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Court of Criminal Appeal 4 June 2018

Gould v Director of Public Prosecutions (Cth)

[2018] NSWCCA 109

Also reported as (2018) 273 A Crim R 91 (2018) 359 ALR 142
Public order & justice offences
CRIMINAL PROCEDURE INTERLOCUTORY APPEAL DOCUMENTS NOT DISCLOSED INTERLOCUTORY APPEAL OUSLEY V THE QUEEN (1997) 192 CLR 69 PROSECUTOR’S PRE

Citation: Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109
Court: Court of Criminal Appeal
Date: 4 June 2018
Judges: Basten JA (with Johnson J and Adamson J agreeing)

Background

The applicant faced two charges under the Crimes Act 1914 (Cth): giving false testimony in a federal judicial proceeding (s 35(1)) and attempting to pervert the course of justice (s 43(1)). In 2013, the Australian Federal Police obtained six telecommunication interception warrants in respect of four numbers associated with the applicant. Conversations recorded under those warrants were expected to form a major part of the prosecution case.

Before trial, the applicant sought a stay pending disclosure of the affidavits, statements, and other documents the AFP had provided to support its warrant applications. The applicant relied on the prosecutor's general law disclosure obligation rather than issuing a subpoena, arguing the disclosure duty was broader than the "legitimate forensic purpose" test that applies to subpoenas. The District Court rejected that application on 11 April 2018, and the applicant sought leave to appeal to the Court of Criminal Appeal.

Legal Issues

  • Whether the prosecutor's general law disclosure obligation required production of the documents underlying the AFP's interception warrant applications.
  • Whether a collateral challenge to the validity of an interception warrant in criminal proceedings extends to examining the sufficiency of the material placed before the issuing authority.
  • Whether evidence gathered under an interception warrant could be challenged for exclusion under s 138 of the Evidence Act 1995 (NSW) on grounds of impropriety, independently of any challenge to the warrant's validity.
  • Whether a stay of the trial was available and appropriate in the absence of those documents.
  • Whether the test for disclosure is broader than the legitimate forensic purpose test that governs subpoenas.

Decision

Issue 1: Scope of collateral challenge to the warrants

The court confirmed that a collateral challenge to the validity of an interception warrant is limited to defects appearing on the face of the warrant. It does not extend to examining the sufficiency of the material placed before the issuing authority (at [42]). Applying the line of authority in Murphy v The Queen, Grollo v Palmer, and Ousley v The Queen, the court held that the trial court had no power to examine the affidavits and other supporting material used to obtain the warrants for the purpose of challenging their validity (at [52]). Arguments that developments in judicial review principles since Ousley should now permit a broader collateral challenge were rejected: the Court of Criminal Appeal was bound by those authorities, and collateral challenges in criminal proceedings raise distinct considerations from judicial review (at [70]).

Issue 2: Disclosure obligation and its scope

Because the trial court could not have used the warrant-support documents to challenge validity, those documents could not be relevant to any issue at trial. It followed that there was no disclosure obligation requiring the prosecution to produce material that was incapable of being relevant to the proceedings (at [52]). The court noted that the AFP had assessed the material in its possession and deemed it outside the disclosure duty, and that the duty extended to material held by the investigating authority as well as the prosecutor (at [15]).

Issue 3: Impropriety as an independent basis for exclusion

The applicant sought to sidestep the collateral challenge limitation by invoking s 138 of the Evidence Act, arguing the evidence might be excluded on grounds of "investigatory impropriety" rather than invalidity. The court acknowledged that an accused can seek exclusion on impropriety grounds through a voir dire, using evidence obtained by subpoena if necessary (at [56]). However, in this case there was no evidence at all of impropriety, and that finding had not been challenged on appeal (at [58]). Permitting the recharacterisation of a validity challenge as one of investigatory impropriety, while avoiding both the facial-invalidity constraint and the subpoena test, was not an available course (at [59]).

