapes were erased upon the completion of a particular

- 109 .,...

operation. 168 There were however instances where transcripts and tapes of conversations were retained by TSU officers if they considered that such material contained information of significance.169

7.105 In or about January 1978, with the commencement of the

investigation concerning Murray Stewart Riley and his associates, commonly known as the 'Anoa' operation, carbon or photostat copies of the

transcripts were made. [For details of this operation see paragraphs 8.37-8.41.] These copies were provided_ to the BCI officers involved in the particular operation. 170 The copy transcripts provided to the BCI were st;ored in loose leaf folders and retained in locked cupboards or

drawers at the offices of the BCI. 171

7.106 On receiving the copy transcripts an officer of the BCI woula

usually carry out a check of the telephone nurrbers recorded as having been dialled by the target subscriber. A list of the relevant telephone nurrbers was typed and forwarded to Telecom by an officer of the BCI,

seeking details of the subscribers to those nurrbers. This information was sought on the basis that the telephone nurrbers were obtained in the

normal course of investigations and Telecom was not informed of the

interception of telephone conversations.172 Initially information from the transcripts was not recorded in the BCI dossiers. 173

7.107 Although it was the usual practice for the TSU to erase the

tapes of intercepted conversations, there were exceptional cases where such tapes were retained174 [see paragraphs 7.31-7.32]. Copies of

tapes of some of the intercepted conversations in the Freeman operation were also forwarded to the BCI and brought to the attention of the

superintendent in Charge of the CIB, A M Birnie, and the Assistant

Corrunissioner (Crime), R E Lendrum, in March 1976175 [see paragraph

7.123]. It was, however, exceptional that tapes of intercepted

conversations were permitted to be taken outside the offices of the TSU.

7.108 As previously noted [paragraphs 7.40-7.41], following the

appointment of superintendent B Blissett to the BCI as Officer in Charge, the procedure for producing and processing the transcripts of intercepted telephone conversations changed. Blissett instructed officers of the TSU

- llO -

that all transcripts of intercepted telephone conversations then stored at the TSU were to be destroyed and tapes of such conversations were to be erased. Blissett further introduced a policy whereby only one copy of

a transcript was to be produced and delivered to him or his deputy in his

absence. Tapes of intercepted conversations were to be erased after

three days. In cases where it was considered important for investigating detectives of the BCI to listen to a particular intercepted conversation, a cassette tape of that conversation would be made and delivered to the BCI. 176

7.109 Prior to erasure, the tapes were stored at the TSU premises at

Haberfield in the old cell area.

177 Access to that area was gained by

arrangements with the Officer in Charge, sergeant R F Slucher, or his

178

deputy.

7 .llO The transcripts of intercepted conversations were stored at the

offices of the BCI under the control of the superintendent in Charge, in various cupboards or lockers. 179 A four drawer locking cupboard was later allocated specifically for storage of transcripts. 180

7 .lll Upon receiving the transcript from the TSU the ocr dealt with

the material in one. of two ways. If the interception had been requested by an officer of a squad within the CIB, the transcript v.Duld be

delivered to a senior officer, generally the Operations Officer, within the CIB. The requesting CIB officer was then permitted to view the

transcript, but was not permitted to take a copy or remove the original. The transcript was then destroyed. 181

7.112 If the interception had been requested by the BCI the transcript

was referred to either an analysl within the BCI or the officer in t he

BCI in charge of the particular operation. Relevant information from the

transcript was transferred to the dossiers of the BCI and the transcripts retained for the duration of the operation. 182

7.ll3 In 1981 Sergeant A Hawthorn COITUOOnced what was described as a 1

job book 1 , wherein he would note details of operations conducted by the TSU involving telephone interceptions. While Hawthorn kept the book as

- 111-

his o.m personal record, other ment>ers of the TSU contributed to it and, in addition, kept their own books detailing telephone interceptions carried out.

7.ll4 Following an argument with Blissett in 1982 and his subsequent retirement on medical grounds, Hawthorn took custody of the job book and also several tapes of conversations involving Freeman. According to Hawthorn, he regarded these items as 'insurance' should any harm befall

him. In February 1985 both the job book and the tapes were apparently

destroyed in a fire which gutted a catamaran yacht on which Hawthorn

1 . d 183 •

7 .ll5 When Shepherd was appointed superintendent in Charge of the OCI

in 1983 he gave directions about the processing of tapes and transcripts of intercepted telephone conversations. All tapes were to be erased

within three days of recording unless a specific request was received to listen to and/or obtain a specific extract from the tape. If such an

extract was made it was transferred to a cassette and the master tape

erased. Transcripts of conversations intercepted at the request of CIB officers were dealt with either by Shepherd or his delegated senior

officers, Inspectors Morrison and Foster. The transcripts were shown to the relevant CIB officer and that officer was permitted to take notes. The transcript was retained by Morrison or Foster until the conclusion of

the operation and then destroyed. Transcripts of conversations

intercepted at the request of OCI officers were given to the OCI analyst who worked in conjunction with the officer in charge of the particular

operation. These transcripts were retained for reference purposes and 1 t

. 184

constant eva ua

7 .ll6 DUring Shepherd's leadership of the OCI the TSU again prod.lced

and retained a copy of each of the transcripts, apparently without

Shepherd's knowledge. The copy transcripts were retained with the tapes in folders in the cell area of the TSU offices. The transcripts were

shredded at the conclusion of the operation to which they related. 185

7 .ll7 Records of details of telephone interceptions requested and

installed were also kept by the BCI and the TSU. Upon receiving an

- 112 -

approved request for a telephone interception certain records were made at the TSU. These included a micro-processor floppy disk containing operation particulars and a job book containing the date of request, the target's name, address and telephone number, the unit within the police force for which the interception was conducted and details of the

information being sought. At the completion of the operation details of the installation, such as location of the pillar and distribution cable pair number, were also entered in the job book and · on the floppy

d . k 186 lS •

7.118 When the forms 'Application for Authorised Assistance' were

introduced by Shepherd in August 1983 [see paragraph 7.45], copies of these were forwarded to the TSU and retained as a record of the date of request and approva1. 187

7.119 Shepherd had also introduced in 1981 what was described as a

'target book' which contained a list of all BCI targets from 1981. This target book, however, did not identify in which operations telephone interceptions were in fact used. According to Shepherd, the target bodk was prepared from confidential reports on current BCI operations

submitted to the Assistant Commissioner {Crime) from the beginning of 1981. These confidential rep:>rts outlined the state of the

operations being undertaken by the BCI, but did not refer to the use of telephone interceptions.188

Administrative Procedure and Involvement of senior Police

7.120 The administration of the BCI and TSU has been dealt with during the course of this Chapter. Appendix E contains a table of the major

changes in the administration of the BCI and TSU. Appendix F contains charts depicting the administrative and supervisory structure of the BCI and TSU from 1967 to 1984.

7.121 The evidence is clear that senior officers of the NSW Police

were aware of and, in the case of various Officers in Charge of the CIB

and BCI, approved the unlawful interception of telephone conversations by the TSU. The evidence before the Commission indicates that the unlawful

- 113 -

interception of telephone conversations by the TSU was cornrocm knowledge among detectives experienced in the criminal investigation field and that

this knowledge extended to senior commissioned officers, including C . . 189

omml.SSl.oners.

The Commissioners

F J Hanson

7.122 As indicated at the beginning of this Chapter [paragraphs

7.1-7. 5], the interception of telephone conversations by the TSU was instigated in 1967 or 1968 by the Commissioner of Police, Mr N T W Allen (now deceased), and allowed to continue by succeeding commissioners. Allen was succeeded as Commissioner on 15 November 1972 by Mr F J Hanson

(now deceased). While there was no evidence of any specific incident

evidencing Hanson's knowledge of telephone interceptions being conducted by the TSU, the opinion of witnesses involved in the interception of

telephone conversations at the time was that Hanson would have been well f th

. 190

aware o e pract1.ce.

7.123 This opinion was supported by the evidence of two former senior police officers, retired Senior Assistant Commissioner R C Lendrum and retired superintendent E E canacott. Lendrurn gave evidence that in

March 1976 tapes of intercepted telephone conversations of George

David Freeman were played to him and the then Deputy Commissioner,

L Newnan, by A M Birnie, then -superintendent in Charge of the CIB.

Lendrurn further stated that Newman, following consultation with Hanson as

to the tapes, ordered that the interception of telephone conversations be discontinued. 191 The practice continued irrespective of whether or not Commissioner Hanson had in fact issued a genuine instruction to that

effect.

7.124 Superintendent E E Canacott gave evidence that when he was

superintendent in Charge of the CIB between 1974 and 1976 he would give daily briefings to the Assistant Commissioner {Crime), R T Stackpool. Those briefings included informing stackpool of the use of telephone

- 114 -

interceptions in various operaticns. According to canacott, Stackpool would then advise Corranissioner Hanson of the progress of all inquiries

being conducted by the CIB.

192 , The Corranission is satisfied that

Commissioner Hanson was well aware of the practices engaged in by members

of his force in carrying out the illegal interception of telephone

conversations.

M T Wood

7.125 In November 1976 Mr M T Wood was appointed Corranissioner. He had spent some thirty years in the fingerprint section of the .NSW Police and therefore lacked exposure to rrore general criminal investigation

193

work. Wood denied any knowledge of the involvement of NSW Police in

h . . f 1 h .

194 ted b t e 1ntercept1on o te ep one conversat1ons. It was asser y

numerous witnesses in their evidence that wood was aware of the

interception of telephone conversations, and in particular was aware of the interception of the telephone conversations of Freeman in 1976.

7.126 Retired Inspector J D Lewis, who was Officer in Charge of the

TSU between 1974 and 1977, gave evidence that in 1977 he was summoned by

Superintendent S R Goldsworthy to attend his office. Lewis did so and Wood and Inspector P J watson were also present. Lewis stated that WOOd

expressed concern regarding the handling and security of tapes of

intercepted telephone conversations, in particular, those relating to Freerran. Lewis gave evidence that the thrust of the conversation which

took place was that it was believed that a member or :rrembers of the New south Wales Parliament had obtained a copy of a tape relating to

Freeman. Lewis assured WOod that no copies of such tapes were

distributed by the Tsu. 195

7.127 Wood in his evidence denied emphatically that he had any

knowledge of the interception of telephone conversations or that he had

h d h

. 196

ever ear or seen a tape of an intercepted telep one conversat1on.

Goldsworthy in his evidence denied that the meeting referred to by Lewis 197 took place. The Commission found the evidence of Goldsworthy

confused and vague and that of Wood less than credible.

- 115 -

7.128 The evidence of Lewis, on the other hand was open, full and in

the Coounission 1 s view honest. 01 balance the Cormnission prefers the evidence of Lewis as to this meeting. Having regard to all the evidence the Cormnission concludes that WOod had knowledge of illegal interceptions of telephone conversations and rejects his denials in this regard.

7.129 Mr J T Lees was appointed Acting Commissioner on 9 June 1979 and was confirmed as Wood 1 s successor as Comnissioner on 17 October 1979.

Lees, in his evidence, said that he was aware of the unlawful

interception of telephone conversations being conducted by the TSU but he had no knowledge of the procedure for requesting a telephone interception

or of the particular officers involved in the installation of telephone interceptions. 198

7.130 The interception of telephone conversations was said by two

officers of the BCI to have been brought to Lees 1 s attention shortly

after he became Cormnissioner. Those officers, sergeants B W Dunn and G E Schuberg, stated that in course of the interception of the

telephone conversations of Arthur Stanley ( 1 Neddy 1 ) Smith, Smith was heard to be in contact with two police officers on a regular basis. Dunn and Schuberg approached Inspector R H Stevenson regarding what they saw

as an improper relationship between the two police officers and Smith. According to Dunn, Stevenson indicated that there was little he could do

regarding that · relationship 199 • DUnn and Schuberg stated that they

then saw Lees at his College Street offices in order to bring the alleged improper relationship to his attention. Schuberg stated that Lees was 200 informed of the source of the information being relayed. According

to Dunn and Schuberg, no action was taken by Lees with regard to the

information. The lack of action was attributed by them to his naivety h d . h

201 . h' 'd 'd h abl rather t an any l.S onesty. Lees 1.n l.S ev1. ence sa1. e was un e . ak' 1 202 to recollect such a meet1.ng t 1.ng p ace.

7.131 In approximately 1981 the interception of telephone

conversations was again specifically brought to Lees 1 s attention when Superintendent B Blissett produced and played a tape of an intercepted

- 116-

telephone conversation involving Freeman. The Assistant commissioner (Crime), C R Abbott, was also present. Both Lees and Abbott agreed that this had occurred. 203

7.132 Lees acknowledged in evidence he Y«is aware that the

interception of telephone conversatirns by the NSW Police was unlawful. When asked why, as Commissioner, he did nothing to instigate an

investigation into such unlawful activity being carried out by officers under his control he replied:

Well, this had been a practice before I became Commissioner and as far as I was aware it was being conducted without any

complaint as far as any person was concerned • • • I just let the

practice continue •.• It did not occur to me to cut it out.204

c R Abbott

7.133 Q1 30 December 1981 Mr c R Al::bott was aw:>inted Commissioner following the retirement of Lees. Abbott had previously occupied the position of Assistant Cammissioner (Crime). His period of service with the NSW Police included a lengthy period as Officer in Charge of the Drug Squad.

7.134 Abbott gave eviderice that he first became aware of the existence of the facility for the interception of telephone conversations when it was instituted by Cammissioner Allen, Abbott stated that he was awart; of the procedure for making a request for the use of that facility and of

the fact that the facility was utilised by varioos units within the NSW Police. Abbott further stated that while, as Cammissipner, he had the obligation to halt the unlawful interception of telephone conversations it was his belief that:

it was a system handed down from my predecessor, a system that was utilised with great consideration, a system which was

attacking •.• the very heart of organised crime. I felt that

so long as the privacy of individuals was not interfered with, that this appeared to be as good a medium to d:>tain the

necessary intelligence, and for that very reason I allowed it to go on.205

- 117 -

J K Avery

7.135 Mr J K Avery was appointed Conunissioner on 7 August 1984. Avery stated that he was not aware, prior to the publication of the 'Age

tapes', of the poss{blility that the TSU had been unlawfully intercepting t l ph

. 206

e e one

7.136 The evidence of officers attached to the ocr and TSU supports

Avery's assertion that he was not aware of the existence of the

facility. Avery's service history with the police force discloses that he was never attached to those units within the force which are known to

have been active in. requesting the interception of telephone

conversatioos. There is no evidence to suggest that Avery was aware of the interception of telephone cooversations by the NSW Police. The

Conmission accepts Avery's evidence that he was unaware of the illegal

interceptions prior to the publication of the newspaper articles.

Other senior Officers

7.137 Various senior officers who had occupied the position of

Superintendent in Charge of the CIB or superintendent in Charge of the BCI gave evidence to the Commission.

7.138 It is clear from the evidence of the OCI and TSU officers that

such senior officers knew of the interceptions. That evidence was

confirmed by the great majority of those senior officers who gave

evidence. It was also clear that various Assistant Conmissioners were aware of the interceptions. There were, however, sane senior officers who gave evidence that either they did not approve requests for telephone

interceptions or that they were unaware that telephone interceptions were taking place.

R c Lendrum

7.139 Retired Senior Assistant Commissioner R c Lendrum was

superintendent in Charge of the CIB from February 1970 to February 1972. Prior to becoming Senior As.sistant Commissioner in Decerri:ler 1972 he was

- 118 -

Assistant Commissioner (Crirre). Lendrum gave evidence that although he was aware that telephone conversations were being intercepted by police,

he did not recall ever having been approached to approve a request for a telephone interception nor did he ever instigate a telephone

interception. 207

7.140 Lendrum also told the Commission of two occasions on which tapes of intercepted telephone 'conversations were brought to his attention. The first occasion was when he was superintendent in Charge of the CIB

d th d wh h . . . . 208 h an e secon was en e was sen1or Ass1stant Comrru.ss1oner. T e

Officer in Charge of the TSU at the time of Lendrum's attachment to the CIB, Sergeant D R Williams, could not specifically recall which officer

or officers in the CIB gave approval for the interception of telephone conversations. Williams gave evidence that approval was generally given orally by the Superintendent in Charge or his deputy. 209

L V Moore

7.141 Retired superintendent L v Moore, who was superintendent in

Charge of the CIB fran 1972 to his retirement in Noverrber 1973, confirmed

that he gave approval for requests for the interception of telephone

. 210

conversa tHns.

F A Bradstreet

7.142 Retired Chief superintendent F A Bradstreet was superintendent

in Charge of the CIB from Noverrber 1973 to January 1974. Bradstreet gave evidence that he had no knowledge of the interception of telephone

conversations by the TSU and that he was not involved in any way in such . t . 211 th . . f . d ct 1n ercept1ons. It was e op1n1on o retire Inspe or K R Brown, who was attached to the TSU between 1970 and 1980, that Bradstreet was

aware of the existence of the facility for the interception of telephone conversations and that as superintendent in Charge of the CIB he would h d ts f ch . t t.

212 d. d t . ave approve reques or su 1n ercep 1ons. . Brown 1 no g1 ve

any evidence of a specific instance where Bradstreet had in fact approved

a request for a telephone interception. Bradstreet's predecessor,

- 119 -

retired Superintendent L V Moore, told the Corrnnission that while he did not brief Bradstreet as to the procedure for requesting a telephone

interception and the superintendent's role in approving requests, the procedure for requesting a telephone interception was well known among . d t t ' 213 sen1or e ec 1ves.

7.143 While it is possible, given Bradstreet's short period of service as Superintendent in Charge of the CIB, that he was never approached to approve a request for a telephone interception, it is unlikely that he

was unaware of the fact that a facility existed for the interception of

telephone conversations. The overwhelming evidence before the Corrnnission is that the existence of such a facility was generally known to officers attached to the CIB and the Commission is satisfied that Bradstreet would also have been aware of its existence.

E E canacott

7.144 Retired Superintendent E E canacott was superintendent in Charge of the CIB from January 197 4 to January 1976. Between June 1973 and

January 1974 canacott was Superintendent in Charge of the Scientific Technical and Other Services Branch and as such had control of the TSU. Canacott gave evidence that he was aware, in that capacity, of the

activities of the TSU in intercepting telephone conversations. 214 Canacott in his evidence stated that as superintendent in Charge of the CIB it was his function to approve requests for telephone interceptions.

This role, according to Canacott, had been fulfilled by preceding

215

Superintendents in Charge. canacott also gave evidence that as

Superintendent in Charge of the CIB he gave daily briefings to the then Assistant Corrnnissioner· (Crirre), R T Stackpool, as to the progress of matters under investigation. During those briefings Stackpool, according to Canacott, was informed of the use of telephone interceptions in the

. . . 216

course of 1nvest1gat1ons.

W G Clyne

7.145 Retired SUperintendent w G Clyne was superintendent in Charge of the CIB from January to March 1976. Clyne in his evidence denied that he

- 120 -

had ever been approached for approval for a telephone interception or

that he had ever in fact approved a telephone interception. Clyne stated that he was aware of the existence of the facility for telephone

interceptions through rumour and general talk in the CIB. This awareness was gained prior to his becoming Superintendent in Charge of the

CIB. 217

There was no specific evidence that Clyne in fact approved

requests for telephone interceptions and it is possible, given Clyne's short period of service as superintendent in Charge, that -he was never approached to approve a telephone interception.

A M Birnie

7.146 Retired Chief superintendent A M Birnie was superintendent

in Charge of the CIB from March 1975 to March 1976. Birnie gave evidence that he approved a request from an officer of the BCI for an interception to be effected on the telephone service of George David Freeman.

According to Birnie this was _ the only interception of which he had

knowledge. Birnie stated that he believed that this was the first

occasion in which a telephone interception had been utilised and that he was not informed by his predecessors that telephone interceptions were

be . d d 218 l.ng con ucte .

7.147 Birnie told the Commission that he believed that :tbe

interception of Freeman's telephone service was au thor ised by the then Assistant Commissioner (Crime), R T Stackpool, pursuant to the Listenillg Devices Act, 1969 (NSW). Birnie's stated belief was that the

interception of telephone conversations by . officers of the NSW Police could be conducted legally. He said that he discussed tbe provisions of the Act with Stackpool and that they concluded, although the matter was not beyond doubt, that the Listening Devices Act allowed the Assistant Commissioner of the NSW Police to lawfully authorise the interception of

telephone conversations. 219 Birnie's view of the legality of the

telephone interceptions was unique among NSW police witnesses called

before the Commission.

7.148 The evidence of retired Inspector J D Lewis who was Officer

in Charge of the TSU from 1974 to 1977 was that Birnie approved requests

- 121 -

for interceptions of telephone services on many occasions. 220 Birnie was a prevaricating witness and his evidence as to the extent of his

knowledge of telephone interceptions and his claims as to their legality

is not accepted by the Commission.

s R Goldsworthy.

7.149 Retired Superintendent s R Goldsworthy was superintendent

in Charge of the CIB from 1977 to 1980. Goldsworthy denied in evidence that he had ever approved a request for the interception of telephone

conversations. Goldsworthy stated that in the event that he was

approached by officers seeking surveillance assistance he would refer them to the TSU. Goldsworthy acknowledged that this may have been

interpreted by same officers as an approval for the interception of

telephone conversatioos. However, he was adamant that he would never have a_pproved a request for a telephone interception on the basis that

ch t . . t '11 1

221

su ac 1 v1 y was 1 ega •

7.150 The evidence of retired Inspector K R Brown and retired

Sergeant A Hawthorn was that Goldsworthy approved requests for telephone interceptions. 222 These officers were tmable to provide specific

instances of such approvals or the precise terms of the approvals.

Goldsworthy as a witness was confused and vague, to some degree at least,

deliberately so. The Cormnission prefers the evidence of officers Brown and Hawthorn to that of Goldsworthy, and is satisfied that he knew of the

practice and on occasions approved illegal interceptions of telephone conversations.

J F Palmer, B Blissett and R C Shepherd

7.151 The then superintendents J F Palmer, B Blissett and

R c shepherd, who were Superintendents in Charge of the BCI from 1979 to

1980, 1980 · to 1982 and 1982 to 1984 respectively, all gave evidence that

they approved requests for the interception of telephone

. 223

conversat1ons.

- 122 -

Destruction of Material

7.152 Following the p.Iblication of extracts of transcripts of tape

recorded conversations by the Age in February 1984 the officers of the BCI and TSU embarked on a course of action designed to conceal their

involvement in the unlawful interception of telephone conversations.

7.153 The possibility of an investigation into the source of the 'Age

tapes' was discussed between Superintendent R c Shepherd, superintendent in Charge of the BCI, and his Second in Charge, Inspector R P Morrison. Shepherd and Morrison agreed that it was likely that such an

investigation would take place and Morrison was of the view that the AFP might execute a search warrant on the offices of the BCI and TSU.

224

Morrison telephoned Kilburn at the TSU and told him to 'get rid of all

225

their gear there' . Kilburn did not interpret this instruction as an

order to destroy the equipment and the other material, but rather as an order to ensure that should the AFP execute a search warrant on the TSU premises nothing connected with telephone interceptions would be

f d

226

oun .

7.154 The officers of the BCI were also instructed by r-t>rrison to

locate and destroy all transcripts then held. According to the BCI

officers who gave evidence, a thorough search of the SCI offices

was conducted over several days and all transcripts and other material

relating to telephone . interceptions, including telephone index cards, 227 were destroyed. These officers could not, however, discount the

possibility that some material escaped the destruction process. 228 I

--.

7.155 The officers of the TSU gathered all the equipment used in the

interception of telephone conversations and placed it in the cell area of the -TSU offices. 229 The equipment included the transmitters, equipment for line interface units, technical literature, telephone handsets, Commonwealth motor vehicle number plates and Telecom. logos.

230

This

material was placed in a steel box. 231

7.156 The transcripts held by the TSU were then shredded, as were the

copies of the 'Application for Authorised Assistance' forms. This

- 123 -

shredded material. was placed in green garbage bags and taken to the

garbage disposal centre at zetland by sergeant R F Slucher and a junior f

. 232 .

TSU o f1.cer. Slucher informed the personnel on duty at the zetland

facility that he had police security documents for disposal. He was

directed to the first or second floor where he dropped the garbage bags . t h f de . 233 1.n o a opper qr struct1.on.

7.157 The steel box containing the equipment [see paragraph 7.155] was transported to Slucher 1s weekend cottage at Bateau Bay. The box,

together with several bags of tools used in the interception of telephone conversations, was plaCed in the roof of the garage at those premises. Upon his return to Sydney Slucher informed Morrison that he had secured

the equipment in a 1 safe house 1 • Slucher informed some of the junior

officers of the TSU that the equipment had been removed and that they

could expect officers of the AFP to attend· the TSU offices with a search 234 warrant.

7.158 Following the appointment of a Special Prosecutor in February

1984 to investigate the allegations of unlawful telephone interceptions, it was apparent to Shepherd that the controversy would persist for some time. In March 1984 Shepherd made the decision that the TSU would cease telephone interceptions permanently. He went to the TSU offices and

instructed Slucher to dispose of the transmitters and other

equipment. 235 Slucher and Kilburn then removed the equipment from the garage at Bateau Bay. They started to burn the combustible items, such as leather work bags, index cards, diagrams and technical circuitry, in

the bar beque at the rear of Slucher 1 s weekend residence. The bar beque proved inadequate for the p..trpose, so Slucher and Kilburn took the

combustible items to the public barbeque area on the beach at Bateau say where the destruction was completed. The nan-combustible items of

equipment were broken up and crushed, placed in the steel box and

b k ff

. 236

transported ac to the TSU o 1.ces.

7.159 In late March 1984, sergeant G P Smith arranged with Senior

constable R E Barry, who was attached with Smith to the Staff Deployment and Analysis Unit, Personnel Branch, and who was also related to smith by

- 124 -

marriage, for the use of a boat by Barry. Barry agreed to take

Smith out in the boat, and Smith undertook to meet the cost of petrol.

Smith did not indicate to Barry the purpose of the voyage.

7.160 Barry and Smith boarded the boat at Mosman Bay and then

proceeded to Clifton Gardens where Slucher, Kilburn and stanton boarded with the crushed equipment in the steel box. The boat proceeded out past North Head for several miles and the equipment was then overboard

by the TSU officers. Barry did not participate in the jettisoning of the . t 237

equ1pmen •

Meetings of TSU and BCI

7.161 on 20 February 1984, as part of the Special Prosecutor's

investigation, the then Commissioner of Police, Mr c R Abbott, instigated an investigation into the 'Age tapes' by a Special Task Force drawn

mainly from the Internal Affairs Btanch of the NSW Police.

7.162 over the next twelve to fourteen months there took place several meetings of officers of the TSU and the BCI relating to their involvement in the unlawful interception of telephone conversations. In March or April 1984 a meeting was held of most past and present members of the TSO · at the western Suburbs Soccer Club.

7.163 This meeting was apparently held to discuss a statement by the Premier of New South Wales, the Hon. Mr N K wran, MP, to the effect

that those responsible for the unlawful interception of telephone

conversations would be prosecuted and imprisoned. Shepherd addressed the meeting and suggested that the officers involved in such activity should deny any involvement whea interviewed by the investigators of the Special k h . h' . eed b th 238 Tas Force. T 1s approac was agr to y ose present.

7.164 Several months after the meeting at the western Suburbs Soccer Club another meeting was held of past and present members of the TSU and BCI at the police premises in the Remington Building, Liverpool Street,

Sydney. senior Constable A F Daalmeijer estimated that approximately forty or fifty officers were in attendance. Shepherd again addressed the

- 125 -

meeting and repeated that all officers, including those attached to the BCI, should deny any involvement in the interception of telephone

conversations. 239 According to cne BCI officer who was present,

Shepherd used words to the effect that 'telephones were not intercepted,

intercepts did not exist and no person in this room knows of the

existence of any material. This meeting has not occurred'. Shepherd's main concern was that someone had given material to the media. 240

Again, the approach suggested by Shepherd was agreed to by those present.

7.165 On 22 Noverrber 1984 the Royal Commission of Inquiry into Drug Trafficking received a letter from Messrs w C Taylor and scott,

Solicitors, acting for a nurrber of present and former NSW Police. That letter indicated that those officers were willing to give evidence to the Commission relating to the illegal interception of telephone

conversatioos on the coodition, inter alia, that indemnities against prosecution for offences against the Telecommunications (Interception) Act 1979 be granted by the Commonwealth Attorney-General. 2 1

7.166 After the present Commission was established there were several meetings in May or June 1985 of past and present officers of the TSU and the BCI. At one such meeting of several p:lSt and present members of the TSU only, the contents of the oocument entitled 'Historical overview of

the Technical survey Unit, 1968-84' were discussed. This oocument was prepared for the information of this Commission and forms part of the Commission's records. The approach aoopted by the p:lst and present

merrbers of the TSU at that meeting · was, in the light of the possibility

of indemnities being recommended, to give full cooperation to this

0 0 242

CommJ.SSJ.on.

7.167 In May 1985 another meeting was attended by many p:lSt and

present TSU and BCI merrbers. This meeting was held on the fourth floor of the Remington Building in Liverpool Street and was chaired by

Sergeants K E McDonald and R I Treharne. McDonald informed the officers present of the procedure to be adopted for appearing before this

Commission and advised as to the guidelines for statements to be

ub th f 0 d 0 be 0 0 d d 243 s mitted and e forms o J.n emnJ.ty J.ng consJ. ere .

- 126 -

7.168 McDonald indicated to the meeting that full disclosure should be made to this Commission by officers of the ECI, and that the officers of

the TSU had determined to take the-same approach. 244

7.169 In June 1985 yet another meeting took place at the home of

retired Inspector A J Jones. The officers attending this meeting were attached to the OCI frOlll the mid 1970 IS and had been inVOlVed in the early operaticns. The purpose of the meeting was to allow those officers to pool their knowledge of operations of which, because of the passage of time, they individually had no clear recollection. 245

7.170 Many former and serving officers of the ocr and TSU subsequently appeared before this Conmission where they gave evidence of the illegal interception of telephone conversations.

Endnotes

1 El03-04, S99, Williams

2 899, Williams

3 E248, 8448, Smith

4 Ss7, Williams

5 El04, S99, Williams; S448, Smith

6 El05, 899, Williams

7 E248, 8448, Smith

8 El05, 899, Williams

9 SlOl, Williams

10 8100, Williams; TI159 folio 5

11 El05, Williams

12 Ss441, Canacott; TI159 folio 155

13 8147-48, Shepherd

14 TI159 Annexure E

15 TI159 folio 132

16 S268, Kilburn; S448, Smith; S23, Brown; 817, Lewis; 865, Huber; S58, McKinnon 17 Ell6, Ss9, Williams

18 8260, Moore

19 Ss443, Canacott

20 ibid

21 8150, Shepherd

22 S81, Jones

23 Ss490, Jones

24 881, Ss495, Jones

25 8572, Lauer; 8547, DUnn

- 127 -

26 ss4951 Jones

27 8549-501 Dunn

28 8251 1 Ss2791 Schuberg

29 8573 1 Lauer; 85481 DUnn

30 ibid

31 8573 1 Ss5641 Lauer

32 E2086 1 85731 Ss565 1 Lauer; E756 1 Donaldson 33 Ss5641 Lauer; E756 1 Donaldson

34 8573 1 Lauer

35 8549 1 Dunn; 8574 1 Ss5641 Lauer; E745-46 1 Ssl93 1 Donaldson; 882 1

Jones; Ell941 Ogg 36 8574 1 Lauer; 85491 DUnn

37 TI159 Annexure E

38 Ss566 1 Lauer; Ss2861 Schuberg; Ss200 1 Anderson 39 Ss2861 Schuberg; _Ss200 1 Anderson 40 8253 1 Schuberg; 5S566 1 Lauer; 55491 DUnn; Ell94 1 5612 1 Ss319-20 1 Ogg

41 El27 1 Kilburn

42 Ell94 1 5s319-211 Ogg; 5s566 1 Lauer; 5414 1 Rudd; 5s62 1 McKinnon 43 Ss566 1 Lauer; 5s286 1 Schuberg

44 Ss286 1 5chuberg; 5s323 1 Ogg; Ss200 1 Anderson; E468 1 Aust 45 El2l51 5s3231 Ogg; Ss2861 5chuberg

46 Ss3241 Ogg

47 Ss286 1 Schuberg; El016 1 Ss253 1 Treharne

48 Ss3231 Ogg; Ss286 1 Schuberg

49 Ss633 1 owens

50 El217 1 Ogg

51 El215 1 Ss323-241 Ogg

52 El2151 5s3241 Ogg

53 Ss3241 Ogg

.54 El215-l6 1 5s3241 Ogg

55 Ss324 1 Ogg

56 El27-29 1 Kilburn

57 E206-071 528 1 Brown

58 ibid

59 E255-561 smith; E863 1 Egge; E89 1 Shepherd 60 8147 1 Shepherd

61 E76l 1 Donaldson; E590-9l 1 Johnson; El88 1 Brown 62 851 1 Palmer

63 5511 Palmer

64 8531 Ss446 1 Palmer

65 E466 1 Aust; Ell381 sweeney

66 E467 1 5s97 1 Aust; Ss2951 sweeney

67 E467 1 Aust

68 5479-801 Ss655 1 Abbott; 5192 1 Blissett

69 Ss8661 McVicar

70 ibid

71 Ss279 1 5chuberg

72 S6 1 Hawthorn; Ell03 1 Ss279-80 1 Schuberg; Ss321 1 Ogg; E475 1 Aust 73 E476 1 AUSt

74 Ell26-271 wares; 5s372 1 Morrison

75 Sl94 1 Blissett

76 5s933-341 Blissett

77 5147-481 Shepherd

78 79 80 81 82 83

84 85 86 87 88

89 90 91 92 93 94 95 96 97

98 99 100 101 102 103 104 105 106 107 108 109 110 lll

112 113 114 115

116 117 118 119 120 121 122

123 124 125 126 127

128 129 130 131

Ss804, Green Adm 26 folio 48

- 128

Ell6l, Finch; Ss866, McVicar Sl3l-32, Shepherd; El39, Kilburn S44, Slucher E74, Shepherd; Ss803, Green TI174

Sl32, Shepherd SS108, Hofer EllO, Williams Ssl8, Kilburn; S4 7, Slucher; E2589, Hawthorn

E259l, Hawthorn Ssl40, Stanton SS14l, Stanton Ssl8, Kilburn, TI159 folios 151-152 SS19, Kilburn Ssl9, Kilburn; TI159 folio 151; Ss865, McVicar

E83-84, Shepherd E259l, Hawthorn SS13l, Shepherd Ssl79, Moore; S47, Slucher; Ssl90, Chinnery SS190, Chinnery TI206 folios 13-16 TI273 Part C folios 77-79 Elll, Williams . Ss30, Brown

E626, Stanton; E505, Hofer Ss30, Brown; EllO, Williams; E505, SS108, Hofer E624, Stanton Ss7, Williams; SS18, Kilburn Ssl86, Chinnery S46, Slucher Ssl9, Kilburn Ss30, Brown ss29, Brown SS18, Kilburn; Ss31, Brown TI159 folio 151

Ss3l, Brown ibid ibid Ssl90, Chinnery SS172, Spencer; TI159 folio 151

Ssl72, Spencer Ss3l, Brown ibid ibid

ibid ibid Ss32, Brown Ssl90, Chinnery; E2586, Hawthorn Ss3l, Brown Ssl53, Lowe; Ssl90, Chinnery; Ssl75, Moore SS153, LOWe; SS190, Chinnery; SS175, MOore Ssl54, Lowe

- 129 -

132 E2498-99, Papworth

133 ibid

134 E638a, Ssl54, Lowe

135 TI363 folio 2

136 Ssl78, Moore

137 E2586, Hawthorn; E624, Ssl45, Stanton

138 SS191, Chinnery

139 E2591, Hawthorn

140 S42,

141 TI159 folio 152

142 E687, Chinnery; E637-38, SS153, Lowe 143 Ss32, Brown; Ssl06, Hofer

144 SS17, Kilburn

145 ibid

146 Ssl7, Kilburn; TI159 folio 153

147 SS17-18, Kilburn

148 Ssl8, Kilburn

149 Ssl06, Hofer; TI159 folio 153; Ss29, Brown

150 E2589, Hawthorn

151 Ssl8, Kilburn; TI159 folio 152

152 SS18, Kilburn

153 TI159 folio 152

154 SS186, Chinnery

155 Ssl8, Kilburn

156 SS186-87, Chinnery

157 Ssl8-19, Kilburn; TI159 folio 151

158 TI159 folio 151

159 E825, Champion

160 El080-81, Meadley; Ss208, WOoden; E825, Chall"pion; Ssl65,

naalmeijer

161 E603, E606, Stanton

162 S68, E533a-34, Huber

163 E531, E533-34, Huber; E611, Stanton

164 E2387, Abbott

165 E677, Moore

166 E638a, Lowe

167 S612, Ogg

168 E208, S25, Brown; Ssl41, Stanton

169 Ss141, Stanton

170 E820-21, Chall"pion; S253, schuberg; S551, DUnn; S612, Ss319, Ogg; Ss62, McKinnon 171 E821, Champion; S612, Ogg

172 El197, Ogg; E862, E864-65, McVicar; Ss346, Egge 173 El196, Ogg

174 E206-07, S28, Brown

175 Ss362, Ss363(b)ff, Lendrum

176 E2624-25, Ss933-34, Blissett

177 Ss191, Chinnery, SS177, Moore

178 S41, Slucher

179 El064, Calladine; Ss348, Egge

180 El008, Treharne

181 Sl29-30, Shepherd

182 ibid

183 E224-25, Slucher; E2615-17, S6, Hawthorn; El278-81

184 185 186 187

188 189 190 191

192 193 194

195 196 197 198 199

200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217

218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 '237

- 130 -

Sl31, Ss5, Shepherd Ss5, Ssl53, Shepherd; E223, slucher; Ssl91, Chinnery Ss43-44, Slucher S44, Slucher Sl30, Shepherd; TI158 E2137-39, Lees; E2069, Gilligan Ell3, Williams; E604, Stanton El678-79, Ss363e, Lendrum El848, canacott S721, Wood

E2397-98, Wood El67-68, 820, Lewis E2404, E2399, wood El821, Goldsworthy Ss577, Lees E2040, Dunn Ell06-08, Ss282-83, Schuberg; E2039-40, Ss911, DUnn Ell06-08, Ss282-83, Schuberg E2144-46, Ss580, Lees

E2142-43, Ss578, Lees; Ss659, Abbott E2143, Lees E2374, Abbott Sl082, Avery El672, Ss358-59, Lendrum

El666ff, Ss360-62, Lendrum Ell6, Williams S260, Moore El791, El789-90, Ss427, Bradstreet El87, Brown

E2421, Moore El848, Ss441, canacott El848-49, canacott El848, El851, Canacott

El800, El802-03, Clyne Ss939, Birnie Ss940, Birnie El71, S20, Ss23, Lewis El815-16, Ss896, Goldsworthy El83-85, Brown; E2596-97, E2603-04, Hawthorn

ss446, Palmer; Sl94, Ss925, Blissett; 8125, Shepherd El703, Ss368-69, Morrison; Sl31, Ss5, Shepherd El703, ss368-69, Morrison El49-54, Kilburn

E879-80, ss868, McVicar; Ell46-47, sweeney; Ell78-79, McDOnald ss369, Morrison E687-88, Chinnery El49-54, Kilburn E232-35, Slucher

E232-35, Slucher; Ssl59, Lowe; Ssl91, Chinnery E232-35, Slucher; SS159, LOWe E644, Lowe; E655, oaalmeijer

E83-84, Sl32, Shepherd; E232-35, Slucher; El49-53, Kilburn El49-54, Kilburn, E232-35, Slucher E232-35, Slucher; S692-93, Barry; El49-54, Kilburn

- 131 -

238 E650, SS162, Daalmeijer

239 E651, Ssl62, oaalmeijer

240 E488-89, SS104, Aust

241 Adm 34 folios 6-9

242 E642, Lowe

243 Ss877, McDonald; Ssl04, Aust

244 Ss877, McDonald

245 E754, Donaldson; El956, Jones; E825, Champion; El086, Meadley

CHAPI'ER 8

SPECIFIC OPERATIONS

- 135 -

CHAPTER 8 SPECIFIC OPERATIONS

8.1 In the period 1968 to 1984 during which illegal telephone

interceptions were conducted by members of the NSW Police it is estimated that a little over 200 individual telephone services were the subject of interception. This figure is based en the annexure to the Historical

Oyerview which was prepared by past and present members of the TSU to

assist the Commission in its inquiries. 1 The evidence before the

Commdssion ingicates that the annexure to the overview is not an

exhaustive list of operations and that other interceptions were carried . 2

out.

Use of Telephone Interceptions other than for the Investigation of Crime

8. 2 Throughout the inquiry, the Corranission was alert to the

possibility that police may have utilised unlawful telephone

interceptions with objectives other than the investigation of crime. The Conunission was reliant upon the evidence of police and the Historical

OVerview 3

for details of the identity of persoos whose telephone

conversations were the · subject of interception. There was little scope, because of the clandestine nature of the activity, for verification of that evidence. Without exception, the police witnesses who gave evidence to the Commission testified that · the interceptions were oone solely for

the purpose of obtaining information for use in the investigation of

crime.

8. 3 Retired Superintendent D R Williams, who had been with the TSU

at the time of the corrunencement of unlawful telephone interceptions in 1968, stated that the policy of the NSW Police · was that telephone

interceptions were only to be used in criminal matters where detectives had specific criminals under suspicion and no other means of gaining information were available. 4

superintendent R c Shepherd, who

supervised the TSU during final stages of participation in unlawful telephone interceptions, also said that when he was briefed upon taking

- 136 -

up his position he was made cognisant of the fact that the interceptions

were being carried out solely for the purpose of the i nvestigation of

crime. 5

He further said that all telephone interceptions of which he

was aware were carried out for the' purpose of obtaining information for

use in the investigation of crime and to obtain intelligence for use in furthering police knowledge of organised crime and criminals. 6

8. 4 Police also spoke of the maintenance of strict security during

these operations and the prompt destruction of material created as a result of unlawful telephone interceptions in order to inhibit the

dissemination of the information gained. sergeant R I Treharne, for

example, gave evidence of how those who listened to tapes of intercepted conversations used discretion when discussing the contents of those tapes with other merrbers of the OCI who were not involved in the particular

operation. He cited as an illustration the information obtained through the unlawful interception of conversations passing over the telephone service of Morgan John Ryan which related to litigation i nvolving public figures for whom Ryan apparently acted or had acted and said that it was to the credit of those involved in listening to the tapes that the

information was not thereafter openly discussed. 7

8.5 An examination of the Morgan Ryan material indicates that ne was a person who enjoyed and cultivated associations with politicians and

other public figures. The material that has survived, however, does not reveal an intention to collect information designed to embarrass Ryan or his associates. The evidence tends to show that the police involved

deliberately refrained fran recording matters which had nothing to do with criminal activity. They were not interested in disclosing such

information because it may have jeopardised the secrecy surrounding their illegal activities.

8.6 Nevertheless, there were sane indications that telephone_

interceptions were not conducted entirely for reasons connected with the investigaton of crime. The initial interception of the telephone

conversations of Ryan was made because of conversations heard during the continued interception of the telephone conversations of Roy Bowers Cessna after his arrest on 14 March 1979 [see paragraph 8.50]. The

- 137 -

Commission did not obtain a satisfactory explanation as to why the

interception of Cessna's telephone conversations had continued and there is a basis for suspicion that the telephone interception might have been continued in order to ascertain details of Cessna's defence. Another explanation may be that the information regarding Ryan's activities was of such significance that the interception was continued until the

telephone service connected to Ryan's premises could be intercepted. This occurred on 18 March 1979 four days after Cessna's arrest. 8

8. 7 In the case of the use of telephone interceptions during the

search for Raymond John- Denning who had escaped from prison [see

paragraphs 8. 80-8. 84], the overview shows that illegal telephone

interceptions were made at Bossley Park on 13 November 1981 and at Lidcombe on 14 November 1981 well after the arrest of Denning on

9

8 November. The reason for interceptions . being made after Denning's recapture has not been satisfactorily explained.

8. 8 However, while these and similar occurrences which the

Corronission does not propose to traverse here, are curious, they were still telephone interceptions which could be said to relate to the

investigation of crime or the collection of intelligence.

Overview of Operations

8.9 There was wide variety in the nature of the investigations where

interceptions were effected, the rrethods used and the results obtained. A number of these investigations have been selected by way of example and reported on below. Unlike legal telephone interceptions, the operations carried out by the TSU were not limited to drug matters but involved a

spectrum of investigations ranging from general intelligence gathering on suspected organised crime figures to specific murders and prison escapes. Even in matters involving the suspected importation of narcotics where it would have been possible to seek a lawful interception of telephone

conversations from the AFP, the TSU installed illicit devices because it was said by witnesses that delays in obtaining the necessary warrant and 10 in obtaining information from the interceptions were unacceptable.

- 138 -

8.10 The installation of a telephone interception device was often

used by police as a last resort after ITPre conventional methods of

investigation had been tried. For exarrple, in one case all prospective witnesses within an ethnic community had refused to talk to the police about a certain matter and the investigation had reached a standstill. The interception of telephone conversations produced an immediate result

[see paragraphs 8.17-8.18].

8.11 several operations show how the interception of conversations often revealed the need for an inquiry into a secondary target who then became the subject of a different operation. In examples such as Morgan

John Ryan and operation 'Crest' telephone interceptions also were

employed in the operation relating to the secondary target [see

paragraphs 8.37-8.38, 8.47-8.50]. Intercepted telephone conversations at times also unveiled corrupt associations between police officers and criminals, notably in the WOllongong inquiry into the murder of Charles Berry [see paragraphs 8.22-8.25].

8.12 The examples described briefly below also reveal the different methods used by investigators and the varied ·Uses to which information

obtained from intercepted telephone conversations may be put. In

particular, telephone interceptions as used by the TSU permitted a more efficient use of visual surveillance resources and reduced the likelihood of detection by the target. It was often possible for police to

anticipate the physical ITPVements of the target and arrive at ·the

destination of the target without the need for physical surveillance.

8.13 A recurring theme throughout the operations was the need for

strict security, not least because of the risk that the unlawful activity might be detected. TSU and OCI merrbers did not expect to receive the

support of the police force if they were discovered. Whenever a

prosecution resulted from or was assisted by an interception operation they had legally admissible evidence of the incident and the fact that there had been an interception operation was never revealed to. the Court. For exarrple, if police learned fran the interception that a suspect was

moving from A to B they could arrange for a surveillance operative to

- 139 -

follow the suspect so that they could have admissible evidence of any

11

subsequent unlawful conduct.

8.14 In all but one of the operations conducted by the JTF where

unlawful telephone interceptions were used, applications could have been made to the AFP . for warrants to be sought from a Federal Court judge

authorising licit telephone interceptions. Whether or not the

applications would have succeeded is impossible to determine, depending as they did on the decisions and actions of members of the AFP and the

assessment of the judge. Merrbers of the JTF gave evidence that this

procedure was not used because it was regarded as too slow. 12 They

also stated that the AFP meinbers attached to the JTF were not informed f th . 11 al . . 13 [ 0 71 10 75] h o e 1. eg 1.ntercept1.ons see paragraphs 1 • , . . T e

exception applies to operation 'Alpha' [see paragraphs 8.67-8.72] which was conducted before the AFP were given the power to legally intercept telephone conversations.

8.15 The following are twenty examples taken from the operations

conducted by the TSU. The operations are presented in chronological order.

8.16 Where tapes or transcripts arising from particular operations

have survived and are in the possession of the Commission the offences or

possible offences disclosed in such material are dealt with in Volume Two of this report.

The Mordo Murder

8.17 cne df the first inquiries carried out by the TSU after its

establishment was the investigation into the car bombing murder of Marion 14 Mordo on 11 October 1968. Mrs Mordo died when a nail bomb exploded

15

under her car outside her home in Five Dock, a suburb of Sydney.

Inquiries were made among merrbers of the ethnic . community to which k 1

. 16

Mrs Mordo belonged but no-one was prepared to spea to po 1.ce.

8.18 An interception device was installed on the telephone service

17

connected to the home of, a prime police suspect, Paolo Falcone.

- 140 -

Interpreters were called in to assist. 18 Using the information gained from the intercepted telephone conversations, in November 1968 Paolo

Falcone, Antonio Frontino-Crisafull,i and Giuseppe Barone were arrested and charged with the murder. A month later Kingsley Harris was also

19

arrested and charged.

8.19 Falcone had for Harris, a known criminal, to bomb

Mrs Mordo because he claimed that she was blackmailing him. According to

Falcone she was an exponent of the occult and practised 'malocchio', or the evil eye. Only if Falcone made regular payments to her would she

desist from using her powers against him. 20

8.20 The case against Barone was dismissed. Frontino-Crisafulli and Falcone pleaded guilty to manslaughter and were sentenced to ten and

seven years imprisonment respectively. Harris, who had received $2,000 for placing the borrb under Mrs Mordo' s car, was convicted of murder and 'f . . 21 sentenced to 11 e 1mpr1sonment.

8. 21 The then Commissioner of Police, Mr N T W Allen, was aware of

and approved the use of illegal telephone interceptions. Retired

Superintendent D R Williams, who had been a foundation member of the TSU, described the impact of this early interception in these terms:

This success considerably enhanced the notion that in certain circumstances wire taps could produce amazingly effective information and the Commissioner was enthusiastic to me in

regard to the work on that occasion.22

The Murder of Charles Berry

8.22 Early in 1971 Charles Berry, the manager of an establishment in

. 23

Wollongong known as the Tiki Coffee Lounge, disappeared. According

to police the premises were used as a brothel. Police in Sydney and

Wollongong received information that Berry had been murdered. Berry had . 24

a partner named Anthony Malouf.

8. 23 Sydney detectives went to Wollongong to assist local police in

their inquiries. In an attempt to further the investigation it was

- 141 -

decided to place an interception device on the telephone service of

25

Malouf. The conversations thus intercepted confirmed that the

circumstances surrounding Berry's disappearance were suspicious. Further inquiries eventually led police to the three men who were subsequently charged in relation to the murder, namely Michael John MacHannigan, Peter Soffe and Ian Adrian Williamson. 26

8.24 After a trial, MacHannigan was sentenced to penal servitude for life. Soffe was sentenced to four or five years imprisonment as an

accessory and Williamson was sentenced to twelve months imprisonrnent. 27

8. 25 During the interception of Malouf's telephone conversations it was revealed that he was in regular and improper contact with two local

police officers. 01e of these officers was subsequently charged with being in possession of unlicensed pistols · and was dismissed from the 1 . f . . 28 po lee orce upon convlctlon.

Yugoslav Bombing Inquiry

8.26 After two bomb attacks directed against Yugoslav travel agencies tn Sydney late in 1972 a large police operation was set up under the

direction of Sergeant J Boyter (now deceased} . 29 The TSU was involved early in the inquiry and numerous telephone interception devices were installed. Retired Inspector K R Brown recalled being involved in the installation of between ten and fifteen devices. 30 He also remembered being told by a senior officer, perhaps Boyter or the then sergeant

D R Williams, that the then Comnonwealth Attorney-General, Senator

I Greenwood, gave the TSU the power to intercept telephones in this

31 h . . d th h 1 od matter. T ere lS no evl ence at t e ate Senator Greenwo ever knew of these interceptions or took any steps to bestow such powers on

police. The material obtained from the intercepted telephone

conversations led to the arrests of Angelo Marie and stefan Brbic. 32

8. 27 on the tapes of the intercepted conversations Ivan Galic was

overheard contacting Brbic, the leader of a Croatian group, in Perth. Soon after this telephone call Brbic flew to Sydney. The western

Australia Police were asked by NSW Police to search Brbic's horne in

- 142 -

Perth. On doing so they found a utility truck registered in Marie's name containing explosives. Further inquiries regarding Marie's whereabouts at the time of the bombings led to the arrests. 33

8.28 Angelo Marie was extradited from Perth to ::;ydney in March/April 1974 and charged in relation to the actual bombings. He was also charged with being an accessory as it was alleged that he had manufactured the bombs. At his trial in 1976 he was convicted of serious changes

concerning the bombings. The presiding judge directed the jury to acquit him of less serious charges being heard at the same time. After appeals and a second trial Marie was finally acquitted of the serious charges as well.

8.29 Stefan Brbic was committed for trial as an accessory in 1976 and the matter was adjourned pending a result in Marie's case. When Marie was acquitted the charges against Brbic were discontinued. 34

8. 30 The intercepted telephone conversations also revealed that there were plans to bonb Mr Bjedic, the Yugoslav Premier, on his impending visit to Australia. Mr Bjedic visited Australia from 17 to 22 March 1973 b th . 'd

35 . abl h 'd . ut ere was no 1.nc1. ent. sen1.or Const e J M sue y sa1. 1.n a

statement to the Corrnnission that in the taped conversations there were many references to more bombs and the destruction of Yugoslav property in

Australia. 36

'Southern Comfort'

8.31 One of the first targets of the OCI following its establishment

in October 1973 was George David Freeman, a Starting Price (SP) bookmaker who was thought by police to have connections with organised crime in the

United States of America. According to police, Freeman had regular contact with nanny Stein, an alleged American organised crime figure, who was present in Australia throughout 1976. From conventional intelligence

gathering sources police learned that the purpose of Stein's visit was to organise a network for the importation and distribution of heroin both here and in America. 37

- 143 -

8.32 Early in 1976, at the request of the BCI, the TSU installed

interception devices on the telephone services connected to Freeman's home and to premises in the southern suburb of Rockdale which were used

by him for Starting Price betting activities. Devices were also

installed on the telephone services of some of Freeman's associates. This operation was known as 'southern Comfort' and a nwnber of tapes and transcribed conversations resulting from the interception are held by the Commission.

8.33 The intercepted conversations of Freeman revealed little in the way of admissible evidence against him. surveillance officers, however,

discovered that Freeman's employees were disposing of material in garbage bins outside the Rockdale premises. The material was recovered by police and .disclosed that bets had been accepted. Telephone numbers of

associates were also discovered. This material was one of the sources drawn on by Sergeant A R Lauer in preparing a report on Freeman's

activities. 38

8. 34 The charter of the CIU (which later became the OCI) contained a

specific instruction that information concerning persons suspected of crime was to be channelled to the appropriate Sfuads or Divisions for

necessary attention 39 [see paragraph 7.17]. Lauer's

report, dated 7 March 1977, was forwarded to the Conunissioner of Police, ood f

. 40

Mr M T W , or act1on.

8. 35 From there the matter was handed over to 21 Division Special

Squad, the Squad responsible for gaming matters. However, when the SqUad

went to Freeman's Rockdale premises they could find no evidence of

SP bookmaking activities. 41

8. 36 Investigations into Freeman's activities then lapsed until he

became the subject of another operation code named 'DOncaster' , and was

indirectly involved in an operation code named 'Radish', both of which took place in 1981. These operations related to the investigation of

alleged race fixing in New South Wales. Neither of these inquiries

resulted in charges being preferred against Freeman.

