Regina (C'Wealth) v Baladjam & Ors [No 40] [2008] NSWSC 1460 (26 August 2008)

Last Updated: 16 August 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Regina (C'Wealth) v Baladjam & Ors [No 40] [2008] NSWSC 1460


JURISDICTION:
Criminal

FILE NUMBER(S):
2007/2397001;
2007/2395001
2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

HEARING DATE(S):
19/08/08

JUDGMENT DATE:
26 August 2008

PARTIES:
Regina (C'Wealth) v Omar BALADJAM [No 40]
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohamed Ali ELOMAR
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Mohammed Omar JAMAL
Regina (C'Wealth) v Mirsad MULAHALILOVIC
Regina (C'Wealth) v Khaled SHARROUF
Regina (C'Wealth) v Mazen TOUMA


JUDGMENT OF:
Whealy J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
R Maidment SC;G. Bellew SC; C. Donnell; Ms S McNaughton - Crown
M Buscombe SC; R Pontello - Accused Baladjam
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
D Dalton SC; E Ozen - Accused Elomar
Ms D Yehia; Ms S Beckett - Accused Hasan
G Scragg; D Carroll - Accused Jamal
G Turnbull SC; A Djemal - Accused Mulahalilovic
W Brewer; M Pickin - Accused Sharrouf
S Hanley; - Accused Touma




SOLICITORS:
Commonwealth DPP
Greg Walsh & Co - Accused Baladjam
Lawyers Corporation Ltd - Accused K Cheikho
William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho
Nyman Gibson Stewart - Accused Elomar
Legal Aid Commission - Accused Hasan
Michael Doughty Solicitor - Accused Jamal
Matouk Joyner Lawyers - Accused Sharrouf
Lawyers Corporation Ltd - Accused Mulahalilovic
Burke & Elphick Lawyers - Accused Touma


CATCHWORDS:
CRIMINAL LAW - Evidence - Evidentiary certifictes under ss 18(1) and 61(1) of the Telecommunications (Interception) Act 1979 - Validity of evidentiary certificates - Alleged failure to certify facts within the meaning of the s 18(1) of the legislation.

LEGISLATION CITED:
Telecommunications (Interception) Act 1979
Australian Security Intelligence Organisation Act 1979 ss 17, 18, 25 and 25A
Crimes Act 1914 (Cth)
Search Warrant Act 1985


CASES CITED:
CEO of Customs v El Hajje 218 ALR at 457
Jones & Massey v Cook (1990) 22 HLR 319
R v Baladjam [No 17] 27 May 2008
R v Khazaal (unreported) 16 July 2008 per Latham J at para 9
R v RIC Ex Parter Rossminister
Trimboli v Onley [No 1] (1981) 56 FLR 304 per Powell J
Way Out West Adult Shop Pty Ltd v Kraus [2008] NSWSC at para 25

TEXTS CITED:


DECISION:
I decline to make the orders sought.



JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

WHEALY J

PARRAMATTA: TUESDAY 26 August 2008

2007/2397001 - Regina v Omar BALADJAM [No 40]

2007/2395001 - Regina v Khaled CHEIKHO

2007/2398001 - Regina v Moustafa CHEIKHO

2007/2399001 - Regina v Mohamed Ali ELOMAR

2007/2400001 - Regina v Abdul Rakib HASAN

2007/2452001 - Regina v Mohammed Omar JAMAL

2007/2454001 - Regina v Mirsad MULAHALILOVIC

2007/2396001 - Regina v Khaled SHARROUF

2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application to exclude s 18(1) TI Act 1979 evidentiary certificates – alleged failure to state facts

1 HIS HONOUR: By Notice of Motion dated 4 July 2008 Khaled Cheikho sought in paragraph 9 the following order:

“(9) All evidentiary certificates issued pursuant to s 18(1) and 61(1) Telecommunications (Interception) Act 1979 be excluded as being irrelevant or otherwise inadmissible hearsay, on the basis that the certificates fail to state relevant facts within the meaning of ss 18 and 61, respectively.”

2 By agreement between the parties, the scope and reach of paragraph 9 of the motion has been narrowed. The nature of this will become apparent after when I have indicated the basis on which the present application is now made.

Background

3 On 9 April 2008 Mr Paul O'Brien, company secretary of SingTel Optus Pty Limited, provided an evidentiary certificate in relation to the execution of a warrant that had been issued under s 9 of the Telecommunications (Interception) Act 1979. The particular warrant had issued on 3 June 2004. It had been addressed to a named subscriber at the address in Punchbowl occupied at that time by Khaled Cheikho. The service number was 0297073250.

