Suppressed
[2018] WADC 72
•1 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: KALGOORLIE
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DILLON [2018] WADC 72
CORAM: JUDGE HERRON
HEARD: 10-13 APRIL 2018 & ON THE PAPERS
DELIVERED : 1 JUNE 2018
FILE NO/S: IND KAL 112 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
KENNY FRANCIS DILLON
Catchwords:
Data access order - Part 7 Criminal Investigation Act 2006 - Whether order applying to multiple data storage devices is invalid - Whether expression 'data storage device' includes multiple devices - Whether the application of s 10(c) Interpretation Act 1984 is excluded as being inconsistent with the intent and object of pt 7 of the Criminal Investigation Act or the subject or context of the Act - Section 6 Criminal Investigation Act 2006 - Post offence conduct - Application of Bunning v Cross discretionary factors
Legislation:
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Interpretation Act 1984 (WA)
Result:
Data access order valid
Application dismissed
Representation:
Counsel:
| Applicant | : | Ms FM Clare |
| Accused | : | Mr S Vandongen SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions |
| Accused | : | Holborn Lenhoff Massey |
Case(s) referred to in decision(s):
Australian Crime Commission v Marrapodi [2012] WASCA 103
Birch v The State of Western Australia (2017) 51 WAR 454; [2017] WASCA 19
Blue Metal Industries Limited v Dilley (1969) 117 CLR 651
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
City of Kwinana v Lamont [2014] WASCA 112
Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
Dodd v The State of Western Australia [2014] WASCA 13
Geldert v The State of Western Australia [2012] WASCA 226
Green v The State of Western Australia [No 2] [2014] WASCA 53
Momcilovic v The Queen (2011) 245 CLR 1
Mukevski v The State of Western Australia [2010] WASCA 138
Ousley v The Queen (1997) 192 CLR 69
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
JUDGE HERRON:
Introduction
By indictment dated 30 May 2017 the accused, Kenny Francis Dillon, is charged with three counts of on 4 June 2016 at Norseman being in possession of a prohibited drug, namely MDMA, heroin and cocaine. Mr Dillon is also charged with a further count of being in possession of money which was reasonably suspected of being unlawfully obtained. On 10 April 2018 Mr Dillon was arraigned on each of the counts and entered pleas of not guilty. A jury was then empanelled but was sent away until the following afternoon, 11 April, to allow issues of law which had arisen between the parties to be resolved. Because of ongoing issues between the parties regarding objections to certain aspects of the evidence and the edits to the transcripts of recorded conversations, the jury was further sent away on 11 April and asked to return on 13 April.
By s 96(3)(d) of the Criminal Procedure Act 2004 (CPA) an accused, within 28 days before the trial, must serve on the State,
…
(d)written notice of any objection by the accused to —
(i)any document that the prosecutor intends to adduce at the trial; or
(ii)any evidence to be given by a witness whom the prosecutor intends to call at the trial,
and the grounds for the objection.
Senior counsel for the accused raised for the first time on the morning the trial commenced on 10 April an objection to the validity of a data access order dated 8 June 2016 issued pursuant to s 59 of the Criminal Investigation Act 2006 (WA) (CIA) and served on the accused on 10 June. Had notice of the objection been given pursuant to s 96(3)(d) of the CPA, a directions hearing pursuant to s 98 of the CPA to determine that issue would have been listed before the commencement of the trial.
On Friday 13 April I advised the parties I needed more time to consider the issue which had been raised regarding the validity of the data access order and it was therefore necessary to discharge the jury and vacate the trial dates.
For the reasons which follow I am satisfied the data access order is valid and further, even if it is not valid, I would, in the exercise of my discretion, not exclude the evidence of the issuing of the order and the accused's reaction or conduct as a result of being served with the order.
The State case
The State case is a circumstantial case. Briefly, the State's case is that the accused met a person at a house in Port Kennedy and there collected a vehicle which he drove to Sydney. On 4 June, when he was driving back from Sydney, the vehicle was stopped by police near Norseman. The police located a hidden compartment built beneath the vehicle next to the fuel tank in which approximately 12 kg of prohibited drugs were located and seized. Police located 5.7 kg of MDMA, 3.492 kg of heroin and 2.813 kg of cocaine.
Police also found with the accused two mobile phones, a Blackberry phone and an Apple iPhone. The phones were seized.
It is the State case that the owner of the vehicle and the Blackberry phone was the owner of the Port Kennedy house with whom it is alleged the accused met before driving the vehicle to Sydney. The same person also owned a house in Sydney, which, on the State case, the accused visited after driving the vehicle to Sydney. The Apple iPhone was owned by the accused.
It is the State case that Mr Dillon started acting as a drug courier during 2016 and that before 4 June 2016 he made several trips between the Port Kennedy house and Sydney in February, April and June 2016.
It is also part of the State case that that vehicle had been driven to and from the Eastern States on nine earlier occasions.
It is the State case that Mr Dillon was acting as a courier of the prohibited drugs, that he knew of the drugs hidden beneath the vehicle he was driving and was collecting, transporting and delivering the drugs at the direction of the person with whom he met at the Port Kennedy house who was the owner of the house and the owner of the vehicle and the Blackberry phone.
The issues at trial
Mr Dillon denies he had any knowledge of the drugs hidden beneath the vehicle he was driving. Therefore possession will be the main issue at trial.
