Shane Anthony Scott v Benjamin Joseph Aulich; and Michael Anthony Papandrea (No 2)
[2023] ACTMC 3
•23 January 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Shane Anthony Scott v Benjamin Joseph Aulich and Michael Anthony Papandrea (No 2) | ||
Citation: | [2023] ACTMC 3 | ||
Hearing Date(s): | 10 November 2022 | ||
DecisionDate: | 23 January 2023 | ||
Before: | Special Magistrate Crompton | ||
Decision: | Each application to cross examine witnesses at Committal hearing is dismissed | ||
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – application to cross-examine witnesses at committal proceedings – operation of s.90AB Magistrates Court Act 1930 (ACT) – whether interests of justice could adequately be satisfied by leaving cross-examination of witnesses to trial – whether application is collateral challenge to warrant or MCO authority – whether Evidence Act 2011 (ACT) applications should be made at trial | ||
Legislation Cited: | Australian Federal Police Act 1979 (Cth) | ||
| Cases Cited: | BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 | ||
Parties: | Benjamin Joseph Aulich (Applicant) | ||
Representation: | Counsel Mr D Campbell KC (Applicant) Mr S Pararajasingham (Applicant) Mr M Tedeschi AM KC (Respondent) | ||
| Solicitors Aulich Criminal Law (Applicant) Kamy Saeedi Law (Applicant) Director of Public Prosecutions (Respondent) | |||
File Number(s): | CC2020/14613 and 14614 |
SPECIAL MAGISTRATE CROMPTON:
INTRODUCTION
1.There are two defendants. The first is Benjamin Joseph Aulich who has been charged with conspiracy to deal with money which was the proceeds of crime, in contravention of s.48 of the Criminal Code 2002 (ACT), and with recruiting people to assist in criminal activity, in contravention of s.655(1) of the Criminal Code 2002 (ACT).
2. The second defendant is Michael Anthony Papandrea who has been charged with conspiracy to deal with money which was the proceeds of crime, in contravention of s.48 of the Criminal Code 2002 (ACT) and s.114B of the Crimes Act 1900 (ACT).
3. Each defendant makes an application pursuant to s.90AB of the Magistrates Court Act 1930 (ACT) to cross-examine witnesses at their upcoming committal hearing.
DEFENDANT PAPANDREA’S APPLICATION
4. Mr Papandrea’s application is to cross-examine three witnesses at the committal hearing being UCO 4600973 (also know as Alex Torosian and UCO1), UCO 5993939 (also known as UCO2) and Constable Wayde Barnes.
5. The grounds for the orders sought are that: (A) identified issues require exploration ahead of trial in order to ensure the applicant is afforded a fair trial and is aware of the precise limits of the evidence to be adduced against him; (B) questioning directed to the identified issues has the capacity to ground an application for exclusion of substantial parts of the Crown case and; (C) the interests of justice call for these matters to be carefully considered well in advance of the trial.
6. The application is directed towards two issues being: (1) the validity of the major controlled operation by reference to the conduct of the AFP and; (2) the admissibility of the covert recordings conducted without warrant under s.38 of the Surveillance Devices Act2004 (Cth).
7. The first issue is identified as the validity of the Major Controlled Operation (MCO) having regard in particular to the conduct of the AFP, and that undercover operatives are of obvious relevance to the issue given their conduct in purported compliance with the MCO authority.
8. Constable Barnes it is submitted is relevant as he applied for the MCO authority in the first instance and sought variations of the MCO during the course of the investigation. It is submitted that the records of conversation provide a transcript of matters discussed by the parties at the various meetings and the AFP statements outline the roles and functions of the relevant officers. However it is submitted that the brief is silent as to their understanding of the limits of the MCO authority and its iterations over time, and the subjective state of mind of the relevant AFP officers at the time that they took steps in purported compliance with the MCO authority.
9. It is submitted that an understanding of these matters is essential in determining the validity of the MCO authority and that these issues also engage the mandatory matters for consideration under the Evidence Act 2011 (ACT) namely subsections 138(3)(d) (the gravity of the impropriety) and 138(3)(e) (whether the impropriety or contravention was deliberate or reckless). It is submitted that consequently the purpose of the questioning is to interrogate whether the conduct of the AFP was authorised by the MCO authority.
10. As to the second issue the covert recordings were conducted by UCO1 on 14 May 2020 and 17 June 2020 without a warrant. It is submitted that UCO1 is of direct relevance to the issue given that he made the recordings on both occasions without a warrant. It is submitted that Constable Barnes is relevant in his capacity as the person who made the formal application for the MCO authority and his capacity as a relevantly senior officer with oversight responsibilities.
11. It is submitted that beyond the bare disclosure that the covert recordings were conducted without a warrant the brief is silent as to the circumstances surrounding this irregularity, including the terms of any secondment or authority of UCO1 and Constable Barnes at the relevant point in time, the circumstances leading up to and at the time of the covert recordings, when it became apparent to the AFP that the recordings were unauthorised, whether the AFP received any advice about the irregularity and what steps were taken on receipt of any advice. It is submitted that these are matters which are central to determining the admissibility of the covert recordings and engage the mandatory matters for consideration under subsections 138(3)(d) (the gravity of the impropriety) and s.138(3)(e) (whether the impropriety or contravention was deliberate or reckless).
12. It is submitted that the purpose of the questioning is to explore the admissibility of the covert recordings on 14 May 2020 and 17 June 2020 and the consequences of any contravention.
13. As to both issues and for the purposes of subsection 90AB(2)(b) it is submitted that given the capacity of the evidence to ground a basis for exclusion of whole parts of the Crown case or indeed discontinuance by the Crown, that the interests of justice are not adequately satisfied by leaving cross-examination of the three witnesses to the trial.
14. It is further submitted that the interests of justice in permitting the parties to narrow the key issues well in advance of the trial are served through questioning the witnesses at committal.
DEFENDANT AULICH’S APPLICATION
15. Mr Aulich’s application is to cross examine four witnesses at the committal hearing being Shane Scott, Constable Wayde Barnes, Alex Torosian (UCO1), and Scott Moller. The grounds for the orders as sought are that the interests of justice cannot adequately be satisfied by leaving cross-examination of the witnesses about the issues to the trial.
16. The first identified issue is whether the Major Controlled Operation is ultra vires. Deputy Commissioner Ian McCartney granted a Major Controlled Operation under section 15GI of the Crimes Act 1914 (Cth) in relation to the defendant. It was varied on four separate occasions being 6 July 2020, 14 July 2020, 25 August 2020 and 21 October 2020. The MCO was granted to Shane Scott, the informant in the proceedings against the defendant.
17. It is submitted that the application must not have been granted unless Deputy Commissioner McCartney was satisfied on reasonable grounds that a serious Commonwealth or State offence has been, is being, or is likely to be committed (the application alleged that the defendant has been, is being, or is likely to be dealing with the proceeds of crime involving property or money over the amount of $100,000), and the nature and extent of the dealing with the proceeds of crime are such to justify the granting of the conduct of a Major Controlled Operation, and that the MCO will not be conducted in such a way that the defendant would be induced to deal with the proceeds of crime or that he would not otherwise have intended to deal with the proceeds of crime but for the operation of the MCO.
18. It is submitted that comprehensive information was obtained by the AFP from a number of banking institutions where the defendant held accounts, and that the information was readily available to the AFP prior to the application for the MCO. It is further submitted that forensic analysis of the defendant’s financial documents would have shown that the defendant has no unexplained wealth, that no payments of his mortgage or instalments to the Australian Taxation Office were ever made in cash, that he had not acquired any property of any value by cash payment and that had what is described as exculpatory financial information been provided to the Deputy Commissioner as part of the application for the MCO it is arguable that he may have refused the application.
19. It is submitted that the defendant was targeted in the MCO in circumstances where the Deputy Commissioner could not have reasonably been satisfied, on an objective test, that the defendant had been, was about to, or was likely to be involved in dealing with the proceeds for crime and in circumstances where the Deputy Commissioner could not properly consider the likelihood of inducement or other factors in s.15GI of the Crimes Act.
20. The second issue identified is the conduct of Alex Torosian (UCO1) and whether it was outside the scope of the MCO. It is submitted that the evidence disclosed in the prosecution brief does not address this issue or the above issue. The defendant is not privy to the information that was put before the Deputy Commissioner in support of the application for the MCO. It is submitted that the purpose of questions to be put to the witnesses is to explore the lawfulness and propriety of the conduct of the various witnesses and whether or not that conduct was permitted by the MCO authorisation.
21. The defendant seeks to question Shane Scott and Wayde Barnes about their understanding of what conduct was permitted within the scope of the MCO and their reasons for that understanding, whether they understood what is called the ‘bogus factual matrix’ to be permitted by the MCO authorisation, why it was not referred to in subsequent variations of the MCO, and whether they were provided with any advice in relation to what was or was not permitted by the MCO, what that advice was and by whom it was provided.
22. The defendant seeks to question Alex Torosian about what he understood the scope of the MCO to be and his reasons for that understanding, whether he took any steps to satisfy himself that his conduct was permitted and within the scope of the MCO, his understanding of what was put before the Deputy Commissioner as part of the application for the MCO or the variation of it, including his understanding of whether the bogus factual matrix was itself specifically authorised by the MCO, and his understanding of entrapment and the impact of his understanding of that concept on his actions throughout the investigation.
