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7
Court of Criminal Appeal 13 August 2008

Cheikho v Regina

[2008] NSWCCA 191

Also reported as (2008) 75 NSWLR 323
Public order & justice offences
CRIMINAL LAW APPEAL AND REVIEW EVIDENCE WHETHER INTERLOCUTORY JUDGMENT OR ORDER RIGHT OF APPEAL CRIMINAL APPEAL ACT 1912 NSW, S 5F

Citation: Cheikho v Regina [2008] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 13 August 2008
Judge(s): Spigelman CJ, Barr J, Fullerton J

Background

Several accused faced charges of conspiracy to commit acts in preparation for a terrorist act or acts under the Criminal Code Act 1995 (Cth). One element of the offence required the Crown to prove at least one overt act in furtherance of the conspiracy. The Crown sought to establish that one of the accused downloaded certain documents via a telecommunications service, relying on intercepted communications obtained under a valid ASIO warrant.

To prove the interception was lawfully conducted, the Crown tendered a certificate issued by the telecommunications carrier Optus under s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). That provision renders such a certificate conclusive evidence of the facts it states, both on the question of admissibility and before the jury. A replacement certificate had been issued because an earlier version contained arguably inconsistent factual assertions that raised a potential illegality concerning admissibility.

The applicants challenged the constitutional validity of s 18(2) before the trial judge (Whealy J in the Supreme Court), who upheld the provision. The applicants then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 before the trial concluded.

  • Whether a pre-trial ruling on the admissibility and conclusive effect of evidence constitutes a "judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912, thereby attracting a right of interlocutory appeal.
  • Whether s 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) was constitutionally valid, specifically:
  • Whether it impermissibly usurped the separation of judicial powers under ss 71 and 77 of the Constitution.
  • Whether it infringed the constitutional right to trial by jury under s 80 of the Constitution.
  • Whether the conclusive certificate impermissibly prevented the applicants from challenging the legality of the interception process.
  • Whether the certificate conclusively established facts in the chain of evidence in a way that precluded challenge and therefore prejudiced the accused's trial.

Decision

Jurisdiction to appeal

The Court held that, as a general rule, pre-trial rulings on the admissibility of evidence do not constitute a "judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912. However, the Court found that this ruling was not purely an admissibility ruling. The constitutional challenge, combined with the obligations imposed by ss 78A and 78B of the Judiciary Act 1903 (Cth) requiring notice to and intervention by attorneys-general, transformed the matter into something broader: a ruling on the conclusive effect of evidence. This gave the ruling sufficient character to engage the s 5F jurisdiction, at least arguably.

Illegality and separation of powers

On the facts as found by Whealy J, there was no illegality in the interception process. The Court accepted that a statutory regime can determine what constitutes illegal conduct, and that s 18(2) did not impermissibly transfer judicial power to a non-judicial body. The conclusive certificate attested only to steps taken by Optus employees to enable ASIO to listen to communications; it did not itself establish that any particular document was downloaded on any particular day. That "critical fact" was not conclusively established by the certificate.

Constitutional validity and trial by jury

The Court accepted the Attorney-General of the Commonwealth's submissions, adopted by the Crown, that the facts attested to in the certificate were too far removed from the facts actually in issue at the criminal trial to constitute an impermissible intrusion on either the separation of judicial powers or the right to jury trial under s 80 of the Constitution. The conclusive nature of the certificate did not, in the circumstances of this case, deprive the jury of its essential function. Whether a conclusive certificate might be constitutionally impermissible in a different factual context was left open as a matter of degree.

Chain of evidence and leave to appeal

The Court acknowledged that the certificate formed a necessary link in the evidentiary chain, in that without it the Crown could not tender the intercepted material. Despite this, the Crown's concessions about the limited way in which the certificate would be deployed at trial meant that the chain of evidence issue was not of sufficient significance to justify granting leave. On that basis, the Court refused leave to appeal in all matters.

Orders Made

  • Time to lodge an application for leave to appeal extended up to and including the date on which the application was filed in matters 2007/2397; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2455.
  • Leave to appeal refused in each case.

Key Takeaways

  • A pre-trial evidentiary ruling does not ordinarily constitute a "judgment or order" under s 5F of the Criminal Appeal Act 1912, but a ruling that also resolves a constitutional question about the conclusive effect of evidence may cross that threshold.
  • Section 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) was upheld as constitutionally valid in the circumstances: a conclusive certificate attesting to steps taken to enable interception does not, without more, usurp judicial power or infringe the constitutional guarantee of trial by jury.
  • Whether a conclusive evidence certificate could be constitutionally impermissible in other circumstances was not decided; the Court treated the question as one of fact and degree, dependent on the proximity of the certified facts to the ultimate issues in the trial.
  • Refusing leave to appeal, the Court of Criminal Appeal placed weight on Crown concessions about the limited use of the certificate, finding that the chain of evidence concern, though real, did not rise to the level of significance required to justify interlocutory intervention.
  • Under s 18(2), a certificate issued by a telecommunications carrier is conclusive evidence of the facts it states, both on admissibility and before the jury, but its scope is confined to what the carrier's employees did to enable interception, not to the content or existence of specific intercepted communications.

Legislation and Cases Referenced

Legislation
- Telecommunications (Interception and Access) Act 1979 (Cth), s 18(2)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code Act 1995 (Cth)
- Judiciary Act 1903 (Cth), ss 78A, 78B
- Constitution (Cth), ss 71, 77, 80
- Evidence Act 1995
- Crimes Act 1914 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Customs Act 1901 (Cth)

Key Cases
- R v Steffan (1993) 30 NSWLR 633
- R v Bozatsis (1997) 97 A Crim R 296
- R v F [2002] NSWCCA 125
- Cheeseman v Waters (1997) 77 FCR 221
- Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
- Nicholas v The Queen (1998) 193 CLR 173
- Grollo v Palmer (1995) 184 CLR 348
- Ridgeway v The Queen (1995) 184 CLR 19
- Cheatle v The Queen (1993) 177 CLR 541
- Brownlee v The Queen [2001] HCA 36
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
- Thomas v Mowbray [2007] HCA 33
- Lodhi v R [2007] NSWCCA 360