R v O'Meley

Legislative provisions

1. Section 7(1) of the TIA Act creates a general prohibition on the interception of communication passing over a telecommunications system. Section 7(2) creates certain exceptions to that prohibition. The relevant one for present purposes is where an interception of a communication is made under a warrant (s 7(2)(b)).
2. The warrant was issued pursuant to s 46A of the Act.
3. The following provisions are thereafter relevant: 47 Limit on authority conferred by warrant A warrant issued under section 46 or 46A 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 an authorised representative 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. … 60 Notification to authorised representative of carrier of issue or revocation of certain warrants (1) Where: (a) a warrant (other than a warrant issued under section 48) 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) an authorised representative of that carrier to be informed immediately 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 that authorised representative. … 61 Evidentiary certificates (1) The following: (a) the Managing Director of a carrier; (b) the secretary of a carrier; (c) an employee of a carrier authorised in writing for the purposes of this paragraph by the Managing Director or the secretary of the carrier; may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed. (2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by the Managing Director or secretary, or an employee, of a carrier shall be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, conclusive evidence of the matters stated in the document. (4) A certifying officer of an agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to: (a) anything done by an officer or staff member of the agency in connection with the execution of a Part 2‑5 warrant; or (b) anything done by an officer or staff member of the agency in connection with: (i) the communication by a person to another person of; or (ii) the making use of; or (iii) the making of a record of; or (iv) the custody of a record of; or (v) the giving in evidence of; information obtained by the execution of such a warrant. (4A) A certifying person may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to: (a) anything done by a person referred to in paragraph 55(3)(c) or (d) in connection with the execution of a Part 2‑5 warrant; or (b) anything done by a person referred to in paragraph 55(3)(c) or (d) in connection with: (i) the communication by a person to another person of; or (ii) the making use of; or (iii) the making of a record of; or (iv) the custody of a record of; or (v) the giving in evidence of; information obtained by the execution of such a warrant. (5) A document purporting to be a certificate issued under subsection (4) or (4A) by a certifying officer of an agency, or a certifying person, and to be signed by him or her: (a) is to be received in evidence in an exempt proceeding without further proof; and (b) in an exempt proceeding, is prima facie evidence of the matters stated in the document. (6) In subsections (1) and (2), a reference to the Managing Director or secretary of a carrier includes a reference to the Managing Director or secretary of a body corporate of which the carrier is a subsidiary. (7) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001. … 74 Giving information in evidence in exempt proceeding (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. (3) A person may give interception warrant information in evidence in an exempt proceeding. 75 Giving information in evidence where defect in connection with warrant (1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), 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.
4. The proceedings against the respondent are "exempt proceedings": see 5B(1)(a), the definition of prescribed offence (a) and (d) in s 5(1), and s 5D(2)(b)(iv) of the TIA Act.

The evidence on the voir dire

1. A trial had earlier commenced before Judge King in the District Court on 6 June 2016. That trial was vacated because of the late service of transcripts of the telephone calls. However, on a voir dire to exclude the telephone intercepts before Judge King evidence had been led of an evidentiary certificate pursuant to s 61 of the Act by Peter Tari, an authorised employee with Telstra. His certificate identified Telstra as a carrier under the Act. It went on to say this: 3. An employee of Telstra acting on behalf of the Chief Executive Officer of Telstra was informed by an officer or staff member of NSW Police Force that a warrant numbered C12860-00-00 had been issued to NSW Police Force. 4. A copy of the warrant, certified in writing to be a true copy of the warrant, was received by an employee acting on behalf of the Chief Executive Officer of Telstra on the date set out in Table 1. Table 1 also sets out details of the warrant number, the date Telstra was informed of the existence of the warrant, the Telstra telecommunications service intercepted, the dates interception was enabled and disabled in accordance with the authority of the warrant and the date the certified copy of the warrant was received. (emphasis added)
2. The table that was attached was as follows: Warrant Number Date faxed copy of warrant received Telstra Date interception enabled Date interception disabled Date original copy of warrant received by mail Telecommunications service number C12860-00-01 05/06/14 0429 593 062 05/06/14 12/06/14 05/02/14 C12860-00-02 05/06/14 0487 373 169 05/06/14 12/06/14 05/02/14 C12860-00-03 05/06/14 0456 606 992 05/06/14 12/06/14 05/02/14 C12860-00-04 05/06/14 0474 847 679 05/06/14 09/07/14 05/02/14 C12860-00-05 26/06/14 0477 025 892 26/06/14 24/07/14 05/02/14 C12860-00-06 01/07/14 0499 286 749 01/07/14 28/07/14 05/02/14 C12860-00-07 03/07/14 0498 004 638 03/07/14 28/07/14 05/02/14 C12860-00-08 03/07/14 0499 421 208 03/07/14 28/07/14 05/02/14 C12860-00-09 11/07/14 0475 137 136 11/07/14 28/07/14 05/02/14

