FEDERAL COURT OF AUSTRALIA
CRIMINAL LAW – practice and procedure – search warrants – validity – appeal from primary judge upholding validity of two search warrants – whether persons authorised adequately described – whether substituted executing officer adequately described – whether persons assisting properly authorised – whether failure to identify offence – whether improper exercise of power – whether ulterior or collateral purpose in issue.
Crimes Act 1914 (Cth), s 3E
Australian Federal Police Act 1979 (Cth), s 6, s 14, ss 24, 26C, 26E, 30, 32, 32A, 33, 34, 34A, 36, 36B, 37, 38 and 38B
Acts Interpretation Act 1901 (Cth), s 46
R v Tillett; Ex parte Newton (1969) 14 FLR 101, distinguished
Ousley v The Queen (1997) 148 ALR 510, considered
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473, distinguished
Tran Nominees v Scheffield (1986) 42 SASR 382, distinguished
Love v Attorney-General for the State of New South Wales (1990) 169 CLR 307, applied
King v The Queen [1969] 1 AC 304, applied
Beneficial Finance Corporation v Australian Federal Police (1991) 31 FCR 523, considered
Parker v Churchill (1985) 9 FCR 316, followed
Parker v Churchill (1985) 9 FCR 334, followed
Re Collins; Ex parte Hockings (1989) 167 CLR 522, followed
Peters v Attorney‑General for New South Wales (1988) 16 NSWLR 24, applied
Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187, discussed
Dunesky v Elder (1994) 54 FCR 540, applied
Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 94 A Crim R 177, followed
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, applied
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393, applied
Carmody v Mackellar (1997) 76 FCR 115, applied
Flanagan v Commissioner for the Australian Federal Police (1995) 60 FCR 149, referred to
MALUBEL PTY LTD AND ANOR v WENDY ELDER AND ORS
NG 15 OF 1998
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BURCHETT, R D NICHOLSON & MADGWICK Jj |
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SYDNEY |
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16 OCTOBER 1998 |
GENERAL DISTRIBUTION
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
ng 15 of 1998 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
MALUBEL PTY LTD (ACN NO. 003 923 760) First Appellant
JIN KYU CHUNG Second Appellant
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AND: |
WENDY ELDER First Respondent
DONALD WHINFIELD Second Respondent
ALBERT GARDNER Third Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal is dismissed with costs.
GENERAL DISTRIBUTION
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
ng 15 of 1998 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
MALUBEL PTY LTD (ACN NO. 003 923 760) First Appellant
JIN KYU CHUNG Second Appellant
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AND: |
WENDY ELDER First Respondent
DONALD WHINFIELD Second Respondent
ALBERT GARDNER Third Respondent
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JUDGEs: |
BURCHETT, R D NICHOLSON & MADGWICK Jj |
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DATE OF ORDER: |
16 OCTOBER 1998 |
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WHERE MADE: |
SYDNEY |
REASONS FOR JUDGMENT
BURCHETT J
I have had the advantage of reading the reasons prepared by R D Nicholson J. I agree, substantially for the reasons his Honour gives, that the appeal should be dismissed with costs.
However, there is an aspect of the matter to which I will address some brief remarks for myself. Mr McGovern of counsel for the appellants, in his careful and earnest submission, claimed that misleading information had been put before the justice of the peace who issued the warrant, which “arose through the information being derived from a third party who was not the applicant for the warrant”.
But it would be an impractical doctrine, and one justified neither by the terms of the Crimes Act 1914 nor by the history of proceedings of this kind, which would invalidate a warrant simply because the full facts were not disclosed to the justice of the peace, or the facts disclosed were in some respects misleading. In the nature of the case, a search warrant is likely to be sought upon incomplete information, in circumstances of suspicion rather than knowledge, and having regard to facts that may be imperfectly understood. There are, however, at least three broad safeguards for the citizen who may be affected, provided by the law in this area. First, the warrant must be sought from an “issuing officer”, generally a magistrate or justice of the peace, who will require to be satisfied, as no mere formality, before its issue is approved. Secondly, s 3E of the Act lays down criteria and requirements which must be observed. Thirdly, the person applying for the warrant is under an obligation of good faith.
The first safeguard finds expression, in the primary condition of the issue of the warrant, by the words: “if the officer is satisfied”. As the majority of the High Court pointed out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275, such a provision, though conferring an examinable discretion, turns, not upon the objective facts, but upon the satisfaction of the person to whom the decision is committed.
It is the third safeguard to which the appellants’ submission drew attention, although the second is relevant. For the fact is that the legislature, in laying down the criteria and the requirements for the issue of a warrant, did not include a requirement of disclosure of all objectively relevant facts ascertainable by the applicant for the warrant, or even of all facts actually known by him. A line of authorities, dealing with search warrants and analogous warrants, has established, as an implication from the context and purpose of such a provision, the requirement of good faith which I have stated as the third safeguard: Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542; Dunesky v Elder (1994) 54 FCR 540; Carmody v MacKellar (1997) 76 FCR 115; Lord v Commissioner of the Australian Federal Police (1997) 154 ALR 631 at 655-657; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393. As Hill J put the matter in the lastmentioned of these cases (at 400):
“Following Lego it is now clear that failure to disclose a particular fact would not invalidate a warrant unless the failure was such as to warrant a conclusion that the decision to grant the warrant was induced by fraud: see per Beaumont and Whitlam JJ at FCR 555. In a separate judgment which differs from the majority only in emphasis rather than principle I put the matter in terms of good faith.”
In Carmody v MacKellar, referring to applications for warrants to enable listening devices to be used and telephone interceptions to take place, the Full Court (Black CJ, Lindgren and Sackville JJ) concluded (at 149):
“[W]e think that the preponderance of authority may now be taken to favour the view that there is no general duty of disclosure imposed on an applicant [for such a warrant].”
With regard to Hill J’s equation, in this context, of lack of good faith with the fraud to which Beaumont and Whitlam JJ had referred in Lego, I would point out that the Privy Council made the same equation, in the context of an extradition application lodged by Switzerland, upon an appeal from the Bahamas: Rey v Government of Switzerland [1998] 3 WLR 1. In an advice delivered by Lord Steyn, their Lordships rejected an argument that the extradition application was “not made in good faith in the interest of justice” on the basis that they were “confident that the complaint of deliberate deception … [was] not warranted”. Their Lordships did not suggest that anything less would do, although the case was one involving “an element of exaggeration … in the documents produced by the Swiss Government”.
