Singh v State [2008] FJSC 52; SC CAV0005.2008S (18 December 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0005 OF 2008S
(Fiji Court of Appeal No AAU0057 of 2006S)

BETWEEN:

ABHAY KUMAR SINGH
(Petitioner)

AND:

THE STATE
(Respondent)

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Monday, 13^th October 2008, Suva

Counsel: The Petitioner in Person
Mr A. Elliott for the Respondent

Date of Judgment: 18^th December 2008, Suva

JUDGMENT OF THE COURT

[1] The appellant was charged on an indictment containing three counts of attempt to pervert the course of justice. The alleged offences occurred in separate days.

[2] After the trial judge ruled admissible the electronic recording of a secretly taped conversation on a particular day, the appellant pleaded guilty to the third count, which related to that event. He did so on the apparently agreed basis that he could then appeal his conviction on the ground that the recording was inadmissible.

[3] That appeal was dismissed by the Court of Appeal. This further appeal is brought by leave of the Court of Appeal which certified a question of significant public importance, namely:

"To what extent is the State permitted or justified in conducting covert surveillance with or without a warrant having regard to Sections 26, 28(1)(e) and 37 of the Constitution of the Republic of the Fiji Islands?"

We shall examine aspects of this broad constitutional question although it will become apparent that the appeal can be determined on a narrower basis.

[4] The case established against the appellant was summarised as follows in the remarks on sentencing:

"On the 24^th July 2003 the trial was due to start in the Magistrates Court at Suva of one Sahadat Attai Khan. He was charged with corruptly seeking, as a Land Transport Authority Officer, $200 for the registration of a second-hand vehicle. The owner of the car and the person from whom it was alleged he had sought the money was Rajendra Narayan. The Accused was Mr Khan's defence counsel. Subsequently in February 2005 Mr Khan was acquitted of that charge.

Prior to the Khan hearing, on 22^nd July 2003, Mr Narayan informed the investigating officer that he had been approached by the Accused. The police took advice from the Director of Public Prosecutions Office. It was then agreed to give Mr Narayan a digital recording device to record any further conversation with the Accused on the topic. Mr Narayan agreed to this course.

On the next day, 23^rd July 2003, a conversation took place between the Accused and Mr Narayan. It started when they were in a vehicle travelling to the scene of an accident in which the Accused's son had been one of the drivers. In the course of the conversation the Accused mentioned the court case the next day. He advised Mr Narayan to change his evidence to some extent, and the Accused told him what to say in its place.

The original evidence from Mr Narayan was that Mr Khan had taken the $200 from him and placed it under a book. Mr Khan then pulled out a file pretending to read it in order to hide his actions from a woman who had come to the door of his office.

The Accused told Mr Narayan to keep to his original story which he need not lie about. But that when he came to describe handing over the money to Mr Khan he should say that he hid it under a book or register because a woman came into the room. He was to say that he never actually handed the money over to Mr Khan. He should add that Mr Khan did not see him do any of this. The rest he could leave to the Accused.

The Accused promised that once his client was acquitted he would sue the police. He would not make Mr Narayan a party to those proceedings. Instead he would pay Mr Narayan an unspecified sum of money out of the lump sum obtained thereby in damages.

The Accused was interviewed by police under caution on 24^th July 2003. He availed himself of his constitutional right to consult a lawyer, and did so before the main questioning commenced. He said he had been practising as a barrister and solicitor since 1994, and was admitted as such in New Zealand, Fiji, Tasmania and Queensland. He was a Commissioner for Oaths and a Notary Public.

When it was suggested that he had met the complainant and asked him to change one part of his story in the corruption case against Attai Khan, the Accused said the allegation was false. More details of the conversation were put to him but he said they were false.