1. The certified copy of the warrant attached to that certificate had a "Received" stamp on it from Telstra with the date 5 February 2014. Since the warrant was only issued on 4 June 2014 that date could not have been correct.
2. The trial was adjourned by Judge King without his Honour ruling on the application to exclude the evidence.
3. When the application came before Judge Hunt in March 2017 a further s 61 certificate was tendered. It was signed by Greg Wood on 6 June 2016. As with the earlier certificate it referred to an employee of Telstra "acting on behalf of the Chief Executive Officer of Telstra" being informed by the NSW Police Force that the warrant had been issued to the Police Force. It also said that a copy of the warrant certified in writing to be a true copy was received by an employee acting on behalf of the Chief Executive Officer of Telstra on the date set out in Table 1. Table 1 was in an identical form to that attached to the earlier certificate except that the date in each row of the last column was 2/07/14 instead of 05/02/14. Also attached to the certificate was a copy of the warrant. It contained a "Received" stamp on it from Telstra but on this occasion the date stamp said 2 July 2014.
4. There was also a statutory declaration by Greg Wood sworn 7 June 2016 which made reference to the evidentiary certificate signed by Peter Tari. Mr Wood said in his declaration that the date of receipt stated by Mr Tari of 5 February 2014 was a typographical error and the true copy of the warrant was received on 2 July 2014.
5. There was a certificate under s 61(4) of the Act from Assistant Commissioner Malcolm Lanyon. That certificate said (inter alia): 3. On 5 June 2014 a copy of the warrant described in the Second and Third Schedule hereto, was forwarded to the telecommunications service providers, by facsimile transmission with a request that officers of that corporation should make such connection of a technical nature between the telecommunication services referred to in the said warrant and the Telecommunications Interception Branch of the NSW Police Force, as was necessary to enable to communications upon the said telecommunication services to be listened to and recorded by officers of the Telecommunications Interception Branch. 4. As a result of actions of a technical nature taken by officers of the telecommunications service providers, officers of the New South Wales Police Force, on 5 June 2014 commenced to listen to and record by means of recording equipment, communications upon the aforesaid telecommunications services. 5. The listening to and recording of such communications by officers of the Telecommunications Interception Branch of the New South Wales police force, pursuant to the aforesaid warrant continued until 28 July 2014. (emphasis in original)
6. The Second Schedule to that certificate referred to a warrant issued by the nominated AAT member on 4 June 2014 in respect of the respondent. The Third Schedule contained this information (relevantly): Warrant No: C12860-00-00 Issue: 4 June 2014 Expiry: 13 August 2014
7. Evidence was given before Judge Hunt by Detective Superintendent Arthur Kopsias. He gave evidence that he viewed the first s 61 certificate produced by Peter Tari when it was brought to his attention. He saw that the date that the certified copy was said to be received predated the issue date. He considered that it was an irregularity made in good faith and he requested a new certificate from Mr Wood.
8. He gave evidence that the ordinary process was that once a warrant was issued, a faxed copy was sent through to Telstra and that gave the power to activate the recording procedures. At a later stage a certifying officer would certify a copy which would be sent to Telstra. He agreed that there would be just one certified copy that would be sent to Telstra. He agreed that the two certified copies of the warrant (exhibits C and 1) appeared to be identical but for the different "date received" stamps.
9. The primary judge had the transcript of the voir dire hearing before Judge King.

