IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 438 of 1993
GENERAL DIVISION )
BETWEEN: BRUNO GROLLO AND OTHERS (According to the Attached Schedule)
Appellants
AND: PETER MACAULEY (COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE) AND OTHERS (According to the Attached Schedule)
Respondents
COURT: Black CJ, Northrop and Ryan JJ
DATE: 5 April 1995
PLACE: Melbourne
MINUTES OF ORDER
The Court orders that:
1. The appeal be dismissed.
2. The appellants pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
CATCHWORDS
CRIMINAL LAW - search warrants - whether material before magistrate justified issue of warrants - whether interference with the course of justice in respect of pending civil proceedings - duty of magistrate where risk of interference with course of justice - width of discretion conferred by search warrant - scope of activities authorised by search warrant - Crimes Act 1914, s.10(1) - Administrative Decisions (Judicial Review) Act 1977.
Crimes Act 1914 (Cth) s.10(1)
Dunesky and Bay Wool Pty Limited v Elder (1994) 126 ALR 522
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25
George v Rockett (1990) 170 CLR 104
Bartlett v Weir and Others (unreported, Federal Court, Northrop J, 17 February 1993)
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
Brambles Holdings Ltd v Trade Practices Commission (No. 2) (1980) 32 ALR 328
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Propend Finance Pty. Limited v The Commissioner, Australian Federal Police (unreported, Federal Court Full Court, 24 March 1995)
BRUNO GROLLO AND OTHERS v PETER MACAULEY (COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE) AND OTHERS
No. VG 438 of 1993
Black CJ, Northrop and Ryan JJ
5 April 1995
Melbourne
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 438 of 1993
GENERAL DIVISION )
BETWEEN: BRUNO GROLLO AND OTHERS (According to the Attached Schedule)
Appellants
AND: PETER MACAULEY (COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE) AND OTHERS (According to the Attached Schedule)
Respondents
COURT: Black CJ, Northrop and Ryan JJ
DATE: 5 April 1995
PLACE: Melbourne
REASONS FOR JUDGMENT
BLACK CJ:
This is an appeal from a judgment of Jenkinson J refusing an application for judicial review of each of three decisions by a Magistrate to issue a search warrant under s.10 of the Crimes Act 1914. Jenkinson J also refused an application for injunctive and declaratory orders. The relevant facts and the provisions of s.10(1)(b) of the Crimes Act as it then stood are set out in the joint reasons for judgment of Northrop and Ryan JJ and in the reasons for judgment of the learned primary judge. The decision of Jenkinson J is reported at (1993) 45 FCR 336.
The warrants relate to different premises and are directed to different people but otherwise they are in identical terms. A copy of one of the warrants is attached to the reasons for judgment of Northrop and Ryan JJ.
The warrants authorise the seizure of things that satisfy each of three conditions, the third condition being that the thing is one "as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth, being offences which have been, or are suspected on reasonable grounds to have been committed, namely . . .". The offences are then specified.
The primary contention of the appellants before us, as it was before the primary judge, was that it was impermissible for the Magistrate to issue a warrant without first being satisfied, by information on oath, that there are reasonable grounds to suspect that there are in specified premises specific things, or things which answer a specific description, and it was said that the form of the warrants in the present case demonstrated that the Magistrate was not and did not purport to be so satisfied in relation to many of the items. Moreover, it was argued, the form of the warrant was such as to involve an impermissible delegation to the person executing the warrant of the task of determining what things, if any, came within its scope.
Essentially, the primary argument attacked the validity of the so-called "three condition warrants" issued by the Magistrate in this case and encountered in a number of other cases, of which Croft v Jumeau (1990) 22 FCR 276 is an example. In particular, it was contended that the reasoning of the High Court in George v Rockett (1990) 170 CLR 104 required the conclusion that the warrants were invalid.
In Dunesky and Bay Wool Pty Limited v Elder (1994) 126 ALR 522 ("Dunesky") a Full Court of five members of this Court (Black CJ, Lockhart, Beaumont, Hill and Lindgren JJ) considered the validity of warrants that had the same structure as the warrants in issue here in that, like the present warrants, they authorised the seizure of things that satisfied each of three conditions and the third condition was, in its essential elements, the same as the third condition of the present warrants. There were some differences in language in the introductory words to the third condition and the specified offences were of course different but the differences are not material.
In Dunesky the Full Court (Black CJ dissenting) rejected the appellants' submission that the reasoning of the High Court in George v Rockett pointed to the invalidity of the warrants. Moreover, the Full Court rejected the contention that the warrants were not sufficiently specific in their terms in identifying the object of the search. Having discussed George v Rockett, Lockhart, Beaumont and Hill JJ, with whom Lindgren J agreed, said (at 535):
"In our opinion, there is nothing in the form of the warrants, and in particular, there is nothing in the description of the things the object of the search, which leads to the conclusion that any of the warrants is bad. Subject, as has been said, to compliance with the conditions stipulated in s.10(1) as explained in Rockett, it is not, in our opinion, impermissible to describe the object of the search in a broad, or non-specific fashion."
What their Honours said about describing the object of the search in a broad or non-specific fashion must be read in the context of the warrants being considered in that case, and their Honours pointed out (at 536) that by referring to "reasonable grounds" the third condition made it clear that the warrants were, in objective terms, limited to, and in accordance with, the conditions laid down by s.10(1).