He asserted that he wanted to save Attai Khan in his court case because he believed he was innocent. He denied discussing anything to do with the case with Mr Narayan. At least a part of the digital recording was played to the Accused and he denied that it included his voice. He denied that one of the other voices was Mr Narayan's. He was positive the voice was not his own. He said Mr Narayan was lying in saying that it was his voice. He also alleged Mr Narayan had offered him $45,000 if he could have Attai Khan convicted for corruption.

In these proceedings the Accused has accepted that the translation of the recordings in Hindi is essentially correct save for a few inconsequential inaccuracies. He now accepts that it was indeed his voice on the recording, as well as that of Mr Narayan. He admits the offence, and admits that he had made the approach to Mr Narayan to change his evidence, what Mr Raza called "one stupid act", and "one act of madness."

Besides being a lawyer in private practice, the Accused has no previous convictions."

[5] There is in Fiji no statutory regulation, let alone prohibition, of the use of surveillance devices enabling the secret recording of conversations whether for private or police purposes. What happened in this situation involved no conduct contravening tortuous or equitable norms under the general law (see generally Malone v. Metropolitan Police Commissioner [1979] Ch 344).

[6] The appellant doubtlessly expected Mr Narayan to keep the nefarious proposal to himself. The conversation took place in the appellant's motor vehicle as it was parked inside his home compound, as it was driven along and as it was parked at a designated spot at his work place. The appellant was ignorant of the recording device. Mr Narayan, on the other hand, wanted the conversation to be recorded and made available to the police. The device used did not transmit sound, but merely recorded it.

[7] Sections 26 and 28(1)(e) and 37 of the Constitution provide:

26. - (1) Every person has the right to be secure against unreasonable search of his or her person or property and against unreasonable seizure of his or her property.

(2) Search or seizure is not permissible otherwise than under the authority of law.

28. - (1) Every person charged with an offence has the right:

...

(e) not to have unlawfully obtained evidence adduced against him or her unless the interests of justice require it to be admitted.

37. - (1) Every person has the right to personal privacy, including the right to privacy of personal communications.

(2) The right set out in subsection (1) may be made subject to such limitations prescribed by law as are reasonable and justifiable in a free and democratic society.

[8] The appellant accepted that Mr Narayan might give oral evidence of the relevant conversation. In the words of the learned primary judge, Gaffes J:

"It is to the electronic nature of, almost to the relentless accuracy of, the recorded conversation, to which [the appellant's] objection is directed."

[9] It was also common ground before Gates J that Mr Narayan was to be treated as acting as an agent of the State, when recording the conversation; and that the police investigators acted in good faith in relation to a bona fide police inquiry. His Lordship also held that the police held a reasonable suspicion that a crime was being committed for which unimpeachable evidence by way of a recording device could be obtained. There was also no entrapment given that the initial approach had allegedly been made by the accused.

[10] It was further held that the evidence was relevant and capable of being probative of guilt. It was not minimal or simply prejudicial. Its meaning, worth or cogency was yet to be assessed at the time of its admission. As indicated, the appellant pleaded guilty after its admission.

[11] The nub of the ruling to admit the evidence is in para [69] of Ruling No 4:

"The Accused allegedly spoke to the witness Narayan. Narayan will testify without lawful objection as to that conversation. Privacy will be breached thereby. Privacy will not be breached over a matter of mere tittle tattle. Criminal conduct is alleged. For this public interest reason, a matter of bona fide neutral law enforcement, a recording has been reasonably created giving rise to an unimpeachable or near unimpeachable, permanent account of that conversation. The invasion of privacy by this means for legitimate State reasons is in accordance with law. Its admissibility is in the interests of justice."

[12] The Court of Appeal held (at [16]):

"We conclude that the 'search' in this case was not unlawful and therefore not in breach of clauses 26 or 37 of the Constitution. Further, whether or not it is lawful, the interests of justice require the evidence of it to be admitted at trial, and so, clause 28(1)(e) does not require to exclude it. In so deciding we considered, as did the trial Judge, the fact that evidence of what was said would in any event be given by Mr Narayan, that the recordings were the basic evidence of what was said and that the transcripts were accepted (in writing) by the defence as being accurate. Further, the offence was serious, involving an officer of the Court seeking the giving of false evidence. There was no significant factor indicating a special need of confidence or privacy that should be protected. The recordings related to a repetition of the offence already committed."