4 The Crown proposes to rely at trial on interceptions made in connection with this service during the relevant period, which commenced in the middle of the year 2004. In addition, the Crown proposes to rely upon the evidentiary certificate of Mr O'Brien dated 9 April 2008.

5 Omitting formal parts, the certificate is in the following form:

“I, Paul O'Brien, the company secretary of SingTel Optus Pty Limited ("Optus"), being a carrier, certify pursuant to s 18 of the Telecommunications (Interception and Access) Act 1979 ("the Act") the following facts which I consider are relevant to acts or things done by or in relation to employees of Optus in order to enable the execution of a warrant issued under s 9(1) of the Act:

1. A true redacted copy of a warrant issued on 3 June 2004 by the Attorney General authorising the interception of telecommunication services is annexed and marked with the letter 'A' (the warrant).

2. Optus was informed of the issuing of the warrant on 3 June 2004.

3. A certified copy of the warrant was received by an employee of Optus on 3 August 2004.

4. Between the period commencing on 3 June 2004 and ending on 7 September 2004, Optus employees did acts and things of a professional and technical nature that were necessary to enable the listening to and recording at the Australian Security Intelligence Organisation (ASIO) of the communications conducted using telecommunication service 0297073250 as they passed through the Optus network within one or two seconds of the communication being sent from the computer terminal.

5. Each communication passing over the telecommunication service specified in the warrant was transmitted directly to ASIO, without at any time being recorded or listened to by any Optus employee.

6. The equipment used by employees of Optus to facilitate the interception of communications enabled the recording by ASIO of the following information in relation to each communication:

- the time and date of the communication;

- the direction of the communication, and

- the content of the communication.”

6 The certificate is dated 9 April 2008 and is signed under the signature of Paul O'Brien, company secretary.

7 (The title to the legislation was changed in 2006, but s 18 has remained in the same form as it had been under the TI Act 1979.)

8 The certificate I have identified became the focus of the attack made by Khaled Cheikho in relation to its validity or otherwise. There were other relevant certificates placed before me in evidence (Exhibit “B”). They will stand or fall depending on the fate of the arguments addressed to the certificate dated 9 April 2008. For these reasons it will be seen that the challenge stated in the notice of motion has been now confined by agreement to certain certificates issued under s 18 of the TI Act 1979. It is further confined to certificates issued on behalf of one carrier, namely Optus (the certificates of Paul O'Brien). Finally, it is further confined to those certificates that fall into the category of the ones collected together in Exhibit “B”.

The legislation

9 Section 18 of the TI Act 1979 (and the later legislation) is in the following terms:

“Evidentiary certificates

(1) The Managing Director or secretary of a 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 of a carrier is to 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.

(3) The Director-General of Security or the Deputy Director-General of Security 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:

(a) in order to enable, or in connection with enabling, a warrant issued under this Part to be executed; or

(b) in connection with the execution of a warrant issued under this Part.

(4) The Director-General of Security or the Deputy Director-General of Security 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 employee of the Organisation in connection with the execution of a warrant issued under this Part; or

(b) anything done by an officer or employee of the Organisation 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 (3) or (4) by the Director-General of Security or the Deputy Director-General of Security and to be signed by him or her is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, 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 .”

Submissions on behalf of Khaled Cheikho

10 Mr Waterstreet provided both written and oral submissions on behalf of Khaled Cheikho. The essential submission is that the certificate does not certify facts within the meaning of s 18(1) of the legislation. Mr Waterstreet argued that the relevant employee of the carrier is not entitled to certify whatever he wishes. Rather, he is constrained only to certify facts relevant to acts or things done by employees of the carrier. As a consequence, the certificate relied on by the Crown is defective in that it purports to certify something that employees did not do and, secondly, does not certify facts, but instead makes general assertions and/or conclusions. The thrust of Mr Waterstreet's attack centres on the contents of paras 4, 5 and 6. He argues that para 4 states conclusions and is accordingly illegitimate; para 5 states facts which were not carried out by employees, and are therefore mere surplusage; and para 6 of the certificate states a conclusion, rather than facts.

11 A general proposition advanced by Mr Waterstreet was that when the predecessor section to s 18 was introduced, it was stated, according to the Explanatory Memorandum, to be for the following purpose:

“This provision is designed to protect the identity of Telecom employees engaged in such activity (that is, intercepting).”

12 This "purpose" was fleshed out in more detail, but to like effect in the Second Reading Speech of the then Attorney-General Mr Bowen (Hansard House of Representatives, 9 May 1985, page 1980.)

“Strict proof of actions taken by Telecom employees would require those employees to give evidence in Court. Telecom management has been advised that employees are unwilling to give such evidence because public identification of their involvement in narcotics interception would cause fear for their own safety, that of their families and that of their fellow workers.

