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 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
Mr S Henchliffe QC, for the accused, contends that warrant is defective, and therefore invalid. The objection is centred on the wording within the warrant italicised above, to the effect that the conduct constituting the offences ‘involved serious risk of loss of a person’s life’. The accused argues that the particular conduct constituting an offence of manslaughter involves not merely a serious risk to life, but the actual loss of life. It is said that the full formulation from s 5D(2)(b)(i) should have been included.
Relying on Flanagan v Commissioner of the AFP [1996] FLR 149 and R v Solomon (2005) 92 SASR 331 the accused concedes that it would have been sufficient if the warrant simply referred to the name of the offence and the relevant provision of the Criminal Law Consolidation Act 1935 (SA). However, as it is, the particulars of the conduct said to be involved in the offences are not referable to manslaughter, but to a lesser offence, which inconsistency suggests that the issuing authority was not satisfied that the investigation was in relation to manslaughter. It follows, the accused submits, that the issuing authority may not have been satisfied of an essential precondition of the issue of the warrant under s 5D. It is therefore invalid.
The accused submits that this irregularity is substantial, because a misunderstanding of the elements of the offence the subject of investigation could substantially affect the decision of the issuing authority to issue the warrant. Therefore, the accused puts, the discretion to disregard the irregularity and admit the evidence under s 75 of the Telecommunications Act does not arise. Mr Henchliffe concedes that, had the warrant merely referred to ‘manslaughter’ and not descended to describe the relevant conduct, no complaint could have been made.
The prosecution argues that to describe the conduct that relates to an offence of manslaughter as involving serious risk of a loss of a person’s life is not inaccurate. The purpose of the preconditions in s 5D is to limit the exercise of the discretion to issue a warrant, not to require the issuer to identify all the relevant elements of a particular offence. Further, the description of the conduct in the warrant is accurate and clear insofar as it identifies the offence of manslaughter.
The prosecution referred to Flanagan’s case in which the Full Court of the Federal Court discussed at p 196-197 what is required by s 49(7):
In the final analysis, the question for determination is one of statutory interpretation. For this purpose, it is legitimate and appropriate to look, not only at the TI Act, but also at the TI Regulations, not to construe an overall scheme or to throw light on ambiguity in the statutory provision, but "to ascertain what the [legislative] scheme is" (per Mason J in Brayson Motors Pty Ltd (In liq) v Commissioner of Taxation (Cth) (1985) 156 CLR 651 at 652). When the TI Act and the TI Regulations are read together, it appears to us that what is required by s 49(7) is a statement of particulars which identifies the alleged or suspected offences in a conceptual sense, in contrast to particulars of the essential factual ingredients of those offences in the particular case, such as those which an accused is entitled to have to enable him to prepare his defence (see, eg, J B Bishop, Criminal Procedure (1983), pp 145-148).
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.
In case I am wrong about that and the warrant was defective, I would find on the basis of s 75 of the Telecommunications Act that the defect or irregularity was not a substantial one, that, but for it, the interceptions would not have contravened s 7 of the Act and that, in all the circumstances, the irregularity or defect should be disregarded.
Additional argument
In light of that decision it also becomes necessary to deal with further argument. Mr Henchliffe also objected to specific calls – which ultimately came down to those numbered 878, 887 and 971 – on the basis of relevance, and, within call 971, to a passage over which there was a claim of legal professional privilege.
Call number 878 contained conversation about the audio-visual recording of the birth subject of Count 1. That audio-visual recording was not provided to police investigating the matter until over 18 months after the events giving rise to the charge. In the call there is discussion about the police investigation. I consider statements there made by the accused could conceivably be relevant. Call number 971 is between the accused and Ms Rose Pride, who was present at the birth, the subject of Count 1. It contains statements by the accused tending to show her attitude to witnesses giving statements to police. In it she incorporates some assertions which she attributes to a solicitor. I do not consider any question of legal professional privilege is raised. The accused’s preparedness to advise Ms Pride not to speak to police could be considered to be relevant post-offence conduct and could bear on her credibility.
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.