R v Scarpantoni (No 2) - [2013] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SCARPANTONI (NO 2)
[2013] SADC 70
Reasons for Ruling of His Honour Judge Stretton
22 May 2013
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - EVIDENCE UNLAWFULLY OR IRREGULARLY OBTAINED
COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - INTERCEPTION AND PROHIBITION THEREOF
The accused sought exclusion of certain intercepted phone calls on the ground that section 60(1)(d) of the Telecommunications (Interception and Access) Act 1979 required SA Police 'as soon as (is) practicable' after issue and notification of the interception warrant to also cause the Managing Director of the telecommunications carrier to be given a certified copy. It was argued that they had not done so, and that consequently, per section 47(a) the interception was not authorised, and that such irregularity was substantial and not able to be excused pursuant to section 75.
Held: The requirement to subsequently serve a certified copy of a warrant which had already been notified to the carrier, and under which the interception was already lawfully occurring, was not part of the 'notification' required by section 47(a) to authorise the commencement or continuation of the interception of the service, and accordingly any failure to do so was not a breach of the section 47(a) notification requirement. Geldert v WA [2012] WASCA 226 followed. The interception was lawfully made under a valid warrant, interception was authorised and hence the calls are admissable per section 74 of the Act.
Telecommunications (Interception and Access) 1979 s47, 60, 75; Acts Interpretation Act (Cth) 1901 s28A, referred to.
Geldert v The State of Western Australia [2012] WASCA 226, applied.
R v Bunting & Wagner [No 5] (2003) SASC 253; Baladjam (No 17) [2008] NSWSC 1439; Farah Constructions v Say-Dee P/L (2007) 230 CLR 89; Tanevski [2012] WADC 87 (referred to in Geldert as Tanevski No 2); Tanevski (No 5) [2012] WADC 64 (referred to in Geldert as Tanevski No 1), considered.

R v SCARPANTONI (NO 2)
[2013] SADC 70
Background

The accused is charged with a drug offence. It is alleged that he manufactured a large commercial quantity of methylamphetamine at Salisbury Plains between January and March 2010.
On 25 March 2010, police raided what they allege was a large scale clandestine methylamphetamine production facility at that location and arrested two men apparently engaged in such production. Neither of those men were the accused.
The case against the accused is a circumstantial one, based in part on evidence of his alleged involvement in sourcing equipment and materials located at and apparently used in the clandestine laboratory, respirator goggles at the premises which tested positive for drugs containing his DNA as the major component, and certain other evidence.
As a part of the prosecution case the DPP sought to lead evidence of intercepted telephone calls said to involve the accused, one of which was said to implicate the accused in the offence. The accused objected to the tender of that evidence, on the basis that the statutory requirements for its admission had not been met.
I admitted that evidence, indicating I would publish reasons in due course. These are those reasons.
The application
The accused sought the exclusion from evidence of telephone calls intercepted pursuant to a warrant to do so, based on suggested non-compliance with the Telecommunications (Interception and Access) Act 1979 (“the Act”).[1]
[1] Some aspects of the original Rule 15 application were agreed, and some aspects of it were addressed and resolved to the satisfaction of the accused by the provision of further evidentiary material by the DPP. These reasons address only the remaining area in dispute.
The warrant
It was agreed, the materials reflect, and I find that a warrant to intercept the accused’s calls was validly issued on 11 May 2010. The warrant was a ‘named person warrant’ which authorised the interception of calls made to and from the accused, for the period 11 May 2010 to 8 August 2010.
The essence of the application is that certain requirements imposed by the Act subsequent to the issue of the warrant were not carried out, rendering the material gathered pursuant to the warrant inadmissible.
The law
It was agreed that the compilation of the Act dated 20 April 2010, reflecting law which came into force on 15 April 2010, was applicable to this application.
The general scheme of the Act is well known. It strictly prohibits the interception of telecommunications subject to specific exceptions, regulates such interceptions and exceptions, and addresses the admissibility of evidence obtained as a result. In doing all this it seeks to strike a balance between facilitating the investigation of serious crimes and protecting the rights of individuals.
There are strict requirements for the issue of a warrant, which it is agreed were complied with and are not in issue in this case. Accordingly, as the warrant was validly issued to the South Australian police to intercept the calls concerned, there is no need to traverse that aspect of the statutory framework.