Although in Dunesky the Court stressed that each case in which the validity of warrants is challenged must depend upon its own particular circumstances (see at 534) the reasoning in Dunesky must lead to a rejection of the appellants' submissions in the present appeal that the description of the things to be seized was insufficiently specific.
Dunesky was recently applied by a Full Court of this Court in another case in which the validity of a three condition warrant was in issue, Propend Finance Pty. Limited v The Commissioner, Australian Federal Police (unreported, 24 March 1995). In that case Beaumont J said (at pp.16-17 of his Honour's reasons):
"These warrants used the format employed in other cases, for instance, those considered in Dunesky. Whilst, as was pointed out in Dunesky, it is not usually profitable to take into account, in any specific sense the actual terms of warrants used in other decided cases, much of the general reasoning of the majority in Dunesky can nonetheless be applied to the present warrants. That is, there is nothing wrong in principle with the adoption of the three stages required by these warrants which, as noted in Dunesky, operated as a refining process having the legitimate effect, of narrowing, by stages, the scope of the enquiry to be undertaken by those executing the warrants."
The reasoning in Dunesky must also lead to a rejection of the submission that the form of the warrants in this case demonstrates that the Magistrate did not have, and did not purport to have, the requisite satisfaction. Following the passage cited earlier from the
joint judgment of Lockhart, Beaumont and Hill JJ in Dunesky, their Honours said (at 535):
"Were the statutory conditions fulfilled in the present case, looking at the matter objectively in the sense explained in Rockett? In our view, the requisite conditions were complied with for these reasons.
In the first place, in terms of the justice's function, it was sufficient, in our view, for the justice to express her satisfaction in a recital in the warrants by information on oath by reference to what are said to be the requisite matters stated in the form of the three conditions then specified. The observations in Rockett (at CLR 111) discussed above do not suggest that the expression of the justice's satisfaction must take any particular form.
The justice expressed her satisfaction as having been derived from the material in the sworn information. There is no suggestion that the justice's satisfaction was derived from other material. The second element described by the High Court, the material to ground the issue of a warrant, has been established."
Dunesky also provides the answer to the appellants'
contention that the form of each warrant was such as to involve an
impermissible delegation to the person executing it. The third condition in the warrants in Dunesky was held not to involve any such
delegation. All members of the Full
Court were agreed that the third condition did not infringe the principle that
the requisite satisfaction for the purposes of s.10(1) must be that of the
Magistrate and not of the executing officer.
In this case, too, the third condition in each of the warrants
effectively limits their scope to things that were, as a matter of objective
fact at the time the warrant was issued, things as to which there were
reasonable grounds for believing that they would afford evidence of the
commission of one or more of the offences described. The operation of the third condition does not
depend upon the subjective opinion of the executing officer. As was pointed out in the joint judgment in Dunesky (at 536), if the executing
officer seized things as to which the
relevant reasonable grounds did not, objectively, exist, the seizure would not
be authorised by the terms of the warrant.
The appellants then submitted that in any event there was no evidence or other material before the primary judge to justify some of the conclusions he reached in the course of reasoning to the ultimate conclusion that the information placed before the Magistrate on oath justified the satisfaction she expressed as to the existence of the requisite reasonable grounds for believing and suspecting. This argument was described as involving a subsidiary issue and it was not developed at any length. It related principally to the breadth of the classes of documents referred to in the first five paragraphs of the first condition.
In reaching the conclusion he did, the primary
judge took into account, amongst other things, the wide-ranging nature of the
criminal scheme as alleged (on the basis of information put before the
Magistrate on oath) and the relative complexity, both of the income tax affairs
said to give rise to the scheme and of the steps involved in effecting the
scheme. His Honour concluded that these
matters reasonably gave rise to a belief that records and reproductions
relating to the scheme would be made and kept by him who, according to Mr
Flanagan, was the director of the scheme.
I agree with his Honour's conclusion which, in the circumstances, is in
my view sufficient of itself to support the requisite belief concerning the
existence of the documents. In this
regard it is also to be noted that the extensive information before the
Magistrate on oath included material about numerous telephone calls said to have
been made between Mr Flanagan
and Grollo business and residential premises and references to notes of
meetings between Mr Flanagan and Mr Farrell.
It was not suggested that his Honour was in error in concluding that, if
reasonable grounds were to be found in the information for the requisite belief
that such documents were kept, there could be little doubt that the information
provided reasonable grounds for suspecting that documents satisfying the three
conditions were in each of the three premises.
The appellants also argued that on the findings of the primary judge there was an apprehension of contempt of court and that it was the duty of Magistrate to guard against such a contempt occurring. It was argued that she should have guarded against the occurrence of contempt by not issuing the warrants at all, or by requiring the warrants to be more specific, or by requiring special procedures to be adopted similar to those required by the two page addendum to the warrants with respect to claims for legal professional privilege.
At the time the warrants were issued proceedings were pending in the Federal Court in which the appellants, as applicants, were parties and members of the Australian Federal Police were respondents. The proceedings concerned the validity of the execution of other search warrants. There were also proceedings in which the appellants were applicants and the Commissioner of Taxation and the Commonwealth Director of Public Prosecutions were respondents.
