R v Riscuta

Case [2017] QSC 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v Riscuta [2017] QSC 47

PARTIES:

R
v
RISCUTA, Doru

(applicant)

FILE NO/S:

Indictment No 492 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application pursuant to s 590AA of the Criminal Code 1899 (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2016; 11 October 2016; supplementary written submissions on behalf of the applicant received 26 October 2016; supplementary written submissions on behalf of the respondent received 7 November 2016

JUDGE:

Burns J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARRESTS, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – LISTENING DEVICE WARRANTS – ISSUE AND VALIDITY – where a telecommunications service warrant was issued pursuant to the provisions of the Telecommunications (Intercept and Access) Act 1979 (Cth) – where the warrant authorised the interception of communications to and from a mobile phone belonging to another person – where a number of telephone conversations in which the applicant was a participant were intercepted pursuant to the warrant – where the applicant was subsequently charged on indictment with trafficking in dangerous drugs – where the Crown wished to rely on the conversations recorded pursuant to the warrant at the applicant’s trial – where the applicant applied pursuant to s 590AA of the Criminal Code 1899 (Qld) to have the recorded conversations excluded on the basis that the warrant was invalid and/or unfairly obtained – whether there was a defect on the face of the warrant because the date until which the warrant was to remain in force predated its date of issue – where the warrant was not sealed with the stamp of the issuing court – whether the public interest monitor was afforded a proper opportunity to consider whether to question the police officer who applied for the issue of the warrant and/or make submissions to the court before the warrant was issued – whether the warrant was invalid – whether the warrant was unfairly obtained – whether the conversations recorded pursuant to the warrant are admissible at the applicant’s trial

COMMUNICATIONS LAW – SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS – WARRANTS AND AUTHORISATIONS – OTHER MATTERS – where a telecommunications service warrant was issued pursuant to the provisions of the Telecommunications (Intercept and Access) Act 1979 (Cth) – where the warrant authorised the interception of communications to and from a mobile phone belonging to another person – where a number of telephone conversations in which the applicant was a participant were intercepted pursuant to the warrant – where the applicant was subsequently charged on indictment with trafficking in dangerous drugs – where the Crown wished to rely on the conversations recorded pursuant to the warrant at the applicant’s trial – where the applicant applied pursuant to s 590AA of the Criminal Code 1899 (Qld) to have the recorded conversations excluded on the basis that the warrant was invalid and/or unfairly obtained – whether there was a defect on the face…

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R v Riscuta [2017] QSC 47
Case
[2017] QSC 47
Decision Date

CaseChat Overview and Summary

In the case of R v Riscuta, the applicant sought to have recorded telephone conversations excluded from evidence in their trial for trafficking in dangerous drugs. The Crown intended to rely on these conversations, which were intercepted pursuant to a telecommunications service warrant issued under the Telecommunications (Intercept and Access) Act 1979 (Cth). The applicant challenged the validity of the warrant and its fairness, arguing that it was defective because the expiration date predated its issue date, it was not stamped by the issuing court, and the public interest monitor was not given a proper opportunity to review the warrant or make submissions before its issuance. The court was required to determine whether the warrant was invalid, whether it was unfairly obtained, and whether the recorded conversations should be admissible.

The court considered the statutory framework under which the warrant was issued, noting that the Telecommunications (Interception and Access) Act 1979 (Cth) allows for the admission of evidence obtained by an interception despite an irregularity, provided the irregularity is not substantial and the court is satisfied it should be disregarded. The court examined whether the defects in the warrant constituted substantial irregularities and whether the evidence should be excluded under the Act. The court also considered the applicant's argument that the approach in Barbaro should apply, but found it unnecessary due to the specific provisions of the TIAA that allow for the admission of evidence despite irregularities.

After reviewing the arguments and the statutory provisions, the court concluded that the irregularities in the warrant were not substantial and did not necessitate the exclusion of the evidence. The court found that the warrant, despite its defects, remained valid, and the evidence obtained from the intercepted communications could be admitted in the trial. The application to exclude the evidence was dismissed, and the court allowed the Crown to rely on the recorded conversations in the applicant's trial.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant sought to distinguish Barbaro on a number of grounds, the most persuasive of which was that the case was decided under a different statute.[38] However, and for precisely the same reason, it is unnecessary to decide whether the same approach should be taken in this case to answer the question whether the warrant meets the requirements of the TIAA. That is because, unlike the statute under consideration in Barbaro, the TIAA makes specific provision for the admission of evidence obtained pursuant to a warrant affected by an irregularity provided (relevantly) it is not substantial and the court is satisfied that, in all the circumstances, the irregularity should be disregarded.[39] By that provision:[38] Applicant’s submissions (entitled “Pre-Trial Hearing”), pars 18-23.[39] Telecommunications (Interception and Access) Act 1979 (Cth), s 75.“75 Giving information in evidence where defect in connection with warrant(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B 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 in 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.” It is clear from the terms of s 75(2) that an “irregularity” for the purposes of this provision may comprise a “defect … in … a document purporting to be a warrant”. Also, the following observations made by McLure P (Martin CJ and Mazza JA agreeing) in Geldert v Western Australia[40] are instructive:“In its natural and ordinary meaning, ‘irregularity’ means a failure to comply, whether by act or omission, with statutorily prescribed rules and requirements. Section 75 does not in terms distinguish between procedural and substantive irregularity. Contrast Corporations Act 2001 (Cth), s 1322. Under s 75 (and s 144) the dividing line is the extent of the irregularity rather than its nature. A substantial irregularity is outside the scope of s 75.The expression ‘in connection with’ is of wide import and capable of describing a spectrum of relationships ranging from the direct and immediate to tenuous and remote: Re Calder; Ex Parte Lee (2007) 34 WAR 289 at [35]-[38]. The expression is helpfully explained by Macfarlane J in the Canadian case of Re Nanaimo Community Hotel Ltd v British Columbia [1944] 4 DLR 638 at 639: One of the very generally accepted meanings of ‘connection’ is ‘relation between things one of which is bound up with or involved in another’; or again ‘having to do with’. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase ‘having to do with’ perhaps gives as good a suggestion of the meaning as could be had.An irregularity (as defined) ‘in connection with’ either the issue or the execution of a warrant is intended to capture all requirements under the Act, non-compliance with which results in intercepted information obtained under a warrant, or a purported warrant, contravening s 7(1) of the Act.”[41][40] (2012) 226 A Crim R 260.[41]Geldert v Western Australia (2012) 226 A Crim R 260 at [63]-[65]. And see McCleary v Director of Public Prosecutions (Cth) (1998) 20 WAR 288 at 322-325 per Ipp J (Malcolm CJ and Franklyn J agreeing).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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