Court of Appeal (WA)|2012-11-09|Before: Martin CJ

GELDERT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 226 (9 November 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GELDERT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 226

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Admissibility of telephone intercept evidence gathered under 'telecommunications service warrant' - Construction of Telecommunications (Interception and Access) Act 1979 (Cth) - Authority of warrant dependent on notification of issue - Whether notification includes obligation to give Managing Director of carrier a certified copy of warrant as soon as practicable - Meaning of 'as soon as practicable' - Meaning of 'issue' and 'execution' of warrant in s 75 - Whether failure to provide certified copy of warrant as soon as practicable an 'irregularity' which 'should be disregarded' in all the circumstances - Whether verdict unreasonable or unsupported by the evidence

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

R v Baladjam (No 17) [2008] NSWSC 1439

R v Bunting (No 5) [2003] SASC 253

Re His Honour Warden Calder SM; Ex Parte Lee [2007] WASCA 161; (2007) 34 WAR 289

Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638

Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285

The State of Western Australia v Tanevski [2012] WADC 87

The State of Western Australia v Tanevski [No 5] [2012] WADC 64

Wright v Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339

1 MARTIN CJ: This appeal should be dismissed for the reasons given by McLure P, with which I agree.

2 McLURE P: This is an appeal against conviction. The appellant was convicted after trial of four counts of selling a prohibited drug contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA).

3 As part of its case at trial, the prosecution adduced evidence of telephone communications intercepted pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act). Although no objection was raised at any time prior to or at trial, it is contended in this appeal that this evidence was inadmissible in whole (ground 1) or in part (ground 2), thereby occasioning a miscarriage of justice. It is also contended that, having regard to the evidence, the verdicts of guilty are unreasonable or cannot be supported (ground 3). Leave to appeal has been granted on grounds 1 and 2. The application for leave to appeal on ground 3 has been referred to the hearing of the appeal.

4 In summary, the prosecution case was that the appellant and Joshua John Ravlich were involved in a joint criminal enterprise to supply cocaine to a third party who was, unbeknown to them, an undercover police operative (UCO). Ravlich conducted the negotiations for and the actual sale of the prohibited drugs. He subsequently passed the money from the transactions to the appellant, who was the source of the cocaine.

5 The prosecution case was a circumstantial one, relying heavily on the timing and content of intercepted communications between Ravlich and the UCO and between the appellant and Ravlich.

6 The broad issues in this appeal are (1) whether information intercepted pursuant to a warrant validly issued under the Act is 'lawfully intercepted information' for the purposes of s 74 if there is a breach of the obligation in s 60(1)(d) of the Act to give a certified copy of the warrant to the Managing Director of the relevant carrier 'as soon as practicable'; and (2) if the answer to (1) is in the negative, is the intercepted information admissible under s 75 of the Act. Both issues involve questions of statutory construction.

7 The appellant relies on the decisions of Derrick DCJ in The State of Western Australia v Tanevski [No 5] [2012] WADC 64 (Tanevski No 1) and The State of Western Australia v Tanevski [2012] WADC 87 (Tanevski No 2), both of which were delivered after the appellant's trial.

8 The compilation of the Act as prepared on 12 December 2009 is the governing version of the legislation in this case.

9 The Act involves a balancing of conflicting interests. Broadly, those interests are the need to ensure that the privacy of individuals is protected from unwarranted intrusions and the need to provide Federal and State security and law enforcement agencies with an important additional tool of interception and access powers for use in the investigation and prosecution of (inter alia) serious offences.

10 The Act deals with the interception of telecommunications (ch 2) and access to stored communications (ch 3). This appeal relates to the interception of telecommunications. By s 6(1) of the Act, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication. Telecommunications system means, relevantly, a telecommunications network that is within Australia (s 5(1)).

11 The general prohibition on intercepting communications is found in s 7(1) of the Act which provides:

A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

12 A contravention of s 7(1) constitutes an offence (s 105(1)). Exceptions to the prohibition are listed in s 7(2). The only relevant exception in this case is in s 7(2)(b), being 'the interception of a communication under a warrant'.