The primary judge accepted that because the
alleged income tax fraud and the
investigative response to that fraud provided the motive for the commission of
the alleged offences, there was a likelihood that in the course of executing
the three warrants the Australian Federal Police would inspect documents
providing information relevant to the pending litigation and would seize some
of those documents as documents also falling within the scope of the
warrants. His Honour also accepted that
there was a possibility, if not a likelihood, that the Commissioner and other
members of the Australian Federal Police would acquire information relevant to
pending litigation in which they were respondent parties otherwise than in
accordance with the procedural regulation of the litigation by the Court, to
their advantage and to the disadvantage of the applicant parties to that
litigation. Although there was no
evidence that any of those concerned in procuring the warrants had any
intention to interfere with the course of justice, the circumstances did, in
his Honour's view, disclose "some risk that the execution of the warrants
might result in interference with the course of justice" by reason of the
acquisition or communication of information not available by the ordinary
processes of discovery and its use in the conduct of the pending litigation
(see 45 FCR at 352-353, 354). In this
connection, his Honour referred to the great difficulty of acting in disregard
of relevant knowledge.
These conclusions were challenged by the
respondents whose counsel submitted that it was fanciful to suppose, in all the
circumstances, that there was any tendency to interfere with the course of
justice. One of the arguments advanced
in support of that contention was that the conditions in the warrants were such
that nothing directly relevant to the other litigation could be seized. In my view, however, there is no need to
decide whether
the respondents have sustained their challenge to his Honour's finding that
there was some risk of interference, because even if there were some risk of
the type identified by Jenkinson J I agree that no grounds were shown for
setting aside the Magistrate's decision to issue the warrants in the terms in
which they were issued.
As Northrop and Ryan JJ point out in their joint reasons for judgment, there is no suggestion that the warrants were sought for an improper purpose. Nor is there any basis for concluding that the issue or execution of the warrants would inevitably result in an interference with the course of justice. What the primary judge found was only that there was "some risk" that execution of the warrants "might" result in interference with the course of justice in the way his Honour described.
The situation is far removed from that considered
in the case upon which the appellants mainly relied, Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 32
ALR 328. In that case Franki J held that
the issue of a notice under s.155 of the Trade
Practices Act 1974 was a contempt of the Federal Court. The Trade Practices Commission had commenced
proceedings in the Court against Brambles Holdings Ltd and others for the
recovery of penalties for alleged contraventions of the Trade Practices Act. Having
regard to the law as it was then understood, it was common ground that because
the proceedings were for the recovery of penalties, the Commission could not
get discovery or require answers to interrogatories. Franki J was satisfied that the Commission's
notice was served for the very purpose of obtaining information from Brambles
that could not be obtained by discovery and interrogatories. He concluded that
the issue of the notice was a clear interference with the ordinary course of
justice because it was "a clear attempt to procure an advantage by
threatening a party with criminal proceedings if it did not do something which
the law did not require it to do" (at 340). Franki J also regarded it as important that
the issue of the notice and compliance with it was not authorised by statute
and was not within the control of the Court (at 335-336).
In my view, it cannot be said in the present case that the issue of the search warrants involved any contempt of court: cf. Pioneer Concrete (Vic.) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 468, 473-4, 475. The question remains however, whether, assuming that the Magistrate had power to impose conditions to remove or lessen any risk of interference with the course of justice as a consequence of the execution of the warrants, there is any basis for concluding that she erred in law in not imposing any condition or proviso directed to that end. The circumstances and the nature and magnitude of the risk as found by Jenkinson J were not such, in my view, as to require any such intervention by the Magistrate and no error on her part was shown.
I would therefore dismiss the appeal, with costs.
I certify that this and the preceding 9 pages are a true copy of the reasons for judgment of the Honourable Chief Justice Black.
Associate:
Date:
Counsel for the Appellants: J L Sher QC
J G Judd
Solicitors for the Appellants: Arnold Bloch Leibler
Counsel for the Respondents: M S Weinberg QC
H A Aizen
Solicitors for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 438 of 1993
GENERAL DIVISION
B E T W E E N :
BRUNO GROLLO AND OTHERS
(According to the Attached Schedule)
Appellants
A N D :
PETER MACAULEY (COMMISSIONER OF THE
AUSTRALIAN FEDERAL POLICE) AND OTHERS
(According to the Attached Schedule)
Respondents
COURT: BLACK CJ
NORTHROP J
RYAN J
PLACE: MELBOURNE
DATE: 5 APRIL 1995
REASONS FOR JUDGMENT
NORTHROP AND RYAN JJ
This appeal raises for consideration the validity of search warrants issued under s10 of the Crimes Act 1914. Over the past few years there have been several cases involving a consideration of this problem. The main authority on the issue is George v Rockett (1990) 170 CLR 104. In that case, the Court considered the construction of an equivalent provision to s10 of the Crimes Act as contained in Queensland legislation. The principles enunciated by the High Court apply with respect to s10. Recently, Northrop J had occasion to consider the problem in Bartlett v Weir and Others (unreported, Federal Court, Northrop J, 17 February 1993). The opinion there expressed applies equally to the issue raised by this appeal. There, the warrants had been issued by a Justice of the Peace. In
the present case the warrants were issued by a Magistrate. Section 10 applies to "a Magistrate or Justice of the Peace".
The following extract from Bartlett should be understood as also having application to a Magistrate. There, the applicant challenged the validity of three search warrants. At pp2-9 it was said:
"The evidence before the Court on this preliminary issue comprises the information on oath presented to the Justice of the Peace upon which she granted the three search warrants, an affidavit sworn by the respondent Aikman setting out the facts which occurred before the Justice of the Peace when she granted the three search warrants and details of the things seized pursuant to the authority conferred by the three search warrants. No oral evidence was given.