The primary judgment

1. Judge Hunt first set out the statutory scheme under the TIA Act. His Honour made reference to the certificate from Peter Tari noting that each of the items referred to in the first column (headed "warrant number") was received on 5 February 2014.
2. His Honour then said that there had never been any challenge to the validity of the certificate from the NSW Police pursuant to s 61(4) of the Act. That was a reference to the certificate from Assistant Commissioner Lanyon.
3. His Honour made reference to the application made before Judge King to exclude the evidence from the telephone intercepts based on what was said to be the deficiencies in the first s 61(1) certificate. His Honour noted the second such certificate from Mr Greg Wood and that the certified copy was said to have been received on 2 July 2014. In that regard his Honour said this: Relevantly, the second certified warrant does not have the original 05/02/14 date stamp on its face. That is, it presents as being a different copy of the certified warrant rather than representing the actual certified copy as originally received by the carrier. On my finding, if it were in fact the original certified copy as received by Telstra, as it purports to be, it would have on its face the original date stamp of 05/02/14, even if cancelled in some fashion, and with a further date stamp fixed in addition to "correct" the apparent error, purportedly 07/02/14.
4. His Honour then went on to deal with the oral evidence from Superintendent Kopsias and Mr Wood.
5. His Honour's reasons for excluding the telephone intercept material appear in the following section of his judgment: Consideration In the circumstances of this matter, I do not accept that the date stamp on the second certified copy can be relied on as evidencing of the date of actual receipt by Telstra of the certified warrant, given that a stamp with a different date must have been originally affixed to the first certified copy. I cannot be satisfied as to the circumstances in which that first date stamp was affixed to the first certified copy. There is no evidence at all about how the second date stamp came to be affixed to the second certified copy. There is no evidence at all of any other search or record within Telstra's business records to mean any confidence can rest on the legitimacy of that date. There is no direct evidence of a certified copy of the warrant being delivered by mail, although I am able to draw an inference that a copy found its way to Mr Tari, at least, in advance of his preparation of the first s 61(1) certificate which he signed on 21 September 2015. Importantly, s 47 provides that a warrant under s 46A, among others, does not authorise the interception of communications passing over a telecommunication system unless notification has been received by an authorised representative of the carrier under s 60(1). it is important to appreciate that the certificate from the agency, that is the certificate pursuant to s 61(4), makes no reference to service of a certified copy. I cannot be satisfied on the balance of probabilities that s 60(1)(c) was complied with in that there is an absence of evidence that an authorised representative of Telstra, as the carrier, was immediately informed of the issue of the indexed named person warrant, is [scil. as] required by s 60(1)(c). Nor can I be satisfied for the purposes of s 60(1)(d) if a certified copy was forwarded to Telstra as the authorised carrier "as soon as practicable" given my finding above about the insufficiency of evidence concerning receipt of the certified copy of the warrant at all.
6. His Honour then went on to consider the decision of the Court of Appeal in Western Australia in Geldert v State of Western Australia [2012] WASCA 226; (2012) 226 A Crim R 260 and the decision of the Court of Criminal Appeal of the Supreme Court of South Australia in R v Scarpantoni (2013) 118 SASR 131; 241 A Crim R 449; [2013] SASCFC 120. His Honour noted in those cases that there was only a breach of s 60(1)(d) whereas his Honour was of the view that there had been a failure in the present case also to comply with s 60(1)(c). In that way he held that those decisions were distinguishable. His Honour then concluded: I find on the balance of probabilities that the interception of communications was not done pursuant to a valid warrant given the failure for compliance to comply with s 60(1)(c) and (d) have been established (sic).
7. His Honour then turned to consider s 75(1) to determine whether the irregularity should be disregarded. His Honour concluded: I consider the irregularity operating here is substantial. I cannot be satisfied that two important requirements of the Act have been complied with. Accordingly the discretion to be satisfied that the irregularities ought be disregarded is not applicable. If I am wrong about my characterisation of the irregularities as being substantial, I would nevertheless in all the circumstances not form the view that the irregularities ought to be disregarded to admit the evidence sought, given the nature of the irregularities.
8. His Honour then considered, having found that s 74(1) operated to make the evidence prima facie inadmissible, that he should consider the balancing act as required by s 138 of the Evidence Act 1995 (NSW).
9. His Honour noted the concession by counsel for the accused that the evidence had high probative value and that the evidence was important in the proceedings. His Honour said the nature of the relevant offences was that there were serious breaches of drug legislation. His Honour then turned to a consideration of paragraphs (d) and (e) of s 138(1) of the Evidence Act and said: There is an absence of any evidence from Telstra about immediate notification of the issue of the warrant - on the face of either certificate. That failure is grave when there is an obligation for notification to be immediate. As to the certificate issue, if the court were merely concerned with the wrong or accidental affixing of a date received stamp on a certified warrant, and there was some evidence before the court as to how that error was detected, and what proper records could be relied on for the court to be satisfied, the impropriety or contravention in terms of the affixing of the 05/02/14 date stamp on the certified, if properly corrected, would not be characterised as grave, it is likely that the court would find that the impropriety or contravention that flowed from that was, at the most, reckless. The situation at hand however is quite different, given the evidence before me. That is, the second certified copy of warrant seems to be what the second s 61(1) certificate, deficient as it was in any event, was based. Although it is impossible for me to divine how it came to be, it is quite clear that what is put forward as being a certified copy received on 2 July 2014 cannot in fact be the original document received by Telstra. Otherwise, as I have indicated, there would be a pre-existing stamp on that document in relation to the mistaken application of the date stamp for 5/2/14. What is before the court, however arrived at, must be a misrepresentation of the true position about the state of the certified copy of warrant, whenever it was received. Accordingly the impropriety, to my mind is that impropriety is a grave one, and that impropriety must have been a deliberate one, for whatever reason. Those matters in my view, weigh heavily in this particular balancing exercise.
10. His Honour concluded as follows: The reality of the matter is that sections 60 and 61 read together, set up a regime where the court ought be entitled to place reliance on documents on their face, and indeed the operation of s 61 is to compel that situation. Relevantly, s 61(2) provides, as I have already extracted, that in exempt proceedings a certificate for the purposes of s 61(1) shall be received in evidence without further proof, and in such proceedings is conclusive evidence of the matters stated in it. That evidentiary consequence means that public policy requires there should be diligence and strict compliance by both carriers and agencies under the Act concerning notification of and certification about warrants, given the impost such warrants make into individual privacy. As I have indicated here, there is no indication in the s 61(4) certificate from the agency about advice about or provision at all of the warrant in question, and either or both of the competing first and second s 61(1) certificates are, apart from being mutually inconsistent, devoid of material that directly attests to receipt of advice about, or a certified copy of the warrant in compliance with subsections (c) and (d) of the Act. … I am not persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting it in this particular circumstance, and accordingly the evidence is excluded.