The data access order
Mr Dillon was arrested and charged with the offences the subject of the indictment on 4 June. He was then remanded in custody. On 8 June 2016 police obtained a data access order pursuant to s 59 of the Criminal Investigation Act 2006 (WA) (CIA) ordering Mr Dillon to provide information or assistance that is reasonable and necessary to allow the police to access two listed data storage devices, the Blackberry phone and the Apple iPhone. That order was served on Mr Dillon on 10 June. By its terms the order required Mr Dillon to comply with the order on or before 14 June 2016. So Mr Dillon had four days to comply with the order. However, I was informed during submissions the police agreed to extend the time for compliance and allowed Mr Dillon seven days to comply.
The information or assistance which the order required Mr Dillon to provide was to allow police to gain access to any data 'the above data storage device may contain', to copy any such data to another data storage device and to reproduce any such data on paper.
Mr Dillon has failed to comply with the order.
The State also relies upon recorded conversations in which the accused was a party while he was held in custody at Hakea Prison. They include an Arunta call by the accused to his father on 11 June 2016 and listening device recorded conversations between the accused and his father and others on 12 June, 20 June, 21 July and 27 August 2016. In those conversations the accused discusses failing to comply with the data access order and how or whether the contents of the Blackberry phone can be 'wiped'. He also discusses waiting to meet with his lawyers to seek advice both in relation to the charges and the data access order.
In the recorded conversation of 12 June during a visit by Mr Dillon's father, Mr Dillon says he refuses to open the Blackberry unless he is instructed to, which, the State submits, is a reference to receiving instructions from someone to whom he was answerable in the drug dealing network. There is also a reference later in that same conversation about talking to the lawyers and that if the lawyers tell him to open it, it doesn't matter, the inference being that even if his lawyers tell him he had to comply with the order and allow police to have access to the phone he wasn't going to comply.
The State seeks to rely upon Mr Dillon's refusal to comply with the data access order, together with what he says in the recorded conversations about whether the contents of the Blackberry phone can be destroyed, as evidence of Mr Dillon knowing that the contents of, or the data on, the phone would show he was involved in the offending, which is a part of the circumstances upon which the State relies in support of its circumstantial case. That is, the State submits that the accused's refusal to comply with the data access order, together with the evidence of him discussing whether the contents of the phone could be destroyed or deleted, which Mr Dillon described as 'wiping', was out of or showed a consciousness or a realisation of his involvement in the offending because he knew the contents of, or the data from, the phones implicated him in the offending with which he was charged and showed that he had knowledge of the drugs hidden beneath the vehicle.
The State accepts that to be capable of supporting the State case the accused's conduct in refusing to comply with the data access order and refusing to allow police to have access to the phones can only be explicable on the basis that he acted in that way because he knew the contents of the phone or phones would implicate him in the offending with which he was charged and that the phone data would show he knew of the drugs. The State says that he only acted in the way he did from a realisation of his involvement in the offences with which he is charged.
The defence accepts that if the data access order is a valid order the State is permitted to lead the evidence on the basis upon which the State proposes to lead that evidence. In other words, the defence accepts that the State can rely upon that evidence as an implied admission against interest because he knew the contents of the phones would implicate him in and show he was involved in the offending, which is one of the circumstances upon which the State can rely as a part of its circumstantial case.
Validity of data access order
The defence submits that the State cannot rely upon the evidence of the accused's refusal to comply with the data access order because the order is invalid. It is submitted the order is invalid because it refers to two devices, not one. It is submitted that upon a proper statutory construction of pt 7, s 57 to s 61, of the CIA, that a valid data access order issued pursuant to s 59 can only apply to a single data storage device, that is, in the circumstances of this case, a single mobile telephone. It is submitted that a separate order, and a separate application, must be made in respect of each separate mobile telephone and that a valid order cannot refer to multiple telephones or devices.
It is contended that such a construction is consistent with other provisions in the CIA, including pt 5, which relates to powers to search places and vehicles which confer power to carry out searches in relation to single premises and vehicles which must be the subject of separate warrants. It is also consistent with the provisions in pt 6 which are concerned with orders to produce business records. Those provisions, it is submitted, expressly contemplate that an order to produce business records may relate to more than one 'business record'.
Although, by s 10(c) of the Interpretation Act 1984 (WA), words in the singular includes the plural, and vice versa, by the provisions of s 3(1)(b) of the Interpretation Act, s 10(c) does not apply if the intent and object of an Act or something in the subject or context of the Act is inconsistent with such application. It is submitted that by the statutory language of pt 7 of the CIA, which defines the term 'data storage device' in the singular, s 10(c) of the Interpretation Act does not apply because the intent and object of the CIA and its subject or context is inconsistent with such application.
Although s 6 of the CIA was not referred to during submissions it is implicit in counsel's submission regarding the application of s 10(c) of the Interpretation Act that pt 7 of the CIA does affect the operation of s 10(c) of the Interpretation Act because the contrary attention appears in the CIA.
In further support of that submission it is submitted from the offence creating provision of s 61(2), by which a person who, without reasonable excuse, fails to comply with the order, commits a crime, that Parliament could not have intended that a person could be charged with an offence that suffers from duplicity because it refers to multiple devices and where there might be the potential for different 'reasonable excuses' for each device.
Part 7 CIA
The resolution of this dispute depends upon the correct statutory construction of the provisions of pt 7 of the CIA and in particular the definition of the term 'data storage device' in s 57 and whether s 10(c) of the Interpretation Act is excluded.
57. Terms used
In this Part —
data includes any record, any computer program, and any part of a computer program, in a digital, electronic or magnetic form;
data access order means an order issued under section 59;
data storage device means a thing that contains or is designed to contain data and it does not matter —
(a)if the thing is a fixed or removable part of another thing; or
(b)if the data it contains can be used or retrieved by the thing itself or not; or
(c)if the thing is separate from, but the data it contains can be used or retrieved by, another thing;
serious offence means an offence the statutory penalty for which is or includes imprisonment for 5 years or more or life.