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I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett |
Associate:
Dated: 16 October 1998
GENERAL DISTRIBUTION
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IN THE FEDERAL COURT OF AUSTRALIA |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
MALUBEL PTY LTD (ACN NO. 003 923 760) First Appellant
JIN KYU CHUNG Second Appellant
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AND: |
First Respondent
DONALD WHINFIELD Second Respondent
ALBERT GARDNER Third Respondent
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JUDGES: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
R D NICHOLSON J: This is an appeal from a judgment of Moore J given on 24 December 1997 in which he held the appellants had failed to demonstrate that either of two search warrants was invalid. The appellants had sought review of the decision of the first respondent (“Ms Elder”) to issue each of the warrants pursuant to s 3E of the Crimes Act 1914 (Cth) (“the Crimes Act”) and challenged related decisions and conduct. The review was sought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth).
Background circumstances
As his Honour stated in his reasons, it is necessary to refer to prior dealings between the first appellant (“Malubel”), the National Crime Authority (“the NCA”) and the Australian Taxation Office (“ATO”). This account is largely taken from those reasons.
On 18 October 1995 Ms Elder, an issuing officer within the meaning of s 3E of the Crimes Act, issued two search warrants to two members of the Australian Federal Police authorising the search of what were then the premises of Malubel at 16 and 20 Albert Road, Strathfield, New South Wales. These authorised the seizure of tax records, company accounting records and a range of other documents. The offences identified in the warrants were conspiracy to defraud the Commonwealth of Australia by engagement in transactions designed to conceal money, being income not declared to the ATO contrary to s 86A of the Crimes Act; failure to report monetary transactions pursuant to s 28 of the Financial Transactions Reports Act 1988 (Cth); (“the Financial Transactions Reports Act”) and the knowing making of a statement false in a material particular contrary to s 29 of the Financial Transactions Reports Act . The application for warrants (“the Application”) was made by the second respondent (“Mr Whinfield”) supported by an affidavit of an officer of the NCA.
On 19 October 1995 these warrants (“the 1995 warrants”) were executed and documents seized. The last of the documents was not returned until February 1997.
On 1 December 1995 a letter had been sent by the ATO to Malubel stating an intention to audit its income tax affairs. The letter was written by Mr McNally, a Commonwealth employee in the ATO, who had been present when the 1995 warrants were executed. The letter requested the production of a range of accounting books for the financial year ended 30 June 1995. Mr McNally acknowledged receipt of this information on 5 December 1995.
Between December 1995 and November 1996 there was communication between Malubel and its solicitors and the ATO concerning the audit. His Honour found that at least betwe en 8 November 1996 and 28 November 1996 Malubel, assisted by its solicitors, had gathered and collated records for the purposes of answering queries of the ATO. Correspondence followed in which the solicitors for Malubel complained of the difficulties being experienced because records were still with the NCA.
On 20 December 1996 a notice under par 265(1)(b) of the Income Tax Assessment Act 1936 (Cth) (“the ITA Act”) was served on the second appellant (“Mr Chung”), a director of Malubel, requiring him to attend for an examination on 24 February 1997. A further notice was issued under par 264(1)(a) requiring him to furnish information. On 7 February 1997 solicitors for Malubel sought an extension of time for compliance with the notices and a statement of reasons under s 13 of the ADJR Act for the decision to issue them. It was pointed out some documents of Malubel’s were still retained by the NCA. By letter of 17 February 1997 the ATO refused the extension of time and advised that a s 13 statement was being prepared. By correspondence on 21 and 24 February 1997 Malubel’s solicitors advised that Malubel was not proposing to comply immediately with the notices and raised issues concerning the validity of them. On 26 February 1997 Mr McNally responded, putting in issue much of what was contended for by Malubel’s solicitors. On 7 March 1997 the s 13 statement of reasons for the decision to issue the notices was provided.
On 2 April 1997 a notice purportedly under par 264(1)(a) of the ITA Act was issued to Mr Chung requiring the furnishing of information by 30 April 1997. Such information was provided by Malubel’s solicitors on 30 April 1997. They renewed a request for a statement of reasons for the refusal of an extension of time to comply with the notices.
Early in April 1997 the solicitors for Malubel made a request under the Freedom of Information Act 1982 (Cth) to the ATO leading to an indication from the ATO that certain documents would be provided and certain others would not. This gave rise to an application for internal review by letter dated 10 July 1997.
On 3 July 1997 Malubel was issued with a final notice of assessment for income tax for the 1995/1996 financial year. By letter dated 14 July 1997 Malubel’s solicitors sought an extension of time for payment pursuant to s 206 of the ITA Act and offered to make payments in the sum of $45,000 in reduction of indebtedness. By letter dated 16 July 1997 the ATO indicated it would be prepared to accept monthly payments in that sum. On 3 October 1997 the ATO responded to the application for internal review.
The two warrants to which this appeal directly relates were issued on 23 October 1997. Each was issued by Ms Elder. The first was directed to “Federal Agent, Donald Whinfield”, Mr Whinfield, and related to premises at 49‑51 Punchbowl Road, Belfield, New South Wales (“the first warrant”). The warrant was directed to records of Malubel for the period of 1 July 1994 to 30 June 1996. The offence identified in the warrant was a breach by Malubel or its directors of s 29D of the Crimes Act, namely an offence of defrauding the Commonwealth of properly assessable and payable income tax between 1 July 1994 and 30 June 1996.
The second warrant was also originally issued to “Federal Agent, Donald Whinfield” (“the second warrant”). However the name “Donald Whinfield” was later deleted and above that in handwriting the name of “Albert Gardner” (“Mr Gardner”), the third respondent, was substituted. It relates to premises at 30A Rochester Street, Strathfield, New South Wales. The records sought and the offence identified are the same as for the first warrant.
The grounds of appeal are directed to a number of features of each of these warrants in relation to which it is said his Honour was in error in failing to find they gave rise to invalidity. In addition there is a notice of contention filed on behalf of the second and third respondents in respect of certain of his Honour’s findings.
It is convenient to approach the matter through each of the alleged points of invalidity of the warrants. These were identified numerically as points in the reasons of the trial judge and that identification is carried over to these reasons. “Point 5” was not pursued on the appeal.
