R v ZHI QIANG HAN

Basis on which the evidence was objected to 6After the respondent was arraigned but before a jury was empanelled, his counsel sought a ruling as to the admissibility of the information obtained pursuant to the two warrants issued in respect of the investigation of the drug offences. The basis of the application was expressed to be that, although the telecommunications services in question had been lawfully intercepted, the fact that the information had been obtained in relation to an investigation into an offence not involving the respondent precluded the Director of Public Prosecutions from drawing on that material for the purpose of the present prosecution. 7The argument appears to have been based upon a misconception as to the effect of the decision of the Full Court of the Federal Court of Australia in Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159. Before turning to consider that decision, it is necessary to understand the statutory context in which it was made. 8The Telecommunications (Interception and Access) Act opens (in s 7(1)) with a prohibition, stated in deceptively simple terms, on the interception of communications passing over telecommunications systems. Most of the balance of the Act is devoted to exceptions to that prohibition. One of the exceptions is the interception of a communication under a warrant: s 7(2)(b) of the Act. 9Information obtained by intercepting a communication passing over a telecommunications system in accordance with an exception to the general prohibition is defined in s 6E of the Act as "lawfully intercepted information". In the present case, there has been no challenge to any of the three warrants issued to the New South Wales Crimes Commission. It was conceded on behalf of the respondent in the court below that the information obtained pursuant to those warrants is lawfully intercepted information within the meaning of the Act. 10The way in which lawfully intercepted information may be dealt with is governed by Part 2-6 of the Act. Mirroring the structure of the provisions relating to the interception of communications passing over telecommunications systems, Part 2-6 opens (in s 63) with a prohibition on dealing with intercepted information subject to a series of exceptions. 11Importantly, a distinction is drawn in those provisions between giving the information in evidence in a proceeding and other ways in which the information might be dealt with (defined as communicating the information to another person, making use of the information or making a record of it). As to giving information in evidence, relevantly for present purposes s 74(1) of the Act provides: A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding. 12In the present case, since it is conceded that the information sought to be adduced in evidence is lawfully intercepted information, the critical issue in determining whether the information may be given in evidence is whether the criminal proceeding against the respondent for the offence of demanding money with menaces falls within the definition of an "exempt proceeding" for the purposes of that section. It is clear that it does. That phrase is defined to include "a proceeding by way of a prosecution for a prescribed offence": s 5B(1)(a). A "prescribed offence" is defined in s 5(1) to include "any other offence punishable by imprisonment for life or for a period, or maximum period, of at least three years". The offence with which the respondent is charged is punishable by a maximum penalty of ten years imprisonment and accordingly falls within that definition. 13It follows that, leaving aside any question as to the way in which the information was dealt with prior to its being included among the material in the Crown case against the respondent, the information obtained pursuant to the two drug offence warrants may be given in evidence under the authority of s 74 of the Act, regardless of the offences on the strength of which the warrants were issued. 14The decision in Samsonidis was not concerned with that question. It was concerned, rather, with the lawfulness of communicating such information outside the context of its being given in evidence. At the time of the decision, Mr Samsonidis was in custody in Greece awaiting trial on a series of charges including drug offences. Authorities in Greece had made a request under Commonwealth mutual assistance legislation as a result of which the Australian Federal Police had communicated to the Greek authorities information intercepted pursuant to a warrant under the Act. 15It was contended on behalf of Mr Samsonidis that the communication of that information constituted a breach of the prohibition on dealing with intercepted information contained in s 63 of the Act. The Australian Federal Police contended that their communication to the Greek authorities fell within the exception provided for in s 67(1)(a) of the Act, which allows the communication of lawfully intercepted information "for a permitted purpose" in relation to the agency that obtained the information. The decision was not concerned with any question of entitlement to give the information in evidence in a proceeding. 16It may be that the decision in Samsonidis should be approached with some care. Although the outcome of the case was plainly correct, s 67(1)(a) really had no room to operate in that case, for a reason not dealt with in the decision. Section 67(1)(a) is concerned with distribution or communication within an agency. What was in issue in that case was the distribution or communication from one agency to an overseas agency. This exception, distribution to another agency, is to be found in s 68, not in 67(1)(a), but it does not extend to an overseas agency. The argument, seeking to rely on s 67(1)(a), was misconceived. 17In any event, in placing reliance on the decision in Samsonidis, the argument put in the court below on behalf of the respondent appears to have overlooked the distinction drawn in Part 2-6 of the Act between giving lawfully intercepted information in evidence and other dealings with such information. It was submitted to the judge below that s 67 prohibits the use of the information in the proceeding against the respondent except for a permitted purpose. It was submitted, further, that the purpose must be disclosed on the face of the relevant warrant. Those submissions led the judge to conclude that s 74 of the Act requires a connection between the exempt proceeding and the information obtained pursuant to the warrant (judgment, page 5.9). 18We do not think there is any basis for reading such a requirement into s 74. The content of the requirement in s 67 of the Act that the use of the information be for permitted purpose simply does not arise in relation to s 74. Accordingly, we were satisfied, as conceded on behalf of the respondent, that the ruling appealed from entailed error. 19The Director of Public Prosecutions submitted that, in addition to allowing the appeal and vacating the ruling made, this Court should make an order that the evidence is admissible. We were not satisfied that an order in those terms was appropriate. Section 74(1) confers an entitlement to give the information in evidence in certain kinds of proceedings. The application of that section is not, however, determinative of the issue of the admissibility of the evidence, a question that should be reserved for the trial judge. 20In the present case, the argument below touched on the question whether the information was communicated by the Crime Commission to the New South Wales Police or otherwise dealt with in a manner falling within the terms of the prohibition contained in s 63(1) of the Act. However, the issue whether any such dealing or communication occurred and, if so, whether it was authorised (under s 68 or otherwise) was not explored. We did not consider it appropriate for this Court to pre-empt any ruling the trial judge may be asked to give, for example, under s 138 of the Evidence Act 1995. 21For those reasons, we unanimously allowed the appeal and vacated the ruling given by Finnane DCJ on 15 March 2011.

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