23. The third identified issue is about recordings of conversations between 24 April 2020 and 8 May 2020. It is submitted that Wayde Barnes apparently applied for and was granted a warrant pursuant to s.16 of the Surveillance Devices Act on 14 July 2020. The application is referred to in his statement but his reasons for doing so are not.
24. It is submitted that there is a strong inference that an application for a warrant for a surveillance device, pursuant to s.19 of the Surveillance Devices Act2004 (Cth), which has similar but less onerous conditions than s.15GI of the Crimes Act was never made prior to 14 July 2020 because objective evidence or AFP intelligence could not support such an application, and that had there been evidence to make such an application in April 2020 (at the time of the application for the MCO) then presumably one would have been made.
25. The defendant seeks to explore the legality of those recordings made between 24 April 2020 and 8 May 2020 and to question the witnesses as to why an application for a surveillance device warrant was not made before 14 July 2020, why an application was made on 14 July 2020 and the circumstances surrounding that application and whether the covert recordings were put before the Judicial Officer on 14 July 2020 to obtain the warrant pursuant to the Surveillance Devices Act.
26. The fourth identified issue is authorisation for the use of computer data. It is submitted that on 6 July 2020 the MCO was varied to allow Detective Superintendent Scott Moller to carry out certain conduct in the MCO, being engaging in unauthorised access to, modification, control and creation of restricted data including but not limited to documents records and entities, and to access, supply, create, manipulate and obtain restricted records and/or documents from Commonwealth and/or any other restricted computer system.
27. The authorisation mirrored the same authorisation for Shane Scott, Wayde Barnes and Andrew Radcliffe. It is submitted that it is arguable that the authorisations in relation to computer data are not specific enough to be valid, and that there is a strong argument that the authorisations did not allow the officers to create fake emails between the chain of command of AFP officers about $100,000 purportedly seized by the AFP, the reasons that UCO1 would not be charged, and have those emails sent to the defendant. The defendant seeks to question the witnesses to explore the lawfulness and propriety of the use of computer data as part of the MCO and any evidence obtained from it.
28. With respect to all issues it is submitted that any illegality and impropriety may ultimately form the foundation of an application pursuant to s.138 of the Evidence Act 2011 (ACT). It is submitted that the committal jurisdiction is the preferential jurisdiction to deal with such matters given the efficient and timely way the court can deal with such matters.
29. It is further submitted that the specific drafting of s.48(9) of the Criminal Code 2022 (ACT) provides a specific and additional power to dismiss the conspiracy charge prior to committal (if any) if the court believes it is in the interests of justice to do so.
30. It is submitted that issues of illegality or impropriety are also relevant to matters beyond s.138 of the Evidence Act, and that exploration of the issues at committal stage may also inform an application for a permanent stay of proceedings. It is submitted that in all of the circumstances it is in the interests of justice to allow cross-examination of the witnesses at the committal hearing.
LAW APPLICABLE TO BOTH APPLICATIONS
31. Section 90AB of the Magistrates Court Act 1930 (ACT) states:
90AB Witnesses generally not to be cross-examined at committal hearing
A witness must not be cross-examined at a committal hearing if—
(a) the hearing relates to a sexual offence (whether or not it relates also to another offence); and
(b) the witness is a complainant in relation to the sexual offence.
A witness (other than a witness mentioned in subsection (1)) must not be cross-examined at a committal hearing unless, on application by the party seeking to cross-examine the witness, the court is satisfied that—
(a) the party has—
(i) identified an issue to which the proposed questioning relates; and
(ii) provided a reason why the evidence of the witness is relevant to the issue; and
(iii) explained why the evidence disclosed by the prosecution does not address the issue; and
(iv) identified to the court the purpose and general nature of the questions to be put to the witness to address the issue; and
(b) the interests of justice cannot adequately be satisfied by leaving cross-examination of the witness about the issue to the trial.
In this section:
sexual offence means an offence against the Crimes Act 1900, part 3 (Sexual offences), part 4 (Female genital mutilation) or part 5 (Sexual servitude).
32. Section 90AB of the Magistrates Court Act was enacted by the Crimes Legislation Amendment Act 2008 (ACT), Schedule 1 Part 1.11.
33. The Explanatory Statement for the Crimes Legislation Amendment Bill 2008, stated ‘the purpose of the legislation is to avoid lengthy court delays, to protect witnesses from giving evidence twice, to encourage defendants to focus their minds on what the issues in the case are, and to enable defendants access to cross examine witnesses if the prosecution evidence does not adequately disclose the case or the details of a relevant issue.
34. The applicable law is s.90AB(2). Subsection (a) sets out four criteria and subsection (b) sets out one criterion, all of which must be satisfied. The defendant applicant bears the onus of satisfying the court that the conditions are satisfied.
CONSIDERATION OF DEFENDANT PAPANDREA’S APPLICATION AND PROSECUTION SUBMISSIONS
Issue one – Validity of the MCO by reference to the conduct of the AFP
35. The applicant seeks to cross-examine three witnesses in relation to the validity of the MCO by reference to the conduct of the AFP, those witnesses being UCO1, UCO2 and Acting Sergeant Wayde Barnes.
36. The prosecution submitted that this would in effect be an attempt to go behind the Major Controlled Operation (MCO) authority. This particular issue has already been comprehensively ventilated and decided upon by the Court in the decision Shane Anthony Scott v Benjamin Joseph Aulich [2022] ACTMC 4. In particular, the Court stated when concluding at [47] and [48]:
It is not possible for the defendant, in these proceedings, to collaterally challenge the Major Controlled Operation authority by attacking the sufficiency of the grounds on which Deputy Commissioner McCartney made it, or of the material placed before him in the MCO application. As Basten JA explained in Gould, material provided ‘to the issuing authority could only rationally support a challenge to the issue of the [MCO Authority] based on the insufficiency of the information supporting the applications’ (at [34]). An administrative act such as the issuing of the MCO authority cannot be challenged on this basis.
The defendant remains free, at trial, to challenge the validity of the MCO authority by reference to what it discloses on its face, and to interrogate whether particular conduct was authorised by the MCO authority, but there is no legitimate forensic purpose in seeking, by subpoena, to investigate the basis upon which it was granted.
37. The prosecution submitted that it would be impermissible for the Court to decide the same issue based on the same argument twice. I agree with that submission. The applicant has not identified the purported unlawful conduct of the AFP or the specific parts of the MCO Authority which are in question.
38. It is submitted by the prosecution that the AFP officers’ state of mind as to the validity of the MCO approval is irrelevant. I agree with that submission.
Issue Two – Admissibility of covert recordings without a warrant
39. The applicant seeks to cross-examine three witnesses in relation to the admissibility of the covert recordings without a warrant, being UCO1, UCO2 and Acting Sergeant Wayde Barnes.
40. The applicant seeks to cross-examine those three prosecution witnesses for the purpose of questioning to ‘explore the admissibility of covert recordings on 14 May 2020 and 17 June 2020’, without identifying any impropriety.
41. It is submitted by the prosecution that there is no legislative prohibition on the use of the recordings in the trial proper. It is submitted that s 38(1)(a) and (c) of the Surveillance Devices Act 2004 (Cth) (“SDA”) permitted UCO1 to covertly record the applicant with a listening device, when they were in conversation with each other, without a warrant.
42. Section 38(1) of the SDA states:
38 Use of surveillance devices without warrant for listening to or recording words in limited circumstances
(1) A federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person:
(a) if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979; or
(aa) if the officer belongs or is seconded to the Australian Commission for Law Enforcement Integrity—that is within the functions of the Integrity Commissioner set out in section 15 of the Law Enforcement Integrity Commissioner Act 2006; or
(b) if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 1979; if the use of that device for that listening or recording purpose is confined to circumstances where:(c) the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or
(d) the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words by paragraph (c) or by subsection (4).
43. The SDA has, as its purpose, the establishment of procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices and the restriction of the use, communication and publication of information that is obtained through the use of surveillance devices. Pursuant to s.14 of the SDA, a law enforcement officer may apply for the issue of a surveillance device warrant if the law enforcement officer suspects, on reasonable grounds that one or more relevant offences have been, or are about to be, or are likely to be, committed and that the investigation of those offences requires the use of a surveillance device.
44. It was opined in R v Giannakopoulas& Marzilli [2013] SASCFC 50 (“Giannakopoulas”) at [42] that the SDA:
‘exclusively regulates the use by Commonwealth law enforcement agencies of surveillance devices. Commonwealth law enforcement agencies are not free to ignore the provisions of the SDA and to rely on the provisions of the State equivalent act to authorise the use of a listening device. Further, state law enforcement agencies are empowered to make an application under the SDA for the investigation of Commonwealth offences.’
45. Section 6A(3) of the SDA defines ‘Law enforcement officer’ as a person mentioned in Column 3 of Item 5 to include an AFP employee (within the meaning of the Australian Federal Police Act 1979 (Cth)): See s 24 of the Australian Federal Police Act.
46. In the witness statements previously disclosed to the applicant as part of the brief of evidence, UCO1 states that he is an employee of the Australian Federal Police and is therefore a Commonwealth law enforcement officer pursuant to s 6A(3) of the SDA. It is therefore submitted that UCO1 is a federal law enforcement officer.
47. Section 4 of the SDA states except where there is express provision to the contrary, it does not intend to affect any other law of the Commonwealth or Territory that prohibits or regulates the use of surveillance devices.