Adequacy of description of persons authorised (“Point 1”)
Each of the warrants was originally addressed to “Federal Agent Donald Whinfield a member of the Australian Federal Police, who is the executing officer in relation to this warrant.”
Paragraph 3E(5)(d) of the Crimes Act requires an issuing officer to state in the warrant the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant. Section 3 of that Act defines “constable” to mean “a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory;”.
The words “executing officer” are defined by s 3C of the Crimes Act as follows:
“executing officer”, in relation to a warrant, means:
(a) the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or
(b) if that constable does not intend to be present at the execution of the warrant - another constable whose name has been written in the warrant by the constable so named; or
(c) another constable whose name has been written in the warrant by the constable last named in the warrant;”
The case for the appellants, as also before the trial judge, mounts a three‑pronged attack directed to establishing the invalidity of the warrant because of these features apparent on the face of the warrant in the description of persons authorised.
The need for strict compliance provides the starting point for the appellants’ submissions. It is said a warrant is not a judicial order but an instrument made pursuant to a circumscribed statutory authority: Grollo v Palmer (1995) 184 CLR 348 at 360, 389. In the case of orders by justices, their jurisdiction must appear on the face of the order otherwise it is a nullity unless it follows a form authorised by statute: R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106. It is submitted it is in the public interest that in balancing the rights of the individual and the needs of law enforcement authorities the Crimes Act is to be construed as requiring that the warrant recite the matters on which its validity depends and, failing which, it is invalid: Ousley v The Queen (1997) 148 ALR 510; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 474, 489 and 491.
While these are the premises on which the appellants’ submissions proceed, they should be approached with caution. In Ousley at 556 Gummow J, referring to Tillett and to Tran Nominees v Scheffield (1986) 42 SASR 382, said those decisions as well as Karina Fisheries had proceeded without a full appreciation of the administrative nature of the activity involved in the issue of a warrant: Love v Attorney-General for the State of New South Wales (1990) 169 CLR 307. The consequence of that is the administrative act and the steps taken pursuant to it may be presumed valid until set aside.
(1) Failure to identify “the constable”
The simple point on which the first attack is grounded is that the effect of par 3E(5)(d) of the Crimes Act is to require the issuing officer to identify “the name of the constable”. Here, where the person authorised as the executing officer is identified as “federal agent”, it is said there is no reference to the person authorised by the statute because a “federal agent” is not necessarily a “constable”.
As his Honour made apparent in his reasons, the title of “federal agent” arose from the promulgation of a General Order under s 14 of the Australian Federal Police Act 1979 (Cth) (“the AFP Act”) effective from 20 February 1996. The Order declared that the title would be used by a member of the Australian Federal Police performing duties other than in the ACT region. It is not in dispute the effect of the Order obliged a member of the Australian Federal Police to use the title although, as his Honour said, “the boundaries of the legal effect of this order [are] unclear”.
The thrust of the submission on this point for the appellants is that there is nothing on the face of either warrant to demonstrate that the “federal agent” authorised by it to be the executing officer held the position of constable by which he was entitled to seek to so execute the warrants. It is therefore said the warrants are bad: cf Tillett at 107.
On this submission his Honour concluded the executing officer was “named” in the warrants so that par 3E(5)(d) of the Crimes Act was satisfied. The trial judge also said that in identifying the status of the executing officer “as a member of the Australian Federal Police” there was satisfaction of the statutory requirement that he be “a constable”. He regarded the reference to “federal agent” as surplusage.
I consider this reasoning is founded on a correct reading of the requirements of par 3E(5)(d) of the Crimes Act. What is required to be stated is “the name of the constable”. Reference to “the name” of a person who is a constable satisfies this requirement. The word “name” in this context is to be understood literally: King v The Queen [1969] 1 AC 304 at 312. Here there was in addition the reference to the fact that the person was a “member of the Australian Federal Police”. Given the definition of “constable” in s 3, that must satisfy the reference to “constable”. From the viewpoint of justice to the person being served with the warrant, the reference to membership of the Australian Federal Police would serve every bit as much as a reference to “constable” to assert the putative authority of the person purporting to be the executing officer.
(2) Type of membership in Australian Federal Police
The second limb of the attack on this portion of the warrants rests on the definition of “constable” in s 3 as meaning “a member” or “special member” of the Australian Federal Police. Section 6 of the AFP Act declares the Australian Federal Police shall be constituted by commissioned and non‑commissioned police officers as well as staff members who are not police officers so that a distinction is thereby drawn between members and staff members. The trial judge said this was also seen in ss 24, 26C, 26E, 30, 32, 32A, 33, 34, 34A, 36, 36B, 37, 38 and 38B. From this it is argued a reference to a “member or special member of the Australian Federal Police” in the definition in s 3 of “constable” was intended to be a reference to a member of the Australian Federal Police not including a staff member. It is contended consequently, when the warrants referred to “a member of the Australian Federal Police”, they left open reference to a staff member and so were invalid as not meeting the requirements of s 3.
On this the trial judge said the reference to Mr Whinfield in the first warrant as a member of the Australian Federal Police was confined to the class of member of the Australian Federal Police which falls within the definition of constable. There is good reason for this. A warrant should be read as a whole: cf Beneficial Finance Corporation v Australian Federal Police (1991) 31 FCR 523 at 543. The passage which immediately follows the passage the subject of this ground of attack makes specific reference to “constable” and it was that on which his Honour relied.
In my view the reasoning of the trial judge was correct. There is no reason to suppose the reference to a member of the Australian Federal Police extends to a staff member in the context in which the reference appears. On the contrary, the reference to constable makes clear it does not do so. Furthermore, the distinction in s 6 of the AFP Act is between members and staff members. A reference to a “member” cannot be a reference to a “staff member”.
(3) Status as constables
There is a further contention that Mr Whinfield ceased to be a constable as a consequence of formal secondment to the NCA. The evidence before the Court was that both Mr Whinfield and Mr Gardner were appointed to be non‑commissioned officers of the Australian Federal Police for a term of five years commencing on 9 March 1995. They were made available by the Australian Federal Police to the NCA to assist it in the performance of its functions in accordance with par 49(1)(a) of the National Crime Authority Act 1984 (Cth) (“the NCA Act”). This evidence was not made the subject of cross-examination. The status of those respondents as constables was not therefore put in issue.
