R v Briese and Grace - [2017] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRIESE AND GRACE
[2017] SADC 64
Reasons for Ruling of His Honour Judge Tilmouth
23 June 2017
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: IMPROPERLY OBTAINED EVIDENCE
Consideration and discussion of the admissibility of telephone intercepts data under the Telecommunications Act (Interception and Access) Act 1979 (Cth).
Telecommunications (Interception and Access) Act 1979 (Cth) s 5B, s 7(1), s 7(2)(b), s 46A(1), s 46(2), s 46(3), s 49, s 74, s 75, s 77, s 172, s 177, s 178, s 180(1), s 180(2); Controlled Substances Act 1984 (SA) s 32(2); Telecommunications Act 1997 (Cth) s 276, s 277, s 278; R v Doolan [2016] SASCFC 111; Ousley v The Queen (1997) 192 CLR 69; R v Doolan [2016] SASCFC 111; Geldert v Western Australia (2012) 226 A Crim R 260; R v Scarpantoni (2013) 118 SASR 131, referred to.
R v Rich, Unreported Court of Appeal Victoria (No 265 of 1995) 17 December 1997, applied.

R v BRIESE AND GRACE
[2017] SADC 64
Applications for exclusion of intercept evidence

Both accused apply for the exclusion of evidence obtained in the course of telephone intercept material in this matter obtained by SAPOL pursuant to warrants F14094-01 and F14094-00, F14089-00, and F14083-00.
The first ground calling for resolution is that as the warrants disclose an irregularity on their face they are therefore invalid, and secondly that the collection of un-associated call data, fell outside the scope of the warrants and thus were illegally obtained. The warrants pertain to calls between Mr Briese and Mr Kola the applicants, intercepted by South Australian Police (SAPOL).
The subject warrants were issued pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (the I and A Act). All parties accept that this legislation covers the field and so applies to State courts exercising State jurisdiction. Section 7(1) of the I and A Act, erects a prohibition on the interception of telecommunications, and a contravention constitutes a criminal offence. Section 7(2)(b) however provides that s 7(1) does not apply to ‘interception of a communication under a warrant’. Section 46A(1) of the I and A Act permits the issue of a ‘named person warrant’ in respect of identified person as apposed for instance to a particular telephone number. The agency to whom it is issued becomes thereby authorised to require the carrier concerned to intercept communications made to or from any service the named person uses. The warrants in this instance were issued to SAPOL by several members of the Commonwealth Administrative Appeals Tribunal, they being authorised ‘nominated AAT Members’ within the meaning of the I and A Act.
Those warrants are in the prescribed Form 3 under the Regulations, as required by s 49(1). Section 74 provides that such interceptions are admissible in ‘exempt proceedings’ of which the case is one: S5B. The Form provided for in the Regulations entitled ‘Named person warrant - telecommunications services’, provides for (amongst other things) authorisation of a warrant on satisfaction that the named person is ‘using, or is likely to use, would be likely to assist in connection with the investigation by the agency of the following *serious offence/ *serious offences, in which the named person is involved‘. The relevant offences are then specified.
In this instance the offences identified were ‘Trafficking in a commercial quantity of a controlled drug namely cannabis’ and separately ‘cocaine’ contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (F14083-00, F14094-001 and F14094-00) and ‘Trafficking in a commercial quantity of a controlled drug namely cannabis’ contrary to s 32(2) of the Controlled Substances Act 1984 (F14089-00). Section (e) of the warrant proceeds proforma to specify ‘the warrant should be issued having regard to the following matters only’.
The irregularity said to exist on the face of the warrants is claimed to be that in the case of the two nominated ‘offences’, the use of the singular ‘offence’ throughout paragraph (e) as symptomatic of the AAT member authorising the warrant failing to have regard to the matters referred to therein. The subjects consider in paragraph (e) are requirements under s 46A o the I and A Act which are set out seriatum in Form 3. In each instance only sub paragraph (b) is ruled out as it was not a situation calling for urgent telephone application to issue the warrant. Section 49(7) of the I and A Act provides a warrant ‘shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied’.
It is unnecessary to determine if this state of affairs came about by a clerical error or slip, or perhaps even because of a formatting issue, or was deliberative, because the random nature in the variations as between to warrants in question and the other warrants produced for comparison purposes, strongly suggest this was accidental and random. Quitter frankly these variations amount to no more that minor and trivial inconsequential slips or oversights. On this view of matters nothing turns on the criticism, which with respect to the submissions of defence counsel, would otherwise amount to a triumph of form over substance.
