Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 209

Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 209 · Read the judgment on AustLII

Catchwords: Telecommunication warrants – challenges to validity

The CCA has confirmed that the there is no power to go behind Telecommunication Interception warrants; challenges are limited to issues on the face of the warrant which would render it invalid.

The applicant was charged with offences of perverting the course of justice and giving false testimony (disappointingly, nothing more is said about the facts of the matters). Telecommunication Interception Warrants were issued on the application of the Australian Federal Police (‘AFP’), and the material recorded as a result of those warrants were to be a major part of the case in respect of at least one of the counts on the indictment. The applicant lodged an application to stay the proceedings until the prosecution disclosed the material which were provided in support of the warrants which were issued. The application relied essentially on the obligations of disclosure by the prosecution. The matter went before a District Court judge, who refused the application for a temporary stay of the proceedings, so the applicant sought leave to appeal to the CCA.

One issue which fell to be determined was whether, to state the issue briefly, it is possible to get access to the material which was placed before the authority which issues a warrant, in order to potentially challenge the validity of the warrant.

Basten JA (with whom Johnson and Adamson JJ agreed) held that, given the case law (set out from [33] to [51], a trial court has no power to examine the affidavits and other materials placed before the authority which issued warrants, in order to challenge the validity of the warrants (at [52]). Given the legislative regime, all that is available is a challenge to jurisdictional errors on the face of the warrant (at [32] and [46]).