R v O’Meley [2017] NSWCCA 153

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v O'Meley [2017] NSWCCA 153 Hearing dates: 14 June 2017 Decision date: 30 June 2017 Before: Basten JA at [1] Johnson J at [14] Davies J at [15] Decision: (1) Uphold the appeal by the Director of Public Prosecutions.

(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. Catchwords: CRIMINAL LAW – criminal investigation – warrant for telephone intercepts - two counts of supplying a prohibited drug - joint criminal enterprise - appeal under s 5F(3A) Criminal Appeal Act against ruling excluding telephone intercept evidence - whether primary judge made erroneous finding of fact –– whether s 60(1) Telecommunications (Interception and Access) Act 1979 (Cth) complied with – whether any irregularity found was a substantial irregularity – whether primary judge erred in determining that telephone intercept was not lawful

WORDS AND PHRASES – "immediately" Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) s 138 Telecommunications (Interception and Access) Act 1979 (Cth) ss 47, 60, 61, 74, 75 Cases Cited: Cheikho v Regina [2008] NSWCCA 191; (2008) 199 A Crim R 167 Geldert v State of Western Australia [2012] WASCA 226; (2012) 226 A Crim R 260 House v The King (1936) 55 CLR 499 New South Wales Crime Commission v Vuletic (2005) 64 NSWLR 301; [2005] NSWSC 614 Preece v Boyd & McDougall [2003] NSWSC 172; (2003) 38 MVR 540 R v Almirol (No 1) [2007] NSWSC 290; (2007) 168 A Crim R 423 R v Bunting & Wagner (No 5) [2003] SASC 253 R v Mansfield [2011] WASCA 132; (2011) 251 FLR 286 R v Scarpantoni (2013) 118 SASR 131; 241 A Crim R 449; [2013] SASCFC 120 Category: Principal judgment Parties: Crown (Applicant) Anthony James O'Meley (Respondent) Representation: Counsel: H Roberts (Applicant) A Francis & M Swift (Respondent)