R v Domokos, Virag & Mica (No 1) No. DCCRM-02-125

[2003] SADC 27

R v DOMOKOS, VIRAG & MICA (No 1)
[2003] SADC 27

Judge Anderson
Criminal

1. By a further Rule 9 Notice, each Accused has sought to have Warrants for the Interception of Communication, issued correctly pursuant to the provisions of Section 45 of the Telecommunication (Interception) Act 1979 (“the Act”), dated 9 October 2000 re: service number 08 8541 3008, 12 October 2000 re: service 0410 739 660 and 12 October 2000 re: service 0407 609 232 set aside with the consequence that any evidence gathered pursuant thereto be declared inadmissible.

2. Mr White made submissions on behalf of counsel for all Accused.

3. Because there is no submission that the procedure for, or the obtaining of, the warrants was flawed, it is not necessary to re‑trace the facilitating legislative scheme.  Upon the coming into existence of each warrant, certain certifying steps, as required by the legislation, were undertaken.  To use Mr White’s expression, the doing of all of this was “uncontroversial”.

4. Thereafter, a letter was sent in relation to each warrant to satisfy the terms of Section 60(1) of the Act.  The letter relating to warrant A2444/00/00 is dated 9 October 2000 and is in these terms:

   “The Managing Director

   Telstra Corporation Limited
   37^th Floor
   242 Exhibition Street
   MELBOURNE VIC 3000

   Attention: Mr David Tomlinson

   ORIGINAL ISSUE OF WARRANT

   Warrant A.2444/00/00 is forwarded to you for necessary action.  Please arrange for the intercepted material to be processed as follows:

   This warrant relates to Service Number 08 8541 3008

   Audio product directed to dial up number ISDN (22) 62339122

   Could you please direct the data to “DATA MOD AFP”.

   Please advise TID on 06 2870528 when the connection has been made.

   D E Baker
   Federal Agent
   A/Co-ordinator

   Telecommunications Interception Division”

5. A letter sent in relation to the other two warrants is in like terms.

6. Section 47 of the Act is in these terms:

   “A Part VI warrant does not authorise communications to be intercepted while they are passing over a telecommunications system operated by a carrier unless:

   (a)notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60(1); and

   (b)the interception takes place as a result of action taken by an employee of the carrier, and by the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police, for the purpose of enabling the warrant to be executed.”

7. Mr White has submitted that the letter of 9 October 2000 is a request to execute the warrant outside of its terms.  He said that there is a difference between forwarding the warrant for “necessary action” and making a request pursuant to Section 47(b) “for the purpose of enabling the warrant to be executed”.

8. There is no doubt that this letter complies with the requirements of Section 60(1).  That is not to say that it cannot also comply with Section 47(b).  In my opinion, there is no real difference, in this context, between the words “for necessary action” in the letter of 9 October 2000 and the words “for the purpose of enabling the warrant to be executed” in Section 47(b).

9. Whilst it may be preferable, so as to forestall any such argument, to specifically refer to, and request action pursuant to, Section 47(b), that it has not been done is not, in itself, fatal to the admissibility of any material obtained pursuant to the permitted interception.

10. This is not a matter of protecting the rights of individuals as is referred to in the series of “warrant cases”[1] to which I have been referred.  But rather it is a case of looking in a sensible fashion at the import of the words used so as to seek to give effect to the intent of Parliament.  This intent is not to be frustrated by a strained interpretation under the guise of protecting individual rights.

    [1] George v Rockett (1990) 170 CLR 104 @ 110; Swanvelder v Holmes (1990) 52 SASR 549 @ 555-556; Tran Nominees v Scheffler (1996) 42 SASR 361

11. In my opinion, the same conclusion applies to each of the three warrants.  Consequently, I am not of the opinion that there has been any breach of Section 7(1) of the Act.  Thus, Section 75 thereof has no application.

12. The application of each Accused in relation to each warrant is refused.

13. Warrant number A.2451/00/00 for service no 0407 609 232 has an error on its face in the first recital.  It is alleged that that service is connected in the name of “Magdalena MACA of 42 Cardigan Street, Angle Park”.  Further reading of the document indicates a satisfaction by the “nominated AAT member” that a particular person, “Magdalena Mica” of the same address is likely to use the service.  There is no issue but that the service is that of the Accused, Mica, who then resided at that address.

14. This is not a sufficient error on the face of the warrant to invalidate it.  It is a spelling error amidst other information which clearly identifies the service user.

15. There is no basis to conclude, as a consequence of this spelling error, that the warrant is defective.