FEDERAL COURT OF AUSTRALIA

Jones v Civil Aviation Safety Authority [2011] FCAFC 157

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    By an amended notice of appeal filed on 20 July 2011, the appellant, Milton Jones, appealed from the judgment of the primary judge who, on 6 June 2011, dismissed the appellant’s amended application dated 20 May 2011 for orders, inter alia, quashing, setting aside or staying the execution of a warrant issued on 1 March 2011 (“the warrant”) pursuant to s 32AF of the Civil Aviation Act 1988 (Cth) (“the Act”).

2    On appeal, by a letter to the court, the second respondent to the application and the appeal, his Honour Magistrate Duncan Reynolds (described as the Magistrates’ Court of Victoria), submitted to any order the court might make, save as to costs.

facts

3    As appears from the reasons of the primary judge and the materials filed on appeal, the undisputed background of the appeal is as follows.

4    The appellant was a helicopter pilot, who operated a large aviation business. Together with WTFM, a television production company, the appellant made a 10 episode television series called “Keeping up with the Joneses” which portrayed his life and that of his family on a large cattle station in the Northern Territory (Coolibah station).

5    In November 2010, Mr Haslam, an investigator employed by the first respondent, CASA, a statutory authority established under the Act to, inter alia, regulate the safety of civil air operations in Australia, commenced an investigation into possible breaches by the appellant of the Act and the Civil Aviation Regulations 1988 (Cth) (“regulations”) arising from the television series. By his affidavit sworn on 20 May 2011, Mr Haslam deposed that on being instructed to investigate possible breaches he contacted WTFN, seeking access to the raw footage of the series.

6    Mr Grant of Logie Smith Lanyon, WTFM’s lawyer, advised Mr Haslam that WTFM would not release any material without being compelled to do so but would provide a copy of raw data in readable format if CASA provided a description of the events subject to the investigation.

7    Mr Haslam deposed that, having viewed the seven publicly available episodes of the series, he wrote to Mr Grant on 18 January 2011 attaching a spreadsheet containing a description of helicopter operations that were of interest in the investigation.

8    Mr Haslam deposed:

Arrangements were made for me to seize two DVD’s provided by WTFN at Mr Grant’s office using an offence related search warrant pursuant to Section 32AF of the Act. Mr Grant advised me when the DVD’s were available for collection and an appointment was made for 9am on 2 March 2011. The collection of the DVDs was subject to the issue and execution of the search warrant.

9    On 1 March 2011, Mr Haslam attended the Melbourne Magistrates’ Court and applied for an offence related warrant under s 32AF of the Act.

10    Mr Haslam’s affidavit sworn on 1 March 2011 in support of the warrant stated:

…

1.    I am an investigator within the meaning of the Civil Aviation Act 1988. A copy of my instrument of appointment is attached at “Annex A”.

2.    I am the applicant for an offence related warrant under section 32AF of the Civil Aviation Act 1988 in relation to the following premises:

The offices of Logie-Smith Lanyon Lawyers, …

3.    The information set out below has been obtained in the course of my duties by me from my own inquiries and from inquiries made by other officers. The sources of the information are also set out below. I believe that the information is true and correct.

4.    By reason of the matters set out below I suspect, and a magistrate may properly be satisfied that there are reasonable grounds for suspecting that there are at the premises specified above (or that there will be within the next 72 hours at the premises specified above) things which satisfy all of the following three conditions, namely:

First Condition:

Things which are originals or copies of any one or more of the following including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device:

    DVD’s containing converted raw data obtained from WTFN Entertainment Pty Ltd (“WFTN”) relating to the TV series “Keeping Up with the Joneses”.

and any storage medium or storage device which contains any of the above things, together with any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things.

Second Condition:

And which relate to any one or more of the following:

    Milton Stanley Knight JONES.

    Coolibah Station, Northern Territory.

    WTFN Entertainment Pty Ltd.

    TV Series entitled “Keeping Up with the Joneses”.

Third condition:

And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of one or more of the following offence(s) against the Civil Aviation Act and Civil Aviation Regulations.