13 A 'warrant' is defined to include a warrant issued under Part 2-5 of the Act. The warrants in contention in these proceedings were 'telecommunications service warrants' issued under s 46 in Part 2-5 of the Act. The warrants were issued to the Western Australian Police Service (WAPS).

14 By s 39(1) of the Act, an 'agency' may apply to an eligible judge or nominated AAT member for a telecommunications service warrant. WAPS, an eligible authority of the State of Western Australia, was declared under s 34 to be an 'agency' for the purposes of the Act. Section 35 of the Act lists the preconditions for such a declaration, which include mechanisms for disclosure and accountability by a State agency to the responsible State Minister.

15 The Act regulates the form of the application for a telecommunications service warrant (s 40), its content (s 41) and the requirement for and contents of an accompanying affidavit (s 42). The Act makes provision for urgent telephone applications without complying with s 41 and s 42 (s 40(2)(b), s 43, s 44).

16 Section 46 empowers an eligible judge or nominated AAT member to issue a telecommunications service warrant on being satisfied of specified matters. The decision-maker must be satisfied (inter alia) that information likely to be obtained by the interception would be likely to assist in connection with the investigation by the agency of a serious offence before the power to issue a warrant is enlivened (s 46(1)(d)). Mandatory relevant considerations in the exercise of the power to issue a warrant reflect the balancing of conflicting interests referred to earlier (s 46(2)).

17 Section 47 is one of the central provisions in issue. It relevantly provides:

A warrant issued under s 46 ... does not authorise the interception of communications passing over a telecommunications system that a carrier operates unless:

(a) notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60(1); and

(b) the interception takes place as a result of action taken by an employee of the carrier.

18 The term 'carrier' is relevantly defined in s 5(1) to mean a carrier or a carriage service provider within the meaning of the Telecommunications Act 1997 (Cth).

19 Section 60(1) of the Act provides:

Where:

(a) a warrant ... is issued to an agency; and

(b) it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;

a certifying officer of the agency shall cause;

(c) the Managing Director of that carrier to be informed forthwith of the issue of the warrant; and

(d) a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to the Managing Director of that carrier.

20 A 'certifying officer' in the case of the police force of a State is the Commissioner, a Deputy Commissioner, an officer whose rank is equivalent to that of Assistant Commissioner of the AFP, or a person authorised to be a certifying officer under s 5AC(4). Under s 5AC(4), the Commissioner of a police force of a State may authorise, in writing, an officer of the police force of the State whose rank is equivalent to that of a senior executive AFP employee who is a member of the AFP to be a certifying officer of the police force of the State.

21 Section 60(3) makes provision for when a warrant is revoked. In those circumstances, a certifying officer of the agency to which the warrant was issued shall cause the Managing Director of the carrier to be informed forthwith of the revocation and a copy of the instrument of revocation, certified in writing to be a true copy of the instrument, is to be given as soon as practicable to the Managing Director of that carrier.

22 Section 49 requires that a warrant be in accordance with the prescribed form and signed by the person who issued it. Further, the warrant is required to specify the period for which it is to be in force, being a maximum of either 45 days or 90 days. A warrant cannot be varied by extending the period, although a further warrant can issue (s 49(4) and (5)).

23 Section 50 relates to the issue of a warrant on a telephone application. It relevantly provides:

(1) As soon as practicable after completing and signing a warrant issued on a telephone application, a Judge or nominated AAT member shall:

(b) inform the person who made the application on the agency's behalf of:

(i) the terms of the warrant; and

(ii) the day on which, and the time at which, the warrant was signed; and

24 By s 54, a warrant comes into force when it is issued. Section 55 concerns the exercise of authority conferred by a warrant. It relevantly provides:

(1) The authority conferred by a Part 2-5 warrant may only be exercised by an officer or staff member of an agency in relation to whom an approval under subsection (3) is in force in relation to the warrant.

25 Under s 55(3), the chief officer of an agency or an officer of an agency in relation to whom an appointment under subs (4) is in force may approve officers or staff members of the agency or another agency or classes of officers or staff members of the agency or another agency to exercise the authority conferred by warrants.

