R v Navin Edwin (No. 2)
[2013] ACTSC 84
•10 May 2013
R v NAVIN EDWIN (No. 2)
[2013] ACTSC 84 (10 May 2013)
CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether evidence should be excluded under ss 137, 138 Evidence Act 2011 (ACT) – whether evidence obtained improperly or in consequence of impropriety – whether the evidence obtained in contravention of Australian law or as a consequence of such contravention – evidence not obtained improperly or in contravention of Australian law –– in any event, the evidence should be admitted as probative value high – probative value not diminished by alleged inconsistency – application to exclude evidence refused
CRIMINAL LAW – STATUTORY INTERPRETATION – application of s 474.5 Criminal Code 1995 (Cth) – communication in s 474.5 ceases to be “a communication in the course of telecommunications carriage” once it is received – s 474.5 not concerned with what becomes of the communication after it is received by the device to which it is sent
Crimes Act 1900 (ACT), ss 3E, 60, 61, 64, 65
Crimes Act 1914 (Cth), s 3E
Criminal Code 1995 (Cth), ss 473.1, 474.5, 474.17, 474.19, 474.24
Evidence Act 1995 (NSW), s 138
Evidence Act 2011 (ACT), s 138, s 137
Public Health Act1991 (NSW)
Telecommunications Act1997 (Cth), ss 7, 56, 87
Employment Advocate v Williamson (2001) 185 ALR 590
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
Ridgeway v The Queen (1995) 184 CLR 19
Robinson v Woolworths Ltd (2005) 158 A Crim R 546
R v Dalley (2002) 132 A Crim R 169
R v Nona [2012] ACTSC 41
R v Stubbs [2009] ACTSC 63
No. SCC 60 of 2011
No. SCC 61 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 10 May 2013
IN THE SUPREME COURT OF THE ) No. SCC 60 of 2011
) No. SCC 61 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
NAVIN EDWIN
ORDER
Judge: Burns J
Date: 10 May 2013
Place: Canberra
THE COURT ORDERS THAT:
The application to exclude evidence is refused.
By an indictment dated 19 July 2012 the accused was charged with 23 counts, alleging offences against seven different offence provisions, in respect of six different complainants. The 23 counts are comprised of the following:
(a)Seven alleged offences against s 61 (1) of the Crimes Act1900 (ACT), six relating to the complainant ELC and one relating to the complainant MB;
(b)Six alleged offences against s 64 (1) of the Crimes Act1900, five relating to the complainant ELC, and one relating to MB’
(c)Two alleged offences against s 474.24 of the Criminal Code 1995 (Cth) relating to the complainant CR and a further complainant THW;
(d)Three alleged offences against s 474.17 of the Criminal Code 1995 (Cth), one relating to CR and two relating to THW;
(e)Two alleged offences against s 474.19 of the Criminal Code 1995 (Cth) relating to THW;
(f)One alleged offence against s 60 (1) of the Crimes Act 1900 (ACT), relating to JK;
(g)One alleged offence against s 65 of the Crimes Act 1900 (ACT) relating to an unknown complainant.
The accused has entered pleas of not guilty to all counts.
On 4 February 2013, I ruled that five of these counts, involving a single complainant THW be severed from the indictment and proceed as a separate trial. For convenience I will refer to the trial of those counts relating to THW as the second trial, and the trial with respect to the remaining counts as the first trial. The first trial is listed before this court between 13 May and 24 May this year. The second trial is listed between 3 June and 5 June this year.
At the first trial the Crown proposes to lead evidence within the following categories against the accused:
(a)Evidence of a mobile phone text message conversation between [AB] and/or [SM] (posing as [CR]) and the accused alleged to have taken place on 20 April 2010;
(b)Evidence obtained as a result of the execution of a s 3E Crimes Act 1914 (Cth) search warrant at premises located at Calwell in the ACT on 23 April 2010;
(c)Evidence obtained as a result of the execution of a s 3E Crimes Act1914 (Cth) search warrant at the premises located at Calwell on 23 September 2010; and
(d) Further evidence obtained as a consequence of the obtaining of the evidence referred to in paragraph (a) to (c) above.
