Citation: Regina (C'Wealth) v Baladjam & Ors [No 18] [2008] NSWSC 1440
Court: Supreme Court of New South Wales
Date: 27 May 2008
Judge(s): Whealy J
Background
The accused Khaled Cheikho was one of nine defendants facing serious Commonwealth criminal charges. As part of the Crown's case, the prosecution sought to rely on evidentiary certificates issued under s 18(2) of the Telecommunications (Interception) Act 1979 (TIA). Those certificates, signed by a named officer of the telecommunications provider, related to a specific email service account.
The accused brought a notice of motion seeking to have four of those certificates excluded from evidence. The basis for exclusion was that the certificates contravened s 13.6 of the Criminal Code Act 1995, which restricts the prosecution's ability to make averments in proceedings for offences directly punishable by imprisonment.
It was common ground between the parties that the offence charged was directly punishable by imprisonment, making s 13.6 potentially significant if the certificates were found to be averments.
Legal Issues
- Whether an evidentiary certificate issued under s 18(2) of the Telecommunications (Interception) Act 1979 constitutes an "averment" within the meaning of s 13.6 of the Criminal Code Act 1995
- Whether s 13.6 should be construed broadly and purposively, so as to encompass statutory evidentiary aids beyond formal pleading assertions
- Whether s 18 of the TIA is itself a law that "allows the prosecution to make an averment" for the purposes of s 13.6
Decision
Whealy J rejected the accused's argument and dismissed the motion. His Honour agreed with the reasoning of Gray J in Kerney v Lewis (2005) 155 A Crim R 95, where the ACT Supreme Court considered a comparable provision and concluded that the restriction in the equivalent section applied to the act of the prosecution in the charging document, not to statutory evidentiary aids more broadly.
The accused's counsel had urged a purposive construction of s 13.6, supported by government policy documents suggesting that averments and evidentiary certificates serve similar functions. His Honour acknowledged that those materials indicated some critical opinion about the use of evidentiary certificates, and accepted that this might eventually lead to legislative reform. However, Whealy J held that his task was to construe s 13.6 on its own terms, which were clear.
On those terms, s 18 of the TIA is not a law that allows the prosecution to make an averment, and a certificate issued under that section is not an "averment" within the meaning of s 13.6. The motion was accordingly refused.
Orders Made
- The order sought in paragraph 1 of the notice of motion dated 13 May 2008 was refused and the motion was dismissed.
Key Takeaways
- Whealy J held that evidentiary certificates issued under s 18(2) of the Telecommunications (Interception) Act 1979 do not constitute "averments" for the purposes of s 13.6 of the Criminal Code Act 1995.
- Section 13.6 places limits on the prosecution's act of averring, which applies sensibly only to the charging document, not to statutory evidentiary certificates tendered in the course of proceedings.
- A purposive construction of s 13.6, however appealing in policy terms, could not extend the section's reach beyond its clear statutory language.
- Government policy materials equating averments and evidentiary certificates were insufficient to alter the plain meaning of the provision; at most, they pointed toward a possible future legislative change.
- The ACT Supreme Court's reasoning in Kerney v Lewis, reaching the same conclusion in relation to a comparable provision expressed in even broader terms, was treated by the Supreme Court as persuasive authority directly on point.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 13.6
- Telecommunications (Interception) Act 1979 (Cth), s 18(2)
- Criminal Code (ACT), s 61
- Road Transport (Alcohol and Drugs) Act (ACT), s 41
- Quarantine Act (Cth)
Cases:
- Kerney v Lewis (2005) 155 A Crim R 95 (Gray J, ACT Supreme Court)
- Holmden v Bitar (1987) 27 A Crim R 255 (Cox J, Supreme Court of South Australia)