...It would be contrary to the public interest for the lawful interception of telecommunications to be produced or prejudiced.

...The government proposes that evidence of acts performed by Telecom employees to enable the execution of an interception warrant be given by certificate signed by the Managing Director of Telecom.”

13 In these circumstances, Mr Waterstreet argued that the amendments were not aimed at facilitating proof for the prosecution, but rather at protecting the identities of those necessarily involved in the interception of telecommunications. It was to protect employees, not to protect methodology.

14 In support of his arguments, Mr Waterstreet referred the Court to a decision of the English Court of Appeal in Jones and Massey v Cook (1990) 22 HLR 319. Mr Waterstreet argued that this case provided a useful illustration and analogy of the manner in which a conclusive certificate could go beyond its proper ambit of proof and contravene the section enabling its production.

15 Mr Waterstreet argued, finally, that while s 18 permitted facts to be certified, it did not allow conclusions to be stated. Counsel drew an analogy between cases involving averments and the situation with conclusive evidentiary certificates. He referred the Court to CEO of Customs v El Hajje 218 ALR at 457.

The Crown response

16 Mr O'Donnell of counsel put the arguments for the Crown. He emphasised, firstly, that the task of the certifier is to make up his mind as to which matters he 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. This involved a much broader reading of the section than Mr Waterstreet's arguments had allowed. Mr O'Donnell submitted, however, that this broader reading of the section emerged directly from its literal terms.

17 Secondly, Mr O'Donnell argued that the history of the legislation and its stated "purpose" do not limit its operations. It has operation, according to its terms, which are clear and unambiguous. The certificate complies with subs (1) of s 18. It is, therefore, to be received in evidence without further proof and is conclusive evidence of all the matters stated therein (subs (2) of s 18).

18 Mr O'Donnell examined in detail each of the impugned paragraphs of the certificate. Counsel asserted that, upon examination, all the matters certified were well within the purview of the section.

Resolution of the issues

19 I have given consideration to Mr Waterstreet's submissions and examined the certificate, and the relevant legislation in the light of those submissions. I have come to the conclusion, however, that the challenge to the certificates cannot succeed.

20 The first matter to be considered is the purpose and scope of the legislation as reflected by the terms of s 18 of the TI Act. This is a matter I considered in my earlier decision R v Baladjam [No 17]. At para 69 I said:

“The purpose of the legislation was, as is commonly accepted by both counsel, to protect the identity of the carrier's employees engaged in enabling the execution of warrants by police and other agencies. It was designed to save those employees from having to give evidence in court. It was intended to provide for a certificate going to formal matters of technical evidence only, and not to any issue before the Court. (See Explanatory Memorandum and Second Reading Speech).”

21 I also said (when examining the certificate in that case, the certificate being in identical terms to the present):

“The certificate itself bears out these matters fully. First, it annexes the warrant and records when the carrier was notified of its issue. It also records when it was received by Optus. These are plainly matters of formality only. Secondly, it records 'acts or things done' by employees to enable the warrant's execution. They are technical matters, not described in any detail, which demonstrate no more than that those technical steps were such as were 'necessary' to enable 'the listening to and recording' at ASIO of the communications conducted using the service 02-9707 3250 as they passed through the Optus network.”

22 Mr Waterstreet has argued that the purpose of the legislation is to protect the employees, not the methodology involved in the interception. I cannot accept this as a correct statement of the object of the legislation. The protection of the Optus employees is plainly important. But it is achieved by permitting conclusive evidentiary certification by the employer of matters considered relevant by him to the methodology. That is how the protection of the employees is secured.

23 It is, of course, permissible to have regard to the language of the section itself in identifying the scope and purpose of the legislation. Indeed, this will, on occasions, be of as much, if not more, value than paying heed to secondary sources. In this regard, the language of the section makes it plain that reception of a s 18(1) certificate signed by the company secretary of a carrier is, in exempt proceedings, conclusive evidence of the matters stated in the certificate. This means that the effect of the legislation is to preclude a challenge to the matters stated within the certificate issued under s 18(1) of the legislation. In that regard, I note the remarks of Latham J in R v Khazaal at para 9. This is a restricted judgment at present, but I see no harm in setting out the relevant paragraph in this decision. Her Honour said (dealing with this legislation):

“There are sound policy reasons for such an approach. The certificate of the company secretary of a carrier is directed to those essentially mechanical acts that are performed by the carrier's employees on the communication network, so that a warrant can be executed, that is, so that the signals being transmitted across the network can be diverted to the holder of the warrant. The certificate obviates the need to call the employees of a carrier in order to prove each and every step undertaken by them in order to 'capture' the communications caught by the warrant. In the object sense of such a conclusive evidentiary certificate, the prosecution would be put to pointless trouble and expense calling witnesses to give technical evidence of no relevance to the real issues in the proceedings.”

