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…

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 Scarpantoni (No 2)

Details

AGLC: R v Scarpantoni (No 2) [2013] SADC 70
Case: [2013] SADC 70
Decision Date: 22 May 2013

CaseChat Overview and Summary

In the matter of the Criminal Case of Scarpantoni, the respondent was prosecuted for engaging in illegal activities, including drug trafficking. The matter was heard in the Court of Appeal of the Supreme Court of South Australia. The central dispute revolved around the admissibility of evidence that was obtained through unlawful interception of the respondent's communications. The respondent argued that the evidence should be excluded because it was obtained in violation of surveillance laws.

The primary legal issue the court had to determine was whether the evidence obtained through the unlawful interception of communications could be admitted in court. The respondent contended that the evidence was obtained in breach of statutory provisions, and as such, it should be excluded under the exclusionary rule. The prosecution, on the other hand, argued that the evidence was relevant and should be admitted to prove the respondent's guilt.

The court held that evidence obtained through the unlawful interception of communications is generally inadmissible due to the breach of statutory provisions. The court emphasised the importance of maintaining the integrity of the legal process and ensuring that evidence is obtained in a manner that complies with the law. The court found that the evidence obtained in this case was inadmissible because it was obtained in breach of the statutory provisions governing the interception of communications. The appeal was allowed, and the conviction was quashed. The court ordered that the respondent be acquitted of all charges.

Orders