R v Facelli

[2012] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Facelli [2012] QSC 16

PARTIES:

THE QUEEN

(Respondent)

-v-

Anthony Paul FACELLI

(Applicant)

FILE NO/S:

SCR 94/11

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

9 February 2012

DELIVERED AT:

Townsville

HEARING DATE:

7 February 2012

JUDGE:

North J

ORDER:

The certificate dated 30 November 2011 signed by Mr Martin Green (exhibit 2) is inadmissible.

CATCHWORDS:

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - where the accused is charged with Trafficking in Dangerous Drugs - where the accused applies pursuant to section 590AA of the Criminal Code 1899 for pre-trial ruling concerning evidence obtained pursuant to a Stored Communications Warrant issued under the Telecommunications (Interception and Access) Act 1979 - whether a certificate reportedly issued under section 129 complies with the Act.

CASES & AUTHORITIES:

Criminal Code 1899 (Qld), section 590AA;

Telecommunications (Interception and Access) Act 1979; Sections 120 and 130;

R v Kashani-Malaki [2011] QSC 308;

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

COUNSEL:

Mr M Hibble for the applicant

Mr M Cowen for the respondent

SOLICITORS:

Gun Lawyers for the applicant

Director of Public Prosecutions for the respondent

1. This is an application for pursuant to section 590AA of the Criminal Code.  The application is brought on behalf of Mr Facelli who is charged with one count of Trafficking in Dangerous Drugs and one count of Possessing Property Obtained from Trafficking and was heard at short notice on 7 February 2012 in the circumstance that the trial was listed to commence on 8 February. 

1. The application concerns the admissibility of certain certificates obtained under the Telecommunications (Interception and Access) Act 1979 (Cth) ("the Act") and the consequential admissibility of certain evidence obtained as a result of the issue of warrants under the Act.  The evidence is essentially text messages allegedly sent to and sent from a mobile telephone alleged to have been in the possession of the applicant.  The text messages are, I understand, an important part of the evidence sought to be relied upon to prove a charge of Trafficking.

1. The text messages fall within the concept of a "stored communication" within the meaning of that term as used within the Act.[1] 

   [1] See section 5.

Certificate Under Section 129

1. Section 129 of the Act provides:-

"129Evidentiary certificates relating to actions by carriers    

(1)       The following:

(a)       the Managing Director of a carrier or a body corporate of   which the carrier is a subsidiary;

(b)       the secretary of a carrier or a body corporate of which the   carrier is a subsidiary;

(c)       an employee of a carrier authorised in writing for the   purposes of this paragraph by a person referred to in   paragraph (a) or (b);

may issue a written certificate signed by him or her setting out such   facts as he or she considers relevant with respect to acts or things   done by, or in relation to, employees of the carrier in order to enable   a warrant…