Regina (C'Wealth) v Baladjam [No 18]

[2008] NSWSC 1440

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 18] [2008] NSWSC 1440
HEARING DATE(S):	16/05/08;
JUDGMENT DATE :	27 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Order sought in paragraph 1 of the Notice of Motion of 13 May 2008 is refused and the Motion is dismissed.
CATCHWORDS:	CRIMINAL LAW - Criminal Code Act 1995 s 13.6 - Evidentiary Certidficate under s 18(2) of Telecommunications (Interception) Act 1979 - Content of evidentiary certificate an averment.
LEGISLATION CITED:	Criminal Code (ACT) Criminal Code Act 1995 Quarantine Act Road Transport (Alcohol & Drugs) Act Telecommunications (Interception) Act 1979
CASES CITED:	Holmden v Bitar (1987) 27 A Crim R 255 per Cox J Kerney v Lewis [2005] 155 A Crim R 95
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 18] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	Ms W Abraham QC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown H. Burmester QC; Ms K Richardson - C'Wealth Attorney General M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma
SOLICITORS:	Commonwealth DPP Australian Government Solicitor Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: TUESDAY 27 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 18]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Criminal Code s 13.6 – Evidentiary Certificate under s 18(2) of Telecommunications (Interception) Act 1979 – averments in indictment

1 HIS HONOUR: This is an application brought on behalf of the accused Khaled Cheikho. By notice of motion dated 13 May 2008, the accused sought, relevantly for present purposes, the following order:

“1. An order that the evidentiary certificates of Paul O'Brien in respect of telecommunication service [email protected] dated
(a) 31 August 2005;
(b) 6 September 2004;
(c) 3 March 2005;
(d) 3 June 2004.
be excluded as being in contravention of section 13.6 Criminal Code .”

2 In a separate decision given today, I have set out details concerning the nature of the case, the law and details of the Crown case involving all of the accused, including Khaled Cheikho. There is no need for me to repeat those matters in this decision.

3 The separate decision related to an argument that s 18(2) Telecommunications (Interception) Act 1979 was unconstitutional as offending the Australian Constitution. The present argument is set on a much lower plateau. It relates, however, to the same evidentiary certificates referred to in the earlier decision. Once again, I will not set out all the details as to the circumstances in which the certificates were given. Those circumstances are set out in the separate decision and may be taken to be part of the present judgment.

The argument

4 Mr Lange for Khaled Cheikho presented the argument on his client's behalf. It is a simple argument. It raises the issue whether the evidentiary certificate of Paul O'Brien is inadmissible, or otherwise impermissible, pursuant to the provisions of s 13.6 of the Criminal Code Act 1995 ("Criminal Code").

5 Section 13.6 is in the following terms:

“A law that allows the prosecution to make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an offence; or
(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.”

6 It is common ground that the offence with which the accused is charged is one that is directly punishable by imprisonment. Against this background, Mr Lange submitted that the term "averment", as used in s 13.6 Criminal Code, is not limited to assertions in pleadings; and that the expression is sufficiently broad to cover assertions made outside of pleadings and, therefore, also evidentiary certificates.

7 Mr Lange exhorted the Court not to make a literal interpretation of s 13.6 Criminal Code. Rather, he submitted a purposive approach should be taken to the construction of the section. Mr Lange argued that the function of an averment and that of an evidentiary certificate were very similar.

8 The matters on which Mr Lange placed particular reliance were these: First, he sought comfort from government documents which equated averments and evidentiary certificates for the purposes of policy discussions and the like. For example, he referred to the "Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers". This had been issued by, or under, the authority of the Minister for Justice Customs and suggested, as a guide, that averments or evidentiary certificates should be framed in line with s 13.6 of the Criminal Code. Mr Lange also referred to the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs "Cracking down on copycats: The Enforcement of Copyright in Australia." This report was dated 4 December 2000 and was critical of affidavit procedures on the basis that they were likely to operate in the nature of an averment.

9 Secondly, Mr Lange spoke of the "evil" arising from the use of averments and evidentiary certificates. In relation to the latter, he noted that such certificates prevented an accused from contradicting the evidence adduced by the Crown, even where there was irrefutable factual contradiction of the allegations contained in the certificate. Indeed, he suggested that such a situation might lead starkly to an allegation of abuse of process. Mr Lange referred to Holmden v Bitar (1987) 27 A Crim R 255 per Cox J. In that case a defendant had been charged with bringing in a number of tins of pâté in contravention of the regulations. The tins had been confiscated and destroyed and the Crown relied upon an averment as to the contents of the tins. The magistrate held that, while the averment of the contents of the tins by the prosecution sufficed to prove the contents, the destruction of the tins and contents had deprived the accused of an opportunity to challenge the nature of the contents. The magistrate dismissed the information laid out in the Quarantine Act as an abuse of process. Cox J, in the Supreme Court of South Australia, upheld the magistrate's decision on this point. He said the magistrate "was justified in treating this as one of the rare instances of a proved abuse of process". (The problem, however, in this case was not the averment as such. Rather, it was the combined effect of the averment and the fact that the tins had been destroyed).

10 Mr Lange acknowledged that the decision of Gray J in the Supreme Court of the Australian Capital Territory in Kerney v Lewis (2005) 155 A Crim R 95 stood directly in the way of his submission. Nevertheless, he asked the Court to take an expansive view of the section and to come to a different conclusion than did Gray J.

11 The Crown made three submissions. First, Mr Bellew SC submitted that s 18 of the TIA 1979 is not a law that allows the prosecution to make an averment, that is, the section simply did not apply. Secondly, Mr Bellew argued that a s 18 certificate is not an averment as that expression has been defined or explained in recent authority. Mr Bellew referred directly to the decision of Gray J in Kerney v Lewis. Thirdly, the Crown examined the relevant legislative history of s 18(1) and its predecessor. Senior Counsel placed reliance on the explanatory memorandum and the Second Reading Speech at the time the original section was introduced. These showed that the legislation was to provide for evidence of purely formal matters in respect of acts done by Telecom employees for the purpose of enabling the execution of an interception warrant. The provision was designed to protect the identity of Telecom employees engaged in such activities. Mr Bellew argued that these aids to interpretation, as well as the subject matters of the certificate, reinforced that the matters to be contained in such a certificate were formal matters of evidence only and did not go to any issue before the Court.

Resolution of the issues

12 I agree with both counsel that the point at issue here is a simple one. The language of s 13.6 is clear. It must follow, in my opinion, that s 18 does not answer the description "a law that allows the prosecution to make an averment". It is not inappropriate in relation to this conclusion to note the details concerning the section contained in the MCCOC report (page 121):

“Averment provisions in some legislation permit the prosecutor to allege matters of fact in an information or complaint. The averment amounts to prima facie evidence of the matters averred...
The committee believes that averment provisions are generally inappropriate. The Code provides that the prosecution must not aver the intention of the defendant or other fault element expressed by the provision creating the offence, nor may it use averments in cases where the offence is directly punishable by imprisonment.”

13 Despite Mr Lange's earnest endeavours to persuade me to the contrary, I consider that a literal reading of the section is the only one that is warranted. There is no ambiguity or absurdity in the language of the section. Giving the words of the section their ordinary and natural mention, it is clear that a s 18 certificate is not a document which has been “made” by the Director of Public Prosecutions, nor is s 18 a law that allows the prosecutor to make an averment. On the contrary, the certificate issued pursuant to s 18 of the TIA 1979 is a document which has been prepared, that is made, by an officer of the telecommunications carrier. The language of the section is consistent with the usual and well-understood concept of an averment as an allegation of a matter of fact contained in an indictment or complaint.

14 Secondly, I do not, in any event, consider that a s 18 certificate is an averment. The decision of Gray J in Kerney v Lewis is both persuasive and, in my view, correctly decided. In that case the appellant had been convicted of driving a motor vehicle with level 3 alcohol in his blood. He had been stopped by police and his alcohol screening test had produced a positive result. There was a subsequent breath analysis test and at the hearing before the magistrate's court a certificate under the Road Transport (Alcohol and Drugs) Act, s 41 was put in evidence.

15 The respondent submitted that,although s 41 referred to a certificate and gave evidentiary standing to the certificate, it was "in essence and in substance" an averment. The appellant argued that the breath analysis certificate section was a statutory aid to proof and as such was a way of expressing an "averment". The appellant relied upon the Criminal Code (ACT) which is in similar terms to s 13.6 of Criminal Code. Indeed, in one respect it was expressed more widely than the Commonwealth Criminal Code. It was in these terms:

“A law that allows a prosecution to make an averment ( however expressed ) does not allow the prosecution -
(a) to aver any fault element in an offence; or
(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.” (underlining added).

16 Gray J's conclusion was expressed at paras 48 and 49 of the judgment. His Honour said:

“In my view the way that section 61 of the Criminal Code is structured gives no support to the argument put. Section 61 does not invalidate laws allowing averments. It only places a restriction on the use of such statutory provisions by the prosecution. Those limits are not to allow the averment of any fault element of a defence, or the make 'an averment in prosecuting for an offence'. It is the act of the prosecution that is limited and, in that context, that act can only be sensibly applied to the charging document...in the result, I consider that the evidentiary aid provided by section 41 of the RT (A and D) Act is unaffected by section 61 of the Criminal Code .”

17 Mr Lange's reliance on government material indicates no more than that there may exist a possible groundswell of opinion that is critical of the use of evidentiary certificates. It may well be, as Mr Lange argued, that this groundswell may lead to legislative changes of one kind or another. For the present, my task is to construe s 13.6 of the Code in its own terms. Those terms are clear. In my opinion, there can be no justification for suggesting that s 18 of the TIA 1979 is a law that allows the prosecution to make an averment. Nor can there be any real suggestion to suggest that an evidentiary certificate of the kind permitted by s 18 is "an averment" within the meaning of s 13.6 of the Code.

18 The order sought in paragraph 1 of the notice of motion of 13 May 2008 is refused and the application is dismissed.

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