[A list of provisions of the Act specifying particular offences and the allegation of the dates and circumstances evidently concerning Mr Jones’ alleged contraventions followed].

5.    On 2 November 2010, I was tasked with investigating issues relating to helicopter operations appearing on a Channel 10 TV series entitled "Keeping up with the Joneses". Some of the footage aired shows possible breaches of civil aviation legislation.

6.    On 3 November 2010, I contacted Channel 10 to ascertain the name and contact details of the producers of the series and was advised to contact Mr Ben Ulm, Head of Factual Entertainment, WTFN Entertainment Pty Ltd     ("WFTN")

7.    On the same day, I contacted Mr Ben Ulm by telephone and requested access to the raw data relating to the filming of the series "Keeping up With the Joneses". Mr Ulm responded that my request had been given to Mr Daryl Talbot, Managing Director of WFTN. Attached to this affidavit and marked "Annex B" is a copy of the emails between Mr Ulm and myself.

8.    On 12 November 2010, I received a letter from Mr David Grant of Logie-Smith Lanyon Lawyers, … Melbourne. Mr Grant advised he was representing WFTN and was in receipt of my email to Mr Ben Ulm dated 3 November 2010.

9.    In the letter, he advised "WTFN has recorded hundreds of hours of data, represented by 13 terabytes of data" and that "It is also unreadable without relevant computer software such as ‘Final-Cut pro-editing’ Software Suite, which our client utilises under license”.

10.    He went on to say, “In order to assist us to provide you with relevant information, we request that you identify, with some particularity, any issues that you wish to view. For example, we note that you have identified the matter concerning the “young male being towed under an R22 helicopter whilst skiing”.

11.    He also advised that; “Our client is able to identify, as a result of that description, relevant data, and are able to convert that data into a format which you will be able to view on either a computer or DVD player. In the event that you are able to restrict your Request to a reasonable amount of identified sequences, we are instructed that our client will identify, copy and convert the relevant material into readable format.”

12.    Mr Grant advised that WFTN have a number of contractual obligations and whilst willing to assist where they can, would require some form of compulsion to produce the material sought. I provided Mr Grant with extracts from the Civil Aviation Act relating to entry, search and seizure provisions with consent and under warrant (S.32AF). Attached to this affidavit and marked "Annex C" is a copy of the letter from Mr Grant dated 12 November 2010.

13.    On 17 November 2010, I received an email from Mr Grant advising the filming for the TV series "Keeping up with the Joneses" was carried out between August 2009 and August 2010 and that the series contains 7 episodes of which 5 have already gone to air (on Channel 10). He advised the current series will end by 30 November 2010. Attached to this affidavit and marked "Annex D" is a copy of the email threads between Mr Grant and myself.

14.    In accordance with the advice provided by Mr Grant, I have viewed all 7 episodes of the series contained on the Channel 10 website and identified issues relevant to my enquiries.

15.    The episodes viewed on the Channel 10 website that went to air are inconclusive as they may contain poetic licence by the producers for entertainment value rather than being a true account -of what actually took place during filming. For example, some of the footage viewed gives the impression the pilot was consuming alcohol just prior to flying a helicopter, whereas through editing, those two events may be filmed on different days. The raw data is required to ascertain the true nature of the filming and timing between events.

16.    On 18 January 2011, I wrote to Mr Grant and provided a spreadsheet identifying the raw footage required on the basis of the footage viewed from the Channel 10 website.

…

11    Annexure E to the above affidavit was a four page spreadsheet for episodes 1 to 7 of “Keeping up with the Joneses” identifying a number of particular episodes, segments, registrations, times commenced and descriptions of the events depicted, which included, for example, “Milton Jones out fishing, engine left running – no one at controls” and “Milton Jones pic - chasing jet ski. Was consuming alcohol during footage shown prior”.

The warrant

12    The offence related warrant issued on 1 March 2011 stated:

TO: Mark Alexander Haslam

an investigator within the meaning of the Civil Aviation Act 1988.

