FEDERAL COURT OF AUSTRALIA

Wong v Commissioner, Australian Federal Police [2014] FCA 443

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the first respondent’s costs on a party and party basis.

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

REASONS FOR JUDGMENT

1    The applicant seeks to set aside a warrant issued by a Magistrate and the return of all items seized under the warrant. The applicant claims to be aggrieved by the Magistrate’s decision to issue the warrants because, the applicant submitted, her Honour ought not to have been satisfied that there were reasonable grounds for suspecting that there was, or would be within the next 72 hours from the date of the issue of the warrant, at the applicant’s premises evidential material which satisfied all of the three conditions in the warrant. The applicant relied upon two grounds in his application to set aside the warrant. The first was that the Magistrate erred in issuing the warrant by holding and finding that she had power to issue the warrant on the basis that “there were reasonable grounds for suspecting that any material specified in the first and second condition of the warrant would afford evidence as to the commission by the applicant of the indictable offences specified in the third condition of the warrant when it was not open to [the Magistrate] to find the existence of such reasonable grounds having regard to the contents of the affidavit of Wendy Louise Rix dated 3 April 2014 relied upon by the first respondent in support of the application to issue the warrant”. The second ground was that the warrant had been obtained for an improper purpose.

2    The warrant authorised Federal Agent Rix, as the executing officer, to enter, search and seize items at the applicant’s premises and was issued upon the issuing magistrate being satisfied that there were reasonable grounds for suspecting that there was, or would be within the next 72 hours of the issue of the warrant, at those premises, evidential material which satisfied three conditions. The first condition described the things thought to be at the premises in question such as, for example, accounts, correspondence, records and other documents. The second condition identified who or what those things related to. The third condition identified the indictable offences in respect of which the things were suspected to afford evidence of having been committed, namely:

Chang Song Wong, at Melbourne in the state of Victoria was party to multiple non-reportable deposits (less than A$10,000), which were conducted for the sole or dominant purpose of ensuring or attempting to ensure that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43 of the Anti-Money Laundering And Counter-Terrorism Financing Act 2006 (Cth), contrary to subsection 142 of that Act.

Chang Song Wong, at Melbourne in the state of Victoria dealt with money or other property, it being reasonable to suspect that such money or other property was proceed [sic] of crime and at the time of dealing the value of the money or property was A$100,000 or more contrary to section 400.9(1) of the Criminal Code 1995 (Cth).

The two offences in connection with which the things specified in conditions 1 and 2 were sought are both punishable by more than 12 months imprisonment. The Magistrate, on the face of the warrant, stated that she was satisfied that there were reasonable grounds for suspecting that there was, or would be within the relevant time, the material satisfying the three conditions at the applicant’s premises and that she was satisfied of that by information on oath. The information which was available to the Magistrate, and which she relied upon to base her own state of satisfaction, was an affidavit by Federal Agent Rix sworn on 3 April 2014 (“the Warrant Affidavit”). The applicant relied upon the Warrant Affidavit in his application to have the warrant set aside although he did not have access to it at or before commencing the application. The applicant sought discovery of the Warrant Affidavit when making the application to have the warrant set aside and was given a redacted copy of the Warrant Affidavit although the first respondent had initially objected to its objection. The court was not required to consider the initial objection by the first respondent (which the first respondent did not persist with) to discovery of the Warrant Affidavit, and was not called upon to consider whether the Warrant Affidavit was not amenable to discovery as sought or whether the application to set aside the warrant when made was incompetent or otherwise lacked merit.

3    The applicant contended (upon receipt of the redacted version) that the Warrant Affidavit did not provide information sufficient to permit the Magistrate to be satisfied that there were reasonable grounds for suspecting that there was any materials at his premises of the kind specified in the first and second conditions of the warrant which would afford evidence as to the commission by him of the indictable offences specified in the third condition of the warrant. The applicant contended that, at its highest, the information in the Warrant Affidavit “betrayed that an amount of money had been deposited into an account opened by a third person (Rev. Mah) by means of transactions that were, allegedly, structured”. The applicant contended that this was the only allegation of illegality identified in the information in the Warrant Affidavit and that the allegation was not one which tainted him “in the sense that it might provide any reason for suspecting that [he] had been involved in criminality”.