Of significance in this case are the requirements of sections 47 and 60 of the Act, which together in essence provide that the warrant will not authorise the interception until the Managing Director of the telecommunication carrier has been notified of the issue of the warrant. In R v Bunting & Wagner [No 5][2] Martin J held that having regard to these provisions, the scheme of the Act, the purposes of notification and practical necessities the functions articulated for the Managing Director in section 60 may be performed by persons acting on behalf of the Managing Director.
[2] (2003) SASC 253 at 19-35: followed in R v Kashani-Malaki [2011] QSC 308 at 35-42.
As sections 47 and 60 of the Act and their proper interpretation base the application to exclude, I set them out. Section 47 provided:
47 Limit on authority conferred by warrant
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 or on behalf of the Managing Director 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.
What constitutes notification was defined in section 60 of the Act. Section 60(1) provided:
60 Notification to Managing Director of carrier of issue or revocation of certain warrants
(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)the Managing Director of that carrier to be informed forthwith of the issue of the warrant; and
(d)a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to the Managing Director of that carrier.
The Act also provides that all intercepted material is inadmissible, except where permitted pursuant to the Act,[3] for example and probably most commonly in the prosecution of a sufficiently serious offence as defined by the Act.[4] The Act however does go on to provide that intercepted material may still be given in evidence where there is a non substantial defect or irregularity in connection with the warrant, and in all the circumstances the irregularity should be disregarded.[5]
[3]    Telecommunications (Interception and Access) Act 1979, s 77.
[4]    Telecommunications (Interception and Access) Act 1979, s 74 and 5B.
Together these sections define and provide for the admissibility of intercepted material in a wide range of serious offences, including the offence the accused is charged with.
[5]    Telecommunications (Interception and Access) Act 1979, s 75.
The essence of the application is that section 60(1)(d) was not complied with, and that as a result, per section 47, SA Police were not authorized to intercept the calls in question.[6] Therefore it is argued the calls were per the legislation prima facie inadmissible and that this was a substantial defect or irregularity in connection with the warrant which should not be disregarded.
[6] Transcript 91.
The facts
Counsel tendered a bundle of materials on the voir dire, made reference to matters contained in the declarations, and evidence was called from a Detective Senior Sergeant Lange, Officer in Charge of the SA Police Telecommunications Section.[7]
[7] Specific voir dire materials relating to the warrant were tendered including a bundle marked #VD1 and it was agreed that regard could be had, where relevant, to material in the declarations. See T 107.
I have closely considered all of counsel’s submissions relating to the evidence of Detective Lange. Detective Lange was a careful, methodical and good witness. I find he was truthful and accurate in the evidence he gave. I accept his evidence.
Detective Lange said that as officer in charge of the section he took a central role and had an overall responsibility for the activities of the section. He described the processes undertaken whereby the warrant to intercept and record the accused’s phone calls in this case was ultimately issued on 11 May 2010, to operate from that date until 8 August 2010.
Detective Lange described how on the day of issue of the warrant SA Police sent what he described as a “service enabling notification” to the Managing Director of the carrier, attaching the warrant in question and notifying the carrier of the issue of it.[8] This comprised the notification required pursuant to section 60(1)(c). It is clear from all the circumstances that this notification was sent and received on 11 May 2010.
[8] Tendered at tab 7 of VD1, with fax confirmation tendered at tab 8. See T 113.
Detective Lange then described the steps taken to progress the matter. Of relevance to the voir dire, he said that his section then took steps to record the details of the warrant on a register and sought to obtain a certified copy or copies of the warrant to then send to the carrier. He described how ‘evidence preparation staff’ in the section copied the warrant and made an appointment to see the Deputy Commissioner, then took the original together with the copy for certification to the Deputy Commissioner for certification, so that certified copies could be obtained and a certified copy could then be sent to the carrier as required pursuant to section 60(1)(d). He said that on 13 May 2010, two certified copies were obtained from the Deputy Commissioner.
Detective Lange said that the document would then be given to administrative staff who would then be responsible for going to the Post Office to send the certified copy by registered mail to the carrier. Utilising this method, the certified copy was sent to the carrier by registered post on 21 May 2010.[9] He explained why that occurred every few days rather than immediately, essentially in light of the many other things that needed to be done in the section and for administrative efficiency.[10] He said that while they sent it by registered mail and kept a record and postal receipt of that, they did not at that time also seek a confirmation of receipt from the ultimate intended recipient.