26 Section 55(5) links with s 47(b) and relevantly provides:

In spite of subsection (1) ... an employee of a carrier, may provide technical assistance to an officer or staff member of an agency who is exercising the authority conferred by a warrant.

27 The provision of technical assistance is widely defined in s 55(6).

28 Section 77 of the Act deals with the admissibility of intercepted communications in a 'proceeding', defined in s 5(1) to include a proceeding in the court of a State. Section 77 relevantly provides:

(1) Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of subsection 7(1), then:

(a) ... neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section ... 74 [and] 75 ... permits a person to give in evidence in that proceeding information so obtained.

29 Section 74 relates to evidence in an 'exempt proceeding'. It was accepted that the District Court trial of the appellant was an exempt proceeding (as to which, see s 5B; s 5(1); s 5D(2)). Section 74 relevantly provides:

(1) A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding.

(2) For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities.

30 The expression 'lawfully intercepted information' is relevantly defined in s 6E as follows:

(1) ... a reference in this Act to lawfully intercepted information is a reference to information obtained ... by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.

31 Section 75 gives a court the power to admit unlawfully intercepted information. It provides:

(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant ... a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:

(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and

(b) in all the circumstances, the irregularity should be disregarded.

(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):

(a) in, or in connection with the issue of, a document purporting to be a warrant; or

(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.

32 Part 2-7 of the Act contains detailed obligations for the keeping and inspection of interception records. Part 2-8 requires reports about interceptions under (inter alia) Part 2-5 to the responsible Minister, Commonwealth or State, as the case may be. Section 97 of the Act imposes reporting obligations on Managing Directors of carriers. It relevantly provides:

The Managing Director of a carrier shall give to the Minister, within 3 months after a warrant under section 46... ceases to be in force, a written report about the acts or things done by or in relation to employees of the carrier:

(a) to enable, or in connection with enabling, communications to be intercepted under the warrant; and

(b) to ensure discontinuance of interceptions under the warrant;

and the days on which, and the times at which, those acts or things were done.

33 Specified obligations in Parts 2-7 and 2-8 of the Act are picked up in the preconditions for declaring an eligible authority of a State to be an agency for the purposes of the Act.

34 There are equivalent provisions in ch 2 (intercepted communications) and ch 3 of the Act (stored communications). They relevantly include:

35 In Tanevski No 1, Derrick DCJ concluded that notification of the issue of a stored communications warrant to the Managing Director of the carrier (the carrier) under s 126 required compliance with both pars (a) and (b) of s 121; the relevant agency had failed to notify the carrier 'forthwith' under par (a) of s 121 and to provide a certified copy of the warrant to the carrier as soon as practicable under par (b) of s 121; as a result, the agency's access to the stored communications was not authorised and constituted an offence under the Act; and the evidence was not admissible, including under s 144.

36 In Tanevski No 2, Derrick DCJ held that notification under s 47(a) of the Act required compliance with both pars (c) and (d) of s 60(1). However, in what appears to be a departure from Tanevski No 1, he held that strict compliance with the time requirements ('forthwith' in s 60(1)(c) and s 121(a) and 'as soon as practicable' in s 60(1)(d) and s 121(b)) was not essential to the admissibility of the evidence. As a result he held that communications intercepted after the carrier had physically received a certified copy of the warrant were admissible but any communications intercepted before that were not 'under a warrant' within the exception in s 7(2)(b). He applied the same reasoning to stored communications warrants.

37 The issues decided by Derrick DCJ in Tanevski No 1 and Tanevski No 2 have not previously been raised for determination in this State or elsewhere in the Federation. However, in a number of cases courts have noted, without adverse comment, that service of a certified copy of a warrant on the carrier was effected well after the issue of the warrant: R v Bunting (No 5) [2003] SASC 253; R v Kashani-Malaki [2011] QSC 308; (2011) 254 FLR 244; R v Baladjam (No 17) [2008] NSWSC 1439.