4    It is for the applicant to establish that the Magistrate could not have been satisfied that there were reasonable grounds for suspecting that there would be evidential material at the applicant’s premises which satisfied the three conditions: Williams v Keelty (2001) 111 FCR 175 [236]; Kennedy v Baker (2004) 135 FCR 520, [85]-[86]; Egglishaw v Australian Crime Commission (2006) 230 ALR 254, [19]. An applicant seeking to challenge a warrant on the basis of the issuing officer not having reasonable grounds for the suspicion required to issue the warrant has a difficult and exacting task. The burden to be discharged, and the analysis by which it may be discharged, was considered in Williams v Keelty (2001) 111 FCR 175. The applicant must establish that there was an absence of what his Honour referred to in Williams v Keelty as the “foundational facts” from which the issuing officer might have had the relevant suspicion on reasonable grounds. Identifying the foundational facts will proceed from the relevant offences, bearing in mind that an applicant must show the absence of reasonable grounds for suspicion that those offences have been committed. For these purposes “suspicion” is not the same as a belief, but is a “state of conjecture or surmise” or a “slight opinion, but without sufficient evidence” (George v Rockett (1990) 170 CLR 104, 115), although it does require some factual basis upon which a suspicion can be based of a kind that would “create in the mind of a reasonable person […] an actual apprehension” of the relevant fact (Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266, 303).

5    The issuing magistrate stated in the warrant that she was satisfied that there were reasonable grounds for suspecting that there was evidential material at the premises that the applicant had committed the specific offences stated in the warrant. The applicant, wishing to challenge that basis of issue of the warrant, must establish that there was not before the Magistrate information sufficient to have founded a suspicion on reasonable grounds that there was or would be evidential material of the offences identified in the warrant. That, in this case, will require an analysis of the relevant offences, the identification of the potential facts relevant to those offences, and establishing that whatever information had been before the issuing Magistrate could not have supported a suspicion that there would be evidential material at the premises relevant to those offences.

6    The nature of the offences in question is such that proof of their commission will depend in many cases upon circumstantial evidence, patterns of conduct and inferences. The first offence identified in the warrant is that in s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) which relevantly provides:

(1)    A person (the first person) commits an offence if:

(a)    the first person is, or causes another person to become, a party to 2 or more non-reportable transactions; and

(b)    having regard to:

(i)    the manner and form in which the transactions were conducted, including the matters to which subsection (3) applies; and

(ii)    any explanation made by the first person as to the manner or form in which the transactions were conducted;

it would be reasonable to conclude that the first person conducted, or caused the transactions to be conducted, in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43.

The matters in subsection (3), referred to in s 142(1)(b)(i) above, to which one must have regard are: (a) the value of the money or property involved in each transaction, (b) the total value of the transactions, (c) the period of time over which the transactions took place, (d) the interval of time between any of the transactions, and (e) the locations at which the transactions took place. The second offence identified in the warrant is that in s 400.9 of the Criminal Code Act 1995 (Cth) which relevantly provides:

(1)        A person commits an offence if:

(a)    the person deals with money or other property; and

(b)    it is reasonable to suspect that the money or property is proceeds of crime; and

(c)    at the time of the dealing, the value of the money and other property is $100,000 or more.

The condition in sub-paragraph (b) is taken to be satisfied by virtue of s 400.9(2) where the conduct involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) that would otherwise apply to the transaction.

7    The issue of the warrant required “the existence of facts which [were] sufficient to induce [the relevant] state of mind in a reasonable person” (George v Rockett (1990) 170 CLR 104, 112), namely, a suspicion, in the mind of a reasonable person (George v Rockett at 111-2), that evidential material was, or within a period of time would be, present at the applicant’s premises which could afford evidence of the commission by the applicant of the offences in those sections. The facts necessary to induce the relevant state of mind in a case such as this, and which an applicant must show were not before the issuing Magistrate, may include facts of patterns of conduct, interpositions of people, interpositions of accounts, relationships between the parties and circumstantial evidence (including inferences) of dealings and conduct which may bear upon the applicant being a party to non-reportable transactions relevant to a possible offence under s 142 or which may bear upon whether the applicant dealt with money or property suspected to be the proceeds of crime relevant to a possible offence under s 400.9. Material sufficient to found a suspicion need not be admissible evidence nor need it be correct. In Williams v Keelty his Honour considered foundational facts to include such matters as: reports from newspapers (at [171]); material “falling well short of a prima facie case” (at [172]); matters that “could not be put in evidence at all” (at [176]); “a pattern of conduct” (at [185]); and the fact that the applicant for the warrant was also satisfied of a suspicion on reasonable grounds of an offence having been committed (at [165] and [214]).