[9] The SA Police log and the registered post receipt were tendered as tabs 9 and 10 of VD1.
[10] T 123.
Detective Lange said that some time later SA Police contacted the carrier to seek the provision of an evidentiary certificate, and on 28 October 2010 someone from the carrier replied saying that they had not received the certified copy of the warrant, so a further certified copy of the warrant was sent to the carrier on 4 November 2010. The carrier then provided the requested evidentiary certificate. It was dated 8 November 2010 and it certified a range of things, including that a true copy of the warrant had been received by the carrier by fax on 11 May 2010, and by mail on 8 November 2010.
Detective Lange said that on 28 October 2010 he was also advised that he had the wrong address for the carrier, in other words that the carrier had changed their address. He said that the address he had been sending warrants to was the address he had been previously given by the carrier, they were reliant on the carriers for their address, it was a locked bag, and notwithstanding the envelopes all had the sender’s address, nothing was returned to him as undeliverable or to be returned to sender.[11] He said that at no time from 21 May 2010 over the next five months were they informed, nor did he become aware of, any other warrant files relating to this carrier where a certified copy of the warrant had not been received.
[11] T 133-135, 146.
I accept all the evidence given by Detective Lange.
I find that the section 60(1)(c) notice was sent and received by the carrier as described by Detective Lange, on the day of issue of the warrant.
I find that a section 60(1)(d) certified copy of the warrant was sent by registered post to the address that SA Police then had for the carrier, which was its last given/known address to the server of the document, by registered post, on 21 May 2010. On balance I find, on the basis it was sent by registered post to the locked bag of a large Australian Corporate entity and was not returned to sender either by that entity or by Australia Post, and that that entity had at least changed one or more of its addresses, that someone on behalf of the carrier likely received that document, but for some reasons not ascertainable on the evidence before me, it was either lost or misplaced by that entity but in any event was not conveyed to the relevant section of that entity and accordingly was in a formal sense not received by or on behalf of the Managing Director at that time. I find that on 28 October 2010 when SA Police discovered that there had been a change of the relevant address, a further certified copy of the warrant was then sent to the carrier on 4 November 2010, and this was received by the carrier on 8 November 2010.
On the totality of the evidence, in particular Detective Lange’s evidence about the duties, demands and operation of the office, I find that sending the certified copy of the warrant by registered post on 21 May was in the totality of the circumstances ‘as soon as practicable’. I note that in a number of cases cited by the DPP courts have noted without criticism that the certified copy of the warrant has been sent some time after the issue of the warrant.[12] This finding is also supported in my view by the characterisation of the requirement to provide the certified copy of the warrant articulated in the case of Geldert by the Western Australian Court of Appeal, discussed below, as primarily directed towards accountability, transparency and audit, and the responsibilities of the carrier, rather than directed to the protection of the person the subject of the warrant.
[12] See for example Baladjam (No 17) [2008] NSWSC 1439 at para 26 were the certified copy of the warrant was served two months after the issue of the warrant. The court observed at para 28 that "...none of the foregoing material appears particularly controversial...", and no application was made in respect of the delay. On the other hand, in Geldert in the factual circumstances of that case, the court considered the issue specifically and 'drew the inference' that periods of 29 days and 43 days after the issue of the respective warrants were not 'as soon as practicable'.
Discussion
The voir dire issue is primarily whether in this factual situation section 60(1)(d) has been breached and if so whether, therefore, the interception was not authorised per section 47, and if not, whether evidence of the calls is inadmissible or could be admitted pursuant to section 75.
Essentially what the Act envisages should have happened was that as soon as practicable after the Managing Director of the carrier had been notified of the issue of the warrant on 11 May 2010, a copy of the warrant certified by a certifying officer of SA Police (a Deputy Commissioner) should have also been given to the Managing Director.
In this case an uncertified copy of the warrant was included with the 11 May notification. However, in fact, while a certified copy was duly obtained from the Deputy Commissioner and then sent by registered post on 21 May to the Managing Director of the carrier at its last known address, for reasons which are not clear but on balance likely to be due to the carrier, it did not reach the Managing Director of the carrier at that time. When this was notified to SA Police on 28 October, a further certified copy of the warrant was posted on 4 November and received on 8 November 2010.