38 The appellant sought leave to adduce (new) evidence relating to the warrants on which the WAPS relied to intercept the communications adduced in evidence at trial. Leave should be granted. Four warrants were issued under s 46 of the Act, two in relation to the appellant's telephone service and two in relation to Ravlich's telephone service. Only two of the warrants are challenged. The relevant details are as follows:

Date of s 60(1)(c) information

Date of s 60(1)(d) service

39 For both warrants, the obligation in s 60(1)(c) of the Act was performed by sending to the carrier, by facsimile transmission, a copy of the warrant.

40 Ground of appeal 1 is to the effect that the intercepted communications were inadmissible because of WAPS' failure to comply with the requirement in s 60(1)(d) of the Act to cause a certified copy of the warrant to be given as soon as practicable to the Managing Director of the carrier.

41 Ground 2, which is in the alternative, is to the effect that communications intercepted prior to the service of the certified copy of the relevant warrant on the carrier (between 12 January and 10 February 2010 in relation to warrant H10014-00 and between 29 December 2009 and 10 February 2010 in relation to warrant H09260-00) were inadmissible.

42 The particulars relied on in support of ground 3 are that (1) the case against the appellant was wholly circumstantial; (2) the appellant gave sworn evidence asserting an innocent association with Ravlich; and (3) it was not reasonably open to the jury to exclude beyond reasonable doubt the hypothesis that Lazo Milentis, not the appellant, was the supplier of the drugs.

43 It was not contended on behalf of the appellant that the principle of legality applies to the construction of the Act. That principle was explained by French CJ in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1:

It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statues be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law [43].

44 As has been noted elsewhere, the common law does not recognise either a general right to privacy, nor a more limited right to privacy for telephone communications: Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285, 298.

45 In any event, in relation to the issues in contention in this appeal the proper construction of the Act would be the same whether or not the principle of legality informed the approach to its construction.

Whether intercepted communications admissible under s 74

46 There is no challenge to the validity of the warrants, nor could there be. Although unnecessary to decide, I would construe s 7(2)(b) to mean the interception of a communication under a valid warrant.

47 The question in issue is whether a failure to serve a certified copy of a warrant within the specified timeframe (as soon as practicable) has the effect that information intercepted under the warrant is not 'lawfully intercepted information' for the purposes of s 74 of the Act.

48 Lawfully intercepted information is information obtained by an interception that does not contravene s 7(1) of the Act. Information obtained by an interception that is not authorised under the relevant warrant would not be lawfully intercepted information. Thus if s 47(a) is not complied with, the interception of a communication passing over a telecommunications system operated by a carrier would be unauthorised and information obtained thereby would not be lawfully intercepted information. Although a failure to comply with s 47 does not affect the validity of the warrant, the interception would not be 'under a warrant' for the purpose of the exception in s 7(2)(b).

49 Having regard to the text of s 47 and s 60(1) and the context, structure and purpose of the Act as a whole, the notification referred to in s 47(a) is confined to that required under par (c) of s 60(1) of the Act. My reasons for that conclusion are as follows.

50 Section 60(1) requires the certifying officer of the agency to whom the warrant has issued to take two separate and distinct steps within different statutory timeframes. Under par (c), a certifying officer of the agency shall cause the Managing Director of the relevant carrier to be informed forthwith of the issue of the warrant. The second step, in par (d), is that the certifying officer of the agency shall cause a certified copy of the warrant to be given as soon as practicable to the Managing Director of the carrier. Thus the two separate steps require different acts within different timeframes. The timeframe for step one is more stringent than that for step two. 'Forthwith' means immediately. The word 'practicable' is not defined in the Act. It has its natural and ordinary meaning of 'capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible': Wright v Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [26], [148].

51 The natural and ordinary meaning of the text of s 47(a) dovetails with that in s 60(1)(c). In particular, the requirement in s 47(a) of receipt by the Managing Director of the carrier of notification of the issue of the warrant has its direct correlative in s 60(1)(c), which requires that the agency cause the Managing Director to be informed of the issue of the warrant. A person who has been informed of the issue of the warrant has received notification thereof. The requirement in s 60(1)(d) for service of a certified copy of the warrant is separate and distinct and goes beyond notification of its issue. Further, the requirement in s 60(1)(c) would be redundant if the requirement in s 60(1)(d) was a necessary precondition of the agency's authority under s 47 to intercept communications under a validly issued warrant.

52 The natural and ordinary meaning of s 47(a) is also consistent with the context, structure and purpose of the Act as a whole. First, the scheme of s 60(1) is repeated in s 60(3) dealing with revocation. Interception can only begin and must end on notification of the issue of the warrant and its revocation respectively to the carrier 'forthwith', with service of a certified copy of the relevant instrument to follow as soon as practicable.

53 Secondly, the authority conferred by a Part 2-5 warrant can only be exercised by an approved officer or member, or class of officer or member, of an agency. The authority under the warrant is not in terms extended to the carrier operating the telecommunications system. The function of the carrier is limited; it is confined to doing what is technically necessary to facilitate the interception of the communications by authorised officers of an agency. Notification of the issue of the warrant to the carrier under s 47(a) links with the mandatory role of the carrier under s 47(b).

54 Thirdly, there is no compelling justification for requiring that service of a certified copy of the warrant on the carrier be a precondition to the existence of the agency's authority to commence interception in circumstances where there is a valid warrant which is in force from the time of its issue (s 54) and only for a limited period. That is particularly so when the statutory timeframe in s 60(1)(d) involves matters of judgment which will vary according to the circumstances of the case at hand. Such a requirement is also incompatible with the legislative scheme for urgent telephone applications which permits the issue of a warrant even in advance of receipt of sworn evidence.

55 Based on the scheme of the Act as a whole, the purpose of the requirement to serve a certified copy of the warrant on the carrier is to establish an audit trail connecting notifications under s 60(1)(c) to the certified copy of the relevant warrant in order to underpin the transparency and accountability secured by the extensive reporting obligations in the Act, including those of Managing Directors of carriers in s 97 of the Act.

56 Accordingly, the intercepted information obtained under warrants H10014-00 and H09260-00 was 'lawfully intercepted information' admissible under s 74. I would dismiss ground 1.

The commencement of time under s 60(1)(c) and s 60(1)(d)

57 It is also necessary to identify the starting point for the commencement of the time within which the steps in s 60(1)(c) and (d) have to be taken. That must be from the time of satisfaction of the matters in both pars (a) and (b) of s 60(1). The respondent contends the appellant failed to prove that WAPS contravened s 60(1)(d) by failing to serve on the carrier a certified copy of the warrants as soon as practicable. Having regard to the lengthy period between the issue of the warrants and the service of the certified copy on the carrier, the time at which interceptions commenced, the lengthy period between the certification of a copy of the warrants and service of them on the carrier and the locations of the various relevant entities, I would draw the inference that certified copies of the warrants were not served as soon as practicable. In those circumstances it is unnecessary to decide whether the 'proposal' in s 60(1)(b) must always coincide with the time of issue of the warrant to the agency. My preliminary view is that the answer is no; by way of example, the execution of the warrant may depend on the occurrence of a future contingency.

58 The parties conducted the appeal on the basis that the Act provides a code for the admissibility in evidence of intercepted information obtained in contravention of s 7(1). I will proceed on that basis.

Section 75 of the Act

59 As I have concluded that the intercepted information was admissible in the trial of the appellant under s 74 of the Act, it is unnecessary to determine the second issue relating to its admissibility under s 75. However, I will rule on that for the sake of completeness and because it was addressed by Derrick DCJ in Tanevski No 1. For the purpose of this exercise I will assume, contrary to my view, that the intercepted information was not admissible under s 74.

60 Section 75 permits a person to give evidence, in an exempt proceeding, of information obtained by the interception of a communication in contravention of s 7(1) if the court is satisfied that:

(a) but for an 'irregularity' [meaning a defect or irregularity (other than a substantial defect or irregularity):

(a) in, or in connection with the issue of, a document purporting to be a warrant; or

(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant]

the interception would not have constituted a contravention of subsection 7(1); and

(b) in all the circumstances, the irregularity should be disregarded.