8    His Honour in Williams v Keelty at [211] observed that the opinion for the issuing officer to form was “a low threshold requirement”. Conversely, the threshold for an applicant challenging the existence of that low threshold is correspondingly high. The making of an application to challenge a warrant does not create an obligation upon a respondent to establish that there were reasonable grounds for the suspicion formed by the issuing officer and applications to set aside warrants should not be made without foundation. Applications for judicial review of the issue of search warrants should not be brought in the hope of finding, or fishing for, error. The issuing officer was not required to give reasons and judicial review of her decision is not to be treated as an appeal as to its correctness or as the commencement of an inter partes hearing de novo of the application for the search warrant. The onus to make good the challenge remains with the applicant: Williams v Keelty at [236]; Kennedy v Baker (2004) 135 FCR 520, [85]-[86]; Egglishaw v Australian Crime Commission (2006) 230 ALR 254, [19]. In Ousley v The Queen (1997) 192 CLR 69 Gummow J said at 130-1:

The more appropriate principle is that the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings. Where “acts are of an official nature…everything is presumed to be rightly and duly performed until the contrary is shown” [Broom, A Selection of Legal Maxims, 10th ed Kersley (1939), p 642].

The presumption of regularity is not called into question just by the making of an application for judicial review. It is for the applicant to show error before it may be thought necessary to consider whether there are reasonable grounds for the issuing Magistrate’s suspicion of the commission of offences.

9    The applicant’s contention in his written outline was:

7.1    The Information provided to the second respondent did not permit the second respondent to be satisfied of the test expressed above.

7.2    At its highest, the Information betrayed that an amount of money had been deposited into an account opened by a third party (Rev. Mah) by means of transactions that were, allegedly, “structured”. This is the only allegation of illegality contained in the Information. It is an allegation, however, that does not in any manner taint the applicant in the sense that it might provide any reason for suspecting that the applicant has been involved in criminality.

7.3    This bank account, with the money the subject of the allegedly “structured” transactions still in it, became the subject of a restraining order.

7.4    There are no reasonable grounds to suspect, based on the material contained in the Information, the applicant’s guilt of the offences specified in the third condition of the warrant. Beyond the alleged “structuring” already mentioned there is no evidence sufficient to ground a reasonable suspicion of criminality on the applicant’s part at all.

7.5    This being so, there was, logically, no reasonable grounds to suspect that there would be at the applicant’s premises things that would afford evidence as to the commission of the offences specified in the third condition of the warrant.

7.6    There was, thus, an insufficient evidential basis for the issue of the warrant and the issue of the warrant was in error as a consequence.

The oral submissions for the applicant were consistent with the written outline and depended upon an analysis of the suspected crimes in similar terms. The indictable offences identified in the third condition, however, were not as narrow as the applicant’s submissions described them.

10    The first of the indictable offences identified in the third condition was that the applicant was “party to multiple non-reportable deposits” contrary to s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The essence of the offence in this case was, relevantly, that the applicant was or became “a party” to the non-reportable transactions. None of the submissions by the applicant established that the issuing Magistrate could not have been satisfied of, or if it be relevant that the information in the Warrant Affidavit did not, or could not, found, a suspicion on reasonable grounds that the applicant was a party to the non-reportable transactions. The second offence identified in the third condition in the warrant was that the applicant “dealt with money or other property” which could reasonably be suspected to have been the proceeds of crime contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth). None of the submissions for the applicant similarly established that the issuing Magistrate could not have been satisfied of, or if it be relevant that the information in the Warrant Affidavit did not, or could not, found, a suspicion on reasonable grounds that the applicant had “dealt with” money or other property that could reasonably be suspected to have been the proceeds of crime.