All of this is predicated on the accused’s argument that non-compliance with the section 60(1)(d) obligation to, subsequent to the initial section 60(1)(c) notification, also provide a certified copy as soon as practicable, is encompassed within the “notification” required by section 47(a). The DPP disputed this interpretation.
This issue has been very recently considered by the Court of Appeal of Western Australia in Geldert v The State of Western Australia.[13] The Court of Appeal held that the section 47(a) requirement to notify the carrier meant the section 60(1)(c) notification, and that the section 60(1)(d) requirement to send along a certified copy afterwards was separate and was not part of the “notification” referred to in section 47(a). In other words the “notification of the issue of the warrant” requirement in section 47(a), refers only to “the Managing Director of that carrier … (being) … informed forthwith of the issue of the warrant” in section 60(1)(c), and not to the further requirement to subsequently provide a certified copy of it.
[13] [2012] WASCA 226.
McLure P, with whom Martin CJ and Jazza JA agreed, said:
49 Having regard to the text of s 47 and s 60(1) and the context, structure and purpose of the Act as a whole, the notification referred to in s 47(a) is confined to that required under par (c) of s 60(1) of the Act. My reasons for that conclusion are as follows.
50 Section 60(1) requires the certifying officer of the agency to whom the warrant has issued to take two separate and distinct steps within different statutory timeframes. Under par (c), a certifying officer of the agency shall cause the Managing Director of the relevant carrier to be informed forthwith of the issue of the warrant. The second step, in par (d), is that the certifying officer of the agency shall cause a certified copy of the warrant to be given as soon as practicable to the Managing Director of the carrier. Thus the two separate steps require different acts within different timeframes. The timeframe for step one is more stringent than that for step two. ‘Forthwith’ means immediately. The word ‘practicable’ is not defined in the Act. It has its natural and ordinary meaning of ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’: Wright v Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [26], [148].
51 The natural and ordinary meaning of the text of s 47(a) dovetails with that in s 60(1)(c). In particular, the requirement in s 47(a) of receipt by the Managing Director of the carrier of notification of the issue of the warrant has its direct correlative in s 60(1)(c), which requires that the agency cause the Managing Director to be informed of the issue of the warrant. A person who has been informed of the issue of the warrant has received notification thereof. The requirement in s 60(1)(d) for service of a certified copy of the warrant is separate and distinct and goes beyond notification of its issue. Further, the requirement in s 60(1)(c) would be redundant if the requirement in s 60(1)(d) was a necessary precondition of the agency’s authority under s 47 to intercept communications under a validly issued warrant.
52 The natural and ordinary meaning of s 47(a) is also consistent with the context, structure and purpose of the Act as a whole. First, the scheme of s 60(1) is repeated in s 60(3) dealing with revocation. Interception can only begin and must end on notification of the issue of the warrant and its revocation respectively to the carrier ‘forthwith’, with service of a certified copy of the relevant instrument to follow as soon as practicable.
53 Secondly, the authority conferred by a Part 2-5 warrant can only be exercised by an approved officer or member, or class of officer or member, of an agency. The authority under the warrant is not in terms extended to the carrier operating the telecommunications system. The function of the carrier is limited; it is confined to doing what is technically necessary to facilitate the interception of the communications by authorised officers of an agency. Notification of the issue of the warrant to the carrier under s 47(a) links with the mandatory role of the carrier under s 47(b).
54 Thirdly, there is no compelling justification for requiring that service of a certified copy of the warrant on the carrier be a precondition to the existence of the agency’s authority to commence interception in circumstances where there is a valid warrant which is in force from the time of its issue (s 54) and only for a limited period. That is particularly so when the statutory timeframe in s 60(1)(d) involves matters of judgment which will vary according to the circumstances of the case at hand. Such a requirement is also incompatible with the legislative scheme for urgent telephone applications which permits the issue of a warrant even in advance of receipt of sworn evidence.
55 Based on the scheme of the Act as a whole, the purpose of the requirement to serve a certified copy of the warrant on the carrier is to establish an audit trail connecting notifications under s 60(1)(c) to the certified copy of the relevant warrant in order to underpin the transparency and accountability secured by the extensive reporting obligations in the Act, including those of Managing Director of carriers in s 97 of the Act.
56 Accordingly, the intercepted information obtained under warrants H10014-00 and H09260-00 was ‘lawfully intercepted information’ admissible under s 74.