Counsel for the applicant contended that the three search warrants were invalid on the ground there was insufficient material before the Justice of the Peace to justify the granting of the warrants. In developing this contention counsel relied upon two broad grounds, namely: 1. That the warrants were bad on their face in that they were too broad and vague and 2. That the material before the Justice of the Peace was not sufficient to satisfy the conditions precedent to the granting of the warrants. In reality, ground 1 merges into ground 2 but the distinction can be of assistance.
The relevant parts of sl0 of the Crimes Act provide as follows:
10(1) If a ... 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) ...
(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) ...
... the ... Justice of the Peace may grant a search warrant authorizing 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.
Before turning to the facts of this case, it is helpful to make a brief reference to the nature of a search warrant. In this respect, a very useful passage appears in the judgment of the High Court in George v Rockett (1990) 170 CLR 104. That case involved a consideration of s679(b) of the Criminal Code (Q) which, as already noted is, for present purposes, similar to sl0 of the Crimes Act. At ppll0‑111, the Court, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, said:
"In reference to the procedure for issuing a search warrant under sl0 of the Crimes Act, Mason J said in Baker v Campbell (1983) 153 CLR 52:
"For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation."
A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s679 [of the Queensland Crimes Act], the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol 10 (1938), pp668‑672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money (1765) 19 State Tr 1001; Entick v Carrington (1765) 19 State Tr 1029. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick (1765) 19 State Tr at plO66. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry. Search and Seizure (1986), ppl‑2.
State and Commonwealth statutes have made many exceptions to the common law position, and s679 is a far‑reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. 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. It will be convenient to consider the relevant conditions prescribed by s679 under three headings: the justice's function, the material to ground the issue of a warrant and the facts to be established."
The High Court then considered in detail the relevant principles of law to be applied under each of those headings. The reasons should be read in full. In summary, three principles are set out based upon slO of the Crimes Act.
"1. The justice's function
The opening words of sl0 ‑ "If a Justice of the Peace is satisfied by information on oath" ‑ impose on a Justice to whom an application for a search warrant is made the duty of being satisfied that the conditions for the issue of the warrant are fulfilled. It is implicit in sl0 that the applicant for the search warrant should entertain the suspicion that there is in the premises or place things as to which there are reasonable grounds for believing will afford evidence as to the commission of any offence against any law of the Commonwealth. The High Court makes it clear that the Justice to whom the application for the warrant is made, must be satisfied that there are reasonable grounds for the person seeking the grant of the search warrant entertaining the relevant suspicion and belief. There is no requirement that the Justice must also entertain the relevant suspicion and belief. The Justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind in the person seeking the warrant.
2. The material to ground the issue of a warrant
The discussion under this heading commences at pll3. The facts relied upon by the applicant for the warrant must be by information on oath. The information on oath should contain sufficient material to establish reasonable grounds for the suspicion and belief of the applicant mentioned in sl0. It is noted that the word "information" has no technical meaning but refers to material being facts, information, beliefs and suspicions sufficient to satisfy the Justice that there are reasonable grounds for the suspicion and belief of the applicant mentioned in sl0. In other words, the material presented to the Justice must be sufficient to induce that state of mind in a reasonable person.
3. The facts to be established
This aspect of the analysis is the most complex. Suspicion and belief are different states of mind. The facts must establish that there is reasonable ground for the applicant suspecting the existence of a thing or things as well as establishing that there are reasonable grounds for believing that that thing or those things will afford evidence of the commission of the offence. At ppll6‑7, the High Court concludes that the existence of the thing or things is the subject of the suspicion. At the same time, there is the requirement that there are reasonable grounds for the belief of the applicant that the thing or things will afford evidence. The facts which can reasonably ground a suspicion may be quite insufficient to reasonably ground a belief, but some factual basis for suspicion must be shown. Essentially suspicion is a state of conjecture or surmise where proof is lacking. The objective circumstances sufficient to show a reason to believe point more clearly to the subject matter of the belief, but do not need to establish on the balance of probabilities that the subject matter exists. Belief is an inclination of the mind towards assenting (sic), rather than rejecting a proposition. Something may be left for surmise or conjecture."
In this context, the identification of the thing or things being the subject of the suspicion and belief is of importance. At pll7, the Court said:
"So to hold does not deprive the requirement of "reasonable grounds for believing" in par(b) of significance. That significance depends on the manner in which a complaint which grounds a search warrant and the warrant itself identify the object of the search. A thing must be identified either as a specific object or as an object which answers a particular description. It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location."
Examples are then given to illustrate the proposition.
In George v Rockett, the applicant for the warrant identified the things for which he was seeking a search warrant "as a bundle of A4 pages ... and part of the transcript of hearings bearing handwritten annotations". It was not disputed that the sworn material before the Justice contained sufficient material to satisfy the magistrate that there were reasonable grounds for suspecting that those documents were in the place specified. The essential question was whether there was sufficient material in the sworn complaint to satisfy the magistrate that there were reasonable grounds for the applicant for the warrant believing that the document would afford evidence as to the commission of the relevant offences. The High Court found the material so presented to the magistrate was not so sufficient.