58. Data access order, application for
(1)Only a police officer or a public officer may apply for a data access order.
(2)An application for a data access order must be made to a magistrate in accordance with section 13.
(3)An application for a data access order must —
(a)state the applicant's full name and official details; and
(b)state the serious offence that is suspected to have been committed and in relation to which the order is wanted; and
(c)state the grounds on which the applicant suspects that the offence has been committed; and
(d)describe with reasonable particularity the data storage device to which the applicant wants access (the target device); and
(e)explain how the applicant has possession of or access to the target device; and
(f)state the grounds on which the applicant suspects that any data the target device may contain is or may be a thing relevant to the serious offence; and
(g)state the name of the person to whom the order wanted will apply (the target person); and
(h)state the grounds on which the applicant suspects that the target person has committed the serious offence; and
(i)state the grounds on which the applicant suspects that the target person has knowledge relevant to gaining access to any data the target device may contain; and
(j)include any other information that is prescribed.
59. Data access order, issue of
(1)On an application made under section 58, a magistrate may issue a data access order if satisfied —
(a)that the applicant has lawful possession of or lawful access to the target device; and
(b)that, in respect of each of the matters in section 58(3) that the applicant suspects, other than paragraph (i), there are reasonable grounds for the applicant to have that suspicion; and
(c)that the target person has knowledge relevant to gaining access to any data the target device may contain.
(2)A data access order must contain this information —
(a)the applicant's full name and official details;
(b)the name of the person to whom the order applies;
(c)a description of the data storage device to which the order relates;
(d)an order that the person provide information or assistance that is reasonable and necessary to allow the applicant to do any or all of the following —
(i)to gain access to any data the device may contain;
(ii)to copy any such data to another data storage device;
(iii)to reproduce any such data on paper;
(e)the date on or before which the order must be obeyed;
(f)the name of the magistrate who issued it;
(g)the date and time when it was issued.
(3)A data access order must be in the prescribed form.
(4)If a magistrate refuses to issue a data access order, he or she must record on the application the fact of, the date and time of, and the reasons for, the refusal.
60.Data access order, service of
A data access order must be served personally on the person to whom it applies as soon as practicable after it is issued.
61. Data access order, effect of
(1)A data access order has effect according to its contents.
(2)A person who is served with a data access order and who, without reasonable excuse (the onus of proving which is on the person), does not obey it commits a crime.
Penalty: imprisonment for 5 years.
Summary conviction penalty: a fine of $24 000 and imprisonment for 2 years.
(3)It is not a defence to a charge of an offence under subsection (2) that information required to be given under the data access order would or may have incriminated the accused.
The word 'record' is defined in s 3 as meaning:
record means any record of information, irrespective of how the information is recorded or stored or able to be recovered and includes —
(a)any thing from which images, sounds or writings can be reproduced, with or without the aid of anything else; and
(b)any thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;
The word 'offence' is defined in s 3 as meaning:
offence means any offence under a written law;
Relevantly, s 6 provides:
6. Other written laws, this Act's relationship with
(1)Unless the contrary intention appears in this Act or another written law —
(a)this Act does not affect the operation of any other written law; and
(b)the powers conferred by this Act on a person are in addition to and do not derogate from any powers conferred on the person by any other written law.
…
(3)If a provision in this Act is inconsistent with a provision in another Act, the provision in the other Act prevails.
Section 58(2) states that an application for a data access order must be made to a magistrate in accordance with s 13. Section 13 states:
13. Warrants and orders, applying for
(1)In this section —
judicial officer means a JP or a magistrate, as the case requires.
(2)A reference in this section to making an application includes a reference to giving information in support of the application.
(3)This section applies to and in respect of an application to a judicial officer for a warrant or order if another section of this Act requires the application to be made under this section.
(4)The application must be made in person before the judicial officer unless —
(a)the warrant or order is needed urgently; and
(b)the applicant reasonably suspects that a judicial officer is not available within a reasonable distance of the applicant,
in which case —
(c)it may be made to a judicial officer by remote communication; and
(d)the judicial officer must not grant it unless satisfied about the matters in paragraphs (a) and (b).
(5)The application must be made in writing unless —
(a)the application is made by remote communication; and
(b)it is not practicable to send the judicial officer written material,
in which case —
(c)it may be made orally; and
(d)the judicial officer must make a written record of the application and any information given in support of it.
(6)The application must be made on oath unless —
(a)the application is made by remote communication; and
(b)it is not practicable for the judicial officer to administer an oath to the applicant,
in which case —
(c)it may be made in an unsworn form; and
(d)if the judicial officer issues a warrant or order, the applicant must as soon as practicable send the judicial officer an affidavit verifying the application and any information given in support of it.
(7)If on an application made by remote communication a judicial officer issues a warrant or order, the judicial officer must, if practicable, send a copy of the original warrant or order to the applicant by remote communication, but otherwise —
(a)the judicial officer must give the applicant by remote communication any information that must be set out in the warrant or order; and
(b)the applicant must complete a form of a warrant or order with the information received and give the judicial officer a copy of the form as soon as practicable after doing so; and
(c)the judicial officer must attach the copy of the form to the original warrant or order and any affidavit received from the applicant and make them available for collection by the applicant.
(8)The copy of the original warrant or order sent, or the form of the warrant or order completed, as the case may be, under subsection (7) has the same force and effect as the original warrant or order.