Grounds of appeal

1. The Crown appeals on two grounds as follows: On the grounds that the trial judge erred in determining that the telephone intercept information was not lawfully intercepted for the purposes of s 74 of the Telecommunications (Interception and Access) Act 1979 (Cth): (a) The trial judge erred in finding that the requirements of s 60(1)(c) of the Act had not been satisfied; and (b) The trial judge erred in finding that there was a "substantial irregularity" in connection with the execution of the warrant within the meaning of s 75 of the Act.

Submissions

1. The Crown submitted that the primary Judge made a factual finding which was not open to him, namely, that there was an absence of evidence of compliance with s 60(1)(c) of the TIA Act. That led to an error in his Honour's analysis and application of both ss 74 and 75 of the Act. The Crown submitted that, in any event, the issue before the primary judge was the service of the certified copy of the warrant pursuant to s 60(1)(d), and that the respondent did not challenge compliance with s 60(1)(c).
2. The Crown submitted that the certificate from Assistant Commissioner Lanyon was not in issue in the proceedings and it provided evidence that the carrier was informed immediately of the issue of the warrant in compliance with s 60(1)(c).
3. Further, the s 61(1) certificate of Mr Wood provided evidence that a faxed copy of the warrant was received on 5 June 2014 as paragraph 3 and table 1 demonstrate. Although on its face table 1 does not contain a reference to warrant number C12860-00-00, Superintendent Kopsias gave evidence that those were extension numbers of the same warrant for additional carriage services used by the respondent, the named person. In that way the primary Judge's finding that there was an absence of evidence that s 60(1)(c) had been satisfied was not open to him and amounted to a House v The King (1936) 55 CLR 499 error.
4. In relation to s 60(1)(d), even if it was not able to be satisfactorily established that Telstra received a certified copy of the warrant on 2 July 2014 it was uncontroversial that Telstra had a certified copy within their files by no later than 21 September 2015, the date that Mr Tari prepared his s 61(1) certificate. When the purpose of s 60(1)(d) was considered as established in Geldert and Scarpantoni, there was either no irregularity or it was not a substantial one.
5. Finally, the Crown contended that s 138 of the Evidence Act could have no application because the TIA Act completely governed the admissibility of intercepted telecommunications. Reference was made to what was said by Spigelman CJ in Cheikho v Regina [2008] NSWCCA 191; (2008) 199 A Crim R 167 at [90].
6. The respondent submitted that the facts demonstrated a cumulative, non-compliance with the provisions of ss 47(a) and 61(1)(c) and (d) of the TIA Act. That was submitted to have been the position taken by the respondent at first instance as shown by the submissions made, the evidence from Mr Wood and the cross-examination of Superintendent Kopsias.
7. The respondent submitted that there was no evidence that the facsimile referred to in the Assistant Commissioner's certificate was ever received by anyone at Telstra or received by an authorised representative. Further, both the s 61 certificates only established that an employee of Telstra was informed by an officer of the NSW Police that the warrant was issued on an unidentified date. There was no evidence that the unidentified employee was an authorised representative as s 60 requires.
8. In relation to whether the irregularity was substantial the respondent submitted that the irregularity attached to how and to whom the fact of the warrant having been issued was communicated. That was a fundamental irregularity attaching to the conferral of authority.
9. The respondent submitted that the primary Judge correctly distinguished the cases of Geldert and Scarpantoni because in those cases there was no failure to comply with s 60(1)(c).