Issue 4: Stay of proceedings

The power to stay a prosecution to prevent an unfair trial was not in doubt. However, the applicant had not established any real likelihood that the trial would be unfair without production of the warrant-support documents, nor even a tangible risk of unfairness (at [64]). The stay application was therefore properly dismissed (at [69]).

Issue 5: Disclosure obligation versus legitimate forensic purpose

The court expressed doubt that the disclosure obligation is meaningfully broader in practice than the legitimate forensic purpose test for subpoenas. Both involve a test of potential relevance, and the approach in Alister v The Queen to subpoenas is a liberal one (at [65]). Even if the disclosure duty were broader, the appropriate remedy for non-compliance would be to require the prosecutor to consider the material, not to order production to the accused (at [62]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A collateral challenge to the validity of a telecommunication interception warrant in criminal proceedings is confined to defects appearing on the face of the warrant. The Court of Criminal Appeal confirmed, applying Murphy, Grollo, and Ousley, that courts have no power to examine the underlying affidavits and supporting material to assess whether there was sufficient basis for the warrant's issue (at [42], [52]).

  • Because the warrant-support documents could serve no permissible forensic purpose at trial, no prosecution disclosure obligation attached to them. The disclosure duty does not require production of material that is incapable of being relevant to any issue the trial court could properly address (at [52]).

  • Recharacterising a warrant-validity challenge as one of "investigatory impropriety" under s 138 of the Evidence Act, in order to avoid both the facial-invalidity constraint on collateral challenges and the subpoena process, is not a permissible approach (at [59]).

  • A stay of criminal proceedings on disclosure grounds requires the applicant to establish a real likelihood, or at minimum a tangible risk, that the trial will be unfair without the disputed material. Assertions without evidentiary foundation are insufficient (at [64]).

  • Judicial review developments since Ousley do not expand the scope of collateral challenges to warrants available in criminal proceedings. The Court of Criminal Appeal noted that collateral challenges in criminal trials raise considerations distinct from those governing judicial review of administrative action, and those questions would independently caution against extending the permissible scope of challenge even absent binding authority (at [70]).

Legislation and Cases Referenced

Legislation
- Administrative Decisions (Judicial Review) Act 1977 (Cth), Sch 1
- Constitution, s 75(v)
- Controlled Substances Act 1984 (SA), s 52
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes Act 1914 (Cth), ss 35, 43
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 138
- Judiciary Act 1903 (Cth), s 39B
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 5, 5B, 6E, 6EA, 7, 63, 74; Pt 2.6; Sch 1

Cases
- Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
- Allen v Ewing [2017] NSWSC 1696
- Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- Australian Crime Commission v Marrapodi (2012) 42 WAR 351; [2012] WASCA 103
- Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Director of Housing v Sudi (2012) 33 VR 559; [2011] VSCA 266
- Flanagan v Australian Federal Police (1996) 60 FCR 149; [1996] FCA 16; 134 ALR 495
- Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26
- Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952
- Kizon Palmer (1997) 72 FCR 409
- Kizon v Palmer (No 2) (1998) 82 FCR 310
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4
- McArthur v Williams (1936) 55 CLR 324; [1936] HCA 10
- Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
- Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
- Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; [2000] SASC 51
- R v Brown (Winston) [1998] AC 367
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v Keane [1994] 1 WLR 746
- R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
- R v Petroulias (No. 5) (2006) 217 FLR 334; [2006] NSWSC 1155
- R v Petroulias (No. 8) (2007) 175 A Crim R 417; [2007] NSWSC 82
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Saleam [1999] NSWCCA 86
- R v Simmons; R v Moore (No 3) [2015] NSWSC 189
- R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321
- Roads and Traffic Authority (NSW) v Conolly (2003) 57 NSWLR 310; [2003] NSWSC 327
- South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39
- von Arnim v Ellison (2006) 150 FCR 282; [2006] FCAFC 49