Interpretation Act 1984
The relevant provisions in the Interpretation Act are as follows.
3. Application
(1)The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law —
(a)express provision is made to the contrary; or
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
…
10. Gender and number
In any written law —
…
(c)words in the singular number include the plural and words in the plural number include the singular.
Principles of statutory construction
In City of Kwinana v Lamont [2014] WASCA 112 [47] the Court of Appeal when discussing the current approach to statutory construction explained:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 the plurality said [69], [71]:
69.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
…
71.Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchetto support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.
They further observed [78]:
78.However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
In Birch v The State of Western Australia (2017) 51 WAR 454; [2017] WASCA 19 [86] - [89] Buss P said:
86.In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
87.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
88.The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance (408); Newcastle City Council (112 ‑ 113).
89.The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
It is therefore necessary to construe the term 'data storage device' in its ordinary and grammatical meaning in the context in which the expression appears in pt 7 of the CIA so that the term is consistent with the language and purpose of all of the provisions of the CIA.
The meaning of the text may also require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Birch [87].
The long title to the CIA describes it as 'An Act to provide powers for the investigation and prevention of offences and for related matters.'
The heading to pt 7 of the CIA reads 'Gaining access to data controlled by suspects.'
Section 10(c) of the Interpretation Act creates a legislative presumption that the singular includes the plural unless, in the circumstances of this case, the terms of pt 7 of the CIA as a whole, and the surrounding legislative context, support the conclusion that the presumption is displaced so that the reference to a 'data storage device' for the purposes of pt 7 should be understood to mean a single device and does not include multiple devices: Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80 (Pritchard J).
In Blue Metal Industries Limited v Dilley (1969) 117 CLR 651, 656 the Privy Council, by reference to a similarly worded section in the New South Wales Interpretation Act said:
By s. 21 of the Interpretation Act, 1899 (N.S.W.) it is enacted that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular. Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to anyone particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
(emphasis added)
Therefore, for its submission to be accepted the defence must persuade me that the statutory presumption created by s 10(c) of the Interpretation Act is displaced.
Parliament could easily have made it clear that the operation of s 10(c) of the Interpretation Act did not apply to the CIA: see s 3(1)(a) Interpretation Act. Parliament chose not to expressly exclude the operation of s 10(c).
Rather, the Parliament, by s 6 of the CIA, legislated that unless the contrary intention appears in the CIA, the CIA does not affect the operation of any other Act and that if a provision in the CIA is inconsistent with a provision in another Act, the provision in the other Act prevails. Applying therefore s 6 to the Interpretation Act it more readily supports a conclusion that the operation of s 10(c) of the Interpretation Act has not been displaced in relation to pt 7 of the CIA.
Essentially the resolution of the objection raised by senior counsel for Mr Dillon is whether for the purposes of s 6(1) of the CIA and s 3(1)(b) of the Interpretation Act the operation of s 10(c) of the Interpretation Act is inconsistent with the intent and object of the CIA or the subject or context of pt 7 within the CIA.
Data access order - s 59 CIA - collateral review
By supplementary written submissions the State challenged the court's jurisdiction to determine the defence application (which challenges the validity of the data access order), on the basis that there was a challenge to a decision of the magistrate which was made within jurisdiction but invalidated by error of law on the face of the record. It was submitted that those circumstances are an exception to the general principle that the legality of an administrative act is open to collateral review in a court in the course of dealing with an issue properly arising before that court. In support of that submission the State relied upon the Full Court's decision in Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560 (Malcolm JA) which was cited and considered by Allanson J in Australian Crime Commission v Marrapodi [2012] WASCA 103 [127] - [128]:
127As a general principle, the legality of an administrative act is open to collateral review in a court in the course of dealing with an issue properly arising in a controversy before that court: Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 [36], [94]; Ousley (69) (79 - 80), (87), (100), (130 ‑ 131), (144 - 146). The availability of collateral review is regularly recognised at the highest level: see, for example, K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [144] - [145]; Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 [109].
128In Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560 Malcolm CJ (Seaman & Ipp JJ agreeing) said that as a general rule the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. The rule is subject to some exceptions: where the collateral attack is considered to be an abuse of process because it constitutes an attack on a final decision of a court of competent jurisdiction; where the decision sought to be challenged was made within jurisdiction but invalidated by error of law on the face of the record; and where, as a matter of statutory construction, there is a statutory remedy which is the only remedy available (561). None of those exceptions is relevant to this appeal.
At [140] Allanson J held:
140.In any event, the earlier warrant cases must be approached with some caution: Ousley (130) (Gummow J). It is now established that a warrant is not a judicial order but an instrument made pursuant to a prescribed statutory authority: Love v Attorney General (NSW) [1990] HCA 4; (1990) 169 CLR 307, 322 - 323. A statutory warrant may be subject to the same questions as any other administrative act: see, for example, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 435, 443.
Although the State did not formally abandon that submission or formally concede that there was a proper basis for the defence application which challenges the validity of the data access order, the State, for the purposes of permitting the essential merits of the defence application to be dealt with and resolved by me, did not press the submission.
Accepting that was the State's position, which was in my respectful view a sensible compromise, and accepting that therefore the issue was not the subject of detailed submissions before me, I am nevertheless satisfied that the issuing of a data access order pursuant to s 59 of the CIA is an administrative act rather than a judicial act. Therefore the issuing of the order may be challenged in collateral proceedings limited to the validity of the order on its face: Ousley v The Queen (1997) 192 CLR 69, 81, 85 (Toohey J), 87 (Gaudron J) and 99 - 100 (McHugh J). In my view a data access order is a similar order to the listening device warrant considered in Ousley and therefore may be subject to the same questions as any other administrative act: Marrapodi [140].