48. The equivalent legislation in the Australian Capital Territory is the Listening Devices Act 1992 (ACT). The Explanatory Memorandum of the Listening Devices Bill 1992 (ACT) describes the intent of what became s.10 of that Act, as being to render evidence inadmissible in civil or criminal proceedings if it was obtained by a person by the unlawful use of a listening device. Section 4 of the Listening Devices Act prohibits the recording of a conversation without consent from one of the parties, unless that recording is to protect the principal party’s lawful interests, or in circumstances where the conversation is made for the purposes of publishing or communication.
49. Therefore, it follows that s 4(2) of the Listening Devices Act does not apply and the provisions of the SDA do apply.
50. In the matter of Giannakopoulas, the court considered the application of s.38 of the SDA and the equivalent state legislation. The defendants were charged with two counts of offering a benefit to a witness contrary to Commonwealth legislation where the UCO covertly recorded a conversation between himself, the defendant and another witness at Adelaide Airport. The conversation was recorded by South Australian Police using equipment answering the description of a listening device within the meaning of Listening & Surveillance Device Act 1972 (SA) and a device within the meaning of the SDA. No warrant was issued under either Act. The appeal was ultimately dismissed based on the following findings by the Court of Criminal Appeal:
The offence charged was an offence known to the law of the Commonwealth. The Listening & Surveillance Device Act 1972 (SA) is applicable as a law of the Commonwealth in its application to the investigation of a state offence by a police officer of this State.
The recording was not unlawful, no warrant was required to record the conversations because both the UCO and the witness were parties to the conversation.
In its application to the investigation of a Commonwealth offence, the SDA was applicable.The recording was not unlawful for want of compliance with the SDA.
51. On the evidence previously disclosed, UCO1 understood that he lawfully obtained the recordings pursuant to s.38 of the SDA. It is further submitted that the MCO was not required to authorise the recordings of the applicant and it is irrelevant to the question of admissibility in this instance, whether the AFP received advice about the lawfulness of the recordings.
52. It is therefore submitted that it is not in the interests of justice to cross-examine the three witnesses prior to trial in the Supreme Court.
CONSIDERATION OF DEFENDANT AULICH’S APPLICATION AND PROSECUTION SUBMISSIONS
Issue One – Whether the MCO is ultra vires
53. In relation to this issue the applicant seeks to cross-examine three witnesses, Detective Acting Superintendent Shane Scott, Acting Sergeant Wayde Barnes, and UCO1.
54. The prosecution submitted that this would in effect be an attempt to go behind the MOC authority. This issue was comprehensively ventilated and decided upon by the Court in the decision Shane Anthony Scott v Benjamin Joseph Aulich [2022] ACTMC 4. In that decision it was stated in conclusion at [47] and [48]:
It is not possible for the defendant, in these proceedings, to collaterally challenge the Major Controlled Operation authority by attacking the sufficiency of the grounds on which Deputy Commissioner McCartney made it, or of the material placed before him in the MCO application. As Basten JA explained in Gould, material provided ‘to the issuing authority could only rationally support a challenge to the issue of the [MCO Authority] based on the insufficiency of the information supporting the applications’ (at [34]). An administrative act such as the issuing of the MCO authority cannot be challenged on this basis.
The defendant remains free, at trial, to challenge the validity of the MCO authority by reference to what it discloses on its face, and to interrogate whether particular conduct was authorised by the MCO authority, but there is no legitimate forensic purpose in seeking, by subpoena, to investigate the basis upon which it was granted.
55. It is submitted by the prosecution that it would be impermissible for the Court to decide the same issue based on the same argument twice. I agree with that submission.
56. It is submitted that the issue of whether the applicant was entrapped to commit a crime is an issue for trial. The applicant has not identified a reason why the evidence of any of the three witnesses is relevant to this issue or why the evidence disclosed by the prosecution does not already address this issue.
57. It is submitted by the prosecution that the application or amendment to the MCO was not the responsibility of UCO1. Constable Barnes applied for and was authorised by the AFP Deputy Commissioner Ian McCartney a Major Controlled Operation Authority issued under Part IAB of the Crimes Act 1914 (Cth) numbered MCO -19-20/58. Inspector Scott was named the Principal Law Enforcement Officer. On 6 July 2020, Constable Barnes made a formal application on behalf of Inspector Scott to vary the MCO 19-20/58. Both officers detail in their statements, already disclosed to the applicant, their involvement regarding the application to amend the MCO on 6 July 2020.
58. The proposed general nature of the questions articulated by the applicant are impermissible as they seek to look behind in the MCO Authority and no issue of illegality has been properly identified. Any application made pursuant to s.138 of the Evidence Act 2011 (ACT), can be made in the Supreme Court.
