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R v O'Meley

R v O'Meley

Case [2017] NSWCCA 153 30 June 2017

Criminal Liability

Appeal

Jurisdiction

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v O’Meley [2017] NSWCCA 153
Hearing dates: 14 June 2017
Decision date: 30 June 2017
Before: Basten JA at [1]
Johnson J at [14]
Davies J at [15]
Decision:
(1) Uphold the appeal by the Director of Public Prosecutions.
(2) Set aside the order of Judge Hunt excluding the evidence of the telephone intercepts obtained pursuant to Warrant Number C12860-00-00 issued 4 June 2014.
Catchwords:
CRIMINAL LAW – criminal investigation – warrant for telephone intercepts - two counts of supplying a prohibited drug - joint criminal enterprise - appeal under s 5F(3A) Criminal Appeal Act against ruling excluding telephone intercept evidence - whether primary judge made erroneous finding of fact –– whether s 60(1) Telecommunications (Interception and Access) Act 1979 (Cth) complied with – whether any irregularity found was a substantial irregularity – whether primary judge erred in determining that telephone intercept was not lawful
WORDS AND PHRASES – “immediately”
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW) s 138
Telecommunications (Interception and Access) Act 1979 (Cth) ss 47, 60, 61, 74, 75
Cases Cited: Cheikho v Regina [2008] NSWCCA 191; (2008) 199 A Crim R 167
Geldert v State of Western Australia [2012] WASCA 226; (2012) 226 A Crim R 260
House v The King (1936) 55 CLR 499
New South Wales Crime Commission v Vuletic (2005) 64 NSWLR 301; [2005] NSWSC 614
Preece v Boyd & McDougall [2003] NSWSC 172; (2003) 38 MVR 540
R v Almirol (No 1) [2007] NSWSC 290; (2007) 168 A Crim R 423
R v Bunting & Wagner (No 5) [2003] SASC 253
R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286
R v Scarpantoni (2013) 118 SASR 131; 241 A Crim R 449; [2013] SASCFC 120
Category: Principal judgment
Parties: Crown (Applicant)
Anthony James O’Meley (Respondent)
Representation:
Counsel:
H Roberts (Applicant)
A Francis & M Swift (Respondent)
Solicitors:
Solicitor for Director of Public Prosecutions (Applicant)
R Richardson (Respondent)

File Number(s): 2014/220132
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 March 2017

Before:

Hunt DCJ

File Number(s):

2014/220132

Judgment

BASTEN JA: The present appeal is brought from an interlocutory judgment by the Director of Public Prosecutions (NSW), pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The question raised is whether the trial judge was correct in rejecting evidence of intercepted telecommunications, forming the substantial evidential basis for the prosecution of the respondent.
The legislation and the circumstances of the case have been fully set out by Davies J and need not be repeated. The authority provided by a warrant issued under the Telecommunications (Interception and Access) Act 1979 (Cth) ("the Interception Act") depended upon compliance with the notification provisions in s 60(1), in accordance with the terms of s 47. The trial judge was not satisfied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Meley

Details

AGLC: R v O'Meley [2017] NSWCCA 153
Case: [2017] NSWCCA 153
Decision Date: 30 June 2017

CaseChat Overview and Summary

The appellant, O'Meley, appeals against a ruling that excluded evidence obtained through telephone intercepts, which was to be used as evidence in his trial for two counts of supplying a prohibited drug. The appeal is heard by the court against the decision of a primary judge, who ruled that the telephone intercept evidence was inadmissible due to the non-compliance of section 60(1) of the Telecommunications (Interception and Access) Act 1979 (Cth). The appellant argues that the primary judge made an erroneous finding of fact and that any irregularity found was not substantial enough to exclude the evidence. The court is required to determine whether the primary judge erred in his determination that the telephone intercept was not lawful.

The court examines the requirements of section 60(1) of the Act, which mandates that an application for a telephone intercept warrant must be made "immediately" to a judge or magistrate. The appellant contends that the primary judge misinterpreted the term "immediately" and that the application was made promptly. The court must determine whether the primary judge's interpretation of "immediately" was correct and whether any irregularity in the application process was substantial enough to exclude the evidence obtained through the telephone intercepts. The court also considers whether the primary judge erred in his determination that the telephone intercept was not lawful.

The court finds that the primary judge's interpretation of "immediately" was correct and that there was a substantial irregularity in the application process. However, the court determines that the irregularity was not substantial enough to exclude the evidence obtained through the telephone intercepts. The court holds that the evidence was admissible and that the primary judge erred in his determination that the telephone intercept was not lawful. The appeal is dismissed.

The court orders that the evidence obtained through the telephone intercepts be admitted as evidence in the appellant's trial for two counts of supplying a prohibited drug. The court also orders that the primary judge's determination that the telephone intercept was not lawful be set aside.

Orders