11    Although it might be sufficient to dispose of the application to conclude that the applicant failed to discharge his onus, the fact is that the material before the issuing Magistrate was sufficient for her to be satisfied of a suspicion on reasonable grounds that there was evidential material at the premises in respect of which the warrant was issued. The Warrant Affidavit set out a number of facts and dealings involving the applicant, Reverend Mah, the applicant’s father and the applicant’s sister. The Reverend Mah is a Malaysian national and resident who has travelled to Australia on only one occasion in December 2012 and on that occasion in Australia opened a number of bank accounts. Another account was opened in her name whilst she was not in Australia in March 2013. On 3 December 2012 three accounts were opened with the ANZ Bank which were identified as accounts ending with the numbers 84805, 36995 and 84653. On the same day, she opened two accounts with the National Australia Bank ending with the numbers 1304 and 5827. A sixth account (another with the ANZ Bank) was opened in her name whilst she was not in Australia. The issuing Magistrate was told that it was suspected that this account was opened by a third party utilising Reverend Mah’s status as an existing ANZ customer. That information was based in part upon records obtained from the Department of Immigration and Border Protection revealing that Reverend Mah was not in the country at the time when that account was opened. The issuing Magistrate was also informed that the applicant was an authorised third party signatory on all of Reverend Mah’s ANZ accounts.

12    The chronology of events in the information available to the issuing Magistrate commenced with the arrival of Reverend Mah accompanied by the applicant’s father and sister and the establishment on one day of five accounts with two different banks. There is some grammatical ambiguity in the description of the relationship between the Reverend Mah and the applicant’s father and sister, but it seems tolerably clear that the applicant’s father was the Reverend Mah’s business adviser and that the applicant’s sister was Reverend Mah’s executive assistant. They both accompanied the Reverend Mah on her visit to Australia and appeared to be, like Reverend Mah, Malaysian nationals residing in Malaysia and not in Australia. Only the applicant appears to reside in Australia.

13    During her only visit to Australia, Reverend Mah opened the accounts mentioned, including the NAB account ending with the numbers 1304. The Warrant Affidavit identified dealings on that account as used to make “structured” transactions. A total of 78 cash deposits were made into that account between 31 January 2013 and 11 June 2013, each under the reporting threshold, with a total value of approximately $800,000. Multiple deposits were made on some days on that account at various locations throughout Victoria and New South Wales. There were also five real time gross settlement transfers totalling $3,050,241.90 and a number of international transfers totalling $180,972 paid into account 1304. A review of entries into that account revealed that there were 20 deposits which bore the transaction description of “Mml Transfer Cs Wong” which was believed to refer to the applicant. Nineteen of those deposits were each in the amount of $20,000 and the twentieth was for $7,675.17, making a total of $387,675.17.

14    The Warrant Affidavit also referred to evidence which had been filed in proceedings in the Supreme Court of Victoria. A restraining order had been made by the Supreme Court which the Reverend Mah sought to have revoked. The applicant’s father had made an affidavit in those proceedings dated 24 September 2013 in support of the Reverend Mah’s application for revocation of the restraining order in which he had stated that he had personally donated $399,175.17 to the Reverend Mah and, critically, that he had instructed the applicant to transfer $400,000 to Reverend Mah’s NAB bank account. The applicant’s father had explained in his affidavit that the applicant had been able to do this because since 2006 he had transferred in excess of $650,000 to the applicant’s NAB bank account numbered 59-239-7282 to assist him with his studies and with the purchase of a house. However, the house was purchased for a consideration of $648,000, leaving unexplained, and giving rise to a suspicion about, how the applicant was able to have secured the $400,000 paid to the Reverend Mah’s bank account. It is true that the information before the Magistrate recorded the fact that the house purchased by the applicant was mortgaged to the ANZ and it is conceivable that there is an innocent explanation capable of dispelling any suspicion. That, however, is irrelevant to whether the information as placed before the issuing officer provided reasonable grounds for a suspicion of the applicant being a party to a non-reportable transaction or of dealing with money that was the proceeds of crime. The issuing Magistrate had information unequivocally linking the applicant with the Reverend Mah’s accounts. The explanation given by the applicant’s father in his affidavit may be correct, but there was plainly information capable of raising a suspicion that the applicant’s NAB account ending with the numbers 7282 was being used by the applicant for unlawful structuring activity. The issuing Magistrate was also told in the Warrant Affidavit that the NAB had informed the Australian Federal Police on 23 September 2013 that the applicant’s account ending with the numbers 7282, and two other accounts of the applicant with the NAB, had been terminated due to “structuring activity” on the applicant’s account.

15    There was also information sufficient to found a reasonable suspicion concerning the applicant in relation to Reverend Mah’s ANZ accounts. The Warrant Affidavit recorded that information from the AUSTRAC database revealed that between 18 September and 3 December 2013 the applicant’s father had sent four international funds transfers totalling $107,390 to an ANZ account of the applicant ending with the numbers 85417. Bank statements for that account had been reviewed, and that review had revealed that there had been regular ANZ internet banking fund transfers from that account of the applicant into the three ANZ accounts in the name of Reverend Mah ending with the numbers 84596, 86128 and 76429. Federal Agent Rix stated on oath that she had reviewed the analysis undertaken by a forensic accountant of the documents and of the bank statements, and had herself concluded that money was being moved between these accounts to avoid detection by law enforcement agencies. Whatever the ultimate findings may be, the information available to the issuing Magistrate bore probatively upon whether the applicant was dealing with money contrary to s 400.9 or was a party to non-reportable transactions contrary to s 142.

16    The Warrant Affidavit also informed the issuing Magistrate that on 3 March 2014 the applicant had transferred $930,000 from his account ending with the numbers 85417 to an account at DBS Bank in Hong Kong in the name of Reverend Mah. That transfer coincided with the filing by Federal Agent Rix of an affidavit in opposition to the application which Reverend Mah had made to the Supreme Court for revocation of the restraining order. The $930,000 was not otherwise accounted for and thus raised suspicion about its source. The timing of its transfer also permitted an inference to be drawn that money was leaving Australia in apprehension that it might be restrained under Australian law. There was also evidence of expenditure of money on the purchase of a motor car by the applicant from money in an account of the applicant’s. The purchase of a motor car is, on any view, a dealing with money and would potentially be relevant to an offence against s 400.9.

17    The Warrant Affidavit also informed the issuing Magistrate that the information it contained had been sourced from places which were likely to provide reliable and cogent information for the purpose of founding, on reasonable grounds, the relevant suspicion. The sources were the Australian Federal Police, the Department of Immigration and Border Protection, the Australian Transaction Report and Analysis Centre, the National Australia Bank, the Australian and New Zealand Banking Corporation, the DBS Bank in Hong Kong, the Australian Taxation Office, the Victorian Land Titles Office and VicRoads. The terms of the warrant were directed, and calculated, to finding information likely to be contained in things (the first condition) relevant to the stated offences (the third condition) through the specified individuals and the identified accounts (the second condition). The issuing Magistrate was also told that on 17 June 2013 a judge of the Supreme Court of Victoria had issued a restraining order pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth), that a freezing order had been issued by Magistrate Lambden on 14 June 2002 and that Federal Agent Rix had herself the suspicions necessary for her to make the application. In Williams v Keelty, Hely J said that statements by a person applying for a warrant that the person also had reason to suspect was “not an irrelevant distraction”: at [169] and [214]. The fact that the applicant for the search warrant should have the relevant suspicions is a fact which was relevant to the task that the issuing Magistrate was to undertake in determining whether there were reasonable grounds for the suspicion.

18    The second ground of the applicant to set aside the warrant was that it had been obtained for an improper purpose. The applicant contended that the warrant was sought not for the purpose in the warrant but to obtain information to be used in the proceedings in the Supreme Court of Victoria. The primary basis for that contention was said to be that the application for the search warrant was only made once an application for discovery in the Supreme Court had failed. A second basis relied upon by the applicant was that an improper purpose could be inferred from the fact that the deponent had not relied upon stronger information that she had available when making the application for the warrant.

19    The application for discovery was made by the first respondent in the proceedings in the Supreme Court which had been initiated by the first respondent on 18 June 2003 under the Proceeds of Crime Act 2002 (Cth). In those proceedings an order was obtained under s 19 restraining dealings with two of the National Australia Bank accounts held by the Reverend Mah in which there was approximately $4,300,000. On 24 September 2013, Reverend Mah applied for revocation of the restraining order and on 21 November 2013, the first respondent applied for discovery in those proceedings. On 19 December 2013 Ginnane J rejected the application for discovery in part for lack of power. The revocation application has not yet been heard.