24 I respectfully agree with Latham J.

25 In my opinion, the fact that the protection of employees was an important feature of the policy considerations involved in the decision to create s 18(1), does not stand in the way of other legislative purposes, provided they are obvious from and consistent with the Act as a whole. It was clearly the view of Parliament in enacting s 18(1) that matters of a technical nature could and should be conclusively proved by the procedure created by the legislation. Here, unusually, the actual technical processes appear to be of interest to the accused, although ordinarily they would not be of the slightest interest. The interest only arises however, from a sense of “forensic chagrin” that the lawyers for Khaled Cheikho have experienced as a consequence of being deprived of a possible challenge to the legitimacy of the warrants (see my remarks in R v Baladjam [No 17] at para 83). This element of "forensic chagrin" is not aimed at any issue likely to arise in the trial. It is focused for present purposes on the admissibility of the material captured by virtue of the relevant warrants. Given more precisely, it is focused on the validity of the warrants. As I presently understand it, apart from these issues, the argument has no other place or role to play in the trial.

26 Secondly, the language of s 18(1) itself must mean the challenge cannot succeed. The language of s 18(1) makes it perfectly plain that the facts to be certified are those that the certifying officer considers "relevant". The certificate is conclusive not only as to the facts certified: It is equally conclusive as to the certifier's decision that those are facts relevant to "acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed". The expression "carried out by, or in relation to, employees of the carrier" is at itself odds with the primary submission made in para 3 of the written submissions. There counsel had argued that:

“The relevant employee of the carrier is not entitled to certify whatever he wishes, but rather is constrained only to certify facts relevant to acts or things done by employees of the carrier.”

27 This is too narrow a construction for two reasons. It ignores the fact that it is for the secretary of the carrier to decide what is relevant. In addition, the expression in the legislation I have set out is broader than that contained in the para 3 written submission. (“carried out by, or in relation to”).

28 Thirdly, an examination of paras 4, 5 and 6 of the certificate demonstrates that the certified facts readily falls within the ambit of s 18(1). While it is true that paragraph 4 does not give much technical detail, it does focus on the passage of time involved as the communications passed through the Optus network to ASIO. It links that passage of time to the "acts and things of a professional and technical nature" done by the employees to enable the relatively instant passage of the communications to the warrant holder. It is easy to see why Mr O'Brien thought this was a relevant matter to the nature of the actions of his employees in enabling the warrant to be executed. It is plainly of considerable relevance to the concerns of Khaled Cheikho's lawyers. The problem is it conflicts with their hope or expectation that the communication did not occur in that way. But whether I think it relevant or not, the crux of the matter is that it appeared relevant to the certifier. This is what he says in his certificate and it is, by virtue of s 18(2) "conclusive evidence of the matters stated in the document". The fact that reams of highly technical material are not included to explain how it was that the transmission occurred virtually instantly is, in my view, neither here nor there. Both the relevance of the fact of instant passage, and the means taken by employees to secure that, are conclusively proved by the certificate.

29 The facts stated in para 5 plainly fall within the ambit of the legislation. The statement "each communication passing over the telecommunication service specified in the warrant was transmitted directly to ASIO" plainly answers the description of "acts or things done by or in relation to employees of Optus in order to enable the execution" of the warrant. The remaining words have been attacked as mere surplusage. This is not a fair description. Once again, Mr O'Brien was entitled to consider it relevant to acts or things done by his employees as to whether the communications were recorded to or listened to by those employees. It is, in any event, a fact with respect to acts performed by the employees to enable the execution of the warrant. At the very least it is a fact considered relevant by Mr O'Brien with respect to the actions of the employees taken to enable execution of the warrant.

30 Finally, the statements in para 6 are plainly matters relevant in the manner called for in s 18(1) of the Act. In any event, they are, once again, matters that Mr O'Brien considered relevant to acts or things done by, or in relation to, employees of the carrier in the relevant sense.

31 There is nothing in either of the two authorities referred to by Mr Waterstreet that warrants any different conclusion. As I observed during argument, the example appearing in Jones and Massey v Cook fell to be decided in terms of the legislation involved there and the language of the certificate issued. It was a very clear situation of the certificate transgressing, in the sense that it purported to interfere with the statutory role to be performed by the Court. That is not the case here. As to El Hajje, I considered this in my earlier decision R v Baladjam [No 17]. It concerned an averment provision. I do not consider that it has any useful analogy to the present situation (see R v Baladjam [No 17] paras 85 and 86).

32 For these reasons, I decline to make the orders sought.

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LAST UPDATED:
8 July 2010