Accordingly the Court of Appeal of Western Australia was clear that non-compliance with the section 60(1)(d) requirement to give a certified copy of the warrant to the carrier’s Managing Director was not a breach of section 47(a). Rather, the requirement to provide the certified copy was to provide an audit trail to underpin accountability and the reporting obligations in the Act, in particular those of the Managing Director of the carrier.
Indeed one can also imagine that given the strict requirements of the Act and the significant penalties for breaches of the Act, it would be obviously useful, convenient and valuable for the Managing Director of the carrier to get and retain a certified copy of the warrant under which they had facilitated an interception, lest it ever be suggested, perhaps in civil or other proceedings by a subscriber, that the carrier had breached the Act in allowing the interception. Possession of a certified copy of the warrant would provide a carrier with an immediate, convenient and cogent justification of their actions, for their own defence and protection.
Given this, and that there are a raft of other protections in the Act concerning actual interceptions and the evidentiary use of material gained thereby and other reporting and accountability requirements, the subsequent requirement to give the carrier a certified copy of a lawful warrant that they have already been notified of, has the distinct flavour of a provision for the benefit of the carrier to enable them to maintain a readily auditable justification of and defence for their actions.
The defence however submitted that I should not follow the decision of the Court of Appeal of Western Australia in Geldert v The State of Western Australia, arguing that it was distinguishable on its facts and/or that it was in any event wrong.
In Farah Constructions v Say-Dee P/L[14] the High Court unanimously held that trial judges in Australia should not depart from decisions in intermediate courts in another jurisdiction on the interpretation of Commonwealth legislation unless they are convinced that the interpretation is plainly wrong.
[14] (2007) 230 CLR 89 at 151-152.
The defence submitted that the decision of the Court of Appeal of Western Australia was plainly wrong, submitting that the section 47(a) notification requirement encompassed both the notification and the subsequent provision of the certified copy of the warrant required by section 60(1)(c) and (d), in essence on the basis of the construction of the sections in light of the overall scheme of the Act. The defence argued that these provisions should properly be characterised as important checks and balances protecting the rights of the individual, and interpreted accordingly. For example, the defence argued that the receipt of the certified copy could and should be seen as a further check that the correct service was in fact being intercepted.
It was submitted that the approach taken by a Western Australian District Court Trial Judge in a ruling delivered earlier in 2012 in the matter of Tanevski[15] should be preferred to the subsequent decision of the Western Australia Court of Appeal in Geldert on this point. It must be observed that the Western Australia Court of Appeal specifically considered the Tanesvski ruling,[16] and rejected it.
[15] [2012] WADC 87.
[16] [2010] WASCA 226 at 35-37.
I have carefully reviewed the submissions of both the DPP and defence counsel on this topic, together with their cited authorities, and given the reliance placed on it by the defence I have closely considered the trial Judge’s reasons for ruling in Tanesvski.[17]
[17] Particularly at paragraphs 95-116 and 121.
In the final analysis, I am not persuaded that the unanimous decision of the Western Australia Court of Appeal in Geldert delivered on 9 November 2012 is ‘plainly wrong’. In short, the Court of Appeal’s analysis of the words themselves, and of the true purpose of the section 60(1)(d) as an audit and transparency requirement directed primarily to and in the interests of the carrier, against an existing statutory framework which in a plethora of other ways otherwise already strongly protects the individual against illegal or unauthorised interceptions is, with respect, more compelling and in any event far from being ‘plainly wrong’.
Conclusion as to the interpretation of and relationship between sections 60(1)(c), 60(1)(d) and 47(a) of the Telecommunications (Interception and Access) Act 1979
Accordingly, I hold that after having notified the Managing Director of the issue of the warrant under section 60(1)(c) a failure to subsequently give the Managing Director a certified copy of the warrant as soon as practicable under section 60(1)(d) does not result in a failure “to give notification of the issue of the warrant” pursuant to section 47(a) rendering the interception unauthorised per that section.
Accordingly, in my view the evidence was lawfully intercepted and is admissible pursuant to section 74 of the Act.[18]
[18] In coming to that conclusion, and for completeness, I indicate I have also considered whether on any other basis there was illegality or an unfairness to the accused which would justify the exclusion of the evidence on any other statutory or common law exclusionary basis, and I conclude that there was not.