61 At common law, there is a discretion to exclude evidence on grounds of unfairness or public policy (Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54). By contrast, s 75 is in substance a power to include otherwise inadmissible evidence.

62 In Tanevski No 1 Derrick DCJ held that the failure to meet the time requirements in s 121(a) and (b) (s 60(1)(c) and (d)) were not irregularities in the execution (or issue) of the warrants with the consequence that there was no power under s 144 (s 75) to permit the evidence to be adduced. He also held that the failures constituted a substantial defect or irregularity.

63 In its natural and ordinary meaning, 'irregularity' means a failure to comply, whether by act or omission, with statutorily prescribed rules and requirements. Section 75 does not in terms distinguish between procedural and substantive irregularity. Contrast Corporations Act 2001 (Cth), s 1322. Under s 75 (and s 144) the dividing line is the extent of the irregularity rather than its nature. A substantial irregularity is outside the scope of s 75.

64 The expression 'in connection with' is of wide import and capable of describing a spectrum of relationships ranging from the direct and immediate to tenuous and remote: Re His Honour Warden Calder SM; Ex Parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [35] - [38]. The expression is helpfully explained by Macfarlane J in the Canadian case of Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638:

One of the very generally accepted meanings of 'connection' is 'relation between things one of which is bound up with or involved in another'; or again 'having to do with'. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase 'having to do with' perhaps gives as good a suggestion of the meaning as could be had (639).

65 An irregularity (as defined) 'in connection with' either the issue or the execution of a warrant is intended to capture all requirements under the Act, non-compliance with which results in intercepted information obtained under a warrant, or a purported warrant, contravening s 7(1) of the Act. On any view, that includes the time requirements in s 60(1)(c) and (d).

66 The next question is whether the failure to comply with the statutory timeframe in s 60(1)(d) is a substantial irregularity on the facts in this case. The irregularities are not substantial. In the case of both warrants, notification under s 60(1)(c) was given within time by providing the carrier with a facsimile copy of the warrant. Certified copies of the same warrants were provided prior to their expiry albeit not within the statutory timeframe. But for the delay, the interceptions would not have constituted a contravention of s 7(1).

Ground 3 - verdicts unreasonable or unsupported by evidence

67 The principles relating to the proper construction and application of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) are well known and understood: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 - 495; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.

68 Leave to appeal has not been given on ground 3. The appellant must demonstrate that it has reasonable prospects of succeeding: Criminal Appeals Act, s 27(2). The appellant's written submissions fall well short of satisfying the threshold test. Moreover, they do not comply with Practice Direction 7.4 which requires an appellant to identify not only the evidence that supports his ground but also all the evidence which supports the verdict. However, the respondent has provided a schedule (Amended Annexure A) detailing all of the evidence which supports the verdicts.

69 The matters relied on by the appellant in his written submissions are identified in summary form:

the police did not show interest in pursuing other suspects, even though there was evidence suggestive of coded conversations between Ravlich and each of Lazo Milentis, Mark Bonomi and Mark Travicich;
Ravlich disclosed the appellant's identity to [the UCO], though dealers did not usually disclose their supplier's identities to their purchasers, out of concern that the purchaser would start dealing directly with the supplier. This contraindicated that the appellant was the supplier;
no drug-related paraphernalia was found at the appellant's premises after his arrest;
the appellant was using a phone registered in his own name;
there was no physical evidence implicating the appellant with the drugs or the money;
the appellant's sworn evidence asserted his innocence.

70 It will be apparent that the 'summary' travels beyond the particulars of ground 3. In order to understand the appellant's oral submissions (which also travelled outside the particulars and the written submissions), it is necessary to explain the prosecution case on each count.

71 Counts 1 and 2 both occurred on 3 February 2010. The prosecution case was that at or around 11.30 am in the Fast Eddys car park in Morley, Ravlich supplied to the UCO an ounce of cocaine for $7,400 in cash. The cocaine was supplied by the appellant to Ravlich for the purpose of the sale and Ravlich subsequently met the appellant to give him the cash. On giving the money to the appellant, Ravlich obtained from him a further ounce of cocaine which Ravlich supplied to the UCO at approximately 1.00 pm on the same day. The UCO again paid Ravlich $7,400 in cash which Ravlich subsequently gave to the appellant.

