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2
Supreme Court 24 August 2020

R v Cranston (No 2)

[2020] NSWSC 1102

Fraud & dishonesty
CRIMINAL PROCEDURE TRIAL CASE MANAGEMENT PRE TRIAL DISCLOSURE WARRANTS

Citation: R v Cranston (No 2) [2020] NSWSC 1102
Court: Supreme Court of New South Wales
Date: 24 August 2020
Judge: Payne J

Background

Four accused, committed for trial in the Supreme Court, faced two counts on indictment: conspiracy to dishonestly cause a loss to the Commonwealth, and conspiracy to deal with money believed to be proceeds of crime. The alleged conduct spanned from March 2014 to May 2017 and involved a large-scale scheme. Two of the accused (Menon and Onley) brought a notice of motion, supported by the other accused, seeking further prosecution disclosure and a stay of the criminal proceedings pending that disclosure.

The disclosure sought related principally to surveillance device warrants issued under the Surveillance Devices Act 2004 (Cth) and telecommunications interception warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth), as well as search warrants issued under s 3E of the Crimes Act 1914 (Cth). The applicants sought to examine material placed before the issuing officers when the warrants were obtained, and to test whether the warrants were validly issued and whether the AFP's conduct in executing them was authorised.

The applicants also sought leave to issue subpoenas to the CDPP and AFP Commissioner for production of materials. Payne J dealt with the subpoena to the AFP Commissioner in a companion judgment ([2020] NSWSC 1103), and this judgment addressed the stay and further disclosure questions.

  • Whether the court had power to examine material placed before a warrant-issuing officer to challenge the validity of surveillance or telecommunications interception warrants
  • Whether delays between the AFP notifying telecommunications carriers of warrant issue and physical delivery of warrant copies undermined the lawful authorisation for interception
  • Whether particular surveillance warrants were too broadly drawn or lacked the statutory basis required by the Surveillance Devices Act 2004 (Cth)
  • Whether the AFP's conduct in executing the warrants was authorised under the relevant legislation
  • Whether the criminal proceedings should be stayed pending further prosecution disclosure to enable a potential judicial review application
  • Whether the matters raised constituted a genuine "matter" within federal jurisdiction, or were hypothetical

Decision

Payne J dismissed all grounds of the notice of motion. On the central question of whether the court could examine the material placed before a warrant-issuing officer to challenge warrant validity, his Honour held that the trial court had no such power. This conclusion followed from the Court of Criminal Appeal's decision in Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, which Payne J found was binding and directly applicable. The applicants' attempt to distinguish Gould by reference to the Federal Court's decision in Caratti v AFP (No 2) [2016] FCA 1132 was rejected, as Caratti involved a case where the sworn complaint was actually before the court, unlike the present matter.

On the telecommunications interception warrant issues, his Honour examined the delays between AFP notification and carrier receipt of warrants. After a careful reading of the relevant provisions of the TI Act, the court found that the delays identified did not have the legal consequence the applicants contended for, and did not invalidate the interceptions or the evidence obtained.

Regarding the surveillance device warrants, the applicants raised multiple arguments about the scope and authorisation of the warrants, including whether certain warrants were too broadly drawn and whether the AFP acted within the authority conferred. Payne J worked through each ground and found none established a basis requiring further disclosure or a stay. Similarly, the challenge to the s 3E Crimes Act search warrants on grounds of excessive breadth was rejected, again on the basis that Gould precluded the trial court from examining the material before the issuing officer.

On each ground, Payne J found he was not satisfied that there was a tangible risk the trial would be unfair, nor that the trial was likely to be unfair, in the absence of the further disclosure sought. The stay application therefore failed in its entirety.

Orders Made

  • The applicants' notice of motion dated 4 June 2020 was dismissed.

Key Takeaways

  • Following Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, a trial court has no power to examine affidavits or other material placed before a warrant-issuing authority in order to challenge the validity of surveillance or telecommunications interception warrants.
  • A stay of criminal proceedings pending further prosecution disclosure will not be granted unless the applicant satisfies the court that there is a tangible risk the trial would be unfair, or that the trial is likely to be unfair, without the material sought.
  • The Supreme Court rejected the proposition that Gould could be distinguished merely by pointing to Federal Court decisions where the sworn complaint happened to be before the court on other grounds.
  • Delays between AFP notification of carriers and physical delivery of warrant copies did not, on the court's analysis of the TI Act, automatically invalidate the interceptions or render the evidence obtained unlawful.
  • Each ground of a disclosure and stay application will be assessed individually against the relevant statutory framework; broad assertions about warrant invalidity or AFP conduct without sufficient evidentiary foundation will not succeed.

Legislation and Cases Referenced

Legislation
- Surveillance Devices Act 2004 (Cth), ss 4, 16, 17, 18, 47
- Telecommunications (Interception and Access) Act 1979 (Cth), ss 60, 63, 74, 75, 76A, 77, 107A
- Crimes Act 1914 (Cth), s 3E
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 134, 138, Pt 3.10
- Judiciary Act 1903 (Cth), ss 39B(1C), 68, 78B
- Constitution (Cth), ss 75(v), 77(iii)

Key Cases
- Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142
- Caratti v AFP (No 2) [2016] FCA 1132
- Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48; (2020) 379 ALR 345
- Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26
- Kizon v Palmer (1997) 72 FCR 409; Kizon v Palmer [No 2] (1997) 75 FCR 261; Kizon v Palmer (No 2) (1998) 82 FCR 310
- Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145
- Carmody v MacKeller (1997) 76 FCR 115; [1997] FCA 839
- Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28