Ground 1 - the trial Judge erred in finding that the requirements of s 60(1)(c) of the Act had not been satisfied

1. It should first be said that, despite the respondent's submission to the contrary, there was no issue before the primary Judge about compliance with s 60(1)(c) of the Act. The issue was only compliance with s 60(1)(d), whether, if there was an irregularity in that regard, the irregularity was substantial, and if it was, whether the evidence was nevertheless admissible pursuant to s 138 of the Evidence Act.
2. Nothing was said in the respondent's written submissions about s 60(1)(c) and the only reference at any point in the oral submissions was a statement (at T5, 06/06/16) that: It is (c) and (d), in particular (d), with which we say creates the situation where the evidence from the telecommunication warrants cannot be admitted into evidence. Thereafter nothing else was said about s 60(1)(c) nor was any doubt cast on whether Telstra was informed immediately about the issue of the warrant.
3. The respondent maintained that cross-examination of Superintendent Kopsias (at T22-24 09/03/17) was to show that there was no evidence that the warrant was notified. However, that cross-examination only asked questions to clarify the relationship between the dates in columns 2 and 6 of Table 1. That position was ultimately clarified in this exchange: Q. So where in column 2, date fax copy of warrant received, where there are different dates-- A. Yes. Q. -- throughout that column, are you saying that though documents that were faxed on those days were not warrants? A. Yeah, they weren't warrants, they were enabling notices to connect those services to that warrant for interception purposes. They're not warrants, no. Q. So if I can mirror his Honour's question, is the word "warrant" in that column a misnomer? A. It would - Q. Should that be "enabling certificate" or something else? A. it would be - that's - yes, it would be, yes. Thank you for bringing that to my attention too because it does draw that inference, yes. Q. So if I can just clarify something with you, that that second column across, date faxed copy of warrant received, saying that only relates to enabling notices, is that correct? A. Except for the first one. The first one would be the primary warrant which would have been on the, as it says here, 5 June. Or maybe - I would need to sight the papers. (emphasis added)
4. All of the other cross-examination of Superintendent Kopsias and Mr Wood from Telstra dealt with the date a certified copy of the warrant was sent and received.
5. Nor did the respondent make any submission concerning whether the person at Telstra was "an authorised representative of that carrier". No questions, for example, were asked of Mr Wood from Telstra about whether the person who was informed of the issue of the warrant was an authorised representative of Telstra. That was despite the fact that the certificate he provided referred in paragraphs 3 and 4 to "an employee of Telstra acting on behalf of the Chief Executive Officer of Telstra".
6. Accordingly, it is not clear why the primary Judge held that there was an absence of evidence that an authorised representative of Telstra was immediately informed of the issue of the warrant and, therefore, that s 60(1)(c) was not complied with. In so holding the primary judge denied procedural fairness to the Crown in circumstances where the Crown asked no questions of Mr Wood concerning those issues, nor made submissions about them. For that reason alone error has been demonstrated to justify upholding the appeal. However, since those issues were fully argued on the appeal, it is appropriate that the correctness of the primary judge's holding be determined.
7. In holding that s 60(1)(c) had not been complied with his Honour made no reference to paragraph 3 of the certificate under s 61(4) of the Act by Assistant Commissioner Lanyon that on 5 June 2014 (the day after the issue of the warrant) a copy of it as described in the third schedule to his certificate was forwarded to Telstra. Nor did his Honour have regard to the second column of table 1 in Mr Wood's certificate under s 61(1) indicating that the faxed copy of the warrant was received on 5 June 2014. In that regard s 61(2) of the Act provides that a document purporting to be a s 61(1) certificate is conclusive evidence of the matters stated in that document.