WHEREAS information on oath has been laid before me this day by you, an investigator within the meaning of Section 32AF of the Civil Aviation Act 1988;

AND WHEREAS I am satisfied by the said information that there are reasonable grounds for suspecting that there is (or that there may within the next 72 hours be) on the premises specified in this warrant things that may afford evidence of the commission of the following offences against the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988:

Civil Aviation Act (1988) Section 20A(2)

Civil Aviation Act (1988) Section 20AB(1)

Civil Aviation Regulation (1988), Regulation 256(3)

Civil Aviation Regulation (1988), Regulation 225(1)

Civil Aviation Regulation (1988), Regulation 151(1)

Civil Aviation Regulation (1988), Regulation 149(1)

AND WHEREAS I have been given any further information I required about the grounds on which this warrant was sought.

I DUNCAN KEITH REYNOLDS a magistrate within the meaning of the Civil Aviation Act 1988 hereby issue this warrant which authorises you, with such assistance and by such force as is necessary and reasonable:

o    to enter the following premises;

The offices of Logie-Smith Lanyon Lawyers, … Melbourne.

o    to search for anything which satisfies all of the following three conditions:

First Condition:

Things which are originals or copies of any one or more of the following including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device;

o    DVD's containing converted raw data obtained from WTFN Entertainment Pty Ltd ("WFTN") relating to the TV series "Keeping Up With the Joneses".

and any storage medium or storage device whlch contains any of the above things, together with any manual, instruction, password or other thing' which is needed to gain' access to or interpret or decode any of the above things.

Second Condition:

And which relate to any one or more of the following:

•    Milton Stanley Knight JONES.

•    Coolibah Station, Northern Territory.

•    WTFN Entertainment Pty Ltd.

•    TV Series entitled "-Keeping .Up with the Joneses".

Third condition:

And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of one or more of the following offence(s) against the Civil Aviation Act and Civil Aviation Regulations:

[The warrant here repeated the list of provisions and allegations contained under the heading “Third Condition” in Mr Haslam’s affidavit sworn on 1 March 2011].

•    if any such thing is found, to seize it.

And by virtue of sections 32AH(2) of the Civil Aviation Act 1988 if, in the course of searching the premises specified above you find another thing that you believe, on reasonable grounds, to be:

•    a thing that will afford evidence of the commission of the offence specified above; 'or

•    a thing that will afford evidence of the commission of another offence against the Civil Aviation-Act 1988 or the regulations;

you may seize it, if you believe, on reasonable grounds, that it is necessary to seize the thing to prevent its concealment, loss or destruction.

…

THIS WARRANT CEASES TO HAVE EFFECT AT THE START OF THE DAY WHICH IS ONE WEEK AFTER THE DATE OF ISSUE.

The purpose of this warrant is to authorise the investigator named in the warrant, with such assistance and by such force as is necessary and reasonable, to enter the premises specified in the warrant, to search for things of the kind described in the warrant, being things relating to the offences specified in the warrant, and to seize any such thing as may be found.

relevant legislation and authority

13    Section 32AF of the Act provides:

(1)    An investigator may apply to a magistrate for a warrant under this section in relation to particular premises.

(2)    Subject to subsection (3), the magistrate may issue the warrant if satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, on the premises a particular thing that may afford evidence of the commission of a civil aviation offence.

(3)    The magistrate must not issue the warrant unless the investigator or someone else has given the magistrate, either orally or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.

(4)    The warrant must:

(a)    authorise an investigator named in the warrant, with such assistance and by such force as is necessary and reasonable:

(i)    to enter the premises; and

(ii)    to search the premises for the thing; and

(iii)    if the thing is found—to seize it; and

(b)    state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(c)    specify the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect; and

(d)    state the purpose for which the warrant is issued.

14    On appeal and before the primary judge, the appellant relied principally on George v Rockett (1990) 170 CLR 104 (“George”), in which the High Court considered the validity of a search warrant issued under s 679 of the Criminal Code (Queensland), which relevantly stated:

If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, vessel, vehicle, aircraft, or place:

(a)    Anything with respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have been, committed; or

(b)    Anything whether animate or inanimate and whether living or dead as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of any offence; or

(c)    Anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence;

he may issue his warrant directing a police officer or police officers named therein or all police officers to enter, by force if necessary, and to search such house, vessel, vehicle, aircraft, or place, and to seize any such thing if found, and to take it before a justice to be dealt with according to law.

