R v Alzuain (No 5) - [2023] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)

R v ALZUAIN & ORS (No 5)
[2023] SASC 137
Judgment of The Honourable Auxiliary Justice Martin
3 October 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Eight accused are jointly charged with Murder. On 21 November 2012 a group of nine men entered a business premises at Pooraka and shots were fired, one of which killed the deceased. The Prosecution allege the accused were members of the group.
A section of evidence sought to be led by the Crown concerns call charge records for the mobile telephones used by each accused and other persons.
Each of the accused challenged the admissibility of call charge records by reason of breaches of the scheme for disclosure of telecommunications data. The first application was filed by Mr Mohamed Alzuain on 24 July 2023.
Held:
1. The applications are refused.
2. The evidence is admitted.
Telecommunications Act 1997 (Cth) Part 13, Division 3, ss 270, 271, 276, 279, 280, 297; Telecommunications (Interception and Access) Act 1979 (Cth) Chapter 4, Part 4-2, ss 5AB, 177, 178, 178A, 179, 180, 180F, 181, 183, 184; Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2018 (Cth) Division 2, Division 3, cls 6R, 7, 10, 16; Migration Act 1958 (Cth) s 441G; Telecommunications (Interception and Access) Amendment Act 2007 (Cth); Cybercrime Legislation Amendment Act 2012 (Cth); Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), referred to.
R v Patti & Votino [2023] SADC 88; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177; R v Doolan [2016] SASCFC 111; Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; Strickland v Commonwealth Director of Public Prosecutions and Others 266 CLR 325, considered.

R v ALZUAIN & ORS (No 5)
[2023] SASC 137
Criminal: Martin AJ
Introduction

The eight accused are charged with the murder of Mr Jason De Ieso (“the deceased”), who was killed on 21 November 2012 when a group of nine men entered a business premises at Pooraka and shots were fired. It is the prosecution case that the shooting followed a period of escalating tension between two motorcycle groups known as the Hells Angels and the Finks, culminating in the firebombing of the family home of the accused Husain Alzuain, Mohamed Alzuain and Musa Alzuain on 20 November 2012. The Crown alleges that the accused were members of, or closely associated with, the Hells Angels, and the shooting was in retaliation for the attack of the Alzuain family home.
During the evening of the firebombing, and the morning of 21 November 2012, various communications occurred between the mobile telephones used by the accused which the Crown alleges led to a gathering of the accused at 501a Salisbury Highway, Parafield Gardens. It is the Crown case that at 501a the accused, together with Dwayne Bradley, now deceased, reached an understanding or arrangement to kill or cause grievous bodily harm to Charles Bonnici, a member of the Finks. Pursuant to that understanding or arrangement, the group entered the premises at Pooraka and some of the group opened fire, killing the deceased.
The Crown relies almost entirely upon circumstantial evidence. A section of evidence important to the Crown case concerns call charge records for the mobile telephones used by each accused, and other persons, including the principal Crown witness VI. Of particular significance is evidence of communications between the numbers assigned to each of the accused during the evening of 20 November 2012 and the day of the shooting, 21 November 2012. Through the call charge records, the Crown seeks to establish that the mobile telephones used by each accused were silent for the period during which the accused and Mr Bradley travelled to Pooraka and the shooting occurred. The Crown also rely upon evidence concerning the towers through which the various communications were routed to support other aspects of the Crown case, including the destruction of one of the vehicles used to travel to the premises where the shooting occurred. It is readily apparent that the call charge records are, on the Crown case, an important piece of circumstantial evidence.
Each of the accused challenged the admissibility of the call charge records. Each was a late challenge. Pre-trial applications were heard by Lovell JA in 2021 and 2022. His Honour delivered a number of rulings in February 2022, and further issues were argued later in 2022. In February 2023, I held directions hearings and pre-trial applications were heard in March and early May 2023. Numerous applications were filed by each accused, but none of those applications related to the admissibility of the call charge records. The prosecution opening commenced on 10 May 2023, and the evidence followed immediately.
The first application to exclude the call charge records was filed by Mohamed Alzuain (Mohamed) on 24 July 2023, approximately 10 weeks into the trial before the jury. It seems the applications were prompted by reasons for decision published by her Honour Judge Telfer on 12 July 2023 in R v Patti & Votino (‘Patti’).[1] Her Honour held that in obtaining call charge records, SA Police had failed to comply with the procedural requirements and, therefore, the disclosure of the call charge records was unlawful. Ultimately, her Honour declined to exercise the discretion to exclude the evidence.
[1] [2023] SADC 88.
At the conclusion of submissions, I disallowed the objections and ruled that the evidence would be admitted. I now set out my reasons for that decision.
Legislative scheme
The confidentiality of information held by telecommunications carrier service providers is protected by a legislative scheme currently found in the Telecommunications Act 1997 (Cth) (‘TC Act’), the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TI Act’), and the Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2018 (Cth) (‘Determination’). The scheme governs the circumstances in which service providers may disclose information which is otherwise to remain confidential.
TC Act
Part 13 of the TC Act headed “Protection of communications”. A “Simplified outline” is described in s 270:
270 Simplified outline
The following is a simplified outline of this Part:
•Carriers, carriage service providers, number‑database operators, emergency call persons and their respective associates must protect the confidentiality of information that relates to:
(a)the contents of communications that have been, or are being, carried by carriers or carriage service providers; and
(b)carriage services supplied by carriers and carriage service providers; and
(c)the affairs or personal particulars of other persons.
•The disclosure or use of protected information is authorised in limited circumstances (for example, disclosure or use for purposes relating to the enforcement of the criminal law).
•An authorised recipient of protected information may only disclose or use the information for an authorised purpose.
•Certain record‑keeping requirements are imposed in relation to authorised disclosures or uses of information.
An “eligible person” is defined in s 271 as a carrier, a carriage service provider, an employee of either of those entities and a telecommunications contractor. Section 276 directs that an eligible person must not disclose or use specified information:
276 Primary disclosure/use offence—eligible persons
Current eligible persons
(1)An eligible person must not disclose or use any information or document that:
(a) relates to:
(i)the contents or substance of a communication that has been carried by a carrier or carriage service provider; or
(ii)the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it); or
(iii)carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or
(iv)the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b) comes to the person’s knowledge, or into the person’s possession:
(i)if the person is a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or
(ii)if the person is an employee of a carrier or carriage service provider—because the person is employed by the carrier or provider in connection with its business as such a carrier or provider; or
(iii)if the person is a telecommunications contractor—in connection with the person’s business as such a contractor; or
(iv)if the person is an employee of a telecommunications contractor—because the person is employed by the contractor in connection with its business as such a contractor.
Section 276(3) provides that a contravention of s 276 amounts to an offence punishable on conviction by imprisonment not exceeding two years. As Judge Telfer observed, the penalty reflects the emphasis on maintaining the privacy of communications which occur over the systems owned and administered by telecommunications entities.
Exceptions to disclosure prohibited by s 276 are found in Division 3 of the TC Act. Section 279 primarily relates to employees, and s 280 provides that disclosure or use of information is not prohibited if it is “required or authorised under a warrant” or, in any other case, “the disclosure or use is required or authorised by or under law”.
If information is disclosed by a service provider as permitted by s 280, secondary disclosure or use of the information is prohibited unless authorised under law. Section 297 of the TC Act is as follows:
297 Authorisation by or under law
If information or a document is disclosed to a person for a particular purpose as permitted by section 280 or this section, the person must not disclose or use the information or document unless the disclosure or use is required or authorised by or under law.
TI Act
Chapter 4 of the TI Act deals with circumstances in which s 276 of the TC Act does not prohibit disclosure of information or a document. Section 177 permits disclosure to an enforcement agency, which includes SA Police, if the disclosure is “reasonably necessary for the enforcement of the criminal law”. However, s 177(3) provides that the section does not apply if a relevant staff member of an enforcement agency requests disclosure of the information. Presumably s 177 permits the carrier to voluntarily make disclosure if it is of the view that disclosure is reasonably necessary for the enforcement of the criminal law.
Disclosure pursuant to an “authorisation” is permitted by s 178:
178Authorisations for access to existing information or documents—enforcement of the criminal law
(1)Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2)An authorised officer of an enforcement agency may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3)The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law.
Other exceptions found in ss 178A-180 are concerned with locating missing persons, enforcement of a law imposing a pecuniary penalty, or protection of the public revenue and access to prospective information or documents.
As is apparent from s 178 of the TI Act, authorisation of disclosure of information or documents may be authorised by an “authorised officer of an enforcement agency”. There is no dispute that SA Police is an enforcement agency. An authorised officer of an enforcement agency is defined in s 5AB:
The head (however described) of an enforcement agency may, by writing, authorise a management office or management position in the enforcement agency for the purposes of subparagraph (b)(iii) of the definition of authorised officer in subsection 5(1).
It was not suggested that the officers who authorised the disclosure of information in respect of each accused were not an authorised officer for the purposes of the TI Act.
Importantly, s 178(3) provides that the authorised officer “must” not make an authorisation “unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law”. In addition, s 180F requires that before making an authorisation, authorised officers “must” consider the issue of interference with privacy (privacy issue):
180F Authorised officers to consider privacy
Before making an authorisation under Division 4 or 4A in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate, having regard to the following matters:
(aa)the gravity of any conduct in relation to which the authorisation is sought, including:
(i)    the seriousness of any offence in relation to which the authorisation is sought; and
(ii)     the seriousness of any pecuniary penalty in relation to which the authorisation is sought; and
(iii)    the seriousness of any protection of the public revenue in relation to which the authorisation is sought; and
(iv)    whether the authorisation is sought for the purposes of finding a missing person;
(a)the likely relevance and usefulness of the information or documents;
(b)the reason why the disclosure or use concerned is proposed to be authorised.
There is no suggestion that any of the relevant authorised officers who authorised the disclosures were not satisfied that the disclosures were reasonably necessary for the enforcement of the criminal law. However, advertence to the privacy issue is an issue in respect of a number of authorisations and this question is discussed later in these reasons.
As the trial Judge noted in Patti, there is no provision which anticipates the secondary disclosure of information unlawfully disclosed by a service provider.
Section 181 of the TI Act provides that s 276 of the TC Act does not prohibit a use of information if disclosure of the information was not prohibited by reason of the operation of s 178.
Part 4-2 of the TI Act sets out procedural requirements applying to authorisations:
Part 4-2—Procedural requirements relating to authorisations
183 Form of authorisations and notifications
(1)The following:
(a) an authorisation under Division 3, 4 or 4A of Part 4 1;
(b)     the notification of such an authorisation;
(c)     the revocation of such an authorisation;
(d)     the notification of such a revocation;
must:
(e)     be in written form or in electronic form (for example, email); and
(f)     comply with such requirements as are determined under subsection (2).
(2)The Communications Access Co-ordinator may, by legislative instrument, determine requirements for the purposes of paragraph (1)(f).
(3)The Co-ordinator must consult the ACMA and the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) before making a determination under subsection (2).
Section 184(3) provides that if an authorised officer of an enforcement agency makes an authorisation, “a relevant staff member of the enforcement agency must notify the person from whom the disclosure is sought”. Similarly, if an authorised officer revokes an authorisation, the person who was notified of the authorisation must be notified of the revocation.
Returning to s 183 of the TI Act, the authorisation, and the notification of the authorisation, “must” be in written or electronic form, including email. In addition, s 183(1)(f) directs that the authorisation and notification must comply with requirements determined by the Communications Access Co-ordinator (“Co‑ordinator”).
Determination
Section 183(2) provides that the Co-ordinator may, “by legislative instrument”, determine the requirements with which the authorisation and notification of authorisation “must” comply (Determination). The Co‑ordinator is defined in s 6R as meaning the Secretary of the Department or a person or body covered by a legislative instrument created by the Minister specifying a person or body for the purposes of the definition of the Co-ordinator.
The relevant Determination under s 183(2) was made by instrument dated 20 November 2018. Clause 7 states that for the purposes of s 183(1)(f) of the TI Act, the Determination determines the requirements for an authorisation and notification of such authorisation. Division 2 concerns authorisations made by enforcement agencies:
Division 2 – Authorisations made by enforcement agencies
10 Authorisation for access to existing information or documents
(1)An authorisation made under subsection 178(2) or 179(2) of the Act must include all of the following information:
(a)     the name of the enforcement agency;
(b)     the basis on which the agency is an enforcement agency;
(c)     the identity of the authorised officer who is making the authorisation;
(d)     the basis on which the officer is an authorised officer;
(e)     the provisions of the Act under which the authorisation is made;
(f)     the name of the person from whom disclosure is sought;
(g)     details of the information or documents to be disclosed;
(h)     a statement that the authorised officer is satisfied that the disclosure of the information or documents is reasonably necessary for one or more of the following:
(i)the enforcement of the criminal law;
(ii)the enforcement of a law imposing a pecuniary penalty;
(iii)the protection of the public revenue;
(i)    a statement that the authorised officer is satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate, having regard to the following matters:
(i)the gravity of any conduct in relation to which the   authorisation is sought, including the seriousness of any offence, pecuniary penalty or protection of the public revenue in relation to which the authorisation is sought;
(ii)the likely relevance and usefulness of the information or documents;
(iii)the reason why the disclosure or use concerned is proposed to be authorised;
(j)    the date on which the authorisation is made.
Note 1:For the purposes of paragraph (1)(h), subsections 178(3) and 179(3) specify that the authorised officer must be satisfied of certain things before making the authorisation.
Note 2:For the purposes of paragraph (1)(i), section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.
(2)An authorisation mentioned in subsection (1), whether in written or electronic form, must be signed by its maker.
Note: Section 10 of the Electronic Transactions Act 1999 sets out how the requirement for signature is taken to have been met in relation to an electronic communication.

Division 3 of the Determination sets out the information to be provided to the service provider with notification of an authorisation:
Division 3 – Notifications of authorisations
16Notification of an authorisation
(1) For the purposes of subsections 184(1), (3) and (5) of the Act, a notification of an authorisation must include all of the following information:
(a)the identity of the person who is making the notification;
(b)the provision of the Act under which the notification is made;
(c)either:
(i)a copy of the authorisation; or
(ii)a statement that specifies all the information that is required to be included in the authorisation under Part 2;
(d) the means by which the information or documents should be disclosed to the person;
(e)the date on which the notification is made.
(2) A notification of an authorisation must:
(a)if the notification is in written form – be signed by its maker; or
(b) if the notification is in electronic form – state a unique identifier of the relevant agency.
Note: Section 10 of the Electronic Transactions Act 1999 sets out how the requirement for signature is taken to have been met in relation to an electronic communication.
Legislative scheme – discussion
In Patti, the learned trial Judge correctly discerned a “clear legislative intent” that “the privacy of persons using telecommunications services be protected, subject to highly regulated exceptions which are justified by competing policy interests, such as where disclosure is reasonably necessary for the enforcement of the criminal law”.[2] Her Honour correctly recognised that s 178 is a significant inroad into the privacy protected by the TC Act, and that disclosure is only permitted if the authorised officer is satisfied that disclosure is “reasonably necessary for the enforcement of the criminal law”, and only if the authorised officer is satisfied, on reasonable grounds, “that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate”. Further, in determining whether the disclosure is justifiable and proportionate, the authorised officer is required to have regard to matters specified in s 180F, including the seriousness of any offence in relation to which the authorisation is sought, together with the likely relevance and usefulness of the information.
[2] [2023] SADC 88 at [50].
These are statutory requirements as determined by the legislature. By way of contrast, having given a statutory direction in s 183(1)(e) that the authorisation and notification of authorisation must be in written or electronic form, the legislature refrained from giving further specific statutory direction concerning procedural matters and conferred a discretion upon an administrative officer to determine further procedural requirements with which an authorised officer is required to comply. Albeit by legislative instrument, which is eventually laid before both Houses of Parliament,[3] the conditions are fixed by an administrative officer without input by Parliament.
[3] Legislation Act 2003 (Cth) s 38.
In Patti, the trial Judge referred to the language of s 178 which authorises disclosure if the information is covered by an authorisation “in force”. Her Honour considered the language used suggested the authorisation is “in force” when the document satisfies the procedural requirements in s 183. In her Honour’s view, an intention by an authorised officer to authorise disclosure without it being “reduced to a prescribed written form cannot … be said to be an authorisation in force”.[4]
[4] [2023] SADC 88 at [52].
After referring to the scheme for oversight by the Commonwealth Ombudsman, together with the reporting requirements of the scheme, and having noted that in the absence of compliance with the Determination persons with a proper interest cannot be satisfied that the essential preconditions have been met, her Honour reached the following conclusion:[5]
These provisions point to a legislative intent that the disclosure of records that would otherwise be protected be subject to a rigorous scheme of authorisation and record keeping to ensure that the incursions into an individuals privacy are no more than are justified by the legitimate purpose of the enforcement of the criminal law. If the procedural requirements of the authorisation are not met, the existence of, and the basis for the authorisation is obfuscated. This frustrates the operation of the strict system of oversight. This would support the conclusion that the lawful exercise of the power in s 178 is subject to compliance with the procedural requirements.
There are considerations however that point in the other direction. Section 182 of the TI Act provides that a person commits an offence if they receive information “as permitted by Division 4 or 4A” and they further disclose or use that information or document. That prohibition is subject to s 182(2)(iii) which provides that no offence is committed if the further disclosure or use is necessary for the enforcement of the criminal law. The language of this offence provision contemplates that information will be disclosed as permitted by Division 4, that is, compliance with the requirements in that Division permits the disclosure. The procedural requirements for an authorisation and notification are contained in Part 4-2, not Part 4-1, Division 4.
I have however reached the conclusion, notwithstanding the language in s 182, that the power in s 178 is conditional on the satisfaction of the procedural requirements associated with the written authorisation. That means that if VD D1 and VD P4 do not meet the requirements of s 10 of the Determination, the authorisation is invalid and the call charge records were not lawfully disclosed.
[5] [2023] SADC 88 at [60]-[62].
Legislative scheme – interpretation
In Project Blue Sky Inc v Australian Broadcasting Authority, (‘Project Blue Sky’)[6] the High Court discussed the principles governing whether a breach of a condition attached to the exercise of a statutory power necessarily invalidates the exercise of the power. In the majority judgment, McHugh, Gummow, Kirby and Hayne JJ referred to the traditional distinction between mandatory and directory conditions of the exercise of a power, and observed that those classifications had “outlived their usefulness”.[7] The essence of their Honours’ decision is found in the following passages:[8]
[91]An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various context, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
…
[93]… A better test [than the directory and mandatory classifications] for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
…
[97]Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act …
(Footnotes omitted)
[6] (1998) 194 CLR 355.
[7] At [93].
[8] At [91], [93], [97].
The critical question is, therefore, whether there can be discerned a “legislative purpose” to invalidate any act that fails to comply with a condition regulating the exercise of a statutory power. Regard must be had to the subject matter and objects of the legislation, and the language of the relevant provisions, together with the consequences of “holding void every act” done in breach of a condition. Further, it is necessary to bear in mind it is unlikely the legislature intended an act done in breach of a statutory provision “should be invalid if public inconvenience would be a result of the invalidity of the act”.[9] The last consideration brings into play the public interest in criminal prosecutions for serious crimes.
[9] At [97].
In Patti, the trial Judge found that notwithstanding the invalidity of the authorisation which resulted in the records being unlawfully disclosed, the admissibility of the unlawfully obtained material was to be determined by the application of the common law principles of discretionary exclusion found in Bunning v Cross.[10] Her Honour also referred to R v Pollard.[11]
[10] (1978) 141 CLR 54.
[11] (1992) 176 CLR 177.
In reaching her view, the trial Judge noted that the TC Act does not contain any reference to use of unlawfully obtained records. By way of contrast, her Honour found that the provisions of the TI Act direct that intercepted information not lawfully obtained is inadmissible and there is no question of discretionary exclusion. Her Honour’s reasons continued:[12]
The provisions of Chapter 4 which govern, along other things, access to existing documents and information do not contain equivalent prohibitions. The scheme permitting disclosure of existing documents and information is far less restrictive than the scheme in Chapters 2 and 3. Chapter 4 does not contain a prohibition on the admission of evidence obtained outside the schemes established by those respective chapters. Rather, s 182 creates an offence for a person to use information which has been lawfully disclosed to them, subject to certain identified exceptions (use exceptions). One of those use exemptions is if the disclosure is reasonably necessary for the enforcement of the criminal law. That exemption applies to material disclosed in accordance with the scheme. The TI Act is silent on the status of material not lawfully disclosed.
In light of these clear contextual differences between the provisions in Chapters 2 and 3 and the provisions in Chapter 4 of the TI Act I conclude that there is no prohibition per se on the admission of evidence obtained outside the authorisation scheme established in Chapter 4. The TI Act has left the admissibility of that material as subject to the common law principles of discretionary exclusion.
[12] [2023] SADC 88 at [67]-[68].
The accused challenged the view reached by the trial Judge in Patti. In written submissions adopted by all accused, counsel for Mr Mohamed Alzuain reasoned as follows:
·Subject to the operation of s 280 of the TC Act, s 276 prohibits disclosure by a carrier of call charge records.
·Section 280 provides that disclosure is not prohibited if it is “authorised by or under law”.
·Through the operation of s 178(1) of the TI Act, disclosure will be authorised if it is covered by an authorisation “in force” under s 178(2).
·Absent compliance with the relevant statutory conditions, the express statutory prohibition on disclosure proscribed by s 276(1) is “absolute”.
·Section 297 of the TC Act “is intended to operate as a code to regulate the further, secondary disclosure or use of telecommunications data …”. It is predicated on compliance with s 280 and “neither contemplates nor countenances the further disclosure or use of telecommunications data in circumstances where its original, primary disclosure [to SA Police] was not “permitted” by s 280”.
·“Properly understood, s 297 of the [TC] Act can be seen to operate as an absolute prohibition on the further, secondary disclosure or use of telecommunications data so obtained”. This view is confirmed by reference to s 181 of the TI Act.
·Properly understood, the scheme is premised on the absolute prohibition of disclosure, and “comprises an exhaustive code, to which the unregulated further, secondary disclosure or use by enforcement agencies, of unlawfully disclosed and criminally tainted telecommunications data, is fundamentally abhorrent”.
·“The proper interpretation of s 297 of the [TC] Act, in that context, permits of only one conclusion as to its effect: that it operates as an absolute prohibition against such unregulated further, secondary disclosure or use of unlawfully obtained telecommunications data by enforcement agencies; and, in these circumstances, as an absolute prohibition against the prosecution’s further reliance upon that unlawfully obtained telecommunications data, evidence of which is, in consequence, strictly and prima facie inadmissible”.
There can be no doubt about the importance of compliance with the legislative scheme. The legislature has demonstrated an intention to protect the privacy of information gained in the course of telecommunications operations, subject only to disclosure for specified matters of public importance. The legislature has developed a scheme of controls to regulate authorised disclosure of information.
It is not unusual for the legislature to grapple with competing public interests. The current scheme specifically recognises an exception to the importance of maintaining privacy of information gained by telecommunications operators. The exception is the enforcement of the criminal law. An essential condition for the operation of this exception is satisfaction on the part of an authorised officer that disclosure of information is “reasonably necessary for the enforcement of the criminal law”. Further, it is an essential condition that, having regard to matters specified in s 180F, the authorised officer be satisfied on reasonable grounds that any interference with the privacy of any person that may result from disclosure is both justifiable and proportionate.
It is not surprising that the legislature would make these features essential conditions to the granting of an authorisation. They concern the necessity of enforcing the criminal law and balancing competing public interests. Once those essential conditions are met, the primary purpose of the legislation is achieved. It is not undermined if there exists only a failure to comply with administrative or procedural requirements.
The legislature undoubtedly contemplated the establishment of an administrative and procedural scheme appropriate for the operation of the authorisation and notification processes. As the trial Judge in Patti pointed out, this includes notifications, recordkeeping and audit obligations, together with oversight by the Commonwealth Ombudsman. However, the legislation left the procedural details for determination by an administrative officer. In my opinion, it is highly unlikely the legislation intended that failure to comply with procedural details determined by an administrative officer, no matter how minor, would necessarily result in invalidity.
A consideration of the nature of the directions contained in s 10 of the Determination supports this conclusion. For example, cl 10(1)(b) requires that an authorisation include information as to the basis on which the agency is an enforcement agency. Taken to its logical conclusion, the reasoning of the trial Judge means that if the authorisation fails to state that the South Australian Police is an enforcement agency, the authorisation is invalid. While it is understandable, and appropriate, that this type of information be included in an authorisation, I am unable to discern any intention on the part of the legislature that failure to comply with such a minor detail should necessarily result in the serious consequence of invalidity.
This view of the intention of the legislature is confirmed by a comparison between the TI Act and the TC Act, which both comprise the scheme for authorisations of lawful disclosure of service provider confidential information. The TC Act does not contain any express prohibition against the use of information unlawfully obtained. The TI Act contains a scheme for authorising the interception of communications which is otherwise prohibited by s 7. In contrast to the silence of the TC Act, s 77 of the TI Act expressly states that, subject to specified legislative exceptions, intercepted information is not admissible in evidence in a proceeding.
In the single scheme comprised of the two Acts and the Determination, if the legislature had intended that information unlawfully obtained from a service provider is inadmissible, and the discretion to admit is excluded, it is reasonable to infer that the legislature would have expressly enunciated that intention as it did in the TI Act with respect to intercepted communications.
This view is supported by the decision of the Court of Criminal Appeal in R v Doolan.[13] The Court was concerned with the admission at trial of telephone data evidence. The appellants contended that the prosecution had failed to establish compliance with s 178 of the TI Act and, therefore, the information obtained from the mobile telephones was inadmissible.
[13] [2016] SASCFC 111.
In a judgment with which Peek and Lovell JJ agreed, Kelly J determined it was open to the trial Judge to find that the police request was lawful and did not disclose any illegality on the part of the police officer involved. Her Honour added the following observation that even if there was a failure to comply with the terms of s 178 of the TI Act, the evidence would not be “inadmissible”:[14]
I consider that finding was open to the Judge on the basis of the whole of the evidence, including that of Ms Watson. Even if that were not so, and the discretion to exclude the evidence was enlivened, it is plain that the information sought was in fact for a legitimate law enforcement purpose. In those circumstances the failure by the police officer to specifically turn his mind to the issue would have been insignificant and in my view would not require that the discretion be exercised to exclude that evidence.
In any event, any failure to comply with the terms of s 178 of the TIA Act would not result in the evidence being inadmissible. Rather, non-compliance with the provisions of s 178 of the TIA Act would result in Optus being liable to a summary penalty pursuant to s 277(3) of the Telecommunications Act. This consequence is in direct contrast to other provisions in the Telecommunications Act which specifically deal with the content of intercepted telephone material. For the release of Webtrace records as opposed to the content of intercepted material there are no preconditions attached to its admissibility.
[14] At [76]-[77].
Further assistance in consideration of the interpretation of the legislation is provided by the decision of the High Court in Minister for Immigration and Citizenship v SZIZO (‘SZIZO’). The Minister had refused to a grant a protection visa to the respondent who filed an application for review by the Refugee Review Tribunal (the Tribunal). The respondent nominated his daughter as his authorised recipient to receive documents in connection with the review on his behalf. However, notice of the hearing was given to the respondent, and not his authorised recipient, contrary to s 441G of the Migration Act 1985 (Cth) (‘the Act’). Section 441G directed that where an applicant gives written notice of an authorised recipient, the Tribunal “must” give the authorised recipient, instead of the applicant, any document it would otherwise have given to the applicant. The Tribunal failed to give notice of the hearing to the authorised recipient. In breach of the Act, the Tribunal gave notice of the hearing to the respondent, and not to his authorised recipient.

In a joint judgment, the High Court observed that notwithstanding the absence of unfairness or prejudice to the respondent by reason of the Tribunal’s failure to comply with its statutory obligation, the Full Court of the Federal Court held that the Tribunal’s failure to comply with the obligations imposed on it was a “jurisdictional error”.[15] The judgment noted that the Full Court “approached the matter on the footing that each procedural step in Divs 4 and 7A imposed an imperative duty on the Tribunal forming part of the statutory statement of the hearing rule”.[16]
[15] Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 at [3]; SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 at [90].
[16] At [24].
After observing the Act did not provide for the consequences of non‑compliance with any of the relevant provisions, citing Project Blue Sky, the Court posed the following question:[17]
Was it a purpose of the legislation that, despite holding a hearing at which all of the applicant’s for review, including the authorised recipient, appeared before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review, the Tribunal could not validly decide the review?
(Footnotes omitted)
[17] At [26].
In addressing the “characterisation of the obligations imposed on the Tribunal”, the Court noted that the obligations imposed by the particular provisions with respect to giving notice of hearing “are directed to ensuring that an applicant has adequate time in which to prepare his or her case”.[18] The judgment continued:
In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review.
While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being "rather absurd". The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
[18] At [33].
As in SZIZO, any failure by SA Police to comply with the procedural requirements specified in the Determination has not caused any unfairness or prejudice to the accused. Consideration of the nature and extent of the consequences of the departure highlights the “absurdity of the outcome” of inadmissibility which is “against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps …” relating to authorisations and notification of authorisations.[19]
[19] At [35].
For these reasons, I respectfully disagree with the conclusion reached by the learned trial Judge in Patti. Failure to comply with the procedural directions in cl 10 of the Determination does not result in an authorisation being invalid.
Developments of the Scheme
The preceding discussion relates to the current legislative scheme. As the authorisations and disclosures occurred during the period 4 December 2012 to 22 July 2019, it is necessary to consider changes in the relevant provisions during that period.
Speaking broadly, as explained in the second reading speech for the Telecommunications (Interception and Access) Amendment Bill 2007, in 2007 relevant provisions governing access to telecommunications data were transferred from the TC Act to the TI Act. The Bill followed a review of the regulation of access to communications undertaken by Mr Tony Blunn AO. The Honourable Attorney-General, Phillip Ruddock, noted that a “core finding” of the review was “the desirability of a single comprehensive legislative regime dealing with access to telecommunications information for law enforcement purposes.”[20]
[20] Commonwealth, Parliamentary Debates, House of Representatives, 14 June 2007, 7 (Phillip Ruddock, Attorney-General).
The Telecommunications (Interception and Access) Amendment Act introduced into the TI Act Chapter 4, “Access to telecommunications data”, including s 178 which provided for access authorisation in the context of the enforcement of the criminal law:
178 Authorisation for access to existing information or documents-enforcement of the criminal law
(1)Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2)An authorised officer of an enforcement agency may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3)The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law.
Of note was the presence in s 178, as enacted in 2007, of sub-s (3) requiring that the authorised officer must not make the authorisation unless satisfied that disclosure is “reasonably necessary for the enforcement of the criminal law”. That requirement has remained unchanged through to the current scheme. By way of contrast, there was no provision in 2007 requiring an authorised officer to consider the privacy issue.
In 2007, s 183 provided for a Determination in the same terms as the current s 183. In addition, s 184(3) was in the same terms requiring that if an authorised officer of an enforcement agency made an authorisation, a relevant staff member of the agency must notify the person from whom the disclosure was sought.
The privacy issue was first introduced into the legislation by the Cybercrime Legislation Amendment Act2012 (Cth) which came into operation on 10 October 2012:
Division 4B – Privacy to be considered when making authorisations
180F Authorised officers to consider privacy
Before making an authorisation under Division 4 or 4A in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the following matters:
(a)the likely relevance and usefulness of the information or documents;
(b)the reason why the disclosure or use concerned us proposed to be authorised.
Prior to the introduction of s 180F, the TI Act made no mention of the privacy issue in respect of authorisation for access to existing information.[21] However, pursuant to s 180 of the preceding Act, in respect of authorisation for access to prospective information the authorised officer was required to have regard to “how much the privacy of any person or persons would be likely to be interfered with by the disclosure.”
[21] Section 178A.
Section 180F was amended in 2015. Between October 2012 and the 2015 amendments, numerous authorisations were made. In order to comply with the legislation, therefore, in making those authorisations the authorised officers were, before making the authorisations, directed to have regard to “whether any interference with the privacy of any person or persons that may result from the disclosure or use” was “justifiable”, having regard to:
The likely relevance and usefulness of the information or documents;(a)
(b) The reason why the disclosure or use concerned is proposed to be authorised.
The Determination in force between 10 October 2012 and 13 October 2015 reflected the legislative condition concerning the privacy issue.
In 2015, s 180F was amended by the Telecommunications (Interception and Access) Amendment (Data Retention) Act2015 (Cth) which came into operation on 13 October 2015. The amendment put s 180F into the current terms. Contrary to the previous requirement that the authorised officer must have regard to whether any interference with privacy was justifiable, from 13 October 2015 s 180F required that the authorised officer “must be satisfied on reasonable grounds” that the interference was justifiable and proportionate. In addition, from 2015 the terms of s 180F required that the authorised officer must have regard to matters additional to the relevance and usefulness of the information and the reason why disclosure was proposed to be authorised. Those additional matters related to the gravity of the conduct in relation to which the authorisation was sought.
On 30 October 2015 the Determination was amended to reflect the legislative amendment to s 180F.
Mohamed Alzuain – Documentation
In respect of “authorisations” for disclosure of call records from mobile telephones which the Crown contended were used by Mohamed, I was provided with four sets of documentation dated 4 December 2012, 10 December 2012, 10 April 2019 and 14 June 2019. These documents relating to Mohamed provided good examples of documents raising the issues of compliance. They were as follows:
The “Requests” dated 4 and 10 December 2012 contained almost identical information. The nature of the information sought was identified, together with the mobile number and the subscriber’s/user’s names and addresses. The statement was made that disclosure was “reasonably necessary for the enforcement of the criminal law and offence/s which are punishable by imprisonment for five or more years.” The offence of murder was nominated. Brief details were given identifying that the person and phone number were of interest in the investigation, and a statement made that the data requested was “necessary to the investigation.” In the request dated 10 December 2012 it was stated that the information was “necessary to progress this enquiry”. That information was in response to a statement in the form that to comply with the legislative requirements, a brief synopsis and the likely relevance or usefulness of the information sought must be included.
In each instance in December 2012, the second document was a notification to the service provider, sent by electronic means, identifying the authorised officer, authorisation date and officer providing the notification. Under the heading “Enabling Legislation”, in both instances the following paragraph conveyed information to the service provider:
SA Police is an ‘enforcement agency’ as defined in subsection 5(1) of the Telecommunications (Interception and Access) Act 1979 (the Act). The authorised officer nominated above is an ‘authorised officer’ as defined in subsection 5(1) of the Act, being a person who holds, or is acting in, an office or position in the SA Police covered by an authorisation of the head of the SA Police that is in force under subsection 5AB(1) of the Act. Acting under subsection 178(2) of that Act, and being satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law, the authorised officer of SA Police has authorised the disclosure of the requested information or documents, being information or documents that are already in existence. In making the authorisation, the authorised officer has had regard to whether any inference with the privacy of any person or persons that may result from the disclosure or use is justifiable, having regard to the likely relevance and usefulness of the information or documents and the reason why disclosure or use concerned is proposed to be authorised. The carriage service provider mentioned above is notified of this authorisation in accordance with subsection 184(3) of that Act, and is requested to provide the information via SEDNode.
In Patti, it appears that the documentation upon which the prosecution relied as an authorisation was in terms similar to the December 2012 documentation relating to Mohamed. The officer who provided the authorisation in Patti gave evidence that the authorisation was a combination of both documents. Prior to signing the first document, he considered the material provided and the requirements of s 178(3) and 180F of the TI Act. Once satisfied the statutory conditions were met, he endorsed the request in accordance with the standard practice at that time. The signed request was forwarded to the telecommunications data co-ordinator for preparation of formal documentation to “formalise the authorisation and provide notification to [the service provider]”. The authorising officer in Patti did not play any role in preparing the formal documentation containing the notification to the service provider. That notification did not contain the officer’s signature, and he did not authorise its content in any other way. From the perspective of the officer, the authorisation was “a process which included the placement of his signature [on the request] and then the entry of other data in the electronic portal”.[22] In his view, the two documents should be read together.
[22] At [27].
The trial Judge rejected the submission that the information contained in the notification to the service provider could be relied upon to satisfy the procedural requirements for an authorisation. In her Honour’s view, as that information was not adopted by the authorised officer through the application of his signature, it could not be treated as part of the authorisation. However, her Honour was satisfied that the information conveyed to the service provider satisfied the requirements of a notification found in cl 16 of the Determination.
Considered in isolation from the notification to the service provider, the request fell short of satisfying the conditions specified in cl 10 of the Determination. Although the name of the enforcement agency is apparent from the nature of the document, the basis upon which SAPOL is an “enforcement agency” was not identified. The identity of the authorised officer was apparent, but not the basis on which the officer was so authorised.
Although the document contained a statement that the authorised officer was satisfied disclosure was reasonably necessary for the enforcement of the criminal law, no reference was made to whether any interference with privacy was justifiable.
In Patti, the trial Judge did not regard the person signing in the authorisation field as “overtly recording their state of satisfaction of any matter”.[23] Taken literally, that statement is correct. However, in my view, in approving the request pursuant to ss 178-178A of the TI Act, it is reasonable to infer that the authorising officer accepted the statement of the officer making the request that disclosure was reasonably necessary for the enforcement of the criminal law. The fact remains, however, that the request contained no reference to the privacy issue, other than the broad statement that the data was “necessary to the investigation” to “progress this enquiry.”
[23] At [30].
The notification to the service provider provided all the information that was required to be included in an authorisation. In addition it complied with notification requirements. If, contrary to the view of the trial Judge in Patti, the notification is regarded as part of the authorisation, it would follow that the combination of the documents provided an authorisation which complied with both the statutory conditions and cls 10 and 16 of the Determination.
Affidavits were filed by the officers who made the authorisations under consideration. Speaking broadly, there were two types of Notifications to the service providers. Vodafone and Optus were notified by an electronic means identified as SEDNode. The document was prepared by an administrative officer and contained more information than the 2012 requests signed by the authorised officer. SEDNode communications were not viewed or approved by the authorising officer. I agree with Judge Telfer that these documents cannot be regarded as part of the authorisation for the purposes of determining whether the authorisation complied with the legislative or Determination requirements.