Issue Two - Conduct of Alex Torisian (UCO1) outside the scope of the MCO
59. In relation to issue two, the applicant seeks to cross-examine three witnesses, Detective Acting Superintendent Shane Scott, Acting Sergeant Wayde Barnes, and UCO1.
60. The applicant’s complaint that the ‘bogus factual matrix’ does not appear in the list of controlled conduct authorised by the MCO and therefore, could not fall within the purview of the ‘nature of the conduct’ described in the MCO, is without foundation. The Crimes Act 1914 (Cth), does not require the MCO to detail the exact mechanism for the conducting of the investigation.
61. In Jin Wu v The Queen; Tu Phan v The Queen [2020] VSCA 94, the court observed at [82]:
Part 1AB creates a comprehensive legislative regime which permits certain persons to commit criminal offences, including serious criminal offences, without being liable at law for their conduct. I agree that as a matter of public policy, it is essential that this regime is taken seriously by those implementing it. It is not simply an internal document creating guidelines or a protocol. It is legislated in the Commonwealth Crimes Act, and a failure to implement the regime carefully may result in evidence being inadmissible. Part 1AB itself recognises this.
62. It is submitted by the prosecution that the MCO provided for authorisations in relation to money, which would indemnify the named police officers from criminal liability. However, the money used by police during the operation was legitimate. That is, the money used during the investigation, was not the proceeds of crime.
63. The proposed general nature of the questions articulated by the applicant are impermissible as they seek to look behind in the MCO Authority and no issue of illegality has been properly identified. Any application made pursuant to s.38 of the Evidence Act can be made in the Supreme Court.
64. It is therefore submitted that it is not in the interests of justice to cross-examine on any of the above stated issues prior to trial in the Supreme Court.
Issue Three – Illegal Recordings Between 24 April 2020 and 10 July 2020
65. In regard to issue three, the applicant seeks to cross examine the three witnesses, Detective Acting Superintendent Shane Scott, Acting Sergeant Wayde Barnes and UCO1 on the issue of audio recordings between 24 April 2020 and 8 May 2020. (It is assumed that the applicant actually means 10 July 2020 rather than 8 May 2020 as submitted.)
66. A brief summary of each of the recordings is stated below:
8 May 2020
UCO1 contacted Mr Aulich’s office specifically asking for Mr Aulich to provide legal advice; he was not available.
11 May 2020
UCO1 left a message on Mr Aulich’s work phone asking to return his call.
14 May 2020
UCO1 met Mr Aulich at the offices of Aulich Law. UCO1 and Mr Aulich spoke about the police interception and unlawful seizure of $100,000 in cash. Mr Aulich provided legal advice for a potential criminal charge and basic legal concepts. UCO1 communicated to Mr Aulich through written word and hand gesture that he is involved in importing cigarettes from China to Sydney. UCO1 stated that he needed to be able to show that the money is ‘clean’. UCO1 stated that the product is moved by his people but that he collected the cash. Mr Aulich advised to lay low and to be wary of any new customers. UCO1 discussed about wanting to find a way to receipt or explain the money another way. Mr Aulich responded that UCO1 would have to think carefully about this.
17 June 2020
UCO1 met with Mr Aulich at the Aulich Law offices. During this meeting, the pair discussed the likelihood of AFP returning the $100,000, possible criminal charges (proceeds of crime versus goods in custody charges) and the cost of legal representation. Mr Aulich asked UCO1 to think about a plausible explanation for the money to provide to AFP. Mr Aulich suggested providing future legal advice for potential business structures but not on the basis of committing a crime.
10 July 2020
UCO1 recorded a telephone conversation between himself and Mr Aulich. Mr Aulich advised that he had received written confirmation that AFP were not going to charge UCO1.
67. The prosecution submitted that ss 38(1)(a) and (c) of the Surveillance Devices Act2004 (Cth) (“SDA”) permitted UCO1 to covertly record the applicant with a listening device, when they were in conversation with each other, without a warrant.
68. Section 38(1) of the SDA states:
38 Use of surveillance devices without warrant for listening to or recording words in limited circumstances
(1) A federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person:
(a) if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979; or
(aa) if the officer belongs or is seconded to the Australian Commission for Law Enforcement Integrity—that is within the functions of the Integrity Commissioner set out in section 15 of the Law Enforcement Integrity Commissioner Act 2006; or
(b) if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 1979; if the use of that device for that listening or recording purpose is confined to circumstances where:(c) the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or
(d) the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words by paragraph (c) or by subsection (4).
