FEDERAL COURT OF AUSTRALIA
Randlab Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2019] FCA 1472
ORDERS
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. The third respondent’s conduct in taking and removing the property from the applicants’ premises was unlawful.
THE COURT ORDERS THAT:
2. The first respondent return the property to the second applicant and destroy any copies in their possession custody or control by a date to be fixed.
3. The first respondent pay the applicants’ costs of the application, to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ABRAHAM J:
1 On 19 March 2019, an inspector within the meaning of the Agricultural and Veterinary Chemicals Code (the Agvet Code) as scheduled to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (the Agvet Act) applied for, and a magistrate (the second respondent) issued, an investigation warrant pursuant to s 143A of the Agvet Code. On 20 March 2019, officers of the Australian Pesticides and Veterinary Medicines Authority (the APVMA) pursuant to that warrant searched the premises of Randlab Australia Pty Ltd (the first applicant) and seized items of property.
2 The applicants impugn the warrant and its execution. The relief sought in the originating application includes setting aside the warrant, declarations in relation to the invalidity of its issue and execution, and an order for the return of seized items.
Overview
3 On 19 March 2019, Mr Shannon Michael Thomas Cobley (Mr Cobley) (the third respondent) an inspector of the Agvet Code, swore an affidavit in support of an application for an investigation warrant (the warrant affidavit). While there is a dispute as to the meaning of aspects of the warrant affidavit (which are addressed below), for present purposes it is sufficient to note that it described an investigation by the APVMA into the import, manufacture, possession and supply of unregistered veterinary products, in particular zoldronic acid, by the entity trading as Randlab Australia. Zoldronic acid is banned for use in race horses by Racing NSW.
4 On 19 March 2019, a magistrate granted the warrant which authorised searching the premises of “Randlab Australia Pty Ltd trading as Randlab Australia” at identified premises at Chipping Norton, New South Wales (the warrant). The warrant is in the three condition format, as approved in Dunesky v Elder (1994) 54 FCR 540 (Dunesky v Elder) at 557.
5 On 20 March 2019, the warrant was executed at those premises by four officers of the APVMA: Mr Cobley, Mr James Lehane, Mr Peter Spring and Mr Michael Te Moana, who were assisted by two computer forensic officers employed by the Australian Taxation Office (ATO), Mr Alistair Dixon and Ms Philippa Chung.
6 Property was seized during the search. While there is a dispute as to who seized particular items, there is no dispute that what was seized were:
(1) a cardboard box with the label "Zoldronic Acid", upon which the words “Randlab Australia Pty Ltd” appeared (the box);
(2) documents which appeared to be registration documents from the United Arab Emirates which mentioned “Randlab” and listed price information for various items including zoldronic acid (the UAE documents); and
(3) electronic files, which were copied onto an external storage device. These files were located by Mr Dixon and Ms Chung from searches of two computers using search terms provided to them by Mr Cobley. Ms Chung identified 189 emails as responding to a search for the terms “zoldronic” and “APVMA”. Ms Chung also identified 19 invoices in a search of the MYOB software programme for the terms “zoldronic” where the searches were limited to invoices having an Australian address. Mr Dixon identified 232 emails as responding to a search for the term “zoledronic acid” and 165 documents responding to a search for the term “APVMA”. I note that the provisions of the Agvet Code relating to the taking of electronic material (which are dealt with in detail below) refer to the transfer of material onto a storage device and the removal of that device from the premises, rather than the “seizure” of electronic material. Any reference in this judgment to the “seizure” of electronic material should be read in this context.
7 By originating application dated 2 May 2019, the applicants sought interlocutory and final relief. As the first respondent gave an undertaking not to further inspect or disseminate the seized property until the proceedings are determined, my consideration relates only to the final relief sought.
8 The second and third respondents filed a submitting notice, save as to costs.
The warrant
9 As noted above, the warrant is in the three condition format, the terms of which are as follows (including any errors contained in the original):
Whereas I [second respondent] a magistrate within the meaning of the Agricultural and Veterinary Chemicals Code, as scheduled to the Agricultural and Veterinary Chemicals Code Act 1994, am satisfied by information on oath that there are reasonable grounds for suspecting that there is at premises located at:
[identified premises]
evidential material which satisfies ALL of the following THREE conditions, namely:
FIRST CONDITION
things which are:
• Substances that may fall under the legislative definition of a veterinary chemical product,
• Substances that may fall under the legislative definition of an active constituent,
• Packaging, cartons, labels, drums, bottles or other containers, including parts thereof,
• Invoices, sales lists, orders, inventory stock lists, transport consignment records, purchase orders, packing slips, warehouse records,
• Documents, emails, telephone records or messages, written correspondence or any other documents relating to purchase, ordering, receipt, shipment, delivery, consignment, supply or manufacture,
• Documents, emails, telephone records or messages, written correspondence or any other documents relating to APVMA product registrations, active constituent approvals, manufacturing licenses or compliance,
• Any instructions pertaining to manufacture, such as formulation sheets, batch records, certificates of analysis, packaging records.
