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Court of Criminal Appeal 30 June 2017

R v O’Meley

[2017] NSWCCA 153

Drugs
CRIMINAL LAW CRIMINAL INVESTIGATION WARRANT FOR TELEPHONE INTERCEPTS JOINT CRIMINAL ENTERPRISE “IMMEDIATELY”

Citation: R v O'Meley [2017] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 30 June 2017
Judge(s): Basten JA, Johnson J, Davies J

Background

The respondent faced two counts in the Sydney District Court of supplying a prohibited drug (MDMA in a commercial quantity, and methylamphetamine) contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The prosecution's case rested substantially on evidence of intercepted telephone calls captured under a Named Person Warrant issued on 4 June 2014 pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act).

At a pre-trial voir dire (a hearing held to determine the admissibility of evidence), the respondent applied to exclude the intercept material. Judge Hunt in the District Court ruled that the telephone intercepts had not been lawfully obtained and excluded the evidence. The Director of Public Prosecutions appealed against that ruling pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which permits interlocutory appeals by the prosecution against evidentiary rulings.

The central dispute concerned whether the NSW Police Force had complied with the notification obligations in s 60(1) of the TIA Act, compliance with which was a precondition to the warrant lawfully authorising interceptions under s 47 of that Act.

  • Whether the primary judge made an erroneous finding of fact in concluding that s 60(1)(c) of the TIA Act had not been complied with (that is, whether an authorised representative of Telstra had been informed immediately of the issue of the warrant).
  • Whether the primary judge was correct to find that s 60(1)(d) had not been satisfied, specifically whether a certified copy of the warrant had been provided as soon as practicable to the same authorised representative of Telstra.
  • Whether any irregularity identified was a "substantial" irregularity for the purposes of s 75 of the TIA Act, or whether it should be disregarded.
  • Whether the trial judge erred in determining that the telephone intercepts were not lawfully obtained and therefore excluding the intercept evidence.

Decision

Compliance with s 60(1)(c): notification of the warrant

The Court of Criminal Appeal found that the primary judge had erred in his treatment of the s 61(1) certificates issued by a Telstra certifying officer, Mr Wood. Those certificates constituted prima facie evidence of their contents. The only reason for doubt arose from an earlier certificate that recorded a patently erroneous date (a date before the warrant was even issued) in a column relating to receipt of the certified warrant copy. The Court found there was no basis to treat the remainder of that certificate as unreliable, and the second certificate confirmed the relevant details. The Court also noted that the respondent had not challenged compliance with s 60(1)(c) before the primary judge, which may have contributed to the judge's unsatisfied state of mind on a point that was clearly established on the evidence.

Compliance with s 60(1)(d): certified copy of the warrant

The primary judge was also not satisfied that the certified copy of the warrant had been given to the same authorised representative of Telstra who had received the original notification. The Court acknowledged that Mr Wood's certificate did not expressly identify the recipient as the same person. However, the Court reasoned that the certifying officer had clear access to the relevant information, and there was no good reason to suppose continuity of the authorised representative had been broken.

Whether any irregularity was substantial

Even accepting that there may have been a technical gap in identifying continuity of the authorised representative, the Court held this fell squarely within s 75 of the TIA Act, which permits irregularities to be disregarded where they are not substantial. Relying on New South Wales Crime Commission v Vuletic and subsequent decisions, the Court found no impropriety in the commonly understood sense of that word, and no basis to treat the irregularity as material to the lawfulness of the interceptions. The purpose of the notification requirements is to maintain an audit trail, and the evidence showed that purpose had been substantially served.

Orders Made

  • The appeal by the Director of Public Prosecutions was upheld.
  • The order of Judge Hunt excluding the evidence of the telephone intercepts obtained pursuant to Warrant Number C12860-00-00 issued 4 June 2014 was set aside.

Key Takeaways

  • Under s 47 of the TIA Act, a warrant only authorises interception of communications if the s 60(1) notification requirements have been satisfied by the relevant law enforcement agency and carrier. Certificates issued under s 61(1) constitute prima facie evidence of compliance and must be approached on that basis by a trial court.
  • Where a certificate is shown to be erroneous in one column or respect, that error does not automatically infect the remaining contents of the certificate, particularly where a subsequent certificate confirms the accurate information and explains the discrepancy.
  • Section 75 of the TIA Act enables courts to disregard irregularities in the warrant notification process that are not substantial. The Court of Criminal Appeal confirmed that a failure to expressly identify continuity of an authorised representative across the s 60(1)(c) and (d) notifications, without any accompanying impropriety, is the kind of technical irregularity s 75 is designed to address.
  • In applying Vuletic, the Court reaffirmed that the notification requirements in the TIA Act serve an audit trail function. Where that function has been substantially fulfilled and no impropriety attended the interception, irregularities will ordinarily be treated as insubstantial.
  • A respondent's failure to agitate a specific ground of challenge before the primary judge (here, non-compliance with s 60(1)(c)) may contribute to a court reaching a finding unsupported by the evidence, as the relevant evidence and argument may not have been properly marshalled before the judge.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act 1995 (NSW), s 138
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 46A, 47, 60, 61, 74, 75

Cases
- Cheikho v Regina [2008] NSWCCA 191; (2008) 199 A Crim R 167
- Geldert v State of Western Australia [2012] WASCA 226; (2012) 226 A Crim R 260
- House v The King (1936) 55 CLR 499
- New South Wales Crime Commission v Vuletic (2005) 64 NSWLR 301; [2005] NSWSC 614
- Preece v Boyd & McDougall [2003] NSWSC 172; (2003) 38 MVR 540
- R v Almirol (No 1) [2007] NSWSC 290; (2007) 168 A Crim R 423
- R v Bunting & Wagner (No 5) [2003] SASC 253
- R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286
- R v Scarpantoni (2013) 118 SASR 131; [2013] SASCFC 120