The constitutional issues stated

[13] The appellant's unreasonable search and/or seizure claim deriving from ss 26 and 28(1)(e) of the Constitution proceeded as follows: The clandestine recording of the Narayan conversation amounted to an "unreasonable search" of the appellant's person or property and/or an "unreasonable seizure" of his property, contrary to the right protected by s 26(1). There was no "authority of law" for such interference. The recording was therefore unlawfully obtained. It was inadmissible because "the interests of justice [did not] require it to be admitted" into evidence.

[14] The State submitted that there was no search of the appellant's person or property and no seizure of his property. Alternatively, any; search and/or seizure was reasonable in the circumstances. It relied, in part, upon the very existence of the constitutional right of privacy, pointing out that other countries (including the United States and Canada) that have given an extended meaning to "search or seizure" have done so in circumstances where there was no express constitutional protection of privacy.

[15] The appellant's privacy claim deriving from ss 37 and 28(1)(e) proceeded as follows: The secret recording of the conversation at the instigation of the police infringed his "right to personal privacy" guaranteed by s37(1). There was no qualification of that right "prescribed by law" (cf s 37(2)) in the sense of being positively authorised by statute or some common taw rule. [The common law principle that "everything is permitted except what is expressly forbidden" of which Megarry VC spoke in Malone v Metropolitan Police Commissioner at 357 may be placed to one side.] The evidence obtained in breach of the constitutional right was therefore unlawfully obtained, with the consequence that its admission could only be justified "if the interests of justice require[d] it to be admitted" (cf s.28(1)(e)). They did not.

[16] The State denied that any aspect of the constitutional "right to personal privacy" was involved, let alone infringed. Alternatively, if the evidence in the recording was obtained unlawfully, the interests of justice required it to be admitted.

Overseas authorities

[17] The researches of counsel, supplemented by some researches of our own as to New Zealand cases not drawn to our attention, revealed several strands of overseas authorities as to the scope of analogous constitutional models. While each constitutional provision differs to some degree from the provisions and context of the Fijian material with which this Court is ultimately concerned, the authorities expound the underlying issues. They also reveal differing approaches to the question whether a person in the appellant's position, whose criminality is recorded through "participant surveillance", has a legitimate expectation of privacy.

(a) European Convention on Human Rights and Freedoms

[18] In Malone v Metropolitan Police Commissioner, Megarry VC held that there was no general right to privacy under English common law. It followed that government-authorised telephone tapping conducted by the police in the context of criminal investigations constituted no contractual, tortious or equitable violation of a householder's rights. Mr Malone took his complaint to the European Court of Human Rights alleging a breach of Article 8 of the European Convention on Human Rights and Freedoms.

[19] Article 8 of that Convention provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[20] In Klass v Federal Republic of German [1978] ECHR 4; (1978) 2 EHRR 214, the European Court of Human Rights had held (at [41]) that secret surveillance of telephone conversations amounted to an interference with the exercise of the right set forth in Article 8(1) of the European Convention. When Malone v United Kingdom [1984] ECHR 10; (1985) 7 EHRR 14 came to the European Court of Human Rights it was accepted that telephone conversations were covered by the notions of "private life" and "correspondence" (See (1985) 1 EHRR 14 at [64]. See also R v Khan [1996] UKHL 14; [1997] AC 558 at 581-2.) The European Court of Human Rights held, in Malone, that the breach of Article 8(1) was not justified under the terms of Article 8(2): it was not "in accordance with the law" in the sense of being positively authorised by a sufficiently defined and publicly accessible legal authority. There was no effective basis for scrutiny of an unfettered police power.

