R v Facelli[2012] QSC 16

SUPREME COURT OF QUEENSLAND

1. This is an application for pursuant to section 590AA of the Criminal Code.  The application is brought on behalf of Mr Facelli who is charged with one count of Trafficking in Dangerous Drugs and one count of Possessing Property Obtained from Trafficking and was heard at short notice on 7 February 2012 in the circumstance that the trial was listed to commence on 8 February. 

2. The application concerns the admissibility of certain certificates obtained under the Telecommunications (Interception and Access) Act 1979 (Cth) ("the Act") and the consequential admissibility of certain evidence obtained as a result of the issue of warrants under the Act.  The evidence is essentially text messages allegedly sent to and sent from a mobile telephone alleged to have been in the possession of the applicant.  The text messages are, I understand, an important part of the evidence sought to be relied upon to prove a charge of Trafficking.

3. The text messages fall within the concept of a "stored communication" within the meaning of that term as used within the Act.^[1] 

Certificate Under Section 129

4. Section 129 of the Act provides:-

"129Evidentiary certificates relating to actions by carriers

(1)The following:

(a)the Managing Director of a carrier or a body corporate of which the carrier is a subsidiary;

(b)the secretary of a carrier or a body corporate of which the carrier is a subsidiary;

(c)an employee of a carrier authorised in writing for the purposes of this paragraph by a person referred to in paragraph (a) or (b);

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 a person referred to in paragraph (a), (b) or (c) of that subsection:

(a)is to be received in evidence in an exempt proceeding without further proof; and

(b)in an exempt proceeding, is conclusive evidence of the matters stated in the document.

(3)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."

5. Section 129 is an important provision found within Chapter 3 of the Act which deals with access to stored communications.  Found within Chapter 3 of the Act is section 108 which makes it an offence to access stored communications unless that access is one of those specified in section 108(2) and in the circumstances of this application accessing a stored communication under a stored communication warrant pursuant to section 108(2)(a).

6. Putting it as simply as I can, Chapter 3 of the Act provides that enforcement agencies may apply for a stored communication warrant^[2] and upon the issuing of warrants and their being brought to the attention of the communication carrier^[3] the carrier becomes obliged to comply with the warrant^[4] and provide information to the agency.  Section 129 enables certificates issued under the section to be put into evidence as "conclusive evidence" of the matter stated in the document, for example that the information was held by the telecommunications carrier and it relates to the person specified in the warrant. 

7. The certificate in question was signed by Martin Green who certified that he was employed by Optus Administration Pty Ltd as the Manager of the Optus Law Enforcement Liaison Unit. The certificate in question^[5] contained the following:

"TELECOMMUNICATIONS INTERCEPTION AND

ACCESS ACT 1979

CERTIFICATE UNDER SECTION 129

Paul O'Brien, the Company Secretary of Singtel Optus Pty. Ltd. (ACN 052 833 208), and the Company Secretary of Optus Mobile Pty. Ltd. (ACN 054 365 696) (being a carrier) (Optus) pursuant to subsection 5 of the Telecommunications Interception and Access Act 1979 ("Interception Act"), a wholly owned subsidiary of Singtel Optus Pty Ltd., has authorised pursuant to subsection 61(1)(c) of the Interception Act the Manager of the Optus Law Enforcement Liaison Unit to issue written certificates for the purposes of subsection 61(1) of that Act.

I, Martin Green, certificate that I am employed by Optus Administration Pty. Ltd. (ACN 055 136 804) as the Manager of the Optus Law Enforcement Liaison Unit.

I, Martin Green, certify pursuant to subsection 61 of the Interception Act, the following facts which I consider are relevant to acts or things done by or in relation to employees of Optus Administration Pty. Ltd. (ACN 055 136 804) (being the employer of all staff of Optus Group Companies) (Optus Employees), also a wholly owned subsidiary of Singtel Optus Pty. Ltd., in order to enable the execution of a warrant issued under section 116 of the Interception Act.  A true copy of this warrant, dated 26 June 2009 and numbered QP5412-09, requiring the interception of a telecommunications service provided by Optus, is annexed and marked with the letters POB1 (Warrant).

1.A true copy of the warrant numbered QP5412-09 was received from Queensland Police by facsimile transmission on 15 June 2009, and subsequently by mail on 6 July 2009.

2.Upon receipt of the facsimile copy of the warrant dated 26 June 2009, employees of Optus, in accordance with a system previously established within Optus for such purposes, did the acts and things of a professional and technical nature as were necessary to bring about the searching, retrieval and disclosure in a useable format the stored communications to which access was authorised by the warrant.

3.The acts and things done by employees of Optus and referred to in paragraph 2 were done and completed so as to permit the stored communications to which access was authorised by the warrant to be provided to Queensland Police by Electronic Means on 7 July 2009.

