R v BARRETT (No 2) - [2019] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARRETT (No 2)
[2019] SASC 92
Reasons for Ruling of The Honourable Justice Vanstone
4 June 2019
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS
CRIMINAL LAW - EVIDENCE - RELEVANCE
Accused charged with two counts of manslaughter - where prosecution seeks to lead evidence of calls made by or to accused obtained by means of a warrant issued pursuant to Telecommunications (Interception and Access) Act 1979 (Cth) - where defence contends the warrant is defective - where defence also objects to some specific calls on the basis of relevance - whether warrant defective; whether evidence should be excluded on the basis of relevance.
Held: Warrant not defective. One call excluded on the basis of relevance.
Criminal Law Conslidation Act 1935 (SA) s 13; Telecommunications (Interception and Access) Act 1979 (Cth) s 5D, s 46, s 46A, s 49, s 75, referred to.
Flanagan v Commissioner of the AFP [1996] FLR 149; R v Solomon (2005) 92 SASR 331; Ousley v The Queen (1997) 192 CLR 69; Tran Nominees Pty Ltd v Scheffler (1986) SASR 361, considered.

R v BARRETT (No 2)
[2019] SASC 92
Criminal.
VANSTONE J.
Ruling on admissibility of evidence of intercepted telephone calls

The accused objects to evidence tendered by the prosecution which was obtained by means of a warrant issued pursuant to s 46 of the Telecommunications (Interception and Access) Act 1979 (Cth). The objection is based on the terms of the warrant, which are said to render it invalid.
Background
On 29 May 2014, Deputy President Bean, a nominated AAT member acting under s 46A of the Telecommunications Act, issued warrant number F14107-00 to the South Australian Police authorising interceptions of communications made to or from the accused’s telephone service.
The relevant terms of the warrant are:
…
(2)I am satisfied, on the basis of the information given to me by the applicant agency, that:
…
(d)Information that would be likely to be obtained by intercepting, under a warrant, communications made to or from the service would be likely to assist in connection with the investigation by the applicant agency of the following serious offences, in which the particular person is involved:
Manslaughter
(section 13 of the Criminal Law Consolidation Act 1935 (SA))
being offences punishable by imprisonment for a maximum period of life in which the particular conduct constituting the offences involved serious risk of loss of a person’s life, and thus serious offences pursuant to section 5D(2)(a) and (b)(i) of the Act;
and
…
(emphasis added)
Police intercepted relevant communications between 30 May 2014 and 25 August 2014.
Section 46(1)(d) of the Telecommunications Act provides that a warrant may be issued in relation to the investigation of a ‘serious offence’ if the issuer is satisfied that:
…
46(1)(d)information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BARRETT (No 2)

Details

AGLC: R v BARRETT (No 2) [2019] SASC 92
Case: [2019] SASC 92
Decision Date: 4 June 2019

CaseChat Overview and Summary

The case of R v BARRETT (No 2) involved the accused who was charged with two counts of manslaughter. The prosecution sought to introduce evidence obtained through a warrant issued under the Telecommunications (Interception and Access) Act 1979 (Cth). The defence contested the validity of the warrant and also objected to specific calls on the grounds of relevance. The primary issues before the court were whether the warrant was defective and whether certain evidence should be excluded on the basis of relevance.

The court began by examining the statutory requirements for issuing a warrant under the Telecommunications Act. It was necessary to determine whether the warrant met the statutory criteria, particularly whether it contained the required 'short particulars of each serious offence' as outlined in s 49(7) of the Act. The court considered whether the reference to 'manslaughter' was sufficient or if more detailed particulars were necessary. Additionally, the court assessed the relevance of specific intercepted calls to the charges of manslaughter.

The court concluded that the warrant was not defective. The statutory requirement for 'short particulars of each serious offence' was met by the reference to 'manslaughter' accompanied by the relevant section from the Criminal Law Consolidation Act 1935 (SA). The court found that while the warrant could have included more details, the reference to manslaughter was sufficient to satisfy the statutory criteria. The court also excluded one specific call on the basis of relevance, finding it did not contain material pertinent to the charges.

The final orders of the court were that the warrant was valid and that one specific call (call number 887) was excluded from evidence on the basis of relevance. All other intercepted communications remained admissible.