8. Although the respondent raised as an objection that there was no reference in table 1 to warrant C12860-00-00, that overlooked the fact that paragraph 3 of Mr Wood's certificate stated that an employee of Telstra acting on behalf of the Chief Executive Officer was informed by a member of the Police Force that warrant C12860-00-00 had been issued to the NSW Police Force. It also overlooked the explanation given by both Superintendent Kopsias and Mr Wood that the documents referred to in column 1 of table 1 were enabling notices that attached to the warrant on each occasion that a carriage service was found to be being used by the named person in the warrant. The first four of those services were identified at the time the warrant was first notified to Telstra being the day that interception was enabled on 5 June 2014.
9. His Honour also appears to have overlooked the evidence highlighted at [58] above. That was evidence that the warrant was faxed and received on 5 June 2014.
10. The respondent conceded that the day following the date of issue of the warrant satisfied the requirement of immediacy for s 60(1)(c) purposes. In my opinion that concession was properly made. There does not appear to be any authority on the meaning of the word "immediately" in the TIA Act. At the time Geldert was decided the requirement in s 60(1)(c) was for the Managing Director of the carrier to be informed "forthwith". McLure P held at [50] that "forthwith" meant "immediately".
11. In Scarpantoni Kourakis CJ and Sulan J said [at a time also when the word "forthwith" appeared in the Act]: [63] Construction of the provisions of the Telecommunications Act as at 20 April 2010 is problematic. It is difficult to construe subparas (c) and (d) of s 60(1) of the Telecommunications Act in a way which gives both a meaningful purpose. It is also hard to see the purpose of the requirement in s 60(1)(c) that the managing director of the telecommunications service provider be "informed forthwith" of the issue of the warrant. Ordinarily one would expect the police to attend to that matter quickly even without a statutory prompt in order to collect the intelligence they desire. It is also not clear why the authorisation to intercept should lapse if the notification is not given forthwith because there is, in any event, only a fixed period in which the warrant can operate. The consequence of the police not giving the notification forthwith is simply that the communications will not be intercepted for the whole of the period for which the warrant operates. Ordinarily one would not expect a statutory provision requiring the police to eavesdrop on the conversations of members of the public for a longer period than the police themselves think necessary. (emphasis added)
12. In Preece v Boyd & McDougall [2003] NSWSC 172; (2003) 38 MVR 540 Kirby J had to consider the meaning of the word in the context of the Roads Act 1993 (NSW) where the requirement was to "produce immediately to the officer (a) the name and residential address of the driver" and (b) "documents as are in the person's possession or control" as they related to the load on a vehicle. Kirby J said at [23] that it was necessary to look at the requirements in context so that "immediately" for the provision of a name and address might mean something different for the production of documents not in the person's possession but only in their control.
13. His Honour went on to say: [24] There are many cases in which the court has attempted a definition of the word "immediately". In R v Francis (1735) Lee temp. Hard. 113, Lord Hardwicke CJ said this: (at 114) "The only material word remaining, is the word immediately ... It was said that that word excludes all intermediate time and actions; but it will appear that it has not necessarily so strict a signification: Stevens in his Thesaurus expounds the word, immediate, by cito et celeriter ; so Cooper's Dictionary renders in English immediately, forthwith, by and by; and Minshew gives it as various meanings, and refers it to the word presently; nor is its signification more confined in legal proceedings, as appears even from 2 Lev. 77 in the case of Pibus and Mitford [ Pybus v Mitford (1672), 2 Lev. 75], which was cited to the contrary, which say thus, though the word immediately, in strictness, excludes all mesne time, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonably requisite for doing the thing." [25] The word "immediately" implies that the act should be done with all convenient speed (per Rolfe B, Thompson v Gibson 10 LJ Ex 243). [26] Ultimately, whether something is, or is not, done immediately is a question of fact and degree (Wightman v Land Board of Canterbury & Quirk (1912) 31 NZLR 799, per Denniston J at 806).
14. For the reasons given above, the primary judge erred in finding that there was an absence of evidence that the warrant had been notified immediately to Telstra. Conclusive evidence from the s 61(1) certificate from Mr Wood, the s 61(4) certificate from Assistant Commissioner Lanyon and the evidence of Superintendent Kopsias all attested to the fact that notification was made on 5 June 2014.
15. I would uphold ground 1.

