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Court of Criminal Appeal 27 May 2011

R v ZHI QIANG HAN

[2011] NSWCCA 120

DrugsFraud & dishonesty
EVIDENCE

Citation: R v Zhi Qiang Han [2011] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 27 May 2011
Judges: Whealy JA, RS Hulme J, McCallum J

Background

The respondent was arraigned in the District Court on a charge of demanding money with menaces, an offence carrying a maximum penalty of ten years imprisonment. The Crown sought to adduce evidence obtained through telephone interceptions conducted by the NSW Crimes Commission pursuant to warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth).

Three warrants had been issued in total. Two of those warrants were obtained in connection with a drug supply investigation involving persons other than the respondent. The third was obtained in connection with the very offence for which the respondent was charged. The respondent conceded that all three interceptions produced "lawfully intercepted information" within the meaning of the Act.

Before a jury was empanelled, the respondent's counsel sought a ruling that the information obtained under the two drug-offence warrants was inadmissible in the money-with-menaces prosecution. The District Court judge agreed and ruled the evidence inadmissible. The Director of Public Prosecutions appealed that ruling under s 5F(3A) of the Criminal Appeal Act 1912.

  • Whether information lawfully intercepted under warrants issued for one offence (drug supply) is admissible as evidence in the prosecution of a different offence (demanding money with menaces) involving a different accused.
  • Whether s 74 of the Telecommunications (Interception and Access) Act 1979 requires a connection between the warrant's original purpose and the proceeding in which the intercepted information is tendered.
  • Whether the Full Federal Court decision in Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159 supported the respondent's argument that use of the information was confined to a "permitted purpose" connected to the warrant.

Decision

The Court of Criminal Appeal allowed the appeal unanimously. By the time the appeal was heard, senior counsel for the respondent conceded that the ruling below was erroneous, and the Court agreed, reserving its reasons.

The Court's analysis turned on the structure of Part 2-6 of the Act, which governs how lawfully intercepted information may be "dealt with." A key distinction exists within that Part between giving information in evidence in a proceeding (governed by s 74) and other dealings with information such as communicating or making use of it (governed by s 67 and related provisions). The District Court had conflated these two separate regimes.

Section 74(1) of the Act permits lawfully intercepted information to be given in evidence in an "exempt proceeding." The charge of demanding money with menaces, carrying a maximum penalty of ten years, qualified as a prosecution for a "prescribed offence" and therefore as an exempt proceeding. Nothing in s 74 required any connection between the warrant's originating investigation and the proceeding in which the evidence was adduced.

The Court also examined the Samsonidis decision, which the respondent had relied upon below, and found it was simply not concerned with giving information in evidence at all. It dealt with the lawfulness of communicating intercepted information to overseas authorities outside the context of any proceeding. The Court further observed that Samsonidis should be approached with some care, as s 67(1)(a) (concerned with intra-agency communication) may not have been the correct provision to analyse in that case, since what was in issue was communication to a foreign agency, which fell under s 68.

Despite allowing the appeal and vacating the District Court ruling, the Court declined to make a positive order that the evidence was admissible. Section 74 establishes an entitlement to adduce the information, but other admissibility questions remained open for the trial judge. In particular, whether any earlier dealing with the information by the Crimes Commission before it reached the NSW Police had been authorised under the Act, and any discretionary exclusion under s 138 of the Evidence Act 1995, were matters reserved for the trial court.

Orders Made

  • The appeal was allowed.
  • The ruling given by Finnane DCJ on 15 March 2011 was vacated.

Key Takeaways

  • Under s 74(1) of the Telecommunications (Interception and Access) Act 1979, lawfully intercepted information may be given in evidence in any "exempt proceeding" regardless of the offence for which the warrant was originally issued. No nexus between the warrant's purpose and the prosecution is required by that provision.
  • Part 2-6 of the Act draws a clear distinction between giving intercepted information in evidence (s 74) and other dealings with that information such as communicating or using it (s 67). These are separate regimes and the "permitted purpose" requirement in s 67 does not import a connection requirement into s 74.
  • The Full Federal Court decision in Samsonidis concerned the lawfulness of communicating intercepted information to overseas authorities, not the admissibility of such information in criminal proceedings. Reliance on that case in support of an admissibility objection under s 74 was misplaced.
  • The Court of Criminal Appeal expressed a note of caution about Samsonidis, suggesting that s 67(1)(a) (intra-agency communication) may not have been the appropriate provision in that case, given that communication to a foreign agency falls under s 68, which does not extend to overseas agencies.
  • Allowing an appeal against an admissibility ruling does not automatically produce a positive order that the evidence is admissible. Separate questions, including whether prior dealings with the information were authorised and whether discretionary exclusion arises under s 138 of the Evidence Act 1995, remain for the trial judge to resolve.

Legislation and Cases Referenced

Legislation
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 5, 5B, 6E, 7, 46, 63, 67, 68, 74
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Crimes Act 1900 (NSW), s 99(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Evidence Act 1995 (NSW), s 138

Cases
- Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159