69. ‘The SDA has, as its purpose, the establishment of procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices and the restriction of the use, communication and publication of information that is obtained through the use of surveillance devices. Pursuant to s.14 of the SDA, a law enforcement officer may apply for the issue of a surveillance device warrant if the law enforcement officer suspects, on reasonable grounds that one or more relevant offences have been, or are about to be, or are likely to be, committed and that the investigation of those offences requires the use of a surveillance device.’(see R v Giannakopoulas & Or [2013] SASCFC 50 at [31])
70. It was opined in R v Giannakopoulas & Or [2013] SASCFC 50 (“Giannakopoulas”) at [42] that the SDA:
‘exclusively regulates the use by Commonwealth law enforcement agencies of surveillance devices. Commonwealth law enforcement agencies are not free to ignore the provisions of the SDA and to rely on the provisions of the State equivalent act to authorise the use of a listening device. Further, state law enforcement agencies are empowered to make an application under the SDA for the investigation of Commonwealth offences.’
71. Section 6A(3) of the SDA defines ‘Law enforcement officer’ as a person mentioned in Column 3 of Item 5 to include an AFP employee (within the meaning of the Australian Federal Police Act 1979 (Cth)): see s.24 of the Australian Federal Police Act.
72. In the witness statements previously disclosed to the applicant as part of the brief of evidence, UCO1 states that he is an employee of the Australian Federal Police and is therefore a Commonwealth law enforcement officer pursuant to s 6A(3) of the SDA.
It is submitted by the prosecution that UCO1 is therefore a federal law enforcement officer.
73. Section 4 of the SDA states except where there is express provision to the contrary, it does not intend to affect any other law of the Commonwealth or Territory that prohibits or regulates the use of surveillance devices.
74. The equivalent legislation in the Australian Capital Territory is the Listening Devices Act 1992 (ACT). The Explanatory Memorandum of the Listening Devices Bill 1992 (ACT) describes the intent of what became s.10 of that Act, as being to render evidence inadmissible in civil or criminal proceedings if it was obtained by a person by the unlawful use of a listening device. Section 4 of the Listening Devices Act prohibits the recording of a conversation without consent from one of the parties, unless that recording is to protect the principal party’s lawful interests, or in circumstances where the conversation is made for the purposes of publishing or communication. See Dong v Song [2018] ACTSC 82 per McWilliam AsJ.
75. Therefore, it follows that s 4(2) of the Listening Devices Act does not apply and the provisions of the SDA do apply.
76. It is submitted that there is no legislative prohibition on the use of the recordings in the trial proper. On the evidence previously disclosed, UCO1 understood that he lawfully obtained the five recordings pursuant to s.38 of the SDA. It is further submitted that the MCO was not required to authorise the recordings of the applicant. It is therefore submitted that it is not in the interests of justice to cross-examine the three witnesses prior to trial in the Supreme Court.
Issue Four – MCO authorisation for the use of the computer data
77. The applicant seeks to cross examine two prosecution witnesses, Detective Acting Superintendent Shane Scott and Acting Sergeant Wayde Barnes, as well as a third witness, Superintendent Scott Moller, who is not a prosecution witness.
78. The applicant has identified the reason for cross-examination is that the wording of the MCO authorisation in relation to computer data on the MCO is not wide enough to encompass the named officers to create fake emails chains between the three police officers.
79. The MCO Authorisation in relation to computer data states the following:
Engage in unauthorised access to, modification, control and creation of restricted data including but not limited to documents, records and entities.
Access, supply, create, manipulate and obtain restricted records and/or documents from Commonwealth and/or any other restricted computer system.
80. It is submitted by the prosecution that the ‘fake email chain’ created by the three officers falls plainly within the scope of the MCO’s authorisation. I agree with that submission. It therefore follows, that there is no justification for cross-examination on this issue, as no issue of illegality has been properly identified.
81. It is submitted that the perceived issue raised by the applicant is one that would ordinarily be agitated and put to the witnesses at trial, not during a committal. This is not a matter in question, the prosecution submits, which advances a reasonable hypothesis open on the evidence previously disclosed consistent with innocence, but an attempt to press and argue substantial elements associated with the trial proper, not a committal proceeding. Any application made pursuant to s.138 of the Evidence Act ought to be made in the Supreme Court.
ANALYSIS AND CONCLUSIONS
82. The term ‘interests of justice’ is not defined within the Magistrates Court Act, however some recent decisions on s.90AB of the Act have considered the term.
83. In Maguire v ACT Magistrates Court and Massey [2010] ACTCA 18 the court saw no error in the magistrate regarding that ‘interests of justice’ included whether cross-examination would result in a shorter, speedier and less complicated trial. The magistrate at first instance had noted that in the vast majority of cases cross-examination about gaps or ambiguities in the evidence could be left to cross-examination at trial.
84. In Billing and Gordan v Allen (Unpublished, ACT Magistrates Court, Magistrate Burns, 24 June 2009) the Magistrate refused an application to cross-examine witnesses on the basis that it was unlikely to clarify the prosecution case nor was cross-examination of witnesses on credit likely to lead to discharge at committal or significantly change any cross-examination of those issues at trial.