SECOND CONDITION
and which relate to any one or more of the following:
• Randlab Australia Pty Ltd
• Angelis Vasili
• Dr Michael Robinson
• Ian Saunders
• Shirish Mahashabde
• John Dalton
• Alex MacPherson
• Andrew Grant
• Rebecca Puvanendran
• William Vasili
• Debra Burrelli
• Kellie Terides
• Parveen Kernail Singh
• Zoldronic Acid
• Zoledronic Acid (active constituent)
• Australian Pesticides and Veterinary Medicines Authority
• Notice to Produce
THIRD CONDITION
And with respect to which the following offence/s against the Agricultural and Veterinary Chemicals Code or the regulations, in relation to a contravention of a civil penalty or relation to both, has been committed / is suspected on reasonable grounds to have been committed:
On 30 October 2018, Randlab Australia Pty Ltd trading as Randlab Australia, under the direction of Managing Director and Secretary Mr Angelis Vasili, was issued with a 'Notice to Produce' under section 130 Agricultural and Veterinary Chemical Code Act 1994. The company responded on 6 December 2018, however, failed to comply with the 'Notice to Produce' by redacting information relating .to the name and address of clients supplied with Zoldronic Acid, contrary to section 130B Agrucultural and Veterinary Chemicals Code Act 1994 (Offences relating to a failure to comply with notice).
AND FURTHER
Between 24 June 2005 and 20 March 2019, Randlab Australia Pty Ltd trading as Randlab Australia, under the direction of Managing Director and Secretary Mr Angelis Vasili, carried out a step in the manufacture of chemical product Zoldronic Acid at premises in this jurisdiction and was not an exempt person in relation to the manufacture of the product under the Agricultural and Veterinary Chemicals Code Regulations 1995, and was not the holder of a licence that is in force that authorises the carrying out of that step in relation to the product at those premises, and did not hold a permit that authorises the carrying out of that step in relation to the product at those premises, contrary to Section 121 Agricultural and Veterinary Chemicals Code Act 1994 (Offences relating to manufacture and licenses).
AND FURTHER
Between 24 June 2005 and 20 March 2019, Randlab Australia Pty Ltd trading as Randlab Australia, under the direction of Managing Director and Secretary Mr Angelis Vasili, had possession or custody of one or more mixtures of substances, in containers to which was affixed a label containing the name Zoldronic Act Bisphosphonate Injection For Horses, where the constituents of the mixture, the claims promoted for the mixture and/or the way the mixture was promoted for use cause the mixture to fit the definition of a veterinary chemical product, but that product is not registered, permitted, reserved, or excluded or exempt from the operation of the Agricultural and Veterinary Chemicals Code Act 1994, contrary to Section 75 of the Agricultural and Veterinary Chemicals Code Act 1994 (Possession or custody of chemical products, other than registered or reserved products, with the intention of supply).
AND FURTHER
Between 24 June 2005 and 20 March 2019, Randlab Australia Pty Ltd trading as Randlab Australia, under the direction of Managing Director and Secretary Mr Angelis Vasili, supplied one or more mixtures of substances in containers to which was affixed a label containing the name Zoldronic Act Bisphosphonate Injection For Horses, where the constituents of the mixture, the claims promoted for the mixture and/or the way the mixture was promoted for use, cause the mixture to fit the definition of a veterinary chemical product, but that product is not registered, permitted, reserved, or excluded or exempt from the operation of the Agricultural and Veterinary Chemicals Code Act 1994, contrary to Section 78 Agricultural and Veterinary Chemicals Code Act 1994 (Supply of chemical products that are not registered products or reserved products).
AND FURTHER
Between 24 Jun 2005 and 20 March 2019, Randlab Australia Pty Ltd trading as Randlab Australia, under the direction of Managing Director and Secretary Mr Angelis Vasili, published, or caused or permitted to be published, a notice that offered to sell, or invited the making of offers to buy, one or more mixtures of substances in containers to which was affixed a label containing the name Zoldronic Acid Bisphosphonate Injection For Horses, where the constituents of the mixture, the claims promoted for the mixture and/or the way the mixture was promoted for use cause the mixture to fit the definition of a veterinary chemical product, but that product is not registered, permitted, reserved, or excluded or exempt from the operation of the Agricultural and Veterinary Chemicals Code Act 1994, contrary to Section 88 Agricultural and Veterinary Chemicals Code Act 1994 (Publish, or cause or permit to be published a notice that offers to sell, or invites the making of offers to buy, chemical products that are not registered).
Together with any storage medium or storage device which contains any of the above things and any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things.
AND WHEREAS I am satisfied that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
I HEREBY ISSUE this warrant which authorises you or a person assisting you to do all of the following;
• to enter the premises specified above;
• to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and
• to seize evidