R v Roy (No 2) - [2024] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Roy (No 2)
Citation:	[2024] ACTSC 305
Hearing Dates:	6 and 26 September 2024
Decision Date:	3 October 2024
Before:	McCallum CJ
Decision:	(1) Paragraphs 1 and 3(c) of the subpoena to the AFP dated 24 June 2024 are set aside. (2) I confirm my ruling made on 10 September 2024 declining to issue a certificate pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth).
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside part of a subpoena – where subpoena based on misreading of an affidavit sworn in support of an application for a search warrant – whether subpoena too broad CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for certificate under the Mutual Assistance in Criminal Matters Act1987 (Cth) – whether documents sought could lead to a chain of inquiry that could establish that the manner in which the evidence was obtained involved an unlawful interception – whether documents might show that foreign collection of personal data would be a breach of privacy in Australia – whether foreign country was likely to grant request for assistance – whether material sought from the foreign country not otherwise available – whether material would likely be admitted in the proceeding – probative value of the material if admitted – whether the material has real and not speculative significance
Legislation Cited:	Crimes Act 1900 (ACT) ss 64A, 65 Crimes Act 1914 (Cth) s3E Criminal Code (Cth) ss 474.19, 474.22, 474.22A, 474.25A Evidence Act 2011 (ACT) s 138 Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 5, 39A Surveillance Devices Act 2004 (Cth) Telecommunications (Interception and Access) Act 1979 (Cth) s 7
Cases Cited:	BA v Attorney-General (Cth) [2017] VSC 259; 319 FLR 329 R v TB(No 4) [2023] SASC 76
Parties:	Commonwealth Director of Public Prosecutions ( Crown) Richard James Roy ( Accused) Attorney-General (Cth) (Interested Party) Commissioner of the Australian Federal Police (Subpoena Recipient)
Representation:	Counsel E Hobba ( Crown) J Pappas and later T Taylor ( Accused) J Davidson (Interested Party) T Giugni (Subpoena Recipient)
Solicitors Commonwealth Director of Public Prosecutions Hugo Law Group ( Accused) Attorney-General’s Department (Interested Party) Australian Government Solicitor (Subpoena Recipient)
File Number:	SCC 117 of 2022

McCALLUM CJ:

EX TEMPORE REASONS (REVISED)

1․Richard Roy has been committed to this Court for trial for numerous offences involving the creation, possession and accessing of child abuse material. The current indictment dated 9 May 2023 includes 2 counts alleging possession of child abuse material via a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth); 2 counts in the alternative of possessing child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT); 10 counts of using a carriage service for sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code; 12 counts of using a child for production of…

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 Roy (No 2)

Details

AGLC: R v Roy (No 2) [2024] ACTSC 305
Case: [2024] ACTSC 305
Decision Date: 3 October 2024

CaseChat Overview and Summary

The case of R v Roy (No 2) involved an application to set aside part of a subpoena issued to the Australian Federal Police (AFP) on 24 June 2024. This subpoena was based on a misreading of an affidavit sworn in support of an application for a search warrant. The central dispute was whether the subpoena was too broad. Additionally, the case involved an application for a certificate under the Mutual Assistance in Criminal Matters Act 1987 (Cth). The applicant sought documents from a foreign country, and the court had to determine whether these documents could establish an unlawful interception, breach of privacy in Australia, or if the foreign country would grant the request for assistance.

The court had to decide several legal issues. Firstly, whether the subpoena was too broad due to the misreading of the affidavit. Secondly, whether the documents sought from the foreign country could lead to a chain of inquiry that would establish an unlawful interception. Thirdly, whether these documents might show that the foreign collection of personal data would be a breach of privacy in Australia. The court also had to consider whether the foreign country was likely to grant the request for assistance, whether the material sought was not otherwise available, and whether it would likely be admitted in the proceeding. The probative value of the material if admitted and whether it had real and not speculative significance were also examined.

The court found that paragraphs 1 and 3(c) of the subpoena were indeed too broad and set them aside. Regarding the application for a certificate, the court confirmed its earlier ruling declining to issue a certificate under s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The court determined that the material sought might show that the foreign collection of personal data would be a breach of privacy in Australia, and there was no real and not speculative significance of the material if admitted.

The court's final orders were to set aside paragraphs 1 and 3(c) of the subpoena to the AFP dated 24 June 2024 and to confirm the ruling made on 10 September 2024 declining to issue a certificate under s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth).

Orders

Orders of the court

(1) Paragraphs 1 and 3(c) of the subpoena to the AFP dated 24 June 2024 are set aside.

(2) I confirm my ruling made on 10 September 2024 declining to issue a certificate pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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