Before turning to the facts of this case, reference should be made to Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, a decision of a Full Court constituted by Sheppard, Pincus and Burchett JJ. That case involved a consideration of the validity of a search warrant granted under sl0 of the Crimes Act. A major issue considered related to what constituted a sufficient indication of the offence alleged in a warrant being the offence which limited the power to seize the things identified in the warrant. The leading judgment was given by Burchett J with whom Sheppard J agreed. Burchett J examined a large number of authorities relating to this issue, some of which appeared to contain conflicting views. His conclusion is stated at p543:
"I have discussed the authorities dealing with the true test, for the sufficiency of the statement of the offence in a search warrant, at considerable length, because of the importance of the principle, and the difficulty which has arisen from the conflicting statements of it. In my opinion, the conclusion emerges clearly that there is no justification for an "exact object" test. The matter should be viewed broadly, having regard to the terms of each warrant in the circumstances of each case. The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals."
In the present case, the appellants challenge the validity of three search warrants. The proceedings were brought under the Administrative Decisions (Judicial Review) Act 1977. In addition, the appellants seek the return of the things seized. The application to review the decisions to issue the warrants was dismissed by the trial Judge who upheld the validity of each warrant. The appellants have appealed.
The appellants are Bruno Grollo, his
brother, Rino
Grollo, and eight companies within the Grollo group of companies. The respondents are the Commissioner of
Federal Police, five police officers, the Commonwealth of Australia, and the
Chief Magistrate of Victoria, being the Magistrate who issued the three
warrants. The warrants were issued on 11
August 1993. The premises the subject of
the warrants were:
1. The house known as "Casa Del Matto", 313 Gillies Street Thornbury, the home of Bruno Grollo and his family.
2. The house at 321 Gillies Street Thornbury, the home of Leanne Costa, the daughter of Bruno Grollo.
3. The premises at 10-30 Chifley Drive Preston, the business premises of the Grollo group of companies.
The three warrants were executed on 11 August 1993. Nothing was seized or removed from the home of Leanne Costa. A large number of things, including documents, were seized and removed from the other two premises.
Except with respect to the description of the premises and the persons to whom the warrant is directed, each warrant is identical. A copy of one of the search warrants is attached to these reasons. Each warrant recites the fact that the Chief Magistrate is a magistrate within the meaning of s10 of the Crimes Act and that she is satisfied by information on oath placed before her on that day that there is reasonable ground for suspecting that there is in or upon the stated premises certain things which satisfy three conditions. The warrant then confers the authority on the constables named in it in the following terms:
"YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable to enter at any time said premises AND TO SEIZE any such things as satisfy ALL of the above THREE conditions you may find in the said premises and for so doing this shall be your sufficient warrant.
FURTHERMORE YOU MAY pursuant to sub-section (1A) of section 10 of the Crimes Act 1914, where it is necessary and reasonable to do so for the purpose of executing the warrant, break open such doors and receptacles as are in or upon the said premises and may do so with such assistance, and by such force, as is necessary and reasonable."
Reference is made then to questions that might arise relating to legal professional privilege. Those questions are not relevant to the issues raised by this appeal and so no further reference is made to this matter. It is noted, however, that there is no reference to any possible contempt of Court and what should be done if that issue were likely to arise.
The first condition sets out a long list of things including documents, photographs and books. The second condition states that these things must pertain to, arise out of, be connected with or relate to the affairs of any one or more of a number of named persons or entities. The third condition states that there must be reasonable grounds for believing that the things could afford evidence as to the commission of a specified list of offences against laws of the Commonwealth, being offences which have been, or are suspected on reasonable grounds to have been, committed.
The application for the search warrant was made by John Robert Morrison, a Detective Sergeant of the Australian Federal Police. The application was supported by information on oath sworn by Detective Sergeant Morrison. At the time when the application for the search warrants was made, the present appellants, as applicants, were parties to other proceedings in the Federal Court in which members of the Australian Federal Police were respondents. Those proceedings related to the validity of the execution of other search warrants by members of the Australian Federal Police at premises of the appellants and premises occupied by the appellants' solicitors, bankers, consultants and business associates. In other proceedings, the appellants were applicants and the Commissioner of Taxation and the Commonwealth Director of Public Prosecution were respondents. The appellants contended that the Australian Federal Police are interested in the outcome of those proceedings.
The appellants contended that the issuing of the search warrants could entitle the Australian Federal Police to search for and seize documents which might assist the Australian Federal Police in the other proceedings pending in the Federal Court and thus obtain an advantage over the appellants to which they were not entitled. It was contended further that this constituted an interference with the course of justice and could constitute a contempt of court.
On the appeal, counsel for the appellants relied upon three principal contentions:
1. That the material before the Chief Magistrate could not justify the issue of the warrants.
2. That the terms of the warrants were so wide as to invalidate them.
3. That the warrants constituted a contempt of court and thus were invalid.
In truth, contentions 1 and 2 merge into a contention that the warrants were invalid on the ground that there was insufficient material before the Chief Magistrate to justify the granting of the warrants and, in any event, the warrants were bad on their face because they were too broad and vague. In other words, it was contended that the material before the Chief Magistrate was not sufficient to satisfy the conditions precedent to the issuing of the warrants. These were the grounds relied upon in Bartlett v Weir and Others.
The law to be applied is clear. It is set out at length in George v Rockett. The importance of the common law principles protecting the privacy of the individual against the Executive is stressed in George v Rockett. The exercise of the power to issue a search warrant under s10 of the Crimes Act must be considered in the light of those principles. As a result, there must be strict compliance with the conditions precedent imposed by s10 before the issue of a warrant can be justified. The principles of law have been explained earlier in these reasons.
The warrants disclose that the Chief Magistrate understood the nature of the function imposed upon her. She said that she was satisfied by information on oath placed before her that there was reasonable ground for suspecting that identified things were in or upon identified premises. She stated also that she was satisfied that there were reasonable grounds for believing that those things would afford evidence of the commission of identified offences by identified persons.
