Tasmania Police respects the court’s decision in relation to the Thompson matter.
While this was a technical breach of legislation and Tasmania Police did not listen to any other conversations not covered by the warrant, we acknowledge the importance of our community having trust and confidence in our organisation.
As such, we have taken immediate steps to address the issue identified and a review of procedures to ensure there is clear guidance to police officers in relation to the use of surveillance devices has been completed.
In addition, today I am announcing an independent review by former Solicitor-General Michael O’Farrell SC of this matter to ensure appropriate processes have been followed.
The report will be made public.
While Tasmania Police respects the court’s decision, it must be read in its entirety.
The facts are:
- In June 2017 a police officer involved in an investigation into an alleged conspiracy to pervert the course involving Jeffrey Ian Thompson and five other persons applied to a magistrate for the issue of a surveillance device warrant under the Police Powers (Surveillance Devices) Act The warrant was sought to authorise the recording of meetings between a prisoner, Stephen Gleeson and Mr Thompson or the other persons suspected of engaging in the conspiracy.
- The application was made in response to information that Mr Thompson and others were attempting to have Mr Gleeson produce false evidence for use in Ms Sue Neill-Fraser’s second appeal against her conviction for the 2009 murder of Bob Chappell.
- A magistrate issued a surveillance device warrant on 13 June 2017 for a period of 90 days. The warrant authorised the installation and use of surveillance devices in visitor rooms at the Risdon Prison complex utilised by Mr Gleeson. On 15 June 2017, police installed two devices in a meeting room at the Prison. They were retrieved on 17 August 2017. One device recorded conversations to a hard drive. The other device could be directly monitored by police. The only occasion it was monitored was on 16 June 2017 whilst a meeting between Mr Thompson and Mr Gleeson took place. The hard drive recording conversations was accessed by police on 21 June 2017. The only conversation listened to by police was the conversation between Mr Gleeson and Mr Thompson on 16 June 2017. That was the only conversation retained by police. Whilst the surveillance devices remained in place until 17 August 2017, no further use was made of their product after 16 June 2017.
- The conversation which occurred between Mr Thompson and Mr Gleeson on 16 June was not subject to legal professional privilege because Mr Thompson was not acting in his professional capacity as a lawyer at the time or assisting a lawyer. In any event, legal professional privilege does not protect communications made in furtherance of the commission of a criminal offence.
- While the hard drive may have captured other conversations which were subject to legal professional privilege they were not listened to, or retained by, Tasmania Police.
- The conversation between Mr Thompson and Mr Gleeson on 16 June 2017 led to both of them being indicted by the Director of Public Prosecutions with the crime of Pervert the Course of Justice. Mr Gleeson pleaded guilty to that crime in March 2018 and was sentenced to 12 months imprisonment.
- Mr Thompson pleaded not guilty, and his trial commenced before Justice Brett in March 2022. His Honour ruled the surveillance device warrant to be unlawful as it referred to Section 297(2) of the Criminal Code, rather than Section 297(1) which creates the offence of conspiracy to pervert justice. As a result of that ruling, His Honour was required to exercise a discretion whether to permit the evidence obtained under the warrant to be admitted into evidence on the trial of Mr Thompson. His Honour excluded the evidence based on his concerns that the application for the surveillance devices warrant did not adequately address the risk of surveillance devices installed in the meeting room at the Risdon Prison complex capturing conversations between other prisoners and their lawyers.
In his judgement, Justice Brett expressed his satisfaction “that the police made a genuine attempt to obtain the relevant lawful authorisation and, believed, and were entitled to believe, that the warrant had been validly issued before they recorded the conversation.”
His Honour also acknowledged that “while it appears that police did not deliberately set out to break the law, there was also an obvious misunderstanding or ignorance of the significant risks inherent in their task…”.
Tasmania Police took immediate steps to address the issues identified in Justice Brett’s decision. A review of procedures to ensure there is clear guidance to police officers in relation to the use of surveillance devices has been completed.
While Tasmania Police is disappointed in the outcome of this prosecution of Mr Thompson, we respect Justice Brett’s decision. It is noted that His Honour rejected a submission by Defence Counsel that the evidence considered by the magistrate who issued the surveillance devices warrant was insufficient to justify the issuing of the warrant. His Honour made the following observations as to the sufficiency of the evidence considered by the magistrate:
“Of course, it was not necessary for the suspicion or belief to relate to an offence to which the accused was a party. However, the evidence in the affidavit does, in my view, provide a strong basis for a suspicion or belief that he was involved in the alleged conspiracy, if not as a knowing participant, then at the very least, as a means of giving effect to its execution.”
“Although the affidavit asserts a suspicion or belief that both Gleeson and the accused are involved as knowing participants in the conspiracy, this was not necessary to justify the issue of the warrant. It was enough to suspect or believe that the proposed conversation and other potential conversations which might take place between Gleeson and persons named in the affidavit during the life of the proposed warrant in the prison would provide evidence of the conspiracy. I am satisfied that the evidence in the affidavit established reasonable grounds for a suspicion or belief of that nature.”
I welcome the independent examination of this matter and welcome any opportunity to ensure the transparency and accountability of our organisation.
The full judgement can be accessed here: https://classic.austlii.edu.au/au/cases/tas/TASSC/2022/55.html
Darren Hine
Commissioner