15    The High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, in a joint judgment) observed (at 110) that s 10 of the Crimes Act 1914 (Cth) (“Crimes Act”) and s 711 of the Criminal Code (WA) were in substantially the same terms as s 679. Their Honours discussed authority, including Baker v Campbell (1983) 153 CLR 52, which recognised that the legislature, in prescribing conditions for the issue of search warrants, balanced the need for an effective criminal justice system against the protection of individuals from arbitrary invasion of privacy and property.

16    The High Court stated (at 111) that therefore:

To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

17    The High Court identified and analysed three conditions prescribed by s 679 as follows:

1.    “The justice’s function” – The High Court observed that the relevant justice must satisfy himself that the conditions for issue of the warrant were fulfilled. The exercise was not perfunctory, as it must appear to the justice that there were reasonable grounds for both the suspicion and the belief. The existence of facts which were sufficient to induce that state of mind in a reasonable person was required.

2.    “The material to ground the issue of a warrant” – The High Court observed that the matters must appear to the justice on a complaint on oath. If the statements made by the applicant concerning the grounds for issuing the warrant were not on oath, they would be immaterial.

3.    “The facts to be established” – The High Court observed that suspicion and belief were different states of mind. As relevant authority recognised, suspicion was conjecture or surmise, for which proof was lacking, which was more than mere idle wondering, but rather, a positive apprehension or a slight opinion (see Hussien v Chong Fook Kam [1970] AC 942 at 948; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303). A belief, in contrast, amounted to an inclination towards assenting to, rather than rejecting, a proposition, supported by more slender evidence than proof, as the circumstances necessary to show reason to believe need not be as high as the balance of probabilities. The High Court noted that on the better view, in s 679, the subject matter of the suspicion was not the location, but the existence, of the thing (at 117).

THE JUDGMENT BELOW

18    Before the primary judge, counsel for the appellant submitted that there was insufficient information before the Magistrate to satisfy him that there were reasonable grounds for the relevant suspicion and, specifically, no basis on which the Magistrate could reasonably suspect that the DVDs may afford evidence of the commission of a civil aviation offence.

19    Having discussed George, the primary judge identified the issue for determination before him at [24] as follows:

In the current context, it is only necessary to consider whether the Magistrate had a sufficient basis to form a reasonable suspicion that the DVDs may afford evidence of a civil aviation offence. All that was required was the holding of “a slight opinion, but without sufficient evidence” but nonetheless an “actual apprehension” created in the mind of a reasonable person that the thing sought to be seized may (not will), afford evidence of the commission of a civil aviation offence.

(emphasis in original)

20    His Honour concluded at [25] to [27]:

Having regard to the analysis contained in George and the distinguishing features between that case and the current circumstances, the Court considers that Mr Haslam’s affidavit contained sufficient material to enable the Magistrate to have reasonable grounds for suspecting that the DVDs may afford evidence of offences against the Act and the Regulations.

The Warrant expresses the relevant state of satisfaction on the basis of possible breaches of various sections of the Act and various regulations which are set out in the Warrant, being those sections and regulations set out in the “Third Condition” in paragraph 4 of Mr Haslam’s affidavit… The relevant suspicion is also reasonably generated having regard to the text of the spreadsheet annexed to the affidavit and its notation of incidents shown on the footage viewed by Mr Haslam, which may be traced back to the possible commission of civil aviation offences.

The reasonableness of the relevant suspicion is not diminished by Mr Haslam’s frank acknowledgement in his affidavit that some of the footage he has viewed may have involved poetic licence by WTFW. That does no more than show that reasonable suspicion may be capable of being held after viewing the material contained in the DVDs. But until that happens there are real, prima facie grounds for concern that safety legislation has been flouted.