The defence submissions
I have earlier summarised the defence submissions. The defence concedes that Mr Dillon's refusal to comply with the data access order by refusing to provide the personal identification numbers or codes of each of the phones gives rise to an inference that he did so only because he knew that if he did provide the information to allow access to the phones it would reveal the contents of the telephones which in turn would incriminate him in the offences charged.
It is submitted that because of an accused's right to silence it would not otherwise be open to a jury to infer anything from an accused's refusal to answer questions or make any statements. Therefore, a necessary step which must be established before the State can rely upon the so called post offence conduct of the accused, is the existence of a valid data access order. If no valid order existed then the accused was entitled, it is submitted, as of right to refuse to provide the information sought. It is submitted that the data access order is invalid on its face because it purports to have been issued by the magistrate in relation to two separate devices in circumstances in which s 59 of the CIA, properly construed, only permits such an order to be made for an individual or single device. Section 59 does not permit an order to be issued in relation to more than one device. If access to separate devices is sought separate orders must be obtained.
It is further submitted the conclusion that the expression 'data storage device' is only capable of referring to one device is reinforced by the definition of that expression in s 57, which refers to 'a thing' that contains or is designed to contain data and by the use of the phrase 'target device' in s 58(3)(g).
Such a construction also reflects the consistent use of the word 'device' in the singular rather than the plural throughout the provisions in pt 7.
Senior counsel submits that s 10(c) of the Interpretation Act does not apply because, by s 3(1)(b) of the Interpretation Act, s 10(c) is displaced by 'the intent and object' of the CIA which is inconsistent with the application of s 10(c). Counsel points to the context of pt 7, including the balance between the invasion of privacy, and the right of the police to compel a person to enable access to the contents of a mobile phone or, in the terms of the CIA, a 'data storage device'.
When senior counsel refers to the invasion of an individual's privacy I do not understand him to refer to any legal or common law right to privacy. Rather, I understood him to refer to an accused's right to silence and a person's rights under the CIA, such as a person's rights under pt 11 when police want to interview a person suspected of committing an offence, or a person's rights when required to undergo a body search pursuant to pt 10, or an arrested person's rights under pt 12. There is no common law right to privacy: Geldert v The State of Western Australia [2012] WASCA 226 [43] - [44] (McLure P) (Martin CJ & Mazza JA agreeing) citing Momcilovic v The Queen (2011) 245 CLR 1.
Counsel also refers to other provisions in the CIA, such as in pt 5, relating to the powers to search places and vehicles which confer power to carry out searches in relation to single premises and vehicles. Counsel said that warrants to search places or vehicles are only issued in respect of single vehicles or places and never issued in respect of multiple places or vehicles. It is submitted that the provisions of div 3 pt 5, which provide a police officer with the power to apply for and obtain a search warrant, is expressed in similar language to the provisions of pt 7. Section 41 and s 42 refer to a search warrant being issued in respect of 'the place'. Section 43 also refers to the 'target place'. It is submitted that, properly construed, the words 'the place' only refer to a single place and not to multiple places. Therefore s 10(c) of the Interpretation Act is displaced.
It is also consistent with the powers in pt 9, pt 10 and pt 11.
Finally, it is also consistent with the powers in pt 6 which are concerned with orders to produce business records which, it is submitted, expressly contemplate that an order to produce a business record may relate to more than one 'business record' because of the reference in s 52(g) and s 52(f) to 'a business record or class of business record' (emphasis added), which is to be contrasted with the language of pt 7.
Senior counsel submits an important contextual consideration in construing pt 7 is to have regard to the offence creating provision, s 61(2), which provides that a person commits an offence if they do not obey a data access order without reasonable excuse, the onus being on the accused to prove the existence of such an excuse. Therefore there may be different considerations, such as different 'reasonable excuses' for each device. If a person is charged for breaching a data access order which is made in respect of multiple devices, there is the risk that the charge will be bad for latent or patent duplicity. It is submitted that in the drafting of s 61(2) Parliament would not have intended that a charge for an offence against s 61(2) be bad for duplicity. A charge for failing to comply with a data access order which is made in respect of multiple devices would be bad for duplicity because, it is submitted, a person may fail to obey the order in respect of each of the devices in potentially a number of different ways. Because that could not have been Parliament's intention the context in which s 61(2) appears provides further support for the submission that a proper statutory construction of pt 7 is that a valid data access order can only apply to a single device.
The State's submissions
The State submits that, properly construed, the provisions of pt 7 of the CIA permit a data access order to be made in respect of multiple devices. The State submits that the language used in s 58(3), which refers to the 'serious offence' that is suspected to have been committed, is in the singular. The expression 'serious offence' is defined in s 57 to mean 'an offence the statutory penalty for which is or includes imprisonment for 5 years or more or life'. It must have been contemplated by Parliament that at the time the data access order is sought an accused person, 'the target person', might be suspected of having committed more than one offence. Implicit in that submission is that it could not have been intended by Parliament that by s 58(3) a data access order could only be applied for in respect of a single serious offence which was suspected of having been committed with the result that a separate order would have to be sought in relation to each separate serious offence which was suspected of having been committed in respect of each separate data storage device.
The State submits that the provisions of s 10(c) of the Interpretation Act are not inconsistent with the intent and object of the CIA or anything in the subject or context of the CIA.
The State also submits that even if the order is invalid, I should, in the exercise of my discretion, admit the evidence pursuant to s 155 of the CIA or, alternatively, in accordance with common law principles.
Analysis
I do not accept the submissions of senior counsel for the accused that on a proper construction of pt 7 of the CIA a data access order issued pursuant to s 59 can only be in respect of a single data storage device and that if an order refers to more than one device it is invalid.
In my view, it is clear from the provisions of pt 7 that a device to which the order applies must be specifically identified and described so that the person served with the order who is directed to provide information or assistance to enable the police to gain access to any data on a device, knows which device is being referred to and therefore what information needs to be provided to allow the police to access any data on the device. The information which would normally be required by a data access order is for the person the subject of the order to provide the PIN or code which would allow the police to access data on the phone on the same basis as the user would be able to access the data. It is likely the PIN or code to allow access to the phone will be different in respect of each individual device. The purpose of the order is to make it clear to the person to whom the order is directed what device is being referred to and what information or assistance is required in relation to that device.
The terms of the order contain a warning that 'it is an offence not to obey this order without a reasonable excuse'. By s 61 the maximum penalty for refusing to comply with the order is a term of imprisonment for 5 years. That is a significant penalty. Therefore a person to whom the order applies must, by the terms of the order, know specifically to which device the order applies and know what information or assistance will be required to be provided in relation to that particular device to allow police to gain access to any data on the device.
A data access order can only be made by a magistrate. That is to be contrasted with other provisions such as an order to produce a business record pursuant to pt 6, or a search warrant issued pursuant to pt 5, of the CIA which may be made by a Justice of the Peace (JP). The need for an application for a data access order to be made before a magistrate rather than simply a JP reflects the more serious nature of such an order and the potential impact upon the rights of the person reasonably suspected of committing a serious offence.
Section 59(3)(h) reflects that such an order is being sought against the person who has committed a 'serious offence', which is defined in s 57 (refer [59]). A person who is suspected of committing the serious offence is described in s 58(3)(g) as the 'target person'. That is to be contrasted with an order made pursuant to pt 6 to produce a business record which can be directed to any person, not necessarily the target person or the person suspected of committing a serious offence.
Further, it reflects the balance between the needs of law enforcement officers to effectively investigate crime and the rights of individuals. As is evident from the Parliamentary debates when the CIA bill was introduced into Parliament, the intention was that pt 7 ensures that private rights are protected by a highly prescribed regime of informed consent and authorisation by warrant or order being instituted.
I have earlier at [38] set out the long title to the CIA which makes clear the Act is to provide powers for the investigation and prevention of offences. I have also noted the heading to pt 7 which reads 'Gaining access to data controlled by suspects' which, in my view, makes it clear that the purpose of pt 7 and the mischief it is seeking to remedy is to obtain information relevant to a serious offence, which is in the possession of the person suspected of committing the offence, by removing the right to silence and compelling that person, described as 'the target person', who would normally be the accused, to provide police with information relevant to the serious offence even if the information required would or may incriminate the person. As I have earlier outlined, it was also submitted by senior counsel that the language of div 3 pt 5, which refers to a search warrant being issued for 'the place', properly construed only means a single place and not multiple places, which supports a construction that the words 'data storage device' and the expression 'target device' in s 59 only refers to a single device and not multiple devices. The purposes of, and the powers of, a search warrant issued under pt 5, or an order to produce a business record under pt 6, are to be contrasted with the purpose and power of a data access order which is specifically directed to a person who is suspected of having committed a serious offence. The order is directed to the same person. It is argued that if a data access order can apply to more than one data storage device then a search warrant issued pursuant to s 42 can also be issued in respect of multiple premises.
I reject that submission. A search warrant is necessarily directed to a place and not a person. Therefore necessarily a separate search warrant must be applied for and issued in respect of each separate place that the police seek to enter and search. Such a construction accords with the purpose and intent of the police being provided with powers to obtain a search warrant to search premises. It might often be the case that police will seek to execute search warrants on separate premises at the same time, for example, when drug offences are suspected of having been committed. In such circumstances it would obviously be necessary for a separate warrant to be obtained for each individual place upon which the police seek to execute the search warrant. Such a construction is not inconsistent with a construction of s 59 that a data access order can validly apply to more than one device given the different nature of such an order and that it is only directed to one person.
It was further submitted in support of the application, that contrasting the provisions of pt 6, which refer to an order to produce a business record, it is clear that an order made pursuant to s 59 can only apply to a single device rather than multiple devices. Reference was made to s 52(g) and s 52(i) each of which refers to a 'business record or class of business record', which it is submitted distinguishes the provisions of pt 6 from the provisions of pt 7 because, s 53 allows an order to be made for a class of record, for example, taxation records or bank statements, rather than there being the need for a separate order for each individual tax return or bank statement.
However, the difference in the language in pt 6 and pt 7 is readily understood. Part 7 is requiring a person, the person who is suspected of committing a serious offence, to provide information relevant to a particular device so that the data on that device can be accessed. Part 6 is simply requiring a person to produce documents which are identified. No information is required to be provided to allow police to access those documents. The intention of pt 7 is to precisely identify the target device and what information must be provided to allow that device to be accessed. The purposes of pt 6 and pt 7 are different.
In my view, the language of pt 6 which refers to 'business record' in the singular is used in a similar or consistent way to the expression 'data storage device' in pt 7 which is also in the singular.
