R v Domokos & Ors (No 1) - [2004] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOMOKOS & ORS (No 1)
Reasons for Ruling of His Honour Judge Robertson
16 June 2004
CRIMINAL LAW
VOIR DIRE - WARRANTS TO INTERCEPT TELEPHONE COMMUNICATIONS
Application to set aside three Warrants to intercept telephone communications - question whether compliance with Section 47 of Telecommunications (Interceptions) Act - held there had been compliance - Application to set aside Warrant on basis that error on the face of it - Application refused.
Telecommunications (Interceptions) Act 1979 (Cwth) ss. 45, 47, 75; , referred to.
Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361; George v Rockett (1990) 179 CLR 104, considered.

R v DOMOKOS & ORS (No 1)
[2004] SADC 116
Judge Robertson
Criminal

The Application contained in Paragraph 1. of the accused Domokos’s Rule 9 Notice for the exclusion of all telephone intercepts made pursuant to the Warrants identified in that paragraph is refused.
The application is founded upon an interpretation of Section 47 of the Telecommunications (Interceptions) Act (Cwth) (“the Act”) which in my opinion is flawed. In my view the proper construction of the Section is that there are two limbs. The first is that notification of the issue of the Warrant to make intercepts must be received on behalf of the Managing Director of the relevant telecommunication carrier. The second limb is that any interception must be undertaken within the terms of the warrant. If there is non-compliance with either limb then any interception made is not authorised under the terms of the Warrant.
The evidence indicates that notification of the issue of the Warrant in each case was received for or on behalf of the Managing Director of Telstra in accordance with the terms of Section 47(a) of the Act. Furthermore the evidence before me indicates that the interceptions were made pursuant to the terms of the respective Warrants and accordingly there has been compliance with Section 47(b).
As there has been compliance with the two limbs of Section 47 then the intercepts are authorised under the Warrants issued pursuant Section 45 of the Act.
As I mentioned earlier, the application is founded upon an interpretation of the Section which is flawed. However, I will deal with the submissions made by Mr White, Counsel for the Accused Domokos, based upon that interpretation.
In the respective “notification” letters each referred to the relevant Warrant and stated that the warrant was “ … forwarded to you for necessary action”. Mr White, submitted that a request to take “necessary action” was too wide and as such failed to indicate that the intercepts must be made within the terms of the Warrant. Mr White submitted that Sub-section 47(b) required the notification under Sub-section 47(a) to state (using the words contained in sub-section 47(b)) that the Warrant was forwarded “ … for the purpose of enabling the warrant to be executed”. In that way, submitted Mr White, it is made clear to the telecommunications carrier that it must conduct the intercepts in accordance with the terms of the Warrant.
As I said earlier, such a submission is, in my view, based upon a flawed interpretation of the Section. In my opinion, Sub-section 47(b) has nothing to do with the obligation to notify the Managing Director of the carrier required by Sub-section 47(a). It establishes a separate and distinct obligation. Sub-section 47(b)requires that the intercepts be carried out in accordance with the terms of the Warrant. As I said earlier, on the view I take of the Section, the Application for exclusion of the intercepts falls at the first hurdle.
However, even if I accept the interpretation urged upon me by Mr White I am still of the opinion that the notification, in each case, complies with Section 47 of the Act. It cannot surely be the case that the precise words “for the purpose of enabling the warrant to be executed” need be included in the notification for it to comply with Section 47. At its highest, on Mr White’s interpretation of the Section, what is required is that the notification make plain that the intercepts must be made within the terms of the Warrant. In my opinion each letter of notification does that. When each letter is read in its entirety it is clear that the Australian Federal Police are requesting that the intercepts be made in accordance with the terms of the Warrant, which was enclosed with the particular letter. The words “for necessary action” must be read in the context of the entire letter. There is no ambiguity as suggested by Mr White.
Mr White made a further submission with respect to Warrant A2451/00/00. He submitted that the reference therein to “Magdalena Maca” instead of “Magdalena Mica” was a fatal error and leads to the conclusion that it is not a Warrant issued pursuant to the terms of Section 45 of the Act. Accordingly, submitted Mr White, all telecommunications intercepted pursuant to the Warrant should be excluded from evidence.
There is a reference in a Recital contained in the Warrant to a telecommunications service number and that the number is connected in the name of Magdalena Maca of 42 Cardigan Street, Angle Park. It is not in dispute that the particular telephone member was connected at the time in the name of the accused Magdalena Mica. Mr White submitted that adopting the principles espoused in the “search warrant cases” such as George v Rockett (1990) 179 CLR 104 at 110 and Tran Nominees v Scheffler (1986) 42 SASR 361, the warrant is invalid.
In my view the misspelling of the name in the Recital does not cause the Warrant to be invalid in the sense that it does not comply with Section 45 of the Act. Immediately below the reference to “Magdalena Maca” in the Warrant there is a reference to the nominated AAT Member, who authorised the Warrant, being satisfied that there were reasonable grounds to suspect that “Magdalena Mica” and “Joseph Virag” of 42 Cardigan Street Angle Park “are using or likely to use the service”. From the contents of the Warrant it is clear that the service referred to is the telephone number referred to earlier and stated at that part of the Warrant to be connected in the name of “Magdalena Maca”.
The face of the Warrant establishes that “Maca” is a misspelling. This follows from the fact that the nominated AAT Member satisfied himself that a “Magdalena Mica” was using or likely to use the service relating to the telephone number referred to in the Warrant. Accordingly, I am of the view that the Warrant complies with the terms of Section 45 of the Act
In any event, I am prepared to apply Section 75 of the Act. In my opinion the spelling error is an irregularity which should be disregarded after taking into account all the circumstances to which I have referred.