In any event it is not the law that a person seconded by the Australian Federal Police to the NCA ceases to be a “constable” within the meaning of the Crimes Act: cf Ryder v Morley (1987) 16 FCR 257, AFP Act par 33(6)(a) and NCA Act ss 22(10) and 58.
In my opinion his Honour was correct in concluding the warrants stated the matters required by subs 3E(5) of the Crimes Act.
There is nothing in Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (“Smorgan”) (1979) 143 CLR 499 at 500 or 523‑525 which leads to a contrary view. Nor is it the case the view which was arrived at by the trial judge had the consequence that the recipient of the warrant was not able to tell from the face of the warrant the person executing it fell within the statutory description of “executing officer”: cf Tran Nominees at 393.
Substituted executing officer (“Point 2”)
After identifying the executing officer in the manner previously referred to, each of the warrants then continued:
“AND TO any other Federal Agent whose name may be written on this warrant in accordance with section 3C(1) of the Crimes Act1914, in which event that constable shall be the executing officer in relation to this warrant.”
In relation to this the trial judge concluded the use of the term “federal agent” in the first warrant resulted in the issuing officer not limiting the class of people who might be substituted to those specified in the Crimes Act, namely members of the Australian Federal Police. It has already been made apparent in the citation of par 3E(5)(d) and the definition of “executing officer” in s 3C that substitution by the constable so named of another constable whose name has been written in the warrant has statutory authorisation. It was to these sections the trial judge was making reference. In his opinion the words the subject of this ground did not establish a necessary connection on the face of the warrant between the status as “federal agent” and membership of the Australian Federal Police. The trial judge found the use of the words “federal agent” in this paragraph had not had any relevant legal effect because no substitution had occurred. Accordingly he considered that part of the warrant should be severed: Beneficial Finance at 545. He said this defect was not a substantial one making severance impossible.
In relation to the second warrant, where the process of substitution had been undertaken and Mr Gardner’s name added, he considered there was authority for that ultimately in the Crimes Act itself and that the substituted person was qualified. He also considered the same part of the second warrant could be severed.
The reasoning of the trial judge on this matter is not only the subject of attack on the appeal but also by a notice of contention on behalf of Mr Whinfield and Mr Gardner. They contend his Honour erred in failing to conclude the class who might be substituted were in fact limited by the reference to “constable” contained in the relevant passage.
I accept the submissions made in support of the notice of contention that his Honour erred in his finding because it is clear the use of the words “that constable” in the paragraph under consideration limits the persons who may be substituted to persons who are constables. Furthermore, the reference to “in accordance with s 3C(1) of the Crimes Act 1914” makes it clear on the face of the warrant that the federal agent whose name is to be substituted must be a constable because that is what the section requires. The scope of the warrant was not enlarged by the use of the words “federal agent” in the circumstances of this particular paragraph.
In relation to the first warrant I agree with his Honour that the deficiency had no relevant legal effect because no name was substituted in the first warrant. There was proper authority in the Crimes Act for substitution where it occurred in the second warrant. I also agree with his reasoning that if there was any invalidity in this paragraph in either warrant, it could be severed: Parker v Churchill (1985) 9 FCR 316 at 321 at 322 and the authorities there cited; Parker v Churchill (1985) 9 FCR 334 at 350; Beneficial Finance at 545. The law relating to severance is considered further below.
Reference to “person assisting” (“Point 4”)
The attack on the validity of the warrants for errors on their face continues by reference to the authorisation provision of the warrants which reads:
“I HEREBY AUTHORISE the executing officer, any person assisting who is a Federal Agent, and any other person who has been authorised by the executing officer to assist in executing this warrant, to do all of the following: ...”
Then follow authorisations relating to entry, search and seizure. The latter is authorised in the following manner:
“if the executing officer or the person assisting believes on reasonable grounds that the seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;”
This portion of the warrants is to be considered against two statutory provisions in particular. The first is subs 3E(6) of the Crimes Act which reads:
“(6) The issuing officer is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii)a thing relevant to another offence that is an indictable offence;
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.”
It is also to be understood in relation to the definition of “constable assisting” which appears, subject to contrary intention, in s 3C:
“ “constable assisting”, in relation to a warrant, means:
(a) a person who is a constable and who is assisting in executing the warrant; or
(b) a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant;”
The trial judge, in response to the attack on the warrant on this point, accepted the submission that by authorising “any person assisting who is a Federal Agent” the warrants purportedly authorised a Federal Agent even if that Federal Agent had not been authorised by the executing officer to assist, so that it authorised an unauthorised class of person. He held that the words “who has been authorised by the executive officer” were not intended to qualify the words “federal agent” because to so hold would be to ignore the comma after the word “agent”: see Re Collins; Ex parte Hockings (1989) 167 CLR 522 at 525. His Honour found there was no evidence to suggest any particular document had been or was likely to have been seized by a person who is assisting because of the authorisation of federal agents to assist. Accordingly, he considered this part of the warrants could be severed: see Beneficial Finance at 545.
The notice of contention for Messrs Whinfield and Gardner challenges the conclusion that the warrants authorised an unauthorised class of person.
For Messrs Whinfield and Gardner it is submitted the words here in issue do not purport to give a wider authority than that permitted because of two factors. The first is the usage of the description “federal agent” in these words must be read in conjunction with the use of those words earlier in the warrant (at points previously discussed) having the effect, it is said, of defining the term as equivalent to a “member of the Australian Federal Police” and therefore a “constable”. Additionally it is said a fair reading of the words in issue suggests the first part of the sentence is qualified by the second part and therefore his Honour was in error in concluding otherwise; that is, the words have the effect of requiring “any person assisting” who is a “federal agent” to be authorised by the executing officer.
It will be observed by comparing the words in issue with the requirements of par 3E(6)(a) in their final paragraph that the warrant does not follow the wording of that subsection. Specifically it uses the words “person assisting” in two places rather than the statutory words of “constable assisting”. While it may be the case the word “person” is to be understood in the context of the warrant as a whole, it is asking too much of the lay reader to construe those words so as to comply with the statute and to read them as confined by the earlier references in the warrant. I consider that the trial judge gave a fair reading to the construction of the words. In my view he was entitled to conclude as he did on that matter.
