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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) 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: NSW Court of Criminal Appeal
Date: 4 June 2018
Judges: Basten JA at [1]; Johnson J at [72]; Adamson J at [73]

Background

The applicant faced two Commonwealth charges: giving false testimony in a federal judicial proceeding (maximum 5 years imprisonment) and attempting to pervert the course of justice (maximum 10 years imprisonment). In 2013, the Australian Federal Police (AFP) obtained six telecommunications interception warrants in respect of four numbers associated with the applicant. Recorded conversations captured under those warrants were expected to form a major part of the prosecution case on at least one charge.

The applicant sought a stay of the criminal trial pending disclosure of the affidavits, statements, and other documents the AFP had relied upon when applying for the interception warrants. The applicant did not issue a subpoena for this material. Instead, he invoked the prosecution's general law obligation of disclosure, arguing the warrant-support documents were material that the prosecution was required to produce.

On 11 April 2018, Judge Syme of the District Court refused the stay application in an ex tempore judgment. The applicant then sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).

  • Whether the prosecution's general law disclosure obligation required the prosecutor to actively appraise and disclose documents held by the investigating agency (the AFP), and whether the AFP was properly characterised as a "third party" for disclosure purposes.
  • Whether a collateral challenge to the validity of a telecommunications interception warrant is limited to invalidity apparent on the face of the warrant, or whether it can extend to the sufficiency of the underlying materials relied upon when the warrant was sought.
  • Whether the warrant-support documents should nonetheless be disclosed to allow the accused to assess whether there was any impropriety in the issuing of the warrants, for the purpose of a potential admissibility challenge under s 138 of the Evidence Act 1995 (NSW).
  • Whether, if the prosecution had failed in any disclosure obligation, the appropriate remedy was a stay of the trial pending production of the documents.

Decision

Basten JA (with Johnson J and Adamson J agreeing) dismissed the application for leave to appeal and upheld the refusal of the stay.

On disclosure, the Court accepted that the prosecution's disclosure obligation extends in principle to material held by the investigating agency, and that the AFP and the CDPP are generally treated as one entity for this purpose. However, the Court found that the primary judge had not definitively treated the AFP as a "third party" in a way that was dispositive of the application. The CDPP had made inquiries of the AFP and was advised there was nothing further to disclose. In those circumstances, no breach of the disclosure obligation was established that could ground a stay.

On collateral challenge to the warrants, the Court applied the High Court's decision in Ousley v The Queen (1997) 192 CLR 69. That case established that a collateral challenge to the validity of an interception warrant is confined to invalidity apparent on the face of the warrant itself. The underlying materials on which the warrant was based are not open to examination in collateral criminal proceedings. The Court rejected the proposition that an accused could look behind the face of the warrant to scrutinise the sufficiency of the supporting material.

On the impropriety argument, the Court acknowledged the theoretical possibility that evidence obtained under a validly issued warrant could nonetheless have been "improperly" obtained, giving rise to a challenge under s 138 of the Evidence Act. However, this argument was undeveloped in the submissions, and no sufficient basis was identified to justify disclosure of the warrant-support documents for that purpose. Absent an established right to the material by way of collateral challenge or demonstrated disclosure obligation, a stay was not warranted.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Applying Ousley v The Queen (1997) 192 CLR 69, the Court of Criminal Appeal confirmed that a collateral challenge to the validity of a telecommunications interception warrant in criminal proceedings is limited to invalidity apparent on the face of the warrant. The sufficiency or content of the material underlying the warrant application cannot be examined through such a challenge.

  • The AFP and the CDPP are generally treated as a single entity for the purposes of prosecution disclosure obligations, meaning disclosure duties can extend to material held by the investigating agency, not just the prosecuting agency.

  • Where the prosecution has made genuine inquiries of the investigating agency and been advised that no further disclosable material exists, that response can be sufficient to discharge the prosecution's disclosure obligation in the absence of evidence to the contrary.

  • A theoretical basis for arguing that validly issued interception warrants were nonetheless "improperly" obtained (for the purpose of an s 138 Evidence Act challenge) was left open by the Court, but the distinction was not sufficiently developed in this case to justify either disclosure of the warrant-support documents or a stay of proceedings.

  • Refusing a stay of proceedings is not an error simply because an accused considers the withheld documents possibly relevant. A stay requires an established failure of disclosure or another demonstrated basis rendering the trial unfair, and mere possibility of relevance does not, without more, meet that threshold.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 138
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 5, 5B, 6E, 6EA, 7, 46, 63, 74; Pt 2.6; Sch 1
- Crimes Act 1914 (Cth), ss 35, 43
- Judiciary Act 1903 (Cth), s 39B
- Administrative Decisions (Judicial Review) Act 1977 (Cth), Sch 1
- Constitution, s 75(v)

Key Cases
- Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
- Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
- Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26
- Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28
- Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
- Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- Kizon v Palmer (1997) 72 FCR 409; Kizon v Palmer (No 2) (1998) 82 FCR 310
- Australian Crime Commission v Marrapodi (2012) 42 WAR 351; [2012] WASCA 103
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Flanagan v Australian Federal Police (1996) 60 FCR 149; [1996] FCA 16