Amended notice of appeal

21    The amended notice of appeal set out the following grounds:

1.    The learned trial judge erred in finding that it was open to the learned magistrate, on the material placed before him on oath to be satisfied that there were reasonable grounds for suspecting that there was or that there might be within the next 72 hours, on the premises of Logic Smith Lanyon, Lawyers at Level 13, 575 Bourke Street, Melbourne a particular thing that might afford evidence of the commission of a civil aviation offence. In particular:

(a)    it was not open to the learned magistrate to be so satisfied in respect of all documents satisfying the third condition set out in the warrant;

(b)    the statement in paragraph 15 of the affidavit of Mark Alexander Haslam sworn 1 March 2011 in support of the application indicated that there were reasonable grounds for no more than "an idle wondering" as to whether an offence or offences might have been committed and as to whether documents existed which might constitute evidence of such offence or offences.

2.    The learned trial judge erred in failing to find that the warrant was net-void for uncertainty, and in particular in treating the description of the things to be seized as set out in condition 3 of the warrant:

(a)    as stating with sufficient particularity the things which might be seized pursuant to the warrant;

(b)    as not delegating to the person executing the warrant a wide and impermissible discretion to determine the things which might be seized pursuant to the warrant.

3.    The learned trial judge erred in failing to find that on the face of the warrant the learned magistrate

(a)    had failed to accord a sufficient level of scrutiny to the application for the warrant so as to enable him to reach the level of satisfaction required by the Act;

(b)    had failed to give any sufficient consideration as to whether the scope of the warrant as issued by him was justified by reference to the limitations or inadequacies in the material placed before him.

application to further amend notice of appeal

22    By an interlocutory application dated 28 October 2011, supported by the affidavit of Edward John Maitland sworn 28 October 2011, the appellant sought further to amend ground 1(a) of the notice of appeal as follows:

1.    The learned trial judge erred in finding that it was open to the learned magistrate, on the material placed before him on oath to be satisfied that there were reasonable grounds for suspecting that there was or that there might be within the next 72 hours, on the premises of Logic Smith Lanyon, Lawyers at Level 13, 575 Bourke Street, Melbourne a particular thing that might afford evidence of the commission of a civil aviation offence. In particular:

(a)    it was not open to the learned magistrate to be so satisfied in respect of any documents meeting the description set out in the third condition in the warrant; all documents satisfying the third condition set out in the warrant;

23    It also added a new ground 4, as follows:

The learned trial judge ought to have found that the ambit of the warrant as issued exceeded the ambit authorised by s.32AF of the Civil Aviation Act 1988.

24    Mr Maitland deposed that:

3.    Whilst both senior and junior counsel were in the process of preparing submissions for the purposes of the appeal, it became apparent that there were minor issues in the appeal notice which counsel sought to rectify.

4.    I have been advised by both senior and junior counsel for the appellant that during the course of preparing the applicant’s outline of submissions a close analysis of the wording of the third condition in the Warrant which is the subject of the proceedings was made with regard to the wording contained in Section 32AF(2) and (4) of the Civil Aviation Act 1998 (Cth). That results in counsel seeking to make two amendments to the grounds of appeal.

25    The appellant, by written submissions, submitted:

2.    Specifically, we submit that:

(a)    ground 1(a) raises no new substantive issue but is simply a refinement of the pre-existing ground although the appellant acknowledges the erroneous reference to “a document” as opposed to “a thing”; and

(b)    ground 4 raises an argument that the wording of condition 3 of the warrant as issued embraces things that are not authorised by a 32AF(2) and (4) Civil Aviation Act 1988 (Cth).

…

3.    The appellant submits that condition 3 of the warrant contemplates the exercise of a coercive power which is different from that contemplated by the Act and consequently the Magistrate lacked power to issue a warrant in those terms

4.    To the extent that the Respondent contends that a matter such as proposed ground 4 was not raised below, that matter could not have been the subject of any evidence which either party could have led. Consequently, no prejudice arises.

26    Before us, senior counsel for the appellant submitted that the proposed amendment to paragraph 1(a) was merely a grammatical amendment and that ground 4 constituted a variant of an issue raised, albeit in a different form, before the primary judge in paragraph 11 of the appellant’s written submissions below, which stated:

The basis for the issue of the warrant is the belief that there may be a “particular thing that may afford evidence” that is located on the premises. The terms of the warrant provide an authorisation for the investigator to enter, search and seize that “particular thing”. The authority however is subject to the remaining provisions in Division 2 of Part IIIA which delineates the powers of investigators.