Further issues
It is therefore strictly unnecessary to consider whether the actions of SA Police did or did not as a matter of fact amount to compliance with section 60(1)(d), and whether if they did not comply, the evidence should nonetheless be admitted pursuant to section 75.
If the Western Australian Court of Appeal and I are wrong about his, in deference to the submissions of the parties and for completeness, I set out a brief summary of the primary further issues argued.
Was the certified copy of the warrant given as soon as practicable
The first of the issues is whether the section 60(1)(d) requirement to cause a certified copy of the warrant to be given to the Managing Director of the carrier was carried out ‘as soon as practicable’.
I indicate that, as earlier mentioned, I find that in the totality of the circumstances of this case, having accepted the evidence of Detective Lange, that sending staff to the Post Office to personally mail by registered post the certified copy of the warrant to the Managing Director of the carrier on 21 May 2010 was ‘as soon as practicable’. On the other hand, if that had not been done and had the certified copy only been sent on 4 November 2010, I would find that was plainly not ‘as soon as practicable’.
Unfortunately, as the facts I have earlier found indicate, the significant complication in this matter is that the certified copy was sent on the earlier date but not received by the Managing Director at that time, and a further copy was sent at the later time when the error was realised.
For the sake of some attempt at brevity I will not set out in any detail the extensive submissions of counsel on this topic, both as to the facts and the law, however I have carefully considered them all.
The DPP submits that in any event the warrant was served as soon as was practicable. The defence submits it was not.
The DPP submit that SA Police’s obligation to cause the Managing Director of the carrier to be given a certified copy of the warrant is informed by section 28A of the Acts Interpretation Act (Cth) 1901 which provides what will be sufficient to comply with a Commonwealth Act that requires someone to be given something. Section 28A provides:
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a)on a natural person:
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate – by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
The DPP submits that SA Police did send the certified copy by pre-paid post to the place of business of the Managing Director of the carrier last known to the person serving the document by sending it by registered post on 21 May 2010, within the meaning of section 60(1)(d) of the Act and section 28A of the Acts Interpretation Act, and that as such section 60(1)(d) has been complied with.
The DPP also submits that in sending the certified copy to the Managing Director of the carrier on 21 May 2010, and then sending it again on 4 November 2010, having been told on 28 October 2010 that the carrier had changed its address and that the first one had not been received, that SA Police still caused the Managing Director of the carrier to be given a certified copy ‘as soon as practicable’ within the meaning of section 60(1)(d). At the risk of over simplifying their position, the essence of this submission is that they sent the certified copy off shortly after the warrant was issued, and as soon as they were later told it had not been received, sent it again, and that in adopting that course they had indeed in an overall sense provided the document as soon as practicable for them to do so.
At the risk of over oversimplifying the defence position, the defence argues that this provision is a stringent safeguard, there for the purpose of and designed to protect the public, and that what happened was indeed a failure to comply with the requirement to give a copy of the warrant as soon as practicable to the Managing Director. In essence the defence submitted that in a range of ways SA Police could and should have acted more quickly and could have done more including double checking the address and examining addresses they had from the carrier on correspondence. The defence submitted that whether you view it subjectively from the perspective of SA Police, or objectively in terms of the time it ultimately did take, it was not done as soon as was practicable.
If the certified copy of the warrant was not served as soon as practicable, should the evidence nonetheless be admitted pursuant to section 75 of the Act
Section 75 of the Act provides that evidence may still be given where there is a defect in connection with the issue of or the execution of a warrant. At the relevant time[19] section 75 provided as follows:
[19] It should be noted that this version of the section is drafted differently to the version applicable in Geldert, the Western Australia Court of Appeal noting at para 8 that the governing version of the legislation applicable in that case was as at 12 December 2009. Counsel agreed the governing version applicable to this case is as at 15 April 2010, as depicted per the compilation dated 20 April 2010. Indeed section 75 in the agreed April 2010 version is drafted differently to the version set out at para 60 in Geldert.
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.
In short, where there is an irregularity or defect in connection with the issue or execution of a warrant, evidence intercepted under that warrant may still be given so long as the irregularity or defect is not substantial and in all the circumstances the court decides that the irregularity or defect should be disregarded.