Orders

Orders of the court

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Background

Background to the litigation

The accused objects to evidence tendered by the prosecution which was obtained by means of a warrant issued pursuant to s 46 of the Telecommunications (Interception and Access) Act 1979 (Cth). The objection is based on the terms of the warrant, which are said to render it invalid.Background On 29 May 2014, Deputy President Bean, a nominated AAT member acting under s 46A of the Telecommunications Act, issued warrant number F14107-00 to the South Australian Police authorising interceptions of communications made to or from the accused’s telephone service. The relevant terms of the warrant are:…(2)I am satisfied, on the basis of the information given to me by the applicant agency, that:…(d)Information that would be likely to be obtained by intercepting, under a warrant, communications made to or from the service would be likely to assist in connection with the investigation by the applicant agency of the following serious offences, in which the particular person is involved:Manslaughter(section 13 of the Criminal Law Consolidation Act 1935 (SA))being offences punishable by imprisonment for a maximum period of life in which the particular conduct constituting the offences involved serious risk of loss of a person’s life, and thus serious offences pursuant to section 5D(2)(a) and (b)(i) of the Act;and…(emphasis added) Police intercepted relevant communications between 30 May 2014 and 25 August 2014. Section 46(1)(d) of the Telecommunications Act provides that a warrant may be issued in relation to the investigation of a ‘serious offence’ if the issuer is satisfied that:…46(1)(d)information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which:(i)the particular person is involved; or(ii)another person is involved with whom the particular person is likely to communicate using the service; and Section 5D of the Telecommunications Act sets out what offences may constitute a serious offence for this purpose. Section 5D(2) relevantly provides:…5D(2)An offence is also a serious offence if:(a)it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and(b)the particular conduct constituting the offence involved, involves or would involve, as the case requires:(i)loss of a person’s life or serious risk of loss of a person’s life; or… Section 49 deals with the form and content of a warrant. Section 49(7) provides as follows:49(7)A warrant issued under subsection 46(1) or … shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied, on the application for the warrant, as mentioned in:…(b) otherwise—paragraph 46(1)(d) … Section 49(1) requires a warrant to be in accordance with the prescribed form. The form itself repeats the requirement of ‘short particulars’ of the serious offence or offences.The arguments

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

VANSTONE J

Call 878 is a conversation between the accused and her husband. Included in it is advice by the accused that the police might attend to search the home and might seize possessions belonging to him. I do not consider that it contains relevant material. Accordingly I exclude call number 887 on the basis of relevance. However I reject the defence arguments going to calls 878 and 971.Conclusion The warrant was not defective. Of those calls to which objection is taken, I exclude call number 887.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

The prosecution submits that all that is required by way of a statement of particulars is identification of the offence under investigation as a serious offence. Here it is clear that a serious offence, as defined, was being investigated. It is not to the point that the particulars provided did not add anything to the reference to manslaughter.Consideration The warrant derives its force entirely from statute. The question of its validity is a matter of statutory construction: Ousley v The Queen (1997) 192 CLR 69. As is clear from the reasons of Gaudron J in Ousley v The Queen (1997) 192 CLR 69 at 88, citing the decision of Cox J in Tran Nominees Pty Ltd v Scheffler (1986) SASR 361, it is a matter of inference in each case whether a misstatement of an essential precondition has the effect of indicating that the condition was not, or could not have been, satisfied. Here, it turns on the effect of specifying an incorrect, or at least incomplete, description of the conduct allegedly constituting the ‘serious offence(s)’. At first sight it might be thought that the expression ‘short particulars of each serious offence’ in s 49(7) requires more than a bare reference to an offence type. However in Flanagan the Full Federal Court heard and rejected an argument to that effect. Their Honours held (at p 199) that the adjective ‘short’ serves to distinguish the particulars required from what would be expected in an indictment. There, the warrant specified:…the following class 2 offences in which that person is involved namely Conspiracy to Defraud the Commonwealth contrary to Section 86(1)(e), and now Section 86A of the Crimes Act 1914; and Defrauding the Commonwealth contrary to Section 29D of the Crimes Act 1914. The same view was taken by our Full Court in Solomon at [26]. Speaking for the Court, Doyle CJ observed that in many cases the relevant offences might not yet have taken place, and so particulars of them could not be given. In my view that is a circumstance which tends to fortify the decision in Flanagan. In these circumstances the question for decision is whether providing the additional description of the offence under consideration without referring to the death itself amounts to a defect or irregularity. I agree with the submissions of Ms Costi, who presented the argument for the prosecution, that it is not inaccurate to describe the conduct constituting an offence of manslaughter as involving a serious risk of loss of a person’s life. It is true that, additionally, it is an element of the offence that death was in fact caused. If the formulation from the definition of serious offence in s 5D(2) were to be adopted, it might have been better to refer to the loss of life. However, incorporating part of the relevant definition of serious offence added nothing to the reference to manslaughter accompanied by the appropriate section in the Criminal Law Consolidation Act. Therefore I find that there was no defect on the face of the warrant. The issuing authority could have been in no doubt that the offences under consideration were manslaughter, a serious offence. Therefore, I find the warrant was not defective.