R v O’Meley

1. [1]

   BASTEN JA: The present appeal is brought from an interlocutory judgment by the Director of Public Prosecutions (NSW), pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The question raised is whether the trial judge was correct in rejecting evidence of intercepted telecommunications, forming the substantial evidential basis for the prosecution of the respondent.

2. [2]

   The legislation and the circumstances of the case have been fully set out by Davies J and need not be repeated. The authority provided by a warrant issued under the Telecommunications (Interception and Access) Act 1979 (Cth) ("the Interception Act") depended upon compliance with the notification provisions in s 60(1), in accordance with the terms of s 47. The trial judge was not satisfied that there had been compliance with two requirements, the first being s 60(1)(c), requiring that a certifying officer of the NSW Police Force had caused an authorised representative of Telstra to be informed immediately of the issue of the warrant.

3. [3]

   An officer of Telstra, Mr Greg Wood, stating that he was duly authorised to give a certificate under s 61(1)(c) of the Act, certified that an employee of Telstra acting on behalf of the Chief Executive Officer had been informed by an officer or staff member of the NSW Police that a warrant had issued. A table indicating various dates on which the warrant, together with advice as to relevant telecommunications service numbers, was provided to Telstra was included in the certificate. Each communication included the warrant number, together with a description of the telecommunications services and was separately identified from 1-9. That document was required to be admitted in evidence as a certificate of a certifying officer and was prima facie evidence of the matters stated in the document.

4. [4]

   There was, as Davies J has noted, other evidence of the notification of the issue of the warrant the day after it was issued.

5. [5]

   The only reason why the trial judge may have had a doubt about the certificate was that an earlier certificate had stated, in a column irrelevant to the question of immediate notification, that a certified copy of the original warrant had been received on a date before the warrant was issued. There was no reason to suppose that the rest of the information contained in the first certificate was inaccurate. It was confirmed by the information in the second certificate and the error in relation to the final column was explained by the issuer of the second certificate, Mr Wood.

6. [6]

   It is, as Davies J has also noted, significant that the respondent did not challenge compliance with s 60(1)(c) before the trial judge. That may well explain why the judge was not satisfied as to compliance with par (c), clearly established on the evidence, that issue not having been agitated before him.

7. [7]

   Secondly, the judge was not satisfied that a certifying officer of the Police Force had caused a copy of the warrant, certified in writing, to be given as soon as practicable to the same authorised representative of Telstra, pursuant to s 60(1)(d). It is true that Mr Wood's certificate, which identified the date (2 July 2014) when the copy of the warrant was received, being a copy certified in writing to be a true copy of the warrant, did not state that it was received by the same employee acting on behalf of the Chief Executive of Telstra, who had received the original information as to the issue of the warrant.

8. [8]

   Because the first certificate was patently erroneous in specifying the date on which the copy of the warrant was received, there can have been no reason for the trial judge not to reject that certificate as inaccurate in that respect. The second certificate should have been accepted as prima facie evidence of its contents, which contents were otherwise not in doubt.

9. [9]

   The only possible reason why there may have been a failure to comply with the requirement of par (d) of s 60(1) was that the certified copy of the warrant had not been stated to have been provided to the same authorised representative of Telstra who had been informed of the issue of the warrant.

10. [10]

    As explained in the cases referred to by Davies J, the only purpose of such a requirement is to ensure that a proper audit trail is available, in order to justify the interception. However, there is no reason to suppose that the same officer was not "given" the certified copy of the warrant, in circumstances where the certifying officer clearly had access to the relevant information as to the receipt of the certified copy and the receipt of the initial information. In other words, at some point the two requirements were probably linked in the person of an authorised officer within Telstra.

11. [11]

    However, if that were the flaw in the chain of justification, it was clearly an irregularity of a kind which would properly be disregarded under s 75 of the Act. It was insubstantial.

12. [12]

    It is not necessary in the light of these conclusions to consider whether the trial judge misdirected himself as to the scope and operation of s 75. He clearly applied it to a factual matrix which, for reasons given above, should not have been accepted.

13. [13]

    Accordingly, I agree with Davies J that, for the reasons he gives in more detail than those set out above, the appeal should be allowed and the order made by the trial judge set aside.

14. [14]

    JOHNSON J: I agree with Davies J.

15. [15]

    DAVIES J: This is an appeal brought by the Director of Public Prosecutions pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) from a ruling by his Honour Judge Hunt in the Sydney District Court on 14 March 2017. The Respondent was charged with the supply of a prohibited drug being MDMA in an amount which was not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and a count of supplying a prohibited drug being methylamphetamine.

16. [16]

    A voir dire was heard by Judge Hunt on 9, 10 and 13 March 2017. One of the applications on that voir dire hearing was an application by the respondent to exclude the evidence of intercepted telephone calls between the respondent and other alleged participants in the joint criminal enterprise to supply the prohibited drugs in relation to both counts 1 and 2.

17. [17]

    On 14 March 2017 his Honour ruled that the evidence of the telephone intercepts should be excluded because the telephone intercept information was not lawfully intercepted for the purposes of s 74 of the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act).

18. [18]

    The respondent does not take issue with this Court’s jurisdiction pursuant to s 5F(3A) of the Criminal Appeal Act.

19. [19]

    On 4 June 2014 a Named Person Warrant was issued by an eligible, nominated AAT member upon the application of the NSW Police Force pursuant to provisions of the TIA Act. The issued warrant, Number C12860-00-00 authorised the interception of communications made to or from any telecommunications that the respondent was using or was likely to use. The warrant authorised the interception of any telecommunication service used by the named person, the respondent, between the date of issue of the warrant and 13 August 2014.

20. [20]

    There was no challenge to the issuing of the warrant itself. Application was made by counsel for the respondent to have the telephone intercept material excluded on the basis that the Court could not rely on the face of two s 61(1) certificates as to whether and on which date the certified copy of the warrant was received by the carrier Telstra as s 60(1)(d) required. The respondent at the hearing of the appeal asserted that it was also an issue before the primary judge whether and on what date Telstra was notified of the issue of the warrant in accordance with s 60(1)(c).

Legislative provisions

1. [21]

   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. [22]

   The warrant was issued pursuant to s 46A of the Act.

3. [23]

   The following provisions are thereafter relevant:

4. [24]

   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. [25]

   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:

2. [26]

   The table that was attached was as follows:

3. [27]

   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.

4. [28]

   The trial was adjourned by Judge King without his Honour ruling on the application to exclude the evidence.

5. [29]

   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.

6. [30]

   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.

7. [31]

   There was a certificate under s 61(4) of the Act from Assistant Commissioner Malcolm Lanyon. That certificate said (inter alia):

8. [32]

   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):

9. [33]

   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.

10. [34]

    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.

11. [35]

    The primary judge had the transcript of the voir dire hearing before Judge King.

The primary judgment

1. [36]

   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. [37]

   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. [38]

   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:

4. [39]

   His Honour then went on to deal with the oral evidence from Superintendent Kopsias and Mr Wood.

5. [40]

   His Honour’s reasons for excluding the telephone intercept material appear in the following section of his judgment:

6. [41]

   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:

7. [42]

   His Honour then turned to consider s 75(1) to determine whether the irregularity should be disregarded. His Honour concluded:

8. [43]

   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. [44]

   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:

10. [45]

    His Honour concluded as follows:

Grounds of appeal

1. [46]

   The Crown appeals on two grounds as follows:

Submissions

1. [47]

   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. [48]

   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. [49]

   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. [50]

   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. [51]

   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. [52]

   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. [53]

   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. [54]

   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. [55]

   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. [56]

   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. [57]

   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:

3. [58]

   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:

4. [59]

   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. [60]

   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. [61]

   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. [62]

   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. [63]

   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. [64]

   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. [65]

    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. [66]

    In Scarpantoni Kourakis CJ and Sulan J said [at a time also when the word “forthwith” appeared in the Act]:

12. [67]

    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. [68]

    His Honour went on to say:

14. [69]

    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. [70]

    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. [71]

   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:

2. [72]

   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. [73]

   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. [74]

   Justice McLure said in those passages in Geldert:

5. [75]

   In Scarpantoni following the passage I have set out at [66] above, Kourakis CJ and Sulan J said:

6. [76]

   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. [77]

   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. [78]

   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):

9. [79]

   Mr Tari’s patently erroneous certificate should have been put to one side.

10. [80]

    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. [81]

    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. [82]

    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. [83]

    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. [84]

    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. [85]

    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. [86]

    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. [87]

    I would uphold this ground of appeal.

Conclusion

1. [88]

   I propose the following orders:

   1. (1)

      Uphold the appeal by the Director of Public Prosecutions.

   2. (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.