[2026] SADC 9

Prosecution: R Counsel: MRS J POWELL SC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: ILIJAN KOLAJ Counsel: MR R WILLIAMS SC, WITH HIM MS T FALTING - Solicitor: CRAIG CALDICOTT LAWYERS Defendant: SONIARD MRISHAJ Counsel: MR P DUNN KC, WITH HIM MR B LODGE - Solicitor: PATSOURIS AND ASSOCIATES Hearing Date/s: 12/03/2025, 13/03/2025, 15/03/2025, 17/03/2025, 18/03/2025, 19/03/2025, 21/03/2025, 24/03/2025, 26/03/2025, 27/03/2025, 19/08/2025, 21/10/2025, 23/10/2025, 10/12/2025, 15/12/2025 File No/s: DCCRM-23-020614 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v KOLAJ AND MRISHAJ [2026] SADC 9 Reasons for Rulings of his Honour Judge Handshin 13 February 2026 CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - GENERALLY COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - WARRANTS AND AUTHORISATIONS COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES Applications for the exclusion of evidence. The applicants are charged with attempting to traffic a large commercial quantity of cocaine and various other offences against the Controlled Substances Act 1984 (SA) and Criminal Law Consolidation Act 1935 (SA) (Mrishaj only). The charges arise out of the interception by law enforcement authorities of just under 4kg of cocaine that had been imported into the country. The consignee of the intercepted package was a person by the name of ‘DR’. Following the interception of the package and the discovery of its contents, a police investigation commenced into DR and what was suspected to be a broader drug distribution network with which he was associated. As part of that investigation, police conducted an undercover operation pursuant to the Criminal Investigation (Covert Operations) Act 2009 (SA) (CICO Act) and deployed various surveillance devices, pursuant to a warrant issued under the Surveillance Devices Act 2016 (SA) (SD Act) or which were otherwise said to be lawfully used in accordance with provisions of the SD Act. These aspects of the police investigation commenced with a controlled delivery of the intercepted package, reconstituted to contain an inert substance and various surveillance devices. The package was delivered to the consignment address by an undercover police officer posing as a delivery driver. Thereafter, the -- 1 of 108 -- consignee of the package, DR, was seen to leave the consignment address in a vehicle. His movements were followed by an aerial asset operated by South Australia Police. That aerial asset ultimately recorded DR transferring the package into another vehicle said to be connected to the applicant Kolaj. The applicant Kolaj was later record transferring the package to a vehicle said to be connected to the applicant Mrishaj, before both men allegedly made their way to a residence where, on the prosecution case, they made attempts to dismantle the package. Their attempts were captured by the surveillance devices secreted within the package. When police arrived at those premises to arrest the applicants, they fled. Prior to trial, the applicants brought applications seeking the following orders: 1. To exclude all evidence obtained in the course of the ‘undercover operation’, involving the controlled delivery of the substituted package by an undercover operative (U103), and its sequelae, on the basis that the undercover operation approval was invalid or did not otherwise authorise the conduct engaged in by police. 2. To exclude all evidence obtained by the surveillance devices installed within the package on the basis that the warrant issued under the SD Act was invalid in that it was bad for uncertainty; did not comply with the requirements of the SD Act; and did not authorise the use of a combined ‘listening and optical surveillance device’. 3. To exclude the recording made by the aerial asset, which was said to use a ‘tracking device’ within the meaning of s 3 of the SD Act and not an optical surveillance device, on the basis that it was unlawfully made as no warrant had been obtained for the use of a tracking device and no other provisions of the SD Act permitted the use of a tracking device without a warrant. 4. To exclude evidence of the applicants fleeing premises associated with the police investigation on the basis that the evidence is not admissible as ‘flight’. 5. To exclude evidence that a particular vehicle (an Aurion) was registered in the name of Kolaj on the ground that a jury may conflate registered ownership with actual ownership of the vehicle and use that adversely to Kolaj when considering whether he was in knowing possession of cocaine found in a concealed compartment in the vehicle. 6. An application by Kolaj inviting the prosecution to lead evidence that the cocaine found in the Aurion and the cocaine found at the Cheadle Street premises had a shared ‘processing methodology’, which is said to indicate the cocaine had a common provenance, relevant to the possibility that Mrishaj and not Kolaj was in possession of the cocaine found in the Aurion. Held: dismissing the applications, other than with respect to the evidence of flight. 1. The undercover operation approval was valid and the conduct of U103 was authorised by the terms of the approval. a. On its proper construction, the CICO Act does not require an approval to specify the serious criminal behaviour (or a particular offence amounting to serious criminal behaviour) to which the approval relates. Section 4(4) of the CICO Act exhaustively prescribes the matters that must be included in an approval. b. In any event, to the extent that the approval needed to identify the serious criminal behaviour to which it related, it did so adequately. The approval described the relevant behaviour as involving ‘offence/s against the CS Act’ and drug ‘trafficking’. It is immaterial that, following the substitution of the cocaine with an inert substance, the only offence that could have been committed in relation to the package was ‘attempted’ trafficking. The focus of the undercover operation went beyond the detection of an offence relating to the re-constituted package. It extended to the broader drug-trafficking enterprise connected with DR and his associates. c. Any imperfection in the approval’s description of the serious criminal behaviour to which it related is, in any event, inconsequential and does not suggest that the issuing officer was -- 2 of 108 -- not, or could not have been, satisfied of the jurisdictional grounds required to issue the approval. d. The approval was not bad for uncertainty because it authorised participants to engage in conduct ‘relative to the trafficking of controlled drugs’. The approval permitted engagement in conduct having a sufficient connection to drug trafficking activity, which plainly encompassed the controlled delivery of a package that had been imported into the country containing almost 4kg of cocaine and investigative action directed to the drug distribution network with which DR and his associates were reasonably suspected to be involved. e. The approval (and the common law implied licence) authorised U103 to deliver the package, as modified, to the consignment address and, to the extent necessary, to enter onto the consignment address, even if doing so would otherwise have amounted to a trespass. 2. The SD Act warrant was valid and authorised the use of the devices secreted within the package. The use of devices on U103’s person was also lawful. a. The combined effect of ss 16, 17 and 19 of the SD Act is that a warrant need only ‘specify’ premises or vehicles within the meaning of s 19(2)(b)(ii) if: (1) devices are to be used ‘on or in premises or vehicle’ which contemplates a static or semi-static use of the devices to record events taking place in the premises or vehicle; (2) where an agency requires authority to enter or interfere with premises or a vehicle in order to install, use, maintain or retrieve surveillance devices. b. On the assumption that SAPOL required authority (not otherwise conferred by the approval) to enter onto the Kym Street premises in order to use the surveillance devices, those premises had to be specified in the warrant. As SAPOL did not need to enter onto the Cheadle Street premises in order to continue to use the surveillance devices after their delivery to Kym Street, the Cheadle Street premises did not need to be specified and nor did any vehicles in which the package was transported. The devices were not used ‘on or in’ the Cheadle Street premises or vehicles in the relevant way. c. The warrant complied with the requirements of s 19 of the SD Act. Insofar as the warrant authorised interference with the ‘package’, the package was specified. Insofar as the warrant authorised entry on or interference with premises in order to use, install, maintain or retrieve the devices, the warrant sufficiently specified those premises by reference to two circumstances: the location of the package and the time of entry or interference. There was therefore no uncertainty about the premises to which entry or interference was authorised and when. As U103 conveyed the package onto the Kym Street premises, the presence of the package coincided with the time of entry and the conditions of the warrant were met. d. The warrant authorised the use of a combination ‘listening and optical surveillance device’. The SD Act does not regulate the use of combination devices separately to the devices which they integrate. To discharge the requirement that a warrant specify the ‘kind of surveillance device’ to which it relates, it is not necessary for reference to be made to a ‘combination device’. As the warrant authorised the use of listening and optical surveillance devices of the same or greater number than devices of those characteristics that were installed in the package, the use of the combined ‘listening and optical surveillance device’ was authorised. e. The use of the devices may also have been in accordance with ss 4 and 5 of the SD Act in that they were used by or on behalf of a person authorised to participate in the undercover operation, and their use was otherwise in the public interest. 3. The evidence obtained by the aerial asset was admissible: -- 3 of 108 -- a. The device associated with the aerial asset was not a tracking device but an optical surveillance device or, at the very least, was used as an optical surveillance device, and not a ‘tracking device’, on 10 March 2022. b. In order to avoid rendering the provisions of the SD Act that regulate and permit the use of optical surveillance devices obsolete, the definition of a ‘tracking device’ should be understood as requiring that the device, itself, is able to determine the whereabouts of a person or object, through the provision of some form of geo-positional or location data. c. The use of the device on the aerial asset from a public place to record activities that were readily observable and primarily occurring in public locations was not prohibited under the SD Act and, in any event, the use of the device was in the public interest. 4. The evidence of the applicants fleeing Cheadle Street is admissible, but not as evidence indicative of a consciousness of guilt. The evidence is relevant and admissible to assist in identifying the people who were in the vehicles associated with the exchange of the package; and in the Cheadle Street premises at the time of the police attendance; and to assist the jury in interpreting the sounds and images recorded by the surveillance devices after the package was taken to the Cheadle Street premises. The fact that one of the applicants (on the prosecution case, Mrishaj) disposed of some of the substituted substance is evidence that the package had been dismantled or interfered with and is therefore circumstantial evidence relevant to whether Mrishaj knew or believed there was a reason to dismantle the package. Evidence that Kolaj disposed of latex gloves on a nearby roof is circumstantial evidence that Kolaj was undertaking an activity at or around that time that he considered required, or would benefit from, the use of latex gloves. 5. Evidence that the Aurion was registered in Kolaj’s name is admissible circumstantial evidence of his connection to the car. Whilst registered ownership is not evidence of actual title to the vehicle, a jury can be directed as to the limited use to which registered ownership can be put. 6. Evidence of the common cocaine ‘processing methodology’ is not, in its current form, admissible. Although no application for a temporary stay has been advanced by Kolaj on the basis of the prosecution’s currently stated refusal to lead the evidence, the prosecution could not be constructively compelled to lead inadmissible evidence. Controlled Substances Act 1984 (SA) ss 32(1), (2), (3); Criminal Law Consolidation Act 1935 (SA) ss 138, 270A; Criminal Investigation (Covert Operations) Act 2009 (SA) ss 4(2)(a), (4), (4)(c)(iii), (4)(d), 5, 6, 7, 8, 9, 10, 11, 12, 13, 19(c); Surveillance Devices Act 2016 (SA) ss 3, 4(2), 5(4), 7(1), (2), 8, 9(1), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19(1), (2), (4), 39; Legislation Interpretation Act 2021 (SA) s 14; Acts Interpretation Act 1901 (Cth) s 15AA; Undercover Operations Act 1995 (SA) s 4; Police Administration Act (NSW) s 126(2A); Narcotic and Psychotropic Drugs Act 1934 (SA); Motor Vehicles Act 1959 (SA) s 140(2); Evidence Act 1929 (SA) s 53; Poisons and Therapeutic Goods Act 1966 (NSW); Customs Act 1901 (Cth), referred to. Bunning v Cross (1978) 141 CLR 54; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Coco v The Queen (1994) 179 CLR 427; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Lindsay v The King (2022) 142 SASR 175; R v M, I [2018] SASC 24; R v Albu (1995) 65 SASR 439; R v Ridgeway (1998) 72 SASR 73; R v Giaccio (1997) 68 SASR 484; R v Rowe (1998) 71 SASR 389; Harvey v Police (2006) 95 SASR 357; Smethurst v Commissioner of Police (2020) 272 CLR 177; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473; Ousley v The Queen (1997) 192 CLR 69; Johnson v Miller (1937) 59 CLR 467; R v Meng Kok Te [1998] 3 VR 566; Tran Nominees v Scheffler 1986) 42 SASR 361; R v Shaefer and ors [2004] SADC 185; Beneficial Finance Corp Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523; Harts Australia Ltd v Commissioner of Australian Federal Police (1997) 94 A Crim R 177; Chong v Schultz (2000) 112 A Crim R 59; Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; R v Trabolsi [2018] SASCFC 57; Joyce v Beach petroleum NL & S Cortaus Ltd (in liq) (1996) 67 FCR 275; Halliday v Nevill (1984) 155 CLR 1; Roy v O’Neill (2020) 272 CLR 291; Robson v Hallett [1967] 2 QB 939; Tararo v The Queen [2010] NZSC 157; R v Bunting and Wagner (No 4) [2003] SASC 252; Lockwood v The Commonwealth (1954) 90 CLR 177; Brown -- 4 of 108 -- v West (1990) 169 CLR 195; John Holland v Industrial Court of New South Wales [2010] NSWCA 338; R v Romeo (1982) 30 SASR 243; Police v Grozev [2006] SASC 353; Watkins v The Queen (2015) 257 A Crim R 436; O’Sullivan v Farrer (1989) 168 CLR 210; Channel Seven Perth Pty Ltd v S (a company) [2005] WASC 175; Re Greyhound Racing SA Ltd [2023] SASC 63; Groom v Police (SA) [2015] SASC 101; R v Power (1996) 87 A Crim R 407; R v Burns (2009) 103 SASR 514; Nguyen v The Queen (2020) 269 CLR 299; R v MSP [2025] SADC 40; Love v Attorney-General (NSW) (1990) 169 CLR 907; Grollo v Palmer (1995) 184 CLR 348; Hart v Commissioner, Australian Federal Police (2002) 124 FCR 384; R v Tillet; Ex parte Newton (1969) 14 FLR 101; Parker v Churchill (1985) 9 FCR 316, 319; State of New South Wales v Corbett (2007) 230 CLR 606; Williams v Keelty (2001) 111 FCR 175 ; Fragos v The King (2023) 142 SASR 314; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; SZTAL v Minister for Immigration and Border Protection [2017] 91 ALJR 936, considered. -- 5 of 108 -- -- 6 of 108 -- R v KOLAJ AND MRISHAJ [2026] SADC 9 Criminal 1 Ilirjan Kolaj (Kolaj) and Soniard Mrishaj (Mrishaj) (collectively the applicants) are charged with attempting to traffic a large commercial quantity of cocaine, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (CS Act) and in the alternative, attempting to traffic cocaine contrary to s 32(3) of the CS Act. 2 Kolaj is further charged with trafficking a commercial quantity of cocaine, contrary to s 32(2) of the CS Act.1 This charge relates to 361g of cocaine found during a search conducted on 25 March 2022 of a gold Toyota Aurion registered in Kolaj’s name, during which a locked compartment concealed behind the radio console was discovered. The cocaine the subject of this charge was secreted inside the concealed compartment. 3 Mrishaj is charged separately with trafficking cocaine contrary to s 32(3) of the CS Act2 and four counts of money laundering contrary to s 138 of the Criminal Law Consolidation Act 1935 (SA).3 The trafficking charge concerns 13.9g of cocaine in three separate resealable bags found on a shelf in the garage of premises said to have been used or occupied by him at 27A Cheadle Street, Fulham Gardens (Cheadle Street premises). The money laundering charges relate to, in total, half a million dollars in cash found at the same premises during a police search. 4 The charges arise out of a police operation that commenced following the interception of a ‘smoke machine’ purportedly imported by a person I will refer to as ‘DR’. The smoke machine was to be delivered to premises at 8 Kym Street, Athelstone (Kym Street premises). 5 Following its arrival in Australia on 2 March 2022, the smoke machine was examined by Australian Border Force officers and found to contain 3.8kg of cocaine. 4 6 Thereafter, South Australia Police (SAPOL) commenced an operation to perform a ‘controlled delivery’ of the package. To this end, on 7 March 2022, Detective Brevet Sergeant Trudie Pursche made an application to Detective Superintendent Jeffery, the Chair of the Covert Operation Approval Committee (COAC) of SAPOL, for approval to conduct an undercover operation pursuant to the Criminal Investigation (Covert Operations) Act 2009 (SA) (CICO Act). 7 On 9 March 2022, the COAC met to consider the application. Having addressed the criteria for the approval of an undercover operation prescribed by 1 This is count 3 on the Information dated 18 March 2025. 2 This is count 4 on the Information dated 18 March 2025. 3 Counts 5 to 8 on the Information dated 18 March 2025. 4 T19. -- 7 of 108 -- [2026] SADC 9 2 the CICO Act, Detective Superintendent Jeffery approved the application (the approval). 8 The approval relevantly records the following:5 In accordance with section 4 of the Act I, James Andrew Jeffery, being a member of the Police Force of or above the rank of Superintendent hereby approve an undercover operation for the purpose of gathering evidence of serious criminal behaviour, namely: Offence/s against the Controlled Substances Act 1984. … In approving this undercover operation I • suspect, on reasonable grounds, that persons have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the undercover operation relates. My grounds include: I am reliably informed that: Refer Covert Investigation Application of Detective Brevet Sergeant Trudie Pursche relative to [DR]. • I am satisfied on reasonable grounds that the ambit of the proposed undercover operation is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour. My grounds include: [Redacted]6 • I am satisfied on reasonable grounds that the means are proportionate to the end; that is that the proposed undercover operation is justified by the social harm of the serious criminal behaviour against which it is directed. My grounds include: [Redacted] • I am satisfied on reasonable grounds that the undercover operation is properly designed to provide persons who have engaged, are engaging or are about to engage in serious criminal behaviour an opportunity (i) to manifest that behaviour; or (ii) to provide other evidence of that behaviour without undue risk that persons without a pre-disposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided. My grounds include: - The operation is directed at the drug distribution network of [DR] and/or person/s acting in concert with him and/or any of his associates, who are 5 VDD2-5. 6 The redactions appear on the on the exhibit as tendered. -- 8 of 108 -- [2026] SADC 9 3 suspected of being involved in the trafficking of controlled drugs contrary to the Controlled Substances Act, 1984; and - The operation is only intended to provide those persons who are suspected of being involved in the trafficking of controlled drugs contrary to the provisions of the Controlled Substances Act 1984, with the opportunity to undertake that course of action. • I have considered whether approval for similar operations has previously been sought, and, if sought and refused, the reasons for that refusal. • The persons authorised to participate in the undercover operation may engage in the following conduct, namely: - To make contact with [DR] and/or persons acting in concert with him and/or any of his associates and take part in the conversations and/or actions relative to the trafficking of controlled drugs contrary to the Controlled Substances Act 1984, for evidentiary purposes; and - To traffic in controlled drugs with and/or from any persons as described above, contrary to the provisions of the Controlled Substances Act 1984, for evidentiary purposes; and - To possess controlled drugs as part of the above activity, contrary to the provisions of the Controlled Substances Act 1984, for evidentiary purposes 9 On 10 March 2022, a controlled delivery of the package took place at the Kym Street premises. The delivery address was taken from the original consignment note accompanying the package. Delivery instructions for the package indicated that the consignee wanted it left inside the ‘side gate’. 10 Obviously enough, the package that was in fact delivered to the Kym Street premises in purported compliance with the approval did not include the cocaine that had been intercepted. Rather, the package contained an inert substance that had been substituted in place of the cocaine. Secreted within the package were two surveillance devices. One was a listening device; the other a ‘listening and optical surveillance device’.7 11 The devices had been placed inside the package in purported conformity with a warrant issued under the Surveillance Devices Act 2016 (SA) (SD Act) by a Judge of the Supreme Court. The warrant8 was in the following terms: The warrant authorises Trudie Pursche, Detective Brevet Sergeant of South Australia Police (the Responsible Officer) and persons acting under the authority of the Responsible Officer • The power to use five (5) surveillance devices, namely two (2) listening devices, two (2) tracking devices and one (1) optical surveillance device. 7 VDP21. 8 VDP14. -- 9 of 108 -- [2026] SADC 9 4 • The power to enter or interfere with a package and the contents of the package, addressed to: [DR] of 8 Kym Street, Athelstone, South Australia (DHL Waybill reference number 2570291065) and any premises where the package may be at that time for the purposes of installing, using, maintaining and/or retrieving surveillance devices as follows: o two (2) listening devices; o two (2) tracking devices; o one (1) optical surveillance device. 12 At around 9:40am on 10 March 2022, an undercover police operative who I will refer to as U103, and who was an authorised participant in the undercover operation, attended at the Kym Street premises for the purpose of conducting the controlled delivery. He was effectively impersonating a DHL delivery driver. 13 Upon arriving, U103 entered onto the property. The premises at Kym Street comprised a brick house with no front fence. The house was on a corner block and had two street frontages. There was no designated footpath around the perimeter of the parcel of land which abutted the roadway and was grassed. A seemingly worn path led from one of the street frontages to a side gate that formed part of an external wall behind which sat an internal courtyard. 14 An affidavit of U103 tendered on the voir dire explains how the package was delivered: I delivered the package to the address walking through the side entrance which was partially open. As I walked into the property I observed a small courtyard strewn with various hard rubbish items. I observed a sliding door into the house which was closed and an open back door. I heard movement from inside the house at which point I called out. [GM], who I identified from image marked DSE2, appeared from the open back door. I had a conversation with [GM] about delivery of the package. I explained that I had a delivery for [DR]. [GM] informed me that [DR] wasn’t home. [GM] initially indicated he wanted me to place the package inside the house by looking back into the house but subsequently directed me to leave it just outside near the open door which I did at which time I left the area.9 15 After U103 delivered the package, the surveillance devices within it were monitored in real time by Detective Pursche. 16 The applicants now challenge the validity of the approval issued under the CICO Act and argue further that, even if it was valid on its face, it did not in fact authorise the conduct that U103 engaged in. The applicants submit that the conduct of U103 involved a trespass and was unlawful, thus enlivening the Bunning v Cross (1978) 141 CLR 54 discretion to exclude the evidence obtained as a result. 9 VDD2-9, [16]-[17]. -- 10 of 108 -- [2026] SADC 9 5 17 Remaining with the factual narrative for now, at around 10:10am, DR arrived at the Kym Street premises and at 10:27am, he was observed leaving the residence carrying the package, which he placed into the boot of a vehicle. These observations were made by an aerial asset using some sort of optical device that was being operated by a police officer, Senior Constable Murphy.10 18 A recording was made of the images captured by the aerial asset and its equipment on the morning of the controlled delivery.11 19 The applicants challenge the lawfulness of the recording made by the aerial asset and its equipment. They contend that the aerial asset used a ‘tracking device’, which was not authorised by the terms of the SD Act warrant or any other provision of the SD Act. It follows, it is submitted, that the use of the device was unlawful and the information and material thereby obtained either inadmissible (by virtue of certain provisions of the SD Act) or liable to exclusion on discretionary grounds. 20 Returning to an overview of events, the vehicle DR left the Kym Street premises in was observed visually via the aerial asset to ultimately travel to the Fulham Gardens Shopping Centre on Tapleys Hill Road, where it was seen to be driving in circuits around a car park before departing. 21 The vehicle then made its way to Keith Avenue, Fulham Gardens where DR was seen to get out and place the package into the rear seat of a waiting gold Toyota Aurion that was registered in the name of Kolaj. Kolaj objects to evidence that the vehicle was registered in his name on the basis that a jury may confuse registered ownership with actual ownership, which is important, it is submitted, to count 3 of the Information - a charge of trafficking a commercial quantity of cocaine against Kolaj only. As I have earlier said, the cocaine the subject of that charge was located in a concealed compartment of the Aurion that had a reasonably sophisticated electro-magnetic lock. 22 After the hand-over of the package from DR’s vehicle to the Aurion, the aerial asset observed the Aurion as it travelled to Rivett Avenue, Fulham Gardens where a male was seen to exit the front passenger seat and walk and run to the Cheadle Street premises. It is the prosecution case that this was the applicant Mrishaj, who, it is alleged, has some connection to the Cheadle Street premises. 23 A few minutes later, a grey Audi left the driveway of the Cheadle Street premises and appeared to move in convoy with the Aurion to Woodley Road, Fulham Gardens where the Aurion pulled up behind the Audi. A male, said to be the applicant Kolaj, got out of the driver’s seat of the Aurion. He retrieved the package from the Aurion and placed it in the boot of the Audi. The two vehicles then returned to the Cheadle Street premises. The Audi was driven into the garage 10 A summary of the observations can be found in VDP22A. 11 VDP22. -- 11 of 108 -- [2026] SADC 9 6 of the premises. The Aurion was parked on Cheadle Street. At around 12:05pm, the male from the Aurion – Kolaj - entered the premises. 24 Once inside the Cheadle Street premises, the prosecution allege that the applicants set about dismantling the package. Their attempts to do so were captured by the surveillance devices secreted within the package (VDP19 and VDP31).12 25 The applicants challenge the admissibility of the recordings made by the surveillance devices in the package on a number of bases. Both the validity of the warrant and whether it in fact authorised the collection of surveillance device data that was in fact obtained are challenged. The applicants argue that the warrant was bad for uncertainty because it purported to authorise entry onto ‘any premises where the package may be at that time’, which failed to meet the requirements of s 19 of the SD Act to identify with precision the premises to which entry or interference was authorised for the purpose of executing the warrant; failed to authorise the use of the devices in vehicles at all and at the Cheadle Street premises; and did not authorise the use of a ‘combination’ device such as a ‘listening and optical device’. 26 Just before 12:15pm, police forced entry to the Cheadle Street premises. At or around this time, the male who had been identified as the driver of the Aurion – Kolaj – was seen in the rear yard of the Cheadle Street premises, jumping over the fence into 32C Rivett Avenue and then running along rooftops. Another male, said to be Mrishaj, was seen throwing white objects into the rear yard of 29 Cheadle Street. Those objects are said to include two parcels of white powder that had been placed within the package in substitution for the intercepted cocaine, indicating that the package had been dismantled, consistently with some of the sounds that can be heard through the surveillance devices secreted within the package. Mrishaj was stopped by police walking out of the driveway of 29 Cheadle Street, whereupon he was seen to discard his mobile phone. This evidence is the subject of challenge by Mrishaj. 27 Kolaj was later found hiding in the backyard of a residence on nearby Madeline Street. 28 The prosecution case is that the applicants fled the Cheadle Street premises, having become aware that police were forcing entry to the property. The applicants challenge the admissibility of this evidence, arguing that, in the circumstances, their conduct in decamping from the house is incapable of being used as flight indicative of a consciousness of guilt. 12 The parties provided further aides to the device product relevant to a number of issues and which I now identify as VDP31A (prosecution’s aide memoire) and VDD1-31B (Kolaj’s aide memoire). -- 12 of 108 -- [2026] SADC 9 7 The applications 29 The trial of the charges was due to commence on 11 March 2025. However, in the lead up to trial, substantial Rule 39 applications were filed by the applicants. Those applications, which are dealt with in this ruling, may be summarised as follows: 1. To exclude all evidence obtained in the course of the ‘undercover operation’, involving the controlled delivery of the substituted package, and its sequelae, on the basis that the undercover operation approval was invalid or did not otherwise authorise the conduct engaged in by police (Issue 1). 2. To exclude all evidence obtained by the surveillance devices installed within the package on the basis that the warrant issued under the SD Act was invalid in that it was bad for uncertainty; did not comply with the requirements of the SD Act; and did not authorise the use of a combined ‘listening and optical surveillance device’ (Issue 2). 3. To exclude the recording made by the aerial asset, which is said to use a ‘tracking device’ within the meaning of s 3 of the SD Act and not an optical surveillance device, on the basis that it was unlawfully made as no warrant had been obtained for the use of a tracking device and no other provisions of the SD Act permitted the use of a tracking device without a warrant (Issue 3). 4. To exclude evidence of the applicants fleeing 27A Cheadle Street on the basis that the evidence is not admissible as ‘flight’ (Issue 4). 5. To exclude evidence that the Aurion was registered in the name of Kolaj on the ground that a jury may conflate registered ownership with actual ownership of the vehicle and use that adversely to Kolaj when considering whether he was in knowing possession of the cocaine in the concealed compartment (Issue 5). 6. An application by Kolaj inviting the prosecution to lead evidence that the cocaine found in the Aurion and the cocaine found at the Cheadle Street premises had a shared ‘processing methodology’, which is said to indicate the cocaine had a common provenance, relevant to the possibility that Mrishaj and not Kolaj was in possession of the cocaine found in the Aurion (Issue 6). 30 For convenience, I set out now the conclusions, in summary form, that I have reached: 1. The undercover operation approval was valid and the conduct of U103 was authorised by the terms of the approval. a. On its proper construction, the CICO Act does not require an approval to specify the serious criminal behaviour (or a particular -- 13 of 108 -- [2026] SADC 9 8 offence amounting to serious criminal behaviour) to which the approval relates. Section 4(4) of the CICO Act exhaustively prescribes the matters that must be included in an approval. Although the approval in this case did identify the serious criminal behaviour in respect of which it was issued, that was surplus to the requirements of the CICO Act. b. In any event, to the extent that the approval needed to identify the serious criminal behaviour to which it related, it did so adequately. The approval described the relevant behaviour as involving ‘offence/s against the CS Act’ and drug ‘trafficking’. It is immaterial that, following the substitution of the cocaine with an inert substance, the only offence that could have been committed in relation to the package was ‘attempted’ trafficking. The focus of the undercover operation went beyond the detection of an offence relating to the re-constituted package. It extended to the broader drug-trafficking enterprise connected with DR and his associates. c. Any imperfection in the approval’s description of the serious criminal behaviour to which it related is, in any event, inconsequential and does not suggest that the issuing officer was not, or could not have been, satisfied of the jurisdictional grounds required to issue the approval. d. The approval was not bad for uncertainty because it authorised participants to engage in conduct ‘relative to the trafficking of controlled drugs’. The ambit of approved conduct was neither unintelligible nor indiscernible. The approval permitted engagement in conduct having a sufficient connection to drug trafficking activity, which plainly encompassed the controlled delivery of a package that had been imported into the country containing almost 4kg of cocaine and investigative action directed to detection of the drug distribution network with which DR and his associates were reasonably suspected to be involved. e. The approval authorised U103 to deliver the package, as modified, to the consignment address and, to the extent necessary, to enter onto the consignment address, even if doing so would otherwise have amounted to a trespass. Even if the approval did not authorise a trespass, the entry by U103 was in accordance with the common law implied licence. 2. The SD Act warrant was valid and authorised the use of the devices secreted within the package. The use of devices on U103’s person was also lawful. a. The combined effect of ss 16, 17 and 19 of the SD Act is that a warrant need only ‘specify’ premises or vehicles within the meaning -- 14 of 108 -- [2026] SADC 9 9 of s 19(2)(b)(ii) if: (1) devices are to be used ‘on or in premises or a vehicle’ which contemplates a static or semi-static use of the devices to record events taking place in the premises or vehicle; (2) where an agency requires authority to enter or interfere with premises or a vehicle in order to install, use, maintain or retrieve surveillance devices. b. On the assumption that SAPOL required authority (not otherwise conferred by the approval) to enter onto the Kym Street premises in order to use the surveillance devices, those premises had to be specified in the warrant. As SAPOL did not need to enter onto the Cheadle Street premises in order to continue to use the surveillance devices after their delivery to Kym Street, the Cheadle Street premises did not need to be specified and nor did any vehicles in which the package was transported. The devices were not used ‘on or in’ the Cheadle Street premises or vehicles in the relevant way. c. The warrant complied with the requirements of s 19 of the SD Act. Insofar as the warrant authorised interference with the ‘package’, the package was specified. Insofar as the warrant authorised entry on or interference with premises in order to use, install, maintain or retrieve the devices, the warrant sufficiently specified those premises by reference to two circumstances: the location of the package and the time of entry or interference. There was therefore no uncertainty about the premises to which entry or interference was authorised and when. As U103 conveyed the package onto the Kym Street premises, the presence of the package coincided with the time of entry and the conditions of the warrant were met. d. The warrant authorised the use of a combination ‘listening and optical surveillance device’. The SD Act does not regulate the use of combination devices separately to the devices which they integrate. Rather, the lawfulness of the use of a combination device is determined by reference to those provisions of the SD Act which control the use of the individual devices, the functionality of which the combination device incorporates or replicates. To discharge the requirement that the warrant specify the ‘kind of surveillance device’ to which it relates, it was not necessary for reference to be made to a ‘combined listening and optical surveillance device’. As the warrant authorised the use of listening and optical surveillance devices of the same or greater number than devices of those characteristics that were installed in the package, the use of the combined ‘listening and optical surveillance device’ was authorised. 3. The evidence obtained by the aerial asset was admissible: -- 15 of 108 -- [2026] SADC 9 10 a. The device associated with the aerial asset was not a tracking device but an optical surveillance device or, at the very least, was used as an optical surveillance device, and not a ‘tracking device’, on 10 March 2022. b. In order to avoid rendering the provisions of the SD Act that regulate and permit the use of optical surveillance devices obsolete, the definition of a ‘tracking device’ should be understood as requiring that the device, itself, is able to determine the whereabouts of a person or object, through the provision of some form of geo- positional or location data. c. The use of the device on the aerial asset from a public place to record activities that were readily observable and primarily occurring in public locations was not prohibited under the SD Act and, in any event, the use of the device was in the public interest. 4. The evidence of the applicants fleeing Cheadle Street is admissible, but not as evidence indicative of a consciousness of guilt. The evidence is relevant and admissible to assist in identifying the people who were in the vehicles associated with the exchange of the package; and in the Cheadle Street premises at the time of the police attendance; and to assist the jury in interpreting the sounds and images recorded by the surveillance devices after the package was taken to the Cheadle Street premises. The fact that one of the applicants (on the prosecution case, Mrishaj) disposed of some of the substituted substance is evidence that the package had been dismantled or interfered with and is therefore circumstantial evidence relevant to whether Mrishaj knew or believed there was a reason to dismantle the package. Evidence that Kolaj disposed of latex gloves on a nearby roof is circumstantial evidence that Kolaj was undertaking an activity at or around that time that he considered required, or would benefit from, the use of latex gloves. 5. Evidence that the Aurion was registered in Kolaj’s name is admissible circumstantial evidence of his connection to the car. Whilst registered ownership is not evidence of actual title to the vehicle, a jury can be directed as to the limited use to which registered ownership can be put. 6. Evidence of the common cocaine ‘processing methodology’ is not, in its current form, admissible. Although no application for a temporary stay has been advanced by Kolaj on the basis of the prosecution’s currently stated refusal to lead the evidence, the prosecution could not be constructively compelled to lead inadmissible evidence. 31 I will elaborate on my conclusions in the above order. However, as a number of the applicants’ challenges require consideration and construction of various -- 16 of 108 -- [2026] SADC 9 11 provisions of the CICO Act and SD Act, I set out the principles I have endeavoured to apply when addressing these complaints. Relevant principles of statutory construction 32 The constructional task must begin with the text of a statute, read in its context and with close regard to the purpose of the legislation under consideration. On the contemporary approach, context – including the consequences that would follow from adopting a particular interpretation – is not a matter to be consulted only where ambiguity arises; it is an integral part of the interpretative exercise. Context is not a constructional afterthought. 33 In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ said at [14]: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 34 Emphasising the importance of deference to the statutory text, in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531, French CJ, Crennan and Bell JJ said at [39]: … the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.’ 35 Gageler and Keane JJ added at [65]-[66]: Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always’. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none -- 17 of 108 -- [2026] SADC 9 12 of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. … 36 Most recently, in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35, the plurality said at [4]-[5]: Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning. That being the nature of the task to which the process is directed, the ‘modern approach’ to statutory construction, as was explained nearly 30 years ago in CIC Insurance Ltd v Banktstown Football Club Ltd in a statement repeated and endorsed many times since: "(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... , one may discern the statute was intended to remedy". 37 Section 14 of the Legislation Interpretation Act 2021 (SA) is a cognate provision to s 15AA of the Acts Interpretation Act 1901 (Cth), to which the plurality were referring in the above extract, and requires an interpretation that best achieves the purpose or object of an Act of this State to be preferred to any other interpretation. 38 These tools of construction are complimented in the context of considering provisions of Acts such as the CICO Act and SD Act, as well as statutory instruments issued under those Acts, by the principle of legality,13 which in respect of intrusions on common law rights, was described by Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131: The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. 39 The status of the rule of construction was further explained by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at [21]: …The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is 13 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131; Lee v New South Wales Crime Commission (2013) 251 CLR 196, [312]-[313]. -- 18 of 108 -- [2026] SADC 9 13 known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. 40 With particular reference to legislation authorising entry onto property or intrusion into private spaces, which is relevant to the applicants’ challenges under both the CICO Act and the SD Act, Mason CJ, Brennan, Gaudron and McHugh JJ said in Coco v The Queen (1994) 179 CLR 427 at 435: Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v. Dillon: ‘[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.’ Issue 1 - Validity and scope of the CICO Act approval and lawfulness of the controlled delivery 41 The applicants’ challenge to the lawfulness of the conduct of U103 on 10 March 2022 in delivering the reconstructed package was framed in the following way in the Rule 39 application filed by Mrishaj: 15. All evidence obtained as a result of the undercover operation (that is, all evidence obtained from the point at which the undercover police officer delivered the package to 8 Kym Avenue, Athelstone): The acts undertaken by police were not authorised by the [approval]: a. The approval authorised actions relating to the offence of trafficking in a controlled drug, not attempted trafficking in a large commercial quantity of a controlled drug. b. The approval did not authorise a trespass. c. The approval was invalid for uncertainty insofar as it authorised police to engage in ‘actions relative to the trafficking in a controlled drug’. 42 The application of Kolaj joins in the complaints advanced by Mrishaj and adopts the submissions of counsel for Mrishaj, including their written submissions. 43 As can be seen, the only ground upon which the applicants directly challenge the validity of the approval is that it is said to be bad for uncertainty, although there is an extent to which the complaint in paragraph 15(a) may bear upon the validity -- 19 of 108 -- [2026] SADC 9 14 of the approval, as well as whether the conduct purportedly carried out under its authority was lawful. 44 Although the prosecution initially opposed a voir dire in relation to the lawfulness of the conduct of U103 on a number of bases, that position was ultimately revised after lengthy argument exploring the merits of the applicants’ various contentions.14 45 The parties agreed that this aspect of the Rule 39 applications requires consideration of the following issues:15 1. Was the police operation an ‘undercover operation’ within the meaning of the CICO Act and, if so, was an approval under the CICO Act necessary? 2. Was the approval valid? 3. Was the conduct of U103 authorised by the approval? 4. Was the conduct of U103 otherwise authorised by the terms of the warrant issued under the SD Act? 5. If the conduct of U103 was not authorised either by the terms of the approval or the SD Act warrant, was his entry onto the property permitted by the implied common law licence to enter onto private property for legitimate purposes? 6. If there was no source of legal authority for U103 to enter onto the property, was the delivery of the package unlawful? 46 The submissions on these issues traversed a number of hearing days and I do not propose to set out at length the competing arguments that were advanced by the parties. I have however reviewed the transcript of the oral submissions made during the hearing and the written submissions upon which the parties relied. 47 The key elements of the applicants’ contentions were as follows: 1. The conduct of U103 on 10 March 2022 amounted to an undercover operation within the meaning of the CICO Act. Accordingly, an undercover operation approval was required as a matter of law. 2. The conduct of U103 on 10 March 2022 was not authorised by the terms of the approval for two reasons: a. On the face of the approval, the ‘serious criminal behaviour’ to which the operation related was ‘offence/s against the CS Act’ and ‘trafficking’ controlled drugs. That description of the serious 14 T161. 15 T143. -- 20 of 108 -- [2026] SADC 9 15 criminal behaviour to which the approval related was inadequate and inaccurate. By virtue of the substitution of the cocaine with an inert substance post-interception, the only ‘serious criminal behaviour’ which could have been the subject of an undercover operation approval was ‘attempted trafficking’ which is not ‘trafficking’ and is an offence against the Criminal Law Consolidation Act 1935 (SA), not the CS Act. b. Insofar as the approval authorised undercover operatives to engage in activities ‘relative to the trafficking of controlled drugs’, it was bad for uncertainty because the scope of approved conduct was not sufficiently delimited and, amongst other things, the extent to which the ‘immunity’ conferred by s 5 of the CICO Act could be relied upon by an undercover operative was therefore unclear. 3. The conduct of U103 on 10 March 2022 was not authorised by the warrant issued under the SD Act. 4. The entry onto the premises was not authorised at common law pursuant to any implied licence. U103 was a trespasser. 5. It follows that there was no lawful authority for U103 to be on the property at Kym Street. He was a trespasser and any evidence obtained as a result of the trespass was unlawfully obtained and liable to exclusion on discretionary grounds. 48 I will deal with these contentions in this order. The requirement for an undercover operation approval 49 Although it is only strictly necessary to consider the applicants’ first complaint if I were to otherwise conclude that the approval was invalid or did not authorise the conduct of U103, it is convenient to deal with the contention that any police conduct that amounts to an ‘undercover operation’ under the CICO Act must be subject to an approval. It is said to follow that absent an approval, conduct that falls within the definition of ‘undercover operation’, is unauthorised and, presumably, unlawful or at least improper (irrespective of whether that conduct involves any intrinsic illegality or impropriety), and any evidence obtained as a consequence is vulnerable to discretionary exclusion. 50 That contention is contrary to authority and cannot be accepted. The structure and operation of the CICO Act 51 Before turning to the detail of the applicants’ contention, I make some preliminary observations about the structure and operation of the CICO Act relevant to the complaints advanced by the applicants. -- 21 of 108 -- [2026] SADC 9 16 52 The CICO Act is an Act which provides, amongst other things, for the approval of undercover or covert police operations, including those that would or might otherwise involve the commission by police operatives of unlawful acts. The Act also deals with a range of other issues ordinarily associated with carrying out undercover operations, such as the use by operatives of assumed identities. It makes provision for the issuing of witness identity certificates to protect the identity of undercover operatives. It is only necessary for present purposes however to say something more about the provisions of the Act which deal with the approval of undercover operations. 53 The Act confers power on ‘senior police officers’ – officers of or above the rank of Superintendent – to approve an ‘undercover operation’ for the purpose of gathering evidence of ‘serious criminal behaviour.’16 ‘Serious criminal behaviour’ means behaviour involving the commission of, relevantly, an indictable offence or an offence against the CS Act. 54 ‘Undercover operations’ are defined in the following way: undercover operations means operations (which may include conduct that is apart from this Act illegal) of which the intended purpose is to provide persons who have engaged, are engaging or are about to engage in serious criminal behaviour an opportunity to— (a) manifest that behaviour; or (b) provide other evidence of that behaviour; 55 The criteria that must be met before an undercover operation can be approved, and information that must be included in an approval, are prescribed by s 4 of the Act: (2) An approval may not be given unless the senior police officer or the Independent Commissioner Against Corruption (as the case may be)— (a) suspects, on reasonable grounds, that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relate; and (b) is satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour; and (c) is satisfied on reasonable grounds that the means are proportionate to the end; that is, that the proposed undercover operations are justified by the social harm of the serious criminal behaviour against which they are directed; and 16 A discussion of various provisions of the CICO Act can be found in Lindsay v The King (2022) 142 SASR 175, [183]-[206]. -- 22 of 108 -- [2026] SADC 9 17 (d) is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons who have engaged, or are engaging or about to engage, in serious criminal behaviour an opportunity— (i) to manifest that behaviour; or (ii) to provide other evidence of that behaviour, without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided. (3) Before giving approval, the senior police officer or the Independent Commissioner Against Corruption (as the case may be) must consider whether approval for similar operations has previously been sought, and, if sought and refused, the reasons for that refusal. (4) The approval must— (a) be in writing; and (b) be signed by the person giving the approval; and (c) specify— (i) the date and time of the signing, and the time from which the approval takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and (ii) the persons who are authorised to participate in the operations; and (iii) the nature of the conduct in which the participants are authorised to engage; and (iv) a period (not exceeding 3 months) for which the approval is given. (5) A senior police officer or the Independent Commissioner Against Corruption (as the case may be) may renew, from time to time, an approval for 1 or more further periods. (6) A senior police officer or the Independent Commissioner Against Corruption (as the case may be) must, within 14 days after giving or renewing an approval, cause a copy of the instrument of approval or renewal to be given to the Attorney-General. (7) In this section— senior police officer means a police officer of or above the rank of Superintendent. 56 I pause here to emphasise that a central purpose of an undercover operation is, self-evidently, to gather evidence of serious criminal behaviour - including conduct that has not yet taken place. The precise offence that a person of interest may commit in the course of an undercover operation may not be identifiable at the time approval is granted. The function of an approval is to create an opportunity for serious criminal behaviour to manifest and to obtain evidence of such behaviour. -- 23 of 108 -- [2026] SADC 9 18 57 The identity of the person or people who it may be suspected are about to (for example) engage in serious criminal behaviour may not be known. It has been said that: Section 4 clearly contemplates investigations where not all participants are known and that their identity may only be discovered later in the investigation. The Approval of a covert operation, as part of the investigation, may assist in discovering the identity of potential offenders.17 58 Neither the definition of ‘serious criminal behaviour’ nor the terms of s 4(2), which prescribe the approval criteria, suggest that an approval may only be issued where the specific offence a person is suspected of having committed or being about to commit, can be identified with precision. To take a rudimentary example, an approval may properly be given where it is reasonably suspected that a person is about to engage in some form of drug related offending contrary to the CS Act, irrespective of whether the approving officer is able to predict whether that activity will involve trafficking a drug; trafficking a commercial quantity of a drug; trafficking a large commercial quantity of a drug or manufacturing a controlled drug. Provided the approval relates to serious criminal behaviour of the kind it is reasonably suspected the person is about to engage in and the approving officer is satisfied of the other matters to which s 4(2) refers, that would appear to be sufficient. 59 Whilst s 4(2)(a)-(d) require the approving officer to evaluate whether the suspected serious criminal behaviour justifies the issue of an approval, the definition of serious criminal behaviour is such that what the approving officer must consider is whether, for example, the undercover operation is properly designed to give a person engaging or about to engage in an indictable offence (which by definition is anything other than a summary offence) or, relevantly, an offence against the CS Act, an opportunity to manifest that behaviour. 60 That will by necessity require the approving officer to turn their mind to the range of offences that may be committed and whether those offences would satisfy the definition of serious criminal behaviour. Beyond that, however, s 4(2) does not, in its terms, require the approving officer to be satisfied that a particular offence - and only that offence - may be about to be committed. In many cases, it will be impractical to do so. By way of further example, if a covert operation is established to investigate what is suspected to be an enterprise to cause harm to another, the approving officer may not be in a position to specify in advance whether the offence that may be about to be committed is an assault causing harm; an aggravated assault causing harm; an offence of causing harm or serious harm with intent; an offence of recklessly causing harm or serious harm; or an aggravated form of any such offence. Put another way, the structure and operation of s 4(2), read with the definition of ‘serious criminal behaviour’, suggest that it is immaterial that the approving officer cannot be certain of the precise offence that 17 R v M, I [2018] SASC 24, [104]. -- 24 of 108 -- [2026] SADC 9 19 constitutes the ‘serious criminal behaviour’ in respect of which an approval is sought. 61 Moving on, s 4(4) prescribes the substance and form of an instrument of approval. An approval must be in writing and signed by the issuing officer. Section 4(4)(c) identifies the details that must be included in the approval, notably omitting any requirement to identify the serious criminal behaviour or particular offence or offences which it is reasonably suspected that a person has engaged, or is about to, engage in. 62 It is also of note for present purposes that s 4(4)(c)(iii) requires only that the approval specify the ‘nature of the conduct in which the participants are authorised to engage’. The inclusion of the word ‘nature’ is significant. The Act does not require an approval to set out the specific acts an undercover operative may perform; rather, it requires identification of the character or general scope of the conduct that is authorised. That is unsurprising. Covert operations, particularly those involving undercover operatives, are inherently fluid and dynamic. It may be thought unrealistic for an approving officer to predict in advance the precise acts or omissions an operative may be required to undertake to maintain the integrity and momentum of an operation. That said, although operational realities may illuminate the context and purpose of legislation conferring investigative powers of this kind, such considerations cannot control the constructional task, which must remain anchored in the statutory text.18 63 The effect of an undercover operation approval is set out in s 5 which provides that an authorised participant in an approved undercover operation incurs no criminal liability by taking part in the operation in accordance with the terms of the approval. The effect of the predecessor to s 5 (s 4 of the Undercover Operations Act 1995 (SA)) was described in the following way in R v Albu (1995) 65 SASR 439 at 450: It is obvious from the purpose that the Act was intended to fulfil, the scheme that it propounds, and its use of the words “(which may include conduct that is apart from this Act illegal)” in the definition of undercover operations in s 2 and the words “Despite any other law” in s 4, that the Parliament intended to provide in s 4 that an authorised participant in an approved undercover operation would not commit a crime if his act or his agreement with others, that would otherwise be criminal, occurs in the course of and in accordance with that operation…No doubt, as counsel argued, the draftsman could have achieved that object in other ways, but that is not to the point. To say that someone “incurs no criminal liability” is to say that he does not commit a crime. The effect is to make his action lawful. Section 4 is not a legislative act of indemnity or pardon, for it is the effect of its terms that there will be no crime committed that needs pardoning. 64 In R v M, I [2018] SASC 24 at [96], Lovell J said the effect of s 5 was to: …make actions which were unlawful, lawful. It does not confer an indemnity or pardon, as the effect of its terms are such that there is no crime that requires a pardon. 18 Hart v Commissioner, Australian Federal Police (2002) 124 FCR 384, [65]-[68]. -- 25 of 108 -- [2026] SADC 9 20 65 In other words, s 5 creates a legal state of affairs: conduct that would have been unlawful but for an approval is in fact taken to be lawful provided the conduct falls within the terms of an approval. Section 5 has also been described as conferring an immunity from criminal liability on authorised participants in an undercover operation.19 66 Whatever description of the effect of s 5 is preferred, the consensus in the authorities is that where an approval covers otherwise illegal conduct engaged in by an authorised participant, the Bunning v Cross discretion does not arise for exercise: ‘[t]he real foundation for the exclusion of the evidence, criminal conduct on the part of the law enforcement authority, has now gone.’20 67 Sections 6 to 13 of the CICO Act deal with applications for authorities to acquire or use an ‘assumed identity’. Where an application to use an assumed identity is approved in accordance with s 7, the content of the authorisation must comply with s 8. 68 The Act also creates a form of ‘immunity’ in relation to the use of an assumed identity. Section 19 provides: Where an authorised person does something (whether in this State or elsewhere) that, apart from this section, would be an offence, the officer or person is not criminally responsible for the offence if— (a) the act is done in the course of acquiring or using an assumed identity in accordance with an authority; and (b) the act is done— (i) in the case of an authorised officer—in the course of his or her duty; or (ii) in the case of an authorised civilian—in accordance with any direction by his or her supervisor under the authority; and (c) doing the act would not be an offence if the assumed identity were the person's real identity. 69 Section 19 appears to provide a form of immunity where an authorised officer commits an offence by using an assumed identity. The premise of s 19(c) may be that the immunity operates only where the use of the assumed identity is what renders conduct that would otherwise be lawful, unlawful. Where an authorised officer engages in conduct that would be unlawful irrespective of the assumed identity, s 19 may have no operation; that territory is instead covered by s 5 of the CICO Act. Thus, subject to a valid undercover operation approval, an authorised officer using an assumed identity would still be criminally responsible for an act 19 Lindsay v The King (2022) 142 SASR 175, [184]. 20 R v Ridgeway (1998) 72 SASR 73, 84 (Doyle CJ). -- 26 of 108 -- [2026] SADC 9 21 of drug trafficking because that is conduct which is intrinsically unlawful. It is not necessary for me to consider this question any further. 70 Against this background, I turn to the contentions advanced by the applicants. Is an undercover operation approval mandatory? 71 I return to the submission that no police activities falling within the definition of an ‘undercover operation’ – whether involving lawful conduct or otherwise – can be carried out absent an undercover operation approval.21 72 The submission advanced by the applicants, as I followed it, was that whilst there was an extant approval under the CICO Act and U103 was an authorised participant in that operation, if (a) the conduct of U103 exceeded the scope or terms of the approval or (b) the approval was otherwise invalid for any reason, the conduct of U103 would, effectively, have been unauthorised conduct that fell within the definition of ‘undercover operation’. If that is so, and a valid approval was required in respect of any such conduct, then, so the argument goes, U103’s actions would have been unlawful or improper and any evidence obtained in consequence thereof would be liable to exclusion on traditional public policy grounds, irrespective of whether U103’s conduct actually involved any illegality or impropriety. Put another way, the CICO Act requires that police conduct amounting to an ‘undercover operation’ be approved and if it is not, there is a contravention of the CICO Act. 73 The applicants’ construction of the CICO Act and, in particular, the proposition that any conduct falling within the meaning of ‘undercover operation’ requires approval, had as its foundation the contention: ‘what is the point of providing for undercover operations to be approved by a senior police officer if no approval is in fact necessary as a matter of law in respect of conduct that falls within the meaning of ‘undercover operation’’.22 That contention, which relied principally on the conferral of power on senior police officers by s 4, was not deconstructed by reference to the broader context, purpose and operation of the CICO Act or the consequences of this construction. 74 The applicants’ argument overlooks the purpose and operation of the CICO Act more generally. The purpose of the CICO Act is to create a scheme for the approval of undercover operations that may involve police officers engaging in unlawful conduct and to afford a measure of protection from criminal liability in respect of unlawful conduct carried out in accordance with the terms of an approval. Nowhere in the Act is it said that conduct falling within the definition of an ‘undercover operation’ – which may not involve illegal conduct – must be subject to an approval and, in my view, no such implication can be derived from 21 T67-68. 22 T67. -- 27 of 108 -- [2026] SADC 9 22 the fact that the CICO Act confers power on a senior police officer to issue an approval. 75 It is, in any event, well established that the Act does not require all conduct that might fall within the definition of ‘undercover operation’ to be approved.23 In R v Giaccio (1997) 68 SASR 484 at 496, Cox J (Millhouse and Perry JJ agreeing) observed: The enactment of the Criminal Law (Undercover Operations) Act…followed the High Court’s decision in Ridgeway and was obviously intended to make it easier for the prosecution to meet defence submissions that prosecutions depending on entrapment evidence should be stayed or the evidence excluded where the methods used by the police amounted to illegal or improper conduct. It is noteworthy that the definition of ‘undercover operations’ in the Act plainly implies that Parliament does not consider that giving persons engaging or about to engage in serious criminal behaviour the opportunity to manifest that behaviour, or to provide other evidence of that behaviour, is necessarily improper. The Act sets up a scheme for the approval of undercover operations by a senior police officer, and s 4 provides that, despite any other law, an authorised participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval. The authorised participant thus avoids any risk of prosecution for his own part in the approved operations, and the prospect of the evidence surviving a Bunning v Cross attack from the defence is likely to be enhanced. The Act does not state that the police may not engage in undercover operations unless they have first obtained an approval under this legislation, and I reject the submission that it should be interpreted as though it did. However, if the police engage in undercover operations without a statutory approval, those engaged in the operations will not have the benefit of the s 4 immunity and any questions of admissibility will be determined on common law principles. 76 Debelle J reached the same conclusion in Harvey v Police (2006) 95 SASR 357. In that case, police were conducting a car theft operation that involved parking modified vehicles in prominent locations in shopping centre car parks or the like, with the keys to the vehicle left in the ignition or in some other obvious place. A police officer in an unmarked vehicle would be stationed nearby with a video camera recording the modified vehicle involved in the operation. The police officer had possession of a remote that allowed him or her to interfere with various functions of the modified vehicle, including the ignition system. If a person took access to the modified vehicle and began to drive away in it, the police officer would use the remote to disengage the ignition system of the vehicle. Absent an innocent explanation, the person attempting to drive off in the modified vehicle would be arrested. The appellant was a person who attempted to do so and was arrested and charged. At trial, the evidence of the police officer involved in the operation was challenged on the basis that it was unlawfully or improperly obtained through entrapment. The operation was not the subject of an undercover operation approval. 77 Relevantly for present purposes, the appellant contended on appeal that as the conduct of the police fell within the definition of undercover operation and there was no approval, the operation was inherently illegal and the evidence 23 R v Rowe (1998) 71 SASR 389, 400. -- 28 of 108 -- [2026] SADC 9 23 consequently obtained ought to have been excluded. Although accepting the premise of the argument that the conduct of the police fell within the definition of ‘undercover operation’, Debelle J rejected the contention that the absence of an approval rendered the operation illegal ipso facto. His Honour said at [23]: The purpose of the Act is to establish a mechanism for the approval of undercover operations and to provide immunity for police officers participating in the operation. What is particularly to be noted for the purpose of this appeal is that the Act does not state that the police may not engage in an undercover operation unless they have first obtained approval under the Act. It simply means that those who do engage in the operation will not have the benefit of the immunity provided by s 4. In other words, the Act does not require all undercover operations to be approved pursuant to the Act. 78 The conclusion that at no time during the operation did the police engage in any illegal conduct, meant there was no ground upon which the evidence might have been excluded in the exercise of the Bunning v Cross discretion. 79 Whilst the analysis in Giaccio and Harvey concerned the progenitor to the current CICO Act, there has been no material change to the relevant provisions considered thus far and there is no reason to depart from the conclusions reached by Cox and Debelle JJ, with which I respectfully agree. I reject the argument that an approval was required for any conduct that fell within the definition of ‘undercover operation’. 80 It follows that if the approval was invalid or the conduct of U103 otherwise exceeded its terms, the admissibility of any evidence obtained by U103 would be determined in accordance with common law principles. The terms, scope and validity of the approval 81 I turn then to the terms, scope and validity of the approval. 82 I have earlier referred to the process by which the undercover operation came to be issued. As I have said, no challenge has thus far been made to the validity of the approval on the basis that the issuing officer could not have been satisfied of the criteria prescribed by s 4(2). That is to say, there is no challenge to the sufficiency of the grounds upon which the approval was granted. 83 The first page of the approval describes that the ‘senior police officer’, in this case Detective Superintendent Jeffery, approved an undercover operation for the purpose of gathering evidence of serious criminal behaviour, namely, ‘Offence/s against the Controlled Substances Act 1984’. 84 The second page addresses the criteria prescribed by s 4(2). It confirms that Detective Superintendent Jeffery was satisfied on reasonable grounds, amongst other things, that the operation was properly designed to give people engaged or about to engage in serious criminal behaviour an opportunity to manifest that behaviour and to provide evidence of that behaviour. The grounds upon which Detective Superintendent Jeffery’s satisfaction was achieved included that the -- 29 of 108 -- [2026] SADC 9 24 operation was directed at DR, his co-venturers and associates who were suspected of being involved in ‘trafficking of controlled drugs’ and was only intended to allow such people the opportunity to undertake that course. 85 Page three defines the conduct that participants in the operation were authorised to engage in under the approval, which I repeat for convenience:24 To make contact with [DR] and / or persons acting in concert with him and / or any of his associates and take part in conversations and / or actions relative to the trafficking of controlled drugs contrary to the Controlled Substances Act, 1984, for evidentiary purposes. To traffic in controlled drugs with and / or from any person as described above, contrary to the provisions of the Controlled Substances Act, 1984, for evidentiary purposes; and To possess controlled drugs as part of the above activity, contrary to the provisions of the Controlled Substances Act, 1984, for evidentiary purposes. The evidence relating to the approval and controlled delivery 86 A number of affidavits of officers involved in the COAC meeting and approval of the undercover operation were tendered.25 Detective Superintendent Jeffery and Detective Sergeant Stendt also gave oral evidence on the application. 87 The evidence given by Detective Superintendent Jeffery and Detective Sergeant Stendt had a limited relevance given the issues under consideration. The evidence, it seems to me, can only explain the context in which the approval was sought and the approval process, and touch on matters going to the discretionary exclusion calculus in Bunning v Cross in the event I conclude that some unlawful or improper conduct took place during the undercover operation. However, the validity and scope of the approval is to be determined by reference to the approval itself. If the approval is, on its face, bad for uncertainty, that defect cannot be remedied by evidence from the issuing officer ex post facto as to what they had in mind to be the scope of approved conduct for example or the serious criminal behaviour to which the approval related. 88 Accordingly, whilst I will summarise the evidence of Detective Jefferey and Detective Sergeant Stendt, I do so with the qualification that the validity of the approval, whether it was bad for uncertainty, and identification of the conduct it authorised, must be determined by reference to the terms of the approval itself. 89 Detective Superintendent Jeffery gave evidence about the COAC meeting; the process he adopts when considering an application for approval and his consideration of this particular application.26 He also detailed his understanding of the events antecedent to the COAC meeting and what he had in mind to achieve through the undercover operation. He appreciated that what was being proposed 24 VDD2-5. 25 VDP10; VDP11. 26 T194-196, 199. -- 30 of 108 -- [2026] SADC 9 25 was that an undercover operative would deliver the intercepted package to the relevant address.27 90 As to the scope of the approval, Detective Superintendent Jeffery said that there was a need to identify and gather further evidence against those suspected of trafficking in cocaine having regard to the seizure and location of the secreted drugs.28 He said further that as covert operations can be dynamic, the ambit of authorised conduct needs to have a degree of flexibility to facilitate the achievement of investigative objectives.29 When asked specifically about the approval authorising actions ‘relative to the trafficking of controlled drugs’, Detective Superintendent Jeffery said that he did not want to restrict too much what ‘the operative is doing or can do when the operative arrives and deploys. So the actions that are relative to the trafficking controlled substance in that circumstance was: deliver the parcel, but there could have been a number of situations that developed during that delivery’ and that ‘the delivery of the parcel, it may be the first step and it could be, depending on what comes out of the interaction, a lot further…’.30 91 With respect to the references in the approval to ‘trafficking in controlled drugs’, Detective Superintendent Jeffery explained that the quantity of cocaine intercepted meant that ‘it’s not for personal use so therefore distribution and trafficking had to be well and truly a reasonable assessment of the facts presented to us’.31 He said it did not matter that the cocaine had been substituted with an inert substance prior to the undercover operation commencing: ‘our objectives [sic] here is to gather evidence and identify those people involved in the trafficking so we can take appropriate action against them.’32 92 In cross-examination, Detective Superintendent Jeffery was asked to explain the meaning of ‘actions relative to trafficking’ as they appear in the approval. He said it was designed to enable operatives to do what they needed to gather evidence of trafficking controlled drugs. The following exchange then took place:33 A It means that they can approach suspects. It means they can have conversations with subjects. It means they can engage in activity or actions with those subjects or suspects to be able to either elicit information from them or gain or obtain any evidence that becomes available at the time. Q Now, is it the case that some undercover operations might be very broad in scope, including, for example, arranging for an operative to infiltrate an organised crime network and embed themselves within that group. 27 T200. 28 T197. 29 T198, 199, 204. 30 T204-205. 31 T201. 32 T202. 33 T239-242. -- 31 of 108 -- [2026] SADC 9 26 A Yes, as I said in evidence the other day, the work of the operatives is very dynamic and it would obviously vary from operation to operation. Q And it might involve the anticipated commission of what would otherwise be an offence against the Firearms Act, for example. A Correct. Q It might involve offences against the Criminal Law Consolidation Act. A Under some circumstances, yes, on both occasions, yes. Q In the circumstances of this case, was the scope of the approved undercover operation relatively straightforward and limited. A No, it was limited to offences under the Controlled Substances Act. Q When you gave the approval, including approving the participants to take part in conversations and/or actions relative to the trafficking of controlled drugs, were you intending to give approval for an operative to point a loaded firearm at someone and threaten them. A Not specifically, no. Q Are you saying that that would, although not specifically, that that would be authorised under the terms of that first dot point in the approval. A It wouldn't necessarily be authorised under my approval of that but there's other legislative or other legislation they'd rely on to draw that firearm. Because under the circumstances of this matter here, I think that would be a very unrealistic scenario to come to place where an operative would have to draw a firearm acting under this approval, investigating the Controlled Substances Act. That would be more the case of self-defence in trying to extract than using other legislation to rely on other than the Controlled Substances Act. Q Perhaps if I can narrow down the scope of my question then. Would you or were you intending by the terms of this approval to approve an operative to draw a firearm other than in those circumstances that would justify such conduct and commit what would otherwise be an aggravated assault. A My approval would not extend to that scope. Q Your approval, including the term there that we see in the first dot point, did that specifically authorise an operative to commit an offence of being unlawfully on premises. A Yes, it could. Q You say it could. A Yes, well, if they were unlawfully on premises it would give them that approval to do that, providing they are acting within the confines of the Act. Q You say it could. Do you agree that it's at least unclear as to whether it did authorise an offence of being unlawfully on premises. -- 32 of 108 -- [2026] SADC 9 27 A No, I don't think it is unclear. My approval is given for 'and/or actions relative to the trafficking of controlled substances', so whatever the need - the operative needs to do to get those outcomes and under the Act they're indemnified from being unlawfully on premises. Q Would you agree that there's a notorious association between firearms and drug trafficking. A In some cases, yes. Q And it's commonplace, is it not, in your experience for there to be threats of violence between those who are engaged in drug trafficking. A On occasions, yes. Q Nevertheless, there was no authorisation to commit what would otherwise be an assault by way of threats or otherwise in your approval. A Correct. Q But you say that it would have approved or at least could have approved the offence of being unlawfully on premises. A Yes. Q Would you agree that being unlawfully on premises or trespassing on property is not commonly associated with acts of drug trafficking. A No, I don't agree with that. Q Could you explain. A Without going into methodology as to how operatives operate, specifics of that, it's very common for operatives to go to front doors of houses to purchase drugs, for instance, under the Controlled Substances Act, to purchase stolen property so they quite often are entering onto premises for that purpose. That's the whole spirit and the whole need to have that undercover operation put in place to make it safe for the operatives to make it so they can operate lawfully and produce the outcomes that needed to be achieved to gather the evidence towards the offences. Q Are you saying that it would be understood by your operatives that taking part in conversations and/or actions relative to the trafficking of controlled drugs would have included committing an offence of being unlawfully on premises. A I say they're indemnified or from those offences and yes, it would be understood by them that they had the licence to do that under my approval. Q Do you agree that at its highest it could have been understood in that way but that there is some ambiguity at least in the approval in that respect. A No, I don't agree with that. It's par for the course or common practice for the operatives to have to enter on premises to be able to do their job and to act and exercise on the approval. -- 33 of 108 -- [2026] SADC 9 28 Q How about to go around the side or the back of a premises, go onto the premises without the consent of the occupier, so trespass onto property beyond going to a front door. A In my view, my approval is given for them to do that if they need to do it to achieve the objectives of the operation, but once again, any so-called trespass they've got the indemnity under the Undercover Act to be able to do that and if that's what they need to do. However, they've also got to take into consideration too and I'm very confident that their training would encompass this if they are told to leave or threatened, they'd be out of there as soon as safely they possibly could. Q When you give an approval, you take into considering [sic] the risks to the operative. A Definitely. 93 Detective Sergeant Stendt was the ‘controller’ in ‘operation 28-22’. The role of a controller is to receive and prepare documentation for an application by an investigating officer for an undercover operation. If an application is approved, Detective Stendt is then involved in the planning and execution of the operation and will conduct a risk assessment and identify safety contingencies for the operation.34 94 When asked about the process of approval of undercover operations, Detective Stendt explained:35 …I would receive [the] application, I would review it to ensure there's sufficient information in there to take before the Superintendent who would chair a covert operations approval committee. Once I was satisfied that there was sufficient there, I would then prepare some other documentation relative to that, which includes a draft of an approval. I would then convene would go along to that meeting. There's three people generally at those meetings. There could be more, should the Superintendent wish the investigator to attend as well. We would then discuss the mission and objectives of the investigator and have a discussion as to the merits of an undercover approval being made. If satisfied, the Superintendent then would review the draft copy of the approval and sign it accordingly once he is satisfied that all the criteria that he needs to address in his mind are satisfied. 95 Returning to the operation in question, Detective Stendt said he received an application from Detective Pursche to conduct an undercover operation in relation to the consignment intercepted at Adelaide Airport. He communicated with Detective Pursche about investigative strategies.36 Detective Stendt was aware that the intercepted consignment contained approximately 3.8 kilograms of cocaine, the contents of which had been removed and replaced with an inert substance. He understood that the undercover operation contemplated a controlled delivery of a package containing an inert substance to the consignee’s address.37 34 T210-211. 35 T212. 36 T211. 37 T211. -- 34 of 108 -- [2026] SADC 9 29 96 Detective Stendt gave evidence about the purpose of the undercover operation.38 He said the investigation was not concerned only with DR but also with his associates or those acting in concert with him and who may have been involved in drug trafficking.39 97 On 9 March, Detective Stendt met with Detective Superintendent Jeffery and Detective Brevet Sergeant Tepavcevic for the COAC meeting. The application was discussed and ultimately approved by Detective Superintendent Jeffery.40 98 Detective Stendt thereafter selected U103 as the undercover operative to carry out the controlled delivery and conducted a briefing with U103.41 U103 read the approval, along with other accompanying intelligence documents. U103 was provided with ‘consignment instructions’ for the delivery of the package to DR at the Kym Street premises. Detective Stendt understood that the package did not require a signature upon delivery and could be left inside the side gate of the premises.42 These instructions formed part of the application.43 99 When asked what his understanding was of the offences to be investigated during the undercover operation, Detective Stendt said:44 A Yes, the investigator on their application had attempt trafficking in a controlled drug. However, my experience tells me that the circumstances surrounding the delivery of a package of this kind, the recipients, I suspected, were trafficking in controlled drug. The basis around that, your Honour, is that the first step in trafficking in controlled drug is an importation. The drug is extracted from whatever item is imported, then it's broken up into smaller amounts and then trafficked to others and the reason for that is business related and to make money. Q And so what does that tell you about any associates that you might encounter during - of [DR] that you might encounter during the investigation. A What it tells me and what I suspected at the time was [DR] was a - he was what I call a clean skin, no criminal record. He was being used, in my mind, as a person that would fly under the radar of law enforcement and I suspected that package was going to be delivered to other unknown persons who may be associated with [DR] and relative to trafficking in controlled drug. Q And what would that lead you to, did you think. A I believe that would lead us to other associates and/or persons acting in concert with [DR] relative to a trafficking in controlled drug investigation. 38 T212-213. 39 T213. 40 T215. 41 T216. 42 T216-217. 43 T217. 44 T218. -- 35 of 108 -- [2026] SADC 9 30 100 The actual delivery process was detailed by U103 in his affidavit, VDD2-9. An audio-visual record of the delivery was also tendered (VDP17). 101 U103 explained that he received a briefing from Detective Sergeant Stendt about the proposed controlled delivery of the package, at around 4:30pm on 9 March 2022. He was provided with the approval and associated documents, which were read and signed. U103 was also given images of people suspected to be living at the Kym Street premises. 102 At 9:25am on 10 March 2022, U103 received from Detective Stendt a package addressed to the Kym Street premises for delivery. 103 U103 arrived in Kym Street at around 9:40am and parked down the side of the residence, on a public road. 104 To deliver the package, U103 walked through ‘the side entrance which was partially open’. The affidavit VDD2-9 continues (at [16]-[17]): As I walked into the property I observed a small courtyard strewn with various hard rubbish items. I observed a sliding door into the house which was closed and an open back door. I heard movement from inside the house at which point I called out. [GM], who I identified from image marked DSE2, appeared from the open back door. I had a conversation with [GM] about delivery of the package. I explained that I had a package for DR. [GM] informed me that [DR] wasn’t home. [GM] initially indicated he wanted me to place the package inside the house by looking back into the house but subsequently directed me to leave it just outside near the open door which I did at which time I left the area. 105 At 9:46am, U103 was directed to another location by Detective Stendt. 106 A recording made by U103 during the delivery (VDP17) showed that he arrived in a delivery van which he parked on Gembrook Road in the approximate position to where a dark sedan can be seen in the first of three images of annexure A to VDP13. The residence sits on a corner block. There is no obvious public footpath running around the perimeter of the block. Nor is there any perimeter fencing. 107 U103 removed the package from the van and proceeded to a side gate on the property, passing across an overgrown brick path that led from the road to the side gate. He did not first go to the front door. The timber side gate was partially open or ajar approximately 10cm. It was not latched. U103 pushed through the side gate and entered a covered courtyard that contained a barbecue and various personal belongings, a table and chairs and bins. Ahead of him was a sliding door. Another door, described as a ‘back door’, was open. U103 called out ‘hello’ and before receiving a response, stepped further into the courtyard (to about the midway point) before stopping. An occupant of the house then appeared at the open backdoor and after discussion about a delivery, U103 was told to leave the package near the open back door, which he did. He then left the premises. -- 36 of 108 -- [2026] SADC 9 31 108 Surveillance devices secreted within the package subsequently recorded conversation said to have taken place between the person of interest, DR, and the occupant with whom U103 spoke. The applicants’ arguments 109 I turn then to the applicants’ overarching contention that the approval was either invalid or ineffective in authorising the controlled delivery. 110 Four submissions, which overlap to some extent, were advanced. 111 First, the applicants argued that the approval was essentially inoperative in the circumstances. The approval related ex facie to offence/s against the CS Act, namely, trafficking controlled drugs, however the serious criminal behaviour being investigated was, in truth, not an offence against that Act but, rather, an attempt to traffic on account of the substitution of the cocaine following its interception by the authorities. The serious criminal behaviour to which the approval purportedly related was therefore not the serious criminal behaviour reasonably suspected to have been, or about to be, carried out. The applicants do not suggest the approval could not have been issued in relation to an attempt to traffic controlled drugs; rather, they submit that an attempt to traffic controlled drugs, which was the serious criminal behaviour the subject of the approval, is not an offence against the CS Act and cannot be described as ‘trafficking controlled drugs’. 112 Secondly, and by extension of the first contention, insofar as the approval purported to authorise undercover operatives to engage in conduct concerning ‘trafficking in controlled drugs’ or conduct ‘relative to trafficking in controlled drugs’, it was inoperative or ineffective because, again, what was being investigated could only have been an attempt to traffic in controlled drugs. Accordingly, none of the actions of U103 in conducting the controlled delivery were authorised by the terms of the approval which related to serious criminal behaviour not in fact the subject of the investigation. 113 Thirdly, the applicants argued that the introduction of the concept of conduct ‘relative to’ trafficking was, in any event, so broad as to render the approval bad for uncertainty. 114 Finally, the applicants contended that the approval lacked the clarity necessary to authorise a trespass for the purposes of effecting the controlled delivery. 115 For the reasons that follow, I reject the applicants’ submissions. Did the approval need to identify the ‘serious criminal behaviour’ to which it related or a particular offence 116 Before dealing with the contentions advanced by the applicants, I address what I consider to be a threshold question, namely, whether an approval issued under the CICO Act must specify the ‘serious criminal behaviour’ to which the -- 37 of 108 -- [2026] SADC 9 32 approval relates? The submissions of the applicants initially proceeded on the premise that an approval must in fact identify not only that the issuing officer suspected on reasonable grounds that a person was about to engage in ‘serious criminal behaviour’, but the suspected offence about to be committed. The combined effect of ss 4(2), 4(4) and the overarching objectives and operation of the Act cast doubt on the premise. 117 Indeed, in supplementary written submissions filed in answer to further questions raised by the Court, both parties accepted that s 4(4) exhaustively states the required content of an approval.45 That concession was correct. The effect of s 4(4) being a complete statement of what must appear in an approval is that any reference to a particular formulation of the ‘serious criminal behaviour’ to which the approval related, was surplusage and cannot invalidate the approval unless it reveals a jurisdictional misstep. 118 It is convenient to return to s 4(4) of the CICO Act. Section 4(4) prescribes what must be included in an undercover operation approval.46 It does not, in its terms, require that the serious criminal behaviour to which the approval relates, or a particular indictable offence or offence against the CS Act, be identified on the face of the approval. While s 4(2) conditions the grant of an approval on, amongst other things, the existence of the requisite suspicion that a person has, is or is about to engage in ‘serious criminal behaviour’, the matters of which the issuing officer must be satisfied before granting an approval do not necessarily correspond with what must be stated in the approval itself. 119 For one, the objective of the CICO Act is to facilitate the carrying out of covert police operations and activities. The purpose of an approval instrument is not to put the target of any such operation on notice of the serious criminal behaviour being investigated. An approval is not an instrument designed to inform an accused of the crime or crimes they have or are suspected of having committed; the manner in which an offence has been committed; the basis of their liability to a conviction; or the case they are being called upon to meet.47 An approval is not an originating process. Nor is it a search warrant. The grant of an approval is an administrative act by an officer of the Executive. It does not attract the rules and requirements that relate to judicial proceedings.48 120 Unless the terms of the Act otherwise dictate, the requirements of particularity that overlay an Information should not be superimposed on an undercover operation approval. The same observations have been made with respect to search warrants which,49 at common law, have traditionally been subject to more onerous requirements of specificity than other statutory instruments. 45 Applicants’ Joint Further Written Submissions, 15 December 2025, [9]. 46 See eg Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473, 488-489; Ousley v The Queen (1997) 192 CLR 69, 111 (McHugh J). 47 Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J). 48 Love v Attorney-General (NSW) (1990) 169 CLR 307; Grollo v Palmer (1995) 184 CLR 348; Ousley v The Queen (1997) 192 CLR 69. 49 Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, 533. -- 38 of 108 -- [2026] SADC 9 33 Distinguishing the requirements of a search warrant from those attaching to an indictment, Kiefel, Bell and Keane JJ said in Smethurst v Commissioner of Police (2020) 272 CLR 177 at [28]: It is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment. The purpose of a warrant is not to define the issues for trial. The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial. What emerges from the cases is a test of sufficiency to indicate the areas of the search. The test of sufficiency with respect to the statement of offence reflects the purpose of the condition, that persons executing and affected by the warrant understand what is being sought. 121 It has been said that when dealing with other kinds of statutory instruments, the application of statements of principle concerning the validity of a warrant must be approached with caution.50 That is principally because the special requirements attaching to search warrants can exceed those necessary in respect of other statutory instruments. 122 The parties did not specifically address whether the common law principles51 requiring a warrant to show jurisdiction on its face (at least those not issued by a superior court) or to identify the offence to which the execution of the warrant related,52 apply to an undercover operation approval;53 or whether the CICO Act could be read as abrogating any such common law requirements;54 or, if not, what the consequence of omitting reference to, or misdescribing, the ‘serious criminal behaviour’ the subject of an approval would be if the common law requirements applied. 123 However, as I have said, the common position of the parties is that s 4(4) is exhaustive. The CICO Act does not therefore require the jurisdictional grounds upon which an approval is issued to be specified in the approval, although they were in fact included in this approval and it is not suggested that the issuing officer lacked a proper basis to grant it. The matters that must be included in an approval are those prescribed by s 4(4). If that is so, as the parties now accept, any specific reference in the approval to the ‘serious criminal behaviour’ or a particular indictable offence or offence against the CS Act was unnecessary and surplus to the statutory requirements. 124 There are, in addition, contextual and purposive reasons for the omission from s 4(4) of any requirement that an approval identify the serious criminal behaviour to which it relates or any particular indictable offence or offence against the CS Act that a person is suspected of being about to commit. An approval that 50 Ousley v The Queen (1997) 192 CLR 69, 118-119 (Gummow J); R v Meng Kok Te [1998] 3 VR 566, 571-572. 51 See eg, Ousley v The Queen (1997) 192 CLR 69, 107 (McHugh J). 52 R v Tillet; Ex parte Newton (1969) 14 FLR 101; Parker v Churchill (1985) 9 FCR 316, 319; Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523. 53 Ousley v The Queen (1997) 192 CLR 69, 112 (McHugh J), distinguishing search warrants from listening device warrants. 54 See, eg, Ousley v The Queen (1997) 192 CLR 69; R v Shaefer and ors [2004] SADC 185, [125]. -- 39 of 108 -- [2026] SADC 9 34 relates to conduct yet to occur will often be incapable of predicting with precision or any degree of certainty the specific offence that may ultimately be committed. Although a senior police officer must be provided with material capable of satisfying him or her that there are reasonable grounds to suspect that serious criminal behaviour is about to be engaged in, the conduct ultimately manifested may bear little resemblance to the behaviour initially suspected. The investigative context in which covert operations are authorised explains why s 4(4) does not require the identification of the relevant serious criminal behaviour or a particular offence to which the approval relates.55 125 I accept that in some cases, the nature of the conduct that persons authorised to participate in the operation may engage in may be delineated by reference to serious criminal behaviour of the kind under investigation or a particular offence or offences. However, whether that necessarily requires the approval to include reference to the relevant serious criminal behaviour or a specific offence or offences to demonstrate compliance with the jurisdictional gateway in s 4(2) is another question. 126 Additionally, it should not be overlooked that s 4(2)(a) only requires the approving officer to be satisfied that the serious criminal behaviour suspected is of the kind to which the undercover approval relates. That contemplates, in my view, that specificity of the degree urged by the applicants is not required. 127 These features of the CICO Act assist to explain the choice of the statutory language in s 4(4). 128 Further support for the proposition that s 4(4) exhaustively states the matters that must be in an approval can be found in a number of authorities. In Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 and with reference to a warrant issued under s 71 of the Proceeds of Crime Act 1987 (Cth) that failed to show jurisdiction on its face, the Full Court of the Federal Court said: There is in the present case a short answer to the appellants’ submission. Section 71(7) sets out specifically the matters that are required to be stated in a warrant issued under that section. The matters required statutorily to be set out do not include the satisfaction of the judge pursuant to the matters referred to in s 71(5) or s 71(6)(b). In these circumstances the rule expressio unius est exclusio alterius has application. Whilst as has been often said, that rule is to be applied with caution…it seems to us that the legislative intention in s 71(7) was to provide a code of the matters that were required to be stated in a search warrant to the exclusion of matters that would otherwise be required by the application of common law principles. 129 A majority of the High Court reached the same conclusion in Ousley v The Queen (1997) 192 CLR 69 with respect to warrants issued under the Listening Devices Act 1969 (Vic). Section 4A(1) of that Act set out the jurisdictional pre- conditions to a Supreme Court Judge issuing a warrant and s 4A(4) prescribed the matters that had to be specified on a warrant issued under the Act and did not 55 Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, 533. -- 40 of 108 -- [2026] SADC 9 35 include the basis of jurisdiction. The warrants failed to record on their face satisfaction by the issuing Judge of one of the jurisdictional pre-conditions, namely, that the use of a device was necessary for the purpose of an investigation. The appellant argued that the warrants were therefore invalid as it was to be inferred from the omission of one of the jurisdictional grounds for their issue that the Judge was not in fact satisfied of that pre-condition. 130 In concluding that s 4A(4) exhaustively stated the matters to be included on the face of the warrant, such that the omission of a jurisdictional ground was immaterial, Toohey J said at 82-83: Whether or not the Act be seen to provide a code of the matters which a warrant must state on its face, it is apparent that the Act does not expressly require that the basis of jurisdiction be disclosed on the face of a warrant…Section 4A(3) and (4) sets out comprehensively all the matters to be stated in a warrant, there is otherwise no statutory requirement to disclose jurisdiction on the face of a warrant and hence the omission of one precondition cannot of itself invalidate the warrant. 131 Reaching the same conclusion, and having discussed the approach of the common law to what must be stated on the face of a warrant, McHugh J said at 110-113: On the other hand, where the statute prescribes the form of warrant, a warrant in this form will be valid even when it does not recite all the jurisdictional conditions. Similarly, where the legislation specifies what the warrant must contain, nothing more can be required…Against the background of the common law tradition of invalidating warrants, a legislature’s statement as to what a warrant must contain should be regarded as exhaustive. Expressio unius est exclusio alterius. No doubt in interpreting legislation, the expressio unius est exclusio alterius rule is one to be applied with caution. But given the history of the common law on this subject matter, it seems safe to proceed on the assumption that when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose. In the present case, s 4A(4) of the Act specifies a number of matters which must appear on warrants issued under the Act. The appellant argues that s 4A(4) should not be construed as an exhaustive list. But the present legislation cannot be persuasively distinguished from that considered by the Federal Court in Karina Fisheries. The express mention of seven matters to be contained on the face of a warrant issued under the Act must be regarded as excluding the need for any other unspecified matters to be disclosed. This conclusion is reinforced by the fact that the Act is dealing with a warrant of a very different kind from that considered in cases of arrest and the search of premises. A listening device warrant differs from a search warrant because the execution of the former is by way of covert installation of the listening devices. Its installation is intended to go undetected by the person against who or against whose interests the warrant is executed. In contrast, a search warrant is ordinarily presented to the person whose rights and liabilities stand to be affected. … Thus although a requirement for disclosure of jurisdiction is easily understood in relation to search warrants, the need for such a requirement is less clear in the case of listening device warrants, which are not presented to affected persons prior to execution. -- 41 of 108 -- [2026] SADC 9 36 … Accordingly, s 4A(4) should be regarded as an exhaustive statement of the matters that a warrant must contain. A warrant that specifies the seven matters is a valid warrant. 132 The third member of the majority, Gummow J, found (at 128) that s 4A(3) and (4) of the Act constituted a ‘comprehensive list of the matters that must appear on the face of the warrant’. There having been no suggestion that the warrants failed to include such matters, the appellant’s argument failed. 133 Albeit dealing with different statutory regimes, different instruments and different issuing officers, the above observations remain apposite in the present context. 134 Accordingly, whilst s 4(2) requires a senior police officer issuing an approval to be satisfied, amongst other things, that there are reasonable grounds to suspect that a person may be about to engage in ‘serious criminal behaviour’, I do not consider that the combined effect of ss 4 and 5 requires the officer to identify the serious criminal behaviour or a particular indictable offence or offence against the CS Act on the face of an approval. If that is correct, then the inclusion of any such information on the face of an approval would be mere surplusage and of no consequence, unless of course the information included was such as to betray that the issuing officer could not have been satisfied of the matters to which s 4(2)(a)- (d) refer or that the conduct to which the approval related could not properly be the subject of an approval. 135 In any event, if the combined effect of ss 4(2), (4) and s 5 is such as to require the serious criminal behaviour or a particular indictable offence or offence/s against the CS Act to be specified on the face of an approval, the terms of the approval met those requirements. Any misdescription of the serious criminal behaviour of the kind to which the approval related is inconsequential. Misdescription of the “serious criminal behaviour” as “offence/s against the Controlled Substances Act” and “trafficking controlled drugs” 136 To the extent that the approval needed to identify the serious criminal behaviour to which it related, I find that it did so sufficiently. The terms of the approval did not make it ineffective at authorising the conduct U103 engaged in. Describing the serious criminal behaviour to which the approval related as involving ‘offence/s against the CS Act’ and ‘trafficking controlled drugs’ was neither inaccurate nor incorrect and, even if it was, it did not invalidate the approval for the following reasons. 137 First, the applicants’ argument wrongly focuses on the offence that could have been committed in relation to dealings with the package subsequent to the controlled delivery. That ignores the true breadth of the investigation contemplated on the face of the approval and, additionally, that Detective Superintendent Jeffery needed only to suspect on reasonable grounds that a person was about to engage in serious criminal behaviour of the kind to which the approval related. If the -- 42 of 108 -- [2026] SADC 9 37 approval related to trafficking controlled drugs, then an attempt to traffic in controlled drugs fell well within the purview of the approval. 138 Secondly, it was not incorrect for the approval to describe the serious criminal behaviour to which it related as involving offence/s against the CS Act and ‘trafficking in controlled drugs’, notwithstanding the cocaine had been substituted. 139 Thirdly, there being no suggestion that an attempt to traffic in controlled drugs would not amount to serious criminal behaviour, any misdescription on the face of the approval is inconsequential and did not have the effect of rendering U103’s conduct unauthorised. 140 I elaborate on these propositions. 141 An objective of the operation was the investigation of the drug distribution network, and the drug trafficking activities, of DR, his co-venturers and associates. Although it was clearly contemplated that the operation would involve the controlled delivery of the modified package – such that only an offence of attempted trafficking could thereafter be committed in relation to the package – the investigative focus was broader. It extended to the targeting of drug trafficking activities more generally. The operation was designed to provide those suspected of being involved in drug trafficking associated generally with DR and his distribution network, an opportunity to engage in such conduct. That much is plain from the terms of the approval. 142 It is a mistake, in my view, to assess the validity of the approval – and whether it authorised U103’s conduct – solely by reference to the offence that could have been committed in relation to the package itself. While delivery of the package was the principal investigative step contemplated when the approval was issued, the undercover operation targeted the trafficking activities and drug- distribution network of DR, who was the consignee of a large commercial quantity of cocaine imported into the country, and his associates or co-venturers. 143 Even though the interception and substitution of the cocaine with an inert substance, meant that in relation to the delivered package, any subsequent dealings could only constitute at law an attempt, the approval, quite properly, had a more extensive focus. The delivery of the package had the obvious capacity to set in motion a sequence of events that might reveal the identity and conduct of others (such as the applicants) who were also involved in trafficking drugs and provide an opportunity for serious criminal behaviour of that kind to manifest. Indeed, that is precisely what is said to have taken place. The delivery and subsequent monitoring of the package led to the interception and arrest of the applicants, who are now also charged with trafficking offences as well as attempting to traffic cocaine. It was reasonable to suspect that those who dealt with the package after the controlled delivery did so because they assumed it contained cocaine of such a -- 43 of 108 -- [2026] SADC 9 38 quantity as to indicate a connection with or involvement in the trafficking of controlled drugs. 144 Looked at in this way, the serious criminal behaviour it was suspected might manifest in relation to, and as a consequence of, the delivery of the package and bearing in mind the broader operational context, was accurately described in the approval. The scope of the approval covered the controlled delivery of the package and subsequent or related events and appropriately described the relevant ‘serious criminal behaviour’. The approval was not concerned solely with the package but with the enterprise that the importation of the package was suspected to form part of. 145 Secondly, if the validity and scope of the approval were to be determined solely by reference to an offence that could have been committed in relation to the package, the description of the serious criminal behaviour as involving ‘offence/s against the Controlled Substances Act’ and ‘trafficking controlled drugs’ was not inaccurate. At most, it involved a degree of imprecision that is of no consequence.56 146 An offence of attempting to traffic is, in substance, an offence against s 32 of the CS Act, with s 270A of the Criminal Law Consolidation Act 1935 (SA) supplying the general statutory framework for inchoate liability. It is true that it has been said that s 270A distinguishes an ‘attempt’ as a ‘separate offence’ to its completed counterpart.57 However, s 270A does not create a standalone species of offending, divorced from a substantive offence. It operates in tandem with another substantive offence provision and has no independent field of operation. A person cannot be charged with an offence against s 270A without more. The elements of an attempt require proof of the intention to commit another substantive offence and the commission of an act or acts along the way to the commission of that offence that are more than merely preparatory. It is not inappropriate therefore to describe the source of liability for an offence of attempting to traffic controlled drugs as s 32 of the CS Act in conjunction with s 270A. 147 It may have been more accurate, had it been necessary, to describe the serious criminal behaviour being investigated merely as ‘an indictable offence’, without further specification of the offence creating legislation; or as an indictable offence against the Criminal Law Consolidation Act and the CS Act, but I do not accept that any failure of the approval to draw the fine distinction between trafficking and attempted trafficking on account of the substitution is of any moment. The serious criminal behaviour to which the approval related was sufficiently identified, if that was necessary. 148 Thirdly, to the extent there was any misdescription or infelicity in the way the serious criminal behaviour was articulated or the kind of offending that DR and his associates or co-venturers were suspected of engaging in was described, it was not of a character that would invalidate the approval or render it ineffective in 56 See, eg, Chong v Schultz (2000) 112 A Crim R 59. 57 Fragos v The King (2023) 142 SASR 314, [18]. -- 44 of 108 -- [2026] SADC 9 39 authorising the conduct of U103. Any such imprecision did not touch upon, still less undermine, that the issuing officer was satisfied of the jurisdictional pre- conditions in s 4(2). There is nothing about the formulations used in the approval that might be thought to incidentally reveal non-compliance with s 4(2).58 Furthermore, and as I have said, it has not been suggested by the applicants that an ‘attempt to traffic’ controlled drugs would not, as a matter of law, meet the definition of ‘serious criminal behaviour’. Any misdescription had no legal significance or practical consequence. It could not have impaired the scope of the authority conferred by the approval. 149 In State of New South Wales v Corbett (2007) 230 CLR 606, the High Court considered the validity of a warrant purportedly issued under the Search Warrants Act 1985 (NSW). Section 5(1)(b) of that Act conditioned the issue of a warrant on the issuing officer’s satisfaction that there were reasonable grounds for believing that there would be, in or on any premises to which the warrant related, ‘a thing connected with a particular firearms offence’. ‘Firearms offence’ was defined in s 5(2) of the Act to mean an offence under the Firearms Act 1989 (NSW). However, at the time the warrant was issued, the Firearms Act 1989 had been repealed and replaced by the Firearms Act 1996 (NSW). The application for the warrant identified the ‘particular firearms offence’ to which it related as ‘Possession of Firearm, Firearms Act No 25/1989 Sect 5(a)’. The issuing officer duly issued a warrant on the basis that there were reasonable grounds to believe that a thing connected with a particular firearms offence against the repealed Act would be at the address. The warrant was executed and the respondents subsequently brought an action in trespass on account of what was said to be a defect on the face of the warrant that rendered it invalid and made the entry by police onto the property for the purpose of carrying out the search an unauthorised entry. 150 At first instance, the primary Judge held that the defect on the face of the warrant did not render it invalid and it therefore provided a defence to the respondents’ action for trespass. The Court of Appeal, however, held the warrant to be invalid because it referenced an offence that did not exist at the time of its issue. 151 One of the issues before the High Court was therefore whether the warrant was invalid for failing to state a particular offence to which the firearms the subject of the search were connected, given it referenced a firearms offence in the Firearms Act 1989 (NSW) which was not then operational. In rejecting this contention, Callinan and Crennan JJ (with whom Gleeson CJ and Gummow J agreed) said at [106]: Here, the application stated an intelligible offence, namely, “possession of firearm”, an offence which had been well known in New South Wales for decades. Prior to the Act, 58 Ousley v The Queen (1997) 192 CLR 69; cf Tran Nominees v Scheffler (1986) 42 SASR 361, 390. In Ousley v The Queen (1997) 192 CLR 69, 130, Gummow J observed that Tran was decided at a time when there was less than ‘full appreciation’ that the issue of a warrant is essentially an administrative, and not a judicial, act. -- 45 of 108 -- [2026] SADC 9 40 successive firearms legislation contained provisions for obtaining search warrants in respect of firearms. The reasonable belief, which the applicant was required by the statute to have, and state, was a reasonable belief that there was a “thing” (here, “unspecified firearms”) connected with “a particular firearms offence” (here, “possession of firearm”). It was the nature of the offence which was critical, not the reference to the section of repealed legislation which had been replaced with cognate legislation. The nature of the offence had to be stated sufficiently to enable the issuing justice to understand the object of the search and to appreciate the boundaries of the authorisation to enter, search and seize. Here there could be no mistake about the object of the search or about the boundaries of the search warrant. Given the construction of s 5(1)(b) stated above, the Court of Appeal erred in its approach. The reference to the repealed Act in the application form was mere surplusage, which did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Accordingly, the applicant complied with the statutory requirements and the warrant is not invalidated by the description of the offence in the application form. 152 Three observations should be made about the decision in Corbett. First, it concerned the comparatively stringent requirements generally said to govern the specification of an offence in a search warrant. Secondly, the legislation in Corbett required the warrant to relate to a ‘particular firearms offence’, which underscores the need for precision in defining the suspected offence. Thirdly, the defect in Corbett was qualitatively more significant; both the application for and issue of the warrant had proceeded in respect of an offence in a repealed Act. Although it was held that a transitional provision to the Firearms Act 1996 converted the reference to s 5 of the Firearms Act 1989 to a reference to s 7 of the 1996 Act, it is important that the error in the application, and the warrant, did not invalidate the warrant. 153 The outcome in Corbett is reflective of the well-recognised principle that in the context of search warrants, what is required on the face of the warrant (subject of course to the governing legislation) is the statement of the offence that is the ‘nucleus’59 of the search in such terms as to permit the warrant holder:60 …and the citizen whose premises are subjected to it, to form some judgment whether particular things are relevant or irrelevant, and particular actions authorised or unauthorised. Of necessity, the lines cannot be precisely drawn, since the warrant is not concerned with what is known, but with what “there is reasonable ground for suspecting that there is”. The warrant is a map, drawn upon “reasonable grounds for believing”, of a terra incognita. But the outline of that which is so believed must be sufficiently indicated to set the appropriate bounds to the search. 154 In Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523 at 543, Burchett J said of the particularity required when stating the relevant offence on the face of a warrant: The matter should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose 59 Parker v Churchill (1985) 9 FCR 316, 319. 60 Ibid. -- 46 of 108 -- [2026] SADC 9 41 the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals. 155 In Williams v Keelty (2001) 111 FCR 175 at [136]-[139], Hely J said: A warrant must comply strictly with the statutory conditions of its issue, but the warrant should be read fairly and not perversely. A warrant is required to disclose the offence in question so as to indicate the area of the search. The description of the offence sets the bounds of the area of the search which the execution of the warrant would involve. The statement of the offence in a warrant need not be made with the precision of an indictment. An error which might vitiate an indictment will not necessarily invalidate a search warrant, and a legally incorrect formulation of the offence will not invalidate the warrant if the substance of the offence appears so as to indicate the area of the search. … The old maxim falsa demonstratio non nocet can be applied: an imperfect or inaccurate description does not detract from the true nature of the subject matter. 156 Remaining with Williams v Keelty (2001) 111 FCR 175, it is apparent from the discussion at [141]-[144] that the description of the offences in warrants issued under the comparatively stricter regime established by s 3E of the Crimes Act 1914 (Cth) were not invalid because they incompletely specified the offences to which they related or wrongly identified the offences as Commonwealth and not State offences. The substance of the offences the subject of the warrants was made plain. 157 These observations, which are reflected in the commentary of Kiefel CJ, Bell and Keane JJ in Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 at [22]-[30], and the analysis in Corbett, support the conclusion that I have reached, particularly bearing in mind the important differences between search warrants and a statutory instrument like the approval. Even if there is a misdescription or imprecision in the approval, it is of no consequence. The CICO Act contains no textual or contextual indication that the validity or otherwise of an approval should turn on a technical defect that does not undermine or cast doubt upon the issuing officer’s satisfaction of the jurisdictional preconditions in s 4(2). To the contrary, s 4(4), which fixes the matters that must be referred to in an approval, contains nothing to suggest that identification of a suspected offence is required, let alone with the specificity demanded of a search warrant. 158 That conclusion is reinforced by further reference to the purpose of an undercover operation approval. As I have said, the serious criminal behaviour that it is suspected a person may be about to engage in may ultimately be very different to the serious criminal behaviour that the person does in fact engage in and the offence or offences thereby committed. That tends to suggest that any error or -- 47 of 108 -- [2026] SADC 9 42 misdescription in the serious criminal behaviour suspected is inconsequential unless it betrays jurisdictional error. That is not this case. 159 Provided that the approving officer reasonably suspects that a person may be about to engage in conduct which meets the statutory definition of ‘serious criminal behaviour’, it is immaterial whether that is in fact the type of behaviour in which the person engages. It is immaterial if the approving officer mischaracterises the legal qualities of that behaviour. Subject to the qualification I have expressed, it is also immaterial if (unnecessarily on my findings) the approval refers to a particular species of ‘serious criminal behaviour’ incorrectly, imperfectly or imprecisely.61 160 Nor can it be said, in my view, that the conduct of any police officer who participated in the operation was somehow outside the scope of the approval, because (on the applicants’ argument) it incorrectly described the serious criminal behaviour in the manner alleged. Whether an approval is valid on its face and whether conduct of an undercover operative falls within the scope of an approval cannot be determined by reference to the charge ultimately preferred against a target of an undercover operation or because, as a matter of law, the only criminal offence that may have been about to be committed when the approval was issued was a different offence to one referred to in an approval but which nonetheless fell within the definition of ‘serious criminal behaviour’. Was the conduct of U103 ‘relative’ to trafficking controlled drugs 161 The applicants’ second contention was that the conduct of U103 in delivering the package could not be described as ‘relative to the trafficking of controlled drugs contrary to the Controlled Substances Act’ because the package no longer contained controlled drugs. That is to say, the applicants’ submit that the conduct U103 was authorised to engage in was conduct relative to the trafficking of controlled drugs (leaving aside the other limbs of the approval for now) and that, as the controlled delivery involved a package that did not contain any controlled drugs, U103’s conduct was, if anything, conduct relative to attempting to traffic controlled drugs. 162 If the premise of this contention is correct, it is said to follow that U103’s conduct in delivering the package fell outside the scope of the approval and, if it involved illegality or impropriety, the evidence obtained as a result would be liable to exclusion on orthodox public policy grounds. 163 I reject the submission that U103’s conduct in delivering the parcel was not authorised by the terms of the approval for a number of reasons, which build upon the conclusions I have already reached in relation to the sufficiency of the statement of the ‘serious criminal behaviour’ to which the approval related. 61 Beneficial Finance Corp Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523, 533; Harts Australia Ltd v Commissioner of Australian Federal Police (1997) 94 A Crim R 177, 183; Chong v Schultz (2000) 112 A Crim R 59. -- 48 of 108 -- [2026] SADC 9 43 164 The starting point for consideration of this limb of the applicants’ argument is that the effect of an undercover operation approval is to provide a form of ‘immunity’ to officers who participate in the undercover operation in respect of approved conduct. It may be accepted then that, subject to matters to which I will come, the identification of the conduct that an authorised participant may engage in pursuant to an undercover operation approval is an important part of the instrument. The scope of approved conduct should be identified with sufficient clarity. The remarks of Kiefel, Bell and Keane JJ in Smethurst at [27], again with respect to warrants, explain why that is so: The protective purpose to which these provisions are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised. In each case this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand. 165 As I have said, whilst caution is required before applying statements of principle concerned with search warrants to different forms of statutory instruments dealing with investigative powers,62 the conferral of an ‘immunity’ of sorts in respect of conduct carried out pursuant to an undercover operation means it is appropriate to proceed on the basis that as a general proposition, the terms of an undercover operation approval must be sufficiently clear and intelligible to enable an authorised participant to discern the metes and bounds of the conduct that may and may not attract the immunity. That is not to say however that an approval must be prescriptive when it comes to setting out authorised conduct; the nature of an undercover operation will often preclude as much and the language of s 4(4)(c)(iii) does not require as much. As is the case with respect to search warrants, a ritualistic, formulaic or detailed description is not necessarily required. The test is one of sufficiency to indicate the bounds of the conduct that is authorised.63 166 Indeed, central to consideration of the applicants’ argument is that s 4(4)(c)(iii) of the CICO Act requires only that an approval specify the nature of the conduct that an authorised participant may engage in. As I have earlier remarked, reference to the ‘nature’ of the approved conduct may be thought to mean reference to the character or general scope of approved activities. The Act does not require the individual act or acts that an undercover operative might perform during an operation to be particularised. It would be incompatible with the nature of the investigative technique that an undercover operation comprises to require such specificity. Undercover operations will often be dynamic operations, 62 Ousley v The Queen (1997) 192 CLR 69, 118-119 (Gummow J); R v Meng Kok Te [1998] 3 VR 566, 571-572. 63 Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177, [30]. -- 49 of 108 -- [2026] SADC 9 44 in which it will be difficult to predict the act or acts an operative may need to engage in to adapt to an unfolding scenario. Some level of generality is therefore to be expected in the formulation of an approval. That is not to say that no degree of specificity is required. However, the choice of language in s 4(4)(c)(iii) is significant. 167 I have emphasised on a number of occasions the difference between a search warrant and an undercover operation approval, but the distinction is of ongoing significance to this argument. The former will often be shown to a person whose interests may be affected when the coercive power of the warrant is deployed. The presentation of the warrant affords an opportunity for a person whose premises or property is to be searched to assess whether the warrant is valid on its face and whether the intrusion it purports to authorise is lawful. That is one of the reasons why the common law has traditionally required a relatively high degree of precision in the drafting of search warrants. 168 An undercover operation approval is of a fundamentally different character. Like a listening or surveillance device warrant, it is designed to operate covertly. Its efficacy depends upon its existence and terms not being disclosed or known to the person or people who may be affected by its operation.64 An approval is not designed to give notice to its intended target of the nature and scope of the proposed operation. The rationale underpinning the stricter ex facie requirements for search warrants does not carry over to approvals issued under the CICO Act. 169 It is therefore unsurprising that Parliament required only that an approval identify the nature of the conduct that authorised participants may engage in. The level of generality permitted by s 4(4)(c)(iii) is also consistent with recognition of the operational reality of covert investigations. 170 Here, the nature of the conduct that U103 and others were authorised to engage in was, amongst other things, conduct relative to the trafficking of controlled drugs. The word ‘relative’ is not a term of art; it carries its ordinary meaning, which has been said in other contexts to be ‘extremely wide’.65 Elsewhere, ‘relative to’ has been said to mean ‘relevant to’ a particular issue or fact.66 In the context in which it is used in the approval, the term ‘relative’ denotes a connection of an unspecified degree between two interrelated concepts, facts, people or events. The connection may be indirect or direct;67 but there must be a connection that is more than remote. 171 Reviewing the approval in its totality,68 the conduct authorised participants were permitted to engage in was sufficiently clear. The undercover operation targeted the drug distribution network of DR, those acting in concert with him, or 64 See, eg, Ousley v The Queen (1997) 192 CLR 69, 82 (Toohey J), 111-113 (McHugh J). 65 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620. 66 R v Trabolsi (2018) 131 SASR 297, [157]. 67 Joyce v Beach petroleum NL & S Cortaus Ltd (in liq) (1996) 67 FCR 275, 285. 68 Chong v Shultz (2000) 112 A Crim R 59, 61. -- 50 of 108 -- [2026] SADC 9 45 his associates. The approval permitted authorised participants to engage in conduct that had a connection with the trafficking of controlled drugs and DR, his co- venturers or associates. A central part of the investigation was the delivery of the package and the monitoring of its subsequent movements. Delivering the package in which the cocaine had originally been secreted, and observing who retrieved it or dealt with it, was conduct that was ‘relative’ to the trafficking of controlled drugs that DR, his associates and co-venturers were reasonably suspected of engaging in. 172 That analysis is not undermined by the fact that the cocaine was removed from the package and replaced with an inert substance. The quantity and value of the cocaine that was intercepted raised a strong prima facie case that the drugs were destined for sale and that the consignee was a person involved in the business of trafficking drugs in one way or another. The presentation of an opportunity for those associated with the enterprise of the consignee, whether in relation to the package or a ‘drug distribution network’ more broadly, to manifest an interest in the package in which those drugs arrived in Australia (and hence potentially the larger trafficking network), by delivering it to the original consignee and thereafter observing who, if anyone, took possession or control of the package, was conduct relative to the trafficking of controlled drugs. 173 I do not accept that the formulation used in the approval was vague or ambiguous, or that it failed to delineate the limits of the conduct an authorised participant was permitted to engage in. The operative criterion was whether the conduct bore a sufficient connection to – whether it was ‘relative’ to – the general species of offending under investigation, namely drug trafficking, and to the particular context in which that suspected offending arose, namely a drug distribution network with which DR was reasonably thought to be associated. The delivery of the package by U103, and the subsequent investigative steps taken, was approved conduct. To make contact with DR 174 In my view, the controlled delivery of the package also fell within the first limb of authorised conduct, namely, to make contact with DR or his associates. The delivery of a package consigned in the name of DR to the address which it was reasonable to assume he had provided for the purpose of the consignment, constituted conduct ‘to make contact with’ DR for the purpose of marshalling evidence of the connection between DR and the package; between others and the package; and between others and the drug distribution network DR was reasonably suspected of being involved in. The fact that DR was not home at the time of the delivery does not alter that. Delivering the package to the intended recipient was to engage in conduct ‘to make contact with’ the intended recipient and was therefore squarely within the terms of the authorisation. -- 51 of 108 -- [2026] SADC 9 46 Authorising a trespass 175 The applicants submitted further that the approval did not authorise a trespass onto the consignment address for the purpose of delivering the package. It was argued that, because of the jealousy with which the common law protects intrusions onto private property, an instrument such as an undercover approval must be unmistakably clear in its terms if it purports to authorise what would otherwise be a trespass. The applicants submit that authorising U103 to make contact with DR, or to take actions relative to the trafficking of controlled drugs, could not be said to unambiguously authorise a trespass, notwithstanding that the primary investigative step contemplated pursuant to the approval was the delivery of the package. 176 The argument overlays the interpretation of the approval with the concepts that underpin the principle of legality as a constructional tool. The applicants did not dispute that an approval issued under the CICO Act could authorise what would otherwise be a trespass; rather, the applicants’ contention is that the terms of the approval issued by Detective Superintendent Jeffery do not do so in unmistakable terms. 177 In the context of this particular undercover operation, the terms of the approval were both clear, and broad enough, to authorise U103’s entry onto the property at Kym Street, to deliver the package. Indeed, that was the primary, but not sole, purpose of the approval.69 Entering onto the property for that purpose was also conduct that fell within the ordinary meaning of the phrase ‘actions relative to’ trafficking controlled drugs. Furthermore, insofar as the approval contemplated the carrying out of a controlled delivery to DR’s address and approved U103 to ‘make contact’ with DR, I am satisfied (to the extent necessary) that the approval authorised U103 to enter onto DR’s property to deliver the package and potentially engage him in discussion had the opportunity arisen. Implied licence 178 If my construction of the approval is wrong, I would otherwise hold that the delivery of the package by U103 was authorised by the common law implied licence. 179 The applicants argued that the implied licence that a member of the public has to enter onto private property did not extend to permitting a police officer, posing as a courier driver, to enter private property for the purpose of delivering a package that, because of police interference with it, was not in fact the package ordered by anyone residing at the property. Nor did the implied licence authorise entry via the side of the house for the purpose of delivering the package. 180 The applicants emphasised that whether a person entering onto the property of another is acting within the scope of the implied licence is informed, in part, by what the person intended to do upon entry. It was submitted that an implied licence 69 VDP18. -- 52 of 108 -- [2026] SADC 9 47 does not, as a matter of law, permit any and all unhindered entries onto private property irrespective of the purpose of entry. A police officer entering upon land whilst impersonating a courier, to deliver a package that purported to be one ordered by the occupant, but which had been interfered with in material ways by the police for investigative purposes, was said not to be a delivery within the scope of the implied licence. 181 The common law implies a licence permitting members of the public to proceed along the path or driveway to the entrance to a residence for the purpose of lawful communication with, or delivery to, an occupant, provided that access is unobstructed, any gate is unlocked, and there is no notice or other indication that entry by visitors is prohibited.70 Such a licence will ordinarily be implied ‘…unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated...’.71 If the occupier revokes the licence, a person who has entered pursuant to it must leave the property as soon as is reasonably practicable.72 182 The starting point for analysis of the applicants’ contention is that delivery instructions for the consignment were that the package could be left inside the side gate of the premises.73 183 I would have no difficulty concluding that, had the delivery of the package in its modified or unmodified state been carried out by a courier in the ordinary course of business, the implied licence would have authorised his or her entry onto the property in the same manner as U103 entered onto the property. 184 The more difficult question, however, is whether the implied licence extended to the delivery of a package by an undercover police operative in circumstances where the parcel had been modified and reconstituted to contain, among other things, surveillance devices and where the operative’s purpose in effecting delivery included creating an opportunity for criminal behaviour to manifest and to gather evidence of the involvement of the occupants or others in a serious criminal offence. 185 The limitations of the implied licence in the context of entries onto land by police were considered in Roy v O’Neill (2020) 272 CLR 291. In that case, the appellant was subject to a domestic violence order (DVO) which prohibited her from being in the company of her partner or at his residence when she was consuming or under the influence of alcohol. Police attended at the unit at which the appellant’s partner resided as part of pro-active policing targeting domestic violence. The unit was part of a public housing complex. The police entered the yard of the complex from a public footpath and walked along a pathway shared by a number of units to the entrance of the appellant’s partner’s unit. They knocked 70 Halliday v Nevill (1984) 155 CLR 1, 6-7. 71 Halliday v Nevill (1984) 155 CLR 1, 7. 72 Roy v O’Neill (2020) 272 CLR 291, [67]. 73 T215-216; VDP18. -- 53 of 108 -- [2026] SADC 9 48 on the door. The appellant was seen through a window lying on the living room floor. Her partner was on the sofa. The appellant was called to the front door and found to be affected by alcohol, in breach of the DVO. 186 Regulation 6 of the Domestic and Family Violence Regulations 2008 (NT) conferred a power on a police officer to direct a person to submit to a breath test where an officer suspected the subject had consumed alcohol. It did not in its terms authorise entry onto premises for the purpose of administering a breath test. 187 Section 126(2A) of the Police Administration Act 1978 (NT) authorised entry onto premises if a police officer believed on reasonable grounds that a contravention of a DVO had or was occurring or about to occur. 188 It was held at trial and on appeal to a single Judge, that the approach of police to the front door of the unit was not authorised pursuant to the implied licence because their purpose was to investigate whether a crime had been committed by an occupier or to gather evidence of a crime. 189 In the Court of Appeal, it was held that the police had a ‘dual purpose’ in entering onto the property, namely, to determine whether the terms of the DVO were being contravened and to check on the wellbeing of the protected person. The existence of the latter purpose was sufficient to engage the common law implied licence. 190 In the High Court, Kiefel CJ and, in separate reasons, Keane and Edelman JJ, dismissed the appeal, holding that the police were not trespassers notwithstanding part of the reason for their attendance was to ascertain whether the appellant was complying with the conditions of the DVO. 191 Kiefel CJ adopted the approach taken in Halliday v Nevill (1984) 155 CLR 1 that for the use of the bridge between a public thoroughfare and a private dwelling (such as a path or driveway) to be legitimate, and hence within the scope of the implied licence, it must generally involve no interference with the occupier’s possession, nor injury to the occupier, their guests or their property. This, her Honour said, explained the result in Halliday v Nevill where police entered the driveway of the dwelling, not to communicate with the occupier, but to arrest a person who had taken refuge on the driveway. The entry by police onto the driveway involved no interference with the occupier’s possession and caused no injury to the occupier or others, such that the police could not be described as trespassers. Robson v Hallett [1967] 2 QB 939, which involved police entering onto property through a gate and making their way to the front door to make enquiries of the occupants having received information about an offence possibly having taken place, provided another example of entry authorised by the implied licence for the purpose of police undertaking the business of policing, without any interference with the occupier’s possession or causing any injury, in the relevant sense. -- 54 of 108 -- [2026] SADC 9 49 192 Returning to the facts in Roy, and although acknowledging that ‘injury’ was a broader concept in the law of trespass than in other torts and may include an affront to dignity or apprehension of harm, the Chief Justice held that the common law would imply a licence to the police to enter onto the property to undertake enquiries and observations of the appellant to ascertain whether the DVO had been breached. This was described as a ‘non-coercive’ aspect of police business involving no adverse effect upon an occupant and nothing that might qualify as ‘injury’ or interference. The police had a further, legitimate, purpose for entering onto the property, namely, to check on the well-being of the appellant’s partner. 193 Accordingly, Kiefel CJ held the police were not trespassing when they entered the premises. 194 Keane and Edelman JJ reached the same conclusion as Kiefel CJ. Their Honours held further (at [69]) that where the implied licence is used for the purpose of communication with the occupier of a premises, ‘the communication need not be one that is desired by, or for the benefit of, the occupier.’ Where an implied licence is confined to entry for a particular purpose, an entrant onto the land will be a trespasser if their sole purpose for entry is foreign to the permitted purpose. However, their Honours observed at [72] that ‘a person who enters for one or more of the purposes within an implied licence will not usually be a trespasser even if they have some other purpose that falls outside the scope of the licence’, describing the existence of dual purposes as reflecting ‘the realities and incidents of social life’. 195 With respect to police officers, Keane and Edelman JJ said that, subject to specific exclusion, the implied licence extends to police officers who reasonably think they have legitimate business with the occupier. Importantly, their Honours remarked (at [77]): The licence implied in law for all members of the public with a purpose of communicating with an occupier is not negated by the presence of some additional, perhaps contingent, subjective motivation. So too, the implied licence for police to communicate with an occupier is not negated by a subjective, perhaps contingent, motivation for the communication to investigate an occupier for the commission of a criminal offence. 196 However, the entry by police onto private land for the sole purpose of conducting a search of the property or to exercise a coercive power, would not fall within the scope of the implied licence. 197 Against this background, Keane and Edelman JJ accepted that if the police had only entered onto the curtilage of the appellant’s partner’s property for the purpose of administering a breath test to the appellant, the implied licence would not have authorised their entry. However, as the police had attended the unit to conduct a ‘check’ in relation to compliance with the DVO and the welfare of the appellant’s partner, their entry was within the scope of the implied licence. Their Honours concluded at [88]: -- 55 of 108 -- [2026] SADC 9 50 The finding of the Court of Appeal that the police officers had a purpose of enquiring about the welfare of [the partner] is sufficient foundation for the conclusion that the police had an implied licence to enter the curtilage of the premises, including walking down the common pathway and standing in the alcove at the main front door of the unit occupied by [the appellant] and [her partner]. That implied licence would not have been negated by any other subjective motivation for the enquiry such as to investigate [the appellant], whether or not that motivation was certain or uncertain, and whether or not it was contingent upon other events such as [the appellant] being present at the unit. 198 Bell and Gageler JJ, in dissent, accepted that the implied licence meant that a police officer could walk a path to the front door of a dwelling, stand at the door and knock, and engage any occupant who answered in conversation. Their Honours accepted further (at [34]) that a ‘police officer can do all of that in the context of investigating a crime, even if I am a suspect.’ The point of distinction between a police officer who is a licensee and a trespasser is, on their Honours’ approach, purpose (at [37]): If the purpose [of entering onto land] is just to talk to me, and in talking simply to ask for permission to come inside or to go elsewhere on my land or simply to ask for my voluntary cooperation in pursuing some inquiry, the totality of the conduct is within the scope of the licence. If the purpose is just to coerce me, the totality of the conduct is outside the scope of the licence; it is a trespass. 199 Bell and Gageler JJ held that where a police officer has any intention – whether conditional or unconditional – of ordering an occupant to do anything, their entry onto the land is a trespass and must be authorised by statute or some other common law principle. 200 Whether the ‘interference or injury’ approach taken by Kiefel CJ is preferred, or the purposive approach taken by Keane and Edelman JJ is adopted, the outcome, in my view, must be the same in this case. U103’s entry onto the land to deliver the package was authorised by the implied licence. He was not a trespasser. 201 The entry by U103 onto the land at Kym Street involved no interference with the occupants’ possession, nor injury (within the extended meaning of that term) to any occupant, their guests, or property. There is no evidence that U103 intended to exercise a coercive power (which would have defeated the purpose of a controlled delivery in any event) and there is no evidence that he did in fact exercise a coercive power. All he did was enter the property through the ‘bridge’ between the public road / footpath and the premises, push open an unlocked gate that was not latched and was ajar and inquire whether DR was present. Upon being told ‘no’, U103 left the parcel in the place he was instructed to by an occupant of the residence. I would find that a purpose of U103’s attendance at Kym Street was to deliver a package that, in material respects, was the package that DR had ordered for delivery to his address. Plainly enough, it was hoped that by delivering the package, evidence would be obtained of the connection between DR, and others, with the package which had been found to contain just under 4kg of cocaine. Neither the existence of a dual purpose, nor the potential evidentiary utility of U103’s conduct, negates the lawfulness of the entry onto the property. -- 56 of 108 -- [2026] SADC 9 51 202 The factual reality is that DR had ordered a package to be delivered to the address. The package was delivered to the address. The delivery of an item is a well-recognised and legitimate purpose for entering onto private property. One of the reasons for U103’s entry was to try and make contact with the consignee of the delivery for the purpose of effecting the delivery. That there was a duality of motive and that it was hoped that any such interaction might afford evidence of DR’s (or another’s) connection to the package, does not change the analysis. 203 Nor does the fact that the illegal contents of the package had been intercepted by police, replaced with an inert substance and surveillance devices, detract from the legitimacy of the entry. It would be a curious result if the delivery of an item, in accordance with its instructions, was considered to be beyond the scope of an implied licence because the delivery of the item, and the occupant’s subsequent dealing with it, might afford evidence of the commission of an offence, even if the occupant is not aware of that risk. 204 Even taking Bell and Gageler JJ’s approach, there is no evidence that U103 held a conditional or unconditional intention to exercise a coercive power upon entry. The mere entry onto the property for, amongst other things, investigating the commission of an offence, would not render U103 a trespasser unless he had in mind exercising a coercive power or the entry otherwise occasioned an ‘injury’ to the occupants, their possessions or others. 205 I do not think that what is said to be the deception involved in a police officer dressing up as a delivery driver alters the scenario in any relevant way. In Tararo v The Queen [2010] NZSC 157, the Supreme Court of New Zealand held that an undercover police operative who entered onto private property under the guise of being a purchaser of drugs, was not a trespasser. His entry onto the property was consistent with the implied licence notwithstanding he intended to, and did, make a covert recording of his interactions with the occupant and notwithstanding that the purpose of entry was clearly to secure evidence of the commission of an offence. The plurality observed at [14]: ...Members of the public, including police officers, may go to the door of private premises in order to make enquiry of an occupier for any reasonable purpose. In the course of doing so they may take photographs, if to do so is reasonable in order to accomplish that purpose. Police officers may avail themselves of this licence for law enforcement purposes. But they cannot involve the licence to do anything that by law requires a warrant. Making a photographic record of what the police officer does or sees while exercising the licence will ordinarily be reasonable to enable the officer thereby to support the evidence he or she can give of what was done and seen while on the premises. Making such a record does not turn the officer into a trespasser. 206 I interpolate that, to return to the present case, a warrant was needed to conceal surveillance devices within the package and if that warrant was invalid for any reason (an issue I will address later in these reasons) and there was no other source of authority to use the devices, the evidence obtained in consequence of the -- 57 of 108 -- [2026] SADC 9 52 delivery of the package would either be inadmissible (subject to the proper construction of the SD Act) or at least liable to discretionary exclusion. 207 The applicants sought to distinguish Tararo because it preceded the High Court’s decision in Roy v O’Neill. I agree that Tararo does not provide a conclusive answer to the present question, but it does lend some assistance to the prosecution’s argument. For the reasons I have given above, the point of distinction advanced cannot avail the applicants in any event because the High Court’s reasoning in Roy v O’Neill, on my analysis at least, does not have the effect of depriving U103 of the benefit of the implied licence. Authorised entry under the surveillance device warrant 208 Later in these reasons, I hold that the surveillance device warrant issued by a Supreme Court Judge on 9 March 2022 and which authorised the entry onto any premises where the ‘package’ was ‘at that time’ was a valid warrant issued under the SD Act. 209 The warrant conferred legal authority on any officer acting under the authority of Detective Pursche to enter the Kym Street premises for the purpose of installing or using the approved surveillance devices, provided the package was at the premises at the time. 210 Section 19(4)(b) of the SD Act provides further that a warrant authorising entry or interference with any premises is also taken to authorise the use of reasonable force or subterfuge for that purpose. 211 In my view, the surveillance device warrant provided a further source of legal authority for U103 to enter the property at 8 Kym Street for the purpose of installing or using the surveillance devices and to use subterfuge for that purpose, which, I find, extended to U103 holding himself out as a delivery driver or courier. Conclusion on undercover operation approval 212 For the foregoing reasons, I dismiss the challenges to the undercover operation approval and the conduct of U103. The approval issued under the CICO Act was valid and authorised the conduct engaged in by U103. It has not been established that any conduct of U103 was unlawful or improper and, accordingly, the Bunning v Cross discretion does not arise for consideration. Issue 2 - The Surveillance Devices Warrant 213 I turn then to the applicants’ challenges to the validity of the warrant issued under the SD Act. Those challenges are framed in the applicants’ Rule 39 applications in the following way: MRISHAJ: 1. The surveillance device warrant was invalid because: -- 58 of 108 -- [2026] SADC 9 53 a. It purported to authorise persons other than Officer Trudie Pursche to execute the warrant, without naming those officers (see s 19(2)(a)(ii) of the Surveillance Devices Act 2016 (SA)). b. It purported to authorise the use of surveillance devices on “any premises where the package may be at that time”, without specifying what times was being referred to, and in contravention of s 19(2)(b)(ii). 2. Alternatively, if the warrant is valid, it did not authorise what was done, in that: a. It did not authorise the use of the surveillance devices in any car (see s 19(2)(b)(ii)). b. It did not authorise the use of surveillance devices in any house (see s 19(2)(b)(ii)). 3. In relation to the audio product obtained, no material has been disclosed which proves the accuracy of the product obtained, or how the devices work. Additionally, much of the conversation is not audible and as such, it would be unfair to rely on the audible portions of the conversations where the full context in which the relevant words were spoken is not known. KOLAJ: Kolaj joins in this application and expects to adopt the submissions made by counsel form Mrishaj. 214 On 9 March 2022, a Judge of the Supreme Court issued a warrant pursuant to s 19 of the SD Act. The warrant (VDP14), which I have earlier set out but do so again for convenience, conferred on the responsible officer, Detective Brevet Sergeant Trudie Pursche, and those acting under her authority: • The power to use five (5) surveillance devices, namely, two (2) listening devices, two (2) tracking devices, and one (1) optical surveillance device. • The power to enter or interfere with a package and the contents of the package, addressed to: [DR] of 8 Kym Street, Athelstone, South Australia (DHL Waybill reference number 2570291065) and any premises where the package may be at that time, for the purposes of installing, using, maintaining and / or retrieving surveillance devices as follows: two (2) listening devices; two (2) tracking devices; one (1) optical surveillance device. 215 The warrant was in force for a period of 7 days. 216 Although the warrant authorised the use of five surveillance devices, a certificate pursuant to s 39 of the SD Act (VDP21), confirms that only one listening device and one listening and optical surveillance device were installed in the package. -- 59 of 108 -- [2026] SADC 9 54 217 The applicants contend that the warrant was invalid on its face because it failed to adequately define the ‘premises’ at which the surveillance devices could be used or installed. The applicants argue that s 19 of the SD Act required the warrant to identify the relevant premises with some precision and that the use of the phrase ‘any premises where the package may be at that time’ is ambiguous and renders the warrant bad for uncertainty. 218 The applicants submit further that whilst, on its face, the warrant authorised the use of listening devices and an optical surveillance device, it did not authorise use of a combined ‘listening and optical surveillance device’ which, according to the s 39 certificate, was placed within the package. The applicants argued, as I understood it, that a ‘combination device’ – that is, a device that has the functionality of two or more defined surveillance devices – is a separate surveillance device, the use of which must be specifically authorised by the terms of a warrant. 219 By way of further written submissions supplied on 15 December 2025, the applicants advanced two related contentions. First, they submitted that for the purpose of the ‘proscriptive’ provisions of the SD Act – that is, those provisions which prohibit the use of surveillance devices - the lawfulness of the use of a ‘combination device’ is to be determined by reference to the provisions governing each of the individual device types it incorporates. On that approach, where a combination device operates as both a listening and optical surveillance device, the lawfulness of its use must be assessed by applying separately the statutory regimes applicable to listening devices and optical surveillance devices, depending on the particular function used at the relevant time. 220 Secondly, the applicants contended that, in contrast, the ‘permissive’ provisions of the SD Act – such as those governing the issuing of warrants – require a combination device to be expressly and separately identified as such in the warrant itself. It is said to follow that a warrant authorising the use of a ‘listening device’ and an ‘optical surveillance device’ would not be sufficient to authorise the use of an integrated device possessing both functionalities. The warrant would need to refer specifically to a combined ‘listening and optical surveillance device’. 221 The applicants also challenge the admissibility of evidence obtained by what I earlier referred to as the aerial asset operated by Senior Constable Murphy, and which recorded footage of the transfer of the package from DR into the custody of the applicants; what the prosecution submit was counter-surveillance conducted by the applicants after the exchange; and their subsequent flight from the Cheadle Street premises following the arrival of police. The applicants submit that the aerial asset employed a ‘tracking device’ within the meaning of the SD Act; that the use of the ‘tracking device’ was not authorised by the warrant; and that no other provision of the SD Act authorised the use of a tracking device because, for example, it has not been established that Senior Constable Murphy was an authorised participant in the undercover operation. -- 60 of 108 -- [2026] SADC 9 55 222 As the applicants’ complaints engage with numerous provisions of the SD Act and its definitions, it is necessary to set out the relevant provisions in some detail. The SD Act 223 The SD Act is an Act that regulates, relevantly, the use of various forms of ‘surveillance devices’, described as ‘data surveillance devices’, ‘listening devices’, ‘optical surveillance devices’, ‘tracking devices’ and devices that are a ‘combination’ of any of the aforementioned, and which I will refer to as a ‘combination device’. 224 The Act adopts the general approach of prohibiting the use of these devices (other than, as will be seen, a ‘combination device’) subject to defined exceptions which include the use of a device pursuant to a warrant issued under the Act. The procedures surrounding applications for, the issue of and the form and substance of warrants issued pursuant to the Act are carefully regulated. 225 The SD Act also creates what may be referred to as ‘protection of lawful interests’ and ‘public interest’ exceptions which may be relied on in certain circumstances involving the use of listening or optical surveillance devices without a warrant. 226 Where information is obtained through the use of a surveillance device in contravention of the SD Act, its subsequent deployment, communication or publication is strictly controlled and, again, ordinarily prohibited, subject to certain exceptions. 227 I set out now the definitions of the surveillance devices relevant to these applications, and important, associated, terms. Listening Devices 228 One of the ‘surveillance devices’ regulated by the SD Act is a ‘listening device’. 229 Section 3 defines a ‘listening device’ as: (a) a device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as some other kind of surveillance device); and (b) associated equipment (if any), but does not include— (c) a device being used to assist a person with impaired hearing to hear sounds ordinarily audible to the human ear; or (d) a device, or device of a class or kind, excluded from the ambit of this definition by the regulations. -- 61 of 108 -- [2026] SADC 9 56 230 A ‘private conversation’ is a: conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation). 231 Section 4(1) makes it an offence punishable by a fine or imprisonment for up to 3 years (in the case of a natural person) to install, use or maintain a listening device to overhear, record or monitor a private conversation to which the person is not a party or to record a private conversation to which the person is a party. 232 Section 4(2) provides relevantly that subs (1) does not apply: (a) to the use of a listening device by a party to a private conversation to record the conversation if— (i) all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or (ii) the use of the device is reasonably necessary for the protection of the lawful interests of that person; or (b) to the installation, use or maintenance of a listening device if— (i) the installation, use or maintenance is authorised under this Act or any other Act or a corresponding law; or (ii) … (iii) the device is installed, used or maintained for the purposes of an approved undercover operation under Part 2 of the Criminal Investigation (Covert Operations) Act 2009 by, or on behalf of, a person who is an authorised participant in the approved undercover operation; (iv) … (v) … (c) … (d) … (e) to the installation, use or maintenance of a listening device by an officer for the purpose of recording any words spoken by or to, or within the hearing of, the officer during activities carried out in the course of the officer’s duties; (f) … (g) … (h) ... -- 62 of 108 -- [2026] SADC 9 57 Optical surveillance devices 233 An ‘optical surveillance device’ is defined in the SD Act to mean: (a) a device capable of being used to observe or record visually (whether for still or moving pictures) a person, place or activity; and (b) associated equipment (if any), but does not include— (c) spectacles, contact lenses or a similar device used by a person with impaired vision to lessen or overcome that impairment; or (d) telescopes, binoculars or similar devices, or (e) a device, or device of a class or kind, excluded from the ambit of this definition by the regulations. 234 As is the case with listening devices, the SD Act implements a general prohibition on the use of optical surveillance devices other than in prescribed circumstances. Section 5(1) of the SD Act provides: (1) Subject to this section and section 6, a person must not knowingly install, use or maintain an optical surveillance device on or in premises, a vehicle or any other thing, (whether or not the person has lawful possession or lawful control of the premises, vehicle or thing) to record visually or observe the carrying on of a private activity without the express or implied consent of each party to the activity. Maximum penalty: (a) in the case of a body corporate—$75 000; (b) in the case of a natural person—$15 000 or imprisonment for 3 years. (2) Subject to this section and section 6, a person must not knowingly install, use or maintain an optical surveillance device on or in premises, a vehicle or any other thing, to record visually or observe the carrying on of a private activity without the express or implied consent of each party to the activity and, if the installation, use or maintenance of the device involves entry onto or into the premises or vehicle, without the express or implied consent of the owner or occupier of the premises or vehicle. Maximum penalty: (a) in the case of a body corporate—$75 000; (b) in the case of a natural person—$15 000 or imprisonment for 3 years. (3) Subject to this section and section 6, a person must not knowingly install, use or maintain an optical surveillance device on or in premises, a vehicle or any other thing, to record visually or observe the carrying on of a private activity without the express or implied consent of each party to the activity and, if the installation, use or maintenance of the device involves interference with the premises, vehicle or thing, without the express or implied consent of the person having lawful possession or lawful control of the premises, vehicle or thing. -- 63 of 108 -- [2026] SADC 9 58 Maximum penalty: (a) in the case of a body corporate—$75 000; (b) in the case of a natural person—$15 000 or imprisonment for 3 years. 235 Section 5(4) replicates the ‘exemptions’ to these offence provisions which appear in s 4(2) with respect to listening devices. That is to say, the prohibitions on use of an optical surveillance device do not apply if: (1) the installation or use is authorised under the SD Act;74 (2) the device is installed, used or maintained for the purpose of an approved undercover operation under the CICO Act;75 (3) the installation or use of the device is reasonably necessary for the protection of a person’s lawful interests;76 (4) the device is used to record activity in connection with the execution of a warrant issued under the SD Act;77 (5) the device is installed or used by an ‘officer’78 to record any activity carried out in a public place in the course of the officer’s duties.79 236 As can be seen from the terms of s 5, the prohibition on installing and using optical surveillance devices is a prohibition on installing or using those devices to ‘record visually or observe the carrying on of a private activity’. ‘Private activity’ is defined to mean: (a) an activity carried on by only 1 person in circumstances that may reasonably be taken to indicate that the person does not desire it to be observed by any other person, but does not include— (i) an activity carried on in a public place; or (ii) an activity carried on or in premises or a vehicle if the activity can be readily observed from a public place; or (iii) an activity carried on in any other circumstances in which the person ought reasonably to expect that it may be observed by some other person; or (b) an activity carried on by more than 1 person in circumstances that may reasonably be taken to indicate that at least 1 party to the activity desires it to be observed only by the other parties to the activity, but does not include— (i) an activity carried on in a public place; or (ii) an activity carried on or in premises or a vehicle if the activity can be readily observed from a public place; or 74 Section 5(4)(a)(i). 75 Section 5(4)(a)(iii). 76 Section 5(4)(b). 77 Section 5(4)(c). 78 ‘Officer’ is defined in s 3 to mean, relevantly, a police officer. 79 Section 5(4)(d). -- 64 of 108 -- [2026] SADC 9 59 (iii) an activity carried on in any other circumstances in which a party to the activity ought reasonably to expect that it may be observed by a person who is not a party to the activity; 237 ‘Public place’ includes: (a) a place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier of that place; and (b) a place to which the public are admitted on payment of money, the test of admittance being the payment of money only; and (c) a road, street, footway, court, alley or thoroughfare which the public are allowed to use, even though that road, street, footway, court, alley or thoroughfare is on private property Public interest exception – Listening and Optical Surveillance Devices 238 Section 6 of the SD Act creates a broad ‘public interest’ exception for the use of listening and optical surveillance devices: (1) Section 4 does not apply— (a) to the use of a listening device to overhear, record, monitor or listen to a private conversation if the use of the device is in the public interest; or (b) to the installation, use or maintenance of a listening device under subsection (2)(b)(iv) or (v) of that section if the use of the device is in the public interest. (2) Section 5 does not apply— (a) to the use of an optical surveillance device to record visually or observe the carrying on of a private activity if the use of the device is in the public interest; or (b) to the installation, use or maintenance of an optical surveillance device under subsection (4)(a)(iv) or (v), or subsection (4)(b), of that section if the use of the device is in the public interest. Tracking devices 239 As I have foreshadowed, one of the submissions advanced by the applicants is that the aerial asset that was used to record the movements of the package and, later, the applicants, was in fact, or at least was used as, a ‘tracking device’. Although I will return to the details later, the consequence of this characterisation of the device, if it is accepted, is that the ‘public place’ and ‘public interest’ exceptions that are available in respect of the use of optical surveillance devices cannot be relied on by the prosecution in support of the admission of the aerial asset footage. 240 A ‘tracking device’ is: (a) a device capable of being used to determine the geographical location of a person, vehicle or thing; and -- 65 of 108 -- [2026] SADC 9 60 (b) associated equipment (if any), but does not include a device, or device of a class or kind, excluded from the ambit of this definition by the regulations. 241 Section 7(1) makes it an offence to: install, use or maintain a tracking device to determine the geographical location of— (a) a person without the express or implied consent of that person; or (b) a vehicle or thing without the express or implied consent of the owner, or a person in lawful possession or lawful control, of that vehicle or thing. Maximum penalty: (a) in the case of a body corporate—$75 000; (b) in the case of a natural person—$15 000 or imprisonment for 3 years. 242 Again, the SD Act creates a carve out to the offence provisions in relation to the use of a tracking device in accordance with the Act or for the purposes of an approved undercover operation.80 Use prohibitions 243 It can be seen then that the SD Act generally prohibits the use of these surveillance devices other than in defined circumstances. With respect to listening and optical surveillance devices, the emphasis of the use prohibition is on private conversations and private activities. By confining the reach of the use prohibitions to ‘private’ activities or interactions, the SD Act reveals its focus as the surreptitious recording or capturing of personal or private interactions or activities. Contrastingly, conversations carried on in a public place, for example, where it might reasonably be expected that others may overhear what is being said, or activities carried out in public or visible from a public place, are not protected by the SD Act. 244 It is important to observe at this point that the SD Act does not contain any provisions which specifically prohibit the use of ‘combination devices’, which are defined in s 3 of the SD Act as ‘a device that is a combination of’ any of the other specified devices. On the face of the provisions of the SD Act to which I have referred, the use of a ‘combination device’ is not unlawful. As will be seen, this has implications for the merits of the applicants’ arguments concerning the need for a warrant to specifically authorise use of a ‘combination device’. 245 To complement the offence creating provisions prohibiting the installation, use and maintenance of surveillance devices, the Act also injuncts the 80 Section 7(2)(a)(iii). -- 66 of 108 -- [2026] SADC 9 61 communication, publication or knowing use of material obtained by surveillance devices in contravention of the Act, subject to various exceptions. 246 As to listening and optical surveillance devices, s 9(1) provides that information obtained by the use of a device to protect the lawful interests of a person (or material derived therefrom) cannot be knowingly used, communicated or published except: (a) to a person who was a party to the conversation or activity to which the information or material relates; or (b) with the consent of each party to the conversation or activity to which the information or material relates; or (c) to an officer of an investigating agency for the purposes of a relevant investigation or relevant action or proceeding; or (d) in the course, or for the purposes, of a relevant action or proceedings; or (e) in relation to a situation where— (i) a person is being subjected to violence; or (ii) there is an imminent threat of violence to a person; or (e) to a media organisation; or (f) in accordance with an order of a judge under this Division; or (g) otherwise in the course of duty or as required or authorised by law. 247 Contravention of s 9 is also a criminal offence. 248 Section 10 is to the same effect. It prohibits use, communication or publication of information or material derived from the use of a listening or optical surveillance device in the public interest except in accordance with an order of a Judge. 249 Section 12 of the Act provides: 12—Prohibition on communication or publication derived from use of surveillance device (1) A person must not knowingly use, communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device in contravention of this Part. Maximum penalty: (a) in the case of a body corporate—$75 000; (b) in the case of a natural person—$15 000 or imprisonment for 3 years. -- 67 of 108 -- [2026] SADC 9 62 (1a) A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4 of the Listening and Surveillance Devices Act 1972 (as in force immediately prior to the commencement of this Act). Maximum penalty: $10 000 or imprisonment for 2 years. (2) This section does not prevent the use, communication or publication of information or material derived from the use of a surveillance device in contravention of this Part— (a) to a person who was a party to the conversation or activity to which the information or material relates; or (b) with the consent of each party to the conversation or activity to which the information or material relates; or (c) for the purposes of a relevant investigation or relevant action or proceeding relating to that contravention of this Part or a contravention of this section involving the communication or publication of that information or material; or (d) in the course of proceedings for an offence against this Act; or (e) otherwise in the course of duty or as required by law. (3) A person who obtains knowledge of information or material in a manner that does not involve a contravention of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part. 250 It can be seen that whilst s 12 is applicable to ‘surveillance devices’, which includes a ‘combination device’, the prohibition is only engaged where the device has been used ‘in contravention’ of Part 2 of the SD Act. As there is no provision of Part 2 of the SD Act that specifically makes it unlawful to use a ‘combination device’, the use of such a device would not be ‘in contravention’ of the Act and there is, therefore, no prohibition on deploying the information or material thereby obtained. Warrant procedures 251 It is apparent from the provisions to which I have referred, that the prohibitions on installation and use of a surveillance device do not apply where installation or use is authorised under the SD Act. 252 Part 3 of the SD Act outlines the circumstances in which warrants may be issued for the use of surveillance devices. 253 Sections 13 to 15 deal with applications for tracking device warrants where a relevant agency seeks to install and use a tracking device or devices on a vehicle or thing situated in a public place, or in the lawful custody of the agency. It was -- 68 of 108 -- [2026] SADC 9 63 not suggested during argument that the aerial asset, if it did indeed use a tracking device, required a warrant issued pursuant to ss 13 to 15. 254 Part 3, Division 2 of the SD Act, which is headed ‘Surveillance device (general) warrants’, fixes the procedures relating to and criteria for issue of warrants for the use of one or more types of surveillance device, including where an agency proposes to enter of interfere with any premises or vehicle for the purpose of installing, using, maintaining or retrieving a surveillance device/s. 255 Section 16 defines the circumstances in which the Division applies: This Division applies if, for the purposes of the investigation of a matter by an investigating agency, the agency requires the authority to do any or all of the following: (a) to use 1 or more types of surveillance device (including a tracking device); (b) to enter or interfere with any premises for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices; (c) to interfere with any vehicle or thing for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices. 256 It is clear from the chapeau to s 16 that the Division only applies where an agency requires the authority to do one of the things specified in placita (a), (b) or (c). That is to say, conduct that would be unauthorised (unlawful) without a warrant, attracts the operation of the Division. An agency does not require the authority to use a listening or optical surveillance device, for example, if the device is not being used to record a private conversation or private activity because such use would not be unlawful. Nor does an agency require authority to use either of those devices where the use is in the public interest (although an order of a Judge authorising the deployment of any information or material collected by use of the device would be necessary). Similarly, an agency does not require authority for an authorised participant to use a device in the course of an approved undercover operation. 257 Contrastingly, where the installation or use of a surveillance device would require legal authority because it involves entry or interference with premises or a vehicle or a thing, s 16, and the provisions of the Division more generally, are triggered. 258 Section 17 deals with the application process and content and specifically adverts to applications for a warrant authorising entry to or interference with premises: (1) An officer of an investigating agency may, for the purposes of an investigation by the agency, apply to a judge for a surveillance device (general) warrant authorising 1 or more of the following: (a) the use of 1 or more surveillance devices (including a tracking device); -- 69 of 108 -- [2026] SADC 9 64 (b) entry to or interference with any premises as reasonably required for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices; (c) interference with any vehicle or thing as reasonably required for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices. 259 Section 19 provides that a Judge of the Supreme Court may issue a ‘surveillance device (general) warrant’ if satisfied that there are, in the circumstances of the case, reasonable grounds for issuing the warrant taking into account the criteria set out in s 19(1), namely: (a) the extent to which the privacy of any person would be likely to be interfered with by use of the kind of device to which the warrant relates; and (b) the gravity of the criminal conduct to which the investigation relates; and (c) the significance to the investigation of the information sought to be obtained; and (d) the likely effectiveness of the use of the surveillance device in obtaining the information sought; and (e) the availability of alternative means of obtaining the information; and (f) any other warrant under this Act applied for or issued in relation to the same matter; and (g) any other matter the judge considers relevant. 260 Section 19(2) prescribes the information that must be contained in a warrant: (2) A surveillance device (general) warrant— (a) subject to subsection (3), must specify— (i) the name of the applicant; and (ii) if the applicant is not to be the officer primarily responsible for executing the warrant—the name of the responsible officer; and (b) must specify— (i) the kind of surveillance device to which the warrant relates; and (ii) if the warrant authorises the use of a surveillance device on or in premises or a vehicle—the premises or vehicle; and (iii) if the warrant authorises the use of a surveillance device in or on a thing or a thing of a class—the thing or class of thing; and (iv) if the warrant authorises the use of a surveillance device in respect of the conversations, activities or geographical location of a person— (A) the name of the person (if known); or -- 70 of 108 -- [2026] SADC 9 65 (B) if the name of the person is unknown—that fact and a general description of the person; and (v) the period for which the warrant will be in force (being a period not longer than 90 days); and (c) may contain— (i) conditions and limitations; and (ii) any other matter as the judge thinks fit. 261 It is important to observe in the context of s 19, that ‘premises’ is defined in s 3 very broadly: premises includes— (a) land; and (b) a building; and (c) a part of a building; and (d) any place, whether built on or not, whether in or outside this State. 262 Whilst the SD Act also defines ‘public place’, it does so in a manner that means a public place may nonetheless fall within the definition of ‘premises’. That is to say, the definitions are not mutually exclusive. 263 ‘Vehicle’ is also defined broadly to include ‘any vessel or aircraft’. 264 Section 19(4) provides that, subject to any conditions or limitations specified on its face, a warrant authorising entry to or interference with any premises, vehicle or thing will be taken to authorise (s 19(4)(b)): (i) the use of reasonable force or subterfuge for that purpose; and (ii) any action reasonably required to be taken in respect of a vehicle or thing for the purpose of installing, using, maintaining or retrieving a surveillance device to which the warrant relates; and (iii) the extraction and use of electricity for that purpose or for the use of the surveillance device to which the warrant relates; and (c) a warrant authorising entry to specified premises will be taken to authorise non- forcible passage through adjoining or nearby premises (but not through the interior of any building or structure) as reasonably required for the purpose of gaining entry to those specified premises; and (d) the powers conferred by the warrant may be exercised by the responsible officer or under the authority of the responsible officer at any time and with such assistance as is necessary. -- 71 of 108 -- [2026] SADC 9 66 265 It would appear from s 19, that a warrant may authorise one or all of the activities to which s 19(2)(b) refers and, the extent to which it does will determine the requirements of s 19 that are applicable. A warrant must also specify the kind of surveillance device to which the warrant relates (s 19(2)(b)(i)), although this can mean no more than that the warrant must identify which of the devices defined in s 3 of the Act it authorises. For example, a warrant authorising the use of a tracking device, need only reference a ‘tracking device’ as that is the ‘kind’ of device to which the warrant relates. Specification of ‘the’ premises 266 The applicants emphasised that s 19(2)(b)(ii) requires that a warrant specify the premises on or in which a surveillance device is authorised to be installed or used. They submit that the identification of premises in a warrant must therefore be clear and that what might, for convenience, be described as ‘class’ identification will rarely, if ever, suffice. Put another way, a warrant would not meet the criteria prescribed by s 19(2)(b)(ii) by referencing premises forming part of a particular class or group that a device may be used in from time to time. The applicants argue that the specification of the premises must, in a sense, be property-centric, pointing to the use of the definite article ‘the’ in s 19(2)(b)(ii). For this reason, specifying premises by reference to where an object in which a surveillance device is installed may be from time to time fails to meet the requirements of s 19(2)(b)(ii) and renders the warrant invalid for two further reasons: first, it purports to define the scope of the coercive powers of the warrant by reference to where the package ‘may be’ (that is to say, where the package ‘might be’ but need not, in actual fact, be located); secondly, the warrant ostensibly intends to place a condition on the breadth of the power it confers by limiting the time at which the power could be exercised (‘may be at that time’) but fails to specify the relevant time – ‘at that time’ being incapable of ascertainment. 267 It is at least implicit in the applicants’ submissions,81 that the effect of s 19(2)(b)(ii) is to require any premises (or vehicles) on or in which a surveillance device may be used during the currency of a warrant to be specified on the face of the warrant, irrespective of whether the device is installed in an object or thing and only passes through premises as a matter of happenstance. If not, the warrant does not authorise the use of the device in any such unspecified place. 268 If that is right, in the case of a device concealed within a portable object for example, the warrant would need to predict and identify every place the object might later pass through: the target’s residence, workplace, any vehicles, including public transport, rideshare vehicles or private vehicles, or any other premises the person might enter while in possession of the object, provided the device is in an operational state (and hence being ‘used’). 269 This is said to be a corollary of the choice made by the legislature in s 19(2)(b)(ii), even though in such cases, the issuing Judge must assess the 81 T305-306. -- 72 of 108 -- [2026] SADC 9 67 application for the issue of a warrant by reference to the s 19(1) criteria, knowing the very nature of the object in which the device is to be installed means it will inevitably move through multiple premises and vehicles, many of which it may not be practical to meaningfully identify in advance. The construction might be thought to require a level of prescience and specificity that is inconsistent with operational realities and the statutory scheme as a whole. 270 It would follow that in many (if not all) cases involving a ‘thing’ or object warrant, that the criteria applicable to premises and vehicle related warrants would also be engaged, notwithstanding the relevant device is to be installed (generally, but not exclusively) in a moveable item of personal property. While that is said to be the natural consequence of the protective regime created by the SD Act, in practical terms it would mean that the portability of the ‘thing’ or ‘object’ in which a device is installed would invariably trigger the need to specify every premises and vehicle through which the object might pass. Of course, I accept that it may not be every case where a device is installed in a moveable object. Devices installed on a fixed object, such as a stobie pole, would not raise the same issue. 271 The alternative construction advanced by the prosecution is that s 19(2)(b)(ii) is only engaged where an investigative agency requires authority to enter or interfere with premises or vehicles in order to install or use a surveillance device. That will primarily (although not exclusively) be where what is proposed is a fixed or static installation and use of a device in premises or a vehicle (for example, entry into a private residence to conceal a listening device within the house). When must premises be specified in a warrant 272 The language of s 19(2)(b)(ii) raises, to my mind at least, a number of questions. Perhaps most importantly, the text of the provision only requires premises to be specified in a warrant where the warrant authorises the use of a surveillance device ‘on or in’ the premises. Precisely what is contemplated by use of a device ‘on or in’ premises is not defined by the Act. Does the term contemplate only the ‘static’ or ‘fixed’ use of a device that is effectively secreted somewhere within premises, whether it be in a room, light fitting or air-conditioning duct for example? Or does the term contemplate any premises (and vehicles) through which a device secreted in an object, like a mobile phone or handbag, might travel or pass through during the currency of a warrant? If so, how could those premises and vehicles be meaningfully identified in advance? Are the ‘premises’ to which s 19(2)(b)(ii) refers only those premises to which the agency requires (s 16(b)), and may seek (s 17(1)(b)), authority to enter or interfere with in order to install, use, maintain or retrieve a device? 273 In SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [71], Gageler J (as he then was) explained how the correct constructional choice might be arrived at: Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology. Nothing simpler or more sophisticated is involved -- 73 of 108 -- [2026] SADC 9 68 than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part. Linguistic indications are important. More important is the ‘purpose and policy’ reasonably attributed to the provision within the statutory scheme. 274 As I have said, if s 19(2)(b)(ii) is taken to apply to a warrant authorising the use of a device in a thing or object because the thing or object might pass through or be conveyed through premises (as that term is very broadly defined), then it would seem that the dual requirements of ss 19(2)(b)(ii) and (iii) would be engaged in every (or at least most) cases involving a thing or object warrant. It is difficult to imagine a scenario in which a device may be used in a portable ‘thing’ or ‘object’ that will not, at some stage, be used when the object or thing is on or in ‘premises’, given the breadth of that defined term. By itself, that may not be thought problematic at a conceptual level; but at a pragmatic level, the consequence of reading s 19(2)(b)(ii) in this way is that a warrant authorising the use of a device in a portable thing or object that might also, incidentally, be conveyed onto or through various premises and vehicles, would need to specify those premises and vehicles. Here, for example, did the warrant need to mention not only 8 Kym Street, but the three vehicles in which the package was conveyed during the day; and all of the locations the package traversed, including the car- park of a supermarket complex (having regard to the very wide definition of ‘premises’)? In many cases, it may be expected that it would be impractical for a warrant to list at all or in any meaningful and clear way all of the premises or vehicles in which a device might be ‘used’ to ensure that the scope of the warrant is ascertainable. 275 To my mind, the difficulties associated with s 19(2)(b)(ii) are addressed by a construction of the phrase ‘on or in premises’ that maintains a cohesiveness between the territory principally covered by ss 19(2)(b)(ii) and (iii), acknowledging that in some cases there will necessarily be overlap of those provisions, and by understanding the interrelationship between ss 16(b), (c), 17(1), 19(2)(b)(ii) and 19(4). 276 In my view, there are two circumstances in which s 19(2)(b)(ii) is to be read as requiring premises to be specified in a warrant. 277 The first circumstance is where the warrant authorises the use of a surveillance device ‘on or in’ particular premises. This relates to situations in which the device is to be installed and operated (used) at the premises themselves (in contradistinction to within an object or thing that happens to be conveyed onto premises), for example by affixing it to a wall or ceiling or concealing it within a cupboard, light fitting or similar location. That is to say, the first circumstance contemplates a static or semi-static deployment of a device or devices at the ‘premises’ for the purpose of recording activities, conversations or other sounds occurring there and not merely incidental presence of the device at a particular location. -- 74 of 108 -- [2026] SADC 9 69 278 The second circumstance is where the warrant authorises entry onto or interference with premises (or a vehicle) for the purpose of installing, using, maintaining or retrieving a device. Although 19(2)(b)(ii) does not expressly extend so far, that requirement follows, at least, by necessary implication from the combined effect of ss 16(b), (c), 17(1)(b), 19(1) and 19(4) of the SD Act. 279 The dual circumstances in which I would read s 19(2)(b)(ii), or s 19 more generally, as requiring specification of premises in a warrant gives effect to the objects of the legislation, the protective policy enshrined in the warrant regime and general prohibitions on the use of surveillance devices other than in prescribed circumstances, the statutory text and appropriately maintains an independent field of operation for premises, vehicle and thing or object warrants. The meaning of ‘use on or in premises’ in s 19(2)(b)(ii) 280 I expand first on the meaning of the phrase ‘on or in premises’ in s 19(2)(b)(ii). In my view, properly construed so as not to strain the language of the provision whilst still giving effect to the protective purpose of the SD Act and maintaining its practical operation, the phrase ‘on or in premises’ is concerned with what may broadly be described as ‘static’ or ‘semi-static’ installations or uses of devices at particular premises. That is to say, s 19(2)(b)(ii) is engaged where the warrant authorises the deployment of a device on premises or in premises in a manner that contemplates the device remaining in situ. In each scenario, the device is left operational at the premises and is intended to record from that fixed location. It is this form of static or semi-static operation that attracts the requirement to specify the relevant premises in the warrant. 281 Contrastingly, where a device is deployed in a ‘thing’ or object in accordance with s 19(2)(b)(iii), it is not necessary for a warrant to specify any and all premises or vehicles through which the device may incidentally be conveyed. In such circumstances, the device is not being used ‘on or in’ premises in the sense contemplated by s 19(2)(b)(ii); it is being used in the thing or object itself and the requirement to specify premises is not engaged. 282 This construction of the phrase ‘on or in premises’ is supported by the need to maintain a functional distinction between warrants authorising the use of devices installed in a thing or object which may incidentally be conveyed through premises (in which case, subject to a matter I will come to, s 19(2)(b)(iii) alone fixes the criteria against which the validity of a warrant is to be measured) and warrants authorising the use of a device to be used ‘on or in’ premises in the sense that the devices are to remain at and operate from the premises during the currency of the warrant: in other words, devices that are intended to remain at and record (whether visually or otherwise) what is occurring at particular premises. 283 If that distinction is eroded because the requirement in s 19(2)(b)(ii) extends to warrants which approve the use of a surveillance device in a thing or object merely because that thing or object may happen to pass through premises (or vehicles) during the operation of the warrant, then the functionality of the -- 75 of 108 -- [2026] SADC 9 70 authorisation scheme created by Part 3 Division 2 will be compromised. The reason is obvious: in many cases, it would be unworkable, if not impossible, for an applicant agency or an issuing Judge to identify in advance every premises (and vehicle) through which a device concealed in an object might pass during the term of a warrant. 284 If the phrase ‘use of a… device on or in premises’ (or vehicles) were interpreted to encompass any premises (or vehicle) through which a device placed within a portable ‘thing’ or ‘object’ - such as a mobile phone, or handbag – might incidentally enter while the device is operating (and therefore is being ‘used’), the validity of a warrant would depend on whether all such locations (or vehicles) had been adequately specified. Although it may not be impossible to do so in all cases by reference to circumstantial factors, the practical effect, as I have said, would be that almost every ‘thing’ or ‘object’ warrant would need to meet the conditions of both ss 19(2)(b)(ii) and (iii), regardless of how incidental or unpredictable the movement of the ‘thing’ or ‘object’ might be and notwithstanding no interference or entry into any such premises would be required by the applicant agency. 285 If that were the correct construction of s 19(2)(b)(ii), there would be little purpose in the Act differentiating between warrants authorising the use of a device in a thing or object and warrants authorising the use of a device on or in premises or a vehicle. The requirement to specify premises would apply all but universally because of the breadth of the definition of ‘premises’. I do not consider that s 19(2)(b)(ii) was intended to work that way, or that the language of the provision compels such a cumbersome and impractical construction.82 Nor is that construction necessary to give effect to the protective policy established by the SD Act, because (other than in circumstances I will discuss), the movement of the object or thing from one location to another will likely occur independently of the intervention of the agency and so will not involve entry or interference with premises by the agency. 286 I acknowledge that a device secreted within a thing or object that is conveyed through premises (or in vehicles) may be thought likely to record private conversations between members of the public within earshot (or eyeshot) of the device but who are not the subject of the investigation giving rise to its use. However, that risk to ‘privacy’ is appropriately accommodated by the requirement in s 19(1)(a) that the issuing Judge consider the extent to which ‘the privacy of any person would be likely to be interfered with by use of the kind of device to which the warrant relates’ and not by reading s 19(2)(b)(ii) in a way that would impede the sensible operation of the Division. 287 On the other hand, where the warrant contemplates the use of a device ‘on or in premises’ through a form of static or semi-static installation and operation, it is consonant with the desire of the Act to regulate impositions on property rights and 82 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320- 321. -- 76 of 108 -- [2026] SADC 9 71 privacy to require that any such premises by specified. Amongst other things, that is because the use of a device ‘on or in premises’ will ordinarily (in fact almost always one would have thought) require the entry onto or interference with the relevant premises by officers of the agency in order to exercise the power of the warrant. In that sense, reading s 19(2)(b)(ii) in the manner I have suggested assists in implementing an appropriate level of protection against arbitrary or unreasonable intrusion on property rights without unduly impeding the effective operation of the warrant machinery. 288 Having said that, a scenario can be contemplated in which a difficult question may arise as to whether a device is to be used ‘on or in’ premises in the way I have described. A minor modification to the facts of this case reveals the problem: if the package in which the devices were secreted was to be delivered to the Kym Street premises where, from an operational perspective, it was hoped the package would remain, would that amount to use of the devices ‘on or in the premises’? I acknowledge that such a scenario may raise difficult questions of degree and blur the line between ‘thing’ or ‘object’ warrants and ‘premises’ warrants. One must, in addition, be cautious not to construe s 19(2) in a way that would allow the safeguards surrounding the specification of premises to be circumvented (particularly because of the reach of s 19(4) to which I will return in a moment). 289 It may be that in such cases, the requirements of both s 19(2)(b)(ii) and (iii) will be applicable if what is envisaged is that the thing or object delivered will effectively remain at the one location so as to assume the character of a ‘static’ or semi-static installation at and operation from the relevant premises – that will be a matter for the applicant agency and the issuing Judge to address and factor into the application for and formulation of the warrant. In the event the warrant does not cover off each applicable limb of s 19(2)(b), questions as to its effectiveness in authorising operational conduct may arise. 290 In this case, the warrant authorised interference with the package in order to install or use the approved devices. Subject to the matter addressed below, the warrant did not need to specify the premises or vehicles at or in which the devices might capture conversations, noises or images. Entry onto or interference with premises 291 The second circumstance in which I would find s 19(2)(b)(ii) is engaged, or at the very least, that there it is to be implied in s 19(2) a further requirement that a warrant specify premises, arises where a warrant authorises entry or interference with premises, vehicles or a thing for the purpose of installing, using, maintaining or retrieving a device. Although it may be expected that entry or interference will be required only where a device is to be used ‘on or in’ premises (or a vehicle) in the way I have construed that phrase, that will not always be the case. 292 The basis for such an implication follows from the combined operation of ss 16(b), (c), 17(1), 19(1) and 19(4). Read together, these provisions establish that: (1) a warrant is required when an agency needs authority to use a surveillance -- 77 of 108 -- [2026] SADC 9 72 device or enter or interfere with premises to install, use, maintain or retrieve a device; (2) an application for a warrant may include a request for authority to enter or interfere with premises for any of those purposes; (3) the Judge to whom the application is made may issue a warrant where satisfied of the s 19(1) criteria which, by implication, must include a conferral of authority to enter or interfere with premises; (4) where a warrant authorises entry or interference, s 19(4) confers additional powers to use subterfuge or make forcible entry to the premises or access the premises via adjacent properties, which could not sensibly be deployed or superintended, if the warrant did not specify the premises to which entry or interference was authorised. 293 Although s 19(2) does not, in terms, expressly require a warrant to state the premises to which entry or interference is authorised, the interrelationship between these provisions and the intrusive nature of the power they confer, is such that the requirement to specify in a warrant any such premises is to be implied. Whether that is by reading the ‘premises’ to which s 19(2)(b)(ii) refers as including premises to which authority to enter or interfere is granted or by implying more generally a requirement that a warrant specify premises in those circumstances, may not matter greatly. The result is the same: any premises (or vehicle) in respect of which authority is granted to enter or interfere with must be specified in a warrant. 294 This is so regardless of whether the devices are to be used in a ‘static’ way on or in the premises (or vehicle as the case may be) or whether entry or interference is required only to facilitate the installation or use of a device that will ultimately operate elsewhere (such as the secretion of a device within a transportable item of personal property). Although in most cases entry and interference will coincide with the use of a device ‘on or in’ premises, the circumstances of this case illustrate that that will not inevitably be so. 295 The implication of a requirement that a warrant granting authority to enter or interfere with premises specify those premises may be said to be essential to the proper operation of s 19(4)(b) and (c). Those provisions deem a warrant authorising entry to or interference with premises to authorise the use of reasonable force or subterfuge to access the premises and for non-forcible passage to be taken through adjoining or nearby premises as reasonably required for the purpose of gaining entry to the specified premises. Unless a warrant is required to specify the premises to which entry or interference is authorised, it becomes difficult, if not impossible, to police compliance with s 19(4). 296 Reading s 19(2) generally or s 19(2)(b)(ii) in particular as requiring premises to be specified whenever a warrant authorises entry or interference for the purpose of installing, using, maintaining or retrieving a device accords with the protective function of the SD Act and mitigates the significant intrusion that a warrant issued under the Act gives rise to. Precisely how premises are to be specified and the degree of particularity required are separate questions that I will return to. -- 78 of 108 -- [2026] SADC 9 73 297 Accordingly, I consider that a warrant must specify premises where: one, the warrant authorises the use of a device on or in premises (or a vehicle) in the sense that the device is to remain and operate at or from the premises (or vehicle); and, two, where the warrant authorises entry to or interference with premises (or a vehicle) for the purpose of installing, using, maintaining or retrieving a device. 298 Where what is contemplated is, for example, the concealment of a listening or optical surveillance device within a private residence, that activity will necessarily require entry onto and / or interference with the premises and would involve the use of a device on or in premises. Those premises must therefore be specified on the face of the warrant. So too where it is proposed to deliver an object in which there is a surveillance device to certain premises if that requires entry by an agency onto or into those premises which would not otherwise be authorised, irrespective of whether the device is to remain at those premises. 299 Outside of these scenarios, where a device is installed in a ‘thing’ or object, there is no requirement that the premises (or vehicles) in, on or through which the device may be located or pass from time to time be specified. However, the portability of a device secreted in an object or thing (which of course must be specified in a warrant by virtue of s 19(2)(b)(iii)) will doubtless shape the issuing Judge’s approach to the s 19(1) criteria. 300 In arriving at this conclusion, I have borne in mind the principles discussed in the authorities I considered at [128]-[133]. The warrant complied with the requirements of s 19(2)(b)(ii) 301 The warrant issued by the Judge purported to authorise entry to or interference with premises in accordance with s 19(2)(b)(ii) and interference with the ‘package’, in accordance with s 19(2)(b)(iii), in order to install, use, maintain and retrieve the approved devices. 302 No surveillance device was in fact installed or used ‘on or in’ the Kym Street or Cheadle Street premises in the sense I have interpreted that phrase. The controlled operation did not involve the deployment and operation of devices in a static or semi-static manner at those premises. Rather, on the evidence before me, the devices were installed in the package that was delivered by U103 to the Kym Street premises. Entry onto the Kym Street premises was required to effect the delivery. I therefore proceed on the basis that the Kym Street premises had to be specified and I leave aside the effect, if any, of the findings I have earlier made in respect of the undercover operation approval and the common law implied licence. 303 After delivery of the package, the devices apparently recorded (on the prosecution case) some sounds and / or images of the movement of the package into DR’s vehicle (or one connected with him); DR driving, with the package, through the car park of a supermarket complex; the transfer of the package by DR to Kolaj’s vehicle; the transfer of the package into Mrishaj’s vehicle; the transfer -- 79 of 108 -- [2026] SADC 9 74 of the package to the Cheadle Street premises; and dealings with the package in that residence. 304 Neither the vehicles, nor the Kym Street or Cheadle Street premises, were identified in the warrant by reference to, for example, vehicle make or registration number/s or the street address of the residences. 305 On my construction of s 19, that does not matter with respect to the Cheadle Street premises and the vehicles. The devices were not used ‘on or in’ the Cheadle Street premises or the vehicles in the relevant sense; nor was entry to or interference with those premises or vehicles necessary. Accordingly, I reject the submission that the warrant had to specify the Cheadle Street premises and any vehicles in which the devices had to be conveyed. 306 The question to be considered then is whether the warrant adequately specified the Kym Street premises to which entry was required for the purpose of deploying the devices. The Kym Street premises were adequately specified 307 Whilst s 19(2) requires that the premises to which entry or interference is authorised or at which the use of a device is authorised be ‘specified’ on the face of a warrant, it does not dictate the manner of specification. Provided that the premises are described in a way that makes them identifiable, such that those deploying the powers of the warrant can discern the limits of its authority, and a court may effectively superintend the exercise of the power conferred by the warrant, the premises will be ‘specified’ sufficiently for the purposes of s 19(2). 308 In the ordinary course, where a device is to be used on or in premises or where entry or interference with premises is authorised, it may be expected that a street address would be used to ‘specify’ the premises to which the warrant related. However, the Act does not require that and it will not always be practical or possible to do so. That does not mean that the premises cannot be ‘specified’ within the meaning of s 19(2)(b)(ii). It means only that the way in which the premises are specified may be less conventional. 309 Where the relevant premises to which entry or interference, for example, may be required is apt to change because of the nature of the investigation, yet remain identifiable by reference to a particular circumstantial fact or facts, there is no difficulty with a warrant under the SD Act specifying the premises to which the warrant relates less directly than by reference to a street address. Here, the warrant clearly identified the relevant premises by reference to where the package may be ‘at that time’ – that is, at the time that entry to or interference with premises is required in order to install, use, maintain or retrieve the surveillance devices in the package. 310 This ‘circumstantial’ identification of the premises was no less a ‘specification’ than had an address been used. The description of the premises in -- 80 of 108 -- [2026] SADC 9 75 the way set out in the warrant is neither ambiguous nor uncertain. At all times, the location of the package would determine whether relevant premises were ‘premises’ that could be entered or interfered with for the purpose of installing or using the devices. 311 In this respect, I reject the further argument of the applicants that the identification of the premises by reference to where the package may be at that time was unworkably vague so as to render the warrant bad for uncertainty or any other reason. The words ‘where the package may be’ are not used in the sense of authorising entry into any premises where it is suspected, but not known, that the package is. Rather, they are used to connect the temporal element of the warrant (at that time) with the object of the warrant (the package) and the power of the warrant (to enter and install / use / maintain / retrieve). In this respect, the words ‘may be’ should be understood as meaning where the package ‘happens to be’ at the time entry into premises is sought for the purpose of installing or using etc a device. Read collectively, the power conferred by the warrant is clear: an authorised officer may enter (or interfere with) any premises where the package happens to be in order to, for example, install or use the devices provided that the entry (or interference) is contemporaneous with the presence of the package. Accordingly, the relevant ‘time’ at which the power to enter is conferred, as specified by the warrant, is clearly ascertainable by reference to the location of the package. 312 I reject the further argument of the applicants that because U103 conveyed the package onto the property at Kym Street, the package was not, relevantly, at the premises when entry was made. To my mind, the presence of the package on the property necessarily co-existed with U103’s entry because he was carrying it onto the property. The warrant did not require the package to have been at the premises before entry was made; or for any particular period of time. It authorised entry onto premises where the package happened to be. The package happened to be at the Kym Street premises when U103 entered onto the property because U103 had the package in his possession. 313 Again, it must be remembered that the purpose of a surveillance device warrant is to allow for the covert use of surveillance devices, typically for evidence gathering purposes. There is no requirement that the existence or content of a surveillance device warrant be brought to the attention of, or be shown to, a person whose interests may be affected by its execution. The warrant must of course be clear in delimiting where its coercive or intrusive powers may be exercised so as to enable, amongst other things, police involved in the execution of the warrant to act within its scope and the courts to enforce the limits of the warrant’s authority. 314 In my view, the surveillance device warrant met that criteria. It adequately described the premises to which the warrant authorised entry (to the extent necessary) by reference to two circumstantial facts: geographical (where the package happened to be) and temporal (‘at that time’ – namely, at the time entry -- 81 of 108 -- [2026] SADC 9 76 or interference was necessary to install or use the devices within the package).83 The warrant therefore authorised entry to premises provided there was a co- existence between the time of entry and the presence of the package at those premises. 315 Accordingly, if the warrant was required only to specify those premises to which entry or interference was authorised or ‘on or in’ which the devices were to be used, I am satisfied the warrant did so in accordance with s 19(2)(b)(ii). 316 As I have said, on my construction of s 19, it was not necessary for the warrant to specify the Cheadle Street premises because no entry onto those premises was required by the agency in order to deploy or use the devices. The devices were transmitting independently of any further actions by investigators and, unlike at 8 Kym Street, an officer of the investigating agency was not required to deliver the package to 27A Cheadle Street. As the criteria referable to an object or thing warrant were met in relation to the package, nothing further was required of the warrant with respect to Cheadle Street. 317 The applicants’ submissions that the warrant did not authorise the use of the surveillance devices at the Kym Street and Cheadle Street premises must therefore fail. So too must the complaint that the warrant is bad for uncertainty. 318 As I have said, I am further satisfied that the warrant also complied with s 19(2)(b)(iii) by adequately identifying the ‘thing’ in which the devices were to be installed and used. The use of the devices in vehicles 319 The applicants argued further that as the surveillance devices were also used in three vehicles which transported the package from Kym Street to Cheadle Street, those vehicles had to be specified on the face of the warrant. 320 I earlier mentioned that the package originally departed Kym Street in DR’s car. It was then, on the prosecution case, transferred to a car associated with Kolaj and later a car said to be associated with Mrishaj. During this time, Detective Pursche was monitoring the device product in real time and the applicants therefore contend that the devices were being ‘used’ whilst in the vehicles. 321 If s 19(2)(b)(ii) is to be read in the manner I have held, it was only necessary for the warrant to specify a vehicle(s) in which the devices were to be used if doing so required some interference with or entry into a vehicle(s) or the devices were deployed in a vehicle in a static or semi-static fashion so as to operate from a vehicle(s). There is no evidence that is the case. The devices were installed in ‘the package’. The warrant authorised interference with the package for that purpose and it authorised entry onto the Kym Street premises which was the action that 83 See, eg, R v Bunting and Wagner (No 4) [2003] SASC 252, [22], where Martin J held that a warrant authorising the applicant and ‘any 2 other police officers of the Police Technical Section…’ to enter certain premises was valid and that no further specification of the officers’ identities was necessary. -- 82 of 108 -- [2026] SADC 9 77 resulted in the deployment of the devices. Thereafter, no further activity or intervention by the agency was required. 322 The lawful collation and transmission of the product obtained by the package devices after it had, incidentally, been transferred into vehicles following its delivery to the Kym Street premises, did not depend on the specification in the warrant of each of the vehicles in which the package was, as a matter of happenstance, ultimately conveyed. Indeed, as counsel for the prosecution submitted, if the SD Act were construed in the manner contended for by the applicants so as to require specification of all vehicles in which a device concealed in an object or thing may happen to be transported from time to time, it would substantially erode the utility of such operations. It would mean, in a case such as this, that the warrant had to identify DR’s car; what was, on the prosecution case, a car connected with Kolaj; and a car connected with Mrishaj, neither of whom were suspected of being connected with the package or DR at the time the warrant was issued. 323 That construction is neither necessary nor warranted in order to uphold the safeguards which the SD Act otherwise implements through the approval process. As I have said, it may be expected that where a ‘thing’ or ‘object’ warrant is sought in situations such as the one before me, that the s 19(1) criteria will be called into sharper focus. Put another way, any concerns about the breadth of any invasion of ‘privacy’ that might come about if s 19(2)(b)(ii) has the meaning and operation I would give to it, is appropriately addressed through the approval mechanism prescribed by s 19(1). 324 As the warrant met the criteria for a s 19(2)(b)(iii) warrant, and, to the extent necessary given the entry onto 8 Kym Street, s 19(2)(b)(ii), any device product collated during the period the package was in the vehicles was not unlawfully obtained. 325 If I am wrong about s 19(2), and the warrant had to specify any vehicles in which the package might come to be, it clearly failed to do so. The warrant made no reference to vehicles at all. The use of the devices in the vehicles would therefore have fallen outside the scope of the warrant and the device product would have been obtained in contravention of ss 4 and / or 5 of the SD Act. That would, subject to s 6, render the evidence liable to exclusion on public policy grounds, or would otherwise prohibit the prosecution from using, communicating or publishing the information derived from the unauthorised use of the devices in the vehicles (s 12). However, as I understand it, the prosecution do not intend to lead any evidence obtained from the devices during the time the package was in the vehicles because the evidence is essentially unintelligible. It is therefore unnecessary for me to address further the availability of the public interest exception. -- 83 of 108 -- [2026] SADC 9 78 Installation and use of the devices pursuant to an undercover operation approval 326 Having concluded that the undercover operation approval was valid and covered the conduct of U103 delivering the package, it may also be (although I do not need to reach a concluded view about it) that the use of the devices for the purpose of an approved undercover operation by or on behalf of an authorised participant – namely, Detective Pursche, as the applicant for the approval and the responsible officer for the purpose of the warrant84 - was otherwise authorised. 327 I would not be inclined to accept the applicants’ argument that the ‘undercover operation’ carve out from the general use prohibitions in the SD Act could not be relied upon here because the undercover operation approval did not specifically mention or itself authorise the use of surveillance devices. Neither ss 4(2)(b)(iii), 5(4)(a)(iii) or 7(2)(a)(iii) limit the scope of those exceptions to devices specifically adverted to in an undercover operation approval. 328 To my mind, a purpose of excluding from the general prohibitions created by the SD Act the use of devices in the course of an approved undercover operation is to facilitate the carrying out of covert police activities without the need for a warrant, doubtless recognising that such activities are already subject to a regulated approval process prescribed by the CICO Act. 329 The applicants submitted further that to permit reliance on the undercover operation exceptions to the general use prohibitions to make good any deficiency in the warrant, would be to permit reliance on the principles concerning mistake as to the source of authority, when they could not properly be called in aid. 330 The principles concerning mistake as to authority have been discussed in a number of authorities. 331 In Lockwood v The Commonwealth (1954) 90 CLR 177 at 184, Fullagar J said: It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power. 332 In Brown v West (1990) 169 CLR 195 at 203, Mason CJ, Brennan, Deane, Dawson and Toohey JJ said of a determination purportedly, but mistakenly, made by a remuneration tribunal pursuant to certain statutory powers: However, the validity of the Tribunal’s determinations is unaffected by mistaking the source of power to make them. 333 In John Holland v Industrial Court of New South Wales [2010] NSWCA 338 at [95], Spiegelman CJ said of the principle: 84 Section 4(2)(b)(iii); Section 5(4)(a)(iii); Section 7(2)(a)(iii). -- 84 of 108 -- [2026] SADC 9 79 In the context of the exercise by an arm of the executive of a statutory power it is now the better view that a decision will not be invalidated if the holder of the power purports to exercise an inappropriate head of power, when another head of power was available. 334 In R v Romeo (1982) 30 SASR 243, a police officer who conducted a search of premises held a valid warrant under the then Narcotic and Psychotropic Drugs Act 1934 (SA). Other police held warrants under that Act that were invalid but those officers were also in possession of general search warrants that would have authorised their entry and search, notwithstanding that the officers wrongly thought, in the circumstances, that the general search warrants could not be relied upon. As Cox J explained at 277: However, if the detectives in this case correctly believed that the law authorized them to act as they did that morning, and if in an objective sense they were right about that, I do not think in principle that their acts would be invalidated merely because they had a wrong view about the proper source of their legal authority. 335 Whilst this has been said to merely be a general principle that is neither absolute nor categorical,85 it lends support to the proposition that, if the ‘undercover operation’ exception to the general prohibitions in the SD Act objectively applied so as to create a legal state of affairs that meant there was in fact no infringement of ss 4 or 5 of the SD Act, arguably, no warrant was required. It would not matter that those conducting the undercover operation did not specifically turn their mind to or rely on the exceptions: as a matter of law, the deployment and use of the devices would not have been unlawful. 336 The present would not be so much an example of mistake as to the source of authority to do an act; rather, it is simply a case where there was, as a matter of fact and law, a further basis upon which the use of the surveillance devices may have been authorised. Whether U103, or others involved in the operation, adverted to the ‘undercover operation’ exception would not, to my mind, matter. The effect of the undercover operation provisions may well be self-executing and mean that U103 delivering the devices and the subsequent use of the devices for the purpose, and in the course, of an undercover operation, was lawful. 337 The same conclusion could be arrived at in relation to the particular device/s used on U103’s person. Those devices were clearly used by a person who was an authorised participant in the approved undercover operation. They were also used to record activity in connection with the execution of the surveillance device warrant (s 4(2)(d), s 5(4)(c)) and their use was, further, in the public interest for reasons I have set out at paragraphs [420]-[428]. The type of devices installed 338 The applicants’ final challenge to the surveillance device warrant proceeded on the basis that one of the devices used in the package was a ‘combination device’ and not a ‘listening’ or ‘optical surveillance device’. The use of a combination 85 Police v Grozev [2006] SASC 353, [64]. -- 85 of 108 -- [2026] SADC 9 80 device was said not to be authorised because the warrant referred only to listening and optical surveillance devices separately. 339 In support of this submission, the applicants pointed to the certificate issued under s 39 of the SD Act (VDP21) which records: On 9 March 2022 two surveillance devices (one listening device, and one listening and optical surveillance device) were installed in the contents of a package addressed to [DR] of 8 Kym Street, Athelstone… 340 The applicants submit that although the warrant permitted the use of listening, optical surveillance or tracking devices, it did not authorise the use of a ‘device that is a combination’86 of these devices, within the meaning of s 3 of the SD Act. 341 There are no provisions of the Act which specifically regulate the use of a ‘combination device’. In fact, beyond reference to ‘a device that is a combination of’ a listening, optical surveillance, tracking or data device’ in s 3 of the Act, there is no other mention of a ‘combination’ device elsewhere in the Act. There are, of course, numerous provisions of the Act that deal with ‘surveillance devices’ generally, of which a ‘combination’ device is one. 342 However, and in contrast to the approach taken with respect to listening, optical surveillance, tracking and data devices, there are no provisions of the Act that are specifically concerned with ‘combination’ devices. 343 By way of example, s 4 prohibits the use of ‘listening devices’ and provides carve outs to that prohibition. Section 5 prohibits the use of optical surveillance devices and, again, creates a number of exceptions to that prohibition. Section 6 creates the ‘public interest’ exception for the use of listening and optical surveillance devices. Sections 9 and 10 create offences relating to the use of listening and optical surveillance device product obtained pursuant to the ‘lawful interests’ and ‘public interest’ exceptions, and s 11 makes provision for an application to be made to a Judge to use listening and optical surveillance device product. 344 Sections 7 and 8 adopt the same structured approach to the use of tracking and data surveillance devices. 345 Section 12 does create a general prohibition on the use, communication or publication of information derived from the use of a ‘surveillance device’ which would include a ‘combination’ device. However, as I have earlier pointed out, the ‘use prohibition’ in s 12 is only engaged where the relevant surveillance device was used ‘in contravention of this Part’ – that is, Part 2 of SD Act. 346 If a ‘combination device’ is a separate statutory entity to the other enumerated devices, there is no express prohibition on the use of such a device and therefore 86 T307. -- 86 of 108 -- [2026] SADC 9 81 any information or material collated by such a device is not collated in ‘contravention of’ the SD Act. Section 12 would have no operation. 347 Section 27 provides that information or material derived from the use of a surveillance device pursuant to a warrant cannot be communicated or published other than in prescribed circumstances (including for the purpose of a relevant action or proceeding). However, as the use of a combination device is not prohibited, an agency would not ‘require the authority’ to merely use such a device and hence the warrant procedure provisions would have little work to do, other than where the use of the device would require authority to enter on or interfere with premises, a vehicle or thing. 348 The various reporting and record keeping obligations created by the Act are generally applicable to ‘surveillance devices’ which, again, would include what is suggested to be the sub-group of ‘combination devices’. 349 It is curious that the Act does not expressly prohibit the installation and use of combination devices, if they are to be viewed as separate and distinct to the individual devices they may be comprised of or the functionality of which they incorporate or replicate. As I have said, one consequence of the Act not prohibiting the use of ‘combination device’ may be that the use of such a device would not be unlawful. That would create a significant gap in the regulatory scheme the Act implements. 350 To get around this, the applicants point to the structure and operation of the SD Act and divide it into ‘prohibitive’ and ‘permissive’ provisions. They contend that for those provisions of the Act that prohibit the use of surveillance devices, a ‘combination device’ is effectively to be treated as comprised of its individual capabilities. Thus, the lawfulness of the use of a combined optical and listening device will turn on compliance with ss 4 and 5. 351 The applicants submit that when it comes to the warrant provisions of the Act, a different approach is required: The Surveillance Devices Act strictly regulates the procedural and substantive requirements for a warrant which may authorise the use of a device or devices where the use of which would otherwise be prohibited. One of those strict requirements is that both an application for a warrant, and the warrant itself, specify ‘the kind of surveillance device to which the warrant relates’. …if a ‘combination device’ is to be permissibly used under the authority of a warrant, that must be specified in both the applicant and the warrant, for the Act treats this as a distinct ‘kind of device’.87 352 I am unpersuaded by the applicants’ submission that the absence of any specific reference to ‘combination devices’ in those sections of the Act that create restrictions on the use and dissemination of device product can be explained by a 87 Applicants’ Joint Supplementary Written Submissions, 15 December 2025, [15]-[16]. -- 87 of 108 -- [2026] SADC 9 82 distinction between ‘prohibitive’ and ‘permissive’ provisions, such that a different approach to combination devices can be justified when dealing with the validity or a warrant on one hand and the operation of the prohibitions in the Act on the other. 353 Although it may be accepted that Parts of the Act have a different focus, it would be anomalous for the Act to treat combination devices as separate and distinct kinds of devices for the purpose of the warrant provisions, but not the general use prohibitions. The provisions of the Act should be interpreted cohesively and consistently. 354 In my view, the absence of any express reference to ‘combination devices’ in the provisions of the SD Act that regulate the use of devices and dissemination of device product, suggests that it was not intended that a ‘combination device’ be treated as a distinct category of device. Rather, the use of a combination device is to be determined in accordance with the provisions of the Act that regulate the individual devices integrated in the combination device. Were it otherwise, the proscriptive provisions of the SD Act could be easily avoided by everyday items such as smart phones which could quite readily be described as combination listening and optical surveillance devices. Aspects of the regulatory machinery of the SD Act would become all but obsolete if that were the case. In this respect, I agree with the applicants’ submission that the general use prohibitions relevant to a ‘listening device’ and ‘optical surveillance device’ are applicable to a combined ‘listening and optical surveillance device’. 355 Contrary to the applicants’ submission, however, I consider that this answers the question of the degree of specificity required by s 17(4)(v) of an application for a warrant and by s 19(2)(b)(i) in a warrant itself. 356 While both provisions require an application and a warrant respectively to specify the ‘kind of device’ to which it relates, the degree of specificity required must be assessed in light of the broader context and operation of the Act. Notably, the Act appears to avoid dealing with ‘combination devices’ as a separate and distinct category of device in Parts 1 and 2. That drafting choice is consistent with a legislative intention that combination devices be regulated by reference to the provisions governing the individual device functions they incorporate. 357 I am also unconvinced that the applicants’ submission – that a more sophisticated or multifunctional device makes it more difficult to satisfy a Judge that reasonable grounds exist for issuing a warrant – supports the contention that a warrant must specifically refer to a ‘combination device’.88 In my view, what is important is that the capabilities of the device or devices for which authorisation is sought are articulated in the warrant application. If those capabilities are accurately described, it is of no real consequence whether they are contained in a single integrated device or split across two separate devices. 88 Applicant’s Joint Supplementary Written Submissions, 15 December 2025, [17]. -- 88 of 108 -- [2026] SADC 9 83 358 It must also be remembered that what s 19 requires is specification of the kind of device or devices that are authorised for use. The section does not require any particular, technical details to be included. To my mind, the requirements of s 19(2)(b)(i) are discharged in the case of a ‘combination device’ by a warrant authorising the use of devices that make up its integrated capabilities. 359 If that is right, so long as the warrant made provision for the use of listening and optical surveillance devices – as it did – of an equal or greater number than the devices of that class that were in fact used, it was not necessary for the warrant to specifically authorise the use of a device that was a ‘combination of a listening and optical surveillance device’. 360 The warrant therefore authorised the use of a ‘listening and optical surveillance device’ as it validly authorised the use of each sub-group of surveillance device comprising the capabilities of the combined device. 361 As to the device worn by U103, and to the extent necessary, I would have found additionally that the use of any device on his person, was within the ‘undercover operation’ carveouts to ss 4 and 5 of the SD Act. It would follow that the use of the device was not prohibited by the Act and hence any information obtained as a result of the use of the device was not in ‘contravention of’ the SD Act. The injunction in s 12 on the use, communication or publication of any information or material derived from the surveillance device would be inapplicable. Issue 3 - The aerial asset 362 I move then to the further challenge to the admissibility of evidence obtained by what was referred to throughout the voir dire as an ‘aerial asset’ used by police as part of the controlled delivery. The objection was set out in the Rule 39 application of Kolaj in the following way: K4 Drone footage and reported observations of police reliant upon the drone footage, including evidence of ‘flight’. The drone, mounted with (or featuring an integrated) camera, constitutes an optical surveillance device or tracking device or combination of the two, within the meaning of the Surveillance Devices Act 2016 (SA). The surveillance was unlawful as there was no warrant authorising the optical surveillance and/or tracking device. Warrant L22025-00 only purports to authorise those devices installed within the package. (Trudie Pursche 20/05/2022 [11-13]); Warrant LL22025-00. 363 Mrishaj joins in the application. 364 Although there is considerable mystery surrounding the precise functionality and operability of the asset due to an unchallenged public interest immunity claim, it is submitted by the applicants that the asset appears to use equipment that would meet the definition of both an optical surveillance device and a tracking device. -- 89 of 108 -- [2026] SADC 9 84 The applicants argue that because the asset is capable of and in fact functioned as a tracking device, the prohibition in s 7 of the SD Act is engaged and information or material derived from the asset cannot be used, communicated or published. Unlike ss 5 and 6, which exclude from the definition of ‘private activity’ activities readily observable from a public place and otherwise create a public interest carve out for use of an optical surveillance device, there are no equivalent exceptions with respect to tracking devices. 365 Although I have set it out earlier, I repeat the definition of a ‘tracking’ device in s 3 of the Act for convenience: Tracking device means— (a) a device capable of being used to determine the geographical location of a person, vehicle or thing; and (b) associated equipment (if any), but does not include a device, or device of a class or kind, excluded from the ambit of this definition by the regulations. 366 The applicants submit that the aerial asset and / or the device or devices it operates with are capable of being used to determine the geographical location of a person, vehicle or thing and that is in fact what it did. Through the aerial asset, its operator, Senior Constable Murphy, was able to monitor and ‘track’ the movements of the vehicles in which the package was transported after delivery to Kym Street, and to monitor and ‘track’ the movements of Kolaj and Mrishaj after they allegedly fled Cheadle Street. 367 In support of this contention, the applicants point to the footage itself and the surveillance log (VDD1-7) which records the movements of vehicles and the applicants based on information transmitted by Senior Constable Murphy from the aerial asset. 368 The applicants submit that, although the asset may also meet the definition of an ‘optical surveillance device’, as a ‘single device wearing two hats’, it is not practical to separate out any information derived from its optical capabilities from any information derived from its tracking capabilities. The evidence 369 On 10 March 2022, Senior Constable Murphy, an operative within the Security and Emergency Management Service of SAPOL, received a briefing from officers with the Investigative Support Branch relative to following the controlled delivery of the parcel. 370 Senior Constable Murphy was tasked to operate the aerial asset. He had been trained in the use of the asset in February 2020 and had, at the time of the voir dire, operated it for in excess of one thousand hours.89 89 T83. -- 90 of 108 -- [2026] SADC 9 85 371 As I have adverted to, many details of the nature and functionality of the asset were the subject of unchallenged claims for public interest immunity made by Senior Constable Murphy. 372 Returning to the controlled delivery, Senior Constable Murphy explained that he was ‘operating an aerial asset and…was viewing a screen which was displaying events occurring in real time and…reporting those observations to other police.’90 He said that he had available to him two screens to observe events: a primary and secondary screen. The images displayed on the primary screen were recorded by a data writing device like a hard drive. The images displayed on the secondary screen, which provides what Senior Constable Murphy described as ‘situational awareness’ through a different field of view, were not recorded by the data writing device.91 373 Senior Constable Murphy transmitted observations he made via the screens to other police through police radio communications.92 Those observations were recorded in a surveillance log93 (VDD1-7). 374 When asked what was being shown on the screens, Senior Constable Murphy said that ‘it’s events in real time. So if I put it…on Adelaide Oval to watch the football, for example, it would show what was occurring in real time’.94 He added: ‘it is some form of optical device’95 which he later said cannot be used separately from the ‘aerial asset’.96 375 He claimed public interest immunity over whether the images seen on the screens available to him were transmitted elsewhere.97 376 The device was operated continuously throughout the morning’s events.98 377 Senior Constable Murphy’s understanding was that the aerial asset can be lawfully used by police provided that they are ‘filming’ from a public place and it is in the public interest to do so.99 This was an apparent reference to the definition of ‘private activity’ in the context of the use of optical surveillance devices, which excludes activities viewable from a public place. He said further that as the asset was being used as part of an operation targeting serious drug trafficking, it was in the public interest to operate the device on this occasion and the device was in fact being operated from a public place. 90 T81. 91 T81. 92 T82. 93 T84. 94 T81. 95 T81. 96 T85. 97 T82. 98 T82. 99 T83. -- 91 of 108 -- [2026] SADC 9 86 378 In cross examination, Senior Constable Murphy said that the aerial asset is regulated by the Civil Aviation Safety Regulations 1998 (Cth). He does not hold a remote pilot aircraft licence. The device does not permit of surveillance inside premises but permits observing the activities of occupants of a private residence in their backyard. 379 As to the surveillance log VDD1-7, Senior Constable Murphy said that any observations he made and which are recorded in the log were made ‘from the screen’.100 380 The log indicates that he commenced observations at around 9:25am. He observed the controlled delivery by U103, summarised as follows:101 ‘U103 place the carboard box (item 23) on the floor by the western side door of A1/A4 HA and knock on the door. Obs U103 walk in towards A1/A4 HA momentarily before exiting A1/A4 HA no longer in possession of the cardboard box.’ This observation, in combination with others and the footage itself, is said by the applicants to demonstrate that the device is capable of and did in fact record the yards of private premises. 381 The observations attributed to Senior Constable Murphy, again in combination with the footage itself, is said to make good the further proposition that the device is capable of determining the geographical location of a person, vehicle or thing. 382 Senior Constable Murphy was asked whether the aerial asset, with or without the optical device, enabled him to ‘determine the geographical location of a person, vehicle or thing’. Senior Constable Murphy claimed public interest immunity in response to this question and there was no challenge to that claim.102 383 Senior Constable Murphy said that when he is operating the device he is ‘with the device’ such that if the device is at a particular altitude, he too is at altitude. 384 He agreed that the public place from which he was operating the asset on 10 March was ‘the airspace’ and asserted that ss 5 and 6 of the SD Act authorised the use of the asset and associated device. 385 He agreed further that the asset, together with the optical device it uses, is capable of being used to observe or record visually a person, place or activity.103 The device allowed police to maintain optical surveillance of premises but not inside premises.104 He accepted that the device would facilitate observing activities of occupants of a private residence in their backyard.105 Indeed, Senior Constable 100 T87. 101 VDD1-7, [24]. 102 T88. 103 T89. 104 T90. 105 T90. -- 92 of 108 -- [2026] SADC 9 87 Murphy agreed that on 10 March 2022, the device allowed him to observe and record ‘over back fences into private yards’.106 386 Senior Constable Murphy was asked about the risk of the asset ‘falling from the sky’ or malfunctioning. He initially agreed with the suggestion that if there was a malfunction of the device, it could fall from ‘its position in the sky’ but later said he would not agree with this proposition; that he had been trained to manage such contingencies and he did not accept that the asset could ‘fall out of the sky’.107 387 In re-examination, Senior Constable Murphy said the optical device with the asset could be zoomed in and out depending on operational needs. The optical device is manually controlled.108 Is the asset, or the recording device, a ‘tracking device’ 388 Before addressing the applicants’ substantive submissions, it is convenient to consider whether, if the aerial asset did utilise a ‘tracking device’, its use was otherwise authorised by the terms of the warrant. Did the warrant authorise the use of a tracking device associated with the aerial asset 389 It will be remembered that, together with the preamble, the relevant clauses of the warrant provide: Warrant The warrant authorises Trudie Pursche, Detective Brevet Sergeant of South Australia Police (the Responsible Officer) and persons acting under the authority of the Responsible Officer: • The power to use five (5) surveillance devices, namely, two (2) listening devices, two (2) tracking devices, and one (1) optical surveillance device [clause 1]. • The power to enter or interfere with a package and the contents of the package, addressed to: [DR] of 8 Kym Street, Athelstone, South Australia (DHL Waybill reference number 2570291065) and any premises where the package may be at that time for the purposes of installing, using, maintaining and/or retrieving surveillance devices as follows: o two (2) listening devices; o two (2) tracking devices; o one (1) optical surveillance device [clause 2]. 390 In response to questions the parties were asked to address by supplementary written submissions following the voir dire hearing, both the applicants and the 106 T91. 107 T93. 108 T95. -- 93 of 108 -- [2026] SADC 9 88 respondent submit that clause 1 of the warrant did not authorise the use of any tracking device forming part of the aerial asset. The applicants’ submissions consisted of four elements: 391 First, clause 1 is not an operative provision of the warrant. It must be read together with, and is limited by, clause 2. Were it otherwise, clause 1 would be bad for uncertainty as officers executing the warrant would be unable to ascertain its scope. The requirement in s 17(4)(a)(v) that an application for a warrant specify the ‘nature…of the warrant sought’ requires specification of the object of the warrant, which is confirmed by the matters that the issuing Judge must take into account pursuant to s 19(1) before granting an application. 392 Secondly, clause 1 fails to specify the ‘kind of device’ to which the warrant relates. The aerial asset used a combination optical and tracking device and clause 1 fails to refer to a combination device of that kind. 393 Thirdly, if the aerial asset used a stand-alone tracking device, that device, by necessity, would have been ‘on or in a vehicle’, namely the asset, or ‘on or in a thing’, triggering the requirements of ss 19(2)(b)(ii) and (iii). 394 Fourthly, there is no evidence that Senior Constable Murphy was acting under the authority of Detective Pursche when operating the aerial asset. 395 Given the above reflects the joint position of the parties, and that the applicants’ fourth contention must be accepted on the current state of the evidence, I will not address the applicants’ submissions further. Did the aerial asset use a ‘tracking device’ 396 I turn then to the further question of whether the aerial asset used a ‘tracking device’. 397 Whilst the evidence leaves a number of matters relating to the aerial asset uncertain, it seems clear enough that the asset operates at altitude in conjunction with an optical device (not using that term in the technical sense contemplated by s 3 of the SD Act for now) that displays images on two screens visible to the operator of the asset. The optical device is controlled manually by the operator of the asset. It can be zoomed in or out depending on operational needs. The observations transmitted to the primary screen available to the asset operator are recorded. Observations transmitted to the secondary screen are not recorded. As was the case with entries 48, 49 and 50 on the surveillance log, observations made by the asset operator through the secondary screen may nonetheless be relayed via police communications when necessary. 398 The operator has the asset within their line of sight at all times and is at altitude if the asset is at altitude. 399 The asset is operated from a public place, namely, the airspace. It is however clear that the optical device is capable of recording the backyards of private -- 94 of 108 -- [2026] SADC 9 89 residences and even if the device is being used to observe a particular person, vehicle or thing, it may incidentally capture the activities of others, including on private property. 400 The recording of the primary screen available to the operator tends to suggest the asset is equipped with a camera and the tendered footage demonstrates that the camera can be manoeuvred to capture areas, people, vehicles or things of interest or relevance to the operator. That is, the device can be used to record visually a person, place or activity and would therefore appear to meet the definition of ‘optical surveillance device’ within the meaning of the SD Act. 401 Whether the asset, or the device it works in conjunction with, is also a ‘tracking device’ (or more, accurately, is capable of being used as a tracking device) is a more difficult question to answer. 402 As previously noted, the applicants contend that the device was capable of being used - and was in fact used - to determine the geographical location of a person, vehicle or thing. They argue that, for a device to fall within the statutory definition of ‘tracking device’, it is not necessary that it independently generates geo-positional data such as GPS co-ordinates. A device that allows for the plotting of a person’s movements would fall within the definition. 403 On the argument as initially framed, a wide range of optical surveillance technologies - being devices capable of observing or recording a person’s movements over time – would likely fall within the definition of ‘tracking device’. A CCTV camera mounted to the exterior of a supermarket could, on the submission, meet the definition of a ‘tracking device’ because it is capable of visually capturing a person as they move through the camera’s field of vision, allowing their geographical location to be discerned. Likewise, a mobile phone109 held above a crowd and used to record footage would, on the applicants’ analysis, be capable of determining the geographical location of a person captured in the footage and might therefore meet the definition of ‘tracking device’. Any other form of camera that records a person walking from one street to another could be said to be capable of determining that person’s geographical location in a broad sense. It would follow that such devices would have to be treated as a tracking device, attracting the restrictive regime in s 7 of the SD Act and excluding the availability of the public interest or lawful interest exceptions to the use prohibition on optical surveillance devices. 404 If that is so, those provisions of the Act that deal with optical surveillance devices would have a considerably reduced scope and operation. 405 During argument, the submission was developed to the effect that only a device capable of plotting the location of a person over time such that, in the event the person changes location, the device can ‘quite literally track that movement’, 109 I note that it has been held in relation to similar legislation that a mobile phone can be a ‘surveillance device’: Watkins v The Queen (2015) 257 A Crim R 436. -- 95 of 108 -- [2026] SADC 9 90 would be a ‘tracking device’. Whether that refinement would narrow the scope of common-place optical surveillance devices that would be caught by the definition of ‘tracking device’ may be debatable. 406 By itself, that ‘tracking device’ might be broadly defined and capture a range of different devices that also have another function is no reason to read down the definition. 407 However, if the definition of tracking device is to be understood in the way the applicants contend, the provisions of the SD Act dealing specifically with optical surveillance devices would, to a significant extent, be rendered otiose. I do not suggest it is impossible, but it is difficult to conceive of an optical surveillance device that would not have the capacity to determine the geographical location of a person, because, by definition, an optical surveillance device is one that can observe or visually record the movements of a person, and hence monitor their geographical location (in some respects), even when the location is changing. 408 If that sufficed to constitute the ‘determination of geographical location’, then many optical surveillance devices would fall within the definition of ‘tracking device’. The Act would, in effect, have gone about defining, regulating and creating tailored exceptions for the use of optical surveillance devices, all for those provisions to be displaced by the more restrictive regime governing tracking devices (at least where the optical device was used both as an optical device and a ‘tracking device’). That outcome would offend the general rule of construction that strives to give each provision of an Act some work to do. 409 In my view, the resolution of this dilemma lies in the meaning properly to be attributed to the concept of ‘determining the geographical location’ of a person, vehicle or thing. The verb ‘determine’ is used in the sense of ‘ascertain’, ‘finding out’, ‘identifying’ or ‘establishing’ the geographical location of a person, vehicle or thing.110 A tracking device is therefore one that possesses the capability of ascertaining a person’s geographical location, rather than merely depicting movements in a way that might allow for geographical location to be inferred. A tracking device would likely generate or provide some form of location data or information. While the nature of that data or information may vary depending on the technology employed, the essential characteristic is that the device ascertains geographical location. 410 Contrastingly, an optical surveillance device, without more, merely captures visual images of a person, vehicle or object and its surroundings. A conventional camera or similar optical device does not itself determine the location of what it records or captures; it produces a visual representation, from which location may be deduced using other sources or information or expertise. When combined with extrinsic material or further information – like familiarity with a streetscape or use of a digital map – an observer may draw an inference about the location of a person 110 The New Shorter Oxford English Dictionary (1993), 651. -- 96 of 108 -- [2026] SADC 9 91 depicted at the time the recording was made. But that is a product of the application of knowledge of or familiarity with the relevant scene by an observer of the device product or additional sources of information, and not the functionality of the device itself. A camera recording the movements of a person from street to street, may be used in conjunction with a digital road map to determine which street the person is on at any given time; that would not, in my view, render the camera a tracking device because the camera itself is not capable of determining the geographical location of the person. 411 Giving appropriate emphasis to the concept of ‘determining the geographical location’ of a person or object that is central to the definition of ‘tracking device’ also achieves a more harmonious operation between the provisions of the SD Act as they relate to optical surveillance devices and tracking devices. 412 That is not to deny that difficult questions may arise where a camera or optical device embeds the images it captures with location or geo-positional data whether in the nature of GPS co-ordinates or otherwise. An optical device of that kind that also communicates location data or information may well fit the definition of a tracking device and, in that case, the application of ss 5 and 7 may depend on the use that is made of the device on a particular occasion. However, that need not be considered further because, to return to the present case, the evidence does not establish that the images produced by the device, provided the operator with any form of location data that would have, without more, enabled the operator to determine the geographical location of any person or vehicle. 413 The evidence establishes no more than that the device merely transmitted images to the screens in front of the operator who was then able to relay that information to other police. I accept that the surveillance log makes reference to street names and the like but the evidence does not establish that to have been the product of, or actual location data supplied by, the device forming part of the asset. 414 In fact, the device seems to fall squarely within the meaning of optical surveillance device in that it allows a person, vehicle or thing to be observed visually. In this respect, whilst the device allows one to observe the movements of a particular person or vehicle within its field of view from point A to point B, the evidence does not demonstrate that, by itself, the device determines the geographical location of that person, vehicle or thing. The evidence tends to suggest that the geographical location of any person or vehicle within the field of view of the device is not determined by the device but, rather, by external or additional information. 415 I find that the device used by the aerial asset on 10 March 2022 was not a tracking device within the meaning of s 3 of the SD Act. The device was not ‘used’ to determine geographic location 416 In any event, even if the device in question was capable of being used to determine the geographical location of a person, for the same reasons I am not -- 97 of 108 -- [2026] SADC 9 92 satisfied it was in fact used in that way and hence the prohibition in s 7 of the SD Act is not engaged. The device was used to observe and record visually a person, vehicle or activity and hence was used as an optical surveillance device. Whether the use of the device was lawful is therefore to be determined in accordance with ss 5 or 6 of the SD Act. Not a ‘private activity’ 417 By way of reminder, s 5 of the SD Act prohibits the use of an optical surveillance device to record visually or observe the carrying on of a private activity without consent of the parties involved in that activity. 418 ‘Private activity’ is an activity carried on by a person or people in circumstances that may reasonably be taken to indicate that the person or people do not desire the activity to be observed by another, but does not include: (1) an activity carried out in a public place; or (2) an activity carried on or in premises or a vehicle if the activity can be readily observed from a public place; (3) an activity carried on in circumstances in which the person ought reasonably to expect it may be observed by another person. 419 The footage recorded by the aerial asset shows that, for much of the time, the activities of DR and the applicants occurred in public places, including on roads and footpaths. To the extent that the activities of DR and the applicants, including traversing over or entering upon private property were recorded, these activities were readily observable by the asset which was being operated in a public place. It may also be said that those engaging in allegedly criminal conduct should reasonably expect that their activities may be observed by others, including law enforcement officers. Accordingly, I find that the optical surveillance device did not record ‘private activity’ as defined and hence the prohibition in s 5 of the SD Act was not engaged. Use in the public interest 420 I am also satisfied that the use of the device was in the public interest, within the meaning of s 6(2)(a) of the SD Act. 421 The concept of ‘public interest’ is a protean one with no fixed definition or meaning.111 In O’Sullivan v Farrer (1989) 168 CLR 210 at [13], Mason CJ, Brennan, Dawson and Gaudron JJ said: Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.112 111 Channel Seven Perth Pty Ltd v S (a company) [2005] WASC 175, [18]-[21]. 112 See also Re Greyhound Racing SA Ltd [2023] SASC 63, [26]. -- 98 of 108 -- [2026] SADC 9 93 422 In the present context, whether the use of the device was in the ‘public interest’ requires consideration to be given to the legislative purpose in affording what might be described as a form of protection against invasion of privacy by prohibiting the use of surveillance devices other than in finite circumstances. It also requires recognition of the careful and comprehensive regime the SD Act creates for the issuing of warrants to law enforcement authorities and the protective provisions that form part of that regime. The concept of ‘public interest’ should not be construed so broadly as to provide a mechanism for law enforcement authorities to circumnavigate the warrant issuing procedure established by the Act. More generally, an interpretation of use that is in the ‘public interest’ should not have such amplitude as to set at nothing the general prohibitions created in ss 4 and 5 of the SD Act. Ultimately, a fact specific analysis of the circumstances in which a device is used is required. 423 However, the responsible use of a device by law enforcement for focused investigative purposes relating to serious criminal activity, may, in the ordinary course, raise a strong prima facie case of use being in the public interest. In Groom v Police (SA) [2015] SASC 101 at [36], Nicholson J said, with reference to the predecessor to the SD Act: The second context in which a listening device may be used pursuant to s 7(1)(b) is where it has been used in the “public interest”. In R v Smith, Perry J considered whether the recording of a conversation concerning the commission of a murder by two co-offenders, and the subsequent communication or publication of that recording to police, was within the “public interest”. His Honour noted: “It was in the public interest that evidence be obtained of the commission of a serious offence by Turner and Smith, if such an offence had been committed. Furthermore, the communication or publication of the record of the conversation to the police and, if it was held to be otherwise admissible, to the Court during the course of the trial, is likewise ‘in the public interest’ within the meaning of s 7(2).” 424 In Groom, Nicholson J held that the use of a listening device by the person protected by an intervention order to record a conversation with the subject of the order in breach of its terms, was in the ‘public interest’. 425 I consider that the use of the device on the aerial asset in the circumstances under consideration, provides a paradigm example of use in the public interest. The use of an aerial asset fitted with an optical surveillance device by law enforcement authorities in order to assist in the investigation and detection of serious criminal offending was in the public interest, particularly where the device was operated from a public place and hence involved no direct intrusion or invasion of property rights. 426 I do not accept that Senior Constable Murphy’s evidence that he had operated the asset for around one thousand hours since his training is of any significance in considering whether the use of the device on this particular occasion was in the public interest. The relevant question for present purposes is not whether the use of the device in the abstract is in the public interest but whether the use of the -- 99 of 108 -- [2026] SADC 9 94 device on this occasion was in the public interest. That requires a balancing of the protective purpose served by the general prohibition on the use of optical surveillance devices against the circumstances in which and purpose for which the device was used by Senior Constable Murphy. 427 As the device was used by a law enforcement authority, discharging its responsibilities to investigate and detect what was suspected to be serious criminal activity, and was used by a trained operator, I have no hesitation in concluding that the use of the device was in the public interest. 428 To the extent necessary, I would make an order pursuant to s 10(1) of the SD Act permitting the use, communication or publication of information derived from the use of the optical surveillance device in these proceedings and for purposes connected to the proceedings. Conclusion on the use of the aerial asset 429 For these reasons, I am satisfied that the use of the aerial asset was lawful and so too were the recordings produced by the device. No occasion therefore arises for the exercise of the Bunning v Cross discretion. Issue 4 - Flight 430 I turn then to the challenges to the admissibility of evidence of the applicants fleeing the Cheadle Street premises after the arrival of police. 431 By way of brief factual summary, shortly after Kolaj and Mrishaj entered the Cheadle Street premises and, on the prosecution case, began dismantling the package, police arrived and set about gaining access to the house. The anticipated evidence is that following the arrival of STAR group officers at around 12:14pm, access to the house was obtained using a battering ram which, plainly enough, would have been a noisy and somewhat startling process for those inside the house at the time. Upon gaining entry, shouts of ‘police’ were made. 432 Although the chronology cannot be determined with precision, at around the same time Kolaj was recorded by the aerial asset running from the address. It is likely, but at least possible, that Kolaj had begun to flee after use of the battering ram had commenced but before police announced their presence. 433 Shortly after Kolaj fled the residence, a metal tin and two of the bags containing substituted material that had been concealed in the package were thrown over the fence of the Cheadle Street premises and an adjoining property. As I understand it, the prosecution case is that Mrishaj was the person responsible for disposing of these items. 434 Kolaj was then observed by the aerial asset to run across three roof-tops of nearby properties before seeking refuge in a back yard where he was located and arrested by police a short time later. Latex gloves with DNA profile/s consistent -- 100 of 108 -- [2026] SADC 9 95 with the known profile of Kolaj were also located on one of the roofs he was recorded running across. 435 Mrishaj was found in the front yard of 29 Cheadle Street and was arrested. On the prosecution case, the inference to be drawn is that Mrishaj decamped from the Cheadle Street premises at around the same time as Kolaj did but by a different route, and deposited two of the ‘substitute’ bags from the package as he did so. 436 Counsel for Kolaj and Mrishaj object to use of the evidence of their decamping from the Cheadle Street property as demonstrating a consciousness of guilt. They contend that, in the unusual circumstances of this case, and bearing in mind how police gained access to the house and the incapacity of the evidence to establish that the applicants were aware of the police presence before they fled, the evidence lacks probative value for this purpose but is highly prejudicial. The applicants contend further that there is a risk that a jury would unavoidably attribute significant weight to the evidence of ‘flight’ in establishing knowledge on their behalf of the contents of the package when the evidence, in truth, is of marginal weight for that purpose. 437 The admissibility of evidence that an accused fled the scene of an alleged crime is well established. The relevant principles were collected by Doyle CJ in R v Power (1996) 87 A Crim R 407 at 409: There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral): “I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person’s flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.” 438 In R v Burns (2009) 103 SASR 514 at [82]-[84], Kourakis J (as he then was) explained further: First, it is the evidence of flight itself that is admissible. Secondly, the fact of flight is admissible ‘as evidence of consciousness of guilt’ because ‘the wicked flee’; it is not a -- 101 of 108 -- [2026] SADC 9 96 condition of the admissibility of the evidence that it shows that the particular accused on trial fled because he was conscious of his guilt. The reason, based on human experience, that flight has probative value cannot be transformed sensibly into a pre-condition for its use in a particular case. Thirdly, the existence of an alternative explanation for flight in any particular case merely affects the strength of the inference that can be drawn from it, and does not negate completely its probative force. Like any other item of circumstantial evidence, flight is relevant and probative even if it cannot, alone, support a conclusion of guilt beyond reasonable doubt. It is not a condition of the admissibility of any item of evidence that it prove (without more) an intermediate fact, an element of the offence or the offence itself. It is sufficient that it is relevant to a fact that is in issue in the proceedings, in the sense that it has a tendency or capacity to prove that fact. It follows that a direction that flight is only probative if it, of itself, reveals that the accused was conscious of his or her guilt is not required by any principle of logic or common human experience. Indeed, as a logical proposition it is completely circular... 439 The above passages make it clear that the existence of alternative explanations for flight is not usually an obstacle to admissibility. Ordinarily, it is for a properly instructed jury to determine whether flight is indicative of a realisation or consciousness of guilt or if it is explicable by panic, fear, instinct or any other innocent state of mind. Equally, the fact that flight is not itself capable of demonstrating a consciousness of guilt is no bar to its admission. 440 However, the prosecution here accepted that it would be a necessary pre- condition to use of the evidence as ‘flight’ indicative of a consciousness of guilt that the evidence is capable of establishing that the applicants were aware of the presence of police before they fled.113 That seems to follow because, on the prosecution case, the flight is a response to the realisation that the applicants may have been, as it were, ‘caught in the act’ of dismantling the package by law enforcement. 441 That is, in my view, where the problem arises in this case. On the evidence tendered on the voir dire, it would be very difficult for a jury to safely conclude that the applicants’ decamped only after they became aware of the presence of police. The applicants were doubtless aware that someone was trying to gain access to the house in a very destructive way but it is knowledge or belief as to the identity of those trying to gain access that the prosecution accept would give the evidence of flight its probative value as evidence indicative of a consciousness of guilt. 442 Moreover, the manner in which police attempted to and ultimately gained entry to the house may well have prompted those inside to flee out of concern for their safety. I accept that, in the normal course, that would be a matter for a jury. However, the combined effect of these two unusual features of the chronology and evidence is such as to persuade me that it would be most incautious to leave the 113 T404-405. -- 102 of 108 -- [2026] SADC 9 97 applicants’ departure from the house as evidence of flight, indicative of a consciousness of guilt. 443 That does not mean however that the evidence cannot be presented at trial for other reasons or uses. 444 Evidence of Kolaj leaving the house is relevant and admissible to identify him as one of the two men seen entering the house earlier and to identify him as the person responsible for disposing of the latex gloves. That Kolaj may have been in possession of latex gloves is relevant to a jury’s assessment of what he was doing inside the house when viewed in conjunction with the covert recordings and may also be evidence relevant to his state of mind concerning the content of the package. 445 Evidence of Mrishaj being found on the neighbouring property is admissible for the same purpose. The evidence places both men in the vicinity of the house and is circumstantial support for them having been in the Aurion and Audi and to being the two men captured by the surveillance devices interfering with the package; there being no evidence of anyone else having been located in the house or seen running away from it. 446 Evidence of the disposal of the metal tin and two substitute parcels from within the package is also relevant and admissible to assist the trier of fact to interpret the sounds and images captured by the listening and optical surveillance device/s within the package. The disposal of the items is circumstantial evidence from which it may be inferred that steps towards dismantling the package were taken inside the house, and that may afford some circumstantial evidence of knowledge on the part of at least the applicant responsible for disposing of those items that there was a reason to dismantle the smoke machine in the first place. That is not to use the evidence of flight as revealing guilty knowledge; but, rather, to use the evidence of the steps taken to dismantle the package as some circumstantial evidence of what (depending on how the evidence plays out) might have been thought to be in the package. 447 Notwithstanding the evidence cannot be used as ‘flight’, I would otherwise decline to exclude it as more prejudicial than probative. The prejudice, which arises here from the risk of misuse, can be mitigated by appropriate directions. 448 The availability of the permissible uses of the evidence discussed above, which stand separately to use of the evidence as flight, may ultimately depend on how the evidence comes out at trial and, if it differs materially from the evidence before me on the applications, may require that admissibility and / or use be revisited. In any event, if the evidence is ultimately admitted, it will require appropriate directions to delimit the permissible and impermissible uses, but, as things currently stand, I am satisfied those directions can be given and will adequately guard against the risk of misuse. -- 103 of 108 -- [2026] SADC 9 98 449 Contrastingly, evidence that Mrishaj was seen to dispose of his mobile phone in the front yard of 29 Cheadle Street and to increase his speed of movement and attempt to run back into 27A Cheadle Street upon seeing police is, in my view, not admissible and, at least as to the disposal of the phone, senior counsel for the prosecution ultimately indicated this evidence would not be led.114 In circumstances where the content of the phone is not going to be the subject of evidence, it would invite speculation to allow the disposal of the phone to be led because the natural, yet unfounded, assumption that a jury is likely to make is that there must have been something on the phone implicating Mrishaj in the alleged offending. In circumstances where that assumption cannot be made good, the admission of the evidence would be productive of significant prejudice. 450 I would also exclude evidence that Mrishaj was seen to increase his speed of movement and attempt to run back to 27A Cheadle Street upon being detected in the front yard of 29 Cheadle Street. For the same reasons that a lie told to police during an interview is rarely available to be used as evidence of a consciousness of guilt, that Mrishaj may have acted in a way consistent with him wanting to leave the front yard of 29 Cheadle Street in the face of the presence of police, could not safely be treated as indicative of a consciousness of guilt. There is a well- recognised risk of treating evasive conduct of a person in the position of Mrishaj as indicative of a consciousness of guilt because of the natural tendency of people to want to avoid conflict or interaction with law enforcement authorities. In the circumstances, I consider that a jury would likely attach unwarranted weight to evidence of Mrishaj’s movements (assuming they were led admissibly) as demonstrative of a consciousness of guilt. Issue 5 - Evidence of the Aurion’s registration 451 It will be remembered that the charge of trafficking in a commercial quantity of cocaine as against Kolaj arises from the search of the Toyota Aurion on 25 March 2022, during which the concealed compartment was located and the cocaine the subject of count 3 discovered. 452 In addition, a number of documents ostensibly connecting Kolaj with the vehicle were also seized, including a document indicating that he was the registered owner of the Aurion. The prosecution propose to tender a certified extract from the register of motor vehicles pursuant to s 140 of the Motor Vehicles Act 1959 (SA) which records Kolaj as the registered owner of the Aurion between 15 February 2022 and 16 March 2022.115 The extract indicates that the vehicle was acquired on 3 November 2021 and that the ‘transfer payment date’ was 2 March 2022. Another document found in the Aurion purports to be a receipt issued by the Registrar of Motor Vehicles relating to a change of number plate.116 114 T453. 115 VDP3. 116 VDP3, photograph 30. -- 104 of 108 -- [2026] SADC 9 99 453 Senior counsel for Kolaj objects to any evidence that Kolaj was the registered owner of the Aurion. It was submitted that this evidence was more prejudicial than probative because it came with the risk that the jury would conflate Kolaj’s status as the ‘registered owner’ of the vehicle with actual ownership of or legal title to the vehicle, and reason that it was therefore more likely that Kolaj was the person responsible for the alterations to the vehicle and hence was in possession of the cocaine. It was said further that a direction to the jury that a person’s status as the ‘registered’ owner of a vehicle on records held by the Department of Transport and Infrastructure did not mean that person was the ‘owner’ of the vehicle in a factual or legal sense would not suffice to cure the risk of impermissible reasoning. 454 I reject this submission. 455 The distinction between the use of the documents as evidence of the identity of the person recorded on the register kept by the Registrar of Motor Vehicles as the ‘registered owner’ of a vehicle and factual and legal ownership over a vehicle can be readily explained to a jury. Juries are routinely directed about the fine distinctions between the permissible and impermissible uses of certain items of evidence. The assumption upon which a criminal trial proceeds is that juries are capable of and do in fact abide the directions they are given that draw such distinctions. 456 Further, that Kolaj was recorded as the registered owner of the Aurion, viewed together with other circumstantial evidence connecting him to the car, on 10 and 22 March 2022, is probative of whether he was aware of or was the person responsible for the alterations to the car, which is in turn relevant to whether the prosecution can prove beyond reasonable doubt that he was in possession of the concealed cocaine. 457 I do not overlook that s 140(2) of the Motor Vehicles Act 1959 (SA) provides that evidence that a person was the registered owner of a vehicle on the register kept pursuant to the Act is not evidence of actual title to the vehicle. However, in my view, a jury can be directed in those terms and that it is not open to them to reason that merely because Kolaj was the registered owner of the vehicle that he was the ‘actual owner’ of the vehicle in a factual or legal sense or that he therefore must have known about the concealed compartment or the cocaine located within it. A jury can also be directed that there is an important difference between evidence of access and use of a vehicle and ownership of that vehicle. 458 Provided these distinctions are the subject of directions, Kolaj’s status as the registered owner of the Aurion is a piece of circumstantial evidence which is informative of the degree of his connection with the vehicle and hence the likelihood or otherwise of him being aware of or responsible for the alterations. 459 The utility of the evidence for this process of reasoning is not undermined by the indication by senior counsel that Kolaj’s connection to the car and the Cheadle -- 105 of 108 -- [2026] SADC 9 100 Street premises is not in dispute.117 Clearly enough, the inference to be drawn from his connection to the car is in dispute and evidence that he was recorded as the registered owner is logically capable of assisting the jury resolve that dispute in a permissible manner. 460 The evidence is admissible. The risk of prejudice identified by senior counsel can be adequately guarded against by appropriate directions. 461 As to the transaction receipt, I defer a final ruling on its admissibility. However, I indicate that in the absence of further evidence explaining how such a document is generated and to whom it may be provided, I would be disinclined to admit the receipt pursuant to s 53 of the Evidence Act 1929 (SA) or otherwise. What could be made of the receipt, and whether it in fact does afford any further evidence of Kolaj’s connection with the Aurion, is, it seems to me, dependant on evidence addressing the matters I have referred to. Issue 6 - Cocaine analysis 462 I move finally to another discrete body of evidence which senior counsel for Kolaj suggests ought to be led by the prosecution, presumably in order to discharge its responsibility to present its case fully and fairly, having regard to the principles discussed in Nguyen v The Queen (2020) 269 CLR 299. 463 The evidence is that the parcels of cocaine found in the Aurion and in respect of which Kolaj is solely charged have the same ‘processing methodology’ as quantities of cocaine found at 27A Cheadle Street, which it is suggested are linked to Mrishaj. The prosecution have obtained a statement from an analyst appointed under the Poisons and Therapeutic Goods Act 1966 (NSW) and the Customs Act 1901 (Cth) which purports to identify the processing methodology of these packages of cocaine as ‘Peruvian’. No explanation of the significance of this conclusion is set out in the statement of the analyst; nor is there any detailed break- down or explanation of the science that sits behind the conclusions and the analyst’s process of reasoning. 464 Senior counsel for Kolaj submits that the prosecution ought to nonetheless lead this evidence. He argues that the common processing methodology between the Aurion packages and the Cheadle Street packages is evidence of the possibility that Mrishaj was in fact in possession of the Aurion packages. 465 Counsel for Mrishaj and senior counsel for the prosecution submit that the evidence is not in admissible form and, amongst other things, does not comply with the pre-conditions for expert evidence. 466 I agree. 467 In its current form, the statement of the analyst does not adequately or at all set out the facts or assumptions on which the opinions as to common processing 117 T417-418. -- 106 of 108 -- [2026] SADC 9 101 methodology are based; nor does it explain the process of analysis in any real detail or how the analyst has arrived at the opinions stated in the report. Importantly, the statement offers no assistance to a jury as to how they would interpret the significance of a common processing methodology and what it might indicate about the provenance of the different packages of cocaine. The evidence, in its current form, does not detail the number of known cocaine processing methodologies that exist or explore the level of commonality between the different packages. Whilst the statement observes that ‘it is possible’ that the relevant samples ‘were prepared using the same solvent mixture’, no explication of the meaning of that conclusion is provided. 468 I accept that evidence of this kind is, in principle, relevant and admissible evidence on the question of the provenance of the packages of cocaine in the Aurion and at Cheadle Street, which may, in turn, be relevant to questions of possession. However, as it currently stands, the evidence of the analyst does not comply with the requirements for admissible expert evidence. 469 In those circumstances, the evidence is not admissible at the instance of the prosecution and any application (which has not yet been made in any event) for a temporary stay unless and until the prosecution agreed to lead the evidence, would be bound to fail. In this latter respect, I adopt, without repeating, my analysis of the Nguyen principles in R v MSP [2025] SADC 40 at [77]-[87]. As the evidence is not admissible, the prosecution’s ‘duty’ to lead all available, cogent and admissible evidence, is not engaged. 470 It would of course be open to Kolaj to obtain expert evidence to the same effect and, provided that evidence met the pre-conditions for admissible expert evidence, there is no reason why it could not be led. Equally, if the prosecution obtained a supplementary statement from the analyst that complied with the requirements for admissible expert evidence, further questions may arise as to whether there is any good reason for the prosecution not to lead that evidence. 471 As things presently stand however, it does not appear to me that any meaningful complaint can be made of the prosecution’s refusal to lead this evidence. Conclusion 472 With the exception of the challenge to the evidence of flight, the applications are otherwise dismissed. 473 For the reasons I have given, the undercover operation approval was valid and authorised the conduct of U103, including his entry onto the Kym Street premises for the purpose of effecting the controlled delivery. 474 The SD Act warrant was valid and authorised the use of the surveillance devices secreted within the package, including the ‘combination device’, and entry onto the premises at Kym Street. The warrant did not need to specify the Cheadle -- 107 of 108 -- [2026] SADC 9 102 Street premises or any vehicles the package was conveyed in as the devices were not used ‘on or in’ those premises or vehicles; nor was entry or interference with the Cheadle Street premises or any vehicles required to install, use, maintain or retrieve the devices. 475 The aerial asset used an optical surveillance device, not a tracking device. The device did not capture private activities and, in any event, its use was in the public interest. 476 The evidence of the applicants decamping the Cheadle Street property is not admissible as evidence revealing a consciousness of guilt, but is admissible for the other purposes I have identified. 477 The evidence that Kolaj was the registered owner of the Aurion is admissible for the limited purpose I have identified. 478 The evidence that the cocaine in the Aurion and at Cheadle Street had a ‘common processing methodology’ is not currently in admissible form. -- 108 of 108 --