The search warrants are convoluted and obscure. They are based on the application for the warrants which is headed "Commonwealth of Australia Crimes Act 1914 - Section 10 Information on Oath". This then continues:
"On the 11th day of August 1993, John Robert Morrison, a Detective Sergeant of the Australian Federal Police, 383 La Trobe Street, Melbourne, in the State of Victoria, hereafter called the 'Informant' appears before me Sally Elizabeth Brown a Magistrate/Justice of the Peace in the State of Victoria within the meaning of section 10 of the Crimes Act 1914, of the Commonwealth of Australia and informs me on oath:"
As appears from the attestation clause at the end of the "information on oath" it was sworn before the Chief Magistrate on 11 August 1993.
The information is very long and contains detailed recitals of fact sworn to by the deponent to justify the granting of the warrants. Paragraph 111 commences "By reason of the matters set out above there are reasonable grounds for suspecting that there is in or upon certain premises and in certain motor vehicles namely:". The particular premises and vehicles are then identified. The paragraph then continues "Certain things which satisfy ALL THREE of the following conditions, that is to say:". There are then set out the three conditions as recited in the search warrants. Attention is drawn to the opening paragraph of the third condition:
"AND as to which THIRDLY there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth, being offences which have been, or are suspected on reasonable grounds to have been committed, namely:"
The substantive part of the information concludes with the prayer:
"THEREFORE the Informant prays that Search Warrants in the terms annexed hereto and marked with the numbers 1 to 6 inclusive, may be granted to the respective members of the Australian Federal Police named therein AUTHORISING them, with such assistance and by such force as is necessary and reasonable, to enter at any time the respective premises and motor vehicles specified herein, AND TO SEIZE any such things as satisfy ALL of the above THREE conditions and as may be found in the said premises and motor vehicles."
From this, it is apparent that the forms of the warrants were drafted by or on behalf of Detective Sergeant Morrison.
It is a clear inference from the opening words of paragraph 111 and the opening paragraph of the third condition as set out in paragraph 111 that the information was drawn having regard to the wording of paragraph 10(1)(b) of the Crimes Act. Nowhere in the information does the deponent state expressly that he entertains the suspicion that the identified things are in or upon the identified premises or vehicles or that he entertains the belief that those things will afford evidence of the commission of the identified offences. But it is implicit in the information that the deponent does entertain the suspicion and the belief. The issue is whether there are reasonable grounds for entertaining the relevant suspicion and belief. This must be determined on a consideration of the material before the Chief Magistrate.
The wording of the "information" appears to make obscure what should be set out clearly in plain language. The warrant should contain clear and plain language. The draftsperson appears to have thought that the word "information" in subsection 10(1) of the Crimes Act has a technical meaning as if it described a document in which there was to be an informant and a defendant. Thus the "information" says that Detective Sergeant Morrison is to be called the "Informant" and that "the Informant" seeks the grant of the warrants.
The sub-section merely requires the Magistrate to be "satisfied by information on oath" of certain things. In theory, the information on oath could be given orally, but the authorities make it clear that it is desirable that the information should be in writing to enable a written record to be kept of the information upon which the Magistrate acted. Thus, an applicant for a search warrant should, in normal cases, provide an ordinary affidavit or affidavits on oath or affirmation (s27 Acts Interpretation Act 1901) setting out the information said to justify the grant of a search warrant under s10 of the Crimes Act. In some cases, it may be necessary for oral information on oath to be given to supplement the information in the affidavit or affidavits. If this is done, a record of the oral information should be kept.
Normally, the affidavit or affidavits should set out the relevant suspicion and belief of the person seeking the grant of the search warrant, the relevant law of the Commonwealth and the material upon which the applicant relies to support that relevant suspicion and belief. If the Magistrate to whom the application is made is satisfied that the material is sufficient to induce the relevant suspicion and belief in a reasonable person, the warrant should be granted. In fact, if the conditions precedent are established, the words "may grant" in the phrase "may grant a search warrant" should be construed to mean "must grant", see for example Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 per Windeyer J at pp134-5. If this form is followed, greater clarity in the expressions used in the information, being those contained in the affidavit or affidavits, may result.
The law to be applied has been set out earlier in these reasons. It is helpful to refer to some extracts from pp111-13 of the reasons for judgment of the High Court in George v Rockett. In these passages, the reference is to s679 of the Queensland legislation, being the equivalent of s10 of the Crimes Act.
"The opening words of s679 ‑ "If it appears to a justice" ‑ impose on a justice to whom an application for a search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled. In TVW Ltd v Robinson [1964] WAR 33 at p37, Negus J said, `It is the duty of a Justice before issuing ... a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in s711 of the Criminal Code and that those grounds are reasonable'. ...
Although it is implicit in s679 that the applicant for the search warrant should entertain the suspicion and belief to which that section refers, it must "appear" to the issuing justice that there are reasonable grounds for entertaining the relevant suspicion and belief.
...
When a statute prescribes that there must be "reasonable grounds" for a state of mind ‑ including suspicion and belief ‑ it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v Anderson [1942] AC 206."
In the present case, the Court has before
it the material
which was before the Chief Magistrate.
The Court must determine whether that material discloses the existence
of facts which are sufficient to induce in a reasonable person the required
state of mind, being the specified suspicion and belief. In this respect, the limitations imposed by
conditions two and three of the warrants are most important.