Ground 2 - the trial judge erred in finding that there was a "substantial irregularity" in connection with the execution of the warrant within the meaning of s 75 of the Act

1. His Honour found that the irregularity in relation to the warrant was substantial. It is clear that one reason, at least, for that conclusion was his Honour's determination that two provisions of the Act (s 60(1)(c) and (d)) had not been complied with. In relation to s 60(1)(c) his Honour said: I cannot be satisfied on the balance of probabilities that s 60(1)(c) was complied with in that there is an absence of evidence that an authorised representative of Telstra, as the carrier, was immediately informed of the issue of the indexed named person warrant, is [scil. as] required by s 60(1)(c).
2. What is not clear is whether his Honour considered that s 60(1)(c) was not complied with because no "authorised representative" of Telstra had been immediately informed or because his Honour was not able to find evidence that any person at Telstra had been immediately informed of the issue of the warrant.
3. Although his Honour purported to distinguish Geldert and Scarpantoni on the basis that those cases concerned only a failure to comply with s 60(1)(d), his Honour seemingly had no regard to what was said in Geldert by McLure P (with whom Martin CJ and Mazza JA agreed) especially at [51], [55] and [66] nor to the discussion by Kourakis CJ and Sulan J in Scarpantoni at [63]-[66].
4. Justice McLure said in those passages in Geldert: [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. … [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. … [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).
5. In Scarpantoni following the passage I have set out at [66] above, Kourakis CJ and Sulan J said: [64] We accept that the provision of the certified copy of the warrant itself is a mechanism to ensure compliance with the terms of the warrant and would act as a check against mistaken, misleading or false oral notifications. However, if both the immediate notification, and the provision of the certified copy of the warrant, were required to be provided before a interception could be made then it is difficult to see any utility, as McClure P [sic] observed in Geldert, in the requirement of immediate notification in subpara (c). [65] One possible rationale for the dual requirement is that subparas (c) and (d) were enacted for the purpose of ensuring that the issue of the warrant was brought to the attention of the managing director within a time frame, and in a way, which would allow him or her to establish a regime which ensured that the interception took place, and only took place, within the terms of the warrant. The purpose of the notification in subpara (c) would then be to give the managing director early notice that the warrant had been issued so that he or she could put arrangements in place which would ensure that the provider's employees intercepted the communication strictly in accordance with the terms of the certified copy of the warrant when it eventually arrived. If that is the purpose of the dual requirement, then a purposive construction of s 47(a) of the Telecommunications Act would have the phrase "notification of the issue of the warrant" in s 47(a) encompass both the early information in subpara (c) and the provision of the warrant in subpara (d). However, we are not so sure that that is the purpose to give that consideration much weight. We are more struck by the way in which s 47(a) "dovetails", as McClure P [sic] put it, with s 60(1)(c). The "notification of the issue of the warrant" in s 47(a) fits neatly with the phrase "informed forthwith of the issue of the warrant" in s 60(1)(c) of the Telecommunications Act. (footnotes omitted)
6. The significant matter to emerge from those passages is that a breach of s 60(1)(d) is unlikely in most circumstances to amount to a substantial irregularity because of the purpose of that provision. Moreover, there must be some doubt in the light of s 75(2) that a failure to forward a certified copy of the warrant as soon as is reasonably practicable is an irregularity in connection with the issue of a document purporting to be a warrant or with the execution of the warrant. The provision of a certified copy after the warrant has been issued and notified to the carrier and the issue of the warrant implemented, is not likely to fall within s 75(2): see also R v Bunting & Wagner (No 5) [2003] SASC 253 at [29].
7. However, consideration of those matters does not arise. The evidence established clearly that a certified copy of the warrant was served on Telstra on 2 July 2014. The s 61(1) certificate of Mr Wood was conclusive evidence that the certified copy was received on that date. The cross-examination of Superintendent Kopsias (T21.26 to 24.8, 09/03/17) accepted that the date in column 6 of Table 1 in Mr Wood's certificate was correct and endeavoured to show that the information in column 2 was incorrect. I have set out the passage that clarified that matter at [58] above. Superintendent Kopsias ultimately accepted that the word "warrant" in column 2 was a misnomer and that it should read "enabling certificate" or something similar.