A construction that permits a data access order to apply to multiple devices is consistent with the purposes and intention of pt 7. Providing the application for a data access order addresses each of the matters in s 58(3) in respect of each device referred to in the application, including the need in s 58(3)(d) to 'describe with reasonable particularity the data storage device to which the applicant wants access', and the magistrate making the order is separately satisfied of each of the criteria in s 59(1) for each device and the data access order complies in particular with the need in s 59(2)(c) to provide a description of each data storage device to which the order relates, the order achieves, and is consistent with, the purpose and intent of a data access order, to make it clear to the person to whom the order applies to which device the order is directed and what information must be provided. Providing the order complies with the statutory requirements there is no reason, including unfairness considerations, why an order cannot be directed to multiple devices.
Further, if the defence submission was correct it would follow that the 'serious offence' which, by s 58(3) must be identified for the purposes of obtaining a data access order, only refers to one offence. It would follow, that a separate data access order would be required in respect of each separate 'serious offence' which is suspected to have been committed. In other words, in the circumstances of this case, the police would need to obtain a separate data access order in respect of each of the four offences with which Mr Dillon is charged. In my view such a construction would lead to an absurd and impractical result which is inconsistent with the language and purpose of pt 7, which is to allow police to gain access to a data storage device in a sensible and practical way, but is also fair to the accused so he understands to what device or devices the order is directed and what information must be provided.
In my view, properly construed, pt 7 of the CIA permits a data access order to be made in respect of more than one data storage device. So long as the order sufficiently and properly particularises a particular device so that it is clear what information is required to be provided to allow police to gain access to which device, there is nothing objectionable in an order identifying more than one device. The fact that the order refers to two devices rather than one does not in my view invalidate the order. In the circumstances of this case, where two mobile phones were found with the accused at the same time and in the same place, the fact that the order refers to two separate devices rather than one device does not invalidate the order. The provisions of pt 7 do not require the police to apply for a separate order in respect of each individual device. I accept that there will be occasions when there is a need for separate applications and separate orders to be made in respect of individual devices. That might happen, for example, if the devices are found in separate locations at separate times and different considerations might apply to whether an order ought be made against the same individual in respect of the separate devices. However, in the circumstances of this case where each of the devices were found at the same time with the accused and there were no other occupants of the vehicle, I am satisfied that the provisions of pt 7 allow for a single order to be made in respect of each of the devices. It accords with commonsense.
In my view the meaning of the expression 'data storage device' can refer to more than one device. It is not to be interpreted as referring to only a single device. There is nothing in the subject or the context of pt 7 or within the CIA which excludes the operation of s 10(c) of the Interpretation Act. Nor is there anything which is, by reference to the intent and object of the Act, inconsistent with such a construction. By s 6(1)(a) of the CIA, unless the contrary intention appears in the CIA, the CIA does not affect the operation of any other written law. There is in my view no contrary intention appearing in the CIA which affects, or excludes the operation of s 10(c) of the Interpretation Act. I am therefore satisfied that s 10(c) of the Interpretation Act applies to the proper construction of the expression 'data storage device'.
It was also submitted that an order made pursuant to s 59 would not be valid if it referred to, for example, 100 mobile telephones. I accept that if the terms of the order simply stated a person was required to provide information in relation to the 100 telephones seized by police that that might invalidate the order, but the reason for the invalidity would be because of the failure to properly or adequately 'describe with reasonable particularity the data storage device' to which access is sought for the purposes of s 58(3)(d). That is, which describes each separate device. However, there is in my view nothing within the provisions of pt 7 which would prevent a single order being made in respect of multiple devices providing each of those devices are individually properly identified so that a person to whom the order applies clearly knows what devices are being referred to and what information he must provide in respect of each individual device.
Duplicity
I also reject defence counsel's submission that if a data access order applied to multiple devices and a person refused to comply with the order there is the risk that any charge brought against the person for an offence against s 61(2) would be bad for duplicity. To respond to senior counsel's submission it is necessary to consider what is the rule against duplicity.
By cl 2(3) and cl 2(4) of sch 1 of the Criminal Procedure Act 2004:
2. General rules
…
(3)A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise.
(4)A charge must allege one offence only, unless clause 8 or another written law permits otherwise.
By cl 7(3):
7. Multiple charges and multiple accused
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences —
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
As explained by McLure P in Green v The State of Western Australia [No 2] [2014] WASCA 53 [3]:
Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the evidence adduced or to be adduced at trial (latent duplicity) gives rise to more than one offence.
In Vrisakis v Australian Securities Commission (1993) 9 WAR 395, the Full Court upheld an appeal from a conviction under the former Companies (Western Australia) Code for failing to exercise a reasonable degree of care and diligence in the exercise of powers and the discharge of duties as an officer of a corporation, in which the offence was particularised that the appellant failed to take reasonable steps to ensure that effect was given to the terms of a business plan. The particulars which were provided alleged the offence was committed by the appellant failing to take reasonable steps to ensure that the business plan was put into effect in eight different ways. The majority (Malcolm CJ & Ipp J) held that the offence as particularised identified eight different acts or omissions which gave rise to eight different offences rather than the one offence.
The principle of duplicity, which is now reflected in the clauses of sch 1 of the Criminal Procedure Act 2004 set out above, were then reflected in s 43 of the Justices Act which was in similar terms to cl 2(3) and cl 2(4) of sch 1 of the Criminal Procedure Act 2004. At (402 - 403) Malcolm CJ observed:
The question is whether the offence so created is one of a compendious nature, so that the gravamen of the offence is a failure to be a reasonably careful and diligent director, or whether each particular act or omission which involves a failure to be reasonably careful and diligent constitutes a separate offence. The duplicity point turns on the answer to this question.
