R v Kasumovic - [2017] SADC 109

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KASUMOVIC
[2017] SADC 109
Ruling of His Honour Judge Chivell
12 September 2017
COMMUNICATIONS LAW - INTERCEPTION OF COMMUNICATIONS - WARRANTS AND AUTHORISATIONS
Application to exclude evidence of telephone communications. Communications intercepted pursuant to warrant. Warrant issued pursuant to s 46 of Telecommunications (Interception and Access) Act 1979 (Cth). Applicant asserts that there was non-compliance with s 60.
Held: Section 60 complied with. In the alternative, evidence should be admitted pursuant to s 75. Application to exclude evidence refused.
Telecommunications (Interception and Access) Act 1979 (Cth) s 7(1), s 46, s 47, s 60(1), s 61(4), s 75; R v Scarpantoni (2013) 118 SASR 131; Geldert v Western Australia (2012) 271 FLR 83, referred to.

R v KASUMOVIC
[2017] SADC 109

This is an application by Mr Kasumovic pursuant to rule 49 of the District Court Criminal Rules dated 6 September 2017. The application seeks the exclusion of evidence of telecommunications purported to have been intercepted under Telecommunications Service Warrant No. F13090‑00.
The grounds stated in the application for exclusion are as follows:
2.1 There is no admissible evidence of compliance with s 60 of the Telecommunications (Interception and Access) Act 1979 (Cth) making the warrant unauthorised.
And:
2.2 In the circumstances of this matter the provisions of s 75 of the Act do not apply to permit admission of the impugned evidence.
The first ground as stated is problematic. The warrant was validly issued by Senior Member Bean of the Administrative Appeals Tribunal on 4 April 2013 at 3.42 p.m. pursuant to s 46 of the Act. There is no suggestion by the applicant that the issue of the warrant was in any way invalid or unauthorised. The applicant does assert, however, that there has been a breach of s 60(1)(c) of the Act.
Section 60 is in the following terms:
(1) Where:
(a) a warrant (other than a warrant issued under section 48) is issued to an agency; and
(b) it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;
a certifying officer of the agency shall cause;
(c) an authorised representative of that carrier to be informed immediately of the issue of the warrant;
Sub-section (d) is not relevant here.
The applicant says that the authorised representative of the telecommunications carrier was not informed 'immediately' of the issue of the warrant. It is common ground that the carrier was not informed until 7.30 a.m. on 5 April 2013, a delay of about 16 hours in absolute terms.
An officer of the South Australian Police, Senior Sergeant Vanderwoude, explains that there was no detective sergeant or detective brevet sergeant 'on shift' to process the warrant at 3.42 p.m. on 4 April 2013 when it was issued. The advice was faxed to the carrier at 7.30 a.m. the next morning, 5 April 2013, which was 'close to the members shift commencement time'.
There is no evidence as to the hours during which the carrier would receive such a notification, or the time zone in which it operates. If it was in one of the eastern states, it is possible that such advice might not have been received after 4.30 p.m. SA time on 4 April. In that case the delay was no more than 48 minutes. But there is no evidence either way about that.
The advice is contained in a document called an 'Enabling Notification'. It sets out accurately the details of the warrant and by whom and when it was issued.
It is clear from the Evidentiary Certificate of Deputy Commissioner Williams, pursuant to s 61(4) of the Act, that the interception did not commence until 5 April 2013, after the notification was given. That must be so if the Deputy Commissioner's words are accepted as follows:
As a result of assistance provided by employees of the carrier, officers … commenced to intercept … communications made to or from the telecommunications service … on [5 April 2013]
Once the carrier was notified, the interception was authorised by ss 47 and 60 of the Act (see R v Scarpantoni (2013) 118 SASR 131 per Kourakis CJ at [51]).
Mr Allen referred to the terms of s 47, which I will read. It provides:
A warrant issued under section 46 or 46A does not authorise the interception of communications passing over a telecommunications system that a carrier operates unless:
(a) notification of the issue of the warrant has been received by an authorised representative 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.
Reading as I do the word 'under' as being synonymous with 'pursuant to' or 'in accordance with' (these are meanings ascribed to it by the Oxford English Dictionary), the question is whether there has been a breach of s 60(1)(c). In my view, sub-ss 60(1)(a) and (1)(b) should be read together since they are expressed conjunctively. So in my view they can be paraphrased as follows:
Where a warrant is issued to an agency and it is proposed under the warrant to intercept communications … then the authorised representative of the carrier should be informed immediately of the issue of the warrant.
I believe this is consistent with the reasoning in R v Scarpantoni, referred to earlier, at [65], where the Chief Justice observed that ss 47(a) and s60(1)(c) 'dovetail' with each other.
Clearly, SA Police had a process in place where only an officer of some seniority should notify the carrier. By not advising the carrier until 5 April 2013 it could not have proposed to intercept until after then. It could not do so without the assistance of the carrier. Section 47(b) mandates that to be the case. The scheme of s 47 clearly contemplates that process, notification to the carrier and then action by the carrier. This was as outlined by McLure P in Geldert v Western Australia (2012) 271 FLR 83 at [49]-[56]. The decision in Geldert was cited with guarded approval in Scarpantoni at [66].
I reject the submission that any interception took place that was not authorised by the Act. I am satisfied that the notification was given to the carrier immediately upon the proposal to intercept being formulated.
In case I am wrong about that, and there has been non-compliance with s 60, s 75 of the Act then becomes significant. Section 75 reads:
(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under s 11A, 11 B 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 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 I have already expressed, I am satisfied that:
(1)there has been an irregularity in the execution of the warrant, rather than in the issue thereof (see s 75(2)(a) of the Act), but the irregularity is not substantial;
(2)but for the irregularity, the interception would not have contravened s 7(1) (which prohibits interception of telecommunications without a warrant);
(3)since there has been no unauthorised interception, no person's privacy has been invaded, no person's rights and freedoms have been denied them, then the irregularity should be disregarded.
So, in summary, my findings are that the warrant was not irregularly issued and the telephonic interception was authorised by the Act; and, in the alternative, if that is not so, then the evidence should be given pursuant to s 75 of the Act.
The application to exclude the evidence is therefore refused.