8. The primary judge's conclusion about s 60(1)(d) seems to have been coloured by the fact that there were two competing certificates, one from Mr Tari and one from Mr Wood. However, the error in Mr Tari's certificate was patent. The certified copy of the warrant could not have been received by Telstra on 5 February 2014 when the warrant was not issued until 4 June 2014. The error was accepted and explained by Mr Wood in his statutory declaration of 7 June 2016 and that statutory declaration went on to say that the certified copy of the warrant was received on 2 July 2014. If the matter was not clear from paragraphs 3, 4 and Table 1 in his s 61 certificate, it was put beyond doubt by his statutory declaration and his oral evidence where this appears (T53.43, 09/03/17): Q. So what his Honour is saying is - what you're saying to his Honour is you've reviewed it and you're satisfied that that is in fact correct, that it was received as at that date stamp that says 2 July 2014? A. Yes
9. Mr Tari's patently erroneous certificate should have been put to one side.
10. The only remaining issue on the appeal although, as noted earlier, not an issue raised before the primary judge, is whether there was any irregularity because the s 61 certificate of Mr Wood refers in paragraphs 3 and 4 to "an employee of Telstra acting on behalf of the Chief Executive Officer" rather than "an authorised representative of" Telstra. The respondent's further point was that s 61(1) requires the same authorised representative to be informed immediately of the issue of the warrant and be given a certified copy as soon as practicable whereas there is no necessary identity of the employees referred to in each paragraph.
11. The Crown drew attention to what was said in R v Bunting and Wagner (No 5) [2003] SASC 253 by Martin J at [20] and [24]. That case is of limited use because the wording in ss 47 and 60(1)(c) was different from the form of the Act now under consideration. Section 60 then required the Managing Director to be informed and given a copy of the warrant, but s 47 enabled notification of the issue of the warrant being received "by or on behalf of the Managing Director".
12. The only apparent purpose served by the authorised person in s 60(1)(c) and (d) being the same person would, following McLure P in Geldert at [55], be to establish a clear audit trail connecting notifications under (c) to receipt of the certified copy under (d). In a similar manner to the result in Geldert, any irregularity from the failure to identify one employee as an authorised representative by Mr Wood's certificate must be regarded as not substantial.
13. The primary Judge does not appear to have been referred to New South Wales Crime Commission v Vuletic (2005) 64 NSWLR 301; [2005] NSWSC 614. Vuletic provides a clear indication that any breach in that regard would be a technical irregularity since it was not, as in Vuletic, accompanied by impropriety: Vuletic at [68]. In that case the persons who intercepted the carriage services were not employees of the carrier within the meaning of s 47(b) of the Act but were employees of another company within the carrier group of companies.
14. Vuletic has been followed in R v Almirol (No 1) [2007] NSWSC 290; (2007) 168 A Crim R 423 at [50] where the tapes of transcribed conversations wrongly referred to a different warrant number issued on a different day from the warrant which authorised the interception, and in R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286 at [292] where there was a failure to nominate on the warrant specific offences being investigated.
15. Although the primary judge referred to the breaches his Honour found as improprieties (see [44] above), he did so because he was then discussing s 138(3)(d) and (e) of the Evidence Act. There was no impropriety in the commonly understood meaning of that word in notifying the warrant to an employee acting on behalf of the Chief Executive Officer instead of to an authorised representative. But for an absence of proof, which might have been forthcoming from Mr Wood had the issue been raised, the employee referred to in the certificate may well have been the authorised representative because, as is apparent, the notification to that employee led immediately to the interception of the carriage service pursuant to the warrant.
16. Taking those matters into account, any irregularity concerning the identity or continuity of the authorised representative is not substantial and is one which is not such that the interception would have constituted contravention of s 7(1) of the Act, and the irregularity should be disregarded.
17. I would uphold this ground of appeal.

Conclusion

1. I propose the following orders: 1. Uphold the appeal by the Director of Public Prosecutions. 2. Set aside the order of Judge Hunt excluding the evidence of the telephone intercepts obtained pursuant to Warrant Number C12860-00-00 issued 4 June 2014.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2019