[21] This ruling led the United Kingdom to enact legislation in 1985 regulating surveillance of this nature. Subsequently the legislation was extended to surveillance by other electronic means.

[22] Our limited researches disclose that Article 8 does not extend to protect against the collection of information through covert investigative techniques directed at those already involved in criminal activity (Helen Fenwick, Civil Liberties and Human Rights, 4^th ed 2007, pp 1069, 1298-9, citing Ludi v Switzerland [1992] ECHR 50; (1993) 15 EHRR 173). There is, of course, an express qualification to this effect in Article 8(2) (set out above).

(b) Fourth Amendment to United States Constitution

[23] The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or the persons or things to be seized."

[24] In Katz v The United States [1967] USSC 262; 389 US 347 (1967) the United States Supreme Court held that the Fourth Amendment protection against unreasonable search or seizure extended to the recording of oral statements, independent of trespass considerations. FBI agents had attached a listening and recording device outside a public telephone booth from which Katz had placed his calls. Evidence thereby derived was held inadmissible in a prosecution for transmitting betting information across state lines.

[25] It may be observed that (a) the Fourth Amendment is not expressed in identical terms to s.26 of the Fijian Constitution: (b) these is no express privacy guarantee in the United States Constitution, although privacy notions have become part of the Fourth Amendment jurisprudence; (c) in Katz, the Court overruled its earlier decision in Olmstead v United States [1928] USSC 133; (1928) 277 US 438 which had held that the language of the Fourth Amendment did not extend to surveillance that did not involve trespass or the seizure of property; (d) the majority reasoning in Katz proceeded from the basis that the surveillance in question could have been authorised by warrant (see at 354-6); (e) Katz did not involve any testimony by a party to the intercepted conversation; (f) the decision in Katz to quash the conviction proceeded from the application of the American principle that unlawfully obtained evidence is per se inadmissible (cf Fijian Constitution, s 28(1)(e)); and (g) Katz does not apply to participant surveillance (ie involving one party to a conversation surreptitiously recording it as agent for the police) (see below).

[26] As to Katz's central holding that surveillance of a conversation by listening device fell within the Fourth Amendment, we note the dissenting view of Black J in that case, who followed Olmstead in holding that eavesdropping fell outside the ambit of the Fourth Amendment. He said (at 365):

"The first clause protects 'persons, houses, papers, and effects, against unreasonable searches and seizures ....' These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. "

[27] Significantly, the United States Supreme Court has confined the scope of Katz in a presently material fashion. In United States v White [1971] USSC 96; (1971) 401 US 745, a plurality of four justices (White J, joined by Burger CJ, Stewart J and Blackmun J) held that the Government's use of agents who themselves record the contents of conversations with an accused did not violate the Fourth Amendment; and that Katz did not render inadmissible evidence of such a conversation transmitted by an electronic device. In doing so, the judges affirmed the continuing authority of the pre-Katz decision of Lopez v United States [1963] USSC 109; (1963) 373 US 427. The four justices were joined by Black J whose dissent in Katz has already been noted. Since the reasoning of the plurality bears on the privacy issue in the present appeal it is necessary to set it out. White J said (at 751-2, some citations omitted):

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights.... For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person...; or (2) carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency ...If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally "justifiable" - what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewes. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States, [1963] USSC 109; 373 U.S. 427 (1963).

[28] Any uncertainty as to the authority of Lopez and White in the United States was put to rest in United States v Cacares [1979] USSC 53; (1979) 440 US 741 where, speaking for seven judges, Stevens J affirmed the reasoning in the two earlier cases. Stevens J referred (at 750) to Lopez as having repudiated any suggestion that the defendant had a "constitutional right to rely on possible flaws in the agent's memory". He concluded that "the risk that petitioner took in offering a bribe to [the IRS agent in Lopez] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording."

(c) Article 8 of Canadian Charter of Rights and Freedoms

[29] Article 8 of the Canadian Charter of Rights and Freedoms states that: "Everyone has the right to be secure against unreasonable search or seizure."