Furthermore, the nominated offences are generically identical, even though the drug concerned is different. The matters to be considered before authorising the issue of the warrant apply equally to both offences so it is difficult to appreciate how separate satisfaction in respect of each nominated charge was necessary, or called for differing considerations. In any case, the reference to singular case, or vice versa for that matter, is capable as a matter of common place usage, of reference to both trafficking offences. Given the serious nature of the intrusion into the personal liberty involved, it is barely conceivable that the AAT member failed to pay due regard to the considerations required by s 46A(2) of the I and A Act. Still further the offences with which the applicants are charged a very serious and the cogency and reliability of the evidence obtained under the warrants is unaffected by any supposed or actual irregularity.
It is therefore strictly unnecessary to determine whether s 75 of the I and A Act is engaged in order to save any irregularity. This provides:
Giving information in evidence where defect in connection with warrant
(1)Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:
(a)     but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and
(b) in all the circumstances, the irregularity should be disregarded.
(2)A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):
(a)     in, or in connection with the issue of, a document purporting to be a warrant; or
(b)     in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.
For the reasons already advanced the combined circumstances clearly call for any irregularity to be disregarded: R v Rich, Unreported, Court of Appeal Victoria (No 265 of 1995), 17 December 1997, 38-39.
It is equally unnecessary to determine the second complaint relating to the execution of the warrant beyond its terms, however since s 75(1)(a) requires that ‘the interception would not have constituted a contravention of subsection 7(1)’ in any event, it is obviously desirable to do so in the interests of resolving all matters in dispute.
The point made by defence counsel on this second ground amounts to the contention that SAPOL gained the wrongful acquisition of ‘call associated data’ that was unauthorised by the warrant, and which therefore serves to invalidate the entire execution of the warrant, and thus justifying exclusion. As noted earlier, the warrant does not as such authorise the acquisition of data, rather it authorises ‘interceptions of communications made to or from any telecommunications service’ of Mr Briese. As also mentioned earlier, s 46A of the I and A Act entitled SAPOL to require the carrier to intercept the nominated communications, and this is what occurred in this case. The material under the warrant was provided by Optus in electronic format, which necessarily meant some data transfer was involved. The word ‘communication’ is defined in s 5 of the I and A Act to include ‘conversation and a message, and any part of a conversation or message, whether (a) in the form of (ii) data and ‘accessing a stored communication’ is defined to consist of ‘listening to, reading or recording such a communication, by means of equipment operated by a carrier, without the knowledge of the intended recipient of the communication’.
Offences are provided for under s 276 and s 277 of the Telecommunications Act 1997 (Cth) for a carrier (carriage service provider) such as Optus, to disclose communications conducted by the carrier. Section 172 of the I and A Act, provides that Divisions 3, 4 and 4A, which encompass ss 174-180B thereof, do not permit the disclosure of ‘information that is the contents or substance of a communication’. Accordingly as I apprehend the submission, the warrants here permit the acquisition of intercepts of the content and substance of a communication, but not the call-associated data, or at least that which is not a ‘necessary incidence of the interception itself’. Such unconnected data is said to consist of such things as the time a telephone call was made or received, the telephone numbers involved, the IMEI number of a telephone from which a text message is sent, the location of a mobile telephone when a call was made or received, and the mobile phone and the tower accessed for a communication.
The situation here is that the electronic data in question was supplied to SAPOL by Optus under the warrants, which furnish a complete authorisation for it to do so. If by happenstance it forwarded more that was necessary or permitted under the warrants, which is to be doubted, then it may or may not have amounted to a breach of the Telecommunications Act 1997. The fact remains that Optus and not SAPOL acquired the material. There is therefore no substance in this point. It follows that the interception(s) would not have constituted a contravention of subsection 7(1).
Even then, it is clear beyond question that SAPOL itself could have authorised the communications anyway as a criminal law enforcement agency, by less stringent means than obtaining a warrant under ss 177 and 178 of the I and A Act. In that event ss 276, 277 and 278 of the Telecommunications Act ‘do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under this section’: s 180(1) of the I and A Act. That being the case, no occasion of unlawful or illegal activity has occurred and SAPOL could have ‘cut corners’ by these lawful means for a for a legitimate law enforcement purpose: R v Doolan.[1]
[1] [2016] SASCFC 111, [75]-[76].
In reaching this conclusion no account is taken of the DDP position that as it does not seek to lead the call associated data evidence, the admissibility of communications themselves are thereby unaffected. That consideration might or might not be relevant to discretion, however it would be of little weight if significant irregularities were present on issuing the warrants, or if appreciable illegality was evident in execution. As to discretion, here as with the issue of the warrants, the serious nature of charges, the cogency and reliability of the evidence unaffected by any supposed or actual irregularity, remain major considerations if favour of admission.
For these reasons the applications for exclusion are dismissed.