72 Count 3 was committed at approximately 5.00 pm on 24 February 2010 in the Fast Eddys car park in Morley. Ravlich supplied the UCO with 4 ounces of cocaine for $29,500 in cash. The cocaine was supplied by the appellant to Ravlich and Ravlich subsequently met with and gave to the appellant the sale proceeds.

73 Count 4 was committed on 26 March 2010. Ravlich and the UCO met in the car park at Fast Eddys in Morley at approximately 1.00 pm and drove to a vacant block at the rear of the appellant's home in Ellenbrook. Once at the block, Ravlich left the car and retrieved 10 ounces of cocaine which the appellant had earlier buried. Ravlich returned to where the UCO was waiting and exchanged the cocaine for $73,000 in cash which was in an esky. Ravlich returned to the vacant block and attempted to bury the esky at the location from where he had retrieved the drugs. The appellant was to collect the cash at a later time. Ravlich was arrested by police before the esky was buried. The appellant was arrested around two months later. It is little wonder that there was no drug-related paraphernalia at the appellant's premises at the time of his arrest. Moreover, it is apparent from the verdicts that the jury had positively rejected the appellant's evidence at trial.

74 The oral submissions did little to advance the appellant's case. In relation to count 4, three intercepts were referred to; two on 24 March 2010, the first between Ravlich and the UCO and the second between Ravlich and the appellant, and a third intercept on 26 March 2010 between Ravlich and the UCO. The broad thrust of the submission was that when Ravlich told the UCO that Ravlich's supplier had buried drugs under a star picket outside his block in Ellenbrook, Ravlich was engaging in a deliberate ruse to implicate the appellant when it was actually Ravlich who had buried the drugs.

75 In relation to a claim that Milentis was or may be the supplier of the drugs the subject of count 3, the court was taken (in the following order) to a telephone intercept on 12 February 2010 between Ravlich and Milentis (Jury Book, 122 - 123), a telephone intercept on 3 February 2010 between Ravlich and Milentis (GAB, 190 - 191), an SMS message on 24 February 2010 at 2.01 pm from Ravlich to the appellant (GAB, 104) and a telephone intercept on 24 February 2010 between Ravlich and Milentis. Particular reliance was placed on the telephone intercept on 3 February 2010 in which the following exchange occurred:

LM: Um also, remember what we talked about earlier? Right so don't don't don't go hooking into it because it might go tomorrow.

JR: Oh ok.

LM: Alright.

JR: I was planning on maybe hooking into it anyway.

LM: You were going to?

JR: Yeah maybe.

LM: Haha you already have?

JR: Nah I haven't already I was (indistinct) ... the gym.

LM: Um its up to you. Either which way but I've got someone coming around tomorrow.

76 Counsel for the appellant at trial cross-examined Detective Knight on this exchange. He interpreted it to mean that Ravlich had some drugs and Milentis would want some (ts 208). Counsel for the appellant in the appeal also referred the court to the cross-examination of Detective Knight at ts 210 to 222.

77 I have reviewed the evidence and other matters expressly relied on in the written and oral submissions advanced on behalf of the appellant. I have also reviewed the evidence detailed in Amended Annexure A. That unchallenged document bears out the respondent's submission that the strength of its case is in the timing and content of the intercepted material as a whole. The review leaves me in no doubt that it was well open to the jury, as a matter of fact, to be satisfied beyond reasonable doubt of the appellant's guilt. The appellant has fallen well short of establishing that ground 3 has reasonable prospects of succeeding. Leave to appeal should be refused.

78 Leave to appeal on ground 3 is refused. The appeal should be dismissed.

(Interception and Access) Act 1979

GELDERT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 226 (9 November 2012)

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (131 paragraphs)

GELDERT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 226 (9 November 2012)

Legislation Cited (3)

Cases Cited (7)