27    Senior counsel submitted that:

The terms of the warrant provide an authorisation for the investigator to enter, search and seize that particular thing. Now, that adverts… to the issue that we’re seeking to raise in the new ground, namely what is the power given by the Act, and it says the power is to search for a particular thing that may have... not a particular thing that is reasonably suspected of, etcetera.

28    The first respondent opposed leave to amend the notice of appeal, contending that the amendment to ground 1(a) did not clarify the existing ground, and that ground 4 was not advanced before the primary judge.

29    More fundamentally, the first respondent submitted that the majority of the grounds in the existing notice of appeal were not raised before the primary judge, and while the new grounds would not have been the subject of evidence below or pose any particular prejudice, they should not now be ventilated, on the basis of the considerations recognised in Coulton v Holcombe (1986) 162 CLR 1 (“Coulton”), where Gibbs CJ, Wilson, Brennan and Dawson JJ in a joint judgment stated (at 7-8):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd; Bloemen v The Commonwealth.

(citations omitted)

30    The first respondent also relied on H v The Minister of Immigration and Multicultural Affairs (2000) 63 ALD 43 at 44, where the court stated:

In our view, the readiness with which appeal courts have in the past been satisfied that is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

31    In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at 203-4, Gleeson CJ, Gaudron and Hayne JJ stated:

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.

(citations omitted)

32    The appellant ultimately acknowledged that the sole issue before the primary judge was, as his Honour correctly identified, whether the Magistrate had a sufficient basis for a reasonable suspicion that DVDs located in the premises of WTFN’s lawyers may afford evidence of a civil aviation offence.

33    The appellant submitted that it should be permitted to raise the new issues on appeal as they were purely matters of construction of legislation which affected interests akin to the liberty of the subject, and the public interest required correction of errors below. Further, the interlocutory nature of the original application had given rise to a need to revise the arguments raised below.

34    While we granted leave to file and serve the proposed amended notice of appeal, for the reasons set out below, we have concluded that it was not expedient or in the interests of justice to entertain either ground 4 or the other grounds of or issues on appeal not raised below.

the appeal

35    Before us, the appellant advanced two principal submissions, neither of which were raised before the primary judge.

Ground 1 - Whether information on oath

36    The appellant, while not conceding that ground 1 was not raised below, acknowledged that its argument on appeal was new. Before us, the appellant alleged that the Magistrate could not have been, as required by s 32AF(2), satisfied by “information on oath” that there were reasonable grounds to suspect that there was or may be on the relevant premises a particular thing which may afford evidence of a civil aviation offence, because the contents of the spreadsheet were not expressly verified on oath. Although Mr Haslam swore to an exchange of emails and correspondence with WTFN, he did not depose to the truth of their contents.

37    The appellant submitted that the contents of the spreadsheet were thus not relevantly before the Magistrate, but rather fell within the category described in George as “otherwise conveyed to the issuing justice” and were consequently “immaterial”. It followed that the primary judge’s finding that it provided a basis for a reasonable suspicion that the alleged offences had been committed was erroneous.

38    As stated above, it was common ground that this was a new point. No submission was made below that Annexure E and the spreadsheet did not constitute information on oath.

39    The appellant, while not disputing the principle stated in Re Hinchliffe [1895] 1 Ch 117, Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 and like authority that annexures are to be considered an integral part of an affidavit, complained that in this case, Mr Haslam did not expressly depose to the truth and correctness of the contents of the annexure.

40    Some uncertainty attended the representation in the spreadsheet which, in the appellant’s submission, must be deposed to be true and correct. Mr Haslam did not assert that the events described in the annexure certainly occurred. The stated purpose of the warrant was to ascertain from raw footage whether the publicly shown episodes of the series which appeared to involve contraventions of the Act accurately depicted real occurrences. The appellant ultimately complained that Mr Haslam did not depose to the truth of the assertion that he had personally viewed the episodes and had seen the apparent events described in the annexure. Mr Haslam nevertheless deposed at the outset to the truth of the affidavit and it was clear from the total context, and paragraphs 14 and 16 in particular, that he asserted that he had viewed the episodes and prepared the annexure to record the relevant details of what he had viewed. Although he did not expressly depose that the schedule described incidents he had viewed when watching the television series, this was necessarily implied in what he deposed to and it was unnecessary for him to restate what was apparent. As the appellant conceded that there was little merit in its argument on this ground and we have concluded, as set out below, that new grounds or issues should not be entertained, it is unnecessary formally to determine it.