- 144 -

'Crest'

8. 37 This matter corrunenced in as an investigation by NSW Police

into activities of a man named Carl Bonnett who was, according to police, deeply involved in criminal activities. An interception device was

placed on his telephone service and he was overheard talking with a man named Stirling McCallum who was urgently seeking a boat. The focus of

the inqUiry then turned to McCallum and led to Murray Stewart Riley. 42

8.38 Subsequent interception devices placed on the telephone services of Riley, Charles Reginald Parkin and Kenneth Robert nerley in January 1978 confirmed the existence of a major conspiracy to import a large

quantity of Buddha sticks on the yacht, • Anoa •. 43 In fact, the • Anoa'

importation became the subject of a joint NSW Police and Federal

. 44

Narcotics Bureau operation known as 'Crest'.

8.39 What happened thereafter has been described in the 1983 report

of the Royal Commission of Inquiry into Drug Trafficking:

The yacht and its crew had picked up 2. 73 tonnes of cannabis in

the form of Buddha sticks from Pocklington Reef (midway between Papua New Guinea and the Solomon Islands) where over four and a half tonnes of the drug had been brought from Thailand and

off-loaded by the 'Choryo Maru• ... the 'Anoa' was surveilled

closely on its way back down the Australian coast and its

unloading of the cargo near Laurieton on the north coast of New south Wales was observed by narcotics agents on the night of

9 June 1978.

Over the next few days New south Wales Police and narcotics

agents seized the cargo from where it had been stored and

arrested the crew and others who had been awaiting the arrival of the yacht at Bermagui on the south coast of New South Wales. Subsequently, ten people were convicted and sentenced to

imprisonment for various offences relating to the importation. The Royal Australian Navy recovered the remainder of the

shipment from Pocklington Reef.45

8. 40 The ten convicted and sentenced included Murray Stewart Riley, Kenneth Robert Derley, Stirling McCallum, John Lawrence, .Reinder Jan De

Graaf, Reginald Charles Parkin and Wayne Thelander who were each

sentenced to ten years imprisonment. Also convicted and sentenced were Dominic Brokenshire, Lawrence Charles Lamond and warren Porteous who

- 145 -

received sentences of eight and a half years, six years and five years

. . . 1 46 y.

8. 41 The Corrnnission has been told how the success of the 'Anoa'

operation was a high point in the effectiveness of the illegal telephone interceptions and brought 'so much attention' to the TSU. 47 sergeant A J Jones stated that without the interceptions there would have been

only a very remote chance of bringing the conspirators to court. 48

Sinclair, Fellows and Hayward

8. 42 This matter provides another example of an investigation which

was not directed initially at the persons who were ultimately arrested.

In this case the telephone interception culminated in the arrest of

William Garfield Sinclair, warren Edward Fellows and Paul Cecil Hayward in Thailand on 11 October 1978. 49 Police had installed a telephone

interception device on the telephone service of an alleged criminal, Arthur Stanley 'Neddy' Smith, in an operation known as 'Diner•. 50

8.43 By listening to Smith's conversations it was learned that Smith

was organising and financing a heroin importation from Thailand. The

names of Sinclair, Fellows and Hayward as well as others involved were . h . . d' d 51 1' mentioned and of t e were . NSW Po 1ce

passed on the information to Thai authorities and Sinclair, Fellows and Hayward were arrested in Bangkok and charged with possession of 8. 4

kilograms of heroin for which all three were convicted. Sinclair

appealed and was granted a new trial.

. d 52 acqu1tte .

On 24 January 1983 he was

8. 44 en 12 October 1978 Smith and an associate were arrested in

Sydney on charges of conspiracy to import heroin from Thailand, together

with Deborah Bell and Gregory Sinclair. smith and the associate were

committed for trial and the charges against Bell and Gregory Sinclair . . d 53

were .

8.45 Smith's step-brother, Edwin William 'Teddy' smith, was arrested on 28 October 1978 and charged with possession of heroin, to which charge

- 146 -

he pleaded guilty. He gave police details of the Thai conspiracy and was called as a Crown witness at the trial of 'Neddy' smith and his

associate. 01 the second day of the trial, his Honour Judge Muir,

directed that Smith and the associate be acquitted. 54

Morgan John Ryan

8. 46 The fi,rst step in the path which eventually led to an

investigation into Morgan John Ryan was an inquiry by NSW Police into a suspected drug dealer in the Cronulla area. The suspect was very

cautious and dealt only with regular associates making it difficult to detect specific transactions. A request by local police for surveillance assistance resulted in officers from the BCI assisting in the Cronulla inquiry for two or three days. se11ior Constable L s DOnaldson, who was stationed at Cronulla, arranged premises for the use of BCI officers but heard nothing of the progress of the matter other than that the inquiry had moved to Mosrran . He suspected that this change in location of the surveillance may have occurred as the result of information gained during

the course of a telephone interception. 55

8. 4 7 DOnaldson's belief that the suspect's telephone conversations were intercepted was correct. An interception device was subsequently placed on the telephone service of a suspected drug dealer at Drurrmoyne which in turn led to the surveillance of a certain Dr Ted Krauss. It was apparent from intercepted telephone conversations that Krauss knew he was being followed by police.

56

A tracking device was then attached to his

motor vehicle but some hours later the signal it had been emitting

ceased. Krauss was seen returning from Clifton Gardens, and a search by police divers later found the tracking device in the harbour in the

Clifton Gardens area. 57

8.48 The interception revealed that Krauss had conversations with

persons named Roy Bowers cessna and Bruce Emile Aitken. Krauss was very guarded when speaking on the telephone to Cessna and Aitken. Because

little information was forthcoming from the interception of Krauss's telephone conversations the TSU then placed an interception device on h

. 58

Cessna's telep one

- 147 -

8.49 Following this installation Cessna was observed meeting Timothy Lycett Milner in the car park of a shopping centre in Lane Cove. Milner was identified by police from records of a company from which he had

rented his motor vehicle. A day or so later, on 14 March 1979, Milner

was observed by police outside Cessna's home loading metal trunks into

Cessna' s car. . Later the vehicle, driven by Cessna with Milner as a

passenger, left the premises. The BCI arranged for a highway patrol car to stop the vehicle. The highway patrol officer found drugs in the car

and called in Drug Squad officers who arrested Cessna and Milner.

Approximately 137 kilograms of Buddha sticks were seized. 59 Ultimately

this matter came before the Chief Stipendiary Magistrate Mr M F

Farquhar. Milner was sentenced to eighteen months imprisonment and served approximately six months before being deported, while Cessna was fined and placed on a bond to be of good behaviour.

8. 50 The interception of Cessna's telephone service was not

terminated immediately and shortly after his arrest conversations between him and a solicitor, Morgan John Ryan, were intercepted. 01 18 March

1979 the BCI requested the TSU to install an interception device on the

telephone service connected to Ryan's home. 60 This operation became known as 'Mad nog• 61 and according to several police witnesses,

continued until about April 1979. 62

8.51 Early in 1980 the interception of Ryan's home telephone service resumed. The reasons for the resumption are not clear from the evidence

before the Commission. This interception and associated activities were known as operation 'Rabid'. Sergeant J B Meadley, on behalf of the BCI,

leased a flat in the name of Jack Bradford in Baden Road, Neutral Bay,

near Ryan's home between 25 January and 23 June 1980.

63

A tape

recorder was installed in the flat and tapes of recorded telephone

conversations were often transcribed there soon after removal from the recording machine. some of the conversations were listened to as they occurred. Members of the BCI resided at the flat for most of the time;

at other times the machine was switched at night to an automatic mode. By this stage members of the TSU had developed voice-activated

. 64 [ h 7 66] equ1.pment see paragrap . .

- 148 -

8.52 This second operation was terminated in mid 1980. BCI officers

told merrbers of the TSU this was because of a 'lack of worthwhile

intelligence'. 65 Sergeant A Hawthorn told the Commission that member s of the BCI and TSU involved in eperation 'Rabid' were 'upset about it

being terminated•. 66

8. 53 Ryan's home telephone s ervice was again intercepted early in

1981. on this occasion interception was effected by the TSU at the

request of and on behalf of the AFP. The circumstances of the AFP

involvement are dealt with in detail in Chapter 10.

8 .54 Sergeant G P smith recalled that the interception was installed

by himself, Hawthorn and another TSU officer whose name he could not

r emembe r:

We went to the pillar which served both Ryan's premises and the premises that Jock {Hawthorn) had selected as an observation post or whatever. Being a common pillar it was a relatively

simple matter to bridge Ryan's line to a spare line running into the flat t hat had bee n selected as an observation post. We

organized the bridging process in the pillar and installed

recording and intercept equipment in the observation flat.67

8.55 The tapes of recorded conversations were trans cribed at the flat which s erved as the observation post and the transcripts were taken fi rst

to t he TSU and then t o the BCI. Hawthorn or another office r de livered

duplicates of the tapes t o I nspector P J Larrb of the AFP or in his

absence to another AFP officer. 68

8.56 A number of tapes a nd transcripts r esulting from the three

operations described above are in the possession of the Commission [s ee paragraph 6.3].

'A Dazzler'/'Jordan'

8. 57 On 21 !1ay 1979 the Victoria Police commenced an investigation

which they named operation 'Jordan'. An informe r had told Sergeant

J A Wal s h of the Victoria Police that a person named Ronald Lopes Dias, a

British citizen living in Sydney, was involved in illegal gaming

- 149-

operations in New South wales and was responsible for the coordination of SP bookmaking in Victoria. It was suggested by the informer that oias

was using a retail sales business for the purpose of distributing illicit

drugs. Walsh and Sergeant A W Graham of the Victoria Police conducted inquiries in Sydney to verify the information. 69 After further

discussions in Melbourne Walsh and Graham returned to Sydney on 3 June 1979 where they booked into a private hotel opposite oias's premises in

Bayswater Road, Kings Cross. From this vantage point they conducted

' ll 70 surve1 ance.

8.58 The Victoria Police OCI regarded the members of the TSU as

honest and dedicated and liaised directly with them during the course of th . 71 e operat1on. The TSU assisted with routine police inquiries, such as car registration checks. Later they provided help with a telephone

72

interception and code named the operation 'A Dazzler'.

8. 59 On 10 June 1979 at the request of the Victoria Police conducting

the inquiry the TSU installed an interception device on the telephone service of Dias. The following day the Victoria Police returned to

Melbourne and thereafter were sent tapes of intercepted convers ations

and a copy of a transcript of these conversations by air courier.

73

Retired Inspector K R Brown of the NSW Police told the Commission 'if (the Victoria Police) gave us a job to do and we had to have expenses,

they would send us the expenses, and I would very much assume that that ed h . . ' 74 occurr on t 1s occas1on

8. 60 'IWo rronths later the operation came to an abrupt end when the

flat containing the equipment used to record the intercepted telephone conversations was raided by the Gaming Squad of the NSW Police under the direction of Inspector M Beck. 75 The Squad was looking for an illegal casino whid1 operated elsewhe re in the building.

8.61 A private inquiry agent, Guy Keegan, told a member of the

Victoria Police that he had been approached by Colin Clough, an employee of Dias, to investigate an attempted bugging of premises in Bayswater Road, on behalf of his principals oias and a notorious criminal,

76

Frederick Charles 'Paddles' Anderson. Clough told Keegan that two

- 150 -

months previously a rran had leased a flat in the building and had paid

rent in advance for two months. This man's behaviour aroused the

suspicions of Dias and Anderson who entered the flat and found various pieces of telephone interception equipment wired to the office of their company, Poda Enterprises Pty Ltd which was situated in the · same

b 'ld' 77 u1 1ng.

8. 62 According to Keegan, Clough said that after sane discussion

between Dias and Anderson, Dias telephoned several people and said that

an illegal game would take place at 6/26 Bayswater Road. He changed the

numbers on the doors of flats in the building so that the flat containing

the tape equipment appeared as Flat 6. The result was that police

attached to the Gaming Squad raided 'Flat 6' and discovered the

electronic devices. When Dias asked the police if the equipment was

theirs, they said no, and Dias took possession of the equipment. 78

8. 63 Dias hired a second private inquiry agent named Galli Ripka, a

former member of the NSW Police to investigate this matter. 79 Ripka

discussed the rratter with a former colleague, Chief Investigator

J A Travers of · the Federal Narcotics Bureau who was also a former member

of the NSW Police. Through his inquiries Travers learned that the person 80

who had leased the flat was a Mr Brown of Campbell Street. AssUffilng

this was Sergeant K R Brown of the TSU, Ripka and Travers met with Brown at the TSU offices in Campbell Street. Brown denied that the equipment which had been found in the flat was TSU equipment and suggested that it 81 belonged to the AFP.

8.64 From this meeting it appeared to Brown that Dias was more

perturbed at the thought that it rray have been other criminals rather

than police intercepting his telephone conversations. According to Brown there was an underlying suggestion that if the interception had been

carried out by NSW Police Dias would have been able to 'get the matter

f . d' 82 1xe .

8.65 Members of the Victoria Police gave evidence that during the

short period of this interception it was established that Dias had

business associations with alleged criminals in Sydney and with alleged

- 151 -

mafia figures in America. According to Graham, it also appeared that

Dias had a relationship with a NSW Police officer which indicated

corruption. 83 Graham told the Commission that from the intercepted conversations it was learned that Dias conducted an SP bookmaking system and that he had corrupted a Telecom officer for this purpose. 84 The

Corrunission was told that the Telecom employee diverted Royal Australian Navy telephone lines at Garden Island DOckyard to Dias 's SP premises

during weekends when fewer lines were needed at the DOckyard. The lines were restored to the Royal Australian Navy on sunday nights. The Navy

unknowingly provided the telephone lines and paid the bills. Brown

stated that this type of transference of telephone lines is a very

straightforward task for a technician. 85

8.66 No charges resulted from the operations. Dias and his wife left

Australia for the USA on 4 July 19&4. He now resides in New York City

where he has permanent resident status. 86

'Alpha'

8. 67 Operation 'Alpha' was the first operation undertaken by the

JTF. 87 1 Alpha 1 was an investigation into a group of drug traffickers

h . . h . . 1' 88 w o were 1mport1ng ero1n 1nto Austra 1a.

8.68 Conventional

informers and an

principals, Desmond

methods of inquiry, the use

undercover police officer, had

Bennion and Kenneth Harrison,

of surveillance, identified t he involved in the

importation and how they distributed the heroin, but police could not determine the way in which the drug was imported.

89

Approval for the

installation of an illegal telephone interception device was therefore obtained from the NSW Police.

8. 69 From the intercepted telephone conversations police learned of another principal, Bernard Lewis Moore, who was posting letters

containing heroin, which he had previously carried from Thailand to

Malta, and then from Malta to Australia., 90 His IT'ethod was to post the

letters to the addresses of those involved in the conspiracy with

- 152 -

fabricated names appearing as addressees on the envelopes so that the actual recipient, if searched by police after collecting the mail, could claim that the addressee was unknown to the recipient, who intended to return the envelope to the sender. 91 .

8. 70 Armed · with this information police were able to arrest the

principals and the persons who collected the mail within a month of the installation of the interceptions. 92

8. 71 on 24 September 1979 eight people were charged with a conspiracy to import heroin. Upon conviction two were placed on good behaviour

bonds ( Kerrie Anne Eckford and Lynette Pamela Bennion); two were given

sentences of eighteen months imprisonment (Wilma Mary Tyson and Cassandra Van Dyke); one received two and a half years imprisonment (Terry John

Williams) and another a sentence of three years imprisonment (Barry John

Bennion). The principals, Desmond Bennion and Kenneth Harrison, were

each sentenced to twelve years imprisonment. 93

8. 72 Bernard Lewis Moore was extradited from Malta and charged with 'Counsel importation of prohibited import (heroin)' and was sentenced to

imprisonment for thirteen years. 94

'Charlie'

8 . 73 Earlier interception operations carried out at the request of

the JTF, which were in themselves unsuccessful in terms of arrests, led to JTF interest in Roger Lyons (also known as Lianos) and an interception device was installed on Lyons's telephone at his home in Drummoyne, a Sydney suburb.

95

No charges against Lyons resulted, but from the

intercepted conversations police learned of Peter Julian Ernst, reputed by police to be one of the first to import a large quantity of cocaine

into Australia. 96 Ernst was arrested on 22 November 1980 for attempting to leave the country in possession of an amount of currency in excess of limits imposed by the Banking Foreign Exchange Regulat:j..ons. He was convicted subsequently and fined $2,500 and the money he had attempted to take out of Australia was forfeited to the Crown. 97

- 153 -

8. 74 Ernst was allowed bail between the time of his arrest and the

time he was sentenced and during this period an interception device was placed on his telephone service. While a possible inference that can be drawn is that police wanted forewarning of his defence, a police witness

claimed that the interception was installed in the hope of obtaining

information about the source of the ITPney found in Ernst's possession, which was believed to be profit from the sale of cocaine previously

irrported by him. Investigating police believed that Ernst was a member of a large-scale cocaine import/export operation. Another reason

advanced for the installation of the interception device was to enable

police to gauge the reaction to Ernst's arrest by his associates

abroad. 98

'Bravo'

8. 75 In August 1979 the JTF carried out an operation code named

'Bravo' which concentrated on Ernest John Riley, a suspected heroin

importer, which did not however result in charges against him. 99

8. 76 Riley lived oo an isolated property near Narellan, south of

SYdney, which made close surveillance of the property ve ry difficult.

Criminal informers had been of no use and attempts to infiltrate Riley's distribution network with undercover agents had also failed. The police did, however, gain information that Riley associated with a man called . . . . h h d . lf . d d k . d lOO L d Danny RlCClUltl w o a a gH r1en name Jac 1e Ley on. ey on led the police to Charles Losurdo (who is also known as Charles Lowe). Police suspected that Losurdo and another man named Frank Azzopardi were

d . h . d. . b t . t k

101

con uct1ng a ero1n 1str1 u 10n ne wor .

8. 77 Because the operation was not making satisfactory headway, in

late April 1980 a senior JTF officer requested the TSU to place an

interception device on Riley's telephone service. However, it proved impossible to install the device. Subsequently in early May 1980 an

interception device was installed on Losurdo's telephone service. 102

8.78 By means of the intercepted telephone conversations it was

learned by the investigating police that a meeting had been arranged

- 154 -

between Losurdo, Azzopardi and Leydon at a home unit situated in

Edgecliff. 103 Leydon was followed to the meeting by surveillance

officers where detectives subsequently arrested Leydon, Losurdo and Azzopardi who were in JX>SSession of a substantial quantity of heroin, which police alleged was carried to the unit by Leydon. 104

8. 79 All three were charged with a conspiracy to supply heroin.

AZzopardi died before coming to trial. Leydon was tried twice and

finally acquitted in 1985. Losurdo was sentenced to six years

imprisonment including six months hard labour for possessing an

unlicensed pisto1. 105

'Bridegroan'

8.80 The search for Raymond John Denning, who on 2 April 1980 had

escaped from Grafton gaol where he was serving a life sentence for

malicious wounding with intent to murder, was given the code name

'Bridegroom'. During the nineteen months that he was at large NSW Police made several unsuccessful attempts to recapture him. Occasionally

illegal telephone interceptions were used to aid in the search. sergeant G W Beaumont gave evidence to the Canmission of one surveillance operation which involved telephone interceptions some eight to twelve months before Denning was recaptured. 106

8. 81 Late in 1981 an informer told Senior Constable R G Harvey that

Linda Ruth Jobson, Denning's de facto wife, was to visit her sister at Pelican Street, swansea in the Newcastle area. 107 After a conference with Superintendent B Blissett and Inspector R P Morrison, Harvey went to Newcastle where he conducted investigations which indicated that the

. f . 1 " abl 108 h h f . th ed t 1n ormat1on was re 1 e. T e searc or oenn1ng en mov o swansea. All of the BCI Surveillance Squad operatives were used in

operation 'Bridegroan', and sergeant G N McDowell and Harvey became the . . . . h 109 JOlnt Off1cers 1n c arge.

8. 82 An interception device was installed on the telephone service

connected to Jobson's sister's home. Except for a short interruption due to technical difficulties, telephone conversations passing over this

- 155 -

service were monitored for twenty four hours each day from a van situated llO near the house. Jobson was overheard telephoning her sister in

Pelican Street to tell her that she was going to visit her for a couple

of days and they arranged to rreet at Broadmeadow Railway Station. The conversation ended with the sister saying 'love to Jack'. 'Jack' was the name by which Jobson and her sister referred to Denning. 111

8.83 Jobson was then placed under constant surveillance and was

followed to Sydney where she boarded a hydrofoil bound for Manly. Jobson was followed by police officers. Denning arrived at Manly Wharf to rreet ll2 Jobson and was apprehended.

8.84 Denning was returned to custody to continue his previous

imprisonment. He received further sentences for escaping from lawful

custody, arrred robbery and possessing an unlicensed pistol.ll3 As a

result of the intercepted conversations police were able to locate a

h . . ed b . ll

4 b . ed f cac e of weaponry munta1n y oenn1ng. Jo son was conv1ct o

offences of harbouring an escaper and having goods ($1000 in cash) in her custody reasonably suspected of having been unlawfully obtained. For this she was fined and placed on a bond. 115

'Lucerne'

8,85 Operation 'Lucerne', an inquiry into the affairs of Robert

Trimbole, emanated from a major investigation in the early 1980s by NSW

Police into alleged illegal activities of certain rrembers of the Italian community including suspected involvement in drug trafficking. Trirrbole

had been identified by the WOOdward Royal Commission as a person involved in the marijuana trade and was investigated by the BCI because he was a prime suspect in the murder in July 1977 of Mr Donald Mackay, a

businessman of Griffith, New south wales. 116

8,86 Trimbole was kept under physical surveillance by officers of the BCI for some time. It appeared to these officers that Trirrbole was

always aware of police presence and took effective counter surveillance 117 measures.

- 156 -

8.87 In March 1981 an interception device was installed on the

telephone service connected to Trirrbole's house at Cabramatta. The intercepted conversations were reco.rded on equipment placed in the boot of a vehicle located near Trirnbole's house.

8. 88 usually the TSU officers removed the tapes of the intercepted

telephone conversations from the vehicle on a daily basis or the vehicle 118

itself was driven away and another stationed in its place. It is

possible that Trimbole had observed this procedure. BCI officers

believed that Trimbole used a radio scanner to intercept police radio communications and thus became aware of police actions. 119 They also

believed that a police officer awaiting trial for an offence relating to drug dealing had been providing information to Trimbole regarding

surveillance vehicles used by police. 120 Their suspicions were also aroused by intercepted conversations which Trimbole had with another l . ff ' ab h .

121

po 1ce o 1cer out t e same t1me.

8.89 Not only was Trirrbole aware he was being followed, he also

appeared to be aware that his telephone conversations were being

. d ' l' 122 ds ld h 1ntercepte oy po 1ce. Former Sergeant J J See man to t e

Commission that on 5 May 1981 Trimbole told him that he was being

followed and that his telephone was 'off', meaning that his conversations were the subject of interception. 123

8. 90 'IWo days later Trirnbole departed for Rome from Sydney

Airport. 124 The final entry of the 'Lucerne' transcript is dated 6 May

1981, the day before Trimbole left Australia.

'Stamper'

8.91 In 1981 the Special Breaking Squad of the NSW Police was

investigating a case involving a number of postal employees who were suspected of selling tax and ·postage stamps which had been stolen from Post Office safes. Unable to gain sufficient evidenqe against all

participants in the thefts by usual methods, the investigators sought assistance from the TSU. This operation was code named 'Stamper' and in

- 157 -

April 1981 an interception device was installed on the telephone service connected to the home of Ronald Albert Dawson. 125

8.92 Although several of the offenders were known to the Special

Breaking Squad the name of one, John Thomas Ivill, was revealed only

through the intercepted telephone conversations.126 On 17 July 1981 Ivill and Dawson were arrested after Dawson was overheard arranging to see someone who was to hand over to him a sum of money. 127 Three other

offenders, William Arthur Bush, Arthur William Bland (also known as Les Lang) and Ernest Donald Newman, also were arrested. 128

8.93 Ivill, Dawson and Bush were sentenced to twelve months periodic detention and ordered to pay compensation to Australia Post. Newman received six months periodic detention and also wa s ordered to pay

compensation to Australia Post. Bland, who had broken into the safes

from which the stamps were stolen, was sentenced to three years hard

labour. 129

'Aura, Pickaxe and Snooker'

8. 94 cperation 'Aura' began in January 1982 as an inquiry by the

Victoria Police BCI into the activities of Danny Francis Mcintosh and Laurence Joseph sumner, two Melbourne criminal identities suspected by

police of being engaged in the distribution of heroin. The following

month they were arrested and charged. 130

8.95 According to sergeant G J Barnett of the Victoria Police, sumner and Mcintosh sometimes negotiated bulk purchases of heroin with a man

named Terrence Flannery. In turn Flannery was allegedly supplied by a

woman based in Sydney known as 'Rose', later identified as Alice Einm3.

who was believed to be the operational head of the importation

syndicate. 131

8. 96 In an effort to obtain assistance from police in New south vvales

a meeting was arranged between senior officers of the AFP, the Victoria

Police and the JTF. At this meeting it was discovered that there was an

- 158 -

overlap between operation 'Aura', a JTF operation code named 'Snooker' into the activities of 'Rose' and Henry Landini, and another AFP

operation code named 'Pickaxe' which concerned rx:mald Stanley Thompson 132 and Merle Thompson.

8. 97 The Victoria Police were having difficulty locating two members of the syndicate. TO assist them in this regard TSU personnel installed an interception device on wardell's telephone service on or about 2 July 1982. Although the JTF was in a position to obtain a warrant for the

legal interception of the service, Chief superintendent P A G Lawrence of the NSW Police, who was then attached to the JTF, stated that he

supported using an interception device illegally as the matter was

urgent. A legal interception on wardell's telephone service was effected one week later, on 9 July 1982. 133

8.98 Neither the legal nor illegal interceptions resulted in valuable intelligence in this inquiry. Through traditional methods of

investigation Henry Landini, Alice wardell, DOnald Thompson and three associates were arrested on 19 July 1982 and charged with conspiracy to supply heroin. Merle Thompson was charged on 9 August 1982. 134 All

were convicted. No charges were laid against Terrence Flannery as a

result of this operation. 135 Although the legal interception and the

arrests took place in July, the illegal interception was in place until 136 30 August 1982. No explanation has been given for this extended

t 1·me . d 137 per1o .

California Connection

8. 99 BCI involvement in the 'California Connection' operation came

about following a request for assistance from the NSW Police Drug Squad. Sergeant J E Wooden was Officer in Charge of the operation. In early

April 1982 an interception device was placed on a telephone service

138

connected to the home of John Weir at La Perouse, Sydney. According

to Wooden, members of the Drug Squad had observed many people coming and going at that address and they had noticed cars parked outside with

139

Californian number plates.

- 159 -

8.100 The two major targets in this operation were John Weir and Julie Karen McQuaid. w:>oden told the Corrunission that a decision was rrade to concentrate on these two persons rather than arresting their many

. t d th b al t. th t th 1' t. 140 assoc1a es an ere y er 1ng em o e po 1ce ac 10n.

8.101 Information obtained from the tape recordings of intercepted

telephone conversations indicated that John Weir was planning to import a large shipment of drugs into Australia. In this context he had telephone conversations with a person then living in California.

8.102 It was noted by police that a person named :oavid D:ly frequently telephoned Weir and McQuaid. Because of the suspicious nature of nay's calls an interception device was installed on the telephone service

141

connected to his home at Pagewood. According to Wooden useful

information was gained from the intercepted conversations and passed on to the Drug Sg:uad who were able to make a nurrber of minor arrests. .Arrong other things it was learned by police that some residents at premises in Bondi were involved in drug dealing. These premises were placed under surveillance and as a result some significant arrests were made including

that of David 'Butch' Hemana on 28 April 1982. 142 He mana was found in possession of about one kilogram of cocaine and charged with conspiracy to supply cocaine and was later sentenced to seven years

. . 143

1mpr1sonment.

8.103 By means of intercepted telephone conversations between John Weir and a real estate agent it was discovered that Weir was planning to move from La Perouse to a flat at 15 Ocean Street, Bondi.

144

An

interception device was placed on weir's telephone at the Ocean Street flat. 145 w:>oden told the Commission that he then arranged the rental of a flat at 20 Ocean Street so that 'static surveillance' of Weir could be undertaken. 146 Police at the Ocean street flat were able to listen

h d b

. . . d . 147

to conversations as t ey occurre y us1ng a mon1tor1ng ev1ce.

8.104 It was learned from the intercepted telephone conversations that Weir and his associates regarded premises at 35 O'Sullivan Road, Maroubra as a 'safe place' for drugs. en 23 June 1982 Sergeant G w Beaumont

- 160 -

followed McQuaid to the house in Maroubra and watched her bury something in the front garden. After she left Beaumont found a plastic bag buried in the garden. He then reburied it and telephoned Wooden who placed the house under surveillance.

148

8.105 The next evening McQuaid,

arrived at the address. Day was

David Day and two other females

seen digging up something in the

garden. Police then arrested McQuaid and Day who were charged with the l d . f h . 149 h ub 1 . d supp y an possess1on o erom. Bot were s sequent y conv1cte d t d

. . 150

an sen ence to seven years 1mpr1sonment.

8.106 Weir was never arrested and, in fact, left Australia in about

August 1982. According to Wooden the telephone interception ceased in

September 1982, about a m:::mth after Weir left the country and three

months after the arrests of Day and McQuoid. 151

The Chinese Robberies

8.107 During the latter part of 1982 and up to August 1983 there was a

number of armed robberies at the homes of members of the Chinese

community in Sydney. A number of safe robberies also occurred at Chinese

d . h ' . d 152 restaurants ur1ng t 1s per1o .

8.108 Early in 1983 sergeant R B Smith and Constable G w Kendall, both of the Breaking Unit, Major Crime Squad, began an inquiry into the

robberies. Investigations led police to a rran named Ching Hung Ng who was suspected of being involved in the robberies but there was

insufficient evidence to connect Ng to the crimes. 153 Disturbed by the lack of progress and the risk of more of these crimes being committed

Smith discussed the rratter with Sergeant K R Conwell, Officer in Charge

of the Breaking Unit, and requested the use of surveillance, including 1 h

. . 154

te ep one 1ntercept1ons.

8 .10 9 Conwell then took the rra tter up with Inspector L Noonan who

agreed that a telephone interception could help the investigation and sought approval from Superintendent R c Shepherd of the BCI.

155

- 161 -

Subsequently on 16 August 1983 an application was made to install an interception device on the telephone service connected to the home of Ng at Lane Cove. This was carried out by officers of the TSU on 23 August

1983 and continued to 6 September 1983. 156

8.110 conver9ations identifying several overheard on Ng's

of his associates and

telephone assisted on 5 Septerrber 1983

in

a

successful application was made to place interceptions on the telephones of Chi Cheung and Pak Tang. 157

8.111 According to Senior Constable J s Davidson, the information

gleaned from the tape recordings of intercepted conversations confirmed that the suspects were involved in the offences against the Chinese

community. Police also learned the identities and addresses of several

other suspected co-offenders. FUrther inquiries made of Interpol

revealed that these people were known criminals who had been involved in 158

bank robberies, shootings and other serious crimes in Hong Kong.

8.112 The investigation culminated in several raids on 5 October

1983. As a result Cheung was arrested and charged with one count of

possession of a shortened firearm and two counts relating to custody of stolen goods. Ng's premises were also searched. He had been arrested by h 1 . k . 1

159 b tl ot er po 1ce on a separate matter a wee prev1ous y. su sequen y

he gave evidence in the prosecution of Danny Siu Wing Tam who had been

charged with six counts of armed robbery and other offences, including . 160 ch d . 1 t. t possession of a f1rearm. Tang was arge 1n re a 10n o a

. h h 161

shortened firearm which was located at his home dunng t e searc .

His girlfriend, named Tuyet Le, was arrested and charged with having 162 custody of stolen goods. Danny Mok was charged with possessing an

1 . d . 1 d 1 ds .

163 h ' 1 . . y h d un 1cense p1sto an sto en goo w 1 e K1m Mlng u was c arge

. b 'b 164 with custody of stolen goods and offer1ng a r1 e.

8.113 According to Senior Constable G W Kendall the armed robbery and safe robbery offences against the Chinese community ceased after the searches conducted on 5 October 1983. 165

- 162 -

'Goliath'/'Gorilla'

8.114 On 30 July 1983 four prisoners escaped from Jika Jika, the

maximum security section of Pentridge Gaol in Melbourne. According to

Sergeant A W Graham of the Victoria Police an informer told Victorian police officers on 2 November 1983 that Robert Wright, one of the

escapers, was travelling to Sydney by car that night where he was to be harboured by Christopher Dale Flannery. 166

8.115 Graham led a team of four Victorian detectives who flew to

Sydney the same night. Up to this point Graham had liaised informally

with Sergeant R Kilburn of the TSU. He said that for security reasons he did not wish to inform the NSW Police officially before • s

arriva1. 167

8.116 Due to a mechanical failure of the aircraft and incorrect

information concerning Flannery's address the Victorian police arrived at Flannery's address later than the estimated time of Wright's arrival. Preliminary investigation and surveillance at Flannery's address failed to establish Wright's whereabouts. At this point Graham sought the

'general technical assistance' of the TSU. In a statement to the

Commission Graham said 'I did believe however that any assistance given

by the technical support group would be a telephone intercept•.168

8.117 An interception device was installed on the telephone service connected to Flannery's horne at Arncliffe. 169 The operation was code

named 'Goliath • by the Victorian BCI and 'Gorilla • by the NSW BCI.

According to Graham arrangements were made whereby a copy of the

transcript of intercepted conversations would be forwarded to him in Victoria by the TSU. No information concerning Wright was obtained from the intercepted telephone conversations. After one week, when it seemed clear that Wright was not there, Graham told Kilburn not to forward

any more transcripts. some time later all four escapers were

recaptured. 170 The interception of Flannery's telephone conversations by NSW Police continued until 30 November 1983. 171

- 163 -

'Slim'

8.118 A telephone interception device was installed in the course of

• I 1' I 172 •

operat1on S 1m , an investigat1on into the activities of DOnald

Alan Reynolds who was suspected by police of involvement in drug

d . t ' b t' 173 Sh 1 1 th th 1s r 1 u 100. Sergeant G el ey to d e Commission that e Organised Crime Squad had received inforrration that Reynolds was dealing in large amounts of hashish and heroin. 174 Reynolds was also reported to be associating with Murray Stewart Riley, a known drug offender. 175 Reynolds had been observed by police meeting Riley on a number of

occasions when Riley was out on day leave from LOng Bay Gaol. Police 176

then commenced physical surveillance directed at Reynolds.

8.119 Shelley told the Commission that Reynolds became aware of the surveillance and it was decided after discussion with senior officers to place an interception device on the telephone service connected to

ld I h 177 h' • • d 30 embe Reyno s s orne. T 1s 1ntercept1on commence on Nov r and continued until 16 December 1983. 178

8.120 Superintendent J F Foster stated that because of the importance of the drug syndicate implicated in operation 'Slim' he approved the

application for the interception of Reynolds's telephone service in his capacity as superintendent in Charge of the BCI. 179 He said that he

did not seek a legal interception by the AFP because of the urgency of

the rratter. 180

8.121 The interception equipment was placed in a Telecom pit near

Reynolds's home. constable P T Lowe stated that the equipment was

removed after heavy rain flooded the pit. The equipment had to be

removed because Telecom officers would probably have detected it when

they attended to remove water from the pit. After Telecom officers had carried out this work the interception device was reinstalled on

28 December 1983. 181

8.122 Shelley stated that Reynolds became aware of the second

interception before any useful inforrration had been obtained. He said that in one intercepted conversation Reynolds was heard to say ' .•. the

- 164 -

phone is off . 182 I 've notified Telecom, they' 11 be here soon' . soon

after, on 3 January 1984, Telecom removed the transmitter from the

"t 183 pl. •

8.123 Shelley stated that other than information concerning Reynolds's associates 'no ... useful information was obtained as a result of these

1 f 1 • 1 184 un aw u 1.ntercepts .

'Papa Delta'

8.124 One of the last occasions on which a telephone interception was used illegally was late in 1983 during an operation code named 'Papa

Delta'. This operation led to the arrests of several persons. Names are not included in this summary because court proceedings are still in

progress. An informer had told police that the targets of the operation 185

were supplying heroin on a large scale.

8.125 sergeant J I Steer, Officer in Charge of the Drug Unit, Regional Crime Squad South, sought the assistance of the BCI which then supplied physical and electronic surveillance. 186 An interception device was 187 placed on the telephone service of one suspect.

8.126 Steer stated that the transcripts of these telephone

conversations included many references to 'White Paint' and 'Kegs'. Police believed that these were cryptic references to heroin. DUring the course of the operation the interception device was moved to the

188

telephone service of one of the other suspects.

8.127 On one occasion police officers rronitored this suspect's

conversations from a vehicle parked nearby, using an FM radio receiver, and overheard arrangements being made by the suspect for the sale of a 1 . h . 189 re at1.vely small amount of ero1.n.

8.128 Because the detectives did not want to alert the suspect to the

fact that he was the subject of a BCI operation they arranged for

uniformed police to stop the purchaser's vehicle and make a routine check for defective parts. The search located the heroin and he was arrested

and 190 charged. He was

- 165 -

later acquitted. According to Constable

G W Vickers police did not immediately arrest the suspect whose telephone service was the subject of the telephone interception operation as they believed he had a large supply of heroin which they wanted to locate.

They also hoped to learn the identity of his supplier. 191

8.129 According to Steer he was informed by the officers of the OCI

and TSU that it was not possible for this interception to continue

indefinitely nor could one be reinstalled on the first suspect's

telephone service. He said it was therefore decided to wind up the

matter by conducting searches at a number of houses. 192 This action

resulted in the arrests of four persons in late 1983 on a variety of

charges including the supply, possession and use of heroin, and having goods in custody suspected of being unlawfully obtained. 193 01e person was acquitted, another failed to appear, two others were convicted and the fourth is awaiting trial. 194 The target of the interception

operation described in paragraph 8.126 was not arrested at this time.

Incidental Matters Arising From Unlawful Telephone Interceptions

8.130 Some of the operations in which unlawful interceptions of

telephone conversations were used have been described above. These operations provided details of the varying degrees of effectiveness of these interceptions in contributing to the arrest and conviction of

persons the targets of those operations. In some of the operations, the interception directly led to the arrest of persons who were subsequently convicted of offences. These persons may never have been apprehended or convicted had the unlawful telephone interceptions not been carried out.

8.131 As it is not within the terms of reference of this inquiry to

investigate and establish the nature of the connection between an

unlawful interception of telephone conversations and a conviction of a person flowing from such an interception, the Commission has not set out to inquire into the circumstances of the trials connected with the

interceptions, of which evidence has been given to the Commission. Accordingly, the Commission is not in a position to make any findings

- 166 -

concerning the number of convictions which have resulted from the

unlawful interception of telephone conversations.

8.132 It is clear from the information provided to the Commission that evidence of the fact of the use of unlawful interception of telephone

conversations was never adduced in trials of persons apprehended in operations in which interceptions were used. This was largely because the police were not about to expose their illegal activity and generally the Crown case consisted of evidence gained independently of the

interception. Nevertheless, the Commission is satisfied that in a number of cases convictions would never have occurred if the use of unlawful

telephone interceptions had not exposed the pending commission of an offence or revealed the identity of an offender. When asked while giving evidence to the Commission, police witnesses said that they had not

informed Crown Prosecutors of the use of unlawful telephone interceptions during the trials of any persons whose arrest had resulted from

unlawfully intercepted telephone conversations. 195

8.133 DUring the currency of the hearings of the Commission, its

attention was drawn to the fact that trials were then pending of persons who had been arrested during operations in which unlawful telephone

interceptions had been carried out. Police witnesses had indicated that they had not, up to the time of giving evidence to the Commission,

revealed the use of the unlawful telephone interceptions to the

. h . . 196 h . . k th . th t th prosecu t1ng aut or 1 t1es • T e Comm1ss1on too e V1f!¥V a e authorities should be informed of the telephone interceptions, in order that they could assess whatever significance they may have in the context of the particular issues of the trial. The Commission accordingly

communicated with those authorities to that effect.

8.134 There are two broad issues which arise for consideration in

relation to convictions of persons who only came to the attention of

police or who were only apprehended by virtue of the use by police of

telephone interceptions in breach of the law. cne issue surrounds the

propriety or morality of a conviction in the circumstances. The other concerns the legal consequences of Crown evidence stemming from an unlawful telephone interception. The answer to the first issue is not

- 167 -

difficult. By all current standards of justice and fairness it is

clearly intolerable that J;:>ersons may be brought to trial as a result of activity of police officers which is flagrantly in breach of the law.

Alluring as it may be to acknowledge that convictions for undoubtedly serious offences by major criminals would not otherwise have been

achieved the use of the interception of telephone conversations,

it is nevertheless unacceptable by community standards for persons to be apprehended as a result of unlawful conduct by police. In riot entirely

dissimilar circumstances, individuals have been compensated by

substantial rronetary payments when inquiries into the circumstances of convictions have revealed police improprieties in the conduct of a case against convicted J;:>ersons.

8.135 In Chapter 5 of this report reference is made to the recent

decisions of the High Court confirming that evidence which is obtained as a result of unlawful, unfair or inproper conduct may be admissible,

although the trial judge has the discretion to reject the evidence [see paragraph 5.29]. Reference is made to some of the criteria applicable to the exercise of such a discretion by a court. undoubtedly the fact that the police were acting in deliberate disregard of the law VK>Uld weigh heavily against the admissibility of evidence obtained by telephone

interceptions effected unlawfully. However, how those principles VK>uld have operated would depend upon the circumstances of each case, and as

stated earlier, the Commission has not endeavoured to inquire into the trial and conviction of each of the persons shown to have been

apprehended in oJ;:>erations in which unlawful telephone interceptions were

carried out.

Endnotes

1 TI159 Annexure E

2 El007-09, Treharne; Sl8, El66, Lewis; E667-68, Spencer; S205,

Ss759-61, Bull 3 TI159

4 Sl02, Williams

5 Sl28, Shepherd

6 Sl25, Shepherd

- 168 -

7 El007, Treharne

8 El240, OWens

9 TI159 Annexure E

10 Ss72, Lawrence; E221, Slucher; El742, Ss396-97, Willis; E336

Smaills

11 Ss205, Wooden

12 E221, Slucher; Ss72, Lawrence; El742, ss396-97, Willis; E336,

srnaills

13 Ss646, Johnston

14 TI204 Part 3 folio 188

15 S449, 450, Smith; SlOO, Williams

16 SlOO, Williams

17 S450, Smith; SlOO, Williams

18 SlOO, Williams

19 TI204 Part 3 folios 1, 3, 4

20 TI204 Part 3 folios 4-24,

21 TI204 Part 3 folios 29-30, 65-66; SlOO, Williams

22 SlOO, Williams

23 Ss89, Watkins

24 TI363 folio 46-47

25 Ell4-15, Williams

26 Ss90, Watkins; TI363 folio 46-47

27 TI363 folio 46

28 Ss90, Watkins; Ss9, Williams

29 S450, Smith

30 Ss34, Brown

31 El91, Brown

32 TI363 folio 94

33 Ssll7, Suchy

34 TI363 folio 94

35 TI363 folio 64

36 Sl4, Ssll5, Suchy

37 S574, 575, Lauer

38 E748-49, Donaldson

39 Sl50, Shepherd; E748, Donaldson; Police Instruction No. 65,

paragraph 3(b)

40 E2403, Wood

41 E749, Donaldson

42 Ss62, McKinnon

43 TI159 folios 93-92

44 Report of the Royal Commission of Inquiry into Drug Trafficking, Canberra, 1983, page 351 45 ibid

46 TI363 folio ll8a

47 E613, Stanton

48 El940, Jones

49 TI363 folio 50

50 E273-74, Smith; E622 Stanton

51 E274, E622, Stanton

52 TI363 folio 50

53 TI363 folio 50

54 Ss282-83, Ss285-86, Elll9-20, Schuberg; TI363 folio 50 55 Ssl95, Donaldson

56 Ss633, OWens

57 ibid

- 169 -

58 ss633, 634, owens

59 Ss634, OWens

60 TI159 folio 7lff

61 Ss634, owens

62 E579-80, Johnson; Elll7, Schuberg; El205, Ogg; E2605, Hawthorn; TlA/104 63 TI363 folio 49

64 El259, Hawthorn; Ssl3, McKinnon

65 El261, Hawthorn; E616, stanton

66 El261, Hawthorn

67 E265, Smith

68 E309, McKinnon; E289, 291, Wiggins; El272, 1276, Hawthorn;

El33la, El350, El358, Lamb 69 S762, Graham; S793-94, Walsh

70 S763, Graham; s794, walsh

71 S793, Walsh; S763, Graham

72 S763-64, Graham; S795, Walsh

73 S764, Graham

74 E206, Brown

75 S764, Graham

76 TI309 folio 5

77 TI309 folio 4

78 TI309 folio 3

79 E2469-70, Ripka

80 E2449-50, Travers

81 E202-03, Brown

82 ibid

83 S765, Graham

84 ibid

85 El96, Brown

86 TI363 folio 16

87 Ss391, Willis

88 Ss392, Willis

89 ibid

90 El739, Willis

91 Ss392, Willis

92 ibid

93 TI363 folio 48

94 ibid

95 Ss398, Willis

96 Ssl43, Stanton; Ss399, El743, Willis

97 TI363 folio 58

98 E2322, Johnston

99 Ss393, S247, Willis

100 Ss394, Willis

101 ibid

102 Ss394, Willis; TI159 folio 81

103 Ss394, Willis

104 TI363 folio 54

105 ibid

106 E930, Beaumont

107 ss746, McDowell

108 Ss616, Harvey

109 Ss219, Beaumont; Ss616, Harvey; Ss746, McDOwell 110 E2224, Williams; Ss746, McDowell

- 170 -

111 Ss746, McDowell

112 ibid

113 TI363 folio 47

114 Ell37-38, sweeney

115 TI363 folio 105

116 TI159 folio 65

117 Ell46, sweeney; Ss930, Blissett; ss531, Choat; E717, McDOnald 118 Ss60, McKinnon

119 Ss930, Blissett; Ss531, Choat

120 E881, McVicar; E487, Aust; Ss930, Blissett; E717, McDonald 121 E485-87, Aust; E554-56, Huber; E571, Johnson; E717, McDOnald 122 E723, McDonald

123 E3144, Seedsman

124 TI297 folio 74

125 Ss743, MCDOwell; TI159 folio 60; E2173-75, Davidson; Ss614,

Harvey

126 Ss744, McDOwell; E2175, Davidson 127 Ss744, McDOwell; Ss614, Harvey; E2175, Davidson 128 Ss615, Harvey; TI363 folio 86

129 TI363 folio 86

130 8780, Barnett

131 ibid

132 S780, S78l, Barnett; Ss71, Lawrence

133 Ss72-73, Lawrence

134 S783, Barnett

135 Ss76, Lawrence; S783, Barnett

136 TI159 folio 31

137 Ss73, Lawrence

138 TI159 folio 36

139 Ss207, Wooden

140 Ss205, Wooden

141 TI159 folio 35; Ss208, Wooden

142 Ss208, Wooden

143 TI363 folio 59; ss208, wooden

144 Ss208, WOoden

145 TI159 folio 34

146 Ss208, Wooden

147 E2012, Choat; El761, Brett; Ss208-09, WOoden 148 Ss206, Wooden; Ss220, Beaumont 149 Ss207, Wooden; Ss22l, Beaumont 150 TI363 folio 59

151 Ss206, Wooden

152 s35l, smith

153 ibid

154 S35l, smith; Ss385, El726-27, Conwell

155 Ss385, Conwell

156 S355, Conwell; TI159 folio 17

157 S355, Conwell; S35l, smith; TI159 folio 16; TI158 Part 4 folios

23-26

158 Ss916, Davidson

159 El869, s352, smith

160 Ss474, Kendall; 8352, Smith

161 Ss474, Kendall

162 Ss474, Kendall; TI363 folio 106

163 TI363 folio 106

- 171 -

164 S352, Smith; TI363 folio 106

165 Ss475, Kendall

166 s770-71, Graham

167 E2969, S771, Graham

168 S771-72, Graham

169 TI159 folio 146

170 S772-73, Graham

171 Ss238, Slade

172 Ss236, Slade

173 Ssl58, Lowe

174 Ss752, Shelley

175 ibid

176 E2567-68, Shelley

177 E2567-69, Shelley

178 S648, Shelley

179 S697, Foster

180 Ss504, Foster

181 Ssl58, Lowe

182 Ss753, Shelley

183 S648, Shelley

184 ibid

185 Ss463, Steer

186 ibid

187 TI159 folio 15

188 Ss463-64 Steer; TI159 folio 14

189 ss 264-65, Vickers

190 S516, El052, El052a, Vickers

191 El051, Vickers

192 Ss464, El886, Steer

193 S343, steer

194 TI363 folio 63

195 E916, wooden; E2061, Gilligan 196 ibid

CHAPTER 9

ILLEGAL TELEPHOOE INI'ERCEPTIOOS INVOLVING 'IHE VICTORIA POLICE

- 175 -

CHAPI'ER 9 ILLEGAL TELEPHOOE ,INTERCEPI'ICNS THE VICTORIA POLICE

History, Extent and Nature of Liaison with TSU

9.1 Chapter 7 of this report describes the history of telephone

interceptions carried out by officers of the NSW Police. These

activities corrunenced in 1967 or 1968 and continued until January 1984 [see paragraphs 7.1-7. 7, 7 .12, 7.47]. The services of the TSU in the

installation of telephone interceptions were called on by many units of the NSW Police and by the AFP. In the period between 1979 and 1983 the

TSU rendered some assistance to members of the Victoria Police.

9.2 As . described in Chapter 2 [paragraph 2.8], the terms of

reference in the Letters Patent issued by the Victorian Government

require, inter alia, an investigation into whether there has been any

unlawful telephone interception by a Victorian police officer acting in collaboration with, or in the course of an investigation conducted by members of the Victoria Police with the NSW Police or the AFP in either

Victoria or New south Wales, on or before 28 March 1985.

9. 3 Twelve current or former members of the Victoria Police gave

evidence to the Commission as to their involvement in unlawful telephone interceptions carried out in association with the NSW Police or the AFP. In addition, the Commission heard evidence from many officers of the NSW TSU and BCI as to the involvement of officers of the Victorian force in

telephone interceptions.

9. 4 The evidence before the Commission indicates that in about 1970

the Victorian and New south Wales forces began to exchange information on technical matters and methods of electronic surveillance. That contact was established following the decision of the Victorian Assistant

Commissioner (Crime), Mr W D Crowley, to establish an electronics section

within an intelligence unit similar to that established by the NSW

- 176 -

Police. Crowley took this decision following the successful use of a

listening device in an extortion threat on Ansett Airlines. That device had been installed for the Victorian officers by an officer of the TSU of the NSW Police.1

9.5 In 1971, Sergeant PC walliss, then attached to the Victorian

Homicide Squad, began the task of establishing a fully operational Bureau

of Criminal Intelligence. In the course of this task he visited police forces in other states to gain information as to the structure of similar units. walliss told the Commission that he visited the NSW BCI and TSU, and while at the TSU it became apparent to hlm that the TSU had the

capability to intercept telephone conversations. He said that officers of the TSU were prepared to give a general description of the functions of their equipment, but would not discuss the specific application of the equipment. Wall iss attributed this to the fact that his liaison with

those officers had not yet been firmly established. 2 Officers of the

TSU said in evidence that Wall iss spent approximately two weeks with

the TSU and learned, among other things, how to effect telephone

interceptions. 3 sergeant K H Hofer, who was attached to the TSU at

this time believed that Walliss may have been provided with some items of electronic equipment used by the TSU. 4

9.6 According to Walliss, action was not taken in 1971 to establish

a crime intelligence unit in the Victorian force because of a lack of ·

resources.

9. 7 The evidence before the Commission is that the relationship

between the TSU and officers of the Victorian force involved in technical

matters continued to develop and involved the interchange of technical information of common interest.5

9.8 In 1977 Chief Inspector F A Silvester was selected as Officer in

Charge of a newly formed Victorian BCI unit of ten officers. 6 Between

July and October 1977 Silvester and Walliss undertook an overseas tour to study other crime intelligence units. 7 walliss was responsible for

establishing various units within the Bureau, including a surveillance

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Unit. Senior Sergeant w F Green

of the Technical Unit. 8 walliss

was appointed as Officer in Charge

and Green were given the task of

selecting A W Graham officers to staff the newly formed Bureau. Constable

was also attached to the BCI as a member of a committee

established to advise on the technical requirements to make the BCI

operational. The Technical Unit had responsibility for the security, maintenance and use of technical equipment used in the acquisition of

intelligence, information or evidence in operations conducted by the Victorian BCI or other units in the Victorian force. The Unit was also responsible for the installation of listening devices pursuant to the Listening Devices Act, 1969 (Victoria). 9

9.9 Silvester said in his evidence to the Commission that ·in

discussions with the Chief Commissioner of Police, Mr s I Miller, on the establishment of the Bureau, it was agreed that the unlawful interception of telephone conversations would not be undertaken, so as not to

jeopardise any prospect of obtaining legislation authorising the

Victorian force to intercept telephone conversations. Silvester

accordingly instructed all staff under his control that such unlawful interceptions would not be carried out. He stated that, at the time of

those discussions, he was aware that the NSW Police undertook unlawful telephone interceptions and that this activity was well known in criminal investigation circles. Silvester was of the view that Chief Commissioner Miller would have also been well aware of that activity and believed that one reason for the decision not to undertake such interceptions was the

fact that the activities of the TSU were so well known. 10

9.10 The decision of Miller, as conveyed to officers of the Victorian

BCI by Silvester, and as interpreted by those officers, appears to have ll been adhered to by those officers, although somewhat reluctantly. As will be seen later in this Chapter, the policy was interpreted by

officers of the Victorian BCI, including the various Officers Charge, as prohibiting Victorian officers from actually installing an

interception device, but not from obtaining material arising from

interceptions conducted by others or indeed from requesting that an

interception be installed. In one instance, that of operation 'Charlie' officers of the Victorian BCI monitored and processed the tapes of

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intercepted telephone conversations [see paragraphs 9.35, 9.42-9.48]. That activity was regarded by Silvester and Walliss as being in breach of Miller's direction.12

9.11 From the time of the restructuring of the Victorian BCI in 1977

to approximately 1980 Walliss was the unofficial liaison officer with the NSW TSU and BCI. He stated that in this period he developed a close

working relationship with Inspector R H Stevenson (now deceased), Officer

in Charge of the NSW BCr. 13 Graham took over that role following

Walliss's involvement in other areas of the Victorian BCr. 14

9.12 Graham, in company with Sergeant J J A smelstorius, who was

attached to the Victorian BCI between 1978 and 1984, attended the TSU offices in Sydney on a number of occasions for the purpose of exchanging technical information.15 On one such occasion, those officers were instructed by Green to attend the TSU offices specifically for the

purpose of obtaining as much information as possible relating to the interception of telephone conversations.16

9.13 The TSU officers involved in this interchange of information

were constable R A Johnson and Senior Constables W J McKinnon, G P Smith and R Kilburn. 17 on those visits Graham and Smelstorius were given access to technical publications in the possession of the TSU relating to telephone interceptions. According to Smelstorius, these publications appeared to be Telecom manuals and similar publications. 18 During the course of the liaison with the TSU Graham obtained from the officers of the TSU a key which was capable of unlocking all Telecom pillars

including those situated in Melbourne. 19 [See paragraphs 7.87-7.89 for details of distribution pillars.]

9.14 The evidence before . the Corranission indicates that the first

joint operation of the Victorian BCI and the NSW TSU took place in 1979 in connection with a Victorian operation · code named 'Jordan'. This involved an interception carried out by the TSU on behalf of the

Victorian BCI on the telephone service of Ronald Lopes Dias at Kings Cross in Sydney. The TSU ascribed the code name 'A Dazzler ' to this

operation details of which are provided in Chapter 8 [see paragraphs

- 179 -

8.57-8.66]. There were in all four joint operations involving telephone interceptions. The fourth and last took place in November 1983 [see paragraphs 9.58-9.67].

9.15 It is clear that by the time the telephone interception device

was installed operation 'Jordan' the Victorian BCI regarded the TSU as a group of dedicated, honest policemen who were attempting to thwart the

spread of corruption in New South Wales. 20 This contrasted with their views on some other units within the NSW Police which were regarded as b . t . t d b . 21 h b d . 7 e1ng a1n e y corrupt1on. As as een reporte 1n Chapter [paragraphs 7.32, 7.39, 7.43] this view was held also by officers of the TSU and by some officers of the NSW BCI.

9.16 The opinion of the Victorians appears to have been reinforced by the views expressed by officers of the TSU. According to Silvester, on one occasion between 1977 and 1979 two officers of the TSU attended the Victorian BCI and complained of the difficulties they had experienced in

regard to corruption within the NSW Police, and sought his advice as to where they could store documentary intelligence records. Silvester said that while he advised those officers that they should secure such

material outside New south wales, he did not accept any such material k . 22 . d h from them for safe eep1ng. super1nten ent I J McLay, w o was

attached to the Victorian BCI between 1977 and 1984, said in evidence that he recalled that the TSU officers had in fact left some documents with Green for safekeeping. McLay did not see those documents. McLay also gave evidence that transcripts of the intercepted telephone

conversations of Robert Trimbole in 1981 were forwarded to the Victorian BCI for safekeeping. 23 Green denied having received any material from

the TSU, but it was the belief of several officers of the TSU and NSW BCI that transcripts of intercepted telephone conversations carried out by the TSU were delivered to the Victorian BCI for safekeeping.24

9.17 Because of the security concerns held by officers of both the

TSU and the Victorian BCI the liaison between the two bodies in

operations involving the interception of telephone conversations was maintained on an informal basis and without the official sanction of the NSW Police Department. 25

- 180 -

9.18 Despite a concern on the part of NSW BCI officers, including the

then Officer in Charge, Superintendent B Blissett, that officers of the Victorian BCI on occasions conducted operations in New south wales without informing their counterparts in New south Wales, it is apparent that three of the four operations involving telephone interceptions

carried out by the TSU in conjunction with the Victorians were done with the knowledge and approval of the Officer in Charge of the NSW BCI. 26 The one operation apparently conducted without the knowledge or agreement

of senior NSW BCI officers was the interception installed by Kilburn and Smith in Victoria on the telephone service of Graham Allan Kinniburgh [see paragraph 9.36].

9.19 The extent of the cooperation between the Victorian BCI and the

TSU in effecting the interception of telephone conversations appears to

have been limited by two factors. First, as referred to above, the

Victorian BCI officers' distrust of some units of the NSW Police led the Victorians to the belief that the security and integrity of their

operations might be prejudiced by liaison with those units. Secondly, the policy enunciated by Chief Commissioner Miller, and conveyed to officers of the Victorian BCI by Silvester, that Victorian officers were not to engage personally in the interception of telephone conversations meant that the Victorian BCI could not reciprocate with similar services

to those provided to them by the TSU. Accordingly, the nature of the

liaison between the two groups was essentially the provision by the TSU of technical services by way of the installation of telephone

interception devices in New south Wales and Victoria. The extent of that service, on the evidence before the Commission, involved the installation by the TSU of four telephone interception devices on behalf of the

Victorians. Three of those interceptions were installed in New South Wales and one was installed in Victoria.

9. 20 Descriptions of three of the four operations involving Victoria

Police in which telephone interceptions were installed are contained in Chapter 8 [paragraphs 8.57-8.66, 8.94-8.98, 8.114-8.117]. Further

details of those operations are set out below and inevitably contain some details already reported. The operation code named 'Charlie' is also

- 181 -

described below. The details are intended to provide an understanding of particular aspects of the procedure used by the Victorians for

instigating an interception, the manner in which material arising from the interception was dealt with and to provide a description of the

nature and extent of the involvement by Victorian police officers in the unlawful interception of telephone conversations by the TSU. Where material arising from such interceptions is in the possession of the

Commission the offences or possible offences disclosed therein are dealt with in the confidential Volume TWo of this report.

Operation 'Jordan'/'A Dazzler'

Authorisation

9. 21 Ronald Lopes Dias was suspected by Victoria Police of offences which had implications of large scale organised crime and Silvester directed that a concerted intelligence operation be conducted to

establish whether the allegations were true. Walliss, who was then

Officer in Charge of the Technical and surveillance Units, contacted the Officer in Charge of the NSW BCI, Inspector R H Stevenson, to seek his support for 'a team of Victorian BCI members to journey to Sydney, liaise with the TSU and conduct a preliminary study into the matter'. 27 That

request was granted and Sergeants A W Graham and J A Walsh travelled to Sydney on 22 May 1979 to conduct preliminary investigations. 28

9.22 On their return to Melbourne, Graham and Walsh informed

Silvester of the results of the preliminary inquiries. Graham stated in his evidence that in the course of the discussions with Silvester it was proposed that an interception device be placed on Dias's telephone

service and Silvester agreed to the proposal. 29 Silvester, however, stated that to his knowledge there was no predetermined agreement to conduct an interception of Dias's telephone conversations. He

acknowledged that he had directed his officers to endeavour t,o obtain

technical assistance from the TSU in the course of their inquiries.

Silvester had also given Graham and Walsh specific instructions that they were not to be physically involved in the interception of telephone

- 182 -

conversations while engaged in the inquiries into the activities of Dias, but were to restrict themselves to taking photographs and physical

surveillance. 30

9. 23 While it is apparent that Graham and Walsh in fact restricted

their role to physical and photographic surveillance, it is also clear that Silvester's instructions left them in no doubt that should the TSU be willing to effect a telephone interception on their behalf, then such

action would not be in breach of those instructions. 31

9.24 Retired Inspector K R Brown, who was Officer in Charge of

the TSU at the time of the Dias interception, gave evidence that the

interception was effected by him on behalf of the Victorian BCI following a telephone call from Walliss. 32

9.25 It appears from the evidence of Graham that although the initial

request for the installation of a telephone interception was made to the TSU on 3 June 1979, that request was not agreed to until 9 June 1979.

Graham said in his evidence that he believed the reason for the delay

'was that they (the TSU) were using that period of time to do a bit of an

assessment of us . . . before they would even discuss the matter with us.

And it was not until the last couple of days ... that they came •.. and

33

said to us ... yes, we will do this intercept for you'.

Equipment

9. 26 Tape recording equipment was installed in a flat rented

specifically for that purpose by Sergeant K R Brown. The Victorian BCI paid the rental for the flat which was leased in Brown's name. 34 All

the equipment used in the interception was supplied by the TSU. The

interception ceased following a raid on the flat by officers of the NSW Gaming Squad. Officers of that Squad seized the tape recorder and

ancillary equipment and gave it to Dias. This matter is dealt with in

paragraphs 8.60-8.62.

9.27 Following the loss of the equipment, Silvester, while in Sydney, visited the offices of the TSU and saw Brown and sergeant W J McKinnon.

- 183 -

Silvester offered to recompense the TSU for the lost equipment. This

offer, however, was not taken up by Brown. 35

Tapes and Transcripts

9. 28 Followi_ ng the installation of the interception device on the

telephone service of Dias on 10 June 1979, Graham and Walsh returned to Melbourne. The maintenance of the interception was thereafter left in

the hands of officers of the TSU.

9. 29 The transcription of the tapes of recorded conversations was

undertaken primarily by Sergeant R Kilburn of the TSU. Kilburn forwarded both the transcript and the corresponding reel to reel tape to Graham in M lb b . . 36 . . h d . e ourne y a1r cour1er. On rece1v1ng t e tapes an transcr1pt,

Graham and Walsh listened to the tapes to check the transcript. In cases

where information was omitted from the transcript, Graham made

h d . h . 37 an wr1tten notes on t e transcr1pt.

9.30 Walliss

contents of the

and Silvester were kept informed by Graham of the

material forwarded by the TSU and Graham compiled intelligence 11 . 38

wa 1ss.

reports based on

The transcript was

the

stored rraterial for submission to

in a four post loose leaf

binder and kept in the possession of Silvester. Graham erased the

tapes after he had checked the relevant transcript. 39

9.31 Following his transfer to the Australian Bureau of Criminal

Intelligence (ABCI) as the inaugural Director, Silvester . made a copy of the transcript and introduced that copy into the records of the AOCI. The transcript was subsequently used in 1984 . in an investigation

conducted by sergeant G Shelley. The transcript remains in the files

of the ABCI. 40

9.32 On 2 February 1984 the Age newspaper in Melbourne published the first of a series of articles containing extracts from telephone

conversations intercepted by the TSU. Green stated in evidence that on that day he saw the transcript in the possession of Graham and, because

- 184 -

41

of the article in the Age, ordered that it be destroyed. Graham,

however, said in his evidence that he had not seen the transcript from

th t . h h h d . . . 4 2 e 1me wen e a g1ven 1t to S1lvester.

Operation 'Charlie'

Background

9.33 During November 1979, sergeant McCaskill, a Tactical

Investigator attached to the Victorian BCI, received information about a pending importation of narcotics from Thailand to Melbourne, which was to be facilitated by members of the Victorian Branch of the Federated Ship Painters and Dockers Union.

and communicated his information to

McCaskill travelled to Sydney 43 the JTF • Thereafter two

investigators from the JTF went to Melbourne to conduct inquiries. They were Sergeant B W Johnston of the NSW Police and sergeant sweeney of the

AFP. 44

Their investigations revealed that two Victorian residents, Graham Allan Kinniburgh and Leo McGlyn, were principals in the intended . . 45

1mportat1on.

9. 34 Subsequently JTF investigators asked Green to request the OCI

Technical Unit to intercept the telephone service connected to

46

Kinniburgh's house at North Balwyn, a Melbourne suburb. None of the

Victorian officers \'lho gave evidence could recall the names of the JTF officers who made the request. Sergeant G L Jolly, who was attached to the Victorian BCI, nominated Johnston and sweeney as having been involved 47 in the operation, but was not present when the request was made.

9. 35 Green informed the JTF officers that it was not possible for the

Victorian BCI to effect a telephone interception as the then Officer in Charge of the Victorian BCI, Silvester, did not permit them to install or

attempt to install telephone interceptions. He also said that in any

case the Victorian BCI did not have the necessary expertise. The JTF

officers then arranged for two members of the TSU to travel to Melbourne to effect the interception. It was agreed by Green that if the TSU

officers installed the interception, then the Technical Unit in Victoria would manage the subsequent monitoring. 48

- 185 -

9.36 on the morning of Saturday 29 November 1980 sergeants R Kilburn and G P Smith of the TSU fltw to Melbourne, installed the interception

49

device and returned to Sydney the same day. According to Graham,

Kilburn and Smith went to Victoria in their own time and without the

k 1 d f h

. . 50

now e ge o t e1r super1ors.

9. 37 The necessary transmitter and accompanying battery pack were

supplied by the TSU while a voice activated recorder and a receiver,

which were located in a nearby garage, were provided by the Victorian

Technical Unit. Smelstorius attended to the installation of the

receiver, antenna and ta[€ recorder. 51 The equipment utilised by the TSU in the installation of telephone interceptions is described in detail

in Chapter 7 [paragraphs 7.48-7.70, 7.81].

9. 38 Wall iss, Jolly and smelstorius undertook surveillance to

ensure that Smith and Kilburn were not detected while . installing the interception. They were all aware that their activities were for the

purpose of assisting the installation of the unlawful telephone

. t . 52 1 . h k . th t . d 1n ercept1on. Sme stor1us, as one w o too part 1n e con 1nue operation of the interception, relocated the antenna at the receiving location and continued to rronitor the technical quality of the

. 53

transmission and record1ng.

Knowledge of Senior Officers

9. 39 The deputy leader of the Victorian OCI, Chief Inspector

I J McLay, told the Comnission that he was aware of the arrangements to

effect the interception although he was not physically in attendance at the location-. 54

9. 40 Silvester said in his evidence that he was not aware that a

telephone interception had been carried out in the course of operation 1

Charlie 1 • He stated that he was aware that officers of the JTF had

approached the Victorian BCI for assistance. He said that all possible

assistance had been provided but the installation of a telephone

interception was directly against the policy that such activities were

- 186 -

t t be . ed t b h . t . 55 no o carr1 ou y t e V1c or1an BCI. His evidence was

supported by Walliss. 56

9.41 Green told the Commission that Silvester had refused the request by the officers of the JTF that a telephone interception be installed but that he 'stated at the time that he didn't mind if they came down and did 57 it - that's their problem'. According to Silvester, however, the

policy which prevented the Victorian BCI from actually installing interceptions also prevented officers of the Victorian BCI from being in h . 11 . 1 ed . ch . .

58

any way p ys1ca y 1nvo v 1n su act1V1ty.

Tapes and Transcripts

9.42 After the interception had been effected it was arranged that

Graham would collect the tapes resulting from the interception each morning on his way to the BCI office and deliver them to Sergeant

G 11 h 1 . h f h . . .

59

L Jo y, t e ana yst 10 c arge o t e 1nvest1gat1on.

9. 43 On Tuesday 23 December 1980, sane three and a half weeks after

the interception had commenced, Jolly was given two folders containing transcripts of the tape recorded conversations. 60 It is not apparent

from the evidence who was responsible for the preparation of these

documents and Jolly was unable to recall which officer gave them to him. The evidence of the other officers involved in the operation is that

Jolly analysed and transcribed the tapes from the commencement of the operation. 61 However, Jolly's evidence is that this was not the case. Jolly stated that he commenced an analysis of documentary material and formed the view that it had been prepared by a number of officers and as

h 1 k d . .

62 d ' 11 h 'al sue ac e cont1nU1ty.. Accor 1ng to Jo y, t e mater1 was

comprised largely of precis of the intercepted conversations and did not enable the participants in those conversations to be identified.

63

Accordingly he called for and was given the tapes themselves.

9. 44 Thereafter the daily tapes and presumably sane tapes of

conversations recorded in the three weeks or so before Jolly took over the analysis, were supplied to Jolly by either Smelstorius or Graham. 64

- 187 -

9.45 Each day Jolly would type up a resume of relevant conversations, from which he would then type a daily information sheet. The fact that the information came from a telephone interception was not apparent on the face of the document. The source of the information was noted on the document as being fran 'a reliable source'. He produced about twenty

information sheets and placed them an the SCI operation 'Charlie'

f ' 1

65 11 . e. Jo y the analysis of material arising from the

interceptions until his secondment to the ABCI on 8 July 1981. In the

course of analysing the material, Jolly instructed officers of the

Tactical Section of the Victorian BCI to conduct inquiries to verify or expand information gleaned fran the materia1. 66

9.46 The daily information sheets were distributed to Graham, Green, W 11 . d 67 1' . . a an McLay. Wal also sent a copy of the

reports to the JTF in New south wales. 68

9.47 According to the Victorian officers involved in the operation,

the tapes were erased after having been analysed by Jolly. However, no 69

officer had any recollection of personally having erased the tapes.

9.48 At the termination of the interception Jolly prepared an

analysis of the whole operation which is still on the Victorian BCI file for operation 'Charlie' . 70 The transcripts and the daily information sheets were, according to Green, destroyed following the publication of the 'Age tapes' in order to ensure that the Victorian SCI was not

identified with illegal interceptions. 71

Termination

9.49 The interception continued for a period of three to four

72

weeks. It was terminated, according to the Victorian officers,

because it became evident that Kinniburgh had become aware of the

possibility of his telephone conversations being intercepted. 73

9. 50 According to Jolly and Green, the associates of Kinniburgh in

New south wales had arranged, by telephone, to travel to a location by

- 188 -

car and pay for drugs with a large amount of cash. on the way to their

destination they were stopped by two cars carrying persons purporting to 74

be police who made off with the money. The Victorian officers

believed that Kinniburgh was alerted by this incident to the fact that his telephone conversations were being intercepted. 75 The Commission did not receive any further evidence on the identity of the persons

purporting to be police involved in the incident or other details. Given the vague nature of the evidence before the Commission, no conclusion about this incident can be drawn.

9. 51 On the termination of the interception Graham and smelstorius

retrieved the transmitter and battery pack from the telephone pit and these were returned to the Tsu. 76

9.52 Although the interception operation disclosed information on criminal associations, no arrests resulted. 77

Operation 1Aura 1 / 1 Snooker 1 / 1Pickaxe 1

Authorisation

9. 53 Operation 1 Aura 1 began in January 1982 as a Victoria

Police investigation into the activities of certain suspected drug

distributors. As described in Chapter 8, it became apparent that the

suspects had links with persons in New south wales. In an effort to

identify those persons, the assistance of the NSW BCI was sought. After several conferences on the matter, the investigation was combined with associated operations being conducted by the JTF and the AFP [paragraphs 8.94-8.96].

9.54 An interception device was installed on the telephone service of Alice Emma wardell at Hurlstone Park, a suburb of Sydney, but it is not clear from the evidence who requested TSU assistance to effect the

interception. The evidence of Chief superintendent P A G Lawrence, who was leader of the JTF, was that he was uncertain whether he requested the installation of the unlawful interception and believed it likely that

- 189 -

h . d b h . . 78 sue a request was 1n fact rna e y officers of t e V1ctor 1an BCI.

Lawrence, however, acknowledged that he was aware of the unlawful

interception and in fact listened to a tape of one conversation arising therefrom. 79 Green in his evidence said that it was possible that

Graham had requested the interception, although it may have been

instigated by one of the other participants in the operation, either the 80 JTF or the AFP. Sergeant G J Barnett, an analyst attached to the

Victorian BCI from July 1981, said that at the briefing of AFP, JTF and Victorian officers in Melbourne on 28 June 1982 it became apparent that a telephone interception would be essential in the investigation. Barnett stated that as AFP officers were present at that briefing, he assumed

that any interception effected would be lawful. 81 Both Barnett and

Graham told the Commission that they became aware of the installation of

an unlawful interception when they arrived in Sydney in July 1982 and

Kilburn played to them a tape recording of an intercepted telephone

. 82

conversat1on.

9.55 It would appear likely, from the evidence before the Commission, that the interception of wardell's telephone conversations was instigated as a result of the briefing conducted by Barnett in Melbourne on 28 June 1982. Lawrence stated in evidence that a warrant to effect a lawful

interception was issued on 2 July 1982, the same day as the unlawful

interception was installed. The lawful interception was effected

pursuant to that warrant on 9 July 1982. Lawrence said that he believed that the unlawful interception was installed because of the anticipated delay in the connection of the lawful interception. [See Chapter 15 for details of the lawful system for telephone interceptions.] He also said

that he believed that the unlawful interception was discontinued on

83

9 July 1982. ,

9. 56 rrrespecti ve of which officer actually instigated the unlawful interception, it is clear that both Lawrence and the officers of the

Victorian BCI were aware of ·that interception and sanctioned its use. Both Green and the Acting Superintendent in Charge of the Victorian BCI,

I J McLay, became aware of the unlawful interception after it had been . h k t . t . 84 installed. Nei t er too any steps to errmna e 1 t.

- 190 -

Tapes and Transcripts

9.57 The material arising from the unlawful interception of wardell's telephone conversations to which the Victorian officers had access consisted of one tape of a conversation and the summaries referred

below. That tape was played to Graham and Barnett by Kilburn at the

motel where Graham and Barnett were staying in Sydney. 85 A copy of that tape was not supplied to the Victor ian officers and they did not

listen to any other tapes of conversations arising from the

interception. Barnett said in his evidence that he recalled being shown swrunaries of intercepted conversations by Lawrence, which he believed

were the product of the lawful interception. These, he believed,

. ed . h . 86 rema1n 1n t e possess1on of Lawrence.

Operation 'Goliath'/'Gorilla'

Authorisation

9. 58 The liaison between the Victorian BCI I the NSW ocr and the TSU

in this operation commenced on 2 November 1983.

9. 59 The original plan of the officers of the Victor ian BCI

apparently was to ascertain the whereabouts of an escaped prisoner, Robert Wright, by means of physical surveillance. Wright was thought by police to be hiding at the home of Christopher Dale Flannery in Sydney. Flannery, who disappeared in May 1985 and is believed by police to be dead, moved to Sydney from Melbourne in 1983 and was said by officers who gave evidence to have established himself as a 'Muscle-for-Hire' . 87 A combination of circumstances, however, led to the late arrival of the Victorian officers at Flannery's address. It was believed by police that a telephone interception was necessary to acquire information as to

Wright's whereabouts.

9.60 Accordingly, Graham, with Senior Sergeant M E Williams, sergeant

D W woods and senior Constable J A Shaw of the Victorian BCI attended the

offices of the NSW ocr and there saw the Acting Officer in Charge,

- 191 -

Superintendent J F Foster. The Victorian officers had not previously notified the BCI of their presence in New south wales, but had arranged with Kilburn for officers of the TSU to provide them with assistance in locating Wright. This arrangement was made as the Victorian officers

regarded the TSU officers as trustworthy and felt that for security

reasons they not officially inform the NSW Police of their

88

presence. The TSU was to assist by providing transport around Sydney to verify whether Wright was in fact hiding at Flannery's residence. 89

9. 61 Graham requested Foster's approval for the installation of an

interception device on the telephone service connected to Flannery's horne. In support of that request, Graham filled out a form 'Application for Technical Assistance', at that time was used by the NSW BCI for

requests for telephone interceptions and other forms of technical

90

assistance [see paragraph 7. 45]. Graham was also required by Foster to submit a written summary of the operation in support of the

application. Neither document specifically referred to the request for a telephone interception. However, there was no doubt in the minds of

Graham and Foster that a request for 'technical assistance' in fact meant that an interception was being requested. Indeed, Graham made an oral request for the installation of such a device. Foster then telephoned

Sergeant R F Slucher, Officer in Charge of the TSU, and instructed proceed with the installation of the interception device. 91

9. 62 on 4 Noverrber 1983 Graham accompanied officers of the TSU in an endeavour to install the interception device on Flannery's telephone

service. The other officers of the Victorian BCI were not present, but were informed of the attempt on Graham's return.

92

Graham did not

physically participate in the attempted installation but acted as a

'look out' in one of the TSU vehicles. The attempt to install the

interception device was unsuccessful because of technical

difficulties. 93

9. 63 The Victorian officers returned to Melbourne the following day, and were advised several days later by Kilburn that the interception

device had been successfully installed.

- 192 -

Tapes and Transcripts

9. 64 Kilburn forwarded transcripts of the intercepted conversations to Graham for approximately one week. Graham then informed Kilburn that he was satisfied that Wright was not at Flannery's horne and shredded the

transcripts in his possession. 94 The interception was not discontinued at this stage . as the information obtained from Flannery's intercepted telephone conversations was regarded by the NSW ocr as being valuable . . 1 . 11 . 95 cr1rn1na 1nte _lgence.

9. 65 01 22 November 1983, Green, in the course of a visit to Sydney,

attended the BCI offices where he viewed the transcript of the

intercepted conversations involving Flannery. Green made some

handwritten notes on that transcript, identifying certain persons

·referred to in the conversations. 96

Termination

9. 66 Green stated that while in Sydney on 22 Novernber 1983 he spoke

to superintendent R c Shepherd and Inspector R P Morrison of the BCI and that as a result the interception of Flannery's telephone conversations . 97

ceased. From the transcript available to the Corrunission it appears

that the interception in fact did not cease until 30 November 1983.

9. 67 It is clear that the investigation in New south Wales by the

Victorian BCI in this operation was instigated and managed by Graham. It is also clear that Graham requested the interception of the telephone conversations of Flannery without direct recourse to his superior

officers in Melbourne. Green, however, in his evidence said that while he was not aware of any specific plan to effect an interception in the

operation he was aware that it was likely that Graham v.uuld, if the

circumstances necessitated, request such an interception. Green stated that he · 'had sufficent confidence in Graham that he would assess the

situation and if it required (an interception) . . . he would ask for

' t' 98 1 •

- 193 -

Conclusions

9. 68 It should be noted that the Corrnnission was restricted by its

terms of reference from inquiring into any interceptions conducted by

off·icers of the Victoria Police other than those carried out in

conjunction with officers of the NSW Police or the AFP.

9. 69 The four operations described in this Chapter were said by the

Victorian officers who gave evidence to the Corrnnission to be the only operations of which they were aware in which telephone interceptions were installed in conjunction with officers of the NS1iv Police or the AFP. 99 It is clear from the evidence before the Commission that officers of the Victorian BCI had the technical expertise and access to equipment

necessary to install telephone interceptions.

9. 70 on the evidence before the Corrnnission, this was not done in

practice because of a specific direction by the Chief Commissioner of the Victoria Police, passed on by the Officer in Charge of the Victorian BCI, that the Victorians were not to become involved in the installation of telephone interception devices. This direction was interpreted very

liberally by the officers of the Victorian BCI who did not themselves install the interception devices but sought or facilitated such

installations. They were also prepared to rrake, and did make, full use

of the material obtained. TWo of the senior officers of the Victor ian

BCI, Hall iss and Silvester, claimed that they regarded the actions of the

Victorian officers in operations 'Jordan' and 'Charlie' as being in

breach of the direction. It is not necessary for the Commission to rrake any finding regarding their claim. It is clear that they were prepared

to ignore that breach in order to make use of the information gained from those interceptions.

Endnotes

1 E507, Hofer; ss799, Green

2 Ss840, Walliss

3 Ss780, Smith; Ss783, Kilburn

- 194 -

4 Ssl08, Hofer

5 Sl038, Walliss; Ss783-84, Kilburn; Ss780, smith

6 Sl004, Silvester

7 Sl038, Walliss

8 S938, Green

9 S939, Green

10 Ss796, Silvester

11 Ss821, Jolly; E3009, ss840, Ss842, Walliss; Ss801, Green 12 E2911, Silvester; Ss842, Walliss

13 Ss841, Sl039; E3009, walliss; Ss803, Green; Ss823, Jolly; E201,

E206, E213, Brown 14 Ss841, walliss

15 Sl015, smelstorius; E2970, Graham; E2935, Green 16 E2970, Graham; E2935, Green; Ss832, Smelstorius 17 Ss832, smelstorius; E592, Johnson

18 Ss833, Smelstorius

19 E2971, Ss827, Graham

20 S763, Graham

21 S793, Walsh

22 E2913, Sl006, Silvester

23 E3054-55, McLay

24 E255, E256, smith; E865, Egge; E89, Shepherd; E2935, Green

25 E589, Johnson; Ss805, Green; S793,

26 El711-12, Morrison; Ss808, Ss813, Green

27 Sl039, walliss

28 S763, Graham; S794, Walsh

29 E2959, S763, Graham

30 E2907, Silvester

31 E255, smith; E2959, Graham

32 El93, E200, Brown

33 E2960, Graham

34 E206, Brown

35 Sl008, Silvester; E201, Brown; E310, E311, McKinnon 36 El36, Kilburn; E2961, S764, Graham

37 S764, Graham

38 ibid

39 E2961, Graham

40 E2908, Sl009, Silvester

41 E2927, Green

42 E2963, Graham

43 S942, Green

44 S950, Jolly

45 S942, Green

46 S942, Ss8ll, Green; E29ll, Silvester; S767, Graham; Sl040,

E30ll, WalliS$; S950, Jolly 47 S950, Jolly

48 S942-43, Ss8ll-12, E2928, Green; E29ll, Silvester; S1039-40,

E30ll, Walliss

49 S768, Graham; Sl016, Smelstorius; S943, Green; S1040, Walliss;

S965, McLay

50 S768, Graham

51 E2991, smelstorius; E2928, Green; Ss828, E2966, Graham 52 E30ll, walliss; Ss818-19, E2948, Jolly; E2991, Sme1storius 53 E2991, smelstorius

54 E3051, McLay

- 195 -

55 E29ll, Silvester

56 Ss842, Walliss

57 Ss8ll, Green

58 E29ll, Silvester

59 S768, E2966, Graham; S943, E2928, Green

60 S950, Ss820, E2948A, Jolly

61 S768, E2966, Graham; S943, E2929,Green; Sl040, Walliss; S965,

McLay

62 S950, Ss820, Jolly

63 Ss820, .Jolly

64 E2948, Jolly; S768, Graham

65 S950, Jolly

66 S951-52, Jolly

67 S768, Graham; S943, E2929, Green; Sl040, \valliss; E3051, McLay 68 Sl034, walliss

69 S769, Graham; 8943, E2929, Green; S952, Jolly

70 S943, Green; E3015, \valliss; S965, McLay

71 E2929, Green

72 S768, E2966, Graham; Sl043, walliss

73 S768, Graham, E2930, Green; Ss823, E2950, Jolly; Sl043, Walliss 74 Ss822-23, E2950, Jolly; E2930, Green

75 ibid

76 E2966, Graham; E2991, Smelstorius

77 E2930, Green; 8952, E2949-50, Jolly

78 8s72, 73, Lawrence

79 8s73, Lawrence

80 8s808, Green

81 8s835, Barnett

82 S781, Barnett, S769, Graham

83 8s72, Lawrence

84 E3052, McLay; E2931, Green

85 E360l, Barnett; E2967-68, Graham

86 Ss836, Barnett

87 E982, E986-87, Slade

88 E2969, S771, Graham

89 E2969, Graham

90 8132, Shepherd

91 8696, Ss500, Foster; S772, Graham

92 8801, Williams

93 8772, Graham, E678, Moore

94 8772-73, Graham; S801, Hilliams

95 E982, 986-87, Slade

96 E2937, S945, Green

97 S945, Green

98 E2931, Green

99 E2935, Green; E3024, Walsh; E2951, Jolly; E3002, Barnett; E3040, Shaw; E2912-l3, Silvester; E3009, Walliss

CHAPI'ER 10

arHER ORGANISATIOOS INVOLVED IN UNLAWFUL TELEPHOOE

INI'ERCEPTICNS

- 199 -

CHAPI'ER 10 arHER ORGANISATI

INTERCEPTIOOS

10.1 The involvement of the Victoria Police in telephone

interceptions conducted in conjunction with the NSW Police is described in the previous Chapter. This Chapter deals in part with the involvement of the AFP in telephone interceptions carried out by the NSW Police

[paragraphs 10.4-10.20].

10.2 The Commission also received evidence that officers of the

Federal Narcotics Bureau and the JTF had unlawfully intercepted ,_ telephone conversations in New south v'Vales and these matters are also reported upon in this Chapter [paragraphs 10.21-10.68, 10.69-10.82]. In addition the Commission heard evidence relating to the illegal interception by a

private inquiry agent of conversations where one of the parti es was

speaking over a rrobile car telephone. This matter is also dealt with

below [paragraphs 10.83-10.92].

10.3 Where tapes or transcripts arising from particular operations have survived and are in the possession of the Commission the offences or

possible offences disclosed in such material are dealt with in Volume Two of this report.

Australian Federal Police

10.4 There were three operations involving the interception by the

TSU of conversations passing over the telephone service connected to the

home of Morgan John Ryan at Neutral Bay in Sydney. The first two

operations, code named 'Mad Dog' and 'Rabid', were conducted in 1979 and 1980 respectively. The thiz:d operation was conducted on behalf of the AFP in the period January to March 1981 [see paragraphs 8.46-8.56].

10.5 The 1981 operation grew out of an association between Inspector p J Lamb of the AFP and Sergeant A Hawthorn of the TSU. Previously Lamb

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had been in charge of a group of Corrunonwealth Police officers which had

conducted investigations given the code name 'Gaslight' for the Williams Royal Commission until its cessation in 1979. In 1978 while engaged on

operation 'Gaslight', Constable c s Foster, a Conunonwealth Police

officer, received a telephone call from a detective in the Victorian BCI who told him that an officer of the NSW Police wished to furnish

information in relation to drug trafficking. Foster was not aware of the identity of the officer until a meeting was arranged with him in Belmore Park, Sydney. The officer was Sergeant A Hawthorn and Foster later

introduced him to Lamb. 1

Hawthorn furnished information to Lamb during

1978 and 1979.

10.6 When B Division was established by the AFP in November 1980,

it included Lamb and several otWer officers who had previously been attached to operation 'Gaslight' . Hawthorn and other staff of the TSU assisted in the provision of technical specifications for a portable

radio system to be installed by B Division. 2 B Division concentrated its investigations upon the activities of certain alleged criminals

and their associates. During the course of an investigation into a

particular target, Morgan John Ryan was identified by the AFP as an

associate of the target.

10.7 Hawthorn continued to provide information to Lamb during 1980. To protect the identity of the source of the information, Lamb arranged

within the AFP for Hawthorn to be registered as an informer in an AFP

register in Sydney kept for that purpose. The code name for Hawthorn, who was unaware of this arrangement, was 'Irish' . 3

10.8 There was a nurnper of meetings between Lamb and Hawthorn during 1980, although there was conflicting evidence from witnesses before the

Commission as to when and where these meetings occurred, and precisely

what was discussed. In particular there was conflict between NSW Police

officers on the one hand and AFP officers on the other as to a meeting

said by some witnesses to have taken place on 5 March 1980. The

preferred view, based, inter alia, on a contemporaneous document prepared by an AFP officer, is that one particular meeting took place early in the

afternoon of 5 March 1980 at the . Corrunodore Hotel in Blues Point Road,

- 201 -

McMahons Point. The meeting, v.hich had followed an urgent telephone

request from Hawthorn to Lamb, was attended by Lamb and sergeant

B J Carter of B Division, and Hawthorn, Sergeant R Kilburn and Constable

G P Smith of the TSU.

4

On balance it \Veuld appear that Hawthorn gave

Lamb a single page document headed 'From a reliable source' .which

contained informQ.tion concerning Ryan obtained from the interception of Ryan's telephone conversations. 5

Hawthorn said in evidence to the

Corrnnission that he had no recollection of the document. 6

The contents

of this document and the subsequent action by the AFP are described in the confidential Volume Two of this report.

10. 9 Documents produced to the Commission by the AFP record that in

March and July 1980 Lamb had further meetings with Hawthorn who provided

information obtained from the interception of Ryan's telephone

conversations relating to the period February 1980 to 6 June 1980. An extract from a file note prepared by Lamb in relation to a meeting on

11 July 1980 states:

I met with informant "IRISH" at 7. 30 am on Friday, 11 July

1980 and the following are notes that I made during our

conversation. Certain documents were also viewed.7

10.10 The remainder of the document summarises conversations between Ryan and other persons. The summaries contain information which was the

product of the interception of conversations passing over the telephone service connected to Ryan's home. Further accounts of the conversations so summarised appear in the transcript of Ryan's intercepted telephone conversations in the possession of the Commission.

8

10.11 In mid 1980 the interception operation known as 'Rabid' ceased

[see paragraph 8.52]. AFP records indicate that no information was

received in 1980 after the meeting between Lamb and Hawthorn on 11 July 9

referred to above. The precise details of the arrangements whereby

the interception of Ryan's telephone conversations resumed in 1981 are unclear. According to Hawthorn, officers of the AFP wished to obtain

. . . 10

more information about Ryan for the purpose of a

Hawthorn and Sergeant W S Stanton told the Commission that the staff of

the TSU were unhappy at being directed to terminate operation 'Rabid',

- 202 -

which they felt was producing valuable information, and were willing to

resume work on Ryan.

11

Indeed there is evidence that Hawthorn

approached Sergeant M K Ogg of the BCI seeking to have the operation

resumed from premises Hawthorn had rented in Neutral Bay. 12

10 .12 At one meeting between Lamb and Hawthorn at a coffee shop in

Sydney the question of resuming the Ryan operation was discussed.

Hawthorn said in evidence that he understood from this conversation that

Larrb was requesting resumption of the operation for the benefit of the

AFP. 13 Lamb in his evidence to the Commission did not dispute this

. t . 14 1n erpretat1on. Hawthorn sought time from Lamb to consider the

matter and to discuss it with othen members of the TSU who were

apprehensive about the prospect of carrying out an operation for the AFP in breach of Corranonwealth legislation. 15 Eventually it was agreed that the operation would be resumed from premises which had been leased by Hawthorn as his residence at Kur raba Road, Neutral Bay, near Ryan 1 s

residence in Baden Road, Neutral Bay. As the AFP was requesting the

operation, the arrangement was that that organisation would bear the cost. This included the provision of blank tapes to record telephone

conversations and payment of part of the rent on Hawthorn 1 s premj ses. 16

The payment of rent accorded with the practice within the NSW Police in

cases where police used their own residences for surveillance purposes.

10.13 Lamb sought approval for these arrangements from Deputy

Commissioner R Farmer of the AFP in Canberra and Farmer in turn discussed

the matter with the Commissioner, Sir Colin Woods. Farmer told the

Commission that Sir Colin approved the receipt of tape recordings of

conversations obtained from the interception but directed that AFP

officers should not themselves carry out the interception. Farmer

communicated this decision to Lamb and also approved payment of money to

Hawthorn. 17 The payments were said by witnesses to be in the order of

. 18

a total of $160 to $200, but the AFP was unable to produce to the

Commission any records of payment. 19

10.14 Sir Colin Woods did not give evidence to the Commission but

provided a sworn statement. In that statement he said that when he was approached by Farmer and Lamb to approve receipt of the material there

- 203 -

was 'some doubt as to whether the material had been obtained illegally

from a telephone intercept or from some other form of listening

d

, I 20

ev1ce . He later formed the view that the material could only have

come from illegal telephone interceptions. He decided not to launch an

inv.estigation into the illegal activity because he concluded that there would be little . likelihood of identifying NSW officers involved and because the public interest was better served by adopting the course

which had been recommended to him. 21 He believed that the activity

was beyond his capacity to influence or control and that worthwhile

information could be gained from the interceptions. In his sworn

statement he stressed that 'the interceptions did not come through AFP initiatives although AFP responded readily to initiatives of others'. He said that the arrangements could be held to be in breach of the

Telecommunications (Interception) Act 1979. 22

10. 15 Hawthorn stated that he informed Inspector R C Shepherd of the NSH Police of the operation.

23

The installation of the interception

device was not effected in accordance with the procedures at the time

whereby the Superintendent in Charge of the BCI approved all requests for

telephone interceptions [see paragraph 7.35]. Superintendent B Blissett, then Superintendent in Charge of the BCI, was not informed of the

arrangement and for some time was unaware that there was a third

24

operation in relation to Ryan.

10.16 In January 1981, as a result of the arrangements made between

Lamb and Hawthorn, members of the TSU installed an interception device on

the telephone service connected to Ryan's home at Neutral Bay using a similar method to that used in the 'Rabid' operation. A voice activated recording device was installed in one of the two bedrooms in Hawthorn's flat. Hawthorn removed the tapes from the recorder each morning and on his way to work delivered them to Lamb, and later to Constable

T P Robinson, outside premises in Sydney occupied by B Division of the

AFP. 25 These officers gave. the tapes to Constable E A Harrison, and

later to Constable C C Harten, who listened to them and recorded

information relevant to B Division inquiries in the form of information 26 reports. The reports related to the period 14 January 1981 to

12 March 1981. 27

- 204 -

10.17 By the time this third interception operation commenced,

Sergeants D J Lewington and R A Jones had been conducting inquiries into certain allegations concerning Ryan for over eight months. 28 Within a week of the first receipt by B Division of the information from the

interception operation carried out from Hawthorn's flat, Lewington and Jones were instructed by Chief Inspector A Brown of the AFP to meet with Lamb. 29

They were also instructed by Deputy Commissioner R Kennedy to

meet with superintendent B Blissett. 30 The meetings duly took place ,

with Lamb on 27 January 1981 and with Blissett on 29 January 1981 .

Although the fact of the meetings is recorded by Lewington and Jones in

their notebook the of the discussions which occurred is not. 31

10.18 At the NSW OCI Lewington and Jones were introduced to Blissett

by Sergeant P L Egge whan they had met previously. 32 The nature of the

AFP inquiry was explained and Blissett provided certain information by

reading fran a dossier on Ryan. Lewington and Jones were later shown

some documents relating to the background of Ryan. 33

10.19 During subsequent meetings which Lewington and Jones had with Blissett and Egge, it was arranged that the BCI would obtain information by means of the interception of Ryan's telephone conversations .

Information was to be provided to Lewington and Jones by telephone and Egge was assigned to provide the information. At a later stage Sergeant

w T Chambers carried out this function. Blissett, who approved this arrangement, was unaware that the interception was already in place

34

following the arrangement between Hawthorn and Lamb.

10.20 Egge and Chambers attended the offices of the TSU in January,

February and March 1981 listened to tapes provided by Hawthorn and

others. 35 They conveyed relevant information obtained from the tapes to Lewington and Jones by telephone on a daily basis. Lewing ton and

Jones continued to liaise with Inspector Lamb during the period of the interception. During attendances at the B Division offices Lewington and Jones were provided with material taken from information reports and . 36

played selected excerpts from the recorded

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Federal Narcotics Bureau

10.21 The Federal Narcotics Bureau operated as a largely autonomous unit throughout Australia during the period 1969 to 1979. The principal aim of the Bureau was the prevention of illict drug importation and

trafficking. The Bureau dealt mainly with breaches of the customs Act 1901 in relation to narcotics offences. During this period there was no

power vested in the Bureau by way of federal or state legislation which

authorised the use of telephone interceptions.

10.22 Although the Bureau corranenced as a small organisation, by 1975 it had increased in size and for the purpose of operations was divided

into four Regions: Eastern Region (New south Wales and the ACT), Northern Region (Queensland, Northern Territory and the northern part of western

Australia), Southern Region (Victoria, south Australia and Tasmania) and Western Region (Western Australia less that part of the State encompassed

in the Northern Region). Each region was controlled by a Regional

Commander usually having the classification of Chief Investigator. The

Regional Commanders were based in Sydney, Brisbane, Melbourne and Perth respectively.

10.23 The Bureau was disbanded in November 1979 following .the

recommendations of the Australian Royal Commission of Inquiry into Drugs

conducted by the Hon. Mr Justice E S Williams. The Williams Royal

Commission recommended that the Bureau be disbanded and an option be

given to all merrbers to remain within the Bureau of customs or to join

the AFP on terms at least equal to those that they had enjoyed while

37

members of the Bureau.

10.24 one of the matters examined by the Williams Royal Commission was

a series of allegations concerning the Narcotics Bureau published in

three articles in the Bulletin magazine during August 1977. one article published on 20 August 1977 was entitled 'Narcotics: our "Dirty Tricks" Bureau' and contained allegations about unlawful activities of the Sydney office of the Bureau, including the activities of undercover officers and their participation in the unlawful interception of telephone

- 206 -

conversations. This article was based on an interview conducted by

Mr Malcolm Turnbull with two former Narcotics Bureau officers, Mr Kevin

David Deane-Spread and Mr Ted colmer. 38

10.25 Mr Harvey Bates, who at all relevant times was in charge of the

Bureau, gave evidence before Mr Justice Williams on 23 November 1977. In

response to an allegation in the Bulletin article of 20 August 1977 that the Narcotics Bureau illegally intercepted telephone conversations, Mr Bates commented:

Officers of the Narcotics Bureau do not have any authority to

intercept telephone conversations. Instructions have been issued to officers expressly forbidding their interference with telephonic communications. In various offices of the Narcotics Bureau approved Telecom equipment has been to allow

the tape-recording of official conversations.3

10.26 Another allegation contained in the article was that in

January 1975 'the Bureau's illegal bugging landed it in trouble with

the Postmaster-General's Department'. Mr Bates commented:

In early 1975 an incident alleging the use of telephone

interception equipment was brought to the attention of the

Department. Following discussions with the Investigation Section of the Postmaster-General's Department an investigation was conducted. These investigations failed to establish any validity of these allegations. Following this allegation the instructions forbidding the interference with telelphone communications was again brought to the attention of all officers.40

10 . 27 It was further alleged in the article that Narcotics Bureau

officers were provided with training which included the rrethods commonly used in telephone interception.

10.28 It is evident from the comments provided by Bates to the

Williams Royal Commission that the Bureau's management denied that Sydney

undercover officers were provided with training in telephone interception methods and was adamant that they had not participated in the unlawful

interception of telephone conversations. The evidence given before this Commission, however, suggests that at the time of the publication of the

- 207 -

article the management of the Bureau would have been aware that an

undercover team had been responsible for the installation of a telephone

interception device in at least one Sydney operation. 41

Course Participation/Training

10.29 All Narcotics Bureau officers were provided with 'advanced

investigator training', usually within twelve months of joining the 42 Bureau. Evidence was given to this Commission by former Bureau

officers that officers involved in undercover work received further training in 1974 when they attended an 'Undercover Investigation

Techniques' course conducted by a security organisation in Victoria. 43

10.30 The training provided in this course was designed to assist

officers in operating and surviving in an undercover environrrent without their true identities being detected and included all forms of

'penetration tactics'. It was said in evidence that sorre of the

'tactics' taught included the techniques required for telephone

interception and that these 'tactics' were not essential for the role

required of the undercover officers. 44

Operations

10.31 The evidence before this Commission disclosed that between mid June 1974 and February 1975 illegal telephone interceptions were utilised in four

'Pyrex',

10.32

Sydney based operations. These 45

'Bonanza', 'Uranus' and 'Mars'. operations were code named

In each of these operations illegal telephone interceptions were utilised by an undercover team with permission from, and at the direction of, the officer in charge of that operation (Operational Commander), but without the knowledge or authorisation of the senior members of the

Eastern Region. The Regional ·commander, Eastern Region, Mr R J Phillips stated to the commission that he relied heavily on information passed on to him by the two Chief Investigators, Messrs T J Mullaly and

R Bannister. 46 As Bannister was in Malaysia for the period during

., '

- 208 -

which the telephone interceptions were carried out, Phillips particularly 47 relied on Mullaly.

10.33 Mullaly gave evidence that he became aware of the use of

telephone interception in only one operation. He stated that in 1975, after the conclusion of operation 'Mars', he was informed that a

telephone interception device had been used. Mullaly further stated that it was his belief that this was a 'one-off situation' . He said that he

did not corrununicate this information to Phillips. He also denied the Bureau's in the installation of the interception device when

later questioned by the -Assistant Director of the Bureau. 48 Details of this operation appear later in this Chapter [paragraphs 10.56-10.65].

'Pyrex'

10.34 Two former Narcotics Bureau officers, Messrs Kevin David

Deane-Spread and Phillip John Lawrence, told the Commission that in 1974

the Bureau received information that Kenneth Kuan Lin saw, a suspected drug trafficker, was expecting a considerable quantity of heroin from

crew members of a merchant cargo vessel named 'Golden Lion'. An

operation codenarned 'Pyrex' was corrunenced which involved physical surveillance of Saw who resided in an apartment block in Potts Point,

49

Sydney.

10.35 Lawrence had been given the task of keeping the apartment

building under surveillance in order to identify a sui table observation post. It was during this examination of the area that Lawrence noticed a Telecom main distribution frame in the basement of the apartment

b 'ld' 50 Ul 1ng.

10.36 Lawrence told the Corrunission that, upon his own initiative, an interception was effected at the main distribution by himself and

another officer. 51 The interception, which took place over three or

four days preceding 26 June 197 4, was discussed by Lawrence with the

Operational Corrunander and his assistant. 52 Lawrence stated that he believed that operation 'Pyrex' was the first Sydney based operation by

- 209 -

the Narcotics Bureau 53 used. Deane-Spread

in which a telephone interception device was

was involved in this operation and may have

provided surveillance while Lawrence. gained access to the main

distribution frame. 54

10.37 Lawrence said that the equipment used in this interception,

including two telephone speakers, a t r ansmitter radio and a recorder, may have been obtained from the Sydney office of the Bureau . 55 Any relevant information obta ined from the intercepted telephone

conversations was conveyed to other Bureau officers engaged in the operation without disclosing the source of that information. 56

10. 38 By means of the intercepted telephone conversations, the

surveillance team gained advance notice on most occasions of saw's departure from the apartment block and often the identity of the persons h

. 57

e was to meet.

10.39 One intercepted conversation disclosed that saw contacted a

person who was a police informer and offered to sell him heroin. The

informer expressed interest in purchasing the drug and went irrnnediately to his Bureau contact and informed him of the offer. 58

10.40 Arrangements were subsequently made for an undercover officer to act as a prospective purchaser of the heroin. Continued monitoring of saw's telephone conversations enabled Bureau officers to assess the safety of the undercover officer and the effectiveness of his

activities. 59 As result of the undercover officer's vvork and the a information provided by the informer, saw was eventually arrested when he offered the heroin for sale to the undercover officer. 60

'Bonanza'

10.41 According to Lawrence, the Bureau had received information

from an informer in Victoria that Kevin William Rogers and others were expecting the irrportation of a large quantity of cannabis in the form

of Buddha sticks from Thailand. Further information indicated that . . . h . . 61

Rodger Thorne was Rogers t e

- 210 -

10.42 Bureau personnel suspected that the consignment included

heroin. They were aware that Rodger Thorne was an employee with a

customs and freight transport agency located at Sydney airport. 62

10.43 'Bonanza' corrunenced in October 1974. Initial

inquiries to locate suitable accommodation, from which to keep the

premises occupied by Rogers under surveillance, were carried out by Lawrence and another officer. Rogers occupied the top flat of a two

storey building in Mirimar Avenue, waverley. The ground floor flat had been recently vacated and Lawrence and other officers took up residence

in this flat in undercover roles. Their purpose was to infiltrate

' d b ' . . . 63 Roger s group an to o serve Roger s act1v1t1es.

10.44 In October 1974, Lawrence discussed with the Operational

Commander the possibility of using an interception device in this

operation. The Operational Commander agreed that such a course should be . . d 64 ub . 1nvest1gate • The s sequent installation of an interception dev1ce was carried out by Lawrence who was accompanied by two investigators. 65

10 . 45 The two investigators and another officer involved in the

operation undertook monitoring duties. Lawrence collected the cassettes recording the telephone conversations from these officers and delivered . 66

them to the Operational Commander at the Sydney off1ce.

10.46 One conversation which was intercepted related to a person from Townsville who purchased some locally grown cannabis from one of Roger's associates. The Bureau conveyed that information to the Queensland . . ed ' 11 67 Pol1ce and the offender was arrested when he return to Townsv1 e.

10.4 7 According to Lawrence, in another conversation Rogers arranged to meet one of his co-conspirators in order to show him a 'drop off'

point for drugs. Narcotics Bureau officers observed this meeting and determined the 'drop off' point. 68 The drugs in question had been

consigned from Bangkok to New zealand. On the same day as the telephone

conversation Rodger Thorne collected the consignment and then delivered it to the target at the 'drop off' point where Rogers and Thorne were

69

arrested.

- 211 -

'Uranus'

10.48 From mid October 1974 to January 1975 the Bureau was involved in the investigation of alleged large scale drug trafficking by Daniel and Lorraine Cohen, John McLaren, Peter Appleton and Tony Eustace (also known as Anderson) (now deceased). This operation was code named 'Uranus•. 70

10.49 The Cohens occupied premises at 58 Liverpool Street,

Paddington. Lawrence said that as physical surveillance of the suspects in the Paddington area proved very difficult, consideration was given to using a telephone interception as an aid to surveillance. 71 He did not specify the officers who gave such consideration to the matter.

10. 50 Lawrence told the Corrunission that the illegal interception took place over a number of days in either late 1974 or early 1975 on the

telephone service connected to the Cohens' Paddington premises. To

effect the interception it was necessary to gain access to a kerbside

distribution pillar located on the eastern side of Elizabeth Street, Paddington. Lawrence encountered difficulties in gaining access to the pillar and in choosing the method to be adopted for the installation of the interception device. He discussed these difficulties with a Bureau officer who referred Lawrence to a NSW Police officer whose identity Lawrence said he could not recall when he gave evidence to the

. . 72 [ . .

The use of distribution pillars in

some detail in paragraphs 7.82-7.91.]

10.51 Lawrence contacted the NSW officer by telephone and subsequently obtained from him a set of keys and a diagram of an 'electrical board'.

The diagram was an outline or sketch of an intercept device in parallel

placement to the telephone wires and depicted several resistors and

capacitors. 73 Lawrence had a duplicate set of keys cut and returned

the original keys to the NSW officer.

74

Lawrence then prepared the

interception device and carried out the initial installation. 75

10.52 The transmitter was removed from the pillar each evening and

replaced each morning as surveillance could not be maintained during the night. Lawrence stated that the officers involved in the removal and

.. ..

- 212 -

replacement of the transmitter probably represented thernsel ves as Pr-t; 76

employees and 'wore dust coats with PMG on them'. The radio

transmissions were received on an FM radio cassette recorder operated by an officer who was located in the rear of a panel van parked across

the road from the pillar. 77

10. 53 Lawrence stated that Deane-Spread rray have accompanied him at the time of the initial installation. He said that Deane-Spread and

other undercover officers carried out the installation and retrieval on other days. Lawrence and other Narcotics Bureau officers were involved in monitoring the intercepted telephone conversations. 78

10.54 In mid January 1975 both Cohen and McLaren were arrested for the possession of heroin. Lawrence stated that the arrest did not follow

directly from the telephone interception. 79 The information obtained by the Bureau at that stage indicated that Eustace was probably near the

top of the hierarchy of that particular importing/trafficking syndicate. It was some weeks after tl1ese arrests that an attempt was made to

intercept the conversations passing over the telephone service connected to the horne of Eustace. 80

10.55 Lawrence, assisted by the Operational Commander and his

assistant, unlocked and opened a kerbside distribution pillar serving the Coogee premises of Eustace . After connecting earphones to the

appropriate pair of wires Lawrence heard a male voice say 'Those rotten mongrel coppers are tapping my phone again - get off the line' . The

. . . . d d d 81 1ntercept1on was d1scont1nue an never resume .

'Mars'

10.56 Between late January and early February 1975, the Bureau

received information that a man named Ronald Manasseh of 18 Dan Avenue, Maroubra, was expecting the importation of a considerable quantity of

heroin from singapore. Bureau personnel were further informed that

Manasseh was to receive an important telephone call in relation to the . . 82

1mportat1on.

- 213 -

10.57 An operation code named 'Mars' was commenced and at the

direction of either the Operational Cpmmander or another officer Lawrence carried out the initial installation of an interception device. 83 The interception took place on the telephone connected to Manasseh's Maroubra premises. 84

10.58 During the course of this operation, the Chief Investigator,

Mr T J Mullaly, requested the Regional Executive Officer of the then

Postmaster General's Investigation Section in Sydney to install a

'pen register' on Manasseh's telephone service. The 'pen register' could be used by the PMG to identify all numbers called from a particular

telephone. Mullaly sought information on all overseas telephone calls made from Manasseh's telephone. 85

10.59 Approximately one week after Mullaly's request, a PMG technician on his way to work by bus observed that a distribution pillar in the

Maroubra area was partly open. The technician refX)rted this to his

supervisor and subsequently the device which had been put in place by Lawrence and his colleagues was located and removed from the pillar by

PMG employees. 86

10. 60 The then Regional Commander, Mr R J Phillips, told the

Commission that the matter was brought to the attention of senior

officers within the Bureau of customs by the PMG Regional Executive

Officer. 87 Phillips said that an investigation into the Narcotics

Bureau's connection with the installation of the interception device was commenced by the Bureau's Assistant Director, Mr B Bates, from

canberra. 88 The Assistant Director contacted Phillips. by telephone and provided him with details of the PM:; incident and asked that an urgent investigation be commenced in Sydney. Phillips gave Mullaly the task of making inqu1r1es of the officers actively involved in operation

'Mars'. 89

10.61 The PMG Regional Executive Officer subsequently contacted

Mullaly and sought information as to whether the Sydney Bureau officers had been involved in intercepting the telephone of Manasseh. The PMG

officer provided details of the subscriber's telephone number which

- 214 -

corresponded to the details provided by Mullaly when he had earlier

requested the 'pen register• 90 [see paragraph 10.58].

10.62 After making inquiries, Mullaly was informed by the Operational Corrunander that he had organised the installation and monitoring of the

interception device in operation 'Mars•. Mullaly said that it was

because of these inquiries that he obtained knowledge about the

undercover team's activities in this operation.

91

Mullaly gave

evidence that he decided that it was in the Bureau • s best interests for him to deny the Bureau • s connection with the interception device. He

subsequently informed the PMG that the Sydney officers had no connection with the installation. 92 He said that at the time he thought that this

was the only operation where an interception device had been used. 93

Lawrence supported the view that senior officers of the Bureau • s Sydney

. office were not aware of the interceptions. He said that although the

fact was known to the Operational Commander, other staff not have

b h

. . . . 94

een aware of t e 1ntercept1on act1v1ty.

10.63 Mullaly told the Commission that on separate occasions both

Phillips and the Assistant Director sought information from him in

respect of this incident. 01 both occasions he advised that the Bureau . 1 d 95 was not 1nvo ve .

10.64 The events surrounding the location of the interception device by the PMG support the evidence that senior officers in the Sydney office

and officers in the Canberra headquarters of the Bureau were not informed

about the interception activities carried out by the undercover teams. However, it is also evident that those investigating this incident became

aware of these officers' activities after the event. Phillips gave

evidence to the Commission that in his opinion 'it was obvious• that the Sydney undercover officers involved in the operation had installed the

d

. 96

ev1ce.

10.65 After the location of the interception device no further attempt was made to intercept conversations passing over the telephone service

connected to Manasseh • s premises. No useful information was d::>tained

- 215 -

from the intercepted telephone . 97 conversat1ons. However, Manasseh, also known as Peter Jackson, was arrested in 1975 and later convicted of th . f h. b . d . 98 e possess1on o pro 1 1te 1mports.

Equipment

10.66 Former Narcotics Bureau officers told the Commission that

surveillance equipment was available to undercover officers at the Sydney office of the Bureau. This included FM receivers and recorders, a voice activated tape recorder and speakers from telephone handsets. All of this equipment could have been used for licit activities, such as

monitoring undercover activities by transmitters worn on the body of an ff . 99 o 1cer.

10.67 Phillips stated that all equipment was held in a store room.

Officers taking the equipment from the storage area at the Sydney office were required to enter their names oo a card system. However, neit her

the storage area nor this system was subject to supervision and rrost

100

officers disregarded the card system.

10.68 During the period mid 1974 to early 1975, undercover officers

in Sydney dismantled and modified equipment to effect interceptions in the four operations described above. Following the discovery of the

interception device during operation 'Mars', Phillips collected all equipment capable of being used for telephone interceptions and packed

it in boxes which he sent to Canberra. 101 Accordingly this equipment

was not available for use after that time.

Commonwealth/New south wales Joint Task Force on Drug Trafficking

10.69 In 1979 Mr Justice E S Williams who conducted the Australian

Royal Commission of Inquiry into Drugs and Mr Justice A E Woodward who

conducted the New south Wales· Royal Commission into Drug Trafficking together made a recommendation that a joint task force ot Commonwealth and New south Wales law enforcement officers be created.

102

The

operations of the task force were to be aimed at securing the conviction

- 216 -

of persons engaged in drug trafficking. The law enforcement officers seconded to the task force would be freed of the routine pressures of

existing law enforcement agencies.

10.70 The Commonwealth/New south Wales Joint Task Force on Drug

Trafficking {JTF) was established as a result of this recommendation. on 4 June 1979 Inspector A L Smaills and sergeants D Leach and J M Willis

from the NSW Police were assigned to a group which undertook some

preliminary work prior to the formal establishment of the JTF. Chief

Investigator R Bannister from the Federal Narcotics Bureau and

Inspector P J Lamb from the Commonwealth Police were also seconded to the group. The JTF commenced operations on 16 JUly 1979 and comprised ten

members drawn from the NSW Police, five from the Federal Narcotics Bureau

and five from the Corrunonwealth Police. 103 The group operated under the

direction of a management corruni ttee consisting of representatives from the NSW Premier's Department, the NSW Police Commissioner, the

Commonwealth Police, the Corrunander of the Narcotics Bureau and lawyers

from the Crown Solicitors' offices of the Commonwealth and New south

Wales. 104

10.71 Each of the senior members and several other members of the JTF drawn from the NSW Police were aware prior to joining the JTF of the use

of illegal telephone interceptions by the NSW Police. However, the

subject was not discussed with junior members or members drawn from the two Commonwealth law enforcement bodies. The matter was never raised at . . 105

management comm1ttee meet1ngs.

10.72 The ten initial targets of the JTF had been identified as a

result of the inquiries by the abovementioned Royal Corrunissions. From the first operation undertaken by the JTF the unlawful telephone

interception facilities provided by the TSU were utilised. In August 1979 on the instruction of Smaills, Willis, who was the intelligence

officer, approached Inspector R H Stevenson, the Officer in Charge of the BCI, for approval to have a telephone interception device placed on the

telephone service of the target of operation 'Alpha' • This was approved and Willis then approached Sergeant K R Brown of the TSU to effect the

installation of the device.

- 217 -

10.73 In the period from 1979 to the cessation by NSW Police of the

unlawful interception of telephone conversations in 1984 there were three leaders of the JI'F, all drawn from the NSW Police. They were smaills

from June 1979, Inspector E E Lloyd from April 1980 and Inspector

P A G Lawrence from January 1982. During this period the procedure

adopted within !:he NSW Police, whereby the approval of the Officer in Charge of the BCI was sought for the installation of interception devices

[see paragraph 7.35], was applied by the JTF.

10.74 Willis told the Corrnnission that from the establishment of the

JTF until August 1981, after obtaining approval from the BCI he would

deal directly with the TSU. He would attend the TSU offices to collect transcripts of intercepted conversations and return them to his safe in the JI'F offices to which only he had access. The information would be

communicated in the form of running sheets to those members of the JTF

who were involved in the particular operation. At the end of the

operation the transcripts were shredded by Willis. 106 With some

variations this practice applied after Willis left the JTF.

10.75 From December 1979 legislation was in place to enable members of the newly formed AFP to conduct authorised telephone interceptions in drug trafficking investigations. However, due to technical difficulties the first such interception did not occur until May 1981. 107 Even

after lawful interceptions were available, the JTF continued to use the illegal facilities of the TSU. Lawrence told the Cormnission that the

reason for this was that authorised interceptions involved too much

108

delay.

Operations

10.76 The JTF's four operations code named 'Alpha', 'Charlie', 'Bravo' and 'Snooker' , in which illegal telephone interceptions were used are

described in Chapter 8 [paragraphs 8.67-8.72, 8.73-8.74, 8.75-8.89, 8.94-8.98]. With the exception of operation 'Alpha', in all cases

applications could have been made to the AFP for warrants to be sought from a Federal court Judge authorising lawful telephone interceptions.

Police witnesses gave evidence to the Commission that there were a

- 218 -

further five JTF operations, code named 'Golf', 'Georgie', 'Zoomtop', 'Post' and 'Vaucluse' , where illegal interceptions were used although lawful ones could have been requested through the AFP. 109

10.77 Retired Executive Chief superintendent E E Lloyd was leader of the JTF during the period 24 April 1980 to 27 necerrber 1981.110 He

stated in evidence to the Commission that immediately prior to his

transfer to the JTF he had a discussion with the then Assistant

Commissioner (Crime) of the NSW Police, Mr C R Abbott. Lloyd believes

that during that discussion Abbott advised him among other things that the interception facility of the TSU would be made available to the

JTF. 111

Abbott stated that during 1980 and 1981 he was on the

management committee of the JTF and that although he had nominated Lloyd

as leader, he could not recollect specifically advising Lloyd about the interception capability of the TSu. 112 Lloyd also said that he

discussed the availability of illegal interception facilities with the outgoing leader, Smaills.113

10.78 Lloyd said that he approached superintendent B Blissett, the Officer in Charge of the BCI, for telephone interception assistance in operations 'Golf', 'Georgie', and 'Zoomtop' •114 Lloyd and Chief

Superintendent J M vJillis stated that operation 'Golf' was conducted during the period 1 January 1980 to 30 June 1981 and concerned a

principal target and his associates including V Spink and G Eden. Willis said that no useful information was obtained as a result of the

interceptions placed on each of the targets. 115

10.79 Lloyd and Willis stated that operation 'Georgie' was conducted during the period 1 January 1981 to 31 May 1981. The targets were warren Austin Richards and his associates, including Robert James Copland and Paul O'Connor.116 Willis said that Copland was the organiser of

couriers for the importation of drugs. Copland employed a system whereby he went overseas with a group of couriers, purchased heroin and gave it

to his couriers to bring into Australia. The couriers, on their return to Australia, gave the heroin to O'Connor who then gave it to Richards for distribution. Willis said that the arrest. of Copland and O'Connor resulted from information received from informers which was supplemented

- 219 -

by inforlllCltion obtained from intercepted telephone conversations. Both were charged with conspiring to import heroin and other substantive

offences. The couriers and Richards were later arrested. Richards was charged with conspiring to import heroin and other offences. He and

Copland were initially sentenced to sixteen years imprisonment. on

appeal to the of Criminal Appeal Copland's sentence was reduced to

eight years imprisonment and Richards was granted a retrial. However, as Richards had served a considerable portion of the sentence imposed in the first trial, the Crown declined to proceed. O'Connor was sentenced to five years irrprisonrnent. 117 Willis said in evidence that without the

information obtained from intercepted telephone conversations the targets in this operation would not have been arrested and charged for drug

118

offences.

10.80 Both Lloyd and Willis stated that operation 'Zoomtop' was

conducted during the period 1 June 1981 to 30 June 1981 and the target

was Constantine Skiadas. Willis said that as a result of inforlllCltion

obtained frorn a person who said that he acted as a drug courier for

Skiadas, Willis made arrangements for physical surveillance and an

. . be 1 d h . k . d 119 1ntercept1on to p ace on t e telephone serv1ce of S 1a as. Willis said that some time later, Skiadas and thirty other people were charged with conspiring to import heroin and other offences. He said that these charges did not result from any information ootained through the

. . 120

1ntercept1on.

10.81 sergeants B W Johnston and R J Southwell of the NSW Police gave evidence that they had been attached to the JTF since July 1979 and that they particpated in operation 'Post'. In this operation on 15 and

16 December 1983 an interception device was connected to the telephone 121

service of Fred Peisley, an associate of the target. Johnston and

Chief Superintendent P A G Lawrence said that the interception in this operation was installed for the sole purpose of establishing the

whereabouts of the target who · was a principal of the so called 'Post'

drug syndicate and who at the time of the fnterception was the only

member of the syndicate who had not been arrested.

122

Johnston and

Lawrence also said that the JTF received information that the target was

- 220 -

to make contact with Peisley and that if the interception was to be

useful the device had to be installed on the day the information was

received. Johnston said that there· was insufficient time to obtain

permission for a lawful interception and therefore an unlawful device was used. 123 Lawrence said that he gave approval for the use of the

interception device and that he or another officer saw superintendent R c Shepherd of the BCI to request the installation of the device . 124

The interception was unsuccessful. However, the target eventually was

charged with conspiring to import heroin and other offences. 125

10.82 Willis stated that the target of operation 'Vaucluse' was

suspected of being involved in drug trafficking. The target was

associated with Charles Losurdo (also known as Charlie Lowe) one of the principal targets in operation 'Bravo', and with a target in operation 'Golf•. 126 The Historical overview records that an interception in

this operation was installed on 22 February 1983. Reference is also made in the overview to the suspected association between the target and

127

Losurdo. Lawrence said that an entry for 21 February 1983 which

appeared in his official diary disclosed that he met with superintendent R c Shepherd, Officer in Charge of the BCI, regarding drug matters.

Lawrence said that as this meeting took place the day prior to the

unlawful interception in 'Vaucluse', he assumed it related to a request f h . 11 . f . t t' d .

128

or t e o an ercep ev1ce.

Interceptions by a Private Inquiry Agent

10.83 In the National Times of 11 to 17 October 1985 an article

contained what purported to be transcripts of two conversations: one was said to involve a Sydney doctor and his wife and the other, the doctor

and an employee. The article did not explain how the transcripts were obtained, but stated that they were 'in the files of two police forces'.

10.84 01 17 October 1985 sergeant J F Withers, who at the time he

appeared before the Commission was attached to the NSW BCI, gave evidence

that he was aware that for several years an informer used by the BCI had been intercepting conversations of persons using mobile car telephones.

Withers further stated that the conversations referred to in the

- 221 -

National Tirres were but one example of conversations intercepted by the informer. The informer, according to Withers, had provided copies of the tapes of the conversations referred to in the National Times to the NSW BCI and also to the Australian Broadcasting corporation. Withers said

that the BCI had copies not only of the tapes of conversations which were the subject of the article but also of many other tapes supplied by the . f 129 1n ormer.

10.85 On 18 October 1985 the New south Wales Commissioner of Police, Mr J K Avery, supplied to the Comnission four cassette tapes which were

those supplied by the informer to the OCI and which purported to be

recordings of intercepted telephone conversations conducted by the doctor. 130

10.86 on 21 October 1985 a private inquiry agent gave evidence to the

Comnission. He stated that he was responsible for intercepting certain

telephone conversations involving the doctor. He told the Commission that he had been intercepting and recording conversations conducted over mobile car telephones for approximately three or four years. The

interceptions were effected using a piece of equipment known as a

1

scanner 1 - a radio receiver having the capacity to automatically scan

a large number of frequency. The scanner locks on to a particular

frequency if a transmission on that frequency is detected. The private inquiry agent described his scanner as a Tandy model capable of scanning 16,000 frequencies. Using the scanner he would intercept various

transmissions, including police radio transmissions and mobile car telephone conversations. He said that he came upon the frequencies used for mobile car telephones by trial and error.

10.87 The private inquiry agent made tapes of conversations

intercepted in this way. Where ·he considered that such conversations indicated criminal activity he supplied copies to the OCI if an offence against NSW laws was suspected, or to B Division of the AFP if a

Comrocmwealth offence was suspected. He continued to supply tapes of

intercepted conversations to one member of B Division after that member h d . . . f h 131 had ceased to be attac e to B D1v1s1on o t e AFP.

- 222 -

10.88 He provided to Commission four cassette tapes which he said

contained conversations involving the Sydney doctor, together with a notebook containing his notes on intercepted conversations. 132 He

identified the tapes prodlced by the Commissioner of Police as being copies of the tapes of conversations he had supplied to the scr. 133

10.89 He also stated that he had in his possession an additional

fourteen cassette tapes which comprised a compilation of intercepted conversations which he had supplied to the NSW OCI and the AFP. He

estimated that he had provided between 150 and 200 tapes of such

conversations to the ocr and approximately twenty to the B Division of the· AFP • 134 In general, the tapes he supplied to the OCI and AFP

contained only one conversation per tape. 135

10. 90 The private inquiry agent subsequently prodlCed to the

Commission a further twenty one cassette tapes of intercepted

conversations conducted over rrobile car telephones together with five note books containing handwritten details of some of the conversations recorded. 136 He said that these tapes were compilations of tapes of

conversations he had provided to the BCI and AFP. 137 The NSW Police

Commissioner subsequently produced seventy four cassette tapes which largely duplicated the conversations contained on the tapes provided b:f 138 the private inquiry agent. The tapes apparently recorded

conversations over a two year period from August 1983 to August 1985. There were sane conversations contained on the tapes prodlced by the private inquiry agent not contained on those produced by the Police

Commissioner. The tapes prodlced by Mr Avery contained only one or two conversations per tape with the balance of the tape being unused.

10.91 The private inquiry agent told the Commission that he had

received no payment for the supply of the material to the BCI and

B Division. He did however, receive either replacement cassette tapes or 1 . d 139

an amount of money to reimburse him for the cassette tapes supp 1e .

10. 92 He stated that he considered that intercepting conversations

conducted over mobile car telephones was not unlawful and that in 1981 or 1982 he had obtained legal advice to that effect.

140

The

legality of the practice

conducted over mobile car

[paragraph 5.28].

Endnotes

l Sll05-07, Foster

- 223 -

of intercepting telephones is

2 TI5l Part 2; S969, Hawthorn

3 El337, Lamb; El262, Hawthorn

4 TI205

5 TI212 folio 288

6 El262-63, Hawthorn

7 TI69 Vol l Part 19

8 TlB/109-10

9 TI69 Vol l Part 19; TI212 folios 270-97

10 El268, Hawthorn

ll E616, Stanton; El268, Hawthorn

12 El200, Ogg

13 El266, Hawthorn

14 El338, El343, Lamb

15 El266, Hawthorn

16 El350, Lamb

17 El554, Farmer

telephone dealt with

18 S652, Lamb; El557, Farmer; Ss97l, Hawthorn

19 TI238; El539-40, carter

20 S749, Woods

21 s750, woods

22 SslOOO, Woods

23 Ss97l, Hawthorn

24 El604, Blissett

25 El272, Hawthorn; El33l, Lamb; Ss857-58, Robinson 26 El326, Lamb

27 TI212

28 TI2ll

29 Ss880, Lewington; Ss982, Jones

30 Ss88l, Lewington; Ss927, Blissett; Ss985-86, Jones 31 TI2ll

conversations in Chapter 5

32 Ss985, Jones; Ss88l, Lewington; Ss927, Blissett; E833-35, Egge 33 ibid

34 E946, Chambers; El593, Blissett; El277, Hawthorn 35 E839, Egge; E95l, Chambers

36 El457, Farmer; El516, Jones

37 Report of the Austrqlian Royal Commission of Inquiry into Drugs, The Hon. Mr Justice E S W1ll1ams, Chap 5, page 8164 38 Williams Royal Coounission transcript of evidence on 23.11. 77

pages 498, 523-27; Adm 15 Part 3 folios ll-13 39 Williams transcript 23.11.77 page 503

40 Williams transcript op cit page 525

41 Ss793-94, Phillips

- 224 -

42 Williams Report, Chap 3, page B63; S909, Lawrence

43 S909, Ss788, E2830, Lawrence; Ss794, Phillips

44 S888, Mullaly; SS794, Phillips; S894, E2676, Deane-Spread; S909, E2830, Lawrence 45 S9ll-19, Ss786-90, E2809-45, Lawrence; S893-95, E2668-69,

2673-75, Deane-Spread; S885-87, E3862-63, Mullaly 46 S792, E2856, Phillips

47 S890, Bannister

48 S886, E3863, Mullaly

49 S893, E2668-69, Deane-Spread; S912, E2815, Lawrence 50 S913, Lawrence

51 S912-13, E2815, E2823, Lawrence

52 S918, Lawrence

53 E2815, Lawrence

54 S788, Lawrence; S893, E2668-69, Deane-Spread 55 E2823, Lawrence

56 E2824-26, S913, Lawrence

57 S917, Ss788, E2820, Lawrence

58 S917, E2820, Lawrence

59 ibid

60 E2820, Lawrence; TI363 folio 146

61 S912, Lawrence

62 S912, E2817, Lawrence

63 S9ll, Ss787, E2830, Lawrence

64 S9ll, S917, Lawrence

65 S912, ss787, Lawrence

66 S912, Ss788, Lawrence

67 S916, Ss788, Lawrence

68 E2820, Lawrence

69 S917, E2816-20, Lawrence; TI363 folio 144

70 S914, Ss789, Lawrence

71 S914, Lawrence

72 S914, S919, E2816-17, Lawrence

73 ibid

74 S919, Lawrence

75 S914, Lawrence

76 E2834, Lawrence

77 S914, Lawrence

78 ibid

79 S917, E2820, Lawrence

80 S915, Lawrence

81 S915, S918, Lawrence

82 S915, Lawrence

83 S918, Lawrence

84 S915, Lawrence; S885, Mullaly; S895, Deane-Spread 85 S885-86, Mullaly; ss793, Phillips

86 S895, Deane-Spread; Ss793, Phillips; S916, Lawrence; S885,

Mullaly

87 E2848a, Phillips

88 E2849, Phillips

89 Ss793, E2849, Phillips

90 S885-86, Mullaly

91 S885, E3862-63, Mullaly

92 S886, Mullaly

93 E3863, Mullaly

- 225 -

94 S918, E2814, E282l, E2837, Lawrence

95 8886-87, Mullaly

96 Ss793, E2849, Phillips

97 S914, Lawrence

98 TI363 folio 139; S887, Mullaly

99 S911, S913-l4, E2822-23, Lawrence; E2457-58, Travers; E2850,

Phillips

100 E2851, Phillips

101 Ss793, Phillips

102 Williams report page A330; Woodward report page 1648 103 Ss39l, Willis

104 Ss65, Sroaills

105 El73l, Ss39l, Willis; Ss65, smaills; E346, Lloyd;

106 El73l, Willis

107 TI320

108 E370, Lawrence

109 S377, S379, Ss604-05, E2253-54, Southwell; S362, S364, Ss644,

E2328-29, Johnston; S244-45, S247, ss400-02, Willis; Sl64,

Sl66, Ss67-68, Lloyd; Sl56-58, ss73, Lawrence 110 S67, E342, Lloyd

lll E344-45, E353-54, Lloyd

112 Ss658, E2386-87, Abbott

113 E354-56, Lloyd

114 Ss68, E348, Lloyd

115 Sl64, Sl66, Lloyd; S244, S247, Ss40l, Willis

116 ibid

117 TI363 folio 140

118 S244, Ss400-0l, El743-44 Willis

119 Ss402, Willis

120 Sl64, Sl66, Lloyd; S245, S247, Ss402, Willis

121 S359, S364, Ss644, E2328, Southwell; S374, S377, S379, Ss604-05,

Southwell

122 S364, E2328, Johnston; E366-67 Lawrence; E2253, Southwell 123 Ss644, E2328, Johnston

124 E366-69, Lawrence; Ss605, Southwell; TI158 folio 14 125 S362, E2329, Johnston; S377, Ss606, Southwell

126 S245, Ss402, Willis

127 TI159 folio 18

128 Ss73, Lawrence

129 E2529-34, Withers

130 TI277

131 E2690, E2689, E269l

132 TI290

133 E2702-04

134 E2706

135 E27ll

136 TI28l; TI282

137 E2706, E27ll

138 TI328

139 E2690

140 E2712-l3

CHAPI'ER ll

THE ROLE CF TELECOM

- 229 -

CHAPI'ER ll THE ROLE OF TELECOM

ll.l An of the inquiry which concerned the Conunission was

the poss ible involvement of Telecom employees in interceptions of

communications passing over the telecommunications system undertaken

by the NSW Police. It seemed that there could have been a degree of

complicity by some employees of Telecom, particularly as the TSU made use of various items of equipment which had been obtained from Telecom. The Commission heard evidence concerning several interception devices which had been discovered by Telecom employees. These discoveries and other matters relating to Telecom are discussed below.

Assistance to NSW Police Undertaking Illegal Telephone Interceptions

11.2 Evidence before the Conunission shows that members of the NSW Police had in their possession a number of items resembling Telecom

equipment and materials to facilitate illegal telephone interceptions,

for example, study notes from Telecom technician courses1, keys to

unlock the telephone pillars2, facsimiles of leather Telecom tool

3

bags and Telecom logos which were used on police vehicles to give them the appearance of Telecom vans during the installation of interception d . 4 l . ev1ces. Mr Kenneth Stan ey Papworth, Ch1ef Investigator for Telecom in New south Wales, gave evidence to the conmission that he had supplied the Telecom logos to the NSW Police as he believed they were required for

legitimate surveillance purposes. He stated that he did not supply keys to the pillars and said that most Telecom technical staff would have such 5

keys.

11.3 Mr Papworth stated that he regularly provided various law

enforcement agencies with information concerning the names and addresses of telephone subscribers, but that he had no knowledge that such requests could be associated with illegal telephone interceptions. 6

Sergeants

- 230 -

P L Egge and B R McVicar told the Commission that during the period illegal interceptions were carried out they made inquiries of Telecom to determine the names and addresses of the subscribers to telephone services referred to in intercepted conversations. They said that

Telecom staff were not informed that the inquiries were associated with illegal telephone interceptions. 7

11.4 Mr Papworth stated that all requests for information should

properly be channelled through the Chief of Staff of the CIB, but that in urgent cases he has provided details by telef*lone to police officers known to him. 8 senior Constable K L Huber gave evidence that

Mr Papworth had assisted police at the time of the interceptions with

such information. 9 Egge and McVicar told the corrrnission that they had

dealt directly with other Telecom officers10 •

11. 5 Prior to the introduction of more sophisticated equipment, a

telephone nurrber dialled by the target of an interception operation was identified by slowing down the tape recording of an intercepted call and counting the nurrt>er of 'clicks' on the line as the nurrber was dialled11 [see paragraph 7.52]. According to McVicar, this was a difficult process and mistakes often were made. In order to identify parties to

conversations which were of particular interest, the police made

inquiries of Telecom, either by telephone or by submitting a typed list of numbers to the Senior Investigator of Telecom after the tape recording had been transcribed. Inquiries by telephone were made only a few times

a week, regarding one or two telephone numbers. The typed lists

containing up to twenty telephone numbers were sent when necessary but not 1nore than once a week. McVicar stated that BCI members were

reluctant to make too many inquiries because they relied on the voluntary cooperation of Telecom staff and did not wish to arouse suspicions as to the activities of the BCI. 12

Devices Discovered by Telecom

11.6 A nurrber of interception devices installed by the TSU were

discovered by Telecom officers. provided below. Details of these discoveries are

- 231 -

NSW Police Device at canley Heights in 1968

11.7 As stated earlier in this report, the evidence before the

Corranission is that the NSW Police first commenced to undertake illegal

telephone interceptions in 1967 or 1968 [see paragraphs 7.3-7.4, 7.12, 8.17]. The earliest interception referred to in the Historical overview prepared by the TSU is that in respect of a prison escaper, Keith Joseph Hahn, at 233 Canley Vale Road, Canley Heights in June 1968. 13

11. 8 Sergeant K H Hofer told the Corranission that the interception

device had been installed to intercept the telephone conversations of a Minister of religion with whom Hahn was allegedly hiding. Hofer was monitoring the intercepted telephone conversations from a nearby vehicle and saw a PM:; employee discover the device in a distribution pillar on

the kerb. The employee did not remove the device from the pillar and no action was taken by the PMG as a result of the discovery.14

NSW Police Device at Malabar/Maroubra 1977

11.9 Mr Papworth gave evidence that in 1977, when he was Acting Chief Investigation Officer of Telecom, he was informed by Telecom employees that a telep10ne interception device had been found by a linesman in a Telecom pit in l>1aroubra or Malabar .

15

The )· device was contained in- an

army ammunition case and refX)rtedly resembled a bomb. Consequently the

Army Disposal Unit was called in by local police and it was then

discovered to be a telephone interception device.

brought in and left in Mr Papworth's office.16 The device was

11.10 r1r Papworth stated that shortly thereafter a member of the NSW Police telephoned him and asked to see him. He subsequently met in his office with Sergeants A Hawthorn,· R KilburH, and H J McKinnon of the TSU. '!hey admitted that the device belonged to the NSW Police and

explained that a well known criminal was in danger of being killed and the interception device had been installed to ascertain the identity of the person who might be threatening his life. Mr Papworth said that he pointed out to the officers that the device was illegal and that he coUld

- 232 -

not subscribe to the practice. 17 When the police asked that the device

be returned to them, he did so but warned that it should not happen

again. 18 Kilburn in evidence gave same details of this incident but

was unable to recall the identity of the person who was the subject of

the interception.19 There is no entry in the Historical Overview

prepared by members of the TSU which appears to fit the description of this incident. 20

NSW Police Device at Bondi in April 1983

11.11 Russell Cox escaped from Katingal maximum security prison at Malabar in November 1977 and is still at large. 21 He was suspected by

police of being inplicated in the murder of Ian Revell Carroll, an

executive member of the Victor ian Branch of the Federated Ship Painters and Dockers Union. on 3 January 1983 members of the Victoria Police

requested the NSW BCI to investigate the murder.

22

The Historical

Overview prepared by members of the TSU disclosed that on 17 January 1983

an interception device was placed on the telephone service connected to

the home of a woman who resided at Curlewis Street, Bondi and who was 23

suspected by police of being an associate of cox.

1L12 Superintendent R C Shepherd gave evidence to the Commission that he was contacted by a senior investigator of the Investigation section at

Telecom regarding the discovery by Telecom of this device on 11 April

1983. Shepherd informed the investigator that he could not help him with

his inquiries. 24 As a result of this discovery operations in respect

of telephone interceptions by the TSU ceased for a time but resumed four months later in August 1983 25 [see paragraphs 7.44, 7.54].

11.13 The matter was referred by Telecom to the AFP for investigation on 7 March 1984. on 27 March 1984 Chief Inspector P J Brittliff of the

AFP forwarded to his Assistant Cornnissioner (Investigations) a technical

report on the interception device. He commented that it would be

reasonable to assume that the Bondi device belonged to the BCI or

had been constructed in such a manner as to direct suspicion towards the

NSW Police. He said that the device operated at a frequency of 163.45

MHz which was an assigned 1 classified 1 frequency allocated by the

- 233 -

Frequency Management Branch, Department of Corrununications to all state Police Bureaus of Crime Intelligence. 26

11.14 On 10 August 1984 senior Constable c A Buttner of the AFP

Criminal Investigation Division reported to the Detective Inspector of that Division . in relation to this and other devices discovered by

Telecom. He speculated that, as the woman whose conversations were the subject of the interception was associated with Edward James 'Jockey' Smith, the prime reason for the installation of the device may have been to keep abreast of tactics and evidence likely to be produced at smith's trial which was proceeding at the time. Buttner also suggested that the device may have been installed by criminal associates of smith who may have feared possible disclosures by him during the court hearings. 27

11.15 On 13 February 1985, in response to a query from Telecom,

Assistant Corrunissioner R J McCabe, Commander of the Eastern Region of the AFP, wrote to the State Security Officer of Telecom informing him that in respect of this device, 'Inquiries completed 10.8.84. No suspect identified, and no information available to assist inquiries further•. 28

NSW Police Device at Kogarah in 1984

11.16 In 1983, in the course of operation 'Slim' which concerned

Murray Stewart Riley and his associates, two telephone interceptions were effected by NSW Police on the telephone service of Donald Alan Reynolds 29 at 4 carroll street, Kogarah. [For details of this operation see

paragraphs 8.118-8.123.] The first interception was in operation

from 30 Noverrber 1983 to 16 December 1983, when the device used was disconnected because it was required urgently for another operation. 30 Another interception device was connected to Reynolds's telephone service on 28 Decenber 1983 and remained in operation until it was disconnected

by a Telecom employee on 3 January 1984. 31

11.17 sergeant G Shelley gaYe evidence to the Commission that he had read transcripts of Reynolds's telephone conversations wherein Reynolds indicated he was aware that his telephone conversations were being

._ 234 -

32

intercepted and that he had notified Telecom about the problem.

Superintendent R c Shepherd told the Conunission that he thought that members of his staff at the BCI had seen employees of Telecom find the

device. He did not recall hearing anything about the incident from

Telecom. 33

11.18 d

. 34

ev1ce The Telecom file in

contains information relation that the

to the Reynolds interception device was discovered by a

linesman while he was repairing a fault in a cable pit. The device was delivered to the AFP for investigation. Chief Inspector P J Brittliff of the AFP concluded that it was reasonable to assume that the unit belonged to the NSW Police BCI or had been constructed in such a manner as to

direct suspicion tCYNards the NSW Police. The basis for this conclusion was that the frequency of the transmitter was within a range used by

police and the device was similar to a device earlier found at Bondi [see paragraph 11.121. 35

11.19 Senior Constable c A Buttner of the AFP Criminal Investigation Division mentioned in his report dated 10 August 1984 that it was almost certain that the device 'was planted by or for a police organisation (the New South Wales Police Force) ' but that there was nothing more than a

clear inference of involvement by the NSW Police. 36

11.20 Again, on 13 February 1985 in response to a query from Telecom, Assistant Corrunissioner R J MCCabe, Cornrrander of the Eastern Region of the AFP, wrote to the State Security Officer of Telecom, informing him that in respect of this device 'Inquiries completed 10.8.84. No suspect

identified, and no information available to assist inquiries further•. 37

Other Devices

11.21 Telecom files made available to the Corrunission disclose that several other telephone interception devices were discovered in Sydney by Telecom employees in the course of their duties, including a device

discovered by a lines officer in a cable distribution pit in Randwick in August 1983 38 , a device on one of the extensions of a 'Corranander'

- 235 -

telephone service in the city in July 1984, 39 a device in a

distribution pillar in south Coogee also in July 1984, 40 a device in

Redfern in March 1985, 41 and another attached to a telephone cable in a . . 42

Mascot in July 1985. The identities of the persons who

installed these interception devices are not known.

11.22 The circumstances of the discovery by the PM3 of an illegal

interception device installed by members of the Federal Narcotics Bureau are dealt with in Chapter 10 [paragraph 10.59].

11.23 Mr Papworth, gave evidence to the Commission that in addition to the instances noted above, he was aware that over the years several small listening devices had been found by Telecom enployees 43 . These were approximately one centimetre by three centimetres in dimension and were

connected by two bulldog clips to telephone wires. They operated as a small transmitting device, drawing power from the telephone system, and hence were easily detectable. 44

Suspected AFP Device at Manly 1983

11.24 Mr Papworth also told the Commission about the discovery of a

listening device installed on the telephone service connected to business premises at Ashburner Road, Manly, on 17 February 1983.

45

Telecom

employees had been called to investigate a telephone cable which had been

damaged when a dividing fence had been erected. They discovered ·the

listening device in a Telecom pit near the premises. The device was given to Mr A J Locastro, senior Projects Officer, Telecom, who arranged for the device to be photographed. Mr Papworth recalled showing the

photographs to a member of the TSU but was unsure whether it was sergeant R Kilburn, w J McKinnon or A Hawthorn. 46 sergeant W s Stanton gave

evidence that he had been shown photographs by Hawthorn who said that . . 47

they had been taken by Telecom

11.25 Mr Papworth discussed the matter with the owner of the business premises who requested that the · device be given to him. Mr Papworth

refused and said it oould be handed to the AFP for investigation. He

- 236 -

said that the owner had suggested that the AFP might have been

'bl f . t 11' h . . d . 48 respons1 e or 1ns a 1ng t e 1ntercept1on ev1ce.

11. 26 The next day, 18 February 1983, the AFP were informed of the

discovery of the device and requested to investigate the matter. 49 The

transmitter was identified as being an AID brand with a frequency of 50 155.5 MHZ and an output of 1 watt.

11.27 The AID transmitter was one of the brands l).Sed by the AFP. They were manufactured in the United States and marketed by Pacific

Communications Pty Ltd of Rydalmere. The printed circuit board attached to the device was one comnonly used in an AID TA-400 telephone voice actuator. Associated parts and material such as switches, tape,

batteries and wires were all easily obtainable from most electrical equipment outlets in Australia. 51

11.28 The matter was then referred to the Internal Investigation

Division of the AFP. An investigation was carried out by superintendent A Brown. On 11 April 1983 Brown reported the findings of his

investigation to the Chief Superintendent of that Division. 52 Brown

made inquiries of the Electronics Services . Branch, the Special

Investigations Branch (B Division}, the Observation Squad and Pacific Communications Pty Ltct. 53

11.29 The Electronic services Branch had fifty eight transmitters but only two of the type under investigation. Both transmitters were

accounted for. Chief Inspector P J Brittliff of that Branch told Brown that he would discount the possibility of an AID transmitter of another frequency being purchased by his Branch and the frequency being changed to 155.5 MHz, because it would be expensive and technically and

administratively awkward. Brown was informed by Sergeant B R Bennett of the Observation Squad, Eastern Region, that the Squad possessed three AID transmitters. The transmitters did not, however, operate on a frequency . 54

of 155.5 MHZ and all were accounted for.

11.30 Acting Superintendent D J Mitchell, the Officer in Charge of the Special Investigations Branch (B Division}, made inquiries of eacn of the

- 237 -

four operational units under his control in Canberra, Sydney, Brisbane and Melbourne. Each of these offices maintained its own asset

register. The Canberra office could not what equipment was being

held 'in the field'; the Brisbane office reported that it had no

interception equipment; the Melbourne office reported that it

had one transmitter on loan from the Canberra office which had since been

returned; and the Sydney office reported that the unit had six AID

transmitters, only one of which operated on the 155.5 MHz frequency with 1 watt output. All six transmitters were accounted for, although two had

not been recorded in the asset register. 55

11.31 Inquiries were made of the Managing Director and General Manager of Pacific Communications Pty Ltd, Messrs F J Williams and w T B Andrew respectively. 56 The latter provided Brown with a statement. 57 After examining all records he stated that three transmitters of 155. 5 MHZ

1 watt output were identified as having been sold to the AFP. Two

telephone voice actuators (AID TA-400) had been sold by the company to the AFP. Mr Andrew had no knowledge of any other distributor of AID in Australia. To the best of his knowledge the company had not sold any

transmitters on 155.5 MHz frequency with 1 watt output to anyone other than the AFP. 58 In the course of the investigation of the records it

was discovered that three such transmitters had been purchased by the AFP

for a joint AFP/Victoria Police task force, Melbourne, all of which were still in the possession of that task force. There was no record by the

company, however, of the transmitter which was held by the Special

59

Investigations Branch in Sydney.

11.32 Brown concluded that all transmitters of 155.5 MHz frequency and all TA-400 voice actuators purchased by the AFP had been accounted for and that the Branch and Unit asset registers had been reconciled against the actual items. The AFP records were then reconciled against the

h 1

. 60

invoices kept byte supp

11.33 Inspector A C Wells of B Division, Sydney provided Brown with a report in which he suggested that, because of the history of the

investigation by the AFP into the activities of the owner of the

- 238 -

premises, it was possible that the owner had arranged for the device to be attached to his own telephone to discredit the AFP. He mentioned that

the owner was also under investigation for the importation of car

telephones which he had been using illegally and hence he would have connections with people skilled in electronic communications. He also commented that it would be rather na1ve for the AFP to have used its own . . 61

frequency in an illegal operat1on. Wells gave evidence to the

62

Commission and he confirmed on oath matters mentioned in his report. He also gave evidence that it was easy to ascertain the frequency used by

the AFP. 63

11. 34 01 13 February 1'985 Assistant Commissioner R J McCabe, Commander Eastern Region wrote to the State Security Officer of Telecom and in relation to this matter stated 'Inquiries completed 10.8.84. No suspect developed and no information available to assist inquiries further•.

64

11.35 The Commission notes that there is a number of aspects of this matter which give rise to a reasonable suspicion that members of the AFP installed the device to assist in their investigation of the owner of the premises. The target was under investigation by the AFP which had the necessary equipment and knowledge to effect the interception. The device was operated at a frequency used by the AFP. It was unlikely that any

other person had such equipment in Australia. The likelihood that the owner of the premises installed the device in order to discredit the AFP is remote as the device was discovered by chance and not as a result of a complaint.

Conclusions

11.36 The role of and its staff in relation to illegal

telephone interceptions was mentioned only in a peripheral manner by witnesses who gave evidence to the Royal Commission and only two Telecom employees, Messrs Kenneth stanley Papworth and Stanley Maurice Fish, were called to give evidence.

11.37 There was evidence given that some Telecom staff had deduced that members of the NSW Police and the Narcotics Bureau might have been

- 239 -

involved in undertaking illegal telephone interceptions. 65 For example

there was evidence that the Telecom Chief Investigation Officer was aware that a device discovered by Telecom in 1975 belonged to the Narcotics Bureau66 [see paragraphs 10.61] and that Mr Pap.vorth, then Acting Chief Investigation Officer, had returned a device to the NSW BCI in 197767

[see paragraph 11.10]. His suspicions about whether the BCI were again involved in illegal telephone interceptions were aroused when another device was found in 1983 at Manly and accordingly he showed photographs of the device to a TSU officer. 68 He later suspected the AFP of

installing this device69 [see paragraphs 11.24-11.25].

11.38 There was however, no evidence that senior merrbers of Telecom staff had been formally put on notice that NSW Police had been involved in illegal telephone interceptions, and some members of the NSW BCI held the view that the Telecom staff did not know about these activities. 70

Endnotes

1 Ssl91, Chinnery

2 E259l, Hawthorn

3 E2586, Hawthorn; Ss45, E624, Stanton

4 SS153, LOwe; Ssl90, Chinnery; Ssl75, Moore 5 E2498-9, Papworth

6 S98l, Papworth

7 Ss346, Egge; ss865, McVicar

8 S981, Papworth

9 E532-33, Huber

10 SS346, Egge; Ss865, McVicar

11 Ssl9, Kilburn; Ss865, McVicar

12 SS865, McVicar

13 TI159 folio 105

14 Ssl06, E503-04, Hofer

15 S975, E2495-95a, Papworth

16 S975, E2496, Papworth

17 S975, E2497, Papworth

18 S975-76, Papworth

19 El40-42, Kilburn

20 TI159

21 E294l-42, Green; S489, Calladine; S531, Harvey 22 TI158 Part 3 folio 102; E69, Shepherd

23 TI159 folio 21; E2067, Gilligan

- 240 -

24 E70, Shepherd

25 E69, Shepherd; Ssl56, Lowe; Ss272, Calladine; Ss266, Vickers;

E673, Spencer; E2067-68, Gilligan 26 TI206 folio 2

27 TI216 folios 78 and 83

28 TI273 Part D folio 94

29 TI159 folios 10 & 13

30 Ss236, Slade

31 TI158 Part 4 folios 8 & 15; E74, Shepherd

32 E2569, Shelley

33 E70, Shepherd

34 TI273 Part c folio 76

35 TI216 folio 2

36 TI216 folios 78 & 79

37 TI273 Part c folio 69

38 TI273 Part B

39 TI273 Part G

40 TI273 Part H

41 TI273 Park K

42 TI273 Part J

43 S980, Papworth

44 ibid

45 S976, Papworth; TI273 Part A

46 S977, Papworth

47 Ssl48, E632, Stanton

48 Ss977, Papworth

49 TI273 Part A folio 3

50 TI208 folio 1 /

51 TI208 folio 108

52 TI208 folios io4-09

53 ibid

54 TI208 folios 106-08

55 ibid '

56 TI208 folios 105-06

57 TI208 folios 97-98

58 ibid

59 TI208 folio 105

60 TI208 folio 104

61 TI208 folios 61, 62

62 E2875, Wells

63 E2874-75, Wells

64 TI273 Part A folio 12

65 E503-04, Hofer; s885-87, Mullaly

66 S885-87, Mullaly

67 S976, Papworth

68 S977, Papworth; Ssl48, E632, Stanton

69 S977, Papworth

70 Ss346, Egge; Ss865, McVicar

CHAPTER 12

INTERCEPTION DEVICES AVAILABLE

- 243 -

CHAPI'ER 12 INI'ERCEPTICN DEVICES AVAILABLE

Retailers

12.1 Inquiries by the Corrunission indicate that a number of retail

outlets, specialising in electronic equipment and electrical appliances, sell devices designed to intercept telephone conversations or which are capable of adaptation for that purpose. A Commission investigator

interviewed several retailers in the Sydney area who provided him with particulars of the type of devices available for sale to the public, the volume of this trade and the sources of local and overseas supply. They

stated that most sales are made across the counter to customers who

walk in off the street. The Corrunission has estimated that the total

Australian sales of interception devices exceeded 30,000 in the twelve months preceding its inquiries into this trade. These inquiries were by

no means exhaustive, but the results give cause for concern at the ready

availability of these devices.

12.2 The most common device sold by retailers in Sydney is the

telephone induction coil. This consists of a suction cap which is

affixed to the handpiece of a telephone and connected to a tape recorder by means of a plug. With this device a party to a telephone conversation

can record the conversation without the knowledge of the other party. The device is compatible with most tape recording machines. Some desk

dictating machines such as the Sanyo Memo-Scriber range have a facility specifically designed for telephone recording . The device retails for as little as $2 .25. The catalogue of Dick Smith Electronics Pty Ltd lists

this device as an 'inductive pick-up' and as an accessory for an intercom or similar equipment. A note to the advertisement states 'Current

Telecom regulations do not permit this unit to be attached to a

1

telephone' .

12.3 A similar device is the VR200 voice reactor which is sold as a

telephone accessory. Instead of attachments by means of a suction cap,

- 244 -

the device is actually wired into the telephone circuitry and connected to a tape recorder which is set on the record mode. When the handpiece

is lifted from the telephone cradle the tape recorder is· activated

and continues to record until the handpiece is replaced. Again, the

conversation may be recorded without the knowledge of the other party. This device retails for about $10. 2

12.4 Mr N Rosenfeld, Managing Director of Advance Electric Pty Ltd, informed the Commission investigator that he sells a basic transmitter fitted with wires which can be clipped on to a telephone line at a

terminal. According to Mr Rosenfeld all customers or potential customers are told it is illegal to use a telephone interception device without

first obtaining permission from the parties to the conversation which is to be recorded. 3

12.5 The Commission was informed that FM wireless microphones,

which are stocked by most retailers, can be utilised for telephone

interception. They can readily be used as listening devices and can be simply adapted to intercept telephone conversations. such microphones retail from about $25. Dick Smith Electronics Pty Ltd stocked a device called the 'Fun Bug' which is a cheap FM wireless microphone which

retails for $9.95. 4

12.6 Mr A Benecke, General Manager, Consumer Products, of Dick Smith Electronics Pty Ltd and Mr s Neale, Merchandise Buyer of Tandy Australia Ltd, told the investigator that their companies had voluntarily withdrawn

the FM wireless microphone from sale as the Department o.f Communications had informed the companies that its use for that purpose was contrary to

the law. 5

12.7 Mr Benecke also advised that Dick Smith Electronics Pty Ltd has

a range of products which are sold under the brand name 'Fun Way'. It is

advertised as a 'Fun Way' for children to learn about electronics. Kit

No 11 is a wireless microphone kit which retails for $6.50. Mr Benecke

said that, if properly assembled, this device could be used to intercept telephone calls, even though it is designed as a toy. The advertisement

- 245 -

in the company catalogue reads, 'Just like the "bugs" used in spy

movies! Transmits to any standard FM radio in another room or next door, etc. You can really hear it all!'. 6

12.8 All devices stocked by the retailers are of the cheaper variety

and none is specifically designed for telephone interception with the

exception of one device stocked by Advance Electric Pty Ltd. 7 This

device is a transmitter fitted with wires which can be connected to the telephone lines and is manufactured in Japan under the 'Cony' brand

8

name. Mr Rosenfeld of Advance Electric Pty Ltd stated that on

occasions he has imported these sophisticated telephone interception devices which retail for approximately $1,000. Mr Rosenfeld said that he does not stock such devices and would only import them on a 'firm

order' basis. 9

12.9 Mr Frank James Adam Monte of Monte's Investigation Services,

Sydney, gave evidence to the Commission that his company sells

transmitters for intercepting telephone conversations. 10

these transmitters mainly from Japan.

Wholesalers

He imports

12.10 The Commission's inqu1r1es indicate that few companies are

wholesalers of devices capable of being used for intercepting telephone conversations. Large retailers such as Tandy Australia Ltd and Dick

Smith Electronics Pty Ltd import directly from overseas for their own

retail outlets. 11 Arista Electronics Pty Ltd is a wholesaler and

12

importer of electronic equipment and electrical goods. Mr T Mayden, the Managing Director, told a Commission investigator that his company does not sell telephone interception devices but does deal in equipment

which could be put to such use. He said his rompany has no retail

outlets and sells only to the trade. The devices, which form a very

small part of Arista's business, are imported by Arista from Taiwan and Japan and consist of a voice reactor unit, a telephone induction coil and . h 13 an FM wireless m1crop one.

- 246 -

Advertisements and Instruction Manuals

12.ll The availability of electronic equipment sui table for use for

telephone interception is widely advertised in Sydney. There are several and other magazines and catalogues, readily accessible to the

general public, which describe the product range of a particular

manufacturer, wholesaler or retailer including telephone interception devices. The catalogues of Dick Smith Electronics Pty Ltd and Tandy Australia Ltd are widely distributed and are available free of charge in all retail outlets of those groups and their dealerships. 14 From time to time they are distributed directly to householders throughout the

metropolitan area by letter box delivery.

12.12 Arista Electronics Pty Ltd produce a catalogue which is

circulated throughout the electronics/electrical appliances trade. A copy of the 1985 catalogue was made available to the Commission. 15

12 . 13 Companies from countries such as the United Kingdom, the United

States of America, the Federal Republic of Germany and Japan advertise throughout the electronics industry in magazines and distributed

catalogues. Many of these companies direct their campaigns to mail order selling. Mr J D Hope, Managing Director of Scott-Xtec Pty Ltd, told a

Commi ssion investigator of tv.u West German companies, PK Electr onic of

Ha'llburg and Sipe Electronic GMBHJ of Krefeld, which sell by mail order

to any person. Devices sold by these companies include telephone

interception equipment ranging from basic to highly sophisticated

levels. 16 Mr s Griffith of Pacific Communications Pty Ltd provided the Commission with a copy of the PK Electronic catalogue. 17

12.14 The Tandy catalogue advertises the availability of portable

scanners which retail from $160 to $430. [see paragraph 10. 86 for a

description of the use of scanners.) A catalogue note on the use of the

scanners states 'Mobile use _ of Scanners May Be Unlawful or Require a h k . h 1 h . . I

18 s N 1 f T d A t 1 . Permit-c ec w1t Loca Aut ont1es . Mr ea e o an y us ra 1a

Ltd informed a Commission investigator that this v.urding was taken from the literature of the parent company in the United States and was

intended to advise the purchaser that, before scanning the frequencies of

- 247 -

any of the local authorities, for example the police or the fire brigade,

such local authorities should be contacted to ascertain if scanning is

lawful or whether a permit should be issued. Mr Neale said he believes

that in many areas of the United States, police, fire brigade and the

like are known as local authorities. He agreed this is not the case in

Australia and that the catalogue note should have directed such inquiries to the Department of Communications. Mr Neale informed the Commission investigator that Tandy have had no queries in relation to this matter from customers or members of the public generally. 19

12.15 The Commission's inquiries indicate that instruction manuals relating to devices for telephone interception are often available from companies in the business of selling such devices. 01e instance is the

'Fun way' range of products sold by Dick Smith Electronics Pty Ltd.

These products are designed to interest children in electronics, and kits

for constructing a wide range of electronic devices are available. A

'Fun Way' instruction manual covers twenty projects involving twenty separate kits. As mentioned above, one of these projects is a kit to

build a wireless microphone [paragraph 12. 7]. The instruction manual is 20 sold separately and costs $6.95.

Traning Courses

12.16 Mr Monte of Monte's Investigation services told the Commission that he conducts a correspondence course in the name of the Australian College of Investigators. While he gave no details of the material

covered by that course, Mr Monte said that it has a general section on

surveillance and room and telephone 'bugging•. 21

12.17 Mr s Griffith, Director and Engineering Executive of Pacific

communications Pty Ltd told a Commission investigator that his company is

the sole agent in Australia for Audio Intelligence Devices (AID) of Fort Lauderdale, Florida. This company claims to be the world's largest

manufacturer of electronics intelligence equipment and specialised protective systems. 22 Mr Griffith informed the Commission investigator that a course conducted by AID in the United States under the name of

their subsidiary, National Intelligence Academy includes a section on

- 248 -

telephone systems which is designed to acquaint law enforcement personnel with measures to counter telephone interception. In teaching the counter measures the course firstly instructs on the ways and means by which

telephone interception is carried out. Mr Griffith provided the

Commission with a copy of the course material. 23 According to

Mr Griffith, Pacific Communications Pty Ltd supplies many Australian

government agencies, including police forces, with surveillance and other

equipment. Mr Griffith told the Commission investigator that he has

conducted instruction courses for many law enforcement officers.

Lectures on counter measures to telephone interception have necessarily included instructions in relation to how interceptions are effected. 24

The Counter Measure Trade

12.18 Numerous companies operate in Sydney in the business of

industrial security, advising clients on security of premises and

property and the protection of secrets. These companies offer counter measures for clients who fear that their telephone conversations are

being intercepted. some of these companies have provided information to the Commission.

12.19 Security consultants tend to import the equipment they require in their businesses. It would appear that there is very little

manufacture in this country of electronic equipment sui table for

telephone interception or counter measures against such interception.

12.20 Mr Griffith of Pacific communications Pty Ltd informed a

Commission investigator that the company imports from the United States

and the United Kingdom. As noted in paragraph 12.17, Pacific

communications Pty Ltd is the sole agent in Australia for Audio

Intelligence Devices of Florida (AID). Mr Griffith supplied a copy of the AID catalogue to the Commission. He told a Commission investigator that his company is the sole agent for Audiotel International Ltd of

London. He said that the devices imported from these two companies are

of very high quality. The average price for each device capable of

telephone interception is $1,000 while the price of monitoring and

counter measure equipment can be $10,000 per unit. 25

- 249 -

12.21 Mr J George, Technical Manager of Erntronics, a division of Emona

Electronics Pty Ltd, told a Commission investigator that he imports a device called the Daytong Ranger from the UK which retails for $7, 000. This is a 'de-bugging' device which works on interpreting power

fluctuations and signals on a telephone line. The unit is a receive r

designed to pick . up any transmitter on a line. 26

12.22 Mr J D Hope, Managing Director of Scott-Xtec Pty Ltd informed a

Commission investigator that his business involves counter measures to

combat industrial espionage. These counter measures are mainly in

relation to telephone interception. According to Mr Hope his standard price for 'de-bugging' sweeps is $350 per hour. He imports all of his

counter measure equipment from the UK. The most expensive item costs $70,000. 27

12.23 The Commission is aware that industrial espionage in relation to telephone services is not limited to the interception of conversations between persons. Telephone lines are also used to transmit messages from

computers. These can be intercepted using an FM transmitter and an FM radio receiver. By using a computer 'modum' with printer attached, the message can then be converted to print. These devices are readily

available from retail outlets.

Endnotes

l TI363 folio 36

2 TI363 folios 37, 42 and 44

3 TI363 folio 44

4 TI363 folios 36 and 37

5 TI363 folios 36 and 53

6 TI363 folios 35-36

7 TI363 folio 44

8 ibid

9 ri363 folio 43

10 E3937, Monte

11 TI363 folio 33

12 TI363 folio 37

13 ibid

14 TI363 folios 36 and 51

15 TI363 folio 37

- 250 -

16 TI363 folio 40

17 TI363 folio 89

18 TI363 folio 51

19 TI363 folio 52

20 TI363 fol{os 35-36

21 E3935a-37, Monte

22 TI363 folio 89

23 TI363 folio 88

24 TI363 folios 89-90

25 TI363 folios 88-90

26 TI363 folio 39

27 TI363 folio 41

CHAPTER 13

INVESTIGATIONS BY THE SPECIAL PROSECUTOR AND INQUIRIES BY

THE SENATE SELECT COMMITTEE ON THE CONDUCT OF A JUDGE

- 253 -

CHAPI'ER 13 INVEsriGATIOOS BY THE SPECIAL PROSECurOR AND INQUIRIES BY

THE SENATE SELECT COMMITI'EE ON THE CONDUCT OF A JUDGE

Special Prosecutor

13.1 On 17 February 1984 the CoiTU110nwealth Government announced in a joint statement issued by the Attorney-General and the Special Minister of State that a Special Prosecutor would be appointed to, inter alia,

supervise further investigations into the so called 'Age tapes'.

13.2 As noted earlier, on 21 February 1984 Mr I D Ternby, QC, the

CoiTIT\Onwealth Director of Public Prosecutions designate, was appointed by

the Comm:mwealth Government as a Special Prosecutor, pursuant to the provisions of the Special Prosecutors Act 1982, to supervise further investigations in relation to the tapes and transcripts delivered to the Attorney-General by the editor of the Age [see paragraph 1.18].

13. 3 Deputy Commissioner J c Johnson of the AFP acted as coordinator

of a joint investigation team set up for the purpose. The AFP

officers were to concentrate on possible offences against laws of the Commonwealth and the NSW Police on breaches of New South Wales laws.

By arrangement between the CoiTU110nwealth and New south Wales Governments,

the Solicitor-General for New south Wales, Ms M Gaudron, was given

r esponsibility, in consultation with the Crown solic itor: of that state,

Mr H K Roberts, for supervising inquiries into certain matters involving

only New South viales laws which fell outside t he Special Prosecutor's l

terms of reference.

Special Task Force of the NSW Police

13.4 On 20 February 1984 the New South Wales Commissioner of Police, Mr c R Abbott, appointed a Special Task Force headed by Executive Chief

Superintendent J M Pry to form the New .south Wales component of the joint investigation team under the supervision of t he Special Prosecutor. The

- 254 -

other members of the Task Force were Superintendent A McDonald, Chief Inspector R J Cook, Inspector 0 Taylor, senior Constables R Bowles,

A Terrason, and J S Davidson. All but one of these officers were drawn

from the Internal Affairs Branch of the NSW Police. 2

13.5 At the time of the establishment of the Task Force, Commissioner Abbott handed to Pry tapes and documents which he had received from the

then New South Wales Minister for Police and Emergency Services, the Hon. Mr P T Anderson, MP. The material included tapes and photocopies

of transcripts of conversations provided to the New South Wales

Attorney-General by the editor of the Age and an opinion prepared by

the New South Wales Solicitor-General, Ms M Gaudron, dated 17 February 1984. 3

Subsequently Pry and Taylor had discussions with the New south Wales Crown Solicitor, Mr H K Roberts, and the Assistant Under Secretary

oi Justice, Mr P Webb, wherein the areas to be investigated were defined.

13.6 The advice of the Solicitor-General of 17 February 1984 limited

the areas of investigation to the question of the 'authenticity' of the tapes and transcripts and inquiries regarding an allegation in the

transcripts concerning certain proceedings involving a money courier. On 9 April 1984 the New south Wales Under Secretary of Justice,

Mr T vl Haines, informed Commissioner Abbott that the Solicitor-General

had advised that the areas of investigation should be expanded to include

certain other allegations contained in the material. one of these

matters related to the alleged payment of $50,000 to a senior government official. The payment was allegedly made to the official with a view to gaining his support for the issue of a casino licence. A further matter was the conduct of a coronial inquiry into a fire. Specific areas of

inquiry were nominated. 4

13.7 Premises at Chatswood were acquired by the Task Force for the

purposes of the inquiry. After some four months of inquiries, during

which regular interim reports were provided, Pry submitted a final report

to the corrunissioner of Police on these matters on 28 June 1984. On

5 June 1984 the Under Secretary of Justice had further expanded the areas

of inquiry to include certain material in the 'Age tapes' which related

- 255 -

to proceedings which had been initiated by the NSW Police against

Roy Bowers Cessna and Tioothy William Lycett Milner. A separate report

in relation to the Cessna and Milner matter was delivered to the

Commissioner by Pry on 4 July 1984. 5

13.8 At an stage the Special Task Force prepared a list of

persons who had been members of the BCI and TSU during the period in

which the tapes and transcripts allegedly were prepared and sought to

interview each of those persons. several former members declined to be interviewed or to comment. All serving members who were obliged to make statements and submit to interviews, and former members who participated in an interview voluntarily, denied any knov1ledge of telephone

. . 6

1ntercept1ons.

No 'Reasonable Presumption' of NSW Police Authorship

13. 9 In the Commission's view the report of the Special Task Force

was biased towards exculpating the NSW Police. The report exonerated

them from involvement in the illegal interception of telephone

conversations. Where, according to the transcripts of intercepted

telephone conversations in the possession of the Special Task Force, NSW Police officers were recorded as having had discussions with persons the subject of the interceptions, those officers were cleared of any alleged impropriety by the Task Force.

13.10 Pry's recorrunendation upon the conclusion of the investigation was:

that in view of the insufficiency of conclusive evidence

enabling a precise identification of the author of the

transcriptions or creator of the tapes from which the

transcripts were made or even to establish a reasonable

presumption, quite apart from a conclusive presumption, of

the person or persons. responsible for the subject material,

particularly in the absence of any admission by any person of

being so involved in the making or obtaining of the tapes and/or transcriptions, no further action be taken in respect of any

member of the New south Wales Police Force, or former member of the New south Wales Police Force.7

- 256 -

The Commission considers that the conclusion reached by the Special Task

Force, that there was insufficient 'conclusive evidence' to establish a reasonable presumption as to the identity of persons responsible for the tapes and transcripts, was unjustified.

13.11 The newspaper articles which led to the appointment of the

Special Prosecutor and the establishment of the Special Task Force

identified the NSW Police as being responsible for the interceptions. Indeed, the New South Wales Solicitor-General in the opinion dated

17 February 1984 and referred to earlier had adverted to the suggestions

in the press and stated that the transcripts themselves also suggested that the interceptions may have been effected by State police. 8 In

addition, there were several objective factors which would lead a

reasonable investigator who had carried out the necessary inquiries at least to a presumption, that NSW Police were responsible for the

production of the tapes and transcripts and that the tapes and

transcripts were the product of illegal telephone interceptions. Some of these factors are referred to below.

Code names

13.12 The documents which contained transcriptions and summaries of telephone conversations produced to the Special Task Force bore code

names. These code names were 'Lucerne' (the Robert Trirrbole material),

'A Dazzler' (the Ronald Lopes Dias material), 'Mad DOg' and 'Rabid' (the

Morgan John Ryan material) and 'Southern Comfort' (the George David

Freeman material). The code name 'Lucerne' appears in the BCI dossier

on Trimbole and the code names 'Had DOg' and 'Rabid' appear in the BCI

dossier on Ryan. It wa_ s clear from the dossiers that the BCI had

conducted extensive investigations into those persons and that the code

names contained in the dossiers were identical to the code names in the

transcripts and summaries. concluded:

The report of the Special Task Force

The information contained in the various dossiers maintained at the New south Hales Bureau of Crime Intelligence was readily available to all interstate Bureaux of Crime Intelligence on a "need to know" basis and in fact information was regularly

- 257 -

dispersed between the various intelligence organisations within Australia. This explanation would therefore dispel any

suggestion that the transcripts could only have originated from the New South Hales Bureau of Crime Intelligence.9

13.13 It would have been more appropriate to have emphasised the fact

that the persons to whom the code names referred were targets of both

the BCI and whoever was responsible for the creation of the tapes and

transcripts and that identical code names were used. The explanation given does not 'dispel any suggestion' that the transcripts could only have originated in the BCI and is not to the point. It may be that the

information contained in the varioos dossiers maintained at the NSW ocr was readily available to all interstate Bureaus of Crime Intelligence but

the Commission observes that on the facts available an objective and

unbiased investigation would be much more likely to conclude that the transcripts originated within the NSW BCI.

Coincidence of Events

13.14 The tapes and transcripts contain material which, when compared to particular BCI dossiers, indicates that it was extremely likely that surveillance operations conducted by the BCI were assisted by information obtained as a result of telephone interceptions. This was particularly the case with the Ryan material. In two instances there are handwritten notes on the transcript naterial which say 'see running sheets and

10

photograph' and 'see running sheet for 19 February 1980'. A report

prepared by Superintendent R c Shepherd for the Special Task Force

indicates that the Ryan dossier held by the BCI contained

Information/Surveillance Reports consistent with these entries. 11

13.15 Another example relating to Ryan concerns an entry in the

transcript of intercepted telephone conversations said to be for

8 February 1980 wherein Ryan arranged a meeting with a male person at

Ryan's office at 5.00 p.m. 12 The OCI running sheet in the Ryan dossier

for that day is the first indication of surveillance of Ryan for a period of more than three weeks. For no reason appearing on the face of the

running sheet the surveillance commenced in the vicinity of Ryan's office

at 34 King Street, Sydney and Ryan and the male person named in the

- 258 -

transcript were observed to enter Ryan's office at 4.53 p.m. and

5 04 . 1 13 . p.m. respect1ve y.

13.16 In addition, the Task Force had been requested to specifically investigate the material concerning a money courier [see paragraph 13.6]. There is a clear relationship between intercepted conversations involving Ryan and the money courier, and information contained in the BCI dossiers

about the courier and his subsequent arrest. 14 In reports to the

Special Task Force, police involved in the money courier matter denied any involvement in telephone interception in general and specifically in relation to this matter. Relying on these reports Pry concluded that the arrest of the money courier resulted from surveillance activities carried out on Ryan. He claimed that he was able 'to dispel the suggestion or

inferred possibility that police attention was drawn to the money courier through illegal telephone interceptions' . 15 He also stated that there was:

no evidence whatsoever forthcoming to establish that the arrest of (the money courier) arose out of the illegal

interception of telephone conversations.l6

13.17 In the Commission's view such an emphatic statement could not be justified by the material available.

13.18 When Pry gave evidence to this Commission, he stated that he did not notice these matters when he examined the Ryan dossier. He agreed that they enhanced the authenticity of the transcript material but could not agree that they enhanced the links between the material and the

Bcr. 17 This reluctance to inculpate the NSW Police was shared by other members of the Special Task Force who gave evidence. 18

Other Matters

13.19 There are various references in the transcript material which bear the hallmarks of police authorship. one volume of transcripts

concerning Ryan commences with a profile of Ryan which includes

expressions which would suggest that the material was prepared by a police officer, including 'Ryan first came to the notice of the Crime

- 259 -

Intelligence Unit and 'Detective sergeant DUnn had received

information that Ryan ... (The names of these persons is set out in the

dossier for 2 April 1980)' . 20

13.20 Pry discounted this connection with the NSW Police, relying on the assertion py Sergeant B W Dunn, who had been attached to the CIU

(which later became the BCI) from 26 June 1975 to l June 1981, that such

information was available to other NSW Police officers and other police forces. There are other examples too numerous to quote in this report.

Instead of giving these matters the prominence which they deserved in the report other matters of an exculpatory nature were emphasised by Pry. For example:

The size of the paper used to prepare the summary is not common to the New south Wales Police Department. This was confirmed during our investigation and search of the records held at the Bureau of Criminal Intelligence ... 21

13.21 This would appear to be an insignificant matter on which to

rely, especially so having regard to the fact, as was conceded by Pry

in evidence to the Commission, that the documents used by him were

photocopies.

13.22 The transcripts, typing samples from typewriters on issue to

the BCI and six handwritten official diaries were provided by the Task Force to sergeant G J Chivers of the Document Examination Unit of the

NSW Police. Chivers's report was inconclusive as the photocopies

of transcript provided for comparison with the typing samples and

handwritten diaries were of such poor quality that no finding could be made beyond identification of the makes of typewriters used in each

. 22 1 . 1 . d d f h Apparent y no typ1.ng samp es were e rom t e

TSU where the transcripts were in fact typed.

13.23 Another matter which regarded by Pry as significant was the

nature of the conversations recorded in the material:

It will also be seen that many calls the subject of the

transcripts can only be described as social chatter.23

- 260 -

. . . not only is some of the conversation meaningless, but can

properly be described as idle, worthless, childish chatter and one must ask whether it is conceivable that members of any

Police Force would seek to transcribe such obviously worthless material and retain same.24

13. 24 Pry told the Commission that in his view this was the mos t

significant matter examined by him during the investigation and it played an important part in assisting him to reach his stated conclusion that the NSW Police were not involved in the creation of the material. 25

13.25 It is true that much of the transcript material is difficult

to understand and other parts appear to have no relevance to criminal

investigations . Having r egard to the nature of police intelligence

gathering processes, particularly the need to gain information about associates of any target, the Commission concludes that the great bulk of the material is of the very type which might well have been transcribed and retained by police. Some conversations which are difficult t o

understand often only achieve meaning in the light of information

obtained later. It is also apparent from the transcript material that

there were att empts to exclude conversations which were of no interest to the persons responsible for the interceptions. Expressions such as ' 26 long inconsequential conversation' and ' ... more garbage talk' are

included in the transcripts where conversations have not been fully

transcribed.

13.26 There are other irregularities in the report and the

investigation which need not be mentioned here. The most telling commen t perhaps is that the officers who were responsible for preparing the final report, in particular Pry and Taylor, conceded in evidence before the Commi ssion that they suspected that NSW Police officers had been

responsible for the illegal interception of the telephone conversations contained in the transcripts. Yet the report failed to enunciate the

suspicion and instead pointed to the lack of positive proof. 27

13.27 The NSW Police Department and the ultimate recipients of the

report v/ould have been better served by a report which stated that there was a great deal of evidence leading to a strong suspicion that officers

of the BCI and TSU had been responsible for the illegal interception of

- 261 -

telephone conversations recorded in the material, but as those officers had denied their involvement there was insufficient evidence to sustain a

prosecution or disciplinary proceedings.

13.28 The Special Task Force had been selected by the Corrunissioner

of Police, Mr c R Abbott, to investigate an illegal activity which had

been carried on for fifteen years with the approval of a succession of

Corrunissioners. For at least one of the investigators the task presented

more than the usual difficulties faced by an internal affairs

investigator required to investigate the conduct of his colleagues within the police force. Davidson conceded in evidence to the Corrunission that he was aware of the truth of the allegations that NSW Police had

illegally intercepted telephone conversations because he had sought the installation of an interception to assist in an investigation when he was a member of the Special Breaking squad.

28

Faced with the weight of

evidence before the Corrunission he had no option but to make such a

concession. Pry, McDonald, cook and Taylor made no such concession; they admitted to a suspicion which they did not report. 29 If they did

not know of the truth of the al legations at the beginning of their

investigations, they were exceptional among corrunissioned officers with their background within the police force. If they did not know at the

end of the investigations, they had been blinded by a misguided

dedication to the task of exculpating the NSW Police.

13.29 The alternative conclusion is that they were aware of the truth

of the allegations and shamelessly set about preparing a distorted,

indeed dishonest report which they knew would ultimately be produced to

the New south Wales Attorney-General and the Commonwealth Special Prosecutor. This interpretation of events cannot be ruled out. [For

additional material on this matter see paragraph 14.32.]

The AFP Investigation

13.30 Deputy commissioner J c Johnson of the AFP, while Acting

corrunissioner, submitted his report t o the Special Prosecutor on t he

investigations undertaken by the AFP on 30 April 1984. 30

- 262 -

13.31 The AFP investigators decided to approach the inquiry as a

criminal investigation rather than as a departmental inquiry. This

decision was taken on the basis that the matters under investigation

involved alleged breaches of the Telecommunications (Interception) Act 1979 and because the breaches, if proved, 'arose from a significant

venture which entailed organisation, persistence and commitment of a high 31 order'.

13.32 In an effort to authenticate the material provided to the

Special Prosecutor by the editor of the Age, the AFP investigators

interviewed AFP officers and attempted to interview certain journalists and also persons referred to in the transcripts as having participated in

intercepted conversations. In addition, the AFP initiated technical examinations of both the tapes and the transcript.

13.33 At the conclusion of the investigation, Johnson reported to the Special Prosecutor that 'the most problematical issue confronting the investigation team was, and remains, the validation or authentication of the tapes and copy transcripts and summaries provided to the Age•. 32

13.34 The tape recordings were examined by Mr D F Craig of Louis A

Challis and Associates Pty Ltd, Consulting Acoustical and Vibration 33 Engineers of 5Ydney. Mr craig furnished reports dated 19 March 1984 and 16 April 1984, in which he concluded that none of the tapes comprised

an original recording and each was prepared by placing a microphone in front of the loudspeaker of a recording device. He stated that examples of editing were apparent. Q1 9 July 1984 Mr craig advised the Special

Prosecutor that further examination of the tapes was unwarranted. The Special Prosecutor concurred with that advice. 34

13.35 The transcript was examined by the Document Examination Bureau of the AFP, which concluded that because of the poor quality of the

material, the bulk of which was a third generation copy, no productive examination of the transcript was possible and individual typewriters

could not be identified. 35

- 263 -

13.36 Almost all of the individuals interviewed by the AFP

investigators were serving officers of the AFP. Johnson stated that

other persons who were approached for interview either declined or were of no assistance.

13.37 Ninetee11 members of the AFP were intervitwed. The substance

extracted by Johnson from those interviewed was that Sergeant A Hawthorn, then a serving officer of the NSW Police, had in 1981 provided Inspector P J Lamb of the AFP with audio tapes and that Hawthorn was paid

unspecified but small sums of money for those services. The personnel of B Division of the AFP who had extracted intelligence from those

tapes claimed that they originally believed that the tapes v.rere not of intercepted telephone conversations. However, in time they became aware that the material supplied by Hawthorn may in fact have originated from telephone interceptions. Some of the officers interviewed gave evidence to the Commission. Their evidence is dealt with in detail in paragraphs 10.5-10.20. Suffice it to say in this context that when interviewed by the AFP investigators, those officers did not reveal the full extent of their knowledge of the nature of the material supplied by Hawthorn.

13.38 Johnson concluded, after reviewing the records of these

interviews and extracting inconsistencies in the various versions given, that 'the totality of the evidence d:>es . . . weigh against the underlying theme that no involved member of B Di vision knew, or at any time

suspected, that the material originated from the interception of

telephone conversations'. Johnson, however, reported that he was unable to conclude beyond reasonable doubt that any member of B Division knew that the material provided had 'unquestionably originated' from telephone . . 36

1ntercept1ons.

13.39 The AFP investigators attempted to interview several of the

major participants in conversations recorded in the Morgan Ryan

material. Those participants. declined to be interviewed. Attempts were also made to 'authenticate' the material by reference to what were

described as 'less consequential' conversations with extraneous

individuals. Such attempts were unsuccessful because of 'the passage of time and the fleeting nature of the transactions•. 37

- 264 -

13.40 In his report to the Special Prosecutor Johnson concluded that

the material under investigation 'bore references and idiom which could be said to have a police flavour'. Alternatively, Johnson noted that the

material could have been contrived so that such a conclusion as to police involvement would be reached. In the absence of cooperation from the

principal witnesses, however, Johnson noted that the AFP investigators were 'left with several sustainable possibilities•. 38

13.41 Johnson concluded that, on the balance of probabilities,

'a member or members of the New south Wales Police conducted unauthorised telephone interceptions, but no judgement can be made as to whether such conduct was officially sanctioned by the NSW police administration•.39

13.42 The Special Prosecutor, in his report dated 20 July 1984, noted :

. • • it would be idle for me to express any view as to whether

the materials or any part of them were prepared by elements

within t he New south Wales Police Force. I make special mention of that possibility because it i s treated in some circles as a

r eceived truth t hat the mate r i als emanated from that general

source . l.vhat matters for present purposes is proof, not

speculation.40

13.43 It is clear from the evidence before the Commission that

Johnson's tentative conclus ion as to the authorship of the material was accurate; it is equally clear that on the evidence available to the AFP investigators and the Special Prosecutor, the conclusion could not have been expressed in more than tentative terms.

Senate select Committee on the Conduct of a Judge

13.44 On 28 March 1984 the Senate Select Committee on the Conduct of a ,Judge was appointed by the Sena te to inquire into and report upon:

(a) whether any or all of the tapes and transcripts delivered

by The Age newspaper t o the Attorney-General on 1 February 1984 and relating to the conduct of a federal judge are

authentic and genuine; and

(b) if the Committee is s a tis fied that the tapes and

transcripts referred to in sub-paragraph (a) are authentic

- 265 -

and genuine in whole or part, whether the conduct of the

judge as revealed in the tapes and transcripts referred to in sub-paragraph (a) constituted misbehaviour or incapacity which could amount to sufficient grounds for an address to the Governor-General in Council from both Houses of the Parliament praying for his removal from office pursuant to section 72(ii) of the Constitution.

13.45 The Committee comprised Senators M C Tate (Chairman), N Bolkus, the Hon. D L Chipp, R A Crowley, the Hon. P D nurack, QC and A W R

Lewis. The latter two senators submitted a dissenting r eport as did

41

Senator Chipp. The Committee reported to the Senate in August 1984. A subsequent Select Committee was appointed by the Senate on 6 September

1984 arising out of certain allegations concerning the Hon . Mr Justice

L K Murphy made by Mr C R Briese, Chairman of the Bench of Stipendiary

Magistrates, before the Senate Select Committee on the Conduct of a

Judge. This Committee, the Select Committee on Allegations Concerning a Judge, tabled its report in October 1984. 42

13.46 The first Committee's hearings were held in private and the

identities of several of the witnesses called were not revealed in its

report, although some were revealed in the report of the subsequent

Select Committee. The Senate Select Committee on the Conduct of a Judge had before it the 'original' materials given to the Age newspaper, which

were produced to the Committee by the Director of Public Prosecutions,

Mr I D Temby, QC. The Committee also received extracts from materials

held by the Attorney-General, Senator G J Evans, which referred to the judge and allowed the Chairman and Secretary of the Committee to inspect and listen to the remainder of the material. The Attorney-General also

supplied notes of conversations he had with the judge on 13 and

24 February 1984.

13. 4 7 The Committee also r eceived the interim and final reports which Mr Temby had made as Special Prosecutor, a report by the Special Task

Force of the NSW Police and expert analyses of the documents and tapes.

13.48 In its conclusions concerning the authenticity of the material the Committee stated:

- 266 -

The Committee is unable to conclude that any or all of the tape recordings and transcripts delivered by The Age newspaper to the Attorney-General and relating to the conduct of a federal judge are authentic or genuine in whole or in part except to the

extent that limited acknowledgements have been made to the Committee as mentioned in this report.43

13.49 The Committee also assessed the content of the material and

specific allegations of witnesses and directed its attention to the

44

second element of the task it had been set by the Senate.

13.50 01 4 September 1985 the Commission wrote to Senator

D MCClelland, President of the Senate, seeking copies of the transcript

of witnesses who had appeared before the Senate Select Committee on the Conduct of a Judge and given evidence concerning intercepted telephone conversations, in particular, the evidence of Inspector P J Lamb of the AFP.45

13.51 As the matter required a resolution of the Senate the

Corrnnission' s request was presented to the senate by the President on 19 September 1985. Mr Justice Murphy had by then been convicted in the Supreme Court of New South Wales and had lodged an appeal. The President of the Senate had, on 11 September 1985, expressed concern the

judgment of Mr Justice cantor of the supreme court of New south Wales regarding cross examination of witnesses who had previously given

evidence to Select Corrnnittees of the senate. On 19 September Senators Tate, Durack and Haines spoke against furnishing the material requested . 46

to the commission at that stage and the debate was adJOurned.

13.52 As the prosecution of Mr Justice Murphy had not been resolved at the time of preparation of the Commission's report the Commission decided not to pursue this matter.

Endnotes

1 TI290 Part 1 folio 116

2 S925-26, cook

3 TI290 Part 1 folios 118-40

- 267 -

4 TI290 Part 1 folios 102-04

5 TI371

6 TI290 Part 1 folios 167-68

7 TI290 Part 1 folio 150

8 TI290 Part 1 folio 131

9 TI290 Part 1 folio 153

10 TlC/159, 163

11 TI290 Part 3 folio 180

12 TlB/133

13 TI212

14 TlC/192; TI316

15 TI290 Part 1 folio 198

16 TI290 Part 1 folio 195

17 E2774-88, E2799, Pry

18 E2728-52, Cook; E2758-63, McDOnald 19 TlC/156

20 TlC/159

21 TI290 Part 1 folio 187

22 TI290 Part 3 folio 161

23 TI290 Part 1 folio 182

24 TI290 Part 1 folio 176

25 E2775, Pry

26 TlA/29-30

27 E2743, Cook; E2760, McDOnald; E2774, Pry; Sl022, Taylor 28 E2180, Davidson

29 E2742-43, Cook; E2760-61, McDonald; E2774, Pry 30 Report of Special Prosecutor, Ian Temby, QC, into the Age

July 1984

31 ibid page 7 Johnson Report

32 ibid page 16 Johnson Report

33 ibid page 3

34 ibid pages 7-8

35 ibid page 8

36 ibid page 19 Johnson Report

37 ibid page 18 Johnson Report

38 ibid page 21 Johnson Report

39 - ibid page 21 Johnson Report

40 ibid page 11

41 Parliamentary Paper 168/1984

42 Paper 271/1984

43 Parliamentary Paper 168/1984 folio 19

44 ibid

45 Adm 27 folio 15

46 Senate Hansard, 19 September 1985, pages 760-61

CHAPTER 14

AUTHENTICITY OF MATERIAL

- 271 -

CHAPTER 14 AUTHENTICITY OF MATERIAL

14 .l Sub-paragr_ aph (a) . of the Cormnonwealth and New South wales terms

of reference require the Commission to inquire into whether there exists, in the possession of any person (including any member of the NSW Police or the AFP) any information or rraterial (including documents or tape

recordings) arising out of or relating to the unlawful interception, on or before 28 March 1985, in New South Wales of communications passing over a telecommunications system.

14.2 Sub-paragraph (b) of the Victorian terms of reference requires

the Commission to inquire into whether there exists, in the possession of any person (including any member of the Victoria Police or the AFP) any

information or material (including documents or tape recordings) arising out of or in relation to any unlawful interception by a member of the

Victoria Police acting in collaboration with, or in the course of an

investigation conducted by members of the Victoria Police with members of the NSW Police or the AFP which took place on or before 28 March 1985

in Victoria or New South Wales of communications passing over a

telecommunications system.

14:3 The Commission is also required to report upon whether that

information or material discloses the commission of criminal offences or the possible commission of criminal offences. An examination of the

material in the possession of the Commission indicates that it purports to relate almost entirely to possible criminal offences. The nature of those offences is dealt with in the confidential Volume Two of this

report. The question of whether the criminal offences or possible

criminal offences disclosed warrant further investigation is also

canvassed in that Volume.

14.4 The Commission decided that the requirement to inquire into the

existence of the information or material as described in the terms of

- 272 -

reference involved a consideration of the following issues:

whether the telephone conversations described in the

information received or recorded in the material obtained j by the Commission in fact occurred;

whether the parties to those telephone conversations were

those designated in the information or material; and

whether the information or material accurately recorded the

terms of any such telephone conversations.

14.5 The material received by the Commission, which is described

more fully in Chapters 1 and 6 of this report, generally comprised the

following categories:

(a) documents and tapes furnished by the editor of the Age to

the Special Prosecutor;

(b) additional copies of the Age documents and tapes obtained

from other sources;

(c) AFP running sheets and reports;

(d) evidence of witnesses; and

(e) tape recordings

telecommunications of conversations system where

installed in a motor vehicle.

passing over

the telephone

a

was

14.6 The items in categories (a) and (b) above form the bulk of the

material received and the content of the conversations recorded is of potential importance. The 'authenticity' of that material is a corrplex matter and will be canvassed in detail. The evidence relating to the

'authenticity' of the other material may be reviewed more readily.

- 273 -

AFP Records

14.7 groups. in 1980.

The AFP running sheets and reports fall broadly into two

The first group consists of running sheets and reports prepared

This material came into existence as a result of the

arrangement between Sergeant A Hawthorn and Inspector p J Lamb described

in Chapter 10 whereby Hawthorn provided Lamb with information gleaned from unlawful telephone interceptions carried out by the TSU [see

paragraphs 10.8-10.10]. Lamb later incorporated the information provided to him by Hawthorn in documents added to the AFP dossier on Morgan John Ryan. The second group contains information reports prepared by

Constables E A Harrison and c c Harten of the AFP from tapes of the

recordings made of the telephone conversations of Ryan in January,

l

February and March 1981 [see paragraph 10.16].

14.8 In view of the comparatively precise evidence regarding the

creation of the documents in both groups, the Cormnission is satisfied that the information in them arose out of unlawful telephone

interceptions car:ried out by officers of the NS\\1 Police in New south

Hales. Many of the documents contain accounts of telephone conversations involving Ryan. These conversations are the subject of the material

received from the Age and will be analysed in more detail in that

context. The material from the AFP contains additional information which was not in the Age material, but much of it relates to the same subjects.

14.9 There is a number of grounds for concern about the accuracy or

completeness of the surmnaries of conversations which are included in the AFP material. The documents were never intended to form a precise record

of the conversations and were created only for the purpose of recording intelligence provided to the AFP by the NSW Police. The entries do not purport to record conversations verbatim and all are in the form of

summaries or notes. This being so, there is an inherent risk that the

authors of the documents have recorded inferences drawn by them which may not have been justified. The Corrnnission therefore considers that it

would be unwise to endeavour to identify the parties to the conversations

or to affirm the accuracy and completeness of the intercepted

conversations.

- 274 -

14.10 The first group of documents nust be regarded as particularly

unreliable since they represent Lamb's notes about the contents of

telephone conversations overheard by Hawthorn and later relayed to Lamb. 2

14.11 While the Commission is satisfied that the AFP records generally relate to actual conversations which were unlawfully intercepted on telephones, it is not satisfied that the entries in the documents are

sufficiently accurate or complete to be used as a reliable basis for

findings as to the details of those conversations.

r1aterial Supplied by the Age Newspaper

14.12 The material supplied by the editor of the Age to the Special

Prosecutor is by no means a complete version of records made of telephone conversations illegally intercepted and recorded by NSW Police. several NSW Police witnesses gave evidence of intercepted telephone conversations

which are not recorded in that material. The absence of references

to those conversations could be due to several possible causes. As

described in Chapter 7, a large volume of records of intercepted

telephone conversations was destroyed and most of the tapes erased

[paragraphs 7.152-7.154, 7.156]. Furthermore, the police involved

imposed limitations upon the nature of the material recorded and

generally did not include references to police officers, nor to other

matters which may have been controversial due to the involvement of

public figures. It is sufficient at this point to record that the

Commission is satisfied that the information contained in this material

arose out of the unlawful interception of telephone conversations in New South Wales. The Commission's findings as to the accuracy of the

information will be dealt with later [paragraphs 14.69-14.72].

Interceptions - Car Telephones

14.13 The Commission also received a total of ninety two cassette

tapes recording conversations which were alleged to have been intercepted when persons were speaking on mobile telephones located in motor

vehicles. 3 The contents of those conversations and the procedures

- 275 -

used to make . the recordings are outlined in Chapter 10 of this report

[paragraphs 10.86-10.90]. The evidence concerning the origin of that material is succinct and leaves little room for doubt as to its

authenticity.

14.14 For reasons given in Chapter 5, the commission takes the view

that the interception of conversations passing over the Telecom

telecommunications system by means of mobile telephones is unlawful [paragraph 5.28]. Accordingly, the Commission finds that the ninety two tapes constitute material arising from the unlawful interception of telephone conversations in New south Wales. As most of the conversations recorded on the tapes are, in the opinion of the Commission, of

negligible value the question of the identification of the parties to the conversations and the purport of their conversations is not material. The Commission has not inquired into these matters in any more detail than was necessary to assess the worth of the material. One exception

is described more fully in the confidential Volume TWo.

Interceptions by the NSW Police

14.15 The inquiry into the authenticity of the material received from the Age was rrore complex and involved the assessment of a substantial volume of evidence.

14.16 The commission received assistance in this aspect of the inquiry from various areas, including:

the appearance and of the material itself;

statements and other material collected by t he NSw Police Special Task Force from or concerning persons whose names appeared in the material as participants in telephone

conversations and information gathered with respect to events referred to in those telephone conversations4;

information relating to the systems used for installi ng unlawful telephone interception devices and for recording

- 276 -

conversations gleaned from the statements, supplementary statements and oral evidence of police and other witnesses who participated in those activities;

evidence from the relevant police witnesses who perused the written material and listened to the tape recorded material in the possession of the Commission in order to identify particular portions which they had created, or with which they were familiar because of their involvement in the

interceptions;

evidence of witnesses who were called before the Commission and who were then asked to listen to the tapes and

questioned as to the possible identification of their own and other voices during which, of course, the Corrnnission had the opportunity to compare the voice of the witness

with the voice on the tape recording; and

corroborative information obtained by the Commission of extrinsic circumstances which enabled an assessment to be made of the genuineness of sane of the facts and

circumstances referred to in the telephone conversations.

14.17 It was obvious after the receipt of the first statements by NSW

Police officers that the material obtained by the Commission wh i ch had been in the possession of the Age newspaper was the product of telephone interceptions carried out by the TSU in cooperation with the BCI.

For that and other reasons some avenues of investigation into the

authenticity of the material were not pursued. For example, the

Commission did not embark upon the process of endeavouring to trace the continuity of the possession of the material in order to establish its

origins. It was apparent that this material comprised copies of unknown generation as to both the documentary material and the tape recordings. It was also apparent that there were other copies of the same material, or material from the same sources, in existence. It was clear from the early stages of the Commission's inquiry that some of the material,

- 277 -

although originating from the TSU or BCI, had been disseminated to the Victorian BCI and the AFP.

14.18 There were numerous possibilities as to the identity of the

party or parties responsible for the distribution of the material. It

was also possible to conclude from evidence received that the material

had come by different routes to the Age. The possible sources included

the TSU, OCI, AFP or Victorian BCI. The possible couriers were legion. There seemed to be little to be gained by indulging in a tracing

operation in those circumstances.

14 .19 The editor of the Age, Mr Creighton Burns, had informed the NSW

Police Special Task Force that the material had been provided to the Age by Mr Robert Godier Bottom. 5 In a Statutory Declaration provided to

the Stewart Royal Commission Mr Burns said that representatives of the Age had provided copies of the transcripts and tapes to the commonwealth

Attorney-General on 1 and 2 February 1984. He said that later that month copies of the same material were provided to the Attorney-General for New South Wales. He said that in the middle of March 1984 the original

material held by the Age was delivered to the Special Prosecutor,

6

Mr I D Ternby, r::r;. •

14.20 Mr Bottom had been called twice previously in relation to his

knowledge of material from telephone interceptions. He appeared

initially on 15 July 1983 during a hearing of the stewart Royal

Commission of Inquiry into Drug Trafficking and provided a copy of a

transcript of recordings of intercepted conversations passing over the telephone service connected to the home of Robert Trimbole. He then

declined to provide any information as to the source of the transcript, although he did say that he had not received it from a member of the NSW

Police. 7 The Commission is of the view that the original source of the

material provided to Mr Bottom was a NSW police officer.

14. 21 Mr Bottom appeared again before the Royal Commission on 5 July

1984 when he was questioned further concerning his knowledge of material

relating to telephone interceptions. He declined to nominate the source of the Trimbole and other material that he had by then received, although

- 278 -

he said it had been given to him in circumstances which gave him no

reason to doubt its authenticity. 8 While there are powers available

to a Royal Commission under the Royal Commissions Act 1902 to compel disclosure and for punitive action in the event of failure to answer

questions, in view of the other evidence forthcoming as to the origin of the material, it was resolved not to endeavour to roerce Mr Bottom in

order to ascertain his sources.

14. 22 The Commission did not pursue the use of a document examination expert for the purposes of seeking to identify typewriters which may have been used to create the documentary material received by it. various

police witnesses were questioned when they appeared before the Commission as to whether they had typed any of the material and varying responses

were received. Generally the relevant witnesses admitted that from time

to time they had transcribed tape recordings of intercepted telephone conversations, but only in isolated instances did witnesses specifically state that they had typed particular passages in the material.

14.23 The NSW Police Special Task Force had already undertaken the

exercise of examining typewriters in the ocr in order to identify any

machine which may have been used to type the material. Thirty e ight

typewriters on issue to the BCI had been tested by sergeant G J Chivers of the Document Examination Unit of the Scientific Investigation section of the CIB. He reported that he was unable, because of t he poor

reproductions, to identify either the typing contained in the transcripts or the occasional hand wr itten entry appearing in them9 [see paragraph 13.22 J. NSW Police witnesses swore that the bulk of the material was

typed on TSU not BCI typewriters. Because of the poor quality of the

bulk of the photocopy material handed to the Commission, it was

considered a waste of time to undertake testing of TSU typewriters.

14.24 The Special Task Force report commented that as the size of the

paper used to prepare the material, in particular the summary material,

was not corrunonly used by the NSW Police, it was more probable that the . 1' f lO It . document was not comp1led by members of that po 1ce orce. 1s now known from the evidence given to the Commission that the summary material

- 279 -

was typed by Sergeant B R McVicar of the BCI ll [see paragraph 14. 41] .

The Commission did not view an investigation based upon the size of the

paper as a fruitful exercise as clearly the material had been reproduced

by photocopier on an unknown number of occasions and would have provided

little insight into the type of paper used to record the original

material.

14.25 For similar reasons, the Commission did not embark upon a

technical examination of the tapes in its possession. This had been

attempted during the investigation by the Special Task Force but with inconclusive results. The tapes had been forwarded to the Audio Visual Division of the Victoria Police for examination where Senior Sergeant P Jones carried out tests. According to the Special Task Force report,

Jones indicated that he was unable to validate the tapes without the

originals. 12 The report also stated that the tapes originally received

by the editor of the Age from Mr Bottom were passed on to Jones and that

he canmenced an examination of them. There is no further reference in

the report to the results of any such examination, nor is any report by

Jones annexed to the report of the Special Prosecutor.

14.26 In the course of the investigation carried out at the direction

of the Special Prosecutor, Louis A Challis and Associates Pty {..td,

Consulting Acoustical and Vibration Engineers, were retained to

investigate the technical aspects of the tape recordings supplied by the Age. The AFP gave the consultants the four tapes which had been provided

to the Commonwealth Attorney-General by the Age. They were subsequently provided with the three cassettes which had been supplied to the Age by Mr Bottom.

14.27 The consultants opined that each of the tapes supplied by the

AFP had been copied from previously recorded material. Bearing in mind

that the tapes then being analysed were not the originals received by the Age, many of the observations based upon that fact were of little

significance. When examining the three 'original' tapes, the consultants concentrated on a conversation allegedly between Morgan Ryan and anothe r male and made several comments about it:

- 280 -

I

- .. version was copied from an earlier generation tape

than the version appearing on the tape previously examined;

the recording had been made by placing a microphone in

front of the loudspeaker;

the recording was incomplete in that the beginning of the conversation was not included;

in the first thirty seconds of the recording it was

possible that there was at least one 'edit' while the male person was speaking; and

1 . . 1 t 1 t . d 13 an ear 1er vers1on on ree o ree ape ex1ste .

14.28 The report concluded that there was a possibility that the

recording of the conversation had ·been interfered with and the

consultants recommended that earlier versions of the recording be

sought in order to provide a better basis for confirmation of this

1

. 14

cone us1on. No such tapes have been obtained.

14.29 In view of the evidence that the TSU recorded the intercepted

telephone conversations on reel to reel tapes and that the material in

question is contained on cassettes, it was never likely that the material obtained by the Age was in any sense 'original'. For that reason many of the remarks of the consultants were of little assistance in establishing the authenticity of the recordings. It is fair to assume that the

recordings have passed through several hands in their passage to the Age and it seemed to the Commission that little assistance would be provided by a technical examination of material created after an unknown number of reproductions.

14.30 Similarly, the Commission did not seek expert advice comparing the voices recorded on the tapes and the voices of the persons suspected to be participating in those conversations. In view of the volume of

evidence on the system for intercepting, recording and transcribing

telephone conversations by the NSW Police and the evidence generally

- 281 -

identifying the material obtained by the Corrunission as the product of that system, there is little likelihood that the tapes were a product of the actions of persons simulating the voices of suspects. In a number of instances the persons believed to have been recorded were called to give evidence and the Commission had ample opportunity for comparison and had

little difficulty in recognising the voices of those witnesses as being the same voices recorded on the tapes.

14.31 The report will now deal more specifically with each of the

areas which assisted the inquiry into the authenticity of the material.

Information Gathered by NSW Police Special Task Force

14.32 The investigation carried out by the NSW Police Special Task

Force brought to light information which in the view of the Commission enhanced the authenticity of the material to the extent that facts and

circumstances were identified which were consistent with matters referred to in the recorded conversations. superintendent Pry's report on this investigation indicates that he and the investigators under his direction came to a different conclusion from the Corrunission. As discussed in

paragraph 13.9, the Corrunission considers that the report was biased towards a conclusion that NSW Police were not engaged in illegal

telephone interception activities. Nonetheless in the course of the

Special Task Force investigation statements were obtained from persons who admitted that they had or may have had conversations similar to those

recorded in the material. Some of the rrore persuasive examples of such information collected by the Task Force may be summarised as follows:

{a) In the surmnary material on Morgan John Ryan references are

made to conversations between Ryan and 'Jack Whelan' . 15

Elsewhere the name Whelan is mentioned by or to Ryan in the

course of conversations, for instance, as a reference to be . 16

used when approaching Inspector D W Thorras of the AFP .

Superintendent B J Whelan of the NSW Police, who is known as 'Jack' Whelan, provided a statement to the Task Force.

While he said that he did not recall the precise telephone

conversations, he did say that there was a situation

(b)

(c)

- 282 -

involving himself and Ryan which existed about the time of the entries in the material. Consistent with the entries

in the material, Whelan said that he had met Ryan at

Central Court of Petty sessions, and that he had

communicated with Thomas whan he had known when Thomas

was an officer of the NSW Police. 17

In the material relating

telephone conversations of record conversations with

to the interception of the

Ronald Lcpes Dias, entries

a number of persons, the

identities of whom were established by the Special Task Force investigation. For example, reference is made to a • • • h 1' I 18 'Cameron of urst Po •

Sergeant R Cameron, who during 1979 was a Licensing

Sergeant at Darlinghurst Police Station, confirmed in a statement provided to the Task Force that he would have had the conversations as reborted in the transcript in the

course of his police duties. 19 In the same material

reference is made to 'Junie Maserina' arranging rental

accommodation for Dias. A statement was obtained from . . . 20

Mary who agreed that she would be the

person referred to in the transcript speaking on the

telephone to a representative of Dias. Similarly,

references are made on several occasions to Brian McCarthy of the Commercial Banking Corporation, City Tattersalls Branch. Brian Anthony McCarthy was interviewed by Special

Task Force police and he advised them that he was the

manager of the City Tattersalls Branch of that bank from

197 4 to 1981. . He agreed that he would have had at least

one of the conversations -recorded in the material. 21

Much of the written material relating to George David

Freeman indicates participation by him in Starting Price betting activities. 22 The Task Force ascertained that

Freerran and two women had been arrested at his home.

Freeman was charged with using his home for betting. He

subsequently pleaded guilty to this charge on 24 January

- 283 -

1983 and was fined $500. One of the women arrested with

Freeman was Jeanette Margaret Montague who also pleaded guilty and was fined $250. The second woman was

Beverley Ann Beves who was fined the same amount. As the report of the Task Force indicated, the significance of

these convictions was that first it confirmed that Freeman was involved in SP betting and, secondly, the co-defendant, Jeanette Montague, was probably the person 'J M Montague' mentioned in the material. The Task Force inquiries also ascertained that Beverley Ann Beves was the wife of 'Norman Beeves' whose name occurred frequently in the material as a person to whom Freeman spoke by telephone. 23

(d) In the Robert Trimbole material reference is made to

conversations between Trimbole and 'Jim Seedsrnan•. 24 A statement was obtained from Sergeant J J Seedsrnan25 who explained his role as the contact with Trimbole for the NSW Police and he readily admitted a particular conversation

recorded in the material.

Confirmation of Objective Facts by the Commission

14.33 In the course of its inquiry, the Commission obtained evidence of many facts and circumstances which are consistent with matters

r·eferred to in entries in the material. Indeed, it is reasonable to

assert that in the course of its inquiry the Commission did not come

across any acceptable evidence which was obviously inconsistent with events discussed or adverted to during the conversatibns recorded in the material.

14.34 Some examples of facts noted by the Commission which are

consistent with events referred to in the material are summarised

hereunder:

(a) With regard to Morgan Ryan, entries in the material said to be for 20 March 1979 record Ryan talking about taking a

trip and being away for about a fortnight; entries for

·.

- 284 -

31 March 1979 record conversations during which he speaks

f h

0 0 26

o av1ng JUSt returned. The ECI dossier on Ryan

confirmed that Ryan departed Sydney on 20 March 1979 for 27 overseas. In a telephone conversation alleged to

have taken place on 8 February 1980 between Ryan and an

unidentified AFP officer, Ryan spoke at length of a

conversation between himself and 'Don' .

28

This

conversation is clearly consistent with a conversation between Ryan and Inspector Don Thomas of the AFP on

7 February 1980 which was recorded. A tape recording

and transcript of this conversation was received by the

0 0 29 1 0

CommlSSlon. In the transcript materia noted as be1ng

for 21/22 April 1980

30

reference is made to Ryan and

Bruce Miles returning from Canberra. The BCI dossier on

Ryan contains an Information/Surveillance Report recording

observations of Ryan and Miles departing Sydney for

. 31

Canberra on 21 April 1980.

(b) With regard to the Dias interception, an example is the

role played by one Ian Hanunond. In several conversations recorded in the transcript he discussed installing

t 1 h f

o I o o 32 h

e ep ones or D1as s organ1sa t1on. From t e

transcript it seems obvious that Harmnond was employed by Telecom. Commission inquiries established that between

1970 and 1980 Ian Christopher Harrrrnond worked at Telecom's City East Region vvhich includes Edgecliff and its

surrounding area where much of Dias's activity was

33

centred.

(c) In the Trirrbole material, perhaps the best illustration

is the references in the conversations noted as being for 24 April 1981 and 28 April 1981 between Trimbole and

persons who appear t.o be jockeys in which a particular race . d 0 d 34 0 0 f 0 d h f h 1s 1scusse . The Comm1ssion ident1 1e t e ourt race at Gosford on 28 April 1981 as the race under

discussion and mentions of jockeys and horses in the

- 285 -

conversation were consistent with those participating in 35 that race.

(d) In the Flannery material, the accuracy of facts such as

Flannery's admission to St Vincent's Hospital on

29 November 1983 with an alleged heart condition and the

obligation upon him then to report to police in compliance with conditions of his bail, as discussed in numerous

conversations recorded about that time, was confirrred by . . . d b h . . 36 1nqu1r1es rna e y t e CommlSSlOn.

Identification of Material

14.35 In order to identify the authors of the transcripts Conunission staff interviewed each police witness who admitted participating, or who was alleged to have participated, in telephone interception operations covered by the transcript material in the Conunission's possession.

During each interview the vlitness was shown a copy of the following

transcript material:

TlA 'Mad Dog' 1979 (Target: Morgan John Ryan)

TlB 'Rabid' 1980 (Target: Morgan John Ryan)

TlC Morgan Ryan summaries (Target: Morgan John Ryan)

TlD 1981 Transcripts (Target: Morgan John Ryan)

T2 'A Dazzler' (Target: Ronald Lopes Dias)

T3 'Southern Comfort' (Target: George David Freeman)

T4 'Lucerne/Pasta' (Target: Robert Trimbole)

T5 'Gorilla' (Target: Christopher Dale Flannery)

- 286 -

14.36 The witnesses were asked to state whether or not they remembered hearing the tapes from which these transcripts were made, either at

the actual time that the conversation was being recorded or sorre time thereafter, or whether they had played any part in the transcription of conversations recorded on the original reel to reel tapes. The responses to these inquiries will be described below under headings referring to each part of the documentary material.

14.37 In addition to the above documentary material, the Commission received copies of some existing tape recordings of intercepted telephone conversations of Ryan and of Freeman. The tapes of conversations

involving Ryan were transcribed by the AFP and the transcription, with some additions and deletions made by Commission staff, appears in

Volume TlD. Summaries of the conversations of Freeman which are recorded

on tapes in the Commission's possession are contained in Volume T3.

Witnesses who said, either in their statements, supplementary

statements or when giving evidence, that they had a recollection of the conversations recorded in Volume TlD or T3, were requested to return to the Commission on 29 November 1985 to listen to the tapes. Each officer was asked to identify any role he or she had played in the creation of

the tapes. The responses are also recorded below.

TlA 'Mad DOg' - Morgan John Ryan

14. 38 Sergeant G P Smith and senior Constables R A Johnson and

R D \>Viggins remembered listening to some of the tapes and typing parts of

the transcript now contained in Volume TlA. 37 sergeant w s stanton

recalled hearing tapes of certain of the conversations transcribed, while Sergeant W J McKinnon and Senior . Constable K L Huber said that they had typed parts of the documentary material. 38 The Assistant Commissioner

of Police, R C Shepherd, and former Sergeant J B Meadley said that they f '1' . th h . 1

39

were am1 1ar Wl t e mater1a .

TlB 'Rabid' - Morgan John Ryan

14.39 Sergeant G P Smith recalled hearing tapes of some of the

conversations recorded in this material which were brought to his

- 287 -

He also said that he attention soon after they had been recorded. 40

had typed parts of the material. 41 Former sergeant J B Meadley,

Sergeant R Kilburn and senior Constable K L Huber identified their

. 42

handwriting on some of the pages of Volume TlB.

14.40 Sergeants R F Slucher and R I Treharne and senior Constables

R D Wiggins and R A Johnson said that they recalled listening to tapes of some of the conversations recorded in the material. 43 Kilburn and Wiggins stated that they had typed some of the material. 44 sergeant

B R McVicar believed that he was responsible for transcribing some of the material contained in Volume TlB. 45

TlC Summaries - Morgan John Ryan

14.41 Sergeant B R McVicar informed the Commission that the material in Volume TlC had been prepared by him at the request of superintendent R C Shepherd from the transcripts which had been prepared from

approximately 162 tapes of intercepted telephone conversations passing over the telephone service connected to Ryan's home during the period 7 February 1980 to 10 May 1980. He said that Shepherd had told him that he wanted a summary in relation to Ryan. McVicar concluded that Shepherd wanted a day to day summary of the transcripts . He stated that about two weeks later he realised that shepherd required only a short intelligence summary on Ryan. This was prepared by McVicar and now forms the first

three and a half pages of the material in Volume TlC. The remainder of the material in the Volume is comprised of the summary material which McVicar typed prior to fully understanding Shepherd's direction. 46

14.42 Former sergeant J B Meadley said he may have helped in the

preparation of the summaries and noted that his handwriting appeared at 47 page 60 of the Volume. Assistant commissioner R C Shepherd, Sergeant

R I Treharne, senior Constable R D Wiggins and Constable V G carrabs said

that they were familiar with the contents of the summaries. 48

TlD Transcripts - Morgan John Ryan

14.43 The transcript in Volume TlD, excepting amendments made by

- 288 -

Conunission staff, was prepared by the AFP in the course of the inquiry

conducted for the Special Prosecutor, Mr I D Terrt>y, from the tapes

which had been received from the Age. Witnesses were given the

opportunity of reading the material when being interviewed in connection with their supplementary statements. smith, Treharne, Wiggins and

Johnson recalled hearing the conversations transcribed in this

Volume. 49 Kilburn said that he had previously transcribed some of the conversations, and he also said in respect to other entries that he had actually heard the conversations as they were being recorded. 50 senior Constable K L Huber said that she remembered listening to several of the conversations which she had transcribed.

51

Meadley said that he

remembered a conversation recorded on pages 264-265 of the transcript,

but was uncertain whether he had heard it on a tape or had read it after

it had been transcribed. He said, however, that he recalled both

listening to the tape and reading a transcript of a conversation recorded 52 at pages 274-278. Sergeant P L Egge also recalled several of the

. . h' 1. 53 conversat1ons 1n t 1s Vo urne.

14.44 The tapes which contain recordings of the conversations which have been transcribed in the material contained in Volume TlD were played

to Sergeants R Kilburn,

G P Srni th, former Sergeant

attended the Commission on

R I Treharne, W S Stanton, W J McKinnon,

M K Ogg and senior constable K L Huber who

29 November 1985. Kilburn said that he had

heard seven of the conversations previously, one of them at the time it

listening to two of the be . ed 54 was 1ng record . Stanton recalled . 55

conversat1ons.

T2 'A Dazzler' -Ronald Lopes Dias

14.45 Kilburn stated that, apart from the first eight pages of this

Volume, he had typed most of the transcripts contained in it and that he

recalled 'almost all of the conversations' . He said that he recognised 56

his handwriting at pages 58, 59 and 86. Huber said she recognised

her handwriting on the first page of the Volurne.

57

senior Constable

R D 'iviggins said that some of the transcripts between pages 15 and 69

could have been done by him and sergeant K R Brown said he had heard

a number of the tapes recording the conversations which had been

- 289 -

transcribed in this Volume. 58 also that installed Brown said he had the interception device on Dias's telephone service. 59 sergeant

G p Smith, who also said he had helped to install the device, said that

he was familiar with this t . 1 60 rna en.a .

14.46 The before the Commission was that this telephone

interception had been carried out to assist a Victoria Police operation on and that the material relating to the telephone interception had

been forwarded to the Victoria Police [see paragraph 9.29). TWO

Victorian officers, Chief Inspector H F Green and Sergeant A w Graham, said that they had read a transcript of conversations recorded in the

material, but that it had appeared in a different format. 61 However,

Graham said that he recognised handwriting which appeared throughout this 1 h

. 62

Vo ume as IS.

T3 'Southern Comfort' - George David Freeman

14.47 TWo officers, senior Inspector J D Lewis

Sergeant W J McKinnon, said that they recalled

. d d . f h' . 1 63 conversations recor e In parts o t IS materia .

(now retired) and

listening to some

Sergeant R Kilburn

said that he recognised his handwriting at page 10 of the material and at various places from page 24 onwards. He said that he had typed much of

the material. 64 Senior Constable K L Huber said that she had inserted the handwritten telephone numbers which appeared on pages 11, 12, 15, 16 -and 17. 65

She said that she also recognised the material appearing at

pages 60 and 63 as being representative of the format used by her in

recording telephone numbers and details of subscribers. 66 Sergeant K R Brown recalled that he listened to much of this material, after

67

having 'hardwired' Freeman's telephone. Sergeant A L Rudd recognised his handwriting on forty eight different pages and former Sergeant

' l' h' 68 M K Ogg said that the material was very fami.Iar to Im.

14.48 As noted in paragraph 14.37 the Commission also possessed tape recordings of thirty four of the conversations which were summarised in Volume T3. These tapes were played to five officers who had served in

the TSU during 1976. Three of the officers said they could remember some

- 290 -

of the conversations. Sergeant R Kilburn said that he had heard the

conversations numbered 1, 2, 10, 11, 20, 22 and 25 in transcript prepared by the Commission and contained in Volume T3A 'at or about the time they

were made• .

69

Sergeant G P Smith recalled previously hearing

conversations 1, 2 and 15. He said he had either listened to, recorded

or transcribed conversation 10 and had some recollection of conversation 11, but was unable to provide further details. 70 sergeant w J McKinnon

71

said that he had heard conversations 1, 2, 4, 5, 9 and 15 before.

T4 'Lucerne/Pasta' - Robert Trimbole

14.49 Sergeant R Kilburn and Senior Constable R A Johnson said they

were both involved in placing the interception device on Trimbole's

72

telephone service and in clearing and listening to tapes. Johnson

said he also transcribed some of materia1. 73

14.50 Sergeant R I Treharne and Senior Constable K L Huber told the

Commission that they had listened to and transcribed some of the

conversations contained in the materia1. 74

14.51 sergeant R F slucher and former sergeant M K Ogg said that they

thought they had heard several of the conversations while Senior

Constable R D Wiggins thought he nay have 'done sane transcription' , 75

although he could not identify any particular parts. sergeant

W s Stanton stated that he had heard certain of the conversations and

had read some of the transcripts when participating in the surveillance

operation at the time. 76 Constable V G Carrabs, who at the time was

called in to assist police with translating conversations in the Italian language, said that · had translated and typed much of the 'Lucerne'

material. 77 Senior Constable J A Choat said that she, too, had typed

. 78

some of the transcr1pts.

14.52 Chief Inspector R p Morrison said that he recalled having read

79

the 'Lucerne' transcript before, as did sergeant K E McDonald.

Sergeant J F Withers said that he recalled hearing tapes of conversations and transcribing them, although he was unable to identify any particular 80 parts. sergeant R c Anderson said he transcribed part of this Volume

- 291 -

and identified his handwriting on pages 3 and 4, and his initials at the 81 foot of page 38.

T5 'Gorilla' - Christopher Dale Flannery

14.53 Sergeant R Kilburn, senior Constables G Moore and A F Daalmeijer and Constable s P Spencer said they remembered typing parts of the

82

material in this Volume. Constable P T Lowe also identified pages

which he said he had typed or had read soon after they were typed by

th 1 . 83 o er .PO 1ce. Constable D J Chinnery said that he recognised

sections of the material which recorded conversations which he had heard and others which he himself had transcribed. 84 superintendent

J F Foster and Chief Inspector R P Morrison said they had read parts of

the 'Gorilla' transcript. 85

14.54 The evidence before the Commission had already revealed that the interception of Flannery's telephone had commenced because of the search being conducted by the Victoria Police for four escapers from Jika Jika prison in Melbourne [see paragraph 8.114]. NSW Police provided

information and transcripts to the Victorian officers concerned during the interception of Flannery's telephone. Chief Inspector W F Green of the Victoria Police said that he recognised his handwriting which

appeared at page 69 of the materia1. 86

- Surmnary

14.55 Much of this evidence was iii"precise. A number of the witnesses

had been involved in so many telephone interceptions that they could not

recall with accuracy the roles they had played in particular operations. Similarly, witnesses who recognised conversations either in the

documentary material or recorded on the tapes, were often incapable of

being precise in their evidence as to whether their familiarity stemmed from their involvement in monitoring the telephone interceptions as

they occurred, listening to the reel to reel tapes later for relevant

information, hearing tapes played by other _police, typing transcripts, reading transcripts prepared by others or by being told details of the

conversations by other police.

- 292 -

14.56 The police witnesses' inability for the most part to identify

with any precision elements of the tapes and transcripts, or to give

first hand evidence about them, renders it highly unlikely that any such material would be adnitted as evidence in criminal proceedings. The Commission has certainly not succeeded in drawing up an accurate picture

of the identity of each person responsible for each part of the process leading to the creation of the material in its possession and has

concluded this -would be an irrpossible task. In the vast rna jor i ty of

cases the Commission cannot be satisfied as to who typed any particular page. However, the Commission has received sufficient evidence to lead it to the inescapable conclusion that the material is the product of

illegal telephone interceptions carried out by officers of the NSW Police in New South vvales.

Commission's Observations Concerning Voices on Tapes

14.57 For the reasons set out in paragraph 14.30 above, the Commission

did not seek expert voice comparision advice on the tapes in the

possession of the Commission. As a number of persons whose conversations were said to be recorded on the tapes were called before the Commission,

it had the opportunity of drawing its own conclusions concerning the

identity of the persons concerned. The Commission does not put itself forward as being possessed of any particular expertise in voice

comparison, but since the opportunity existed to compare the voice on

the tape with the voice of the witness, the commission would be remiss in not making some observations of similarities or dissimilarities

between the voices.

14.58 On 2 December 1985 Morgan John Ryan appeared before the

Commission in answer to a summons and was questioned for approximately

two hours about some of the matters revealed in the material said to have

come into existence as a result of the interception of conversations

passing over the telephone service connected to his home. He was then asked to listen to the tape which recorded a conversation said by police

to be between Ryan and a person said to be a solicitor. Ryan said that

it was not his voice on the tape. When pressed, he repeated that it

- 293 -

was not his voice and that he had no recollection of any such

. 87

Ryan was granted the benefit of an adjournment of the

hearing to enable him to give the matter further consideration, but upon resumption he reiterated that it was not his voice on the tape and that

he had no recollection of the conversation.

88

Having heard the tape

played and having heard Ryan speaking before and after the playing of the tape, the Commission is satisfied that the voice on the tape was that of Ryan and does not accept his denials.

14.59 Ryan was also played a tape of a conversation between himself

and Inspector D Thomas of the AFP in the Arirang House Restaurant on

7 February 1980. The conversation was recorded by the AFP using a

89

listening device secretly carried by Thomas. Ryan denied again that it was his voice on the tape. He said that he had 'no recollection of

90

that conversation'. Again, the Commission is satisfied that it was

Ryan's voice on this tape. Although this tape recording was not produced as a result of a telephone interception, the significance of the

Commission's observation in this case is that it further supports the

identification of Ryan's voice on the tape recording of the conversation between himself and the solicitor referred to above [paragraph 14.58].

In both cases, the Commission is firmly of the view that in denying that it was his voice, Ryan was being deliberately untruthful.

14.60 George David Freeman also appeared before the Commission in

answer to a summons and gave evidence on 16 December 1985 about various

matters referred to in the conversations said to have been intercepted on his telephone. He was also asked to listen to a tape recording said to

be of conversations which took place on his telephone. In particular, he

was played a conversation numbered 22 in the transcript of the tape

prepared by Commission staff91 and he said that he did not recognise

92

either of the voices on the tape. It was suggested to Freeman that

the tape recorded a conversation between himself and a man, Joseph

Patrick 'Joe' Taylor (now deceased), whom he admitted knowing. Freeman said that he did not recognise the voice said to be Taylor's nor the

voice said to be his own. He also denied that he had any connection with any of the matters referred to in the course of the conversation. 93

- 294 -

14.61 Freeman was then played a number of other conversations from the same tape and on each occasion he said that he did not recognise the

voices on the tape. In particular he said that he did not recognise his

own voice, even though in one conversation the caller gave the name

George Freeman and the address 20 Beach Street, Blakehurst, which Freeman

admitted was his address at the time. 94 Having heard the voice of

Freeman before, during and after the playing of various conversations

recorded on the tape, the commission is satisfied that the tape records Freeman's voice and that Freeman was deliberately untruthful in stating that he did not recognise one of the voices on that tape recording as his.

14.62 Francis Charlton, a former officer of the NSW Police, was also

called to give evidence before the Commission in relation to an assertion that he was one of the persons recorded in conversation with Freeman on the tape mentioned in paragraph 14.60. He gave evidence on 16 December 1985 and that he knew George Freeman as someone with whom he had

d 1 . h h . d . 1 . ff .

95 1 . d ea t t e course of as a po o He a so

that he knew Arthur William Delaney who was known as 'The Duke', who was the subject of references during the conversations on the tapes which were said to be between Charlton and Freeman. Charlton denied ever

96

having had conversations with Freeman by telephone.

14 . 63 He was then played a conversation numbered 1 in the Commission's

transcri ption of the tape97 and said that it was not his voice and

I I h' 98 •

could not be his voice as Freerran had never rung

att ention was drawn to the fact that the conversation commenced with the caller saying 'Is George there please', whereupon a child said 'Who is calling please?', and the caller said 'Frank'. He again denied ever

telephoning Freeman. 99 He was then played a conversation numbered 2 in

the Commission's transcription of the same tape and said that it was

definitely not his voice on the tape. He said that he had no knowledge

of any reference to someone 'stealing a grand from a garage

k b h

. 100 H

over at Pyrnble way', which were words allegedly spo en y e

was then played a conversation numbered 15 in the Commission's

transcription of the same tape which commenced with a male voice saying, 'C District Smaills' and the caller saying, 'Is Inspector Charlton there,

please?' before the person alleged to be Charlton commenced to converse

- 295 -

with . the caller, whose voice the Corranission was by then satisfied was that of Freeman. Charlton had been stationed at c District where he had been an assistant to Smaills. He said that he could not recognise his

voice, that it could not be him, and that he would 'not speak to Freeman

as he is a crimina1•. 101

14.64 The Corranission had already received information that the voice of Charlton was recorded on the tape. On 29 November 1985, as described earlier [paragraph 14.37], a number of NSW Police officers had attended the offices of the Corranission in order to listen to a number of tapes,

one of which was the Freeman tape. Of those, senior constable K L Huber,

Sergeants R Kilburn, W J McKinnon, G R OWens and G P Smith all recognised the voice of Charlton in the conversations numbered 1, 2 and 15 in the

Commission's transcription of the tape.

102

Furthermore, former

Assistant commissioner R E Lendrum was played the tape on 29 November 1985 and he too identified the voice of Charlton in conversations 1, 2

and 15. 103 01 19 March 1976 a tape was played to Lendrum in Centennial

Park by Superintendent A M Birnie which recorded a conversation between

Charlton and Freeman. 104 Lendrum had worked with Charlton for same time and was quite familiar with his voice and speech mannerisms and

peculiarities. 105

14.65 Having had the opportunity of comparing the voice or: Charlton

with the voice on the tape, the Corranission is satisfied that the tapes

- recorded conversations Charlton and Freeman and that Charlton was

deliberately untruthful to the corranission.

14.66 In the view of the Commission, the identificati'on of the voices

of the persons recorded on the tapes provides significant confirmation that those conversations did occur and did pass over a telecommunications system.

Conclusions

14.67 The Commission finds, in view of the totality of the above

evidence explaining the origins of the material and pointing to its

genuineness, that the telephone conversations referred to in the material

:;, " ...

. . · ..

- 296 -

in fact occurred. The Corrunission finds accordingly that there is in

existence material which arises out of or relates to the unlawful

interception in New South Wales of communications passing over the telecommunications system .

14.68 Verification of the

conversations is assisted by

identities examining of

the

the texts parties of the

to the

various

conversations and comparing them with the objective facts which have come to the knowledge of the Commission. When so compared there are few

instances where the name of a party to a conversation as recorded in the texts is inconsistent with the sense of that conversation or the

objective facts.

14.69 The accuracy of the conversations as transcribed however, is a different matter. A perusal of the documentary material shows that the quality of the transcription varies widely. The police officers who have described their roles in creating the documentary material have generally said that they did their best to transcribe verbatim conversations

recorded on the tapes when the conversation was of obvious interest. It

was conceded that in many other instances a summary only was typed. This

is consistent with the appearance of the material, which at some points appears to be in verbatim form and at others is in the form of a short

and often cryptic narrative summary or abstract.

14.70 The Corrunission accepts that the material appearing in verbatim form as a transcript of a telephone conversation has an acceptable degree of accuracy and probably fairly records that part of the conversation it purports to record. However, even in cases where a transcript appears to have been transcribed verbatim, there is no way, except in the few cases where tapes still exist, by which the Commission can ascertain whether or not the whole of the conversation has been transcribed from an unedited tape. The relevance of the conversation to the investigation in hand has been subjectively gauged by the individual transcriber; something said at

the beginning or the end of the transcribed portion and omitted, may well change the whole meaning of the conversation. The dangers of quoting selectively and out of context are well known.

- 297 -

14.71 The Commission is not satisfied that the transcript material in summary form has been prepared with sufficient care to be affirmed as

wholly accurate. In addition, the Commission does not consider that many

of the rx.>lice concerned in the task of summarising the material Ix.JSsessed the necessary objectivity to render their summaries reliable. The

transcript often contain interpolated comments and inferences.

It must be borne in mind that it was never the intention of the police

concerned to use the documents for other than their own intelligence

records, which thereby permitted a certain licence in the accuracy of the conclusions included in the summaries.

14.72 So far as the summaries prepared by Sergeant B R McVicar are

concerned [see paragraph 14.41) the Commission has come to the inevitable

conclusion that they cannot be relied upon as accurate records of

conversations. McVicar prepared the summaries for particular purposes and relied on transcript material which was to some extent · also in

summary form and which already contained expressed inferences which were

in some cases logi.:>ll1y :mav;dlable. McVicar's summaries in turn

a)ntained further conclusions and inferences sometimes based on the first set of inferences. Facts and names which do not appear in the

transcripts appear in his summaries. 106

Endnotes

1 TI212; ss86l, Quade; Ss35l, Harrison; S652, Lamb; TI69 Part 1

folio 19

2 TI219

3 TI280; TI281; TI282; TI328

4 TI290 Parts 1 to 5;

5 TI290 Part 2 folios 138-41

6 TI166

7 RCIDT CT14758

8 RCIDT CT22068

9 TI290 Part 3 folios 109-63

10 TI290 Part 1 folios 184, 187

11 S282, McVicar

12 TI290 Part 1

13 TI369 folios 3, 7-8

14 ibid

15 TlC/191, TlC/198

- 298 -

16 TlB/131

17 TI290 Part 3 folios 197-11

18 T2/122

19 TI290 Part 3 folios 95-104

20 TI290 Part 3 folios 65-93

21 TI290 Part 1 folio 171

22 T3/2, T3/4, T3/16, T3/21, T3/24

23 TI290 Part 1 folios 173-175

24 T4/31, T4/52

25 TI290 Part 3 folios 17-58

26 TlA/19, TlA/35

27 TI296 Part 2 folio 217

28 TlB/13lff

29 TI270

30 TlC/191

31 TI296 Part 2 folio 134

32 T2/78, T2/79, T2/44, T2/83

33 TI363 folio 134

34 T4/42ff

35 TI363 folio 23

36 TI289 Part 1; T5/93, T5/94

37 Ss47, Smith; Ssl28, Johnson; Ss52, Wiggins

38 Sl37, Stanton; Ss61, McKinnon; Ssll9, Huber 39 Ssl, Shepherd; Ss274, Meadley

40 Ss48, Smith

41 ibid

42 Ss274, Meadley; Ssl3, Kilburn; Ssl20-2l, Huber 43 Ss41, Slucher; Ss251, Treharne; ss53-54, Wiggins; SS129, Johnson 44 Ssl3, Kilburn; Ss53-54, Wiggins

45 Ss864, McVicar

46 Ss863, Ss864, E871-72, McVicar

47 Ss275, Meadley

48 Ssl, Shepherd; Ss251, Treharne; Ss54 Wiggins; Ss99, Carrabs 49 Ss49, Smith; Ss251, Treharne; Ss54, Wiggins; Ssl30-31, Johnson 50 Ssl4, Kilburn

51 Ssl21, Huber

52 Ss275, Meadley

53 Ss340, Egge

54 TI334 folios 16-18

55 TI334 folios 7-9

56 Ssl4, Kilburn

57 Ssl22, Huber

58 Ss56, Wiggins; Ss27, Brown

59 Ss26, Brown

60 Ss49, Smith

61 Ss815, Green; S764, Ss829, Graham

62 E2961-62, Graham

63 Ss21, Lewis; Ss59, McKinnon

64 Ssl4, Kilburn

65 Ssl22, E552, Huber

66 Ssl23, Huber

67 Ss28, Brown

68 Ss325, Rudd; Ss320, Ogg

69 TI333 folios 37-48

70 ibid folios 25-36

- 299 -

71 ibid folios 49-60

72 Ssl5, Kilburn; Ssl33, Johnson

73 SS133, Johnson

74 Ssl23, Huber; Ss252, Treharne

75 Ss42, Slucher; Ss320, Ogg; Ss56, Wiggins

76 Ssl39, Stanton

77 ss518, Ss525, carrabs

78 Ss528, Choat

79 Ss366, Morrison; Ss871-873, McDonald 80 Ss728, ·withers

81 Ssl98, Anderson

82 Ssl5, Kilburn; Ssl75-77, Moore; Ssl62, naalmeijer; Ssl68, Spencer 83 Ssl52, Lowe

84 Ssl85, Chinnery

85 Ss499, Foster; Ss368, Morrison

86 Ss815, Green

87 E3256, Ryan

88 E3258, Ryan

89 TI270

90 E3265, Ryan

91 TI169

92 E3604, Freeman

93 E3604ff, Freeman

94 E3609, Freeman

95 E3653-53a, Charlton

96 E3653a, Charlton

97 TI169

98 E3654, Charlton

99 E3655, Charlton

100 E3655-57, Charlton

101 E3658-59, Charlton

102 TI333

103 TI345

104 Ss356, Ss363ff, Lendrum; Ss943, Birnie

105 TI345

106 TlC/159, TlB/108, TlC/159, TlB/114-17, TlB/119-23

CHAPI'ER 15

CURRENT PRACTICES

- 303 -

CHAPI'ER 15 CURRENT PRACTICES

Current System for Lawful Telephone Interceptions

15.1 The provisions of the Telecommunications (Interception) Act

1979 which provide for the lawful interception of communications passing

over a telecommunications system have been referred to earlier [see

paragraphs 5.9-5.10]. Leaving to one side the provisions which allow for interceptions to be carried out by ASIO in connection with the

perforrrance of its functions, the relevant procedures for the issue of

warrants authorising the AFP to intercept telecommunications are

contained in Part IV of the Act. Only officers of the AFP may apply for

the issue of a warrant. However, information gained as a result of the

lawful interception may be communicated to State police · in relation to certain matters set forth in section 7 ( 5) of the Act. The recipient in

a State police force acting in the course of his or her duties may pass

on that information to another member of that force. This provision

facilitates the sharing of information in operations carried out by the JTF which is comprised of both AFP and NSW Police officers.

15. 2 A number of officers of the NSW Police who are or were members

of the JTF expressed

procedures adopted for

dissatisfaction to the the implementation Commission of lawful

with the

telephone

interceptions and the dissemination of information resulting from those interceptions. These criticisms of the lawful system may well have been made partly to justify the use of illegal interceptions, but the

Commission nevertheless considers that at least some of these criticisms

are valid. The Commission is of the view that the current system for

the authorisation of the installation of interception devices and the subsequent monitoring of intercepted telephone conversations is

cumbersome, slow and urgently in need of review.

- 304 -

AFP Involvement in Lawful Telephone Interceptions

15.3 The Commission sought and obtained evidence of the lawful

procedures used by the AFP in connection with the interception of

telephone conversations. The Commission was told that the Special Projects Branch of the AFP in Canberra is responsible for the

administration of the system whereby applications for warrants are

processed and for the irrplementation and maintenance of interceptions of telephone conversations. The Branch is under the control of a

superintendent, who has the assistance of a chief . inspector, four

sergeants and thirteen constables. A sergeant and five constables are also seconded to the Branch. The Branch also contains four public

servants responsible for word processing and clerical assistant duties. 1

15.4 The Commission was informed that when an investigator involved in a narcotics investigation considers that a telephone interception is necessary to obtain further information, a draft affidavit and draft

warrant together with a covering report, are prepared and forwarded to the Special Projects Branch, through the normal chain of conunand. The documents are actually forwarded to the Branch by the Regional commander of the particular area. It was said that this process usually takes

'only a couple of days as regional hierarchies are conscious of the need for expedition'. The Commission was told that if the matter is extremely urgent the documents can be forwarded to canberra on the sarre day and consideration of the request commenced upon receipt of advice by

2

telephone.

15.5 The draft documents are distributed to rrembers of a Special

Projects committee, which meets in order to consider requests for

telephone interceptions. This committee consists of the superintendent of the Special Projects Branch, the Detective Chief superintendent of the Investigations Division, the Detective Chief superintendent of the Intelligence Division and the Assistant Commissioner Investigations Department. Checks are made within the Special Projects Branch to verify

the accuracy of the details provided for the particular telephone service to which the interception device is to be connected and the documents are

- 305 -

3

checked to ensure compliance with the provisions of the Act. The

Special Projects Committee then considers the merits of the application.

15.6 The Commission was informed that approximately fifty per cent of applications are rejected 'because of other priorities and the limited resources It was claimed that decisions regarding

applications are usually made within t wenty four hours of receipt of

the draft documents. Upon approval being given by the Committee, the applicant is informed and he or she then approaches an officer in the

Office of the Director of Public Prosecutions, who arranges for an

appointment with a Judge in Chambers for the purposes of obtaining a

4

warrant.

15.7 Upon the warrant being issued, the Superintendent in Charge of

the Special Projects Branch prepares a written notice to Telecom and gives advance notice by telephone. Written notifications for the

Attorney-General and the Special Minister of State are drafted and

forwarded to the Commissioner of the AFP for signature and are later

delivered by hand. The notification to Telecom and a certified copy of the warrant are transmitted to Telecom Headquarters in Melbourne by AFP courier bag and delivered to a nominated officer who is responsible for

liaison in connection with telephone interceptions. 5

15.8 In due course an officer of the Special Projects Branch is

notified by an officer of Telecom that the interception has been effected by connecting the particular telephone service to a trunk circuit

permanently leased by the AFP for that purpose. When that information is received the circuit is then connected to the equipment used within the Special Projects Branch to monitor and record communications on the

. 6

relevant telephone

15.9 The Commission was informed that where the request is urgent,

Telecom can and does respond within hours of notification. In other

cases Telecom usually responds in about twenty four hours, although in some areas a longer period is required. The Commission was informed

initially that the overall time taken from the date of the request from

- 306 -

the investigator to the carunencement of :roc>nitoring was in the order of seven to nine days, but an officer who subsequently gave oral evidence about the matter suggested that the average period between receipt of an application and the time Telecom ' commenced the interception was three days and two days in cases regarded by the Special Projects Committee as

7

urgent.

15.10 Once the interception has been effected the telephone

conversations so intercepted are listened to by monitors who maintain a log of the conversations. This log contains information such as the call number, the telephone numbers dialled by persons using the service, the time of commencement and termination of calls, the identities, if known, of parties to the conversations and a short description of the

t

. 8 . .

conversa 1ons. A case off1cer is appo1nted in relation to each

investigation within the Special Projects Branch and that officer is briefed by the investigators with details of the investigation, including photographs of persons and locations involved, if available, and any

other relevant information. Within the investigating group two or three persons are nominated as contacts and these persons are required to be available on a twenty four hour basis.

15.11 Conversations which the monitor on duty considers are relevant to the investigation and should be passed on immediately to investigating officers are conveyed to the station sergeant on duty or the case

officer, who in turn convey the information to the investigators by

telephone. Those conversations not considered urgent by the monitor, but identified by him as requiring transcription are transcribed during the night shift in handwriting. 9 The handwritten transcriptions are

reviewed by the case officer on the following morning and then by the station sergeant. The review is intended to confirm the relevance of the information to the investigation. Relevance is determined by reference to the affidavit or briefing material previously provided by the

investigators. If it is decided that the information is to be

communicated to the investigators, the handwritten transcription is then typed by a word processor operator. The AFP word processing system in

Canberra is connected by tie lines to its other offices and a print-out

- 307 -

is received in the office where the investigation is being carried out. The case officer is also provided with a copy of the log recording

details of all calls intercepted. 10

15 .. 12 By virtue of section 7 ( 5) of the Act the Corrunissioner of the

AFP, or any person authorised by him,

information obtained from intercepted relates to the commission of certain

is empowered to communicate telephone conversations which offences other than narcotic

offences. The Corrrrnissioner has authorised the superintendent and the Chief Inspector of the Special Projects Branch to communicate such

information. The Corrunission was told that these officers have the

capacity to corrununicate information immediately as, on occasions, information is received about imminent offences. 11

15.13 The Corrunission was informed that each interception is closely scrutinised by the Special Projects Branch throughout its duration and where it appears to that Branch that the grounds upon which the warrant

was issued have ceased to exist, the interception is immediately

discontinued, the warrant revoked by the Commissioner and the statutory requirements upon the completion of an interception are put into

effect. 12

Role of Telecom in Lawful Telephone Interceptions

15.14 The Manager of the Communications Branch, Corrnnercial Services Department, Telecom Australia Headquarters, Melbourne, Mr Stanley Maurice Fish gave evidence to the Corrnnission concerning Telecom's involvement in the lawful interception of telephone conversations.

13

At the time he

appeared before the Commission he was acting as the Telecom Headquarters liaison officer with the AFP in relation to authorised telephone

interceptions and he outlined the procedure followed by Telecom en

receipt of notification that a warrant had been issued.

15.15 Mr Fish told the Commission that a certified copy of the warrant for the interception is delivered to him in Melbourne by an AFP officer. He said that he then contacts by means of a secure telephone, the Telecom

liaison officer in the capital city of the State where the intercept is

- 308 -

to be undertaken. That liaison officer then communicates with the

control exchange for the State, which communicates with the relevant local exchange. In New south wales the Australian Telecommunications Employees Association (ATEA) has insisted that the local exchange and

intermediate exchanges be furnished with written authorities. That authority does not, however, indicate the telephone service which is to be intercepted.

15.16 The interception is made by a parallel connection being placed on the particular service specified in the warrant with a parallel

connection being connected through spare junction cable pairs to the control exchange. If it is not possible to connect directly to the

control exchange then intermediate exchanges may be used. A control exchange is in turn connected to the AFP monitoring centre via the trunk

exchange in Canberra. The AFP permanently leases several direct lines

from Telecom for this purpose. These lines are either microwave or

coaxial cable (not encrypted). The lines from Sydney to Canberra are coaxial cable. The lines between the control exchange, intermediate exchanges and local exchange vary according to the service to be

intercepted. In some areas where services are regularly intercepted, junction lines (those between exchanges) are reserved for the purposes f

. . 14 h .

o 1ntercept1on. In country areas where, because of t e d1stance

involved, it has not been possible to bring the intercepted conversations back to the control exchange, the AFP have used a service installed in a

house in the area and arranged for a parallel connection to be made by

Telecom across the service so that it could be taken back to that service

and recorded by the AFP. If details of the conversation are required to

be transmitted to the AFP in Canberra details are relayed by the AFP

officers over the STD lines. 15

15.17 The technicians at the control exchange coordinate the work of the technicians of the local exchange, the intermediate exchange and the AFP monitoring centre. The control exchange technicians are required to

complete documents indicating the time and date of the connections and

disconnections. The technician also certifies that certain testing has been carried out to ensure that the correct service is connected and

- 309 -

that he or she has verified that the service was suspended at the

time requested. This certification procedure enables the Managing Director of Telecom to execute a 'conclusive' certificate as to the

interception, a requirement provided for in the recent amendments to the Telecommunications (Interception) Act, which were enacted in response to the demands of .technicians who did not wish to give evidence in court cases regarding interception of telephone conversations in narcotic

16

cases. There is no requirement for the local or intermediate

h k d f . k 17 exc anges to eep a recor o act1on ta en.

15.18 The Telecom Headquarters liaison officer takes no further action in relation to the matter after he has given his instructions to the

State liaison officer to effect the interception until he hears from the AFP either that the warrant is to lapse at the expiration of the period

mentioned in the original warrant, or that a new warrant is to be

issued. Occasionally warrants are revoked, for example where the

target ceases to use a particular service. In each of those cases he

communicates with the state liaison officer to inform him of action to be

taken in relation to the interception, as the State liaison officer is

not informed at the outset of the period referred to in the warrant. 18

Overseas Practices in the Interception of Telephone communications

15.19 The Commission obtained information relating to the legislation and practices covering the interception of telephone conversations in New

zealand, North America and various European countries. Set out hereunder is a surrunary of the position in each of those countries. Each of the

countries from which information was sought permits the interception of telephone conversations. The circumstances in which such interception is permitted, and the procedure for obtaining authorisation, varies

considerably.

Sweden

15.20 The Swedish Constitution prohibits the interception of telephone conversations except in accordance with the provisions of any enactment.

- 310 -

There are two circumstances under Swedish law in which telephone

interceptions are permitted.

15. 21 Under Section 16 of Chapter 2 7 of the Code of Procedures, the

court may authorise 'wire-tapping' where a person can be suspected

reasonably of an offence punishable by imprisonment for at least two years. The investigator or prosecutor must show that it is of

'extraordinary importance' for the investigation that knowledge be obtained of such conversations. The authority for the interception rrust be limited to a period of one week from the date of service of the

authorisation on the manager of the telephone office, except where a grave drug or drug smuggling offence is suspected, where the interception may be authorised for one month. Records arising from the interception

which contain matters of 'no importance for the. investigation' must be ·destroyed immediately after inspection.

15.22 The second circumstance in which the interception of telephone conversations is permitted is where it is considered to be of importance to ascertain whether or not a terrorist organisation is planning or

preparing action which would constitute a threat against general order or security.

15.23 An annual report is required to be submitted to the Riksdag

(Parliament) concerning applications for the interception of telephone conversations pursuant to the various laws.

15.24 Amendments to the . current provisions relating to interceptions

in cases of suspected criminal offences are currently being considered by the Swedish Government. The proposals apparently deal, inter alia, with the handling of excess or extraneous information arising from telephone interceptions.

Denmark

15. 25 The Danish legislation dealing with the interception of

telephone conversations was passed by the Danish Parliarrent on 6 June 1985. Telephone conversations may only be intercepted by police where

- 311 -

there is good reason to believe that messages are being sent or

received by the suspect and that the use of the interception will have

considerable bearing on the outcome of the case. The suspected offence must be one punishable by imprisonment for six years or more, or be a

specified offence, which include offences relating to national security, assisting a pri$oner to escape, evading National Service, blackmail, tax evasion and smuggling.

15.26 A warrant must be obtained from the Court, and authorisation

will not be granted where the inconvenience caused by the invasion of privacy 'far outweighs the value of the information sought'. The warrant must disclose the concrete facts upon which it was issued, and may

be withdrawn at any time. The maximum perioo for which a warrant is

effective is four weeks although this period may be extended. Where the object of the operation could be defeated by the delay in ootaining a

warrant, the police rray install an interception prior to obtaining a

warrant. Within twenty four hours of such installation, the matter must be brought before a court, which will determine if the interception

should continue. If the Court decides the interception should not have taken place, the court shall inform the Minister of Justice accordingly.

15 . 27 The legislation also provides for the appointment of an attorney to safeguard the interests of the suspect prior to the issue of a

warrant. The attorney is entitled to familiarise himself with the

material held by the police, and may obtain a copy thereof. The attorney is prohibited from divulging such information and from a:mtacting the suspect.

15.28 On completion of the operation the suspect must be informed of

the interception, and the court which issued the warrant informed of the cessation of the interception.

15.29 Where information is obtained from an interception which relates to an offence which cannot form the basis for a warrant, that information can be used by police in the investigation of that offence but cannot be used in evidence in the prosecution of that offence.

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15.30 Information obtained from an interception must be destroyed

where no charges are laid or where charges are withdrawn, and the

attorney appointed to safeguard the interests of the suspect must be

informed. Destruction may be postponed or waived, on approval of the

court, if the material continues to be of importance to an

investigation. All irrevelant material must be destroyed.

The Netherlands

15.31 The Dutch Constitution permits the interception of telephone conversations only in criminal proceedings or for the security of the State.

15. 32 The Penal Code prohibits the interception of telephone

conversations conducted in a house, a private room or private property except by special order of the Prime Minister, the Minister of Justice and the Minister of Home Affairs collectively in matters of national

security. The order authorises interceptions for a period not exceeding three months, and the interception must be notified to the Head of the National Security Office. Interceptions carried out other than in

accordance with the Code are punishable by a fine or six months

imprisonment (Article 139a).

15. 33 The Code further prohibits the interception of telephone

conversations conducted over a telephone partly or entirely for public use except 1 for the sake of criminal proceedings 1 or in rratters of

national security as referred to in the paragraph above (Article 139c). There is apparently no requirement for an order or warrant to be obtained

in respect of interceptions in criminal proceedings.

15. 34 A further offence is created, punishable by a fine or

imprisonment for two months, for the advertising of aids for the

interception of telephone conversations (Article 44lb).

15.35 The Code on Criminal Proceedings provides for the material

obtained in a telephone interception relating to a criminal offence to

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be conveyed by the telephone authority to the public prosecutor or the

investigating judge (Article 125f). During preliminary judicial hearings the investigating judge has power, where it is considered urgently

necessary and the offence is punishable by imprisonment, to decree the interception of telephone conversations of the suspect. Records from such an interception must be assessed by the investigating judge and

irrelevant material destroyed (Article 125h).

15.36 The War Act also allows the 'military authority' to issue a

special order as referred to in articles l39a and 139b of the Penal

code. That Act also permits the 'military authority' to 'annihilate,

amend or add to legal enactments concerning listening in to or recording

of telephone conversations' (Articles 46a, 45(3)).

France

15.37 It appears that there is no legislation specifically dealing

with the interception of telephone conversations in force in France. The law 70-764 of 17 July 1970 to 'Strengthen Protection of the Individual

Rights of Citizens' explicitly acknowledges the right to privacy. That law however, has no specific provision relating to the interception of

telephone conversations.

15. 38 The interception of telephones may be requested by Government

aepartments and approved by the Minister pursuant to the 'General

Instructions for the Protection of Defence secrecy' in matters involving the protection of national security, terrorism and larae scale or

organised crime.

15.39 Telephone interceptions may also be

investigating magistrate under the provision in instigated by an

the Code of Penal

Procedure enabling the investigating magistrate to carry out searches which he considers useful to establish the truth. The Public Prosecutor

also instigates interceptions of telephone conversations in urgent cases or in cases of serious crimes such as kidnapping and blackmail, although this practice apparently has not been judicially considered.

- 314 -

Federal Republic of Germany

15.40 The interception of telephone conversations in the FRG is

regulated by the Act to Limit Letters, Postal and Telephone Secrecy of 1968. The Act permits telephone interceptions in matters involving

threats to the 'free and democratic order', national security or to armed forces stationed in the FRG. It must be shown that 'real indications'

exist giving rise to the suspicion that such crimes are being planned or have been perpetrated.

15.41 Application for authorisation for an interception is made from the head of one of the Federal or State intelligence bodies to a Federal or State Minister . The maximum period for which an interception may be authorised is three months, although this period may be extended.

Material arising from the interception is destroyed after final

evaluation.

15.42 A body of five parliamentarians, selected by the Federal

Parliament, is informed of interceptions carried out under the Act at six monthly intervals. A three person Commission appointed by the five parliamentarians is informed of interceptions about to be installed but not yet initiated at ronthly intervals. That Corrunission may declare a planned interception unlawful or superfluous, and cancel such action.

The parliamentary body may consent to an interception for the purpose of

gathering intelligence to prevent a war of aggression.

15.43 The person subjected to the interception must be informed of the interception after it has ceased, except where such action would

jeopardise the object of the operation.

15.44 Interceptions of telephone conversations can also be authorised

by a judge in the course of criminal proceedings for offences of the type

described,' or in proceedings for capital offences or 'dangerous' crimes such as forgery of roney, kidnapping or blackmail. An interception in

such circumstances is authorised where investigations otherwise would be

futile or severely inpeded. The Public Prosecutor may also initiate an interception with the approval of a judge in cases of imminent danger.

- 315 -

Austria

15.45 Article lO.a of the Austrian Basic Constitutional Law

establishes the general inviolate right of privacy of telephone

cqnversations, except in cases where a judicial order is d:>tained in

accordance with the law.

15.46 Under the Code of Criminal Procedure an order for the

interception of a telephone conversation may be granted by a panel of

three judges of the local Provincial Court (the equivalent of a State

Supreme Court in Australia}. The court must be satisfied that the

interception may reasonably assist investigations into a crime carrying a penalty of more than one year imprisonment, and that the owner of the

telephone is reasonably suspected of having committed such an offence.

15.47 A single judge may grant an order in an emergency, but such

order must be subsequently ratified by the panel of three judges. There is no maximum limit to the period of authorisation, but the order is

generally effective for three to four weeks.

15.48 At the end of the authorised period for the interception, the

suspect must be informed of the interception and given the opportunity to examine the records obtained therefrom. A right of appeal to a higher court is provided, and if the appellant is successful, all evidence

obtained during the interception must be destroyed.

15.49 The Penal Code provides that it is an offence to intercept

telephone conversations without authorisation, punishable by a fine or six months imprisonment (section 119}.

15.50 In 1984, forty two court orders were granted in Austria

authorising telephone

15.51 The Code of Criminal Procedure regulates the interception of

telephones in Italy. That Code provides that on authorisation of a

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magistrate, police and some public officials may intercept telephone conversations in the investigation of offences carrying a penalty in excess of five years imprisonment, drug offences, offences concerning arms and explosives, smuggling and the making of threatening and nuisance

telephone call (Article 226(bis)). Authorisation will be given on the presentation of serious and actual evidence of the alleged offence. The authorisation may not exceed fifteen days, but may be extended. The

order rrust be entered in a register held in the office of the public

prosecutor or investigating magistrate (Article 226 (ter)).

15. 52 The defendant's counsel is entitled to receive a copy of any

taped conversation (Article 226 (quater)).

15.53 The

imprisonment

conversations

United Kingdom

Criminal Code provides penalties of for public officials who illegally

(Article 617 (bis)).

one to five years

intercept telephone

15.54 The interception of telephone conversations is regulated in the

United Kingdom by the Interception of Communications Act 1985.

15. 55 The Act makes it an offence, punishable by a fine or

imprisonment for two years, to intercept a telephone conversation, except

in pursuance of a warrant issued by the Secretary of State (section

1(2)). The Secretary of State may only issue a warrant if he considers it is necessary in the interests of national security, for the prevention or detection of serious crime or for safeguarding the economic well being

of the United Kingdom • . A serious crime is defined as ooe involving

violence, resulting in substantial large number of persons in pursuit it could reasonably be expected

financial gain or is conducted by a

of a common purpose, or is one where that a person with no previous

convictions would be sentenced to imprisonment for three years or more (section 10(3)).

15.56 In determining whether a warrant should be issued the Secretary

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must consider whether the necessary information could be acquired by other means (section 2).

15.57 The Secretary is also required to specify, either in the warrant or in a certificate, the persons to be the subject of the interception

and the communications considered material to the investigation

(section 3).

15.58 The warrant is effective for a period of two rronths from the

date of issue, or if it is renewed, six rronths from the date of renewal,

in the case of an investigation involving the national security or the safeguarding of the economic well being of the United Kingdom, or for one month in other cases (section 4) . The warrant may be cancelled by the

Secretary (section 4) or modified at any time (section 5).

15.59 The Act also requires the Secretary to make such arrangements as he considers necessary for limiting as far as possible the number of

people having access to the material arising from the interception

(section 6).

15.60 Section 7 of the Act allows a person who believes himself to be

the subject of an interception to apply to a Tribunal, constituted by the Act, for an investigation. The Tribunal is required to determine if the provisions of the Act have been complied with. If the provisions have been breached, the Tribunal is required to notify the applicant and the

Prime Minister and, if the Tribunal thinks fit, to make an order quashing

the warrant, directing the destruction of intercepted material and/ or directing the payment of compensation by the Secretary. The decision of the Tribunal may not be appealed against.

United states of America

15. 61 The interception of telephone conversations is regulated in the USA by 18 united states code sections 2510-2520, Chapter 19. section

2511 prohibits the interception of telephone conversations except as provided in Chapter 19. The penalty for breach of the section is a fine

- 318 -

or five years imprisonment. The Code also prohibits the manufacture, distribution, _possession and advertising of devices for the interception of telephone conversations (section 2512).

15.62 Section 2516 authorises law enforcement officers of the Federal Government, with the approval of the Attorney-General to make application to a Federal Court judge for an order authorising an interception in

relation to a wide variety of suspected offences (including any offences punishable by death), such as espionage, treason, murder, kidnapping, extortion, bribery, gambling, embezzlement, counterfeiting and drug offences. That section also authorises State officers to seek such an order from a State court judge. The order must be granted in accordance with the Chapter and the relevant State law.

'15.63 The procedure for making application for authority to intercept a telephone conversation is dealt with in section 2518. The application must include a full statement of facts, including details of the offence and the identity of the suspect. The judge may grant the order if it is

determined that there is probable cause for belief that a crime is to be committed, that there is probable cause for belief that communications concerning such crime will be obtained from the interception, that normal investigative procedures have been tried and have failed or are unlikely to succeed if tried or are too dangerous and that the telephone services to be intercepted are used or are likely to be used by the suspect. The

order rrust specify the identity of the suspect, the location of the

telephone service, the type of communication to be intercepted and the particular offence to which it relates, the identity of the agency

authorised to intercept the corrununication and the period for which the intercept is authorised. The order may not authorise an intercept for longer than thirty days although extensions may be granted.

15.64 The section also contains provision for interceptions to be

carried out in an emergency threatening the national security or in cases of conspiratorial acts with characteristics of organised crime. such interceptions must be brought before the Court for ratification by order within forty eight hours.

- 319 -

15.65 In the event that approval for an interception is denied, or

where the time limit of an order has expired, the judge is required to

serve notice on the person subject to the interception of the fact of

the application for the interception and whether such interception took place. The service of such a notice may be postponed. The judge has the discretion to nake available to that person material arising from the interception.

15. 66 Section 2519 makes provision for details of orders sought to be furnished to the Administrative Office of the United States courts. That office is also furnished with details of interceptions carried out and the number of arrests, trials and convictions resulting from

interceptions. The Administrative Office in turn reports the details to Congress.

15.67 Section 2520 provides a person the subject of an unauthorised

interception with a civil cause of action against the person responsible for such interception. Section 2518 paragraph 10 also allows a person to apply to a court for the suppression of material arising from an

interception where such material is to be used in proceedings, on the

grounds that the interception was not properly authorised.

Canada

15.68 The interception of telephone conversations is regulated in

canada by Part IV.l of the Criminal Code. section 178.11 of the code

provides that it is an offence, punishable on indictment and with a

penalty of five years imprisonment, to wilfully intercept a private

communication. The possession, sale or purchase of devices for telephone

interception is an offence punishable by two years imprisonment.

15.69 Authority to intercept a telephone conversation may be ootained from a judge of a superior court of criminal jurisdiction with the

approval of the Attorney-General of the Province or Solicitor-General of canada. The application must set out the facts relied upon and the

particulars of the suspected offence. The offences for which approval for an intercept may be given include treason, sabotage, forgery,

- 320 -

hijacking, firearms and explosives offences, bribery, corruption,

obstructing justice, murder, assaults, . kidnapping, advocating genocide, fraud, breaking and entering, arson, gaming and betting, drug offences and smuggling.

15.70 The judge may grant authorisation for an interception where he is satisfied that it would be in the best interests of the administration of justice to oo so and that other investigative procedures have been

tried and failed or are unlikely to succeed (section 179.13). The

authorisation is required to state the offence in respect of which the

communication may be intercepted, the identity of the persons to be

subject to the interception and is valid for the period set forth

therein, but not exceeding sixty days . Authorisations may be renewed for a period not exceeding sixty days.

15.71 Documents relating to the application for an authorisation are

confidential and are kept in a sealed packet by the court (section

178 . 14).

15.72 Authorisation may be obtained in matters of urgency from a

judge without complying with the requirements set out above. such

authorisations remain in force for a maximum period of thirty six hours (section 178.15).

15.73 Section 178.16 provides that unlawfully intercepted

communications are inadmissible in proceedings. However, the

admissibility of evidence obtained as a result of an unlawful

interception is left to the discretion of the trial judge.

15.74 Section 178.21 provides that where a person is convicted of

unlawfully intercepting a telephone conversation the court may order the accused to pay to the person the subject of the interception an amount

not exceeding $5,000 as punitive damages.

15.75 The Code also contains provisions requiring the

Solicitor-General and Attorneys-General to report to Parliament details

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of authorisations sought and interceptions carried out, together with details of persons arrested as a result (section 178.22).

15.7.6 Section 178.23 requires the person the subject of the

interception to be notified of the interception within ninety days of the authorisation. This period may be extended to a period not exceeding three years, where a judge is of the view that an offence being

investigated is a continuing offence and that the interests of justice warrant the extension.

15.77 The interception of telephone conversations in Canada

further be carried out, in matters involving national security,

authorisation under the Canadian security Intelligence service Act.

may

by

That

Act allows for an officer of the service, with the approval of the

Minister, to apply to a judge for a warrant to intercept a conununication where a threat to national security is being investigated and other

investigative procedures have failed or are unlikely to succeed. That judge may .issue a warrant authorising an interception. The warrant is

issued for a maximum period of either sixty days in the case of a threat to national security or one year in the case of the other functions

(dealing with the defence of Canada and intelligence gathering) of the Service. The warrant may be renewed. The provisions of Part IV.I of the Criminal Code are specifically excluded from operating in relation to such interceptions.

New Zealand

15.78 The interception of telephone conversations in New Zealand is

permitted in two circumstances.

15.79 PUrsuant to the New zealand security Intelligence service Act the Director of security may apply to the Minister for the issue of an

interception warrant authorising the interception of any conununication where that interception is necessary for the detection of activities

prejudicial to security or for the purpose of gathering foreign

intelligence information essential to security. The Minister must also

- 322 -

be satisfied that the value of the information is such as to justify the

interception and that it is not likely to be cbtained by any other

means. The conununication sought to be intercepted also nust not be of

a class that would attract privilege in any proceedings.

15.80 The warrant issued must specify the details of the person to be

subject to the interception and is valid for the period specified in the warrant.

15.81 The Minister is required to present an annual report to

Parliament of the number of warrants issued, the period for which they remained in force and a general assessment of their importance.

15. 82 section 4B requires that any irrelevant material obtained from the interception shall be destroyed as soon as practicable after the

interception.

15.83 The interception of telephone conversations is also permitted under the Misuse of Drugs Amendment Act 1978. section 14 permits a

police officer to apply to a judge of the Supreme Court for the issue

of a warrant where there are reasonable grounds for belief that a drug dealing offence has been or is to be cormni tted and that is is unlikely

that a successful investigation can be carried out without the grant of the warrant. The applicant must show that other investigative methods have been tried and failed, and the reason for such failure, or the

reasons why it appears that other investigative techniques are likely to fail or are likely to be too dangerous to adopt or the reasons why the

case is so urgent that other techniques are impractical. The judge also must be satisfied that the communications sought to be intercepted are

not likely to be privileged. Where the interception is proposed to be installed on the premises of a barrister, solicitor, medical practitioner or clergyman the warrant shall contain conditions considered desirable to avoid the interception of communications of a professional character.

15.84 The warrant is valid for a maximum period of thirty days, but

may be renewed.

- 323 -

15.85 Section 19 of the Act makes provision for the issue of emergency permits in some situations, but specifically excludes the issue of such permits authorising the interception of 'telephonic communications'.

15;86 Documents relating to an awlication for a warrant are required to be kept in safe custody by the Registrar of the court (section 20).

15.87 Material obtained as a result of the interception which does not relate to the commission of a drug dealing offence must be destroyed. Material that d::>es so relate is to be destroyed when it appears that no proceedings, or no further proceedings are to be taken (sections 21 and

22).

15.88 Section 23 prohibits the disclosure of information obtained as a result of an interception except in pursuance of a person's duties.

Breach of the section is punishable by a fine.

15.89 Where a conversation is intercepted other than in pursuance of a warrant, evidence of that conversation is not admissible in proceedings, except in proceedings for a drug offence where the court is of the view that the information is relevant and is inadmissible by virtue only of a

defect of form or irregularity of procedure not the result of bad faith, or where all parties consent to the material's admission (section 25).

- 15.90 conversations lawfully intercepted are inadmissible in

proceedings for an offence not being a drug dealing offence (secti on 26 ).

15.91 The Commissioner of Police is required to submit a report to the issuing judge as to the details of the interception and the information obtained. The Commissioner is also required to report to Parliarrent as to the number of applications for warrants, the number granted and

refused, the duration of the warrants granted and the number of

. . d 19

prosecutions instituted where evidence from an lnterceptlon was use .

Submissions

15.92 Under the terms of reference the Commission is required to make

- 324 -

recommendations as to the method of enforcement of the criminal law and the legislative or administrative changes (if any) that are necessary in relation to the interception of telephone conversations.

15.93 A central issue for consideration is whether members of the

State and Territorial police forces and the National Crime Authority should be given the power to intercept telephone conversations for

criminal investigation purposes. If so, further issues for consideration arise, such as in what circumstances should an interception take place, who should authorise the interception and what controls should be placed

on such activity.

15.94 A general invitation to make submissions was included in the

notice announcing the opening sitting of the Commission, which was published in the press on 31 May 1985. Following this public invitation, on 19 September 1985 the Commission invited submissions from Police Commissioners, Police Associations, Law societies, Bar Associations and Councils for Civil Liberties throughout Australia. Invitations were

also sent to the Australian Institute of Criminology, Telecom and the 20

Commonwealth Attorney-General's Department.

15.95 On 21 November 1985, the Commission also wrote to the Australian Security Intelligence Organisation, inviting that organisation to make a submission, as it is one of the two organisations specifically referred to in the Telecommunications (Interception) Act 1979. In response to these invitations written submissions were received from all Police Commissioners, the NSW, Victoria, south Australian and Western Australian Police Associations, the NSW Bar Association (the ACT Bar Association did not make a submission, put provided three individual submissions from its members), the NSW, Victorian and Queensland Law Societies, the NSW and Victorian Council for civil Liberties, Telecom and the Attorney-General's Department. The Australian security Intelligence Organisation did not

. . 21

make any subm1ss1on.

15. 96 In addition to those organisations who had been invited to make submissions the commission received written submissions from the NSW

Society for Labor Lawyers and the NSW Privacy Committee. 22

- 325 -

15.97 On 22 November 1985, a further notice was published in the press specifically inviting submissions on legislative and administrative changes and announcing that a public hearing would be held on 17 December 1985 to hear oral submissions on these matters. At the public hearing oral submissions were made by Ms B Schurr of counsel on behalf of the NSW Council for Liberties, Mr T Rippon on behalf of the Victoria and

western Australian Police Associations and Mr P Menzies of counsel on behalf of the New South Wales Commissioner of Police, Mr J K Avery. 23

Nature of the Submissions

15.98 Generally, the Commissioners of Police, Police Associations, Bar Associations and Law societies with the exception of the NSW Law society, are in favour of extending telephone interception powers to the State and Territorial police forces for the purpose of investigating serious

criminal activity subject to adequate administrative controls. The Chief Commissioner for Police in Victoria, Mr S I Miller, submitted that

although he is personally in favour of extending telephone interception powers to the State police force, it is the policy of the Victorian

government not to seek such powers.

15.99 The Law Society of NSW, the NSW Society of Labor Lawyers, both Councils for Civil Liberties and the NSW Privacy Committee are opposed to the extension of telephone interception powers. An outline in general terms of arguments expressed in support of and in opposition to the

extension of such powers follows. However, it should not be assumed that each protagonist for a particular side of the argument supported each of

the matters listed below.

In Favour

15.100 It was submitted that the State and Territorial police forces are charged with the major investigative role with respect to criminal activity and should not rely on the AFP, whose mandate does not relate to breaches of state laws, for the use of telephone interception in State

related matters. It was considered anomalous that warrants may be issued for the AFP to intercept telecommunications in respect of narcotics

- 326 -

offences under the customs Act 1901 and that interception for similar offences under the State drug legislation is not permitted.

15.101 Interception is seen by those bodies in favour of extending

telephone interception powers as an essential and cost effective means of corrbating organised and drug related crime. The use of an interception

generates lower operational costs. The telephone is central to IOC>St organised criminal activity and the use of interception would greatly assist in the detection of the perpetrators of serioos crimes, such as kidnapping and extortion. It was also suggested that interception. would

assist in investigating large scale Starting Price bookmaking and

corruption.

15.102 It was stated that significant successes have been achieved by

the· AFP acting alone and in conjunction with State police forces in drug trafficking investigations using telephone interceptions. In many cases the successful arrest and prosecution of offenders was attributed

directly to the use of information and evidence gained from the use of

interception devices.

15.103 It was submitted that in drug law enforcement the critical

object of an investigation is establishing, if possible, the location of the illicit drug and when the offender would be in possession of the

substance. Visual surveillance of suspects usually does not provide a complete 'picture' of the nature of the criminal activity and the

identity of all those involved. An informer within the criminal group sanetimes provides evidence of possession. Informers are not always available, but most drug traffickers engage in telephone conversations with co-offenders. Listening devices are useful in d:>taining valuable

intelligence, but are less effective than telephone interception devices.

15.104 Submissions referred to the reports of Justices Williams,

Woodward and Stewart who inquired into drug trafficking and recommended

the need for extension of the powers to intercept telephone

.;onversa tioos. Those in favour of the extension of these powers

considered that the invasion of privacy and the diminution of liberties of citizens caused by the authorised interception of private telephone

- 327 -

conversations are outweighed by the intrusion into the daily lives of individuals by organised criminals.

Against

15.105 In contrast to the opinion outlined in the preceding paragraphs,

those organisations which are not in favour of the extension of

telephone interception powers submitted that the benefits to criminal investigations from the authorised interception of private telephone conversations do not outweigh the resultant invasion of privacy. It was further argued that the integrity of the telecommunications system would not be maintained.

15.106 Many of the points made by these organisations related to civil

liberties concerns. In particular it was submitted that power to further invade the rights of citizens should not be granted until the Australian Law Reform Commission recommendations on privacy have been addressed and

the Human Rights , Commission consulted. The NSW Privacy Committee referred to the views provided to the Commonwealth Attorney-General's Department in March 1980, by the then Executive Member of the Committee, Mr W Orme that 'the recording of a telephone conversation by one party

without the other party's prior knowledge is an undue and unreasonable intrusion and surveillance into the other person's life.'

15.107 As an alternative to increasing the powers of police, it was

argued that procedures appropriate for better use should be made of

existing powers. Increased resources in terms of manpower and equipment should be allocated to police forces. In any case, it was suggested, the 'Mr Bigs' of cr irre will stop using the telephones upon extension of

interception powers.

15.108 The tape/transcript of an intercepted conversation quickly would acquire a reputation as unsavoury as the unsigned record of interview. Increasing police powers in this area undermine the right to remain

silent. Furthermore, the receipt of confidential and sensitive

information would create the potential for corruption in the police force.

- 328 -

Authorisation and control

15.109 There was greater divergence of view on the cirrumstances in

which interception should take place and the rrethods to be adopted for

its authorisation and control. There were sane views common to many of the submissions. Prominent among these were argumemts as to the crimes which should justify the issue of an interception warrant, the means of

obtaining warrants, expiration of warrants and reporting conditions.

Serious Crimes

15.110 It was generally submitted that the authority to make use of

interceptions should be restricted to serious crimes including narcotics offences which would be prosecuted on indictment. Police Cormnissioners and Police Associations favoured the inclusion of crimes such as

kidnapping, murder, extortion, terrorism and organised criminal activity in the matters which could be the subject of a warrant authorising

interception. The south Australian Cormnissioner of Police, Mr D A Hunt favoured a test based not on the description of the crime but the degree

of seriousness of the acts involved in the commission of the crime. The Connnissioner suggested that this would eliminate abuses which n,ight occur

through intercepting the telephone conversations of a suspected person

whose acts constituted less serious conduct than the description of the

offence might suggest.

15.111 The NSW Bar Association submitted that useful guidance on the type of crime which should be capable of being investigated by using

telephone interception devices is provided by the United States

Racketeering Influenced and Corrupt Organisations legislation and the Continuing Criminal Enterprises legislation. The Association further submitted that 'serious crime' might be defined as involving a threat to national security, society as a whole or the safety of an indi vicilal or

in other exceptional circumstances.

15.112 The NSW Bar Association, the individual members of the ACT Bar Association and all Law societies stressed that under no circumstances

- 329 -

should conversations, usually designated as the subject of legal

professional privilege, be intercepted.

Application for warrants

15.113 Several Conunissioners of Police submitted that, as in the case of listening devices, all interception activity should be the subject of control at the administrative and judicial levels. A Police Commissioner or authorised delegate should exercise personal control over applications for the warrant itself and a written authority of the Commissioner or

delegate should be required before an application could proceed to a judge.

15.114 The NSW Bar Association submitted that approval should be

obtained from a Police Commissioner of the relevant police force and the Minister in charge of the police force.

suggested that an application could be

Attorney-General, the Crown Solicitor or

As an alternative, it was

made to a judge by the

the Director of Public

Prosecutions, the latter two with Ministerial approval.

Issue of warrants

15.115 Generally, all organisations agreed that judicial warrants were

the most appropriate means for the authorisation of telephone

interceptions. It was submitted that applications for the issue of a

warrant should be made to a Federal court judge and/or a judge of the

State or Territory supreme Court. Telecom submitted that a certified copy of the warrant should be provided to the Managing Director of

Telecom.

15.116 The· western Australian Cormnissioner of Police submitted that warrants could be issued by either Supreme court or District court

judges. The Victoria and western Australian Police Associations

submitted that applications for warrants could be made to judges of the County courts and/or Stipendiary Magistrates. In contrast, the NSW Bar

Association strongly opposed such authority being granted to Stipendiary

- 330 -

Magistrates and supported the issue of warrants being restricted to

judges of superior courts and nominated Federal court judges.

15.117 In general, the provisions for the issue of warrants to the AFP, contained in the Telecommunications (Interception) Act, were considered adequate. However, it was submitted that the criteria for the granting of a warrant authorising the use of listening devices, contained in

several States' Acts, should be applied for the issue of warrants to

intercept telecommunications.

15.118 There was general agreement that consideration be given to

relaxing procedures for the issue of warrants in exceptional

circumstances or in matters of emergency.

15.119 'Ihe NSW Commissioner of Police submitted that the expeditious issue of authority for use of interceptions was vital. It was noted that there are inordinate delays under the Federal arrangements which often nullify any advantage to be gained by the use of an interception. It

was submitted on behalf of the AFP that delays occurred because demand exceeded existing resources.

15.120 The Police commissioners for Victoria and western Australia submitted that provision should be made for the issue of a warrant

by telephone in urgent circumstances. The South Australian Police

commissioner mentioned that judicial warrants at times may be impractical and that consideration be given to the issue of warrants at the

discretion of a Police commissioner, while awaiting a judicial decision. In contrast, the NSW Bar Association noted that consideration may need to be given to whether a judge may issue a warrant without approval from a Police commissioner in exceptional circumstances or for short periods of

twenty four hours in matters of urgency.

Expiration of a warrant

15.121 Several Police commissioners referred to the Telecollillunications (Interception) Act and submitted that warrants issued to intercept

telecommunications should remain in force for a specified period not

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exceeding six months. The NSW Law Society submitted that all warrants

should be returnable before the issuing judge within a period of less

than twenty eight days. The NSW Bar Association submitted that the

period of the warrant must be 'very limited' and suggested the period of seven days with a discretion in the judge to allow for fourteen days in

special circumstances.

Reporting Conditions

15.122 Many submissions supported the proposition that there should · be Ministerial control or review of all warrants issued to intercept

telecommunications. seve tal Police Commissioners submitted that

reporting conditions, similar to those provided in the State Acts

relating to listening devices, could be placed on the police to whom a warrant has been issued.

Endnotes

l S827, Baer

2 S830, Baer

3 ibid

4 S83l, Baer

5 ibid

6 ibid

7 S83l, Baer; E3495, Mccullough

8 S827, Baer

9 S828, Baer

10 S828-29, Baer

ll S828, Baer

12 S832, Baer

13 S930-35, E3503-l0, Fish

14 S93l, Fish

15 E3508, Fish

16 S932, Fish

17 ibid

18 S933, Fish

19 Adrn 54

20 Adrn 64 Parts l-7, 9

21 Adrn 64 Parts l-9

22 Adrn 64 Parts 4, 10

23 E3665-3796

CHAPI'ER 16

CONCLUSIONS AND RECOMMENDATIONS

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CHAPTER 16 CONCLUSIONS AND RECOMMENDATIONS

16.1 The events leading to the establishment of this Royal commission have been dealt with in detail in Chapter 1 of this report. It was a

central consideration that indemnities be given to police officers who cooperated with the Commission since the Royal commissioner had, in Interim Report No.8 of the Royal commission of Inquiry into Drug

Trafficking, expressed the opinion that unless indemnities were given, a Royal Commission would be met with a conspiracy of silence by the NSW Police concerned. The evidence obtained in this inquiry more than

justifies that opinion. The police concerned had a series of meetings at which it was originally resolved that they would collectively deny that any illegal interceptions of telephone conversations had ever occurred.

16.2 There had, of course, been an inquiry by the Special Prosecutor,

Mr I D Terrby, OC, assisted by a NSW Police Special Task Force which

investigated the natter but failed to elicit the facts [see paragraphs 13.1-13.29]. This is hardly surprising as the Assistant Commissioner, Mr R c Shepherd, then superintendent in Charge of the BCI, wrote to the

Executive Chief superintendent of the Internal Affairs Branch, J M Pry, as recently as 29 March 1984 knowing what he wrote to be untrue, in the following terms:

I am not aware of any Police officer or public service member in New south wales or elsewhere in Australia who has been involved in the obtaining of illegal taped telephone conversations or in the preparation of transcriptions from illegally obtained tape recorded conversations.l

16.3 It is also clear to the Commission that AFP officers did not

tell the whole truth to Acting Commissioner J C Johnson when he conducted an inquiry for Mr I D Terrby, OC [see paragraphs 13.30-13.43]. In his

report of 30 April 1984 Acting Commissioner Johnson referred to

statements by police officers from B Division, including Chief

superintendent P J Lamb, wherein they denied that the AFP officers

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knew that the tapes obtained from Sergeant A Hawthorn of the NSW Police

were of intercepted telephone conversations. Acting Commissioner Johnson concluded that:

it is implausible to suppose that no member of 'B' Division

at any time knew or entertained the proposition or suspected that the material provided by HAWTHOfN originated from the interception of telephone conversations.

In paragraph 59 of his report Johnson went on to say:

there is insufficient evidence to substantiate beyond reasonable doubt that members of the Australian Federal Police, including LAMB knew that the material provided by HAWTHORN originated unquestionably from a telephone interception.3

16.4 The evidence before this Commission has led it to conclude that Lamb and other members of the AFP knew that the material originated from

intercepted telephone conversations, and that Lamb in 1981 in fact

requested Hawthorn to resume the interception of Morgan John Ryan's telephone conversations [see paragraphs 10.11-10.16].

16. 5 The Corrunission has no doubt that a Royal Corrunission unable to recommend indemnities might have spent years investigating this matter

without ever being able to ascertain the truth. It is possible that some police officers may have broken rank and breached 'the thin blue line' but it is unlikely that this would have led to any successful

prosecutions of police officers who had been guilty of illegally

intercepting telephone conversations.

16.6 The Commission is satisfied that it received full cooperation

from all but a handful of witnesses. It is satisfied that it has

discovered the whole story, insofar as this is achievable by any human agency. There were strong opinions voiced that the whole story should

not be purchased at the price of indemnifying police officers who had been guilty of participating in the illegal interception of telephone conversations. These opinions cannot be lightly put aside. They were anticipated in Interim Report No.8 of 12 December 1984 of the Royal Commission of Inquiry into Drug Trafficking wherein the Commission

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recorrunended the granting of indemnities on certain conditions. In that

report it was stated that the Commission believed that:

the interceptions were put in place and maintained by otherwise

honest, able and effective members of an elite division of the New South Wales Police force engaged not in the pursuit of some private purpose but i _ n the very difficult and often frustrating fight against deeply entrenched organised crime. Indeed, it has been suggested in

evidence that it was out of a s ense of frustration that this unlawful method of gathering information was adopted.4

16.7 The evidence which the ComfiUssion has heard throughout this

inquiry largely confirms this assessment of the police officers

involved. It also demonstrates that most of those involved experienced a deep sense of frustration arising out of the inefficacy of conventional

methods of investigation unassisted by telephone interceptions. Many

officers expressed particular dismay at the state of present legislation which effectively excludes State police from access to lawful telephone

interceptions. In the Corrunission' s view, the wholesale breaches of the law and invasions of privacy involved can not be justified by the

frustrations of persons who had sworn to uphold the law. Nor can they be justified by the success of these illegal methods in bringing to account major criminals and gathering a considerable amount of valuable criminal

intelligence.

16.8 It was an unpalatable reality that members of the NSW Police who were guilty of breaking the law over a period of years, refused to tell

the truth about what they had done unless they were indemnified. Indeed not only did they refuse to cooperate with investigating authorities, but they deliberately and falsely denied knowledge of the illegal

interceptions and covered up their illegal activities. They destroyed equipment they had used and tape recordings and transc r ipts generated by

their unlawful interceptions. Although they claimed to have acted from the best of motives in intercepting telephone conversations they were not true to the oath which each officer had taken when sworn in, to 'see and

cause Her Majesty's peace to be kept and preserved' and 'I will prevent

to the best of my power all offences against the same and ... while I

continue to hold the said office I will to the best of my skill and

knowledge discharge all the duties thereof faithfully according to law'.

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16.9 It may be of course that the law prohibiting these police

officers from intercepting telephone conversations was wrong and that it gave an unfair advantage to persons in the community who use the

telephone services to further their criminal activities. Police

officers are sworn, however, to uphold the law - not just laws of which

they approve. There can be no justification fot their having taken the law into their own hands.

16.10 If the three Governments had not established this Commission to find the truth in the matter there would always have been the strong suspicion that NSW Police had been involved in illegal telephone

interceptions. The results of those interceptions would have remained unknown, leaving a fertile field for allegation, innuendo and even

blackmail. The Government, the Legislature, the Judiciary and citizens generally would never have known the truth. The Commission is of the view that it was worth purchasing the whole story at the price of the

indemnities.

16.11 The true story is surprising. From 1967 or 1968, over a period

of some fifteen or sixteen years, a sophisticated system for the illegal

interception of telephone conversations was developed within the NSW Police, introduced at the direction of the Commissioner of that police force. ' The existence of the system was known to and either expressly or tacitly approved by each succeeding Commissioner who held office prior to the present Commissioner. It was known to many senior officers and to many detectives. Officers of the Victoria Police knew of the system and

were prepared to use it. Even members of the AFP were prepared to use

the system when the AFP' s limited powers did not permit a particular

interception to be made ·. NSW Police officers attached to the JTF used the system even though AFP officers attached to the JTF could have sought to have lawful interceptions undertaken. It seems that a significant

number of people in or associated with the criminal community either knew

or at least strongly suspected that police were intercepting telephone communications. over 200 interception operations actually were conducted

and some of them continued for a considerable time.

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16.12 It is important to look on the positive side. The Commission

was in the unique position of examining all facets of illegal telephone

interceptions over sane fifteen or sixteen years as well as the legal

interceptions made by the AFP over the past six years. It has also

received evidence on the interception of telephone conversations by persons who are _not police officers. This has given the corrunission an insight into 'telephone tapping' that is denied to rrost persons in the

community, including legislators and public servants. It is important to

discuss the benefits of the Commission's examination of these matters.

16.13 First, the material obtained by the commission was of

considerable value in identifying possible criminal offences. This

is discussed in the confidential Volume Two of this report.

16.14 Secondly, an appreciable amount of the material has considerable value as criminal intelligence, notwithstanding that some of it is rather old. Further analysis may even identify further criminal offences. The Commission is of the view that this analysis should be undertaken in the

first instance by the National Crime Authority.

16.15 Thirdly, the material obtained by the Commission has led it to

the firm opinion that the present legislation governing the interception of telephone conversations is too narrow. Insofar as it limits the

interception offences it

necessarily traffickers distinction

of

is

the are is

telephone conversations by police to drug trafficking far too selective. Drug trafficking in itself is not

rrost serious crime in the criminal calendar. Many drug involved in other serious criminal offences. The present arbitrary and artificial. There is oo reason why the

power to intercept telephone conversations should be restricted to the

AFP. The Commission strongly believes that State police forces should

also have this power.

16.16 Fourthly, the Commission believes that the present

administrative system for lawful telephone interceptions is far too

cumbersome. It is important that law enforcement agencies should have the capacity to act very quickly to establish a telephone interception in

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certain cases. It should be made lawful for police themselves to effect an interception without recourse to Telecom. This is not to advocate licence for police to intercept witoout adequate and proper controls.

16.17 The Commission will consider some of these matters in more

detail hereunder.

Is the Power to Intercept Telephone conversations too Narrow?

16.18 The effectiveness of the interception of telephone conversations as a tool in the investigation of organised crime is no longer seriously questioned. Numerous reports of Royal Commissions and Committees of Inquiry have stressed the value of electronic surveillance, including

telephone interceptions, in this area. In the rep:>rt of the Royal ·

Commission of Inquiry into Drug Trafficking, the Commission cited responsible Australian and overseas opinions on the effectiveness of telephone interceptions. 5 Earlier this year the Director of the United States Federal Bureau of Investigation, Judge William H Webster, speaking during a visit to Australia, described how the use by the Federal Bureau of Investigation (FBI) of electronic surveillance, including telephone interceptions, had permitted it to penetrate the upper echelons of

organised crime. Judge Webster said that the FBI would have made little progress in combating corruption and organised crime if not for

electronic surveillance techniques, especially telephone interceptions.

16.19 Any scope for doubt about the effectiveness of the interception ' of telephone conversations has been erased by the evidence received by the Commission of the success of the unlawful telephone interceptions by the NSW Police in the operations which featured in evidence given before the Commission. Some illustrations of the role played by telephone interceptions in the identification and apprehension of offenders are provided in the operations described in Chapter 8 of this report. These examples are by no means exhaustive of the operations where information gained from intercepted telephone conversations resulted directly in the apprehension of offenders who may never have been arrested but for the

interception of telephone conversations.

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16.20 It has been said by some members of the community . that telephone interceptions are not a good tool in the fight against crime. It is

implied that telephone interceptions will lose their effectiveness with time as criminals become more aware of their use by law enforcement

agencies and modify their procedures in order to avoid detection by these means. The Commission does not share this view. The evidence of the use

of telephone interceptions in the operations revealed in the course of its inquiry leaves the Commission in no doubt about the effectiveness of the interception of telephone conversations.

16.21 The Commission believes that valuable information will continue to be revealed in telephone conversations even when criminals suspect that telephone services are being intercepted. Indeed, there are

examples in the material obtained by the Commission resulting from telephone interceptions which reveal that persons commented upon the likelihood of their telephones being intercepted yet shortly afterwards disclosed information relating to criminal offences. Undoubtedly there are and will continue to be criminals of sufficient guile to thwart the

use of telephone interceptions, and clearly electronic surveillance of

such offenders is unlikely to be successful. However, experience has shown that in rrany instances, even where criminals were not discussing offences in explicit terms, valuable information regarding associates and movements was available from telephone interceptions and aided

investigations in a number of ways. on some occasions the information assisted police to establish the identity of other persons involved with the suspect and on other occasions gave police an indication of the

probable whereabouts of offenders in order that physical surveillance could be better organised. on occasions knowledge of the movements of suspects assisted police by indicating to them that the proposed movement of the suspects was of an innocent nature and valuable surveillance

resources were withheld during periods of irrelevant activity. For these and other reasons the Commission has no doubt about the effectiveness of telephone interceptions in the investigation of crime.

16.22 Furthermore a criminal who is unwilling to use a telephone

in furtherance of his criminal purposes because of fears of detection by interception is thereby deprived of a most valuable method of

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communication and forced into activities detectable by other means such as visual surveillance. If this effect is achieved the prospects of

detecting criminals who have previously been able to distance themselves from the physical conduct of their criminal enterprise will be enhanced considerably.

16.23 The evidence given to the Commission also demonstrated the

success of telephone interceptions in police investigations of criminal activity which was unrelated to drug trafficking. For example, the

search for Raymond John Denning (operation 'Bridegroom') described in Chapter 8 of the report provides a clear illustration of the manner in which a potentially dangerous escaper was located, when negligible progress was being made in the absence of a telephone interception.

16.24 Following the Special Premiers' Conference on Drugs in

April 1985 it was announced that the Federal Government was prepared to confer telephone interception powers on the National Crime Authority and the police forces of any State or Territory which requested such powers.

16.25 The Commission understands that the

proposed amendments to the Telecommunications

are as follows:

major features of the

(Interception) Act 1979

(1) Provision for the National Crime Authority to obtain

warrants authorising the interception of telephone

conversations, and empowering the Chairman of the Authority or authorised members of the staff of the Authority (within

the meaning of the National Crime Authority Act 1984) and AFP officers attached to the Authority to exercise the

authority conferred by those warrants. Applications

for warrants may only · be made in relation to drug

trafficking investigations which are the subject of a

special reference to the National Crime Authority.

(2) Provision for warrants to be granted, upon application

by members of the police force of a prescribed State or

Territory, authorising persons approved under the laws of

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that State or Territory to use approved equipment, to

intercept telephone communications. Applications for warrants may only be made in relation to investigations

into drug trafficking offences.

(3) Information resulting from unauthorised interceptions is not to be admissible in evidence.

16 .. 26 The Commission recorrunends that the necessary amendments to legislation to extend the 'P)Wer to conduct interceptions of telephone conversations to 'P)lice forces of the States and Territories and to the National Crime Authority, be made as soon as possible. In addition, the Commission recommends strongly that the limitations on the use of

telephone interceptions, to drug trafficking offences only, be removed. In the view of the Commission the confinement of the use of telephone

interceptions to such offences is and has always been illogical. There are many other offences not associated with narcotic drugs which

constitute a grave threat to the community. Indeed the current

description used in the Telecommunications (Interception) Act of

'Narcotic Offence' is an offence punishable as provided by section 235 of the Custans Act 1901. That description extends beyond drug trafficking and errbraces possession of narcotic substances. some offences of .that

type may be of a trivial nature yet interceptions of telephone

conversations may be made for the purposes of investigating such offences while offences such as 'P)lice corruption, kidnapping, murder and other crimes of violence do not attract the provisions of the Act.

16. 27 It is also to be observed that in the Listening Devices Act,

1984 (NSW) no such restriction is included. Under that Act a warrant may be obtained for a prescribed offence, which means an offence punishable

on indictment, or an offence of a class or description prescribed for the

purposes of the Act. Regulations have prescribed offences under the

Police Regulation Act, 1899 (NSW) and the Gaming and Betting Act, 1912 (NSW) which include summary offences. Apart from the fact that with

these devices, police can overhear one side of a telephone conversation, it seems to the Commission that the invasion of privacy and intrusions U'P)n personal liberty arising from the use of the devices to record

- 344 -

conversations which occur face-to-face are at least equal to and arguably exceed that occasioned by the interception of telephone conversations. Listening devices detect intimate and confidential conversations which may never pass over a telephone service.

16 . 28 Similarly, the Listening Devices Act, 1969 (Victoria) permits the use of a listening device under and in accordance with approval given by a stipendiary magistrate. The Act does not define the offences for which approval may be given but stipulates that in considering any

application for approval to use a listening device, a stipendiary

magistrate shall have regard to the gravity of the matters being

investigated, the extent to which the privacy of any person is likely to be interfered with and the extent to which the prevention or detection

of the crime in question is likely to be assisted.

16.29 Bearing in mind that the Telecommunications (Interception) Act provides for the issue of warrants by Federal or Supreme court Judges, it would seem appropriate to entrust judges, in considering approval for interceptions of telephone conversations, with the same discretionary powers as are available to stipendiary magistrates in Victoria when considering approval for the use of listening devices.

16.30 the Commission reconmends that when amending the

legislation to extend the power of intercepting telephone conversations to police forces of a state or Territory and the National Crime

Authority, these amendments also provide that the restriction of the use of such interceptions to narcotic offences be removed and replaced by a provision vesting a discretion in the judge to evaluate:

the gravity of the matters being investigated;

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

the extent to which the prevention or detection of the

crime in question is likely to be assisted.

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16.31 Under the amendments presently proposed further inconsistencies arise in that the National Crime Authority and police forces of a State or Territory are able to effect their own interceptions, whereas the AFP will continue under the present system. The proposed amendments provide

for the issue of a warrant authorising persons approved in accordance with the Act to . intercept telephone communications. They also provide that the Chairman of the National Crime Authority may authorise merrbers of the AFP whose services have been made available to the Authority, and members of the Authority's staff (including officers of a State or

Territory police force who are formally attached to the Authority), as persons who may exercise the authority conferred by the warrants.

16.32 The proposed amendments also provide for warrants authorising persons approved under the laws of the State or Territory to intercept, by means of approved equipment, telephone communications.

16.33 It appears that the proposed amendment will allow the National Crime Authority and police from State and Territorial forces to provide

their own syste:rrs, thus enabling investigators to have direct access to information and thereby circumventing some of the procedural handicaps of the present system.

16.34 The proposed amendments contain new provisions to regulate the communication of information obtained by intercepting telephone

conversations. There will be adequate provision for members of the AFP , officers of the police force of a State or Territory, and the National

Crime Authority and its Chairman, its members and s taff, to receive and

transmU: information obtained by lawful telephone interceptions for

certain purposes.

Is the Present SyStem for Effecting I nterceptions Satisfactory?

16.35 The complaints yolunteered by police concerning the procedures currently in use for implementing the lawful interception of telephone conversations, are broadly as follows:

delays in implementation;

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. lack of efficient access to information; and

security problems at telephone exchanges.

16.36 The practical difficulties associated with each of these

complaints, if valid, are easily appreciated in the context of the use of interception of telephone conversations in investigations into serious offences. The matters raised were canvassed with the officers who gave evidence on behalf of the AFP and Telecom in relation to the system for lawful interception of telephone conversations and generally the

allegations of inefficiency were denied. 6

16.37 As mentioned earlier, the estimates given in evidence before the Corrnnission for the time between an application for an interception and

the irrplementation of it varied [see paragraph 15.9]. However, an AFP witness said that the average time was in the order of five working

days. It was also asserted that ample provision was made for dealing

with urgent applications. 7 Within the procedures described for the

involvement of the AFP in processing the applications for telephone interceptions there were, however, the clearest indications of

circumstances capable of generating unnecessary delay.

16.38 At the outset, it is noted that the estimates of the time

involved did not include the time spent in any particular region in

obtaining approval from officers under the Regional Commander for an application for an interception to be made, and for drafting and

obtaining approval of the forms of affidavits and the warrant itself. In those activities, undoubtedly considerable time is spent before the application is received in the Special Projects Branch in Canberra.

Further, it appears that the corrnnissioner of the AFP is, while on duty in Australia, the only officer who is empowered to certify the copy of the warrant to be forwarded to Telecom. If the Corrnnissioner happens to be interstate for several days as he no doubt often may be, in the absence of any mechanism for the delegation of his powers, the whole process must await the Commissioner's return to Canberra or arrangements made for the document to be forwarded to him for signature and thEm returned for

. . . bs d 8 submission to Telecom. Th1s 1s a ur .

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16.39 The witness from the AFP was at pains to assure the CoiTUTiission

that sufficient resources are available to cope with the demand for the interception of telephone conversations, and indeed, that for a

substantial proportion of the time the full capacity of the AFP is not

utilised. 9

However, it was also conceded that one of the functions of

the Special Projects Committee, which considers applications for

interceptions of telephone communications, is to examine the resources available and the priority of the particular application and, on

occasions, applications are obliged to wait their turn if the facilities are already being utilised. The Commission is also aware that the AFP allocates to organisations such as the JTF and the National Crime

Authority a specific and quite inadequate number of lines for

interceptions. Those organisations are on occasions required to

surrender one interception if a further application is made as they

are not permitted to exceed their allocation. The Commission does not consider that these circumstances provide a proper basis for the

investigation of serious crime.

16.40 The AFP also defended its policy of centralisation of monitoring intercepted telephone conversations. The Commission was told that a number of problems had been encountered when using interception and

recording equipment away from canberra. It was said that due to the

sensitivity of the equipment, inevitably problems arose when it was used elsewhere. It was also said that it was expensive to maintain staff away from Canberra and difficult to have communications transcribed. 10

16.41 The Telecom witness also indicated that some procedures seemed to lend themselves to unnecessary delay. In particular, in New south

Wales there is a requirement of the Australian TelecoiTUTiunications

Errployees Association that local and intermediate exchanges be furnished

with written authorities before the interceptions are effected. It was said that as a result of this requirement three or more days could elapse before the necessary written authorisations were communicated to the 11

relevant exchanges.

16.42 Subsequently the Commission was informed by Telecom that a

survey of recent connections in New south Wales had shown that most

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interceptions were connected within twenty four hours of advice being issued by the Telecom liaison officer to the control exchange. Telecom also adverted to the frequency of delays occurring between the issue

of the warrant and the receipt of a copy by Telecom, because of the

unavailability of the Commissioner of the AFP to certify the copy. The Commission was told that in urgent cases, Telecom is prepared to accept oral advice that the warrant has been issued and will take action to

issue authorisations to the exchanges so that preliminary work can be done. Strict instructions are in force to the effect that the final

connection must not be made before receipt of the certified copy of the 12 warrant.

16 . 43 The complaint about lack of immediate and efficient access to

information obtained from intercepted telephone conversations was also rejected by the AFP. It was asserted that the monitors, assisted by the material with which they were briefed by . investigators, ultimately were more capable of identifying useful information to assist the

investigation because they became 'more familiar with that person on that telephone than the detective on the job' • 13 It was said that as the

monitors listened to the conversations they developed a better image of the person than detectives who would simply carry out surveillance. It was acknowledged that there was a difficulty in determining what

information to convey to investigators but it was said that generally

attempts were made to provide prompt and comprehensive information, 14

including information relating to associates of the target.

16.44 Police officers complained to the Commission that they were

often deprived of valuable information passed between suspects in 'code', because monitors were not alert to the nuances of the conversations being

intercepted. It was also said that useful information concerning

associates was not passed on and that valuable surveillance resources were wasted on observation of innocent activities which could have been

avoided if investigators had been informed of telephone conversations

which indicated that there was no need to carry out surveillance at

. 1 t ' 15 part1cu ar 1mes.

- 349 -

16.45 The CoiTU!lission does not accept that rronitors are in a better

{X)Sition than investigating officers to assess the worth of information revealed by telephone conversations. It seems unarguable that

investigations would be enhanced if investigating detectives had

irranediate access to intercepted telephone conversations. The Telecom

witness agreed that it would be possible for the recording of intercepted telephone conversations to be carried out at local exchanges if proper equipment were available, but Telecom has always taken the view that it

does not want to have recording equipment placed on its premises because the recording of telephone interceptions is regarded as a function of the AFP. 16 Clearly, the use of recording equipment by investigating detectives at a local exchange or somewhere else near the persons

carrying out the investigations would solve many of the practical

difficulties to which reference has already been made. If State police are given the power to intercept telephone conversations they should of course be empowered to make such interceptions independently in their State. In appropriate cases the Judge issuing the warrant could

authorise an interception to be made directly by a rrobile unit and not through an exchange.

16.46 The third grievance of police concerning the present system for lawful telephone interceptions concerns fears about the security of interceptions effected by Telecom staff. 17 The CoiTU!lission cons iders that this concern is justifiable. The evidence of the history of the

unlawful telephone interceptions by NSW Police revealed that security was a problem, and on a number of occasions, targe,ts became aware by various means that their telephone conversations were being intercepted. It is

likely that similar problems exist in the present system of lawful

telephone interceptions. While it was asserted that any such fears were pure supposition 'because nothing like that has ever happened• 18 it

would not always be obvious that a person had learned that his or her

telephone conversations were being intercepted.

16.47 As interceptions of telephone conversations are used more

frequently in investigating crime, undoubtedly criminals will become more sensitive to the possible use of such techniques and more prepared to take steps to ascertain whether their telephone conversations are being

- 350 -

intercepted. Telecom liaison officers and Officers in Charge of

exchanges are cleared for security by ASIO, but there is no assurance

that the Officer in Charge of an exchange would be present when an

interception is required nor that all persons to whom knowledge of the interception would be available are incorruptible. Although it was denied that there was any 'public' display of documents dealing with

the interception of telephone services at any particular exchange, the evidence indicated that it would not be difficult to examine equipment in an exchange in order to discover whether a particular service was then

the subject of an interception. 19 Obviously the use of police to

effect interceptions outside exchanges as is suggested above would reduce the security problems.

16.48 The Corrunission observes that the present system of obtaining judicial warrants for the interception of telephone conversations works well. The power to issue warrants should be restricted to Judges of the Federal and Supreme courts.

The Use of Material Derived from Illegal Interceptions

16.49 In Chapter 14 of this report, the Commission has expressed its

findings concerning the authenticity of the material received by it and has been satisfied generally that the information and documentation

described resulted from the interception of communications passing over the telecommunications system. It is also satisfied that the

interceptions were carried out in breach of the Telephonic Communications (Interception) Act 1960 or the Telecommunications (Interception) Act 1979. By virtue of Lhe provisions of section 7(4) of the

Telecommunications Act, it is an offence to divulge,

communicate, make use of or record, any information obtained by

intercepting a communication passing over a telecommunications system, except in defined circumstances. section 7(6) of the Act provides that a person may give information obtained by intercepting a communication

passing over a telecommunications system, in evidence in proceedings by way of prosecution for specified offences, or in relation to certain

matters under the Customs Act 1901.

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16.50 The o::..n..:....s::..__(:...:I:.:n..:..:t:...:e::r:....:c:..:e:=:p:...:t=i=o.:.:n:!...) __ 1985

inserted into the Telecommunications (Interception ) Act section 7BA which provided protection for persons giving to the Corrnnission documents or

information which was unlawfully obtained. Section 7BA( 3) provided that the Commission may make use of the material for the purposes of

conducting its inquiry. Section 7BA(4) empowered the Commission to give documents or communicate information unlawfully· obtained to the Attorney-General of the Commonwealth or of a State or of the Northern Territory, the Director of Public Prosecutions, a Special Prosecutor, the Commissioner of the Australian Federal Police or of a police force of a

State or the Northern Territory, authorities or persons responsible for the administration or enforcement of laws of the Commonwealth, a State or Territory, and the National Crime Authority. Section 7BA(5) provides that the section has effect notwithstanding section 7(4).

16.51 In March 1985 the High court of Australia decided that

subsections ( 4) and ( 6) of section 7 had no application to information

20

obtained in contravention of the Act. . The illegal origin of such

material does not prevent it from being admitted in evidence in court

proceedings subject to the discretion of the court to exclude evidence

obtained illegally. 21

16.52 In order to prevent the compounding of the intrusion upon

personal liberty brought about by the unlawful interception of telephone conversations, the Commission recommends that the Act be amended to make it an offence to possess, divulge, communicate or record information obtained by the unlawful interception of telecommunications. It would be

necessary to provide certain exceptions as the illegality could arise in a number of ways. Police undertaking interceptions for which a warrant

has been approved may technically breach the Act due to a mere

oversight. Alternatively, they may breach the Act due to a deliberate 'cutting of corners'. Both cases involve breaches of the Act and it

would be appropriate to prosecute in cases of deliberate breach. The

Common Law regarding illegally obtained evidence presently gives the

trial judge discretion to admit the product of an interception as

evidence, even though it was unlawfully obtained, providing that he

has taken certain matters into consideration in the exercise of this

- 352 -

discretion. The Corrunission recommends that this remain the law. It is also of the opinion that the legislation should contain a provision

that it will not be an offence for police or other relevant persons or

authorities to use or copy material which is the product of illegal

interceptions, for the purpose of investigating crime. The relevant

persons or authorities would be those mentioned in section 6P of the

Royal Commissions Act 1902 and persons under their .control.

Telephone Interceptions by Persons Other Than Police

16.53 The Commission has no doubt that illegal interceptions of

telephone conversations are conducted by persons other than police

on quite . a large scale in this country. Because of the scale of the

operation, the Commission sees this as a more serious invasion of privacy than the interceptions undertaken by police. Even in the case of the

illegal interceptions conducted by NSW Police the persons targeted were always persons suspected of criminal activities or persons who had

connections with such persons. The commission was unable to establish any case where an interception had been effected for some purpose other than the investigation of crime [see paragraphs 8.2-8.8].

16.54 The Commission believes that it should be a sericus offence to

intercept telephone conversations without a judicial warrant. It should also be an offence to sell or to advertise for sale electronic devices

designed for effecting such interceptions. As most of these devices are

manufactured outside Australia, the Commission believes that there would

be good sense in making such devices prohibited imports. Provision would

need to be made for appropriate authorities to import such devices for

lawful use. The Commission acknowledges that the ready adaptability of other electronic devices for such interceptions may limit the

effectiveness of such a prohibition.

Custody of Commission Records

16. 55 The present Commissioner, the Hon. Mr Justice D G Stewart began inquiries as Royal Commissioner on 25 June 1981 when Letters Patent were issued establishing the Royal Commission of Inquiry into Drug

- 353 -

Trafficking. The terms of these Letters Patent have been extended on two occasions requiring him, first, to inquire into matters relating to the Nugan Hand group of companies and, secondly, into the alleged illegal

interception of telephone conversations.

16.56 In the report of the Royal Commission of Inquiry into the

Activities of the Nugan Hand Group, the Commission adverted to the need for provision to be made so that Royal commissions inquiring into

criminal allegations are not, upon presentation of the report, instantly and finally wound up and thus rendering them unable to assist in any way those law enforcement agencies and others who might be delegated the task of following up particular recommendations made by the commission. The report then recommended that a procedure be available to enable such Commissions to provide further information and documentation, as part of the follow up exercise. 22

16.57 Due to the continuity of the Royal Commissioner's inquiries it has been possible for Royal Commission staff to satisfy requests for information and access, where appropriate, to Commission records . Law enforcement, regulatory and prosecuting agencies have been provided with

information relating to all three areas of inquiry by the Commission. Upon presentation to the Governor-General and the Governors of New south

Wales and Victoria of this report, however, Mr Justice Stewart will cease

to hold the Letters Patent and in the normal course of events all

Commission records would be located with the Australian Archives.

16.58 Much of the material arising out of the present inquiry is of

direct relevance to investigations being undertaken by the National Crime Authority. some material has in fact been furnished to the Authority

pursuant to the provisions of section 6P of the Royal Commissions Act 1902 and section 7BA of the Telecommunications (Interception) Act 1979.

16.59 The Commission is of the view that to facilitate further

investigations and prosecutions and to avoid duplication of effort, all records in the possession of the Commission should upon its cessation pass into the custody of the Authority. The Authority already has in its

- 354 -

possession the records of the Royal Commission into the Activities of the Federated Ship Painters and Dockers Union.

16.60 On 11 February 1986 Mr Justice Stewart wrote to the Prime

Minister recorrunending that the above course be adopted. An amendment to the National Crime Authority Act may be necessary to effect such a transfer of records, although it may be considered that the provisions of section 22(3) of the Archives Act 1983 could be utilised to vest custody of this material in Mr Justice stewart as Chairman of the National Crime Authority on and from the date of the conclusion of his Commission.

Summary of Recommendations

1. Amendments to legislation to extend the power to oonduct telephone interceptions to police forces of the States and Territories and the National Crime Authority, be made as soon as possible.

2. It is recommended strongly that the legislative limitations on the use of telephone interceptions to drug trafficking

offences only be removed.

3. The power to issue warrants should be restricted to Judges of the Federal court and of Supreme courts of the States or Territories,

4. The Act be further amended to give a discretion to a Judge

to authorise telephone interceptions by warrant after

considering:

the gravity of the matters being investigated;

the extent to which the privacy of any person is

likely to be interfered with; and

the extent to which the prevention or detection of the crime in question is likely to be assisted.

- 355 -

5. In appropriate cases the Judge issuing a warrant should

authorise an interception to be made directly by a mobile unit without recourse to Telecom. This should apply to the AFP as well as State and Territory police forces and the

National Crime Authority.

6. A review of the present system of interceptions used by the AFP be undertaken with a view to making it more efficient.

7. State Police should be empowered to make interceptions in their State independently of the AFP system.

8. The Act be further amended to make it an offence to

possess, communicate, divulge or record information

obtained by unlawfully intercepting a telecommunication.

9. Admissibility of such material should be determinea by the

Common Law.

10. Legislation should provide that it is not an offence for

police or other relevant persons or authorities to possess, use or copy material which is the product of illegal

interceptions. The relevant persons and authorities would be those mentioned in section 6P of the Royal Commissions Act 1902 and persons under their control.

11. All records in possession of the commission upon its

cessation be passed into the custody of the Chairman of the National Crime Authority. An amendment to the National crime Authority Act may be necessary to effect such a

transfer of records although it may be considered that the provisions of section 22(3) of the Archives Act 1983 could be utilised to vest custody of this material in Mr Justice Stewart as Chairman of the National Crime Authority on and

from the date of the conclusion of his Commission.

- 356 -

12. It should be an offence to sell or advertise for sale

electronic devices designed for effecting telephone

interceptions. such devices should be made prohibited imJ:X)rts.

Endnotes

1

2

3

4

5

6

7

8

9

10 11 12 13 14 15 16 17 18 19

20 21

22

TI369 Part 3 folio 173 Re rt of cial Prosecutor, Ian Temb into the Age

Material, July 1 , Johnson Report o 10

1b1d Interim Report No.8 page 42 ReJ:X>rt of the Commission of Inquiry into Drug Trafficking, AGPS, February 1 83, page 647 E3505, Fish; E3496, occullough E3496-97, McCullough · E3495, McCullough E3496, McCullough E3498, McCullough E3505, Fish TI327 folio 25 E3499, McCullough E3499a, McCullough Ss501, El972, Foster; E377-78, Lawrence; E315, McKinnon E3508, Fish Adm 64 Part 1 folio 8

E3505, Fish E3507, Fish Hilton v Wells (1985) 58 ALR 245 R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 144 CLR

54; Cleland v R (1982) 43 ALR 619 ReJ:X>rt of the Royal Commission of Inquiry into the Activities of the Nugan Hand Group, AGPS, June 1985, page 31, 1.3.2

APPENDICES

APPENDIX A(i)

Commonwealth Letters Patent, 29 March 1985

- 361 -

COMMONWEALTH OF AUSTRALIA

ELIZABETH THE SECOND, by the Grace of God Queen of and Her other Realms and Territories, Head of the Commonwealth: TO

DONALD GERARD STEWART

GREETING:

WHEREAS by Letters Patent issued in Our name by Our

...

. ..

1 , 1

Administrator of the Government of the Commonwealth of ··.

Australia on 25 June 1981 We appointed you to be a

Commissioner to inquire into and report upon certain matters relating to Terrence John Clark and persons associated with him:

AND WHEREAS by Letters Patent issued in Our name by Our

Governor-General of the Commonwealth of Australia on 28 March i> 1983 the first-mentioned Letters Patent were varied so as to ' · require that you make inquiry into certain other matters:

AND WHEREAS the Letters Patent issued on 25 June 1981, as '•

affected by the Letters Patent issued on 28 March 1983 and other Letters Patent, require that, not later than 30 April 1985, you furnish to Our Governor-General of the Commonwealth of Australia a report of the results of your inquiry and your .·

recommendations: ...

...

. ··

- 362 -

2.

AND WHEREAS you are authorized by section 78 of the

Telecommunications (Interception) Act 1979 to make use of certain documents referred to in that section for the purpose of your inquiry:

NOW THEREFORE We do, by these Our Letters Patent issued in

Our name by Our Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and pursuant to the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and other enabling

powers, vary the Letters Patent issued on 25 June 1981, as affected by the Letters Patent issued on 28 March 1983, 15 December 1983, 27 June 1984 and 21 December 1984 so as to require that, to the extent that you are not already required to do so, you make inquiry into the following matters, namely -

(a) whether there exists, in the possession of any

person (including any member of the New South Wales Police Force or the Australian Federal Police), any information or material (including documents or tape recordings) arising out of or relating to the unlawful interception, on or before 28 March 1985, in New South Wales of communications passing over a

telecommunications system, being information or material that discloses the commission of criminal offences or the possible commission of criminal offences against a law of the Commonwealth or of a Territory and which warrants further investigation; and

(b) the nature of the offences or possible offences

disclosed by information or material referred to in sub-paragraph (a):

- 363 -

3.

WE direct that in making recommendations arising from

your consideration of documents referred to in section 78 of the Telecommunications (Interception) Act 1979 and information or material referred to in sub-paragraph (a) of the preceding paragraph, you identify any person for whom you

recommend the grant of an indemnity against prosecution for a criminal offence against a law of the Commonwealth in connection with the interception of communications passing over a telecommunications system, being a person whom you

consider to be in a position -

(c) to give evidence which will tend or would have

tended to render such documents, information or material admissible in a prosecution for a criminal offence against a law of the Commonwealth or of a State; or

(d) to give information that may lead or that may have

led to the discovery of evidence of such an offence:

AND We further direct that any recommendation you make for

the grant of an indemnity against prosecution for a criminal offence be a recommendation for the grant of an indemnity upon the following conditions, namely -

(e) that the person concerned, in your opinion, gives

his co-operation in the conduct of your inquiry, including the giving of evidence truthfully and withholding nothing of relevance; and

(f) that you are satisfied that the acts to which the

indemnity would relate were done solely for the purpose of obtaining information for use in the investigation of crime:

- 364 -

4.

AND We further direct that in making any recommendations as

to the grant of indemnities against prosecution, save in exceptional circumstances, you limit your recommendations to persons who have, within 28 days after the date of

publication by you of a notice inviting persons to appear before you for the purposes of your inquiry into the matters specified in these Our Letters Patent, given to you notice in writing of their intention so to appear and give evidence:

AND We further direct that you report -

(g) on the extent to which documents have been given or

information communicated pursuant to sub-section 7BA(4) of the Telecommunications (Interception) Act 1979; and

(h) on the extent to which the conditions specified in

(e) and (f) have been complied with

by the persons to whom they relate:

AND We require you to make such further recommendations

arising out of your inquiry as you think appropriate, including recommendations as to the method of enforcement of the criminal law and the legislative or administrative changes (if any) that are necessary or desirable in the light

of the results of your inquiry:

AND, notwithstanding anything in the Letters Patent issued on

25 June 1981, as affected by the Letters Patent issued on 28

March 1983 and by other Letters Patent, We require you as expeditiously -as possible to make your inquiry and-

(i) not later than 30 June 1985, to furnish to our

Governor-General of the Commonwealth of Australia a report of the results of your inquiry and recommendations in relation to the matters specified in the Letters Patent issued on 28 March 1983; and

- 365 -

5.

(j) not later than 31 December 1985, to furnish to our

Governor-General of the Commonwealth of Australia a report of the results of your inquiry and recommendations in relation to the matters specified in the Letters Patent issued on 25 June 1981 and in

these Our Letters Patent.

Dated this Twenty Ninth

WITNESS His Excellency the Right Honourable Sir Ninian Martin Stephen, a member of Her Majesty•s Most Honourable Privy

Council, Knight of the Order of Australia, Knight Grand Cross of The Most Distinguished Order of Saint Michael and Saint George,

Knight Grand Cross of the Royal Victorian Order, Knight Commander of the Most Excellent Order of the British Empire,

Governor-General of the Commonwealth of Australia.

day of March 1985.

Governor-General

By His Excellency•s Command,

for and on behalf of the Prime Minister

APPENDIX A( ii)

New South Wales Letters Patent, 3 April 1985

Q[jj H1 !D H10

f'·'i

0 (D

(D rt

OJ

0 'i

H1 '<

- 369 -

Ctt

NEW SOUTH WALES Ilia. No.

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other

Rearms and Territories, Head of the Commonwealth.

To Our Trusty and Well-Beloved

The Honourable DONALD GERARD STEWART,

GREETING:

WHEREAS by Royal Commission by Letters Patent under the Great Seal of Our

State of New South Wales and the hand of Sir JAMES ANTHONY ROWLAND, Our

Governor of New South Wales dated the 24th day of June, 1981 and recorded in the

Register of Patents, No. 78, page 175, you were authorised to inquire into and

report upon certain matters relating to Terrence John Clark and persons associated

with him: AND WHEREAS by further Letters Patent issued in the aforesaid manner

' on the 28th day of March, 1983 and recorded in the Register of Patents, No.79, z

o page 112, you were required, to the extent that you were not required to do so by

gs the Letters Patent issued on the 24th day of June, 1981, to make inquiry and report

'U Ill

upon certain other matters:

'g AND WHEREAS the Letters Patent issued on the 24th day of June, 1981, as

N affected by the Letters Patent issued on the 28th day of March, 1983, and by other

l::j Letters Patent, require that, not later than the 30th day of April, 1985, you furnish

to Our said Governor a report of the results of your inquiry and your

rt rt

en

Hl

AND WHEREAS you are authorised by section 7B of the Telecommunications

en (Interception) Act 1979 of the Commonwealth of Australia to make use of certain

[;}' documents referred to in that section for the purposes of your inquiry:

'<

0

..., NOW THEREFORE We do by these Our Letters Patent issued in Our name under

.5' the Great Seal of New South Wales and the Hand of Sir JAMES ANTHONY

t-i :::; ROWLAND, Our said Governor, with the advice of the Executive Council of Our

' said State, vary the Letters Patent issued on the 24th day of June, 1981, as

0

affected by the Letters Patent issued an the 28th day of March, 1983, and by other

- 370 -

Letters Patent, so as to require that, to the extent that you are hot already

required to do so by those Letters Patent, you make inquiry into the following

matters, namely -

(a)

(b)

whether there exists, in the possession of any person (including any

member of the New South Wales Police Force or the Australian

Federal Police), any information or material (including documents or

tape recordings) arising out of or relating to the unlawful interception,

on or before the 28th day of March, 1985, in New South Wales of

communications passing over a telecommunications system, being

material or information that discloses the commission of criminal

offences or the possible commission of criminal offences against a law

of New South Wales and which warrants further investigation; and

the nature of the offences or possible offences disclosed by

information or material referred to in subparagraph (a):

AND We direct that in making recommendations arising out of your consideration

of documents referred to in section 78 of the Telecommunications (Interception)

Act 1979 and information or material referred to in sub-paragraph (a) of the

preceding paragraph, you identify any person for whom you recommend the grant

of an indemnity against prosecution for a criminal offence against a law of the

State in connection with the interception of communications passing over a telecommunications system, being a person whom you consider to be in a position -

(c)

(d)

to give evidence which will tend or would have tended to render such

documents, information or material in a prosecution for a

criminal offence against a law of the Commonwealth or of a State; or

to give information that may lead or that may have led to the

discovery of evidence of such an offence:

AND We further direct that any recommendation you make for the grant of an

indemnity against prosecution for a criminal offence be a recommendation for the

grant of an indemnity upon the following conditions, namely -

(e) that the person concerned, in your opinion, gives his co-operation in

the conduct of your inquiry, including the giving of evidence truthfully - l P'JI-f"()f)ed by ltu

and withholding of nothing of relevance; and E · ,, 1 · vflti..,...h

- 2 - Clert of CO&NIJ

1/is. No.

(f)

- 371 -

that you are satisfied that the acts to which the indemnity would relate were done solely for the purpose of obtaining information for use in the investigation of crime:

AND We further direct that in making any recommendations as to the grant of

indemnities against prosecution, save in exceptional circumstances, you limit your

recommendations to persons who have, within 28 days after the date of publication

by you of a notice inviting persons to appear before you for the purposes of your

inquiry into the matters specified in these Our Letters Patent, given to you notice

in writing of their intention so to appear;

AND We further direct that if, in relation to any person in respect of whom you

recommend that an indemnity as referred to in these Our Letters Patent or an

indemnity as referred to in the Letters Patent issued to you by the Governor­

General of the Commonwealth of Australia on the 29th day of March, 1985, in

relation to the corresponding Royal Commission held by you from the

Commonwealth, be granted, and who is, at the time at which you make your

recommendation, a member of the New South Wales Police Force, you are of the

opinion that an undertaking should be given that no proceedings or other action of a

disciplinary nature will be taken against that person under the law governing the

Force, and that the advancement of that person in the Force shall not be adversely affected, by reason of the acts to which the indemnity would relate, you shall recommend that an undertaking be given to that person accordingly:

AND We further direct that any recommendation you make for the giving of an

undertaking of the kind referred to in the last preceding paragraph be a

recommendation for the giving of such an undertaking upon the following

conditions, namely -

(g)

(h)

that the person concerned, in your opinion, gives h'is co-operation in the conduct of your inquiry, including the giving of evidence truthfully

and withholding of nothing of relevance; and

that you are satisfied that the acts to which the undertaking would relate were done solely for the purpose of obtaining information for use in the investigation of crime; ,,, •. \

. '

t. (•'"'

AND We further direct that in making any recommendations

undertakings of the kind referred to in the two last preceding

,,.

as ;-.ng of

'f'.c "\

\,

- 3 -

- 372-

exceptional circumstances, you limit your recommendations to persons who have,

within 28 days after the date of publication by you of a notice inviting persons to

appear before you for the purposes of your inquiry into the matters specified in

these Our Letters Patent, given to you notice in writing of their intention so to appear:

AND We further direct that you report -

(i)

(j)

on the extent to which documents have been given or information

communicated pursuant to sub-section 7BA(4) of the

Telecommunications (Interception) Act 1979; and

on the extent to which the conditions specified in sub-paragraphs (e)

and (f) of the fifth last preceding paragraph and in sub-paragraphs (g)

and (h) of the second last preceding paragraph have been complied

with by the persons to whom they relate:

AND We require you to make such further recommendations arising out of your

inquiry as you think appropriate, including recommendations as to the method of

enforcement of the criminal law and the legislative or administrative changes (if any) that are necessary or desirable in the light of the results of your inquiry:

AND, notwithstanding anything in the Letters Patent issued on the 24th day of

June, 1981, as affected by the Letters Patent issued on the 28th day of March,

1983 and by other Letters Patent, We require you as expeditiously as possible to

make your inquiry and -

(k)

(I)

not later than the 30th day of June, 1985, to furnish to Our Governor

of Our said State a report of the results of your inquiry and

recommendations in relation to the matters specified in the Letters

Patent issued on the 28th day of March, 1983; and

not later than the 31st day of December, 1985, to furnish to Our

Governor of Our said State a report of the results of your inquiry and

recommendations in relation to the matters specified in the aforesaid

Letters Patent of the 24th day of June, 1981, and in these Our Letters Patent.

- 4-

P'/*rooetl bytfu

E:r.--r-4/.ti,e Cntt . .-1

ClerA: of 14t. Oou.tl

Mia. No.

- 373 -

IN TESTIMONY WHEREOF, We have caused these Our

Letters to be made Patent, and the Great Seal of Our State to be hereunto affixed.

WITNESS Our Trusty and Well-beloved Sir JAMES

ANTHONY ROWLAND, Knight Commander of Our Most

Excellent Order of the British Empire, upon whom have

been conferred the Decorations of the Distinguished

Flying Cross and the Air Force Cross, gf Cr:iQQ gf

the "eAePaele QpseF ef lit. Jghn gf Our

Governor of Our State of New South Wales, in the

Commonwealth of Australia, at Sydney, in Our said

State, this 3 day of

one thousand nine hundred and eighty five and in the

thirty-fourth year of Our Reign.

By His Excellency's Command,

,,

APPENDIX A(iii)

Victorian Letters Patent, 17 June 1985

- 377 -

• -

ELIZABETH THE SECOND BY THE GRACE OF GOD QUEEN OF AUSTRALIA AND HER OTHER REALMS AND TERRITORIES, QUEEN, HEAD OF THE COMMONWEALTH.

To Our trusty and well-beloved

DONALD GERARD STEWART.

GREETINGS:

KNOW YE that We, reposing great trust and confidence in your knowledge and ability, have constituted and appointed and by these presents do constitute and appoint you DONALD GERARD STEWART, to be our Corrmissioner to inquire into the following matters:

(a) Whether any unlawful i ntercept·i on by a member of the po 1 ice force of Victoria ai::tfng in collaboration with, or in the course of an investigation conducted by members of the po 1 ice force of Victoria with members of the New South Wales police

force or the Australian Federal police took place on or before 28 March 1985 in Victoria or New South Wales of corrmunications passing over a telecorrmunications system;

(b) If any such unlawful interception took place, whether there exists, in the possession of any person (including any member of the police force of Victoria or the Australian Federal police) any information or material (including documents or

tape recordings) arising out of or in relation to that interception, being information or material that discloses the Corrmission of criminal offences or the possible Corrmission of criminal offences against a law of Victoria, New South Wa 1 es, the Corrmonwea 1 th or a Terri tory of the Corrmonwea 1 th

and which warrants further investigation; and

(c) The nature of the offences or poss i b 1 e offences disclosed by information and material referred to in Sl.lb-paragraph (b) .

- 378 -

- 2 -

And we direct that in making recommendations arising out of your consideration of the matters referred to in sub-paragraphs (a) and (b) of the preceding paragraph, you identify any person for whom you reco111nend the grant of an indemnity against prosecution for a criminal offence against a law of the State in connection with the interception of co111nuni cations passing over a tel eco111nuni cations system, being a person whom you consider to be in a position -

(d) to give evidence which will tend or would have tended to render such documents, information or material admissible in a prosecution for a criminal offence against a law of the Conmonwea 1 th or of a State or Terri tory; or

(e) to give information that may lead or that may have led to the discovery of evidence of such an offence.

And we further direct that any recolllllendation you make for the grant of an indemnity against prosecution for a criminal offence be a reco111nendation for the grant of an indemnity upon the following conditions, namely -

(f) that the pers.on concerned, in your opinion, gives his co­ operation in the conduct of your inquiry, including the giving of evidence truthfully and withholding of nothing of re 1 evance; and

(g) that you are satisfied that the acts to which the indemnity would relate were done solely for the purpose of obtaining information for use in the investigation of crime.

And we further direct that in making any as to the

grant of indemnities against prosecution, save in exceptional circumstances, you 1 imi t your ons to persons who have,

within 28 days after the date of publication by you of a notice inviting persons to appear before you for the purposes of your inquiry into the matters specified herein, given to you notice in writing of their intention so to appear.

And we further direct that if, in relation to any person in respect of whom you recommend that an indemnity be granted, and who is, at the time at which you make your recolllllendation, a member of the Pol ice Force of Victoria, you are of the opinion that an undertaking should be given that no proceedings or other action of a disciplinary nature will be taken against that person under the law governing the Police Force of Victoria, and that the advancement of that person in the Police Force of Victoria shall not be adversely affected, by reason of the acts to which the indemnity would relate, you shall recolllllend that an undertaking be given to that person accordingly.

And we further direct that any recolllllendation you make for the giving of an undertaking of the kind referred to in the last preceding paragraph be a for the giving of such an undertaking

upon the following conditions, namely -(h) that the person concerned, in your opinion, gives his co­ operation in the conduct of your inquiry, including the giving of evidence truthfully and withholding of nothing of

relevance; and

- 379 -

- 3 -

( i) that you are satisfied that the acts to which the undertaking would relate were done solely for the purpose of obtaining information for use in the investigation of crime.

And we further direct that in making any recommendations as to the giving of undertakings of the kind referred to in the two last preceding paragraphs, save in exceptional circumstances, you limit your recommendations to persons who have, within 28 days after the date of publication by you of a notice inviting persons to appear before you

for the purposes of your inquiry into the matters specified herein given to ybu notice in writing of their intention so to appear.

And we further direct that you report on the extent to which the conditions specified in sub-paragraphs (f) and (g) of the fifth last preceding paragraph and in sub-paragraphs (h) and ( i) of the second 1 ast preceding paragraph have been complied with by the persons to whom

they relate.

And we require you to make such further recommendations ar1s1ng out of your inquiry as you think appropriate, including recommendations as to the method of enforcement of the criminal 1 aw and the 1 egs i 1 ati ve or administrative changes (if any) that are necessary or desirable in

the light of the results of your inquiry.

And we require you as expeditiously as possible to make your inquiry and not later than 31 December 1985 to furnish to the Governor of the State of Victoria a report of the results of your inquiry and recommendations in relation to the matters specified herein.

IN TESTIMONY WHEREOF We have caused these Our Letters to be made Patent four said State to be hereunto affixed. WITNESS, The Honourable Sir John Mcintosh Young Lieutenant-Governor as

Deputy for His Excellency Rear Admiral Sir Brian Murray, Knight Commander of Our Most Distinguished Order of Saint

Michael and Saint George, Officer of the Order of Australia, Knight of the Most Venerable Order of Saint John of Jerusalem , Governor

of the State of Victoria and

its Dependencies in the Commonwealth of etc. at Melbourne thls',.day of..one thousand nine hundred and eighty­

five in the thirty fourth year of

Our Reign.

By His Excellency ' s Command,

----s-:- /-1. A HORNEY -GENERAL

Entered on record by me in the

Register of Patents Book No. Jg Page 3" this II,... day

of ..J €: . One Thousand

Nine Hundred and E i gh ty-fi ve.

' SECRETARY , DEPARTMENT OF THE PREMiER-AND CABINET.

APPENDIX B

Recommendations for Indemnities and Undertakings

APPENDIX B

Recommendations to the Commonwealth Attorney-General

Abbott, Cecil Roy Anderson, John Timothy Anderson, Robert Charles

Aust, Bernard Frederick Barnett, Graham John Batton, Barry Michael Beaumont, Gary William

Brett, Mark Christopher Brown, Kevin Robert Bull, William George Frederick Calladine, Anthony Mervyn Canacott, Ernest Edward carrabs, Vincenzo Gino Chad, Nelson Rowatt Chambers, warren Thomas Champion, Alan Maurice Chinnery, David John Choat, Jennifer Anne Clyne, William George Conwell, Keith Ronald Coughlin, Michael Daalrneijer, Andreas Franciscus

Davidson, John Stuart Davis, Brian Dawson, Terry John

Deane-Spread, David Kevin Donaldson, Leonard Stuart Donaldson, William Raymond Dunn, Barry Wentworth Durham, John Bruce Robert Egge, Paul Leonard Farmer, Roy Finch, Ian Charles Foster, James Frederick Francisco, John Gibson, William Robert Gilligan, Dennis Martin Graham, Andrew Walter Green, William Francis

Harrison, Elizabeth Anne Harvey, Rodney Graham Hawthorn, Arthur Hodges, Charles Robert

Hofer, Karl Heinz Huber, Kerri Lynne Jenkins, Ronald Arthur Johnson, Richard Anthony Johnston, Bruce Wallace Jolly, Glenn Laurence Jones, Albert John

- 384 -

Kassis, John Toufic Kendall, Glenn Wayne Kilburn, Roger Krawczyk, Jan

Lamb, Peter John Lauer, Anthony Raymond Lawrence, Paul Aubrey George Lawrence, Phillip John Leach, David James Lees, James Travers Lendrum, Richard Edward

Lewington, David James Lewis, John Darcy Lloyd, Edwin Ernest Lowe, Paul Thomas

Luke, Ida courtney Mathews, Stephen John McDonald, craig Lee McDOnald, Kevin Edward McDowell, Geoffrey Neil McKinnon, warren James McLay, ran John McVicar, Brian Roy Meadley, John Bradford Moore, Gregory MOore, Leslie Victor Morrison, Ross Page Noonan, Lloyd Ogg, Michael Kevin Onley, Bruce Robin owens, Geoffrey Richard

Palmer, John Ferdinand Pryce, Bruce David Quade, Charmaine Cynthia Harten Robinson, Timothy Philip Rudd, Allan Leonard

Schuberg, Geoffrey Esmond shaw, Vincent Frederick Shelley, Geoffrey Shepherd, Robert Charles Silvester, Frederick Albert

Slade, George Walter Slucher, Regby Francis smaills, Arthur Leonard smelstorius, John Jonas Amnonas Smith, Grahame Phillip Smith, Raymond Francis

Smith, Ronald Bruce Southwell, Raymond John Spain, carl Vincent Spencer, stephen Patrick stanton, warren sydney Steer, Jeffrey Ian Suchy, Joanna Maria

sweeney, John Peter

- 385 -

Tharme, Michael Treharne, Robert Ian Vickers, Geoffrey William Walliss, Phillip Clarence Walsh, John Anthony Walter, Paul Thomas wares, Ian Neville Watkins, Colin Robert Wells, Andrew Christopher Whalan, Peter David Wiggins, Ronald David Williams, Daryl Raymond Williams, Michael Edmund Williams, Terrence John Willis, James Michael Withers, John Fenton Wooden, James Edward Worsley, Donald

Recommendations to the New South Wales Attorney-General

Deane-Spread, oavid Kevin Francisco, John Hawthorn, Arthur Kilburn, Roger Lawrence, Phillip John

Smith, Grahame Phillip

Recommendations to the Victorian Director of Public Prosecutions

Barnett, Graham John Graham, Andrew Walter Green, William Francis Jolly, Glenn Laurence

McLay, Ian John Silvester, Frederick Albert Smelstorius, John Jonas Amnonas Walliss, Phillip Clarence

walsh, John Anthony Williams, Michael Edmund

Recommendations to the Commissioner of the AFP

Anderson, Victor Arthur Farmer, Roy Harrison, Elizabeth Anne Lamb, Peter John

Lawrence, Phillip John Lewington, David James

- 386 -

Onley, Bruce Robin Quade, Charmaine Cynthia Harten Robinson, Timothy Philip Wells, Andrew Christopher

Recommendations to the Commissioner of the NSW Police

Abbott, Cecil Roy Anderson, John Timothy Anderson, Robert Charles Aust, Bernard Frederick Batton, Barry Michael Beaumont, Gary William Brett, Mark Christopher Brown, Kevin Robert Bull, William George Frederick Cahill, John Edward Calladine, Anthony Mervyn Cannacott, Ernest Edward Carrabs, Vincenzo Gino Chad, Nelson Rowatt Chambers, warren Thomas Charrpion, Alan Maurice Chinnery, David John Choat, Jennifer Anne

Clyne, William George Conwell, Keith Ronald coughlin, Michael Crawford, Ross Maxwell Daalrneijer, Andreas Franciscus Davidson, John Stuart Davis, Brian Dawson, Terry John Donaldson, Leonard Stuart Donaldson, William Raymond Dunn, Barry Wentworth Durham, John Bruce Robert Egge, Paul Leonard Finch, Ian Charles Foster, James Frederick Francisco, John Gibson, William Robert Gilligan, Dennis Martin Harvey, Rodney Graham Hawthorn, Arthur Hodges, Charles Robert Hofer, Karl Heinz Huber, Kerri Lynne Jenkins, Ronald Arthur Johnson, Richard Anthony Johnston, Bruce Wallace Jones, Albert John

- 387 -

Kassis, John Toufic Kendall, Glenn wayne Kilburn, Roger Krawczyk, Jan Lauer, Anthony Rayroc>nd Lawrence, Paul Aubrey George

Leach, David James Lees, James Travers Lendrum, Richard Edward Lewis, John Darcy Lloyd, Edwin Ernest

Lowe, Paul Thomas Luke, Ida courtney Mathews, Stephen John McDonald, Craig Lee McDonald, Kevin Edward McDowell, Geoffrey Neil McKinnon, Warren James McVicar, Brian Roy Meadley, John Bradford Moore, Gregory Moore, Leslie Victor Morrison, Ross Page Noonan, Lloyd

Ogg, Michael Kevin Owens, Geoffrey Richard Palmer, John Ferdinand Pryce, Bruce David Rudd, Allan Leonard Schuberg, Geoffrey Esmond

Shaw, Vincent Frederick Shelley, Geoffrey Shepherd, Robert Charles

Slade, George Walter Slucher, Regby Francis Smaills, Arthur Leonard Smith, Grahame Phillip Smith, Raymond Francis Smith, Ronald Bruce Southwell, Raymond John Spain, carl Vincent Spencer, stephen Patrick Stanton, Warren Sydney Steer, Jeffrey Ian Suchy, Joanna Maria sweeney, John Peter Tharme, Michael Treharne, Robert Ian Vickers, Geoffrey William Walter, Paul Thomas

wares, ran Neville Watkins, Colin Robert Whalan, Peter David Wiggins, Ronald David

- 388 -

Williams, Daryl Raymond Williams, Terrence John Willis, James Michael Withers, John Fenton Wooden, James Edward Worsley, Donald

Recommendations to the Chief Commissioner of the V1ctor1a Police

Barnett, Graham John Graham, Andrew Walter Green, William Francis Jolly, Glenn Laurence McLay, Ian John Shaw, John Allen Walliss, Phillip Clarence Williams, Michael Edmund Woods, Douglas William

APPENDIX C

Breakdown of Installations

BREAKDOWN OF INSTALLATIONS (Approximate Numbers from Annexure E to the Historical Overview)

Year Total BCI JTF VIC AFP DS HOM SP.BR NHTF AHUS BS FS A MCS 16 DIV ocs

Installations Dist

1976 8 4.2%) 8

1977 3 1.6%) 3

1978 7 3. 7%) 7

1979 ll 5.8%) 9 l 1

1980 26 (14.0%) 18 7 l

1981 7l (37.7%) 50 16 l l 1 1 l w 1..0 I-' 1982 33 ( 17.6%) 25 2 2 l l l l

1983 25 {13.3%) 11 2 1 2 3 1 4 1

1984 4 { 2.1%) 1 1 l l

Total 188 132 27 2 1 6 3 1 1 2 5 1 l 4 1 l

70.5% 14.4% 1.0% 0.5% 3.2% 1.6% 0.5% 0.5% 1.0% 2.7% 0.5% 0.5% 2.1% 0.5% 0.5%

to Requestin9 Units

BCI - Bureau of Crime Intelligence Horn - Homicide Squad FS - Fraud Squad

JTF - Joint Drug Trafficking Task Force Sp. Br. - Special Branch A Dist - 'A' District

VIC - Victorian Police NHTF - Nugan Hand Task Force MCS - Major Crime Squad

AFP - Australian Federal Police AHUS - Armed Hold Up Squad 16 Div - 16 Division

DS - Drug Squad BS - Breaking Squad ocs - Organised Crime Squad

APPENDIX D

Technical Description and Block Diagram of Transmitter located January 1984

- 395 -

TECHNICAL DESCRIPI'ION OF TRANSMITTER LOCATED JANUARY 1984

FREQUENCY: 162.85 MHZ

IDDULATIOO: FM

OOTPur POWER: 1. 3 WATTS (WITH FULLY CHARGED BATTERY)

OUTPUT PCMER WITH BATTERY 100 rrW

RANGE 500 MEI'RES

STATE CF BATTERY NOMINAL VOLTAGE 0/C VOLTAGE

9 Volt 8.08 Volt

18 Volt 14.17 Volt

CURRENI' COOSUMP'I'ION 9 V Batt 30 rnA (SOmA)*

18 V Batt 320 rnA

* Only when unit is timing

Ic's used

MM74C08N QUAD 2-INPur NOR GATE

LM 567 CN TCNE DECODER

LM 3900N QUAD CF-AMP

LM 370 N AGC/SQUELCH AMPLIFIER

LM 74C909N QUAD COMPARTOR

PA 7805

+ 5V REGULATOR

LM 340Tl2 + 12V REGULATOR

TRANSMITTER POWER SUPPLY + 13.8 Volt

LOGIC POWER SUPPLY + 5 Volt

rn LOAP

8.00 Volt

13.22 Volt

'ON' time when 'Line Loop' and 'Dial tone' are both present 10 Sec.

EXCHANGE

,-I

r

[

r

I

I

I

I

I

[

I

I

BLOCK DIAGRAM

l ---------- ------------

CON'IROL SECTION Metal Shielded Enclosure 62.85 MHZ

1-- - --- -- - ------, ,---------,

h

1---

y

Audio Amp r

I I

d ' I

I

I

and Auto Au 10 JTransrnitterl I

1. I I

Level Control

I I

(FM) I

I'

Circuitry I I

I ____ j L__ ---

I

I

Line

1---1 Loop On/off Control

Detector

Control I

--"' Circuitry r

I

I 13. 8V

I

_.,

Dial Tone I +sv -'

Detector (10 sec Delay) I

I

I

PLASTIC INTERNALLY SHIELDED ENCLOSURE I

---

Aerial

J

9V & 18V

Battery

PHONE LINE

w \D 0\

APPENDIX E

Table of Administrative and Other Changes in TSU and BCI

- 399 -

TABLE CF ADMINISTRATIVE AND OI'HER CHANGES IN TSU AND BCI

DATE TSU

1968 Under Administrative control of Police Communications Branch Under Operational control of superintendent

May 1970

03.10.73

12.02.78

01.05. 79

17.04.80

1980-1981

in Charge, CIB

Formally established as the Electronics Facilities Section

Administrative control vested in superintendent in Charge, CIB. Name changed to Technical Support Group

OCI

Established and known as

Crime Intelligence Unit

R H Stevenson officer in

Inspector appointed charge. Responsible to

Superintendent in Charge r CIB

superintendent J F Palmer

appointed officer in charge responsible to Assistant

Commissioner (Crime)

control vested in Assistant Commissioner, Crime

DATE

12.10.80

03.07.81

10.06.82

01.12.82

17.04.83

13.03.84

- 400 -

TSU

Control vested in Superintendent in Charge, BCI. Name changed to TSU

BCI

Operational arm attached

Name changed to BCI

Observation Squad attached

Organised Crime Squad of ten

officers attached

Operational arm and

Organised Crime Squad

amalgamated under title of

Organised Crime Squad

APPENDIX F

Organisational Structure of TSU and BCI

- 403 -

ORGANISATIONAL STRUCTURE OF TSU 1970 TO 17.04.80

I Superintendent CIB

CIB

Squads

ColTDTlissioner

of

Police

Operational Control

I

I

I

I

I

I

I

I

I

superintendent Sc i entific,

Technical and other Services branch

OIC

ColTOTiunications

Branch

TSU

OIC Sgt 1/C

-----21C Sgt 3/C Constables

- 404 -

ORGANISATIONAL STRUCTURE OF TSU 17.04.80 - 10.06.82

Commissioner

of

Police

Superintendent CIB

TSU

ore sgt 1/C

21C Sgt 3/ C

Constables

CIB Squads

- 405 -

ORGANISATIONAL STRUCTURE OF TSU FROM 10.06.82

Corranissioner of

Police

Assistant Corranissioner (Crime)

Superintendent BCI

TSU

ore sgt 1/C

21C Sgt 3/C

Constables

l TSU 10. 06. 821

- 406 -

ORGANISATIONAL STRUCTURE OF BCI

1984 - 12.02.1978

Commissioner of Police j

I

j Superintendent CIB I I

BCI - Sgt 3/C OIC

- 21C Sgt 3/C

- Constables

12.02.1978 - 01.05.1979

!commissioner of Police I

I

superintendent CIB

I

BCI - OIC Inspector

- 21C Sgt 1/C

- Sgt

- Constables

01.05.1979 - 1984

Commissioner of Police j

I

l Assistant Commissioner (Crime) j I

BCI - superintendent

- Inspector

- Sgt 1/C

- Surveillance arm

- Operational arm (12.10.80) -Observation Squad (12.10.80) -Organised Crime Squad (17.04.83)

INDEX

- 409 -

INDEX

Note: A Table of Cases Cited follows at page 431

Abbott, C.R., 5, 8, 91' 93' 94' 108, 116, 124, 127e, 129e, 130e, 218,

225e, 253, 254, 261

ACT Bar Association, 324, 328

Advance Electric Pty Ltd, 244, 245

Age, The, 6, 7, 9, 10, 12, 17, 33, 75, 94, 122, 183, 184, 253, 254, 262,

264, 265, 266, 272-280, 288 Age tapes, 6, 8, 9, 14, 19, 22e, 27, 94, 117, 122, 124, 187, 253-255,

264-267e, 279

Aicken, The Hon. Mr Justice, 67 Aitken, B.E., 146 Allen, N.T.W., 81, 82, 83, 113, 116, 140 Alpha, 139, 151, 216, 217

AM, ABC program, 14

Anderson, F.C. 'Paddles', 149, 150

Anderson, P.T., MP, 254

Anderson, R.C., 127e, 290, 299e

Anderson, T., T.

Andrew, W.T.B., 237

Anoa, 109, 144, 145

Appleton, P., 211 Archives Act 1983, 354, 355 Arirang House Restaurant, 293

Arista Electronics Pty Ltd, 245, 246 Army Disposal Unit, 231

Ansett Airlines, 176 Audio Intelligence Devices (AID), 247, 248

Audiotel International Ltd, 248 Aura/Pickaxe/ Snooker, 15 7, 158 ·, 188, 217 Aust, B.F., 127e, 13le, 170e Australia Post, 156, 157

Australian Archives, 353 Australian Broadcasting Corporation, 221

- 410 -

Australian Bureau of Criminal Intelligence, 12, 183, 187 Australian College of Investigators, 247 Australian Democrats, 20 Australian Federal Police, 8, 27, 40, 51, 60, 61, 73-75, 94, 96, 122,

123, 137, 139, 148, 150, 157, 158, 163, 175, 188, 189, 193,

199-205, 216-218, 222, 232-239, 253, 261-266 passim,

271-284 passim, 286, 288, 293, 303, 304, 308, 309, 325, 330,

335-349 passim

AFP report, 10, 11

B Division, 73, 74, 200, 203, 204, 221, 222, 236, 263, 335, 336

Commissioner, 14, 40, 44, 63, 307

Criminal Investigation Division, 233, 234 Document Examination Bureau, 262

Electronic Services Branch, 96, 236 Internal Investigation Division, 236 Observation Squad, 236

Special Projects Branch, 304, 305, 306, 307, 346 Special Projects Committee, 304, 305, 306, 347 Australian Federal Police/Victoria Police Task Force, 237 Australian Government, 100 Australian Institute of Criminology, 324 Australian Law Reform Commission, 327 Australian Royal Commission of Inquiry into Drugs (Williams Royal

Commission), 200, 205, 206, 215, 223e-225e

Australian Security Intelligence Organisation, 56, 58, 59, 61, 303, 324 Australian Security Intelligence Organisation Act 1979, 59 Australian Taxation Office, 44 Australian Telecommunications Commission see Telecom Australian Telecommunications Employees Association, 308, 347 Australian, The, 8 Avery, J.K., 15, 117, 130e, 221, 222, 325 Avis Australia, 102

Azzopardi, F., 153, 154

Bacon, W., 14

Baer, P.W., 33le

- 411 -

Banking Foreign Exchange Regulations, 152

Bannister, R., 207, 216, 224e Barnett, G.J., 157, 170e, 189, 190, 195e Barone, G., 140

Barry, R.E., 123; 124, 130e Barwick, The Rt. Hon. Mr Justice, 67

Bates, B., 213 Bates, H., 206 Beaumont, G.W., 154, 159, 160, 169e, 170e

Beck, M., 149

Beeves, N., 283

Bell, D., 145 Benecke, A., 244

Bennett, B.R., 236 Bennion, B.J., 152

Bennion, D., 151, 152

Bennion, L.P., 152

Berry, C., 138, 140, 141 Beves, B.A., 283 Birnie, A.M., 109, 113, 120, 121, 130e, 295, 299e Bjedic, -., 142 Black, J., 85 Bland, A.W., 157 Blissett, B., 92, 93, 109-115 passim, 121, 127e, 129e, 130e, 154, 170e,

180, 203, 204, 218, 223e Bolass, J. , 89 Bolkus, Senator N., 265

Bonanza, 207, 209, 210

Bonnett, C., 144 Bottom, R.G., 5-17 passim, 2le, 22e, 71, 73, 277, 278, 279

Bowen, The Hon. L., M.P., 19

Bowles, R. , 254

Boyter, J. , 141

Bradford, J., 147

Bradstreet, F.A., 118, 119, 130e Bravo, 153, 217, 220

Brbic, S., 141, 142 Brett, M.C., 170e Bridegroom, 154, 342

Briese; C.R., 265 Brittliff, P.J., 96, 97, 232, 234, 236 Brokenshire, D., 144 Brown, A., 74, 204, 236, 237

- 412 -

Brown, K.R., 84, 90, 98-101, 118, 121, 126e-130e, 141, 149, 150, 151,

168e, 169e, 182, 183, 194e, 216, 288, 289, 298e

Budget Rent A Car, 102

Bull, W.G.F., 167e Bulletin, 205, 206 Burns, C., 277 Bush, W.A., 157

Buttner, C.A., 233, 234 Byers, Sir Haurice, QC, 63

California Connection, 158 Calladine, A.M., 129e, 239e, 240e Cameron, R., 282

Canacott, E.E., 84, 85, 113, 114, 119, 126e, 130e Cantor, Mr Justice, 266

Car phones see Mobile telephone services

Carrabs, V.G., 287, 290, 298e, 299e Carroll, I.R., 232 Carter, B.J., 201, 223e Centennial Park, 295 Central Court of Petty Sessions, 282 Central Police Station, 83 Cessna, R.B., 136, 137, 146, 147, 255

Cessna/Milner, 11 Challis, Louis A. and Associates Pty Ltd, 262, 279

Chambers, W.T., 204, 223e

Champion, A.M., 129e, 13le

Charlie

JTF operation, 152, 217

- 413 -

Victorian operation, 177, 180, 184, 185, 187, 193 Charlton, F., 294, 295, 299e Cheung, Chi, 161.

Chief Justice of the High Court, 36, 37, 39 Chinese Robberies, The, 160

Chinnery, D.J., 128e, 129e, 130e, 239e, 291, 299e

Chipp, Senator D.L., 20, 265

Chivers, G.J., 259, 278, Choat, J.A., 170e, 290, 299e

Choryo Maru, 144

Clark, T.J., 3, 4, 7, 15, 17, 18, 20

Clough, C., 149, 150

Clyne, W.G., 119, 120, 130e

Cohen, D., 211, 212

Cohen, L., 211

Colmer, T. , 206

Combined Assurances Pty Ltd, 102

Commercial Banking Corporation

City Tattersalls Branch, 282 Committee of Privy Councillors Appointed to Inquire into the Interception

of Communications, 55, 56, 68e Commodore Hotel, 200

Commonwealth Attorney-General, 6-20 passim, 40, 60, 63, 71, 125, 141,

253, 264, 265, 266, 277, 279, 305, 324, 327

Commonwealth Bank

Martin Place, 90

Commonwealth Constitution, 55, 65 '· 265

Commonwealth Crown Solicitors Office, 216

Commonwealth Director of Public Prosecutions, 19, 26, 28, 43, 253, 265,

305

- 414 -

Commonwealth Government, 3, 6, 7, 14, 20, 21, 27, 49, 253, 271, 342

Commonwealth/New South Wales Joint Prosecution Team, 44

Commonwealth/New South Wales Joint Task Force on Drug Trafficking see JTF

Commonwealth Parliament, 15, 55, 56, 265

Commonwealth Police see Australian Federal Police

Commonwealth Reporting Service, 50

Commonwealth Solicitor-General, 63, 64

Communications, Department of, 96, 233, 244

Comptroller-General of Customs, 59 Conwell, K.R., 160, 170e

Cook, R.J., 254, 261, 266e

Copland, R.J., 218, 219

Corporate Affairs Commission, 102

Cosgrove, The Hon. Mr Justice, 64

Court of Criminal Appeal, 219

Cowdery, N.R., 49

Cox, R., 232

Craig, D.F., 262 Crawford, The Hon. Mr Justice, 63

Crest, 138, 144 Crowley, Senator R.A., 265

Crowley, W.D., 175, 176

Customs Act 1901, 60, 61, 205, 326, 343, 350

Customs, Bureau of, 205, 213

Customs, Department of, 58, 59, 60

Daalmeijer, A.F., 124, 129e, 130e, 13le, 291, 299e Daily Telegraph, 8 Darlinghurst Police Station, 282 Davidson, J.S., 161, 170e, 254, 261, 267e Dawson, R.A., 157

Day, D., 159, 160

Dazzler, A, 10, 11, 73, 76, 148, 149, 178, 179, 181, 193, 256, 285

Dean, W., 85

Deane-Spread, K.D., 206, 208, 209, 212, 224e

DeGraaf, R.J., 144 Delaney, A.W., 'The Duke', 294

Denning, R.J., 137, 154, 155, 342

Derley, K.R., 144

- 415 -

Dias, R.L., 10, 73, 74, 76, 148-151, 178, 181, 182, 183, 256, 282, 284, 288, 289

Dick Smith Electronics Pty Ltd, 243-247

Diner, 145 Director-General of Security, 59 Donaldson, L.S., 127e, 146, 168e

Doncaster, 143 Doyle, B.K., 85

Dunn, B.W., 86, 115, 126e, 127e, 129e, 130e, 259

Durack, Senator P.D., QC, 63, 265, 266

Eckford, K.A., 152 Eden, G., 218

Egge, P.L., 127e, 129e, 194e, 204, 223e, 230, 239e, 240e, 288, 298e

Emona Electronics Pty Ltd, 249

Emtronics see Emona Electronics Pty Ltd

Ernst, P.J., 152, 153 Eustace, T., aka Anderson, 211, 212 Evans, Senator G.J., QC, 6, 20, 71, 265

Falcone, P., 139, 140 Farmer, R., 202, 223e

Farquhar, M.F., 147 Federal Bureau of Investigation, 340 Federal Court, 139 Federal Narcotics Bureau, 58, 60, 144, 150, 199, 205-216, 235, 238, 239 Federated Ship Painters and Dockers Union, 184, 232 Fellows, W.E., 145 Ferguson, D., 81, 82

Finch, I.e., 128e Fish, S.M., 238, 307, 33le, 356e

- 416 -

Five Dock Police Station, 93 Flannery, C.D., 71, 76' 162, 190, 191, 192, 285, 291 Flannery, T •' 157' 158 Foster, c.s.' 200, 223e Foster, J.F., 111, 163, 17le, 191, 195e, 291, 299e, 356e Freeman, G.D., 72, 74, 76, 85, 87, 88, 89, 109-116 passim, 120, 142, 143,

256, 282-286 passim, 289, 293, 294, 295, 299e

Frontino-Crisafulli, 140

Galic, I., 141 Gaming and Betting Act 1912, (NSW), 343

Garden Island Dockyard, 151

Gaslight, 200 Gaudron, M., 8, 253, 254

George, J. , 249

Georgie, 218 Gilligan, D.M., 130e, 17le, 239e, 240e Golden Lion, 208

Goldsworthy, S.R., 114, 121, 130e

Golf, 218, 220 Goliath see Gorilla Gorilla, 71, 76, 162, 190, 285, 291 Governor-General, 3, 18, 265, 353

Governor of NSW, 3, 18, 353

Governor of Victoria, 3, 353

Gowans, The Hon. Mr Justice, 63

Graham, A.W., 73, 77e, 149, 151, 162, 169e, 17le, 177-195e passim, 289,

298e

Green, W.F., 128e, 177-195e passim, 239e, 289, 291, 298e, 299e

Greenwood, Senator I., 141

Greiner, N.F., M.P., 74 Griffith, S., 246, 247, 248

Hahn, K.J., 231

Haines, Senator J., 266

Haines, T.W., 254 Hammond, r.c., 284 Hampson, C.E.K., Q.C.' 49 Hans, D., 82 Hansard

Assembly 22 Feb 1984, 22e House of Representatives 28 Feb 1985 22e 20 Mar 1985 22e

22 Mar 1985 22e 26 Mar 1985 22e

28 Mar 1985 22e

Senate

28 Feb 1984, 22e 28 Mar 1984' 22e 21 Ang 1984' 22e 22 Mar 1985, 22e 19 Sep 1985, 267e

Hanson, F.J., 113, 114 Harris, K., 140 Harrison, E.A., 203' 273' 297e Harrison, K.' 151, 152 Harten, c .c.' 203, 273, 297e Harvey, R.G., 154, 169e, 170e, 239 Hastings, P.S., 49 Hawke, The Hon. R.J .L., A.C., M.P., 7 Hawthorn, A., 16, 19, 22e, 73, 74,

169e, 199-204,

Hayward, P.C., 145

Hemana, D. 'Butch', 159

223e, 231,

101,

235,

- 417 -

110, 111, 121, 127e, 130e, 148,

239e, 263, 273, 274, 336

High Court of Australia, 9, 43, 65, 67, 167, 351,

Historical Overview, 83, 125, 135, 137, 220, 231, 232 Hofer, K.H., 95, 98, 128e, 129e, 176, 193e, 194e, 231, 239e, 240e Hope, J.D., 246, 249

House of Representatives, 19, 20

- 418 -

Huber, K.L., 84, 126e, 129e, 170e, 230, 239e, 286-299e passim

Human Rights Commission, 327

Hunt, D .A., 328

Interpol, 161 Irish, 200, 201 Isaacs, The Hon. Mr Justice, 55 Ivill, J.T., 157

Jackson, P., Manasseh, R.

Jika Jika, 162, 291 Jobson, L.R., 154, 155 Jolly, G.L., 184-187, 194e, 195e Jones, A.J., 85, 126e, 127e, 13le, 145, 168e Jones, P., 279 Jones, R.A., 204, 223e Johnson, J.C., 253, 261-264, 335, 336

Johnson, R.A., 127e, 169e, 170e, 178, 194e, 286-288, 290, 298e, 299e

Johnson Report, 267, 356e

Johnston, B.W., 168e, 169e, 184, 219, 220, 225e Jordan see Dazzler, A JTF, 139, 151, 152, 153, 157, 158, 184-189, 199, 215-219, 303, 338, 347

Katingal, 232 Keegan, G., 149, 150

Kendall, G.W., 160, 161, 170e, 17le Kennedy, R. , 204

Kidd, B., 88, 89

Kilburn, R., 72, 73, 76, 77e, 82, 83, 87, 95, 100, 101, 104,

122-130e passim, 162, 178-194e passim, 201, 231, 232, 235, 239e,

287-291, 295, 298e, 299e

Kinniburgh, G.A., 180, 184, 187, 188 Krauss, T. , 146

- 419 -

Lamb, P.J., 73, 74, 148, 169e, 199-204, 216, 223, 263, 266, 273, 274,

297e, 335, 336

Lamond, L.C., 144

Landini, H., 158 Lang, L., see Bland, A.W.

Lauer, A.R., 85, 86, 126e, 127e, 143, 168e Lawrence, J.,

Lawrence, P.A.G., 158, 168e, 170e, 188, 189, 190, 195e, 217, 219, 220, 225e, 356e

Lawrence, P.J., 208, 214, 224e, 225e

Lazzarini, G.M., 282 Le, Tuyet, 161

Leach, D., 216

Leader of the Opposition (Federal), 20

Lees, J.T., 91, 115, 116, 130e Legislation Overseas Austria, 315

Canada, 319, 320, 321

Denmark, 310, 311, 312

Federal Republic of Germany, 314 France, 313 Italy, 315, 316 Netherlands, The, 312, 313

New Zealand, 321, 322, 323

Sweden, 309, 310 United Kingdom, 315, 316, 317 United States of America, 317, 318, 319 Lendrum, R.E., 109, 113, 117, 118, 129e, 130e, 295, 299e

Lewington, D.J., 204, 223e

Lewis, Senator A.W.R., 265

Lewis, J.D., 90, 114, 115, 120, 126e, 130e, 167, 289, 298e

Leydon, J., 153, 154

Lianos see Lyons, R. Listening Devices Act, 1969 (NSW), 65, 66, 120

- 420 -

Listening Devices Act, 1984 (NSW), 65, 66, 99, 343 Listening Devices Act, 1969 (Victoria), 177, 344 Lloyd, E.E., 217, 218, 219, 225e Locastro, A.J., 235 Long Bay Gaol, 163

Losurdo, C., aka Lowe, C., 153, 154, 220 Lowe, C., see Losurdo, c.

Lowe, P.T., 101, 128e-13le, 163, 17le, 239e, 240e, 291, 299e

Lucerne/Pasta, 11, 76, 155, 156, 256, 285, 290 Lyons, R., 152

Mackay, D., 155

Mad Dog, 11, 75, 147, 199, 256, 285, 286

Malouf, A., 140, 141

Manasseh, R., 212, 213, 214, 215

aka Jackson, P.

Marie, A., 141, 142 Maroubra Bay Hotel, 89

Mars, 207, 208, 212, 213, 214, 215

Maserina, J., 282

Mayden, T., 245

McCabe, R.J., 233, 234, 238

S., 144

McCarthy, B.A., 282

McCaskill,-., 184 McClelland, Senator D., 266

McCullough, D., 33le, 356e

McDonald, A., 254, 261, 267e

McDonald, K.E., 71, 76, 125, 126, 130e, 13le, 170e, 290, 299e

McDowell, G.N., 154, 169e, 170e

McGarvie, The Hon. Mr Justice, 64

McGlyn, L., 184

McHannigan, M.J., 141

Mcintosh, D.F., 157

McKinnon, W.J., 90, 95, 101, 126e, 127e, 129e, 168e, 169e, 170e, 178,

182, 194e, 231, 235, 286, 288, 289, 290, 295, 356e

- 421 -

McLaren, J., 211, ZL.

McLay, I.J., 179, 185, 187, 189, 194e, 195e

McQuoid, J.K., 159, 160

McVicar, B.R., 127e, 128e, 129e, 130e, 170e, 230, 239e, 240e, 279, 287, 297, 297e, 298e

Meadley, J.B., 129e, 13le, 147, 286, 287, 288, 298e

Menzies, P.,

Miles, B., 284 Miller, S.I., 177, 178, 180, 325 Milner, T.W.L., 147, 255 Mitchell, D.J., 236 Mobile telephone services, 66, 77, 199, 222, 223, 238, 272, 274, 275

Moffitt, Mr Justice, 84, 85 Mok, Danny, 161

Montague, J.M., 283

Monte, F.J.A., 245, 247, 249e, 250e

Monte's Investigation Services, 245, 247

Moore, B.L., 151, 152

Moore, G., 195e, 239e, 291, 299e

Moore, L.V., 84, 118, 119, 126e, 128e, 129e, 130e

Mordo, M., 139, 140

Morrison, R.P., 92, 93, 111, 122, 123, 127e, 130e, 154, 192, 194e, 290, 291, 299e

Muir, Judge, 146

Mullaly, T.J., 207, 208, 213, 214, 224e, 225e, 240e Murphy, The Hon. Mr Justice, 9, 265, 266

Nancy Howe Real Estate, 10 National Crime Authority, 26, 29, 43, 44, 51, 324, 339-355 passim National Crime Authority Act, 1984, 342, 354 National Intelligence Academy, 247 National Times, The, 6, 11, 17, 93, 220, 221

Neale, S., 244, 246, 247 NSW Assistant Under Secretary of Justice, 254

NSW Attorney-General, 7, 19, 40, 43, 44, 254, 261, 277

- 422 -

NSW Bar Association, 324, 328, 329, 330, 331

NSW Commissioner of Police, 253, 254, 255

NSW Council for Civil Liberties, 324, 325

NSW Crown Solicitor, 8, 216, 253, 254

NSW Government, 3, 7, 14, 21, 27, 49, 90, 91, 271

NSW Law Society, 324, 325, 328, 331

NSW Minister for Police and Emergency Services, 254

NSW Parliament, 114

NSW Police, 4, 5, 6, 8, 13, 27, 40, 51, 61, 73, 96, 99, 108, 114, 116,

117, 120, 125, 135, 141-162 passim, 175-180, 191, 193, 199, 200,

202, 203, 211, 216, 217, 219, 229-239, 253-265 passim,

271-283 passim, 291, 292, 294, 295, 303, 335-338, 340, 349, 352

21 Division Special Squad, 143

BCI, 15, 16, 18, 20, 71, 73, 84-94, 102, 107-112, 115, 121-126

passim, 136, 138, 143, 146-148, 155, 158, 160, 162-164, 175,

176, 178-181, 188, 190-192, 202-204, 216-222 passim, 230, 232,

234, 239, 255-259, 276-279, 283, 335

CIB, 81, 83, 84-93 passim, 110, 111, 112, 113, 114, 118, 119, 120,

121, 230' 278

Commissioner, 5, 8, 15, 16, 19, 40, 43, 44, 65, 76, 77, 81, 216, 222,

325, 330

Communications Branch, 81, 82

Document Examination Bureau, 259, 278

Drug Squad, 116, 147, 158, 159, 164 Electronics Facilities Section, 82, 83 Gaming Squad, 149, 150, 182

general, 40, 51, 61, 96, 99, 108, 114, 116, 117, 120, 125, 264, 265

Internal Affairs Branch, 5, 82, 124, 254, 335 Major Crime Squad, 160

Observation Squad, 93

Organised Crime Squad, 163

Personnel Branch, 123 Radio Technical Unit, 81

Regional Crime Squad South, 164

- 423 -

Scientific Investigation Section, 278 Scientific Technical and Other Services Branch, 83, 119 Staff Deployment and Analysis Unit, 123 Special Breaking Squad, 156, 157, 160, 261 Special Task Force, 10, 124, 253-259, 261, 265, 275-283 passim, 335 Surveillance Squad, 154 Technical Survey Unit, 15, 16, 72, 73, 83-126 passim, 135-164 passim,

175-191 passim, 199-204, 216, 217, 218, 229-232, 235, 239, 255,

259, 260, 276, 277, 278, 280, 289

NSW Police Association, 324

NSW Police Department, 82, 94, 98, 99, 100, 101, 102, 179, 259, 260

NSW Police Special Task Force, 10, 124, 253-259, 261, 265, 275-283

passim, 335

NSW Premiers Department, 216

NSW Privacy Committee, 324, 325, 327

NSW Royal Commission into Drug Trafficking (Woodward Royal Commission),

155, 215, 225e

NSW Society for Labor Lawyers, 324, 325

NSW Solicitor-General, 7, 8, 253, 254, 256

Newman, E.D., 157

Newman, L., 113

Ng, Ching Hung, 160, 161

Noonan, L., 160

Nugan Hand Group, 353

O'Connor, P., 218, 219 Ogg, M.K., 88, 89, 127e, 129e, 169e, 202, 223e, 288, 289, 290, 298e, 299e

Orme, w., 327

Owens, G.R., 127e, 168e, 169e, 295

Pacific Communications Pty Ltd, 236, 237, 246, 247, 248 Palmer, J.F., 90, 91, 121, 127e, 130e

Papa Delta, 164

Papworth, K.S., 101, 102, 129e, 229-240e passim

Parkin, C.R., 144 Parliamentary Papers 168/1984, 267e,

271/1984, 267e

Pasta see Lucerne/Pasta Peisley, F., 219, 220 Pentridge Gaol, 162

- 424 -

Phillips, R.J., 207, 208, 213, 214, 215, 223e, 224e, 225e Pickaxe see Aura/Pickaxe/Snooker PK Electronic, 246

PMG Department Telecom, 55

Poda Enterprises Pty Ltd, 150

Police Regulation Act, 1899 (NSW), 343 Porteous, W., 144 Post, 218, 219 Post and Telegraph Act 1901, 55, 63 Preliminary Analysis of the NSW Police Tapes of M.J. Ryan, 74, 75 Pressure Point ABC program, 14 Prime Minister, Great Britain, 55

Pry, J.M., 11, 253-261 passim, 267e, 281, 335 Pyrex, 207, 208

Quade, C.C.H. C.C.

Queensland Government, 3

Queensland Law Society, 324, 328

Queensland Police, 86

Rabid, 75, 147, 148, 199, 201, 203, 256, 285, 286 Radish, 143

Regan, S.J., 85 Report of Special Prosecutor, Ian Temby Q.C., into the Age Material,

267e, 356e

Report of the Australian Royal Commission of Inquiry into Drugs, 223e

Reserve Bank, 44

Reynolds, D.A., 163, 164, 233, 234

Ricciuiti, D., 153

Richards, W.A., 218, 219 Riley, E.J., 153 Riley, M.S., 85, 109, 144, 163, 233 Ripka, G., 150, 169e

Rippon, T., 325

Roberts, H.K., 253, 254 Robinson, T.P., 223e

Rogers, K.W., 209, 210

Rosenfeld, N., 244, 245 Royal Australian Navy, 144, 151

- 425 -

Royal Commission into The Activities of the Federated Ship Painters and

Dockers Union, 354

Royal Commission of Inquiry into Drug Trafficking, 3-22e passim, 42, 44,

49, 71, 125, 144, 168e, 277, 335, 336, 340, 352, 353, 356e

Royal Commission of Inquiry into Organised Crime in NSW Clubs, 84

Royal Commission of Inquiry into the Activities of the Nugan Hand Group,

4, 36, 42, 44, 44e, 49, 51, 353, 356e

Royal Commission on Tribunals of Inquiry Salmon Royal Commission

Royal Commissions Act 1902, 28, 41, 42, 43, 278, 352, 353, 355

Royal Commissions Act, 1923 (NSW), 21

Royal Commissions (Amendment) Act, 1985 (NSW), 21

Rudd, A.L., 88, 289, 298e

Ryan, M.J., 10, 11, 73, 74, 75, 136, 137, 138, 146, 147, 148, 199-204,

256-259, 263, 273, 279-293 passim, 299e, 336

Salmon Royal Commission, 37, 39, 44e

Saw, Kenneth Kuan Lin, 208, 209

Sayers, M., 88, 89 Schuberg, G.E., 88, 115, 127e, 129e, 130e, 168e, 169e

Schurr, B., 325 Scott-Xtec Pty Ltd, 246, 249 Secretary of State, Great Britain, 55 Seedsman, J.J., 156, 170e, 283

Senate, 7, 9, 15, 20, 264, 265, 266

- 426 -

Senate Select Committee on Allegations Concerning a Judge, 265, 266 Senate Select Committee on the Conduct of a Judge, 9, 14, 22e, 264, 265, 266

Shaw, J.A., 190, 195e

Shelley, G., 73, 77e, 163, 164, 17le, 183, 233, 240e Shepherd, R.C., 111, 112, 121-130e, 135, 160,

167e, 192, 194e, 195e, 203, 220, 232, 234, 239e, 240e, 257, 286,

287, 298e, 335

Silvester, F.A., 12, 176-186, 193, 194e, 195e Silvester, J.L., 5, 8, 12, 13, 2le, 22e, 71

Sinclair, G., 145 Sinclair, W.G., 145 Sipe Electronic GMBHJ, 246

Skiadas, C. , 219 Slade, G.W., 71, 76, 77e, 17le, 195, 240e Slim, 163, 233 Slucher, R.F., 101, 110, 123, 124, 128e, 129e, 130e, 168e, 191, 287, 290,

298e, 299e

Smaills, A.L., 168e, 216, 217, 218, 225e Smaills -'C District Smaills', 294, 295

Smelstorius, J.J.A., 178, 185, 186, 188, 194e, 195e Smith, A.S. 'Neddy', 115, 145, 146 Smith, E.J. 'Jockey', 233 Smith, E.W. 'Teddy', 145 Smith, G.P., 72, 77e, 81-83, 94, 95, 123, 124, 126e, 127e, 148, 168e,

169e, 178, 180, 185, 193e, 194e, 201, 286, 288, 289, 290, 295,

298e

Smith, R.B., 160, 170e, 17le

Snooker see Aura/Pickaxe/Snooker

Soffe, P., 141 South Australia Police, 328, 330

South Australian Police Association, 324

Southern Comfort, 11, 72, 76, 142, 143, 256, 285, 289

Southwell, R.J., 219, 225e

- 427 -

Special Commissions of Inquiry Act, 1983 (NSW), 8 Special Minister of State, Department of, 51, 253, 305 Special Premiers Conference on Drugs, 342 Special Prosecutor, 6, 7, 10, 12, 13, 22e, 26, 28, 71-76, 123, 124, 253,

256, 261, 262, 264, 267e, 272, 274, 277, 279, 288, 335

Special Prosecutors Act 1982, 26, 28, 253 Special Task Force see NSW Police Special Task Force Spencer, S.P., 128e, 167e, 240e, 291 , 299e St Vincents Hospital, 285 Stackpool, R.T., 113, 114, 119, 120

Stamper, 156

Stanton, W.S., 95, 98, 100, 124, 128e, 129e, 130e, 168e, 169e, 201, 223e, 235, 239e, 240e, 286, 288, 290, 298e, 299e

Steer, J.I., 164, 165, 171e Stein, D., 142 Stephen, The Hon. Mr Justice, 67 Stevenson, R.H., 90, 100, 115, 178, 181, 216

Stewart, The Hon. Mr Justice, 3, 4, 7, 14, 18, 20, 21, 22e, 26, 44e, 51,

326, 335, 352-355

Sturgess, G., 74, 75 Suchy, J.M., 142, 168e

Sumner, L.J., 157

Sun (Melbourne), 8

Supreme Court of New South Wales, 21, 66, 266

Supreme Court of Tasmania, 63, 64

Supreme Court of Victoria, 63, 64

Sweeney, -., 184

Sweeney, J.P., 127e, 130e, 170e

Sydney Airport, 156

Sydney Morning Herald, The, 8

Tam, Danny Siu Wing, 161 Tandy Australia Ltd, 88, 244-247

Tang, Pak, 161

Tate, Senator M.C., 265, 266 Taylor, J.P. 'Joe', 293 Taylor, 0., 254, 260, 261, 267e Taylor, W.C. and Scott, 16, 125

- 428 -

Telecom, 55-66 passim, 93-97, 101-107, 109, 122, 151, 163, 164, 178, 206,

208, 212, 213, 214, 229-235, 238, 239, 243, 284, 305-309, 324,

329, 340, 346-350, 355 Telecommunications Act 1975, 58, 60, 62, 63

Telecommunications (Interception) Act 1979, 8, 13, 14, 15, 17, 18, 26,

28, 42, 43, 57, 61, 64, 66, 67, 125, 203, 262, 303, 307, 309,

324, 330, 342, 343, 344, 350, 353 Telecommunications (Interception) Amendment Act 1985, 21, 351

Telecommunications (Interception) Amendment Act (No. 2) 1984, 15

Telecommunications (Interception) Amendment Bill 1985, 20

Telephonic Communications (Interception) Act 1960, 56, 61, 62, 63, 64, 350 Temby, I.D., Q.C., 6, 7, 10, 13, 14, 15, 19, 20, 22e, 71, 253, 265, 267e,

277, 288, 335

Terrason, A., 254 Thelander, W., 144 Thomas, D.W., 281, 282, 284, 293

Thompson, D.S., 158

Thompson, M., 158

Thorne, R., 209, 210

Tiki Coffee Lounge, 140 Travers, J.A., 150, 169e, 225e Treharne, R.I., 125, 127e, 129e, 136, 167e, 168e, 287, 288, 290, 298e, 299e

Trident, 73 Trimbole, R., 4-9, 12, 14, 18, 71, 72, 74, 76, 155, 156, 179; 256, 277,

283' 284' 290

Turnbull, M., 206 Tyson, W.M., 152

- 429 -

United States Continuing Criminal Enterprises Legislation, 328

United States Racketeering Influenced and Corrupt Organisations Legislation, 328 Untouchables, The, 86 Uranus, 207, 211

Van Dyke, C., 152

Vaucluse, 218, 220

Vickers, G.W., 165, 17le, 240e Victoria Police, 27, 40, 51, 61, 148, 149, 150, 158, 175, 176, 181, 188, 193, 199, 232, 271, 289, 291, 338

Audio Visual Division, 279

BCI, 73, 90, 93, 149, 157, 162, 176, 177, 178, 179, 180, 181, 182,

184, 186, 187, 189, 190, 192, 193, 200, 277 Chief Commissioner, 40, 44, 193, 325, 330 Homicide Squad, 176

Surveillance Unit, 176, 177, 181 Tactical Section, 187 Technical Unit, 177, 181, 184, 185 Victorian Council for Civil Liberties, 324, 325 Victorian Director of Public Prosecutions, 40 Victorian Government, 3, 21, 27, 49, 50, 51, 175, 271, 325 Victorian Law Society, 324, 328 Victoria Police Association, 324, 325, 329

Wallis, P.C., 176-187 passim, 193, 193e, 194e, 195e Walsh, J.A., 148, 149, 169e, 181, 182, 183, 194e

Wardell, A.E., 157, 158, 188, 189, 190 Wares, I.N., 127e

Watkins, C.R., 168e

Watson, P.J., 114

Webb, P., 254

Webster, Judge W.H., 340

Weir, J., 158, 159, 160

Wells, A.C., 237, 238, 240e

- 430 -

Western Australian Police Association, 324, 325, 329

Western Australia Police, 141, 329, 330

Western Suburbs Soccer Club, 124

Whelan, B.J. 'Jack', 281, 282

Wiggins, R.D., 169e, 286, 287, 288, 290, 298e, 299e

Williams, D.R., 81-84, 94, 95, 98, 118, 126e, 128e, 130e, 135, 140, 141, 167e, 168e

Williams, F.J., 237 Williams, M.E., 190, 195e

Williams, Mr Justice, 205, 206, 215, 326 Williams Royal Commission see Australian Royal Commission of Inquiry into

Drugs

Williams, T.J., 152

Williams, T.J., 169e Williamson, I.A., 141

Willis, J.M., 168e, 169e, 216-220, 225e Wilson, D. and I., 4

Withers, J.F., 71, 77e, 220, 221, 225e, 290, 299e Wood, M.T., 114, 115, 130e, 143, 168e

Wooden, J.E., 129e, 158, 159, 160, 168e, 170e, 17le

Woods, D.W., 190

Woods, Sir Colin, 14, 202, 223e

Woodward, Mr Justice, 215, 326

Woodward Royal Commission see NSW Royal Commission into Drug Trafficking

Wran, The Hon. N.K., Q.C., M.P., 7, 124

Wright, R., 162, 190, 191, 192

Yu, Kim Ming, 161

Yugoslav Bombing Inquiry, 83, 141

Zoomtop, 218, 219

- 431 -

TABLE OF CASES CITED

Bunning v Cross (1978) 19 ALR 64; 67

Bunning v Cross (1978) 144 CLR 54; 356e

Cleland v R (1982) 43 ALJR 619; 356e Cleland v R (1983) 57 ALJR 15; 68 Gibson v Mitchell (1928-29) 2 ALJR 333; 55

Harvey v Baumgart _(l965) VR 632; 63

Hilton v Wells (1985) 58 ALR 245; 45e, 67,356e Miller v Miller (1978) 141 CLR 269; 65 National Companies and Securities Commission v News Corporation Limited 52 ALR 417;

44e, 45e

R v Curran and Torney (1983) 2 VR 133; 64

R v Ireland (1970) 126 CLR 321; 68e, 356e

R v Migliorini (1981) 4 A Crim R 458; 64

R v Padman (1979) 25 ALR 36; 63 Russell v Duke of Norfolk [1949] 1 All ER 109; 44e