If each act or omission constitutes a separate offence then clearly count 1 was bad for duplicity. The complaint was open to challenge because it offended against the principle, as expressed in Archbold, Criminal Pleading Evidence & Practice (43rd ed, 1988) at 46 that ′′No one count of the indictment should charge the defendant with having committed two or more separate offences”. The principle is embodied in s 43 of the Justices Act (1902) which provides that:
'Every complaint shall be for one matter only, and not for two more matters:
Provided that —
(1)in the case of indictable offences, if the matters of complaint are such that they may be charged in one indictment; and
(2)in other cases, if the matters of complaint are substantially of the same act or omission on the part of the defendant,
such matters may be joined in the same complaint.'
The word 'matter' is defined by s 4 of the Justices Act as:
'… any act, omission, fact or event (except an indictable offence not punishable summarily) upon complaint whereof Justices may give any decision against or in respect of any person.'
At (416) Malcolm CJ held that it was unfair to the appellant and gave rise to a miscarriage of justice because the offence charged involved several charges contained in the one count.
At (438) - (439) Ipp J observed:
The pleading points — duplicity and particulars
The vice of duplicity is injustice; that is, unfairness in the trial. That unfairness may take many forms. In jury trials it is usually readily apparent. Where the complaint contains more than one offence, it may not be possible to determine in respect of which offence the jury has brought in a guilty finding; or whether there has been a true majority verdict in respect of one or more offences: cf Jones v R [1980] WAR 203; Infirri v R (1981) 5 A Crim R 132. [ Problems of this kind will not ordinarily arise in proceedings before a magistrate who delivers detailed reasons for the decision, and the provision of detailed reasons may obviate particular aspects of injustice: cf Cullen v Jardine [1985] Crim L R 688]. …
… where the trial takes place before a judicial officer without a jury, duplicity in the charge means that there is a significant risk of injustice. A defendant should not be placed in the position where he is faced with having to exculpate himself in regard to what are in effect several charges, so that, at the end of the evidence, the prosecutor can select and press the charge where the defendant's answer turns out to be the weakest: Johnson v Miller (1937) 59 CLR 467at 495 per Evatt J. Further, as his Honour said at 497-498:
'It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him.'
Apart from anything else a defendant is entitled to have the offences specified in individual complaints so that he can plead guilty to one or more if he wishes: Johnson v Miller at 498. He must know precisely what he is called upon to answer.
The rule against duplicity in a complaint is yet another legal principle which is easier to state than apply. Difficulties often arise in determining whether a particular count is duplex.
In Director of Public Prosecution v Merriman (1972) 56 Crim App R 766at 776 Lord Morris agreed with the proposition expressed by Lord Widgery in Jemmison v Priddle [1972] 2 WLR 293at 298 that: 'It will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act.' This is in essence merely part of the principle expressed by Lord Diplock in Director of Public Prosecutions v Merriman at 796 that where a number of acts of a similar nature committed by one or more defendants are connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise they may be charged as one offence in a single count in an indictment. See also Chew v R [1991] 4 WAR 21.
(emphasis added)
In relation to the fourth factor the offences with which the accused has been charged are clearly serious offences, alleging he was in possession of a significant quantity, approximately 12 kg, of prohibited drugs, ecstasy, heroin and cocaine. Therefore the nature of the offences with which the accused has been charged does not materially weigh against the admissibility of the impugned evidence.
Finally, in relation to the fifth factor, I accept that strict compliance with the statutory conditions regarding the issuing of data access orders is an important consideration. However, any departure from the intent of pt 7 of the CIA by obtaining an order applying to two devices rather than one does not put the accused in any worse or a more disadvantageous position than he would have been in had he been served with two separate orders each applying to a separate device. The order is in its terms clear and the accused would be under no misapprehension as to what he was required to do to comply with the order. Whether he was served with the order applying to two phones, or separate orders each applying to only one phone, he was no better informed as to what he was required to do to comply with the terms of the order.
Again, on the assumption the data access order was invalid, it seems to me, therefore, that the order directed towards two phones rather than one phone was not so significant a departure from the will of the legislature as to demand a conclusion that, necessarily and without more, the order was so defective that the accused's response to being served with it cannot be relied upon by the State. In circumstances where Mr Dillon believed the order was valid, as did the police officers who served him with the order, noting that the question of the validity of the order was only raised for the first time on the first morning of the trial when senior counsel considered the matter, I do not consider it is unfair to the accused for the evidence of his reaction to the order to be relied upon by the State. In other words, I do not accept there is such a degree of unfairness to the accused that leads to the result that the discretion ought to be exercised by excluding the evidence. I am reinforced in that view by the evidence of the recorded conversations in which the accused talks about wanting to wipe the contents of the Blackberry phone. The defence accept the State is entitled to lead that evidence, whether or not the evidence of the accused's response to being served with the data access order is admissible.
In my view, even if the order was on its face invalid the State is still entitled to rely upon Mr Dillon's conduct and reaction to being served with the order as part of its circumstantial case. The position might have been otherwise if there was any suggestion there was some misconduct on the part of the police or there was some serious contravention of the CIA. If the order on its face is invalid, the invalidity arose from an honest and reasonable mistake on the part of the police, and the issuing magistrate.
Therefore for those further reasons I order the State is permitted to lead the evidence of the accused's conduct in relation to his reaction to being served with the data access order as part of the circumstances the State relies upon in its circumstantial case against the accused.
The accused's application for a ruling that such evidence is inadmissible and be excluded is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
ASSOCIATE TO JUDGE HERRON31 MAY 2018
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