R v Bunting & Wagner (No 5) - [2003] SASC 253

R v BUNTING & WAGNER (No 5)
[2003] SASC 253
Criminal: Reasons for Rulings

MARTIN J John Justin Bunting and Robert Joe Wagner are jointly charged with eleven counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting is charged with a further count of murder alleged to have been committed in 1992 with Mark Ray Haydon and Wagner is charged with Assisting Offenders in connection with that crime of murder. Haydon has been granted a separate trial with respect to that and other charges of murder.
The facts are set out in detail in R v Bunting and Others (No 3) [2003] SASC 251. The evidence that the Crown proposes to lead includes evidence of conversations recorded through the use of telephone intercepts. The interceptions occurred after warrants were issued under the Telecommunications (Interception) Act 1979 (“the Act”). The accused challenged the admissibility of the conversations recorded through use of the intercepts. I ruled that the evidence should be admitted. I now set out my reasons for that ruling.
The submissions were presented by counsel for Wagner and were adopted by Bunting. Counsel for Bunting also presented brief submissions. Initially, counsel advanced the proposition that the warrants were invalid. However, subsequently that submission was corrected and the validity of the warrants was accepted. It was contended that although the warrants were validly issued, failure by the South Australian Commissioner of Police (“the Commissioner”) to comply with an administrative responsibility imposed by the Act rendered inadmissible evidence obtained through use of the intercepts.
It would not be unkind to describe the provisions of the Act as somewhat convoluted. However, for present purposes the essence of the scheme of the Act appears to be as follows.
Section 7(1) expressly prohibits the interception of a communication passing over a telecommunications system. Subsection (2) provides that subsection (1) does not apply to an interception of a communication made under a warrant.
Provision is made for Judges and nominated Members of the Administrative Appeals Tribunal to be persons eligible to issue warrants (“issuing authority”). Section 39(1) provides that an agency may apply to an issuing authority for a warrant in respect of a telecommunications service or a person. It is accepted that an officer of the South Australian police force was able to apply for a warrant. Sections 40-42 relate to the form and contents of the application and to the requirement that an affidavit accompany the written application setting out the facts and other grounds on which the application is based.
Section 45 of the Act is in the following terms:
“Issue of telecommunications service warrant in relation to class 1 offence
45Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the…

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.

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Details

Case: [2003] SASC 253
Decision Date: 29 October 2003

CaseChat Overview and Summary

In the case of R v Bunting & Wagner (No 5), the dispute involved the admissibility of evidence obtained from intercepted communications. The matter was heard in a relevant Australian court, where the primary issue was whether the evidence obtained via the interception should be admitted under the provisions of section 75 of the relevant legislation. This section allows for the admission of evidence obtained through interception if certain conditions are met, specifically when the interception was purportedly under a warrant despite a defect in the warrant's issuance or execution.

The court had to determine whether the failure of the Commissioner to strictly comply with an administrative duty imposed by section 60(1) constituted a substantial defect or irregularity under section 75. The court considered whether the defect was substantial enough to bar the admissibility of the evidence obtained. The key legal issue was whether the irregularity in question should be disregarded as it did not substantially affect the process of issuing or executing the warrant, thereby allowing for the evidence to be admitted.

Upon examining the circumstances, the court concluded that the failure to strictly comply with the administrative duty was not a substantial defect or irregularity for the purposes of section 75. The court reasoned that the Commissioner was attempting to comply with his duty, and there was no doubt that the persons who received notification and a copy of the warrant acted on behalf of the Managing Director of each carrier. The company secretaries were made aware of the issue, and appropriate procedures were followed for the implementation of the interceptions. The primary purposes of the Act in ensuring that warrants are validly issued and that appropriate notification is given to the carriers were achieved. Therefore, the failure to strictly comply with the administrative duty did not bar the admissibility of the evidence.

Consequently, the court found that the evidence obtained from the intercepted communications could be admitted. The court's decision hinged on the interpretation of "substantial defect or irregularity" and its application to the specific circumstances of the case, ultimately allowing the evidence to be considered in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Reference was made to s 75. That section is in the following terms:“Giving information in evidence where defect in connection with warrant75(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), 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.” Section 75 enables a Court to admit evidence obtained through an interception in contravention of s 7(1), but purportedly under a warrant, if the Court is satisfied that but for an irregularity the interception would not have constituted a contravention of s 7(1) and, in all the circumstances, the irregularity should be disregarded. “Irregularity” for these purposes is a defect or irregularity, other than a substantial defect or irregularity, in the document purporting to be the warrant or in connection with the issue of that document or in connection with the execution of the warrant or purported execution of the document purporting to be the warrant. It was said that the defect or irregularity could be viewed as occurring in connection with the execution of the warrant, but that the defect or irregularity was substantial. If it was necessary to consider the operation of s 75, in my opinion the failure of the Commissioner to strictly comply with the administrative duty imposed by s 60(1) was not a substantial defect or irregularity for the purposes of s 75. It is apparent that the Commissioner was attempting to comply with his duty. I see no reason to doubt that in each instance the persons who received notification and a copy of the warrant did so on behalf of the Managing Director of each carrier. The company secretaries obviously became aware of the issue and the activation of the warrants. Appropriate procedures were then followed for the implementation of the interceptions. In a practical sense, the primary purposes of the Act in ensuring that warrants are validly issued and that appropriate notification is given to the carriers were achieved. In my opinion, the failure of the Commissioner to strictly comply with the administrative duty was not a substantial defect or irregularity for the purposes of s 75. I agree with the observations of the Victorian Court of Appeal in R v Rich (Unreported Judgment delivered 17 December 1997):“Whatever meaning is to be attributed to the term ‘substantial defect or irregularity’ where that term is used in section 75(2) of the Act, it cannot in our view extend to circumstances where the alleged defect or irregularity has in no way affected either the process of the issue of the warrant or the process of its execution.”

Decision

Reasons for decision

MARTIN J

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Ratio Decidendi

Legal Principle Established

Established by: MARTIN J

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