20    The applicant’s claim that the warrant had been obtained for an improper purpose was made by amendment to the application and had not been part of the application when first filed. The first respondent did not oppose the amendment to add the improper purpose ground but maintained that it could not be made out on the facts of this case. The ground was not challenged on other bases that might, perhaps, have been available. The improper purpose ground was not advanced on the basis that the obtaining of the warrant was a contempt of the Supreme Court. The principal basis upon which it was made was that the improper purpose was revealed by the fact that the application for the warrant was made after the application for discovery before Ginnane J had failed. An additional fact was relied upon during the course of the hearing, namely, that the warrant affidavit had not clearly set out (beyond a general statement) stronger information which had been available to the deponent when making the Warrant Affidavit. The second ground drew attention to paragraph 6(n) in the Warrant Affidavit which identified three NAB accounts of the applicant which the NAB had informed the AFP had been terminated “due to the structuring activity on [the applicant’s] account”. The deponent of the Warrant Affidavit could, however, have been much stronger in her expression of the information she put before the issuing Magistrate. On 7 February 2014, Federal Agent Rix had sworn an affidavit in which she had referred to what was revealed from documents obtained pursuant to a Production Order served on the NAB under s 202 of the Proceeds of Crime Act 2002 (Cth). That information had led Federal Agent Rix to conclude, amongst other things, that in the period between 9 October 2012 to 26 February 2013 there were 106 structured deposits into the applicant’s NAB account totalling $918,175.00. The applicant contended that the improper purpose for obtaining the search warrant was revealed by the fact that this information was not relied upon but that what was relied upon was the more general statement which had been made in paragraph 6(n) of the Warrant Affidavit.

21    The onus of establishing improper purpose falls upon the party alleging it and is not to be inferred lightly. In Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 Gaudron J said at [67-12]:

And, where the subject matter of decision falls squarely within the terms of a statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made. It is only if the purpose attending the decision must be ascertained by inference from other facts that a presumption of regularity has a role to play. An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power. [Citation omitted].

Here the purpose sought to be impugned was not that of the issuing Magistrate but of the first respondent in seeking to have the warrant issued. The first respondent did not contend in these proceedings that any impropriety in seeking the warrant could not affect the validity of its issue by the Magistrate. There was, however, no evidence upon which it could be found with any degree of confidence that the warrant had been obtained by the first respondent for anything other than the purpose for which the warrant appears to have been obtained. It was obtained on the basis of an affidavit sworn by Federal Agent Rix on oath that she had the suspicions stated in her affidavit. Those suspicions were credible and were statements made by a serving police officer in the course of her duties.

22    The warrant itself is, in any case, inconsistent with the applicant’s contention that it was obtained for the purpose of gaining access, by other means, to the information sought in the application for discovery which had failed in the Supreme Court. What had been sought in the Supreme Court were documents relevant to matters which had been raised in the affidavits which were filed in support of Reverend Mah’s application for revocation. Each of the documents specifically referred to in the application for discovery in the Supreme Court were linked to specific paragraphs in the affidavits which had been relied upon in the application by Reverend Mah for revocation of the restraining order. None of the documents sought in that proceeding were directed to the things sought through the warrant issued to search the applicant’s premises. The Supreme Court discovery application did not seek documents from the applicant. It was directed to different people, different documents, different issues and was in part rejected for want of power rather than some other basis that might taint access to documents by reference to some other process, power or entitlement to obtain them. In contrast, the warrant, on its face, is directed to documents of a kind which bear upon the offences identified in the warrant, and was sought in the context of a pre-existing, and continuing, investigation of which the restraining order was a part. The fact that the Warrant Affidavit could have contained stronger and more direct information does not permit any inference to be drawn of an improper purpose. In any event, the essence of the stronger information was contained in the more general statement in paragraph 6(n) of the Warrant Affidavit.

23    Accordingly, the proceeding will be dismissed.

Associate:

Dated:    7 May 2014