As part of the second trial, the Crown proposes to lead evidence within the following categories against the accused:
(a)Evidence obtained as a result of the execution of a s 3E Crimes Act1914 (Cth) search warrant at the Calwell premises located on 23 April 2010; and
(b)Further evidence obtained as a consequence of the obtaining of the evidence referred to in paragraph (a) above.
By an application dated 12 April 2013 the accused seeks the following orders:
1.That pursuant to sections 138 and 137 of the Evidence Act2011 (ACT), the following categories of evidence proposed to be led by the Crown at the trials of the accused be held to be inadmissible:
(a)Evidence of a mobile phone text message conversation between [AB] and/or [SM] (posing as [CR]) and the accused alleged to have taken place on 20 April 2010;
(b)All evidence obtained as a result of the execution of a
s 3E Crimes Act 1914 (Cth) search warrant at [the Calwell premises] on 23 April 2010;(c)All evidence obtained as a result of the execution of s 3E Crimes Act1914 (Cth) search warrant at [the Calwell premises] located on 23 September 2010; and
(d)Further evidence obtained as a consequence of the obtaining of the evidence referred to in paragraphs (a) to (c) above.
The evidence which is challenged by the accused is, for all practical purposes, the entirety of the Crown case against him. In order to understand the objection taken by the accused, it is necessary to set out briefly the case alleged against the accused.
CROWN CASE
The accused has been a family friend of CR’s family since approximately August 2008. As at 12 April 2010 CR was 11 years old. On 20 April 2010, CR visited her friend B in Narrabundah. During the evening, B’s mother, SM noticed that CR had been receiving a number of text messages on her mobile phone. At approximately 9:30pm, B spoke to her mother. SM then went into B’s room and took possession of CR’s mobile phone. SM and her partner, AB, accessed the messages on CR’s phone. A number of those messages gave SM and AB cause for concern. Subsequently, SM, with the assistance of AB, engaged in a text conversation with a person the Crown alleges was the accused. A copy of the text messages retrieved from CR’s mobile phone, including those sent by SM, is Annexure A to this ruling. The accused has not admitted that he was the person with whom SM and/or AB was communicating. That is a matter which will need to be resolved at trial. However, for the purposes of this ruling I will assume that it was the accused.
Subsequently, at about 10:20pm on 20 April 2010 AB telephoned the police and arranged for the police to attend to take custody of CR’s mobile phone. Whilst waiting for the police to attend, SM continued to participate, posing as CR, in the text conversation until about midnight on 20 April 2010.
When CR’s father collected her the next morning, CR could not find her phone. Apparently, neither SM nor AB told CR or her father about having referred the text messages on CR’s mobile phone to the police. Some days later AB telephoned CR’s father and told him that he had gone through the messages on CR’s mobile phone and found some texts that he was very disturbed by. He told CR’s father that he had taken the phone to police and that they had read the messages and that they were also concerned. The next evening two male uniformed police spoke to CR’s father. They expressed their concern about the messages on the phone and advised CR’s father that it was up to him whether he wanted to take the matter any further. CR’s father told them that if they had concerns about the messages then he wanted it to be investigated further. On 23 April 2010, an officer of the Australian Federal Police obtained from me, in my then role as Chief Magistrate of the Australian Capital Territory, a search warrant pursuant to s 3E of the Crimes Act1914 (Cth) with respect to premises in Calwell in the Australian Capital Territory, being premises where it was alleged the accused resided. The Crown alleges that during the execution of the search warrant the accused was given an appropriate warning and provided with an opportunity to get legal advice. He agreed that his mobile phone number was the same as that which appeared in the warrant (being the number from which the relevant messages were sent to CR), and said that no one else used his phone, that no one else had access to the phone and that he exchanged messages on the night in question with CR. He stated that he understood it to be a playful conversation. He also stated that he knew CR was “about 11”.
During the execution of the search warrant a number of electronic and photographic items were seized by police. Subsequent examination of these items is said to have revealed photographic images which form the basis of the charges against the accused regarding the remaining complainants. A computer seized from the accused’s residence during the execution of the search warrant on 23 April 2010, allegedly revealed, in addition to the photographs referred to above, a file depicting a naked prepubescent female in a sexual pose. This is the basis of the 22nd count on the indictment of intentionally possessing child pornography material.
Police subsequently obtained a further search warrant with respect to the premises in Calwell, which they executed on 23 September 2010. It is alleged that in the course of the execution of that search warrant they obtained further material relevant to the charges against the accused.