A different system was used in notifying Telstra of authorisations. Again speaking broadly, the Telstra Notifications were signed by the authorised officer. In those circumstances, the authorised officer having adopted the content of the Notification to Telstra, in my view such notification can reasonably be viewed as part of the authorisation.
The 2012 requests with respect to the records relating to Mohamed were both signed by Mr Gavin Lange as the authorised officer. In his affidavit of 31 July 2023, Mr Lange deposed to the following:
·He checked that the request related to the enforcement of the criminal law and concerned a serious criminal offence.
·He considered the likely relevance or usefulness of the information requested, and the impact disclosure of information might have on the person’s privacy.
·He considered the seriousness of the offence under investigation.
·He considered the fact that the particular investigation was a “significant murder investigation and that telecommunications data may be very useful and relevant in terms of identifying the individuals involved and finding evidence against involved persons.”
·He considered that disclosure of the data requested “was justifiable to further the investigation.”
In these circumstances, the authorised officer complied with the legislative requirements. The minor procedural failures to comply with the Determination in force at that time were insignificant, particularly in view of the full information conveyed to the service provider. Those failures to comply with the Determination did not result in the authorisation being invalid. If I am wrong in that view, for the reasons later discussed, the case for the exercise of the discretion in favour of admitting the evidence is overwhelming and I would unhesitatingly exercise my discretion to admit the evidence.

The requests made in 2019 contained more information. First, a new box was added to the form confirming two matters:
·That requests could only be authorised if disclosure was reasonably necessary for the enforcement of the criminal law.
·The authorised officer considering the request must be satisfied on reasonable grounds that any interference with privacy was justifiable and proportionate having regard to specified matters (which reflected s 180F).
In the 2019 requests, more information was provided as to the investigation details and reason for request. In the section concerned with the reason for request, it was specified that the request must clearly state why the disclosure is reasonably necessary and provide “the likely relevance or usefulness of the information requested to the investigation”. The form specifically stated that statements such as “to progress the investigation” or “to complete the declaration file” were not sufficient given the requirements of s 180F.
A further box was added in the 2019 documents headed “Privacy Considerations”. Appropriate information was provided. Further, information was given confirming that there was no other way of obtaining the information without causing suspicion that the person of interest was under investigation.
Given the wording of the form in this regard, it is a reasonable inference that when signing approval, the authorised officer was satisfied of those matters. This inference is confirmed in the affidavits of Mr Christopher Jackson, who made the authorisation dated 10 April 2019, and Mr Lange who made the authorisation dated 14 June 2019.
I have already referred to the relevant features of the affidavit by Mr Lange. As to Mr Jackson, he deposed to considering the gravity of the offence under investigation and that disclosure of the information was reasonably necessary for the enforcement of the criminal law. He said he considered the likely relevance or usefulness of the information sought. In addition, with respect to the 2019 request, he took into consideration the requirement to be satisfied on reasonable grounds that the interference with the privacy that may result from disclosure or use was justifiable and proportionate having regard to the gravity of the conduct, including the seriousness of the offence, the likely relevance and usefulness of the information sought, and the reason why disclosure or use concerned was proposed to be authorised.
The 2019 requests relating to Mohamed, while identifying that the request was being made by an officer of SA Police, did not identify the basis on which SA Police was an enforcement agency. Further, they did not identify the basis upon which the officer approving the request was an authorised officer. The 2019 requests complied with remaining conditions specified in cl 10.
The notification to the service provider in 2019 was in terms similar to the 2012 notifications, but in respect of the satisfaction that disclosure was justifiable and proportionate, specific reference was made to the factors identified in s 180F and cl 10(i).
The authorisations in 2019 relating to Mohamed complied with the essential legislative conditions. The minor procedural irregularities in failing to comply with provisions of the Determination were of no significance and did not result in the authorisations being invalid. If I am in error in that regard, as discussed later, I would exercise my discretion to admit the evidence.
For these reasons, the application by Mr Mohamed Alzuain was refused.
Husain Alzuain
Husain Alzuain (Husain) filed an objection to two call charge records in respect of a mobile telephone used by him (MRN120) and (MRN1574). In addition, Husain objected to records relating to mobile telephone services used by other persons, including the Crown witness VI.
On the Crown case, Husain used mobile number 0415 956 094, but he was not the subscriber for that number. The first authorisation was dated 4 December 2012, and the “Request” was a single paged document in terms almost identical to the request of 4 December 2012 relating to Mohamed. The Request referred to the information being reasonably necessary for the enforcement of the criminal law, and to the nature of the charge being murder. The reason for the Request stated that the person and number were of interest in the investigation and “phone data is necessary to progress this enquiry”.
The Request was authorised by Mr Lange, whose affidavit is summarised earlier in these reasons in respect of the Request dated 4 December 2012 in connection with Mohamed. Mr Lange deposed to considering relevant matters, including the privacy issue.
There is no basis for finding that the authorisation related to 4 December 2012 (MRN120) was invalid.
The second authorisation relating to Husain was dated 3 May 2019 and signed by Mr Jackson. This authorisation was a two page authorisation containing full reference to the privacy issue, together with the material to which I referred in respect of the 2019 authorisation relating to Mohamed. The authorisation of 3 May 2019 (MRN1574) was valid.
The second category of authorisations to which objection was taken related to a service in the name of John Cruze being used by Mr Dwayne Bradley (deceased). The first authorisation (MRN297) was dated 9 January 2013 and was signed by Mr Jackson. The Request was the single page Request in terms almost identical to the single page Request canvassed earlier in respect of Mohamed.
As discussed, the single page Request did not make reference to the privacy issue. Nor did Mr Jackson refer to the privacy issue in his affidavit of 31 July 2023, although he deposed to considering the likely relevance or usefulness of the information and the reason why disclosure was required.
Mr Jackson failed to comply with s 180F of the TI Act. It was a failure to comply with an essential legislative condition. Although Mr Jackson had regard to the matters which s 180F directed authorised officers to consider when having regard to the privacy issue, nevertheless it appears that Mr Jackson failed to have regard to whether any interference with the privacy that might result from disclosure was “justifiable”.
While not arguing that under the current provisions a failure to comply with essential legislative conditions would not render the authorisation invalid, the Crown pointed out that in 2013 s 180F required only that the officer have regard to the privacy issue. This stands in contrast, contended the Crown, to the current provision which requires the authorised officer to be “satisfied on reasonable grounds” that any interference with privacy is “justifiable and proportionate”, having regard to specified matters. In these circumstances, the Crown submitted that the failure to comply with s 180F in 2013 did not render the authorisation invalid.