In these reasons it is not necessary to make extensive reference to the information contained in the affidavit of Detective Sergeant Morrison. The information refers in some detail to the lengthy and complex investigations, including activities by undercover agents, into the affairs of the appellants. The material discloses facts which suggest that there are reasonable grounds to support a suspicion that there are things at the described premises and that there are reasonable grounds for believing those things will afford evidence as to the commission of the identified offences. More details of the content of the affidavit are contained in the reasons for judgment of Jenkinson J, the trial Judge.
Counsel for the appellants contended, in substance, that the width of the description of things enumerated in the warrants was so great as to make the warrants general in nature and therefore invalid. Implicit in this contention was the submission that a warrant could not, validly, authorize a person to ransack a house or office searching for things that might assist in proving that a person had committed a criminal offence. It was contended, therefore, that there could not be reasonable grounds to support the required suspicion and belief.
Warrants under s10 of the Crimes Act authorize the constables named in them to enter premises "to seize ... things" found there. Of necessity, such a warrant authorizes the constables to search for the things which are authorized to be seized. Authorities support that view. This is why warrants of this kind are referred to as "search warrants" even though the authority is only to seize things.
In the present case, condition one identifies a large number of things, some of which are generically described such as diaries, banking records, disks, video tapes, films and files. In some warrants, one thing only may be identified. In an illustration given in George v Rockett one thing only "an object wrapped in cloth", was posited. This does not deny that in other valid warrants a larger number of things may be identified. The volume or extent of things cannot, by itself, preclude the existence of the requisite suspicion and belief. The issue does not arise in this case, but there may be cases in which there are reasonable grounds for forming the requisite suspicion and belief with respect to some of the things identified but not with respect to others. In those cases there may be a question whether the validity of the warrant has been compromised. These problems are referred to in Beneficial Finance Corporation v Commissioner of the Australian Federal Police (1991) 31 FCR 523 per Burchett J at p544-5. As has been said, this issue does not arise in this case and will not be considered further in these reasons.
In the present case it is important that consideration be given to each of the 17 things identified in the first condition and an assessment made having regard to the legal principle to be applied. In the light of the material contained in the "information", there were reasonable grounds for suspecting that those things were in the identified premises or vehicles.
This, however, does not conclude the matter. The things authorized to be seized are limited to those things identified in condition one which come within the limitations expressed in each of conditions two and three, namely that the things must pertain to, arise out of, be connected with or relate to the affairs of any one or more of the named persons and that they could afford evidence of the commission of the identified offences. Of necessity, difficulties could arise in the execution of the warrants. The officers executing the warrant must exercise the power of deciding which of the things identified in condition one come within each of the limitations contained in conditions two and three.
Counsel for the appellants contended that the width of the discretion so conferred upon the officers, on the facts of this case, was so unreasonable as to invalidate each of the warrants. They contended that the things identified in condition one were not identified with sufficient clarity to enable the applicant for the warrant to form the belief that the things would afford evidence of the offences identified in condition three: too much depended upon the discretion of the officers searching the premises. Thus it was contended that there could be no reasonable grounds for forming the belief that the things would afford evidence of the alleged offences.
Counsel for the respondents, on the other hand, submitted that the warrants were, in truth, very limited, being contained by the conditions contained in conditions two and three, and that the fact that the officers were empowered to exercise some discretion did not affect the validity of the warrants. The warrants, they contended, were in a form similar to many other warrants which had been before the courts and which were held to be valid despite the discretion conferred upon the officers executing the warrants. They argued further that the warrants were part of an investigative process and that it was impossible to be more explicit in the present case.
This issue has been the subject of much debate in the courts. The question was discussed at length in Beneficial Finance Corporation v Commissioner of Australian Federal Police (above). In a judgment with which Sheppard J agreed, Burchett J at pp526-559 considered a large number of earlier authorities and came to the conclusion set out earlier in these reasons. Pincus J agreed substantially with the reasons of Burchett J (see p525), and his Honour made certain observations of which the following should be noted:
"Section 10(1) of the Crimes Act allows a search for things intended to be used for the commission of offences: see par (1)(c). A valuable function of search warrants, when properly used, must surely be to prevent the commission of offences. Suppose there is evidence that people associated with a terrorist group are accumulating a store of explosive devices in a house. There may be every reason to think the commission of a crime is contemplated, but no basis for saying whether it is likely to be murder, wilful destruction of an aircraft, extortion or some other crime. If the justice to whom the information is brought is satisfied that the devices in the house are likely to be used for some unlawful purpose, would it be right nevertheless to refuse a warrant for a search and seizure? The object of the search, viz explosive devices, may be quite specific, but the nature of the proposed crime known only in the broadest sense. I can see nothing in the wording of s10(1), nor in the presumption against general warrants, to justify a refusal of a search warrant in circumstances of the kind I have postulated. More generally, the object of a search may be able to be stated precisely enough in many instances where only an indication of the categories of offences suspected can be given."
In the present case, the categories of offences are identified with some precision, but the categories of things to be seized are not capable of being identified so precisely. This highlights the problem. The search is wide but the power to seize is limited to those things which bear the necessary relation to the categories of offences identified.
The search warrant in Beneficial Finance Corporation was in a like form to the warrants in the present case in that it was predicated on three similar conditions (see p529-530 and p532-3). The whole judgment of Burchett J should be read. The conclusion reached by his Honour has been set out earlier in these reasons. His Honour was concerned with the degree of particularity needed in identifying the criminal offences. The statement of the offence constitutes a limitation on the power to seize, not the power to search for the things to be seized.