[30] There is no express privacy right in the Canadian Charter, but Article 8 has been consistently construed liberally, extending to protect a person's reasonable expectation of privacy. In Duarte v The Queen (1990) 65 DLR 4^th 240, the Canadian Supreme Court held that this Article, like the Fourth Amendment, extends to prohibit warrantless surveillance by the police. But the Court departed from the abovementioned American line of Lopez and White, holding that there was no basis in principle for excluding participant surveillance from the scope of the protection afforded by Article 8.

[31] In this regard, the Canadian Court followed the decision of the Supreme Court of Alaska in State of Alaska v Glass 583 P 2d 872 (1978). There, the police had fitted are informant with a radio transmitting device. The informant entered a drug supplier's home and effected a purchase of heroin the details of which were monitored and recorded by police officers located nearby. No warrant had been obtained. This conduct was found to have infringed an Alaskan constitutional "right... to privacy". The Alaskan Court held (at [3]) that:

"We believe that one who engages in a private conversation is... entitled to assume that his words will not be broadcast or recorded absent his consent or a warrant."

[32] In Glass's Case, the Alaskan Court adopted the reasoning of Harlan J in Katz where (at 361) he set forth a dual requirement before the Fourth Amendment extended beyond the protection of property to the protection of people: first, the party concerned must have exhibited an actual (subjective) expectation of privacy; and, second, the expectation must be one that society was prepared to recognise as reasonable. It will be seen that the New Zealand case law imports this second limitation, which becomes critical to the disposition of this appeal.

[33] Returning to Duarte, the leading judgment of La Forest J concluded that it was illogical to distinguish between participant and third party surveillance. Warrantless surreptitious recording in either case "annihilate[d] the very important right to determine to whom we speak, i.e. the right to choose the range of our auditors." La Forest J cited with approval (at 256) a passage from a decision of the Supreme Court of Pennsylvania (Commonwealth v Schaeffer 536 A 2d 354, 365 (1987)):

"Every speaker knows and accepts as a 'condition: of human society' that his listener may go to the police, but he does not intend by speaking to give up the right to exclude the police from his home. But if the police are simultaneously recording every word, they are already there, in the home, uninvited, contrary to every reasonable expectation that most people in society still have."

[34] La Forest J summarised his views as follows (at 260), emphasis in original:

"To conclude, the Charter is not meant to protect us against a poor choice of friends. If our 'friend' turns out to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us. But the Charter is meant to guarantee the right to be secure against unreasonable search and seizure. A conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic reception and recording of a private conversation does. Such recording, moreover, should be viewed as a search and seizure in all circumstances save where all parties to the conversation have expressly consented to its being recorded."

[35] Nevertheless, the conviction in Duarte was upheld on the basis that the evidence, though unlawfully obtained, was admissible by application of s.24(2) of the Charter which provided that evidence that was obtained in a manner that infringed or denied any right or freedom guaranteed under the Charter shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute (cf Fijian Constitution, s 28(1)(e)). Applying that provision, the Supreme Court of Canada ruled that the appellant had failed to establish that the evidence should be excluded. The Court said (at 262 per La Forest J):

"[The factors to be considered include]:

- what kind of evidence was obtained?

- what Charier right was infringed?

- was the Charter violation serious or was it of a merely technical nature?

- was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?

- did it occur in circumstances of urgency or necessity?

- were there other investigatory techniques available?

- would the evidence have been obtained in any event?

- is the offence serious?

- is the evidence essential to substantiate the charge?

- are other remedies available?

See also Bunning v Cross [1978] HCA 22; (1977) 141 CLR 54 of 78-80 for a comparable checklist.

(d) Section 21 of New Zealand Bill of Rights

[36] This provision affirms that:

"Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise."

[37] Its scope has been addressed in a series of decisions by the Court of Appeal of New Zealand: R v A [1994] 1 NZLR 429: R v Barlow (1995) 14 CRNZ 9; R v Grayson and Taylor [1997] 1 NZLR 399; R v Fraser [1997] 2 NZLR 442; R v Smith [2000] NZCA 99; [2000] 3 NZLR 656.

[38] In R v A, the Court (with the exception of Casey J at 440) appeared to assume rather than conclude that participant surveillance was search and seizure within s. 21. The Court was, however, unanimous in holding that the crux of any s.21 inquiry was whether the intrusion was unreasonable and that this involved weighing all relevant public interest considerations and their application to the particular case. Recording by a participant was not unreasonable where there was a serious crime involved (solicitation to murder in R v A). Merely because a prior judicial warrant was unavailable or had not been obtained did not conclude the matter (contrast Malone v United Kingdom). The Court followed Lopez and White in preference to Duarte.

[39] Richardson J stated (at 436-7) four reasons of principle and public policy affecting New Zealand society which led him to conclude that participant recording as such was not unreasonable search and seizure:

"1. It is not unlawful for any participant to record a discussion surreptitiously. Prior judicial approval is neither required nor available.... [T]here is no basis in parliamentary consideration of electronic surveillance for the Courts to conclude that public policy requires treating participant recording as inherently destructive of basic values.

2 Advances in information technology change our lives and thinking.... New Zealanders are well aware of the ease with which discussion may be recorded electronically. They see advantages as well as risks to fair dealing of doing so.... In my judgment it is going too far to say that [underlying privacy] values are inevitably imperilled by any recording of any conversation whatever the circumstances. It is, I repeat, a matter of time, place and circumstance.

3. The expectation of privacy is always important but it is not the only consideration in determining whether a search or seizure is unreasonable. Legitimate state interests including those of law enforcement are also relevant. Rather than being dependent on the recollection sand demeanour of the participants as witnesses, the availability in any proceedings of an untampered with recording of the conversation exactly as it occurred is a protection for prosecution and defence alike.

4. Characterising participant recording as always constituting unreasonable search and seizure would have significant consequences contrary to public interest. First, if participant recording is a breach of s.21 it should taint the discussion and require prima facie exclusion of any evidence of what was said. If invasion of privacy is the touchstone that occurs even if the electronic recording is not tendered in evidence. Second, it would probably inhibit the police from wiring a police informer for safety reasons....

[40] We respectfully adopt this reasoning and would apply it even to a constitutional situation like that in Fiji, where there are separate guarantees in relation to search/seizure and privacy. That is because privacy values underpin the United States, Canadian and New Zealand protections against unreasonable search and seizure and because reasonableness is, in any event, a touchstone of privacy and any expectation of privacy (see also Malone v Metropolitan Police Commissioner at 376).

[41] In R v Barlow, strong doubts were cast on the proposition that the electronic recording of a conversation by a participant constituted search and seizure within s.21 (see passages set out in R v Fraser at 448).

[42] In R v Fraser, these doubts were repeated, with the Court again affirming that, in most cases, it was more productive to address first the issue of unreasonableness. The Court pointed out (at 451-2) that the availability of a warrant was a material factor in determining the reasonableness or otherwise of a search without warrant. Since there was no statutory regime for authorising (or prohibiting) video surveillance this was a significant pointer to reasonableness. The Court held (at 452, emphasis added) that:

"While we accept that the reasonableness of the search is not to be measured by the results, it is entirely appropriate to have regard to the known circumstances in which the search is undertaken. It is not an abstract inquiry into which the ordinary citizen might reasonably be subjected to by the police. Rather it is a question of the degree of scrutiny by the authorities the person whose rights are said to have been violated might be reasonably subjected to in the circumstances, determined by reference to standards of the community as to the respect for privacy."

[43] In R v Smith, these principles were restated and the Canadian approach to search and seizure stated in Duarte was expressly rejected. The Court noted that Duarte had been subjected to an extensive critique by Professor Hogg in his Constitutional Law of Canada, 4^th ed 1997, para 45.5(b). The Court observed (at [50]) that:

"In Barlow where conversations between a friend of the accused, acting as it happened as agent for the State, and the accused were recorded, the court held that participant recording was not inherently unreasonable where its purpose was to obtain a full and correct record and enhance the reliability of the evidence to be given...."

Conclusions as to the scope of the Fijian provisions

[44] There are no controlling precedents discussing the scope of the constitutional guarantees invoked by the appellant. The overseas cases referred to above offer guidance, but they do not speak in unison and there is no material suggesting that any particular approach was in the contemplation of those involved in the framing of the Fijian Constitution.

[45] In its submissions, the State has pointed to a list of statutory intrusions into privacy. Most relate to obligations to provide information to State officials in particular situations. There are limited powers of search and seizure and limited schemes regulating the interception of postal and telephonic communications. The Illicit Drugs Control Act 2004 authorises the High Court to grant a warrant authorising the monitoring and recording of conduct and communications.

[46] But none of these legislative measures prohibits or regulates police surveillance generally, let alone the type of covert recording used in the present case. And we cannot accept the appellant's: submission that s.120 of the Constitution provided a legislative basis for the issue of a warrant had the police sought one in the present case. We would therefore particularly adopt and apply to the Fijian context the first of the reasons of principle and public policy set out by Richardson J in the passage from R v A quoted above.

[47] It is unnecessary and inappropriate that we should embark upon an exhaustive exposition of the constitutional provisions relied upon. Our necessary conclusions can be shortly stated.

[48] In our opinion, s.26 was not engaged in the present case. There was no taking of property or other form of trespassory conduct. The presence of s.37 makes it unnecessary to give s.26 an expanded scope, as occurred in the United States and Canada. And the language of s.26 does not support the appellant's argument invoking it.

[49] In Nadan v The State [2005] FJHC 1, Winter J described the nub of the right of privacy as "the right to be let alone" (citing Brandeis J in Olmstead v United States [1928] USSC 133; 277 US 438, 478 (1928)). This right is protected by s.37(1), subject to "such limitations prescribed by law as are reasonable and justifiable in a free and democratic society" (s.37(2)). But the primary right is not itself absolute or one whose scope is self-evident. As the New Zealand cases demonstrate, in the context of explicating the privacy notion underlying that country's Bill of Rights protection against unreasonable search and seizure, the very notion of privacy is informed by the standards of the community. Those standards can be discerned, at least in part, by the rules of the general law and the patterns of legislative protection afforded to privacy interests. Of course, a constitutional guarantee is not controlled by the existing law. But neither is it something whose scope can be determined by judges operating in a legal and social vacuum.

[50] The reasoning in the New Zealand cases should be adopted and applied. Participant recording in relation to serious criminal activity does not entail an unconstitutional breach of the privacy of the accused person in light of current standards of Fijian society. The nature of the offence in question engaged this principle.

[51] At the hearing before us the appellant departed from his stance in the courts below, arguing now that Mr Narayan was unable to give oral evidence of the conversation because that itself entailed a breach of s.37. This submission would effectively nullify the offence itself and write it out of the law. It is rejected.

[52] The conviction should also be confirmed on the basis that, as Gates J and the Court of Appeal each held, the interests of justice required the admission of the evidence in any event. It is unnecessary to say more than that the portion of the reasons of Gates J that we have set out at para [11] betrays no error of fact or law. The interests of justice are not confined to the interests of an accused person.

[53] The appeal should be dismissed.

THE HON JUSTICE KEITH MASON
JUDGE OF THE SUPREME COURT

THE HON JUSTICE KENNETH HANDLEY
JUDGE OF THE SUPREME COURT

THE HON JUSTICE MARK WEINBERG
JUDGE OF THE SUPREME COURT

Solicitors:
A.K. Singh Law, Nausori for the Petitioner
Office of the Director of Public Prosecutions, Suva for the Respondent