85. In BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (“Schultz”), the High Court considered the nature of the “interests of justice”. Gleeson CJ, McHugh and Heydon JJ said at 421:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
86. Gummow J observed that the interests of justice “are even-handed” (at 445), while Callinan J referred to the requirement to “do equal justice” (at 492).
87. Some guidance may be found by considering the corresponding New South Wales provision. It contains a wider test in that s.91(3) of the Criminal Procedure Act1986 (NSW) provides that cross-examination of a witness is not permitted unless “there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence”.
88. In Hanna v Kearney and CDPP [1998] NSWSC 227 Studdert J noted (an earlier form of) the provision had “as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial”. His Honour went on to give examples of what might amount to “substantial reasons in the interests of justice” including requiring a witness for cross-examination to understand the basis of a relevant opinion held by a witness.
89. Returning to Billing and Gordan v Allen, a case which was decided relatively soon after the introduction of s.90AB by the Crimes Legislation Amendment Act 2008, his Honour Magistrate Burns highlighted [at 20] that most other Australian jurisdictions impose a test requiring that an accused person establish ‘special’ or ‘substantial’ reasons for a witness to give oral testimony at committal. His Honour stated it was clear that the ACT legislature chose to take a different path and that ‘rather than imposing a test for cross-examination based upon broad concepts of whether “special” or “exceptional” reasons for cross-examination exist, s.90AB(2) imposes a much narrower and more specific series of tests’.
90. His Honour stated [at 7] ‘the intention of the legislature in enacting the Crimes Legislation Amendment Act 2008 is very clear and is set out in the Explanatory Statement to the Crimes Legislation Amendment Bill 2008:
The committal process is the process by which indictable charges are committed to the Supreme Court. It is an administrative procedure where the Magistrate presiding over the case makes a decision, based on the evidence before the court, to commit the defendant to stand trial, or be sentenced in the Supreme Court. It has been recognised for many years that the practical side of the committal process in the ACT has moved beyond its legislative basis. When committal were initially formulated it was expected that all evidence would be taken orally, with witnesses called and cross-examined. With the development of a culture and practice of full disclosure of prosecution cases the modern committal will normally proceed with the Magistrate accepting written witness statements as evidence upon which to base the decision to commit a matter to the Supreme Court.
The Bill recognises this transition and changes the legislation so that hand-up, or paper, committal are the rule. The use of hand-up committal will reduce stress to victims of crime, avoid unnecessary examination of witnesses, and save time and costs for the court, the witnesses and counsel as, in the majority of cases, witnesses will not be required to attend court for cross-examination during the committal. However, the Bill allows a witness to be called at the committal to be cross-examined in very limited circumstances [emphasis added], when the court decides that it is in the interests of justice for that witness to be called.’
91. In Maguire v ACT Magistrates Court and Massey [2010] ACTCA 18, their Honours Gray P, Penfold and Buchanan JJ affirmed that the interests of justice in s.90AB(2) could encompass ensuring a shorter, speedier and less complicated trial than would otherwise be required, however the court also emphasised [at 18] that “the Magistrate must be satisfied that the interest of justice cannot adequately be satisfied by leaving the proposed cross-examination to the trial, not that allowing cross-examination at committal would better or best satisfy the interests of justice”.
Decision - Papandrea
92. As to the application by Mr Papandrea I am not satisfied that he has established a valid basis for cross-examination sufficient to warrant granting the application pursuant to s.90AB of the Magistrates Court Act.
93. The cross-examination sought could be adequately dealt with at trial given that the statements identify the evidence against the defendant. It is unlikely that cross-examination would lead to the discharge of the defendant or substantially undermine the credit of a significant witness. It is unlikely that cross-examination of the issues at committal would significantly alter or shorten the trial.
94. Any application made pursuant to s.138 of the Evidence Act 2011 (ACT), ought be made in the Supreme Court.
95. The applicant has not established that the interests of justice cannot adequately be satisfied by leaving cross-examination of the witnesses about the issues to the trial, and therefore the application is dismissed.
Decision - Aulich
96. As to the application by Mr Aulich I am not satisfied that he has established a valid basis for cross-examination sufficient to warrant granting the application pursuant to s.90AB of the Magistrates Court Act.
97. The cross-examination sought could be adequately dealt with at trial given that the statements identify the evidence against the defendant. It is unlikely that cross-examination would lead to the discharge of the defendant or substantially undermine the credit of a significant witness. It is unlikely that cross-examination of the issues at committal would significantly alter or shorten the trial.
98. Any application made pursuant to s.138 of the Evidence Act2011 (ACT) ought be made in the Supreme Court.
99. The applicant has not established that the interests of justice cannot adequately be satisfied by leaving cross-examination of the witnesses about the issues to the trial, and therefore the application is dismissed.
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