Martin GreenDate:  30 November 2011

Signature

LELU Manager

SingTel Optus Pty. Ltd."

8. In argument before me an issue arose whether Mr Green had been duly authorised under section 129(1) to issue certificates. That was notwithstanding that the certificate seemed to purport to be signed by a person referred to in section 129(1)(c) (see section 129(2)).

9. It was argued that where the word "employee" is used within section 129(1)(c) the Act requires that a named person be authorised in writing by either the managing director or the secretary of the carrier and that the authorisation of an "officeholder" or by a description of an officeholder did not comply within the Act.^[6]

10. In argument reference was made to the recent decision in R v Kashini-Malaki^[7] where Ann Lyons J had to consider section 47 and section 60 of the Act and whether the issue of a warrant under the relevant Part 2 of the Act had to be brought to the attention of the Managing Director of a carrier.^[8]  While those decisions are helpful they concern differently worded sections contained in a different Part of the Act.

11. There is ground for concluding that the intention of parliament may have been that where the word "employee" is used in section 129(1)(c) was that the Managing Director or the secretary would authorise in writing a named person to be responsible for the preparation of and issuing of certificates. This is so in the circumstance of the effect that a certificate would have at trial by reason of section 129(2). It is, in the view I take, distinctly arguable that the parliament intended that in these circumstances the Managing Director or the secretary would turn his or her mind to the experience and competency of an employee who might be authorised in writing to issue certificates. This might be contrasted with the considerations that were mentioned by Martin J and Ann Lyons J when they considered sections 47 and 60.^[9]

12. But it is not necessary for me to decide this point because on its face, in the view I take, the certificate does not comply with section 129. Apart from the reference to section 129 at the top, the certificate refers to authorisation pursuant to section 61(1)(c) of the Act and Mr Green certifies that pursuant to section 61 of the Act the "following facts" are set out or are relevant to acts or things done or in relation to employees of Optus.  In other words on its face the certificate certifies an authority pursuant to section 61 of the Act not section 129.  Nowhere does he say that he has been authorised in writing under section 129(1).  He does not purport to certify under section 129, only section 61.

13. Section 61 of the Act provides for evidentiary certificates issued as a result of warrants authorising the interception of communications under Chapter 2 of the Act.  In the circumstances where Mr Green does not purport to prove his authorisation to issue certificates under section 129 and where he expressly purports to certify pursuant to section 61 and not section 129, I hold that exhibit 2 does not comply with the requirements of section 129(1) and is not receivable in evidence under section 129(2)(a).

14. This ruling may have consequences for the admissibility of the information provided by Optus to the investigating police under the warrant. Objection was taken to the admissibility of the CD disc and its contents on a number of grounds. I have dealt with the grounds as argued before me below. It may be that as a consequence the objection can profitably be renewed.^[10]

Was the Stored Information Illegally Accessed?

15. On behalf of the accused it was submitted that the information obtained under the warrant was illegally accessed by Optus because it accessed the information before the warrant issued.

16. The argument was founded upon the statement found in Mr Green's certificate^[11] where it is stated that a copy of the warrant was obtained by facsimile transmission on 15 June 2009 and subsequently by mail.  The certificate then states that upon receipt of the facsimile copy of the warrant, employees of Optus did acts and things of a professional and technical nature necessary to bring about the searching, retrieval and disclosure of communications which access was authorised by the warrant.   The warrant and the communications with Optus (or at least some of the communications) form part of exhibit 2.  It is apparent that the warrant issued pursuant to section 116 of the Act when it was signed on 26 June 2009.^[12]  So, it is contended, when Optus commenced to access information on 15 June before the warrant issued, an offence under section 108(1) was committed with the consequence that evidence so accessed is inadmissible by reason of section 147 unless permitted by either sections 143, 144, 145 or 146 of the Act.

17. It was submitted that the only section that might facilitate the reception of the evidence obtained under the Warrant was section 144 but it was submitted that that section could not be availed at because the circumstance contended could not be said to be in "irregularity" within section 144(1)(b) of the Act.

18. On behalf of the Crown, Mr Cowen of Counsel submitted that the reference to 15 June 2009 must be read as a typographical error, that it was inconsistent with the tenor of the certificate signed by Mr Green (exhibit 2). He submitted that on its face and when read with the other documents forming part of exhibit 2, the date 15 June was a "palpable error".

19. That it may be a typographical error may be granted but when pressed as to whether it was proposed to call evidence from Mr Green to clarify this issue I was informed that the Crown relied upon the document and the submissions and that Mr Green would not be called.

20. Nevertheless, notwithstanding my misgivings at the failure by the Crown to attempt to clarify this issue, I have concluded that the likelihood is the reference to 15 June is a typographical error. Although the inclusion of 15 June is unexplained that anything relevant happened on that day is inconsistent with the other documentary evidence and accordingly I rule against the submission that the stored communications or information so obtained under the warrant was obtained illegally and therefore inadmissible.

Objection to the Precedent Evidence of the CD Disc and Information Contained Therein

21. Section 130 of the Act provides:-

"130Evidentiary certificates relating to actions by enforcement agencies

(1)A certifying officer of an enforcement 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 stored communications 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 information obtained by the execution of such a warrant; or

(ii)the making use of such information; or

(iii)the making of a record of such information; or

(iv)the custody of a record of such information; or

(v)the giving in evidence of such information.

(2)A document purporting to be a certificate issued under this section by a certifying officer of an enforcement agency 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."

22. Exhibit 1 before me is a certificate purportedly under section 130 signed by Michael James Condon, Acting Assistant Commissioner.^[13]  Paragraph 5 of the certificate says:

"The information was received by the Queensland Police Service from Optus on 7 July 2009.  The information was received electronically via SEDNode.  An officer of Queensland Police Service made an exact copy of the information received from Optus, and that copy is attached as Annexure B."

23. Objection was taken to the tender of the contents of the CD disc which was said to be an electronic copy of information obtained from Optus. I am satisfied that originally attached to the certificate by staple was an Annexure A being a copy of the stored communications warrant and a document styled "Annexure B" which on its face referred to an "attached disc". In fact the CD disc (which is contained in a hard cover storage box) was probably never physically attached to that documentation.

24. It was submitted that the failure to attach the CD disc physically to the documentation raised an issue as to whether the Crown can prove that the information on the disc is an exact copy of the information received from Optus under the warrant.

25. In response to this objection the Crown called evidence from John Thomas Mahoney who was an Acting Senior Sergeant of police. He gave sworn evidence that subsequent to 30 June 2009, he received in the mail the documents and the CD disc forming part of exhibit 1.^[14]  Under cross-examination he said that he couldn't recall whether the documents were stapled and he couldn't recall whether the CD disc was physically attached to any documentation, nor more specifically, whether it was physically attached to the annexure sheet.

26. No objection was taken to the content of the certificate signed by Acting Assistant Commissioner Condon. The certificate records that the unit within the State Crime Operations Command had a facility for the execution of Stored Communication Warrants and that on 26 June 2009 a warrant was executed upon Optus. He further certifies that as a result of executing the warrant information was ultimately received by the Queensland Police Service from Optus electronically. The contents of paragraph 5 of the certificate are quoted above and as I have noted the typed document headed "Annexure B" refers to an "attached disc".

27. In the circumstances of the evidence, I am satisfied that the CD disc in question the Crown proposes to be tendered into evidence is the CD disc referred to in paragraph 5 of the certificate under section 130. Accordingly I overrule the objection on the ground argued.

28. I have ruled against the objection to the tender of the CD disc and its contents, on the grounds argued. In view of my ruling and in relation to the certificate purportedly issued under section 129 of the Act it may be that an objection might be renewed on a different ground.

Objection to the Contents of the CD Disc

29. Objection was taken to the receipt into evidence of the contents of the CD disc on a further ground. I was told that the electronic information stored when retrieved forms three EXCEL spreadsheets. Counsel for the accused drew my attention that there are differences with respect to the content of the three spreadsheets. He submitted that the failure to explain why the contents are different renders it unfair for the evidence to be tendered into evidence pursuant to the discretion found in section 130 of the Evidence Act 1977.

30. Specifically he referred me to some of the contents of the first spreadsheet which on pages 6, 7, 8 and 9 contained entries that were found in neither the second or third spreadsheets. He pointed out that while the second and third spreadsheets are more or less identical he noted that in the second spreadsheet at page 8 there were three entries that were found only in that spreadsheet and to like effect in spreadsheet 3 at page 13 there were four entries that were only found in the third spreadsheet. Counsel also pointed out that when an examination was made of the mobile telephone in question, there were four messages in the "Inbox" that were not identified as part of the "stored communications" found by Optus in its records. Counsel submitted that the failure to explain these inconsistencies and why or how they could have arisen rendered the evidence unreliable with the consequence that it was unfair for the Crown to rely upon it.

31. In response it was submitted on behalf of the Crown that the information contained in the CD discs is the information held by Optus and provided by it in response to the warrant. Further, it was submitted, that it was not incumbent on the Crown to explain why there would be three spreadsheets containing differing information, it was sufficient for the Crown to prove that the information found in the discs was the information provided by Optus. Counsel submitted that at best the inconsistencies created a matter for the jury to consider when it deliberated upon the evidence as a whole.

32. I am not persuaded that there is any unreliability in the evidence sufficient to render its being tendered by the Crown or relied upon as unfair. Accordingly I overrule the objection.

Orders

33. In the result of my ruling I order that the certificate dated 30 November 2011 signed by Mr Martin Green (exhibit 2) is inadmissible.