Notwithstanding that the provision in 2013 required only that the officer have “regard” to the issue of whether interference with privacy was “justifiable”, a complete failure to consider that issue was a failure to comply with an essential legislative condition. The reach of such a failure goes beyond a failure to comply with a procedural provision found in the Determination. It invalidated the warrant.
The breach by Mr Jackson was not a deliberate breach. He believed he was complying with the legislative requirements. For the reasons discussed later, I exercised my discretion to admit the evidence.
The second authorisation relating to the mobile service used by Mr Bradley (MRN1576) was dated 3 May 2019. This authorisation was also made by Mr Jackson. However, by 2019 the Request contained all the details to which I have earlier referred. This authorisation complied with the legislative conditions and almost all of the procedural provisions in the Determination. It was a valid authorisation.
In respect of the mobile service used by VI, the first approval was dated 25 November 2012 and made by Mr Lange (MRN264). As discussed previously, Mr Lange had regard to the relevant statutory conditions. Any failure related to procedural provisions only. The authorisation (MRN264) was valid.
The second authorisation relating to VI was dated 29 November 2018 (MRN1342) and signed by Mr Michael Vanderwoude, the officer who gave evidence in the matter before Judge Telfer. The Request before Mr Vanderwoude was the two page Request which is discussed earlier in these reasons. In addition, Mr Vanderwoude swore an affidavit of 31 July 2023 in which he deposed to his normal practice. I am satisfied that Mr Vanderwoude complied with the essential statutory conditions. To the extent that there was minor failure to comply with procedural provisions, it did not affect the validity of the warrant.
Two other authorisations were challenged. They relate to records for a six hour period on 21 November 2012 (MRN1227 and MRN1229). Two different services were involved and both Requests were signed by Mr Lange. As discussed previously, Mr Lange complied with the essential statutory conditions. Any breach of procedural provisions by Mr Lange did not affect the validity of the warrants.
If I am wrong about the validity of any of the warrants, I would have exercised my discretion to admit the evidence.
Other accused
As to the applications for exclusion by other accused, the pattern of the documentation was virtually identical. Requests in 2012 and 2013 were on the single page document, but many were signed by Mr Lange who deposed to taking into account all relevant matters, including privacy considerations.
One of the 2013 Requests on a single page (MRN217), relating to Mr Sianis, was signed by Mr Kurt Slaven. On one view of Mr Slaven’s affidavit of 31 July 2023 he turned his mind to the privacy issue, but even if he did not do so in 2013 I would exercise my discretion to admit the evidence. Another officer involved, Mr Peter Loch, signed authorisations in 2019 based on the standard two page document. In addition, in his affidavit of 31 July 2023 Mr Loch deposed to considering the essential statutory conditions, including the privacy issue.
It is unnecessary to traverse each affidavit or each and every document chapter and verse. There is a common theme. The Requests in 2012 and 2013 were made on single page documents which contained no reference to the privacy issue. A number of the officers deposed to considering the privacy issue, but at least one officer made no reference to the privacy issue in his affidavits. To the extent that any authorisations were issued without prior regard to the privacy issue, they were issued in breach of the relevant statutory condition and were, therefore, invalid. In those instances, without hesitation, I exercised my discretion to admit the evidence.
By 2018, the two page document was in use which contained a full reference to the privacy issue. I am satisfied that officers making the authorisations addressed their minds to those matters and their signatures confirm their compliance with the statutory conditions.
Discretion
The exercise of the discretion to admit evidence illegally obtained is founded upon the well known principles enunciated by the High Court in Bunning v Cross.[24] During oral submissions, counsel for Mohamed suggested that in Strickland v Commonwealth Director of Public Prosecutions and Others (‘Strickland’),[25] the High Court introduced a new principle for the exercise of the discretion based on reckless disregard of statutory responsibilities, in the sense of heedlessness or indifference to those responsibilities. I do not agree. Such conduct is amply encompassed within the principles emanating from Bunning v Cross.
[24] (1978) 14 CLR 54.
[25] (2018) CLR 325.
Strickland concerned an application to stay a prosecution on the basis that the Australian Crime Commission had exercised coercive powers to compulsorily examine the appellant in circumstances where the Commission did not undertake an investigation of its own. Rather, it acted “as a facility for the AFP to cross‑examine under oath whoever the AFP wished, for the AFP’s own purposes”.[26] The employee conducting the coercive examination “entirely abrogated his statutory responsibilities”.[27] The trial Judge held that the examiner acted with “unlawful, reckless disregard of his statutory responsibilities”,[28] in the sense of “heedlessness of or indifference towards the requirements of the ACC Act”.[29]
[26] (2018) 266 CLR 325, 343 [30].
[27] At [57].
[28] At [86].
[29] At [87].
It was in the circumstances as found by the trial Judge that the majority in the High Court upheld the permanent stay of proceedings, essentially on the basis that to allow the prosecution to continue would bring the administration of justice into disrepute. Those circumstances were far removed from the circumstances before me.
There is no doubt that the legislature intentionally created a strict regime for the purposes of governing the release of confidential information. I am satisfied that the authorising officers intended to comply with the scheme and believed they were doing so. The 2012 forms were inadequate, but this is not a case involving “calculated disregard of the law by those empowered to enforce it”.[30]
[30] R v Pollard (1992) 176 CLR 177, 202.
In each instance of failure to comply with the legislative condition concerning the privacy issue, the officer concerned took into account relevant factors which bore upon the question of privacy. It is readily apparent that if the officers had complied by having regard to whether the interference with privacy was justified, an affirmative answer would have been given.
To the extent that there was failure to comply with the procedural requirements of the Determination, they were minor failures.
The offence charged is murder. The evidence is of importance in the circumstantial case against each accused. Any failure to comply with legislative or procedural requirements did not affect the cogency of the evidence. No unfairness has resulted to any accused from any failure to comply. The evidence is reliable.
In Patti, Judge Telfer found that the oversight was not isolated, but was the product of a “systemic failure”. Her Honour was of the view that it was likely the deficiency “simply resulted from inadequate attention being paid to the procedural requirements, and an assumption that the processes in place were compliant.”[31] On the material before me, I would not quarrel with such a finding, but I would add the observation that I am satisfied that those engaged in implementing the authorisation process believed they were complying with the statutory scheme.
[31] Patti (no 1) [74].
In my view, this is not a borderline case. The balancing process lands firmly in favour of the exercise of the discretion to admit the evidence.
For these reasons all applications were refused.