However, it is on the issue of severance that the attack in the appeal then focuses. The argument for the appellants commences by accepting that the doctrine of severance is potentially relevant: Beneficial Finance at 545 per Burchett J, with whom Sheppard J agreed; Pincus J expressing some reservations at 526.
For the appellants it is contended that severance in this case is inappropriate. In the first place it is contended the words in question would need to be re‑written: Peters v Attorney‑General for New South Wales (1988) 16 NSWLR 24 at 41 per McHugh JA. Put another way, it is said the authorisations in these words if severed would result in the warrant not satisfying the statutory requirements: see Crimes Act subs 3E(6) and cf subss 3F(1) and (2) and 3G.
In support of these contentions the appellants’ case refers to the decision of the Full Court in Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187. That case concerned the validity of notices issued under s 264(1) of the ITA Act. Lockhart and Burchett JJ were of the view the invalid parts of the notices could not be severed as the requirement to produce copies was in each case central to the notice. Burchett J acknowledged that in an appropriate case the court could sever an invalid portion of such a notice. Lockhart J at 195 referred to the fact that if excision occurred, the remaining requirements would be unintelligible, the position being “that the invalid components are so inextricably mixed with the valid that it would be unduly onerous to require the recipient to disentangle them by delicate papyrian exercises with scissors and paste”. He found the notice was in reality a composite requirement and severance of the parts requiring the provision of copies was not practicable, citing Royal Bank of Canada v Inland Revenue Commissioners [1972] Ch 665 at 684; and Parker v Churchill (1985) 9 FCR 316 at 321-322 per Burchett J and, on appeal, (1985) 9 FCR 334 at 350. In agreeing (at 204) with these reasons Burchett J stated he did not doubt that, in an appropriate case, the court could sever an invalid portion of a s 264 notice. He considered the analogy of a search warrant was not precisely applicable. He referred to his discussion in Parker v Churchill at 321-322 of the basis of the doctrine that a search warrant can be severed, a basis which was accepted on appeal by the Full Court (1985) 9 FCR 334 at 350. Pursuing the search warrant analogy, he said all that had been involved in substance in Parker v Churchill, as was made plain by Bowen CJ and Lockhart J on the appeal in their joint judgment (at 336), was that there had been an extraneous, ineffective paragraph capable of simple deletion.
These contentions for the appellants are supported by a further contention relating to the language of subss 3E(5) and (6). It is said that these subsections, properly read, mandate that the warrant shall state the matters referred to in them. That being the case, it is patent the warrants do not contain the requirement mandated by par 3E(6)(b). This was so although the applicatio n for the warrants had requested that each make such provision.
The case for the second and third respondents in response runs as follows.
It accepts that any departure from mandatory statutory requirements carries with it necessary invalidity. It is submitted that since 1990, when the administrative character of the function of issuing a search warrant became appreciated - see Love’s case, above - there had been a number of search warrant cases in the High Court in which imprecisions had been overlooked. In that context it must be considered unlikely that when enacting the present provisions in the Crimes Act concerning search warrants, Parliament was seeking to impose a regime such that imprecision or failure to literally comply would have an invalidating effect.
In respect of the alleged specific non‑compliance with par 3E(6)(b), reference to the original form of each warrant shows that the paragraph referable to the conduct of searches was deleted in each case. It is undisputed that is correct as a matter of fact.
Furthermore, par 3E(6)(b) commences with the word “whether” which admits of the possibility that a warrant may not necessarily authorise the searches described in that paragraph. That this is so is supported by reference to par 3F(1)(f) which states that a warrant in force authorises the executing officer to conduct an ordinary search or a frisk search “if the warrant so allows”. Likewise in par 3E(5)(f) there is an obligation on an officer to state in the warrant “whether” the warrant may be executed at any time or only during particular hours. The submission is therefore that in par 3E(6)(b) the use of the word “whether” is not a true dichotomy because there is a third unstated possibility, namely, that the warrant does not authorise either an ordi nary or a frisk search. In my view this is correct. It is supported by reference to the dictionary definition of “whether” which may be used as a word introducing a single alternative, the other being implied as in “whether he has come (or not)”: the Macquarie Dictionary 2nd edn. 1991 p 1989.
Given that result it is submitted the Court should not approach the issue of severance on the basis subs 3E(6) mandates precise compliance.
On the case for the second and third respondents severance could be achieved by removing the words in Point 4 between the commas, reading “any person assisting who is a Federal Agent” and deleting the words “or the person assisting” as they later appear in the authorisation provision. It is said deletions of this character would be a narrowing but the Court should allow slight imperfection. This is not, it is submitted, a case where the warrant should be struck down as a whole. It is also said the Court should not approach the matter on the basis that a small imperfection would lead to necessary invalidity.
Support for this submission is said to be found in the terms of s 3E of the Crimes Act. A proper reading of these it is submitted shows that Parliament was not intending that invalidity would flow from non-compliance. Parliament was not intending to set up a clerical hoop and the question is what degree of compliance is required.
Additionally reliance is placed on Peters at 41 where McHugh JA referred, in the context of severance of invalid portions of a search warrant, to s 32 of the Interpretation Act 1987 (NSW). Section 46 of the Acts Interpretation Act 1901 (Cth) is to the same effect as s 32 of the Interpretation Act, although it is worded slightly differently. The effect of s 46 is to provide that warrants are to be read and construed, to the extent they can be, as valid instruments. This supports the respondents’ argument that severance is possible in this case if necessary.
In Beneficial Finance at 545 Burchett J (with Sheppard J agreeing) took into account that there had been no suggestion any particular document had been or was likely to be seized in reliance upon particular portions of either of the warrants, in reaching the view that it was unnecessary to decide whether the failure to follow the wording of the statute precisely had a vitiating effect. Here it is the case there is no evidence that, had the warrant followed the statutory wording precisely, the outcome would have been any different.
The critical issue is whether the trial judge was in error in concluding severance was possible because the invalid provisions form “part of an inseparable context or would operate differently or produce a different result from that which was intended”: Peters at 41. In my opinion that is clearly not the case. With severance the warrant would operate by authorising “the executing officer” and “any other person who has been authorised by the executing officer”. Furthermore s 3E would be entirely satisfied - par 3E(6)(a) imposes its requirements in the alternative on an executing officer or a constable assisting. The reference to the executing officer satisfies the statutory requirement.
In my opinion the trial judge was correct in his conclusion severance was possible.