Ground 4

41    The essence of the appellant’s argument under ground 4 depended on the dissonance between the words of s 32AF(1) of the Act (which were set out in the preface to the warrant) and the phraseology of condition 3 of the warrant, which instead stated:

… as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of one or more of the following offence(s) against the Civil Aviation Act and Civil Aviation Regulations…

(emphasis added)

42    The appellant argued that irrespective of the Magistrate’s antecedent satisfaction, required by s 32AF(2), that there were reasonable grounds for suspecting that there was on the premises a particular thing that may afford evidence of the commission of a civil aviation offence, by s 32AF(4)(a), the warrant must, inter alia, authorise any investigator named in the warrant to:

(a)    search the premises for the thing; and

(b)    if the thing is found – to seize it.

(emphasis added).

43    The appellant submitted that the thing must be the particular thing which may afford evidence contemplated in s 32AF(2). In the present case, condition 3 of the warrant described not that statutorily prescribed thing, but rather, a different thing, as to which there were reasonable grounds for suspecting that it will afford evidence of the relevant offences.

44    Thus, in the appellant’s submission, even if (which was not conceded) the description in condition 3 contemplated something which was narrower than the requirements of s 32AF(2) would permit, the warrant still failed to comply with the requirements under s 32AF(4). In that context, the appellant submitted that the words of condition 3 effectively conferred an illegitimate discretion or delegation on the party executing the warrant, as only items which that person suspected on reasonable grounds will provide evidence (emphasis added) could be seized.

45    In the course of the argument on ground 4, the presiding judge drew the parties’ attention to Dunesky v Elder (1994) 54 FCR 540 (“Dunesky”), a case concerning the validity of search warrants issued under s 10(1) of the Crimes Act, which stated:

(1)    If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises ... or place:

(a)    anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b)    anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence [against any law of the Commonwealth]; or

(c)    anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;

or that any such thing may, within the next following 72 hours, be brought into or upon the premises ... the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises ... or place named or described in the warrant, and to seize any such thing which he or she might find there.

46    In Dunesky, the Full Court upheld the decision of the primary judge, who dismissed an application for judicial review of a decision to issue three search warrants. Pursuant to s 10 of the Crimes Act, in their joint judgment, Lockhart, Beaumont and Hill JJ (with whom Lindgren J concurred, with Black CJ dissenting) found, inter alia, that the warrants were not excessively broad and uncertain by reason of one of three conditions contained in the warrants (which were, with necessary factual adjustments, repeated in the warrant in the present case), including a third condition, which stated (at 544):

THIRD CONDITION: as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of one or more of the following offences against laws of the Commonwealth which offences are suspected on reasonable grounds to have been committed:

…

[A number of allegations of contravention of particular sections of the Crimes Act followed].

47    In Dunesky, the plurality, applying George, considered that the three conditions in the warrants, which must each in turn be satisfied, applied a refining process. The third condition did not, in their view, infringe the principle that the requisite satisfaction must be that of the justice rather than the executing officer. Nor did it impermissibly delegate a discretion to the latter. The condition simply made clear, in objective terms, to what the warrant was limited. The possibility that the executing officer might misconstrue it did not establish that its terms were too broad and uncertain.

48    The plurality also held that the phraseology of the third condition (repeated in the warrant in this case) did not invalidate the warrants because, first, it merely recited the belief and suspicion required by the statute and “[n]o departure from the statutory provisions is involved. Moreover… only those things which, objectively speaking, are able to satisfy, inter alia, these aspects of the statutory conditions may lawfully be seized” (at 557). Secondly, the plurality observed that “the real object of the third condition is the identification of the kind of offences alleged… this is done as part of the refining process…” and it was “a permissible method of drafting a warrant with a view to compliance with the requirements of s 10(1)” (at 557).