SUBMISSIONS ON BEHALF OF THE ACCUSED
The accused submits:
(a)It was improper for [AB] and/or [SM] to take part in a text message conversation, posing as [CR] with a person they believed to be the Accused;
(b)It was improper for [AB] and/or [SM], in circumstances where [AB] had contacted the police at about 10:20pm on 20 April 2010, to continue to participate in the alleged conversation until midnight on 20 April 2010;
(c)It was improper for [AB] and/or [SM] to have retained the mobile phone of [CR] without her knowledge or permission and without the knowledge or permission of her parents;
(d)[SM] and/or [AB] committed an offence against
section 474.5(1) of the Criminal Code (Cth) of causing a communication in the course of telecommunications carriage to be received by a person other than the person to whom it was directed; and/or(e)[SM] and/or [AB] committed an offence by counselling and/or procuring the Accused to engage in conduct which constituted as an offence against section 474.17 of using a carriage service in a way which reasonable persons would regard as offensive.
The accused submits that, for the purposes of s 138 of the Evidence Act2011 (ACT) the conduct of AB and/or SM constituted both “an impropriety” and “a contravention of an Australian law”. He submits that the evidence of the mobile phone texting message conversation between AB and/or SM, posing as CR and the accused on 20 April 2010, the evidence obtained as a result of the execution of the search warrant on 23 April 2010, the evidence obtained as a result of the execution of the search warrant on 23 September 2010, and any other evidence in the case should also be excluded as having been obtained “in consequence of” the impropriety or contravention of an Australian law alleged against AB and/or SM.
The accused further submits that this court should not exercise its discretion under
s 138 of the Evidence Act to admit the impugned evidence as the court should not be seen to be sanctioning “vigilante behaviour”.
The accused further submits that the evidence of the alleged text message conversation between AB and/or SM (posing as CR) and the accused on 20 April 2010 should be excluded as unreliable pursuant to the provisions of s 137 of the Evidence Act (ACT). The basis for that submission is that a comparison between the call records for CR’s mobile phone and the transcript of mobile phone messages produced from CR’s mobile phone suggest that there may have been other communication made from or received by CR’s mobile phone on the night of 20 April 2010 that are not shown in the transcript. As such the accused submits that the evidence comprised of the transcript of the text messages is unreliable.
Finally, the accused submits that the evidence obtained by virtue of the execution of the search warrant on 23 April 2010 should be excluded pursuant to s 138 of the Evidence Act by reason of the application for the warrant containing misleading information.
SECTIONS 137 AND 138 EVIDENCE ACT 2011 (ACT)
These sections provide:
137. Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
138. Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained –
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning –
(a) did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it must take into account –
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
WAS THE EVIDENCE OBTAINED IMPROPERLY OR IN CONSEQUENCE OF IMPROPRIETY?
The accused has identified three alleged improprieties in the conduct of AB and/or SM in their text communications with him on 20 April 2010: see paragraphs 13 (a), (b) and (c) above. He has also identified two offences alleged to have been committed by them, or one of them, in these communications: paragraphs 13 (d) and (e) above.
The accused did not identify with any precision how it was alleged that it was improper for AB and/or SM to engage in the text message conversation with him on 20 April 2010, but I infer that the alleged impropriety was posing as CR. An examination of the text messages between SM and the accused, commencing at 9:58pm, shows that SM never directly held herself out to be CR. The accused assumed that he was still corresponding with CR. However, I accept that the inevitable inference is that SM intended the accused to believe that she was CR, a fact that, as I understand it, the Crown does not dispute. The question is whether this behaviour constituted either impropriety or contravention of an Australian law.
The Evidence Act does not define “improperly” or “impropriety”. In Parker v Comptroller-General of Customs (2009) 83 ALJR 494, French CJ noted that the meaning of “improper” in the Oxford English Dictionary includes “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”.
In Robinson v Woolworths Ltd (2005) 158 A Crim R 546, the New South Wales Court of Criminal Appeal considered the meaning of “improperly” in s 138 of the Evidence Act 1995 (NSW), a provision identical to s 138 of the Evidence Act (ACT). The Court considered whether it was improper on the part of Department of Health officials investigating compliance with provisions of the Public Health Act1991 (NSW) prohibiting the supply of cigarettes to minors to procure minors to purchase cigarettes. After referring to the principles set out in Ridgeway v The Queen (1995) 184 CLR 19, Basten JA, with whom Barr J agreed, said in relation to s 138(1) (at 553):
It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Second, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Third, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39; 321) the joint judgment in Ridgeway referred to offences being procured or induced.
The present case differs from Robinson v Woolworths Ltd in that the conduct the accused complains of is not conduct of an investigating official, or a person “entrusted with powers of law enforcement”. On its face, s 138 (1) does not apply solely to such persons: Employment Advocate v Williamson (2001) 185 ALR 590 per Branson J. In that case Branson J (at [86]) appears to suggest that the same test for impropriety applying to law enforcement officials should also apply to people who do not hold such positions. Branson J considered that the words “improperly” and “impropriety” in s 138 (1) are to be understood in the sense discussed by Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen ((1995) 184 CLR 19 at 36-37):
[T]he Bunning v Cross discretion to exclude illegally procured evidence provides, by analogy, support for the conclusion that the discretion to exclude evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement authorities extends to evidence of an offence or an element of an offence procured by conduct which, while not unlawful, is improper. Thus, in R v Ireland, Barwick CJ made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by “unfair” as well as “unlawful” conduct on the part of law enforcement officers. In their judgment in Bunning v Cross, Stephen and Aickin JJ did not qualify their acceptance of Barwick CJ’s judgment in Ireland by confining the discretion to a case of unlawful conduct. To the contrary, their Honours plainly accepted that the discretion extended to “unfair”. . . conduct on the part of the authorities”. Their Honours did, however, indicate a preference for th phrase “improper conduct” pointing out that “unfair” is largely meaningless when considering certain types of evidence (eg, improperly obtained finger print evidence). In subsequent cases, the words “improper” and “impropriety” have been generall preferred to the words “unfair” and “unfairness” and it has been accepted as established that the Bunning v Cross discretion extends to cases of either unlawful or improper conduct on the part of the authorities.
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desireable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. [citations omitted]
I accept Branson J’s conclusion that the content of the words “improperly” and “impropriety” in s 138 (1) is the same whether the evidence is obtained by a person “entrusted with powers of law enforcement” or a person not so entrusted. I also accept that the meaning those words bear in s 138 (1) is in accord with the discussion set out in the passage from Ridgeway v The Queen quoted above.
Before turning to consider whether the conduct of AB and/or SM constituted an impropriety in the sense identified, it is important to consider the question of who holds the onus of proof with regard to an application to exclude evidence pursuant to
s 138 (1). In Parker v Comptroller-General of Customs, French CJ said (at [28]):
The party seeking to exclude evidence has the burden of showing that
the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking admission of the evidence to persuade the Court that it should be admitted. There is thus a two stage process.
The only evidence of the circumstances of SM and/or AB communicating with the accused on 20 April 2010 using CR’s mobile phone which was proffered on this application was a statement taken by police from AB, dated 24 May 2010. In his statement AB refers to CR staying at his and SM’s house on 20 April 2010 for a sleepover with her friend B, SM’s daughter. During the evening AB heard a number of message alerts on CR’s mobile phone. During the course of the evening B told her mother that CR had been talking to an older male on Facebook and by text message. SM obtained CR’s mobile phone, presumably by taking it from the bedroom where CR and B were sleeping. It is apparent that she did so without CR’s knowledge. It is of significance that AB says that after SM became aware of CM’s communication with the older male, but before she took possession of the mobile phone, “[SM] was worried about [CR] and asked what she should do”.
In the course of the text communications on 20 April 2010 the accused showed interest in CR and, to a lesser extent, her friend B. It would be surprising if AB and SM had not been concerned for the welfare of CR and B, and interested in determining whether the accused posed a threat to the young girls. In my opinion, the text communications from SM and/or AB to the accused are consistent with them attempting to ascertain the accused’s intentions for the purpose of ensuring the welfare of both CR and B. It is a most unlikely proposition that SM or AB saw themselves as trying to entrap the accused. Reference to the transcript of the text conversation (Annexure A) reveals that SM and/or AB largely took a passive role in the text conversation with the accused, and it was they who terminated it.
Some time shortly after 10:20pm, AB decided to call the police. This decision was apparently prompted by the accused’s text asking CR what she was wearing to bed. The accused submits that it was improper for SM and/or AB to continue with the text conversation with the accused after having called the police. Neither AB or SM were law enforcement officials, they were simply two adults who had effective parental responsibility for CR on the evening of 20 April 2010. Whilst concerning, the text communications that occurred prior to 10:20pm were ambiguous in terms of the intentions of the accused towards CR. The continuation of the text conversation from 10:20pm onwards is consistent with SM and/or AB continuing to attempt to ascertain the accused’s true intention regarding CR, so as to determine whether, and to what extent, he posed a threat to her.
The accused submits that SM and/or AB went beyond mere encouragement of him to expose his intentions regarding CR when SM texted the accused “I can dealet [sic] all messags [sic]”, at 11:09pm. I frankly cannot see how it can be suggested that this message, in the context in which it occurred, could be said to be a form of encouragement of the accused to commit an offence. The statement that CR could delete messages was not made in the context of SM and/or AB suggesting to the accused that he engaged in any particular (let alone unlawful) behaviour. In my opinion, it cannot be said that the accused’s intentions with respect to CR became perfectly clear until 11:31pm, after which time it was the accused who pressed on with the text communications, with SM at 11:45pm texting the accused that she (meaning CR of course) was trying to sleep. Thereafter, it was the accused who resumed the text conversation at 11:51pm until SM turned off CR’s mobile phone just after 11:53pm.
The accused also submits that it was improper for AB and/or SM to retain CR’s mobile phone without her knowledge or permission and without the knowledge or permission of her parents. Three responses may be made to this submission. First, the evidence is consistent with SM and AB retaining the phone because of concerns about CR’s welfare and the threat the accused posed to her. Secondly, when CR’s father became aware of what had been done, he apparently condoned it and requested the police to continue with their investigations. Thirdly, even if it were improper of SM and AB to retain CR’s mobile phone, it cannot be said that the impugned evidence was obtained in consequence of that impropriety. By the time that SM or AB retained the phone, the text conversation had already occurred: see R v Dalley (2002) 132 A Crim R 169.
Finally, the accused submits that the evidence obtained by virtue of the execution of the search warrant on 23 April 2010 should be excluded pursuant to s 138, as having been obtained in consequence of an impropriety, as “potentially misleading or inaccurate” statements were said to have been made by Constable Palmer in her affidavit in support of the application for the warrant (Exhibit A on the Application). In that regard the accused says:
a)there is no mention of the role of AB in the affidavit;
b)paragraph (6)(e) of the affidavit is arguably misleading or inaccurate in that it may give the impression that a number of messages were received by SM on CR’s mobile phone, before SM made any response;
c)paragraph (6)(n) of the affidavit is misleading in that it does not make clear that a number of messages received on CR’s mobile phone were in response to messages sent by SM and/or AB posing as CR; and
d)it was not made clear at paragraph (6)(a) of the affidavit that the messages attributed to CR were sent by SM and/or AB.
There is no substance to these complaints. The gravamen of the complaint which was the basis for the application for the search warrant was the accused’s messages to CR, or to the person he thought was CR. In my opinion, the accused has failed to demonstrate any material omission or inaccuracy in Constable Palmer’s affidavit such as to enliven the provisions of s 138.
I am not satisfied that the accused has demonstrated any impropriety on the part of AB or SM in their participation in the text conversation with the accused on 28 April 2010. Adapting the words of Branson J in Robinson v Woolworths Ltd (at paragraph [46]) to fit the present circumstances, the conduct of SM and AB provided the opportunity for the accused to commit the offence, but did not involve any form of pressure, persuasion or manipulation.
WAS THE EVIDENCE OBTAINED IN CONTRAVENTION OF AUSTRALIAN LAW OR AS A CONSEQUENCE OF SUCH CONTRAVENTION?
There is no merit in the submission that the text conversation between AB and/or SM (posing as CR) and the accused (assuming it was the accused) constituted an offence against s 474.5(1) of the Criminal Code1995 (Cth). That section provides:
474.5 Wrongful delivery of communications
(1) A person is guilty of an offence if:
(a) a communication is in the course of telecommunications carriage; and
(b) the person causes the communication to be received by a person or carriage service other than the person or service to whom it is directed.
Penalty: Imprisonment for 1 year.
The phrase “communication in the course of telecommunications carriage” is defined in s 473.1 of the Criminal Code 1995 (Cth):
communication in the course of telecommunications carriage
means a communication that is being carried by a carrier or carriage service provider, and includes a communication that has been collected or received by a carrier or carriage service provider for carriage, but has not yet been delivered by the carrier or carriage service provider.
Both “carrier” and “carriage service provider” are defined in s 473.1 as having the meaning they respectively bear in the Telecommunications Act1997 (Cth). Section 87 of the Telecommunications Act (Cth) provides a lengthy, descriptive definition of who are carriage service providers, which it is unnecessary to refer to here. Similarly the definition of “carrier” as provided by sections 7 and 56 of the Telecommunications Act (Cth) need not be set out. It is sufficient to note they are defined by reference to their connection with the process of carrying data or communications.
What is important to note is that a communication ceases to be “a communication in the course of telecommunications carriage” once it is received: see the definition in s 473.1 of the Criminal Code (Cth), set out above. There is nothing I can perceive in the Telecommunications Act or the Criminal Code which suggests that CR’s mobile phone was part of a carriage service, or that she or it come within the definitions of “carrier” or “carriage service provider” in the Telecommunications Act. It should not be forgotten that the communication was sent to, and received by, a device, being CR’s mobile phone. The carrier or carriage service provider delivers them to the device, not to the person who owns or is in possession of the device. As such, delivery of the relevant communications between the accused and CR (as he thought was occurring) occurred when the text messages were received on CR’s mobile phone.
In my opinion, s 474.5 of the Criminal Code 1995 (Cth) protects the integrity of the carriage service, and is not concerned with what becomes of the communication after it is received by the device to which it is sent. The section addresses the diversion or hijacking of a communication whilst it is being carried by the carriage service.
The second basis upon which the accused submits that the evidence was obtained in contravention of, as a consequence of a contravention of, an Australian law is also without merit. A similar argument was rejected by Higgins CJ in R v Stubbs [2009] ACTSC 63. In merely providing the opportunity for the accused to commit an offence under s 474.17 of the Criminal Code (Cth), neither AB nor SM counselled or procured him to commit such an offence. Nor, as I have said, did they engage in any process of entrapment.
I am not satisfied that the impugned evidence was obtained in contravention of, or in consequence of a contravention of, an Australian law.
DISCRETIONARY FACTORS
In the light of the above findings it is not necessary to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, or the matters set out in s 138(3) Evidence Act. However, I make it clear that even if I had been satisfied that one or more of the accused’s submissions based on s 138 was correct, I would still have admitted the evidence. The probative value of the evidence is high, and it is important in the proceedings. Indeed, it is doubtful if anything would remain of the Crown case if the evidence the accused sought to exclude was excluded. The gravity of the improprieties or contraventions alleged by the accused (assuming them to be improprieties and contraventions) was low, and were neither deliberate nor reckless. In addition, as I commented in R v Nona [2012] ACTSC 41, there is a very real public interest in ensuring that allegations of sexual offences against children are determined by a court.
UNRELIABILITY
The final matter raised by the accused was the proposition that evidence of the alleged text conversation between him and SM and/or AB should be excluded as unreliable. The basis of that submission is the allegation that the transcript of the text conversation relied upon by the Crown “appears partially inconsistent” with usage records relating to the mobile phone number alleged to have been used by the accused on 20 April 2010, and in the light of the fact that the Crown apparently has not obtained a statement from, or proposed to call at trial, SM.
It is not clear whether the apparent partial inconsistency referred to, based upon usage records, is, in fact, significant. Certainly, the evidence as it stands cannot support the proposition that the probative value of the impugned evidence is in some way diminished by this apparent inconsistency. As I have noted, on its face the probative value of the evidence is high. It is also presently unclear that any decision not to call SM as a witness will render the evidence of the text communications unreliable.
CONCLUSION
The application to exclude the evidence must be refused.
Publication of the order and reasons of the Court will be prohibited pending the hearing of the two trials involving the accused.
I certify that the preceding forty five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 10 May 2013
Counsel for the appellant: Mr M Fernandez
Solicitor for the appellant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr M Hassall
Solicitor for the respondent: Craig Lynch & Associates
Date of hearing: 18 October 2012
Date of judgment: 10 May 2013
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