Failure to identify offence (“Point 3”)
In the recitals to the warrant Ms Elder as issuing officer stated she was satisfied by information on oath there were reasonable grounds for suspecting that at the premises identified in each warrant there was evidential material which satisfied all three of certain conditions. The first condition was that the evidential material comprised things which are (inter alia):
“monies, originals and copies, including any stored on magnetic or electronic storage media of banking records and documents used for the recording of, or movement of monies suspected of being used in a money laundering or tax evasion process relative to the operation of Malubel...”
The second was that the things related to Malubel. The third read as follows:
“Things to which there are reasonable grounds for suspecting that the same would afford evidence of the commission of the offence against the law of the Commonwealth:
- An offence by Malubel... or the director/s of Malubel... against section 29D of the Commonwealth Crime Act 1914 namely defrauding the Commonwealth of properly assessable and payable income tax between 1 July 1994 and 30 June 1996”.
Section 29D of the Crimes Act provides:
“A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence.”
Before the trial judge it was submitted on behalf of the appellants that the description in the first condition was defective in two respects. In the first place it was said it depended upon a suspicion of someone not identified based on unidentified criteria by reference to which the suspicion was to be formed. In the second place it was said it referred to money laundering or tax evasion which are vague and uncertain notions so that no particular offence was alleged. This it was said was contrary to the requirements of par 3E(5)(a) of the Crimes Act which requires an issuing officer to state in the warrant “the offence to which the warrant relates”.
The trial judge considered the description had to be considered in the context of the warrants as a whole and the purpose for which they were being issued (although his Honour only referred to the first warrant, they are each in the same form). He accepted the three conditions are to be cumulative so that the third condition in which an offence was identified was to be read with the other conditions. The consequence was that he considered there was an identification of the relevant offence. He supported this by reference to Beneficial Finance at 533 and 543 per Burchett J (with whom Sheppard J agreed) to the effect that the purpose of the statement of the offence in the warrant is not to define the issue for trial but to set bounds to the area of search. His Honour was of the view the purpose of the warrants was to permit those executing them to seize documents which may afford evidence of conduct constituting defrauding the Commonwealth. He referred also to the observations of Lockhart, Beaumont and Hill JJ in Dunesky v Elder (1994) 54 FCR 540 at 556-557 where their Honours spoke of the conditions as containing a “refining process”.
The case for the appellant concerning the vagueness and lack of particularity of the description of “evidential material” is put as follows. It is said that when the first condition defines “things which are” the subject of the warrant it defines them in part by reference to subjective opinion - “suspected of being used” (without stating who held the opinion or upon what criteria the suspicion is based). In addition, a “money laundering” or “tax evasion process” is said to be conceptually inherently vague and uncertain. It is submitted a “tax evasion process” is not an offence against any Commonwealth law and “money laundering”, while an offence under s 81 of the Proceeds of Crime Act 1987 (Cth) and s 43A of the Mutual Assistance in Criminal Matters Act 1987 (Cth), is not an offence alleged with reference to those sections in the 1997 warrants. Accordingly it is submitted they are bad because they are so vaguely worded that a person affected by them could not know the object of the search. It is submitted the 1997 warrants therefore fall far short of the standard required in Tillett (at 113); Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; Parker v Churchill at 319 and Arno v Forsyth (1985) 9 FCR 576 at 591.
In Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 94 A Crim R 177 it was held by the trial judge and upheld on appeal that the offences described in the third condition of the warrant delineating the evidentiary materials for which permission was given to search, were the offences to which the warrant related. In upholding the trial judge the Full Court (at 183‑184) relied upon the statement by Burchett J at 543 in Beneficial Finance and the “somewhat similar broad view of the requirement to stipulate [the] offence” taken by the Full Court in Dunesky v Elder at 557; 561-562. The Full Court in Harts considered that ultimately the matter was one of impression. Taking that approach, I consider his Honour was right to consider the third condition had the same effect in the present case.
In Harts the Full Court was also called upon to address a submission that the warrant had adopted the wrong test of what was “evidential material” because one of the conditions referred to “things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of” certain stated offences. The same words are used in the third condition in this case. The submission in Harts was that material does not fall within the test of “evidential material” based on reasonable grounds for suspicion, but rather only if it satisfied the definition of “evidential material” contained in s 3C of the Crimes Act. The Full Court held it was apparent the person responsible for drafting the third condition had had regard to the definition of “thing relevant to an indictable offence” or “thing relevant to a summary offence” in the Crimes Act so the documents meeting the third condition must fall within those definitions and in consequence the definition of “evidential material”. The definition of those phrases appears in subs 3(1) of the Crimes Act which introduces the concept of “reasonable grounds for suspecting”. The relationship of these statutory provisions to the common law as developed through Entick v Carrington (1765) 19 State Tr 1029; 95 ER 807 and George v Rockett (1990) 170 CLR 104 is set out in the reasons of the Full Court in Harts at 181‑182.
In my opinion the use of the word “suspected” in the first condition in the present case is not such as to take the evidential material being referred to outside the concept of evidential material to which the warrant can properly relate. The concept of suspicion, as has been shown, is part of the statutory matrix relevant to the warrant and so is appropriately referred to.
Improper exercise of power
Before the trial judge the appellants challenged the exercise of the discretion by Ms Elder to issue the 1997 warrants broadly on the ground that “there were not reasonable grounds for suspecting” that there would be evidential material at each of the respective premises named in the warrants as required by subs 3E(1) of the Crimes Act. That was supported in turn by two streams of argument. The first was that Ms Elder had failed to take into account certain relevant considerations or had taken into account irrelevant considerations; the other was she had based the exercise of her discretion on misleading information due to improper non-disclosure. In relation to the question of relevant or irrelevant considerations there was no evidence led concerning what Ms Elder did or did not take into account other than the Application which was before her. The appellants’ case on this aspect was therefore that there was a failure to disclose material matters in the Application with the consequence that they could not be taken into account as relevant considerations.
The relevant considerations which it was said she had failed to take into account were the 1995 warrants and documents obtained pursuant to them; the substantial identity between the documents sought in the 1995 warrants and the 1997 warrants; the return of the documents seized under the 1995 warrants in 1996‑1997; the absence of the bringing of any charges following the 1995 warrants; the voluntary production of documents by Malubel in response to a request; the failure of the 1995 warrants to sufficiently particularise the alleged offences; and that the persons seeking the issue of the 1997 warrants were allegedly members of the staff of the NCA. These last two matters have been dealt with elsewhere in these reasons.
For the appellants it is accepted a contention that there has been a failure to take into account a relevant consideration in the making of an administrative decision involves establishing the decision‑maker has failed to take into account a consideration which he or she was bound to take into account, and that the factors falling into that category are to be determined by construing the statutory provisions under which the discretion arises and by implication from the subject matter, scope and purpose of the relevant statute: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39‑41. The approach in that passage is also applied there to the taking into account of irrelevant considerations.
In the context of s 3E of the Crimes Act the submissions for the appellants direct attention to subs 3E(4) where it is provided:
“If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.”
The second main limb of the appellants’ case under this head turns firstly to the provisions of s 3ZT of the Crimes Act which provides:
“A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular”.
It is accepted that in Dunesky v Elder the point was left open whether there is a strict duty of full disclosure of material facts. It is submitted that in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 it was contemplated that a warrant would be set aside where there was fraud or misrepresentation, for which purpose a statement that is a half truth would be treated as amounting to such.
The matters raised before the trial judge in support of this second limb of this ground were the failure of Mr Whinfield to refer in the application for the 1997 warrants to a range of matters including the voluntary production by Malubel of documents on or about 5 December 1995 in response to a written request by Mr McNally; that the solicitors for the appellants may have been raising questions about the validity of the s 264 notices issued on 20 December 1996 and were saying they needed time to comply and that the solicitors for Malubel were raising, as reasons for their inability to comply, the fact that some documents were held by the NCA itself. It was submitted the failure to refer to these matters had to be considered with the statement of Mr Whinfield in the application that it was suspected Malubel and its directors were attempting to conceal records.
The trial judge referred to the obligation on a person seeking the issue of a warrant as considered by the Full Court of this Court in Lego and also Dunesky v Elder. His Honour said the present state of the law had been conveniently summarised by Hill J in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 400, who was a member of the Full Court in Lego and in Dunesky v Elder. There it was said that since Lego it was clear that a failure to disclose a particular fact would not invalidate a warrant unless the failure was such as to justify a conclusion the decision to grant the warrant was induced by fraud. Prior to that case the law had been as stated by the Full Court in Karina Fisheries namely, there was an obligation upon those seeking a warrant to make to the issuing officer a full disclosure of all material facts which might be relevant to the issuance of the warrant.
The trial judge referred particularly to the application of subs 3E(4) of the Crimes Act and to the submission before him that it was incumbent upon Mr Whinfield in his application to have stated not only that an application had been made in 1995 leading to the issue of the 1995 warrants but also to have stated the material facts upon which the application was based and the outcome of both the application for the warrants and their execution. He considered the submission misconceived the purpose of subs 3E(4) which he regarded as being intended to ensure an issuing officer will not be called upon to issue a warrant in ignorance of the fact that another issuing officer has refused to do so or has done so in the same or substantially the same terms. He considered the subsection required a statement on the face of the application itself. In any event, he found the fact that an earlier application had been made was adverted to along with the result of it.
His Honour accepted that the proper approach, in terms of the language adopted by Beaumont and Whitlam JJ in Lego at 555, was “not whether the [applicant] was under an obligation to disclose to the justice a particular fact, but whether the statements in the [application] were sufficient to satisfy the statutory [requirements]”. In his opinion, there was ample material on which the issuing officer could have been satisfied of the matters referred to in s 3E. Those matters are contained in a summary of the Application and extracts from it set out in his reasons for judgment not repeated here.
The matters of law relied on by his Honour were further considered by a Full Court of this Court (Black CJ, Lindgren and Sackville JJ) in Carmody v Mackellar (1997) 76 FCR 115, particularly at 146‑149. The Court there concluded that the preponderance of authority may now be taken to favour the view there is no general duty of disclosure imposed on an applicant for a telephone interception warrant under s 45 of the Telecommunications (Interception) Act 1979 (Cth) or an applicant for a listening device warrant under s 219B of the Customs Act 1901 (Cth). The Court reached this reasoning in reliance upon the cases developed since Karina Fisheries and in particular on the views expressed in Lego. It is unnecessary to again set out that chain of development or reasoning, it being cited extensively by his Honour and set out in the reasons of the Full Court in Carmody.
In my opinion his Honour was correct in law and correct in the application of the law to the facts.
On the questions of fact it is clear his Honour was correct when, in considering the question whether the statements in the Application were sufficient to satisfy the statutory requirements, he concluded there was ample material to that end.
Furthermore, I consider he was correct in concluding subs 3E(4) did not require Ms Elder to take into account the execution of the 1995 warrants and is not to be so construed. Likewise he was correct in his finding that the earlier application had been adverted to in the Application.
Finally, it was not put to Mr Whinfield that he did not bring forward information of which he had knowledge so the issue was not activated at trial.
In relation to the second limb of this ground, in Lego at 555 Beaumont and Whitlam JJ referred to the fact it was possible for a warrant to be set aside where there has been fraud or misrepresentation. As an example of misrepresentation they instanced a statement which was a half‑truth and thus misleading. That passage was relied upon by the appellants in their submissions on this limb. The trial judge was not satisfied the failure of Mr Whinfield to disclose the voluntary production of documents in 1995, together with his limited reference in th e Application to the debate going on between Malubel’s solicitors and the ATO about compliance with the s 264 notices, evidenced an intention on his part to deliberately mislead the issuing officer. He therefore found a case of fraud had not been made out. In reaching that view he applied what had been said by Wilcox J in Lego at first instance [(1993) 44 FCR 151 at 172]. For the appellants it was contended this passage had been impermissibly relied upon in the light of the decisions of the Full Court in Lego on appeal; the decision in Carmody; and the statement of principle in Puglisi.
There are two reasons why the appellants’ contentions on this limb cannot succeed. The first is the effect of the decided authorities. In Carmody at 147‑149 the Full Court relied on Lego at 555 and 569 in reaching the conclusion that there was no general duty of disclosure. On that basis law his Honour was entitled to make the finding no fraud (including misrepresentation) was involved.
Nor is there any room on the evidence for a finding of constructive knowledge. It was not open for his Honour to find that Mr Whinfield is bound by knowledge possessed by Mr McNally and the ATO. Such a case was not put to Mr Whinfield. The regional director of the Sydney office of the NCA gave affidavit evidence upon which he was cross-examined. No suggestion of constructive knowledge was put to him. Mr McNally was not called. Accordingly, there was no evidence to establish fraud.
Ulterior or collateral purpose
It was submitted to his Honour that the warrants were issued for an ulterior collateral purpose, namely to assist in ongoing inquiries by the ATO with respect to the business of Malubel concerning its tax liabilities. His Honour accepted that evidence established Mr McNally, when assisting in the execution of the first warrant in 1997, was interested in obtaining documents concerning the current financial position of Malubel in circumstances where he had earlier access to many of Malubel’s financial records. However in July 1997 he had become a member of the Task Force established by the NCA and a member of its staff so he was likely to have been investigating Malubel’s affairs from a different perspective. The judge was not satisfied the initiating and abiding purpose for which the warrants were sought and executed was to ascertain the taxation liability of Malubel and not to obtain evidential material concerning a defrauding of the Commonwealth: see Flanagan v Commissioner for the Australian Federal Police (1995) 60 FCR 149 at 203 and Dunesky v Elder at 558.
Again, there was no proper foundation in the evidence upon which the trial judge could have decided on this matter in favour of the appellants’ contention. There was direct evidence from Mr Whinfield that his only purpose was to collect evidence of the commission of the offences specified in the warrant. There was evidence corroborating that evidence. It was not put to him he was acting as the cats‑paw of Mr McNally.
Furthermore, it was accepted by Hill J in Puglisi at 400 that the mere fact that the execution of a warrant may discover information that could be used in pending legal proceedings will not of itself make the search warrant invalid - more is necessary. An inference drawn from the execution of the 1997 warrants (more readily drawn in the absence of Mr McNally) is not sufficient, even when that occurred in the context of an ongoing taxation investigation of the appellants. His Honour the trial judge referred to the other factors concerned and was entitled to reach the decision which he did on this submission.
Conclusion
For these reasons I consider the appeal should be dismissed with costs.
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I certify that this and the preceding twenty‑three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson |
Associate:
Dated: 16 October 1998
GENERAL DISTRIBUTION
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
ng 15 of 1998 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
MALUBEL PTY LTD (ACN NO. 003 923 760) First Appellant
JIN KYU CHUNG Second Appellant
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AND: |
WENDY ELDER First Respondent
DONALD WHINFIELD Second Respondent
ALBERT GARDNER Third Respondent
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JUDGEs: |
BURCHETT, R D NICHOLSON & MADGWICK Jj |
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DATE OF ORDER: |
16 OCTOBER 1998 |
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WHERE MADE: |
SYDNEY |
REASONS FOR JUDGMENT
I have had the advantage of reading the judgment of Nicholson J. I agree with his conclusions and, except in one respect, his reasons.
The exception relates to "Point 3" which concerns the reference in the "first condition" in the warrant to "monies suspected of being used in a money laundering or tax evasion process …".
It is clear enough, as explained by Nicholson J, that the third condition in the warrant was directed at satisfying s 3E(5)(a). This requires, in effect, that the warrant specify "the offence to which the warrant relates".
The first condition, as is also evident, was conceived as satisfying s 3E(5)(c), which requires that "the kinds of evidential material that are to be searched for under the warrant" be stated in it. "Evidential material" means "a thing relevant to an indictable offence or … a summary offence": s 3C(1).
The things which were here sought, and are apt to be the subject of a warrant, were those described in the first condition, namely monies, originals and copies of banking records, and originals and copies of documents used for the recording of or movement of monies, so far as these were "relevant to" the offence specified in the third condition. The express limitation, later in the warrant, of the authority of the executing officer "to search [and to seize] … for any evidential material that satisfies ALL of the THREE conditions specified above …" (emphasis added) required the connection of "relevance" of the targeted things to the suspected offence, because of the statutory definition of "evidential material". Whether such things are so relevant is, in the first instance, as a practical matter, for the reasonable judgment of the executing officer. As a practical matter also, that judgment will depend on that officer's reasonable suspicion.
In these circumstances, there was simply no need for the words rightly criticised as introducing notions that have a degree of vagueness, unspecificity and lack of technical meaning. All that those words do is to further limit, quite gratuitously, the things that might be searched for and seized. The impugned phrase does this by requiring that the specified things further be suspected of being used in one of two kinds of processes. The named processes are no more than the ways in which it was actually suspected by the police that an offence against s 29D had been committed. No doubt it would be against suspicions of those kinds that the ultimate judgment might be made of whether the things seized were relevant to a s 29D offence and therefore truly "evidential material". But it was not necessary that any reference to the nature of those suspicions be included in the warrant: a warrant need not give particulars of the suspected offence.
Had the draft warrant not contained the words complained of, it is hardly conceivable, having regard to the way in which the matter was put to the issuing officer, that she would not have nevertheless issued the warrant. The impugned words narrow, to a merely theoretical and vague but necessarily very minor extent, the scope of the things that might otherwise be searched for and seized under the warrant. Those words could have had no practical effect whatsoever. They can therefore reasonably be regarded as surplusage and severable.
A propos this matter, I should like also to echo the words of Burchett J (agreed in by Sheppard J, Pincus J expressing general agreement with Burchett J's judgment) in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 546 concerning the drafting technique employed here (and common in federal search warrants) of referring to "things which satisfy all of the following conditions" and then listing various conditions. Burchett J said:
"The drafting technique is unnecessarily complicated, in itself an undesirable thing which could easily introduce error …"
That criticism was an apt one, as the point now under discussion shows. The Federal Police plainly are in need of advice as to how to frame draft warrants, simply and comprehensibly. A clearer focus on the actual requirements of s 3E and on stating them in language that is as plain as possible should produce warrants that are easier to understand and less prolix and, on both of those accounts, less likely to prompt challenges.
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I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R N Madgwick |
Associate:
Dated: 16 October 1998
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Counsel for the Applicant: |
D B McGovern & L J W Aitken |
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Solicitor for the Applicant: |
Giles Payne & Co |
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Solicitor for the 1st Respondent: |
Crown Solicitor of New South Wales |
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Counsel for the 2nd and 3rd Respondent: |
I Temby QC and M Wigney |
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Solicitor for the 2nd and 3rd Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
29 June 1998 |
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Date of Judgment: |
16 October 1998 |