49    The first respondent, subject to its primary submission that ground 4 should not now be entertained, contended that it was not made out, because the preliminary statement in the preface to the warrant satisfied the condition in s 32AF(2). There was no prescribed form of warrant and, on a proper construction, condition 3 functioned as but one of the three cumulative descriptions of the “thing”, which progressively narrowed the subject matter of lawful seizure under the warrant. The “grounds to reasonably suspect that the thing will afford evidence” constituted a more stringent test than that imposed by s 32AF(2) or, in any event, was not more liberal. Further, flexibility was permitted in drafting a description of the thing to be seized, and Mr Haslam’s affidavit also set out the three conditions which were repeated in the warrant. The warrant should be read in context, including that of the affidavit in support, from which condition 3 was derived.

50    Dunesky, in which the Full Court endorsed the validity of the impugned terminology of condition 3, concerned a warrant issued under s 10(1) of the Crimes Act, the relevant terms of which it replicated. The fact that no departure from the statutory provisions was involved was one reason, although apparently the less important justification, for the plurality’s conclusion that condition 3 did not invalidate the warrants. Although condition 3 of the warrant in the present case recites the phraseology of condition 3 in the Dunesky warrants, the validity of which was accepted, the warrant in this case departs from the language of the statutory provision under which it was issued. Section 32AF of the Act is in different terms from s 10 of the Crimes Act. Dunesky thus did not resolve the implications of using the same phraseology in condition 3 of a warrant issued under the Act. Determination of that issue would require comprehensive analysis of Dunesky, other relevant authority and the legislative history of s 32AF and the comparable provision of the Crimes Act.

51    The appellant was, however, unaware of and offered no reasoned submissions on Dunesky and its implications. The first respondent, whose primary, and persuasive, contention was that ground 4 should not now be raised, also understandably offered no developed submissions on those questions.

52    The court thus received no substantive assistance on those matters, either from the parties or from the reasons of his Honour, before whom the argument had not been ventilated.

53    Ground 4 concerned the proper construction of legislation which balances important competing public interests in, on the one hand, protection from unjustified invasion of privacy and, on the other hand, the enforcing of compliance with aircraft safety legislation. It may be appropriate to permit a new ground involving pure construction of a statutory provision to be raised on appeal in order to avoid the perpetuation of an erroneous construction of important legislation (see Federal Commissioner of Taxation v American Express Wholesale Currency Services Pty Ltd (2010) 187 FCR 398). In the present case, however, contrary to the appellant’s submission, the public interest did not require this court to correct an erroneous construction. The construction in issue was not before his Honour, who did not err. As in Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441, no evidence was before the court to explain why the issue had not been submitted to the primary judge and there was no evidence to support the contention that it was expedient and in the interests of justice to allow the new argument to be raised. Contrary to the appellant’s submission, the attempt to raise new issues on appeal was not explained by any urgent context of an interlocutory application, as almost three months elapsed between the issue of the warrant followed by the commencement of the proceedings and the hearing below. Although we granted leave to file and serve an amended notice of appeal including ground 4, given the complexities which emerged and the importance of s 32AF, it would be particularly inappropriate to deal with its construction based on a new ground in this appeal, unassisted by full argument, developed submissions or any consideration below.

Other grounds of appeal

54    In oral submissions, the appellant addressed only the two grounds discussed above, but sought to rely on its written submissions. The appellant conceded that grounds 2(a) and (b), 3(a) and (b) and 4 and the allegation pressed under ground 1 (of want of information on oath) were not raised below.

55    The written submissions largely related to other grounds of appeal not raised below, which are unnecessary to consider. To the extent that ground 1 reflected (and the written submissions obliquely addressed) the sole issue before his Honour, in our opinion, it was not made out. As his Honour found, there was ample material before the Magistrate to constitute reasonable grounds to suspect that there was or may be on the premises a particular thing that may afford evidence of the commission of a civil aviation offence.

56    In our opinion, the appeal should be dismissed with costs.

Associate:

Dated:    2 December 2011