In Geldert the Court of Appeal had already held that non compliance with section 60(1)(d) did not enliven section 47 so as to render the interception unauthorised, however for completeness and as it was concerned to correct a contrary ruling expressed by a Western Australian trial judge[20] that breaches of (sections relating to stored information equivalent to) 60(1)(c) and (d) were not irregularities that might be excused by (sections relating to stored information equivalent to) section 75, it addressed this issue briefly.
[20] In Tanevski (No 5) [2012] WADC 64 (referred to in Geldert at [7] and [62] as Tanevski (No 1)).
The Court of Appeal held that an irregularity as defined in section 75 ‘in connection with’ either the issue or the execution of a warrant is intended to capture all the requirements under the Act non compliance with which would result in intercepted information obtained under a warrant or a purported warrant contravening section 7(1). The court held that, on any view, that would include the time requirements of section 60(1)(c) and (d).[21] In other words, if failing to serve a certified copy of the warrant as soon as practicable is a breach that might activate section 47, then it is nonetheless an irregularity that will potentially attract section 75 to potentially allow the evidence to be called in any event.
[21] [2012] WASCA 226 at 65.
The issue would then be whether, if there was non-compliance with section 60(1)(d), it was a substantial defect or irregularity in connection with the issue of execution of the warrant. In Geldert the court held that the delays in service of the certified copies in that case of 29 and 43 days respectively were a breach of section 60(1)(d), but that such irregularities were not substantial. The court did not discuss in any detail why it so found, although it did observe that the certified copies were provided prior to the expiry of the warrants.
In my view whether any irregularity will amount to a substantial irregularity will depend on all the circumstances. Those circumstances will include the irregularity itself, but will also include the totality of the circumstances surrounding the irregularity. In my view the scheme of the Act and the important balance it seeks to achieve between allowing serious crime to be investigated and prosecuted in the courts and preventing any unlawful interference with the privacy of individuals, must be important in any such assessment. In particular, that assessment ought to be particularly influenced by whether the rights and protections of the Act have been materially subverted, evaded or not effected, such that an accused has lost a valuable protection, guarantee or the like.
Turning to the specifics of a section 60(1)(d) breach, the first step might be to consider the extent of the breach of that section. For example, a longer delay would ordinarily be more serious than a shorter one, never serving the certified copy would ordinarily be more serious than eventually serving it, and not complying with section 60(1)(d) at all because no-one has bothered to obtain a certified copy of the warrant at all would be more serious again.
This analysis highlights and in some sense revisits the issue of who section 60(1)(d) is designed to protect. If the section is primarily designed to address and/or protect the carrier, by ensuring the carrier is given a certified copy of the warrant under which they are intercepting a subscriber’s phone so that they can retain it for audit, transparency, and as a ready convenient and conclusive defence and justification for their actions, then in a general sense the most important issue is that a certified copy is (a) actually obtained and (b) given to the carrier.
Also relevant but of perhaps secondary importance is the issue of timing; the sooner the carrier gets the certified copy the better as the carrier will from that time be able to immediately produce the certified copy for audit purposes, use it to facilitate their reporting obligations or produce it should their actions be called into question. However, circumstances where a carrier would be required as a matter of urgency to undergo audit, report pursuant to the Act or defend itself against a subscriber in a matter of a few days, weeks or even a few months after the issue of the warrant would seem quite remote. It is more likely that any such audit or reporting would occur only periodically and predictably, and any attack or criticism or indeed litigation by a subscriber would occur at a later stage after the completion of the warrant when the existence of it is disclosed in criminal or other proceedings and a subscriber thereby becomes aggrieved in that context. The ‘as soon as practicable’ provision may well be there to emphasis that the party with the warrant must indeed give some contemporaneous priority and importance to obtaining and providing the certified copy to the carrier, and not let it slide or leave it to later when it may be forgotten.
It is plain from the Act that interception may start immediately upon notification per section 60(1)(c), which will ordinarily be prior to the satisfaction of section 60(1)(d), so it cannot be envisaged that the certified copy is to act as a check or double check prior to the commencement of interception. However, and this is one of the aspects particularly emphasised by defence counsel, it could if the carrier wished to do so be used as a double check, when received, that the correct service is in the course of being intercepted. In other words, a carrier could double check the certified copy against the notification that they earlier received to ensure that they relate to the same service, or subscriber (in the case of a ‘named person’ warrant). Defence counsel also argued that the statutory framework in effect imposed an ‘obligation to receive’ on the carrier.
If contrary to the Full Court in Geldert the section is as defence counsel submit primarily an important check and balance to protect the privacy of the subscriber, then from the subscriber’s point of view indeed the sooner the certified copy of the warrant is served, the sooner a carrier would be able to, if they wanted to, double check that they were intercepting the correct service by comparing it to the initial notification. There is no statutory duty to do that, nor any evidence whether a carrier would do it, but they could indeed do that. Then, if they were intercepting the wrong service, they would no doubt cease doing so.
There would be a plethora of ways in which one might think the interception of an incorrect service might in any event picked up by a carrier or SA Police’s own checks, or by the contents of the intercepts themselves not appearing to relate to the person in respect of who the warrant was issued, well before the receipt of a certified copy of the warrant were received, and indeed the circumstances where the substance of the certified section 60(1)(d) notification would depart from the substance of the likely identical yet uncertified section 60(1)(c) information such as to enable it to comprise a meaningful check, are unclear.

Whether or not a section 60(1)(d) certified copy of the warrant is served, if indeed the wrong service were to be intercepted, the Act provides a comprehensive prohibition on the disclosure, use, dissemination and admissibility of such material in any proceedings. So the double check, if such a check could amount to a meaningful check that the right service was being intercepted, might potentially cease the interception of the wrong service, however any information obtained is already comprehensively banned from any disclosure, dissemination or use by the Act.
Accepting for present purposes that the Full Court in Geldert was right, and that the section 60(1)(d) requirement to serve a certified copy of the warrant is primarily directed towards transparency, accountability and audit primarily re the carrier, and in some respects for the benefit of the carrier in providing it with a ready defence of its actions in conducting the interception, then I would find that in the totality of the circumstances the irregularity was not substantial. The copies were initially obtained in a timely way and therefore potentially available to the carrier from the outset, and whilst one was unsuccessfully sent on 21 May, another was sent as soon as it became apparent that the carrier had not received the first one. It was accordingly available to the carrier at all relevant times, and was physically provided to the carrier well before it would be likely that it may need to use it to defend its actions in relation to any audit[22], reporting or more particularly well before any likely complaint might arise from a subscriber. Accordingly, if contrary to Geldert a breach of section 60(1)(d) means the interception was unauthorised per section 47(a) then I would find the irregularity was not substantial and should be disregarded, and the evidence would accordingly be admissable pursuant to section 75.
[22] Although there was no evidence as to when any specific audit might be carried out, had there been an audit in the months between the issue of the warrant in April and when the certified copy was finally recieved on 8 November, it is clear that for all that time a certified copy was in existence at SA Police and could have been provided at the request of the carrier to satisfy the audit.
In these circumstances it would also be unnecessary to decide whether in fact, as submitted by the DPP and strongly opposed by the defence, the actions of SA Police in sending the certified copy of the warrant by registered post on 21 May 2010 to the last known (to the sender) address of the carrier amounted to service within the meaning of section 60(1)(d) and section 28A of the Acts Interpretation Act 1901, or whether their actions in sending the document on 21 May as they did, and again on 4 November upon learning of the change of address and non receipt of the first document overall amounted to providing the document as soon as practicable. There is an argument that if the obligation is to be assessed subjectively, it was served as soon as was in fact practicable to SA Police given what they knew and the change of address about which they were not notified. On the other hand, if the obligation is to be assessed entirely objectively, the document was not received as soon as it could have in an objective sense been practicably provided, for example if it had been received when it was first sent or had it been sent earlier to the correct new address.
Conclusion
I conclude that a valid warrant was issued, that section 60(1)(c) of the Telecommunications (Interception and Access) Act 1979 (‘the Act’) was complied with, and that the interceptions in question were intercepted pursuant to a valid warrant and the section 60(1)(c) notification.
On the authority of the recent Court of Appeal decision of Geldert v The State of Western Australia[23] I hold that non-compliance with the requirement in section 60(1)(d) of the Act does not enliven section 47(a) of the Act such that the telecommunications intercepted pursuant to a valid warrant in this matter were not authorised.
[23] [2012] WASCA 226 delivered on 9 November 2012.
It is therefore not necessary to decide whether the actions of SA Police amounted to non compliance with section 60(1)(d).
No other basis is established for the exclusion of the material.
Accordingly the intercepted material in question is admissible pursuant to section 74 of the Act.