The authority to search for the things identified in condition one arises by implication from the power to seize. The search, of necessity, may have to be very extensive. Where documents are involved, it will be necessary to look at the contents to enable the searcher to determine whether the document is one which comes within conditions two and three of the warrants. The fact that many documents, as well as other things, which may need to be examined otherwise than by reading, are involved cannot affect the validity of the warrants. Only those documents that come within conditions two and three can be seized lawfully. If the constables were to go beyond that, they would be liable to civil proceedings. Information so obtained from the things seized as well as other things seen or heard, could not be used, lawfully, in the proceedings.
The first and second contentions made on behalf of the appellants are rejected.
It becomes necessary to consider the third principal contention made on behalf of the appellants, namely, that the granting of the warrants constituted a contempt of court and thus, as a result, the warrants were invalid. Counsel contended that, having regard to the existence of the other legal proceedings referred to earlier in these reasons, the search and seizure authorized by the warrants could result in the obtaining of information which could be used against the appellants or some of them in those proceedings. It was contended further that the Magistrate should have taken steps to avoid that risk by inserting a proviso in each of the warrants similar to the proviso relating to claims for legal professional privilege. In the absence of any such proviso, it was contended that the respondents could have gained an unfair advantage in those other proceedings by reason of the information so obtained.
At this stage, it should be noted that the things seized pursuant to the warrants have been identified in the material before the Court. Each of those things satisfied the third condition specified in the warrants, namely that there are reasonable grounds for believing that they afford evidence as to the commission of the offences specified in the warrants. There was no suggestion that the things so seized would be used at the trial of the other proceedings. Indeed, it is extremely unlikely that they would be so used since they were obtained for a particular purpose and could not be used for any other purpose. Thus, this appeal is to be determined on the basis of an hypothesis only, namely that information obtained during the course of the search could be used for an improper purpose by the person obtaining that information.
In giving his reasons for judgment, Jenkinson J said:
"I do not think that the statutory authority conferred on the magistrate by s10 of the Crimes Act to grant a search warrant authorises the grant of a search warrant the execution of which according to its tenor will inevitably result in an interference with the course of justice (Cf Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25). But that was not the position here on 11 August. Neither the applicant for the warrants nor the persons to whom the warrants were addressed were respondents in the proceedings then pending. Unless a person assisting in the execution of one of the three warrants should be such a respondent or information obtained from a document inspected or seized in execution of the warrants should be passed to such a respondent without the leave of this Court, no such interference would occur."
The principle enunciated in the case cited by his Honour in that passage namely, (the BLF Case), is illustrated by what Gibbs CJ said at p60:
"The conclusion reached by the Federal Court was that the adverse effect of the continued public proceedings of the royal commissions upon the judicial proceedings in that court outweighed the public interest involved in having the proceedings of the commissions continued in public. If their Honours considered that they had a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt had been committed or was likely to be committed, they were mistaken. The balancing of interests which is mentioned in Attorney-General v Times Newspapers Ltd [1974] AC at pp294, 296, 301, 319 is done by the law in formulating the principle to be applied, and not by the court in deciding a particular case. The resulting principle requires that the court be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened. The discretion of the court lies in dealing with a contempt, not in deciding whether a contempt has been committed. The jurisdiction to punish as a contempt something otherwise lawful is exceptional and drastic and must be exercised with great care. The court must, if possible, be even more cautious in granting an injunction to restrain an apprehended contempt. In my opinion it has not been shown that there is a real risk that the conduct of the inquiry by Mr Winneke in public would interfere in any way with the administration of justice in the proceedings in the Federal Court."
If, on a challenge to the validity of a warrant granted under s10 of the Crimes Act, the material were to establish that the application for the warrant was not a bona fide application for a warrant on the grounds stated but was made for some ulterior purpose, the Court would have no hesitation in declaring the warrant invalid. Proof that the application for the warrant had been for the purpose of obtaining information to be used in legal proceedings other than the criminal offences specified in the application, could be sufficient to invalidate a warrant. This would not be because the search warrant authorizes the interference with the administration of justice in pending legal proceedings but because the warrant was sought for improper purposes. The improper purposes would not be limited to action which could be characterized as contempt of court.
In the present case there is no suggestion that the search warrants were sought for improper purpose. There is no suggestion that the respondents, or any of them, searched the material seeking information to use in pending legal proceedings. There is no suggestion that the respondents or any of them proposed to execute the search warrants for an improper purpose. The three conditions contained in the warrants severely limit the action to be taken by the persons executing the warrants.
In many instances, in the course of executing search warrants, the persons making the search may discover information that could be used in pending legal proceedings. That fact, of itself, could not make the search warrants invalid. The remedy lies in action against a person making improper use of that information. This is made very clear from the passage cited from the BLF Case. The fact that there is a possibility that information might be discovered that could be used in pending legal proceedings cannot, by itself, invalidate a search warrant which otherwise complies with the law.
The third contention made on behalf of the appellants is rejected. In the circumstances it is not necessary to refer to the other submissions made on behalf of the respondents against the appellants' contention. Nor is it necessary to canvass the issues raised by the respondents' notice of contention.
The appeal should be dismissed with costs.
I certify that this and the preceding twenty five (25) pages are a true copy of the joint reasons for judgment herein of their Honours Justice Northrop and Justice Ryan
Associate:
Date:
