R v O’Meley [2017] NSWCCA 153

R v O’Meley [2017] NSWCCA 153

The appeal was upheld because the evidence, including the s 61 certificates and oral evidence, established that Telstra was informed of the issue of the warrant on 5 June 2014, satisfying s 60(1)(c). The primary judge erred in finding an absence of evidence on that question, particularly where it was not a live issue below. The evidence also established that a certified copy of the warrant was received by Telstra on 2 July 2014. Any remaining irregularity concerning the identity or continuity of the authorised representative was insubstantial, served only an audit-trail purpose, and should be disregarded under s 75.

Jurisdiction
Australia
Judgment Date
30 June 2017
Procedural Posture
Criminal Appeal Under S 5 F(3 A) of the Criminal Appeal Act 1912 (nsw) / Interlocutory Appeal From a District Court Ruling Excluding Telephone Intercept Evidence on a Voir Dire
Outcome
Appeal upheld; order excluding the telephone intercept evidence set aside.
Legal Topics
['telephone Intercept Warrants' 'supply of Prohibited Drugs' 'joint Criminal Enterprise' 'notification to Carrier' 'evidentiary Certificates' 'irregularities in Execution of Warrant' 'admissibility of Intercepted Communications']
['criminal Law' 'evidence' 'telecommunications Interception'] ['telephone Intercept Warrants' 'supply of Prohibited Drugs' 'joint Criminal Enterprise' 'notification to Carrier' 'evidentiary Certificates' 'irregularities in Execution of Warrant' 'admissibility of Intercepted Communications']

Case Brief

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Procedural Posture

Criminal Appeal Under S 5 F(3 A) of the Criminal Appeal Act 1912 (nsw) / Interlocutory Appeal From a District Court Ruling Excluding Telephone Intercept Evidence on a Voir Dire

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that s 60(1)(c) of the Telecommunications (Interception and Access) Act 1979 (Cth) had not been complied with' 'Whether any irregularity concerning s 60(1)(d) or the identity of the authorised representative of Telstra was a substantial irregularity within s 75 of the Telecommunications (Interception and Access) Act 1979 (Cth)' 'Whether the telephone intercept information was lawfully intercepted for the purposes of s 74 of the Telecommunications (Interception and Access) Act 1979 (Cth)']

Ratio Decidendi

The appeal was upheld because the evidence, including the s 61 certificates and oral evidence, established that Telstra was informed of the issue of the warrant on 5 June 2014, satisfying s 60(1)(c). The primary judge erred in finding an absence of evidence on that question, particularly where it was not a live issue below. The evidence also established that a certified copy of the warrant was received by Telstra on 2 July 2014. Any remaining irregularity concerning the identity or continuity of the authorised representative was insubstantial, served only an audit-trail purpose, and should be disregarded under s 75.

Court Disposition

Appeal upheld; order excluding the telephone intercept evidence set aside.

Orders

  • ['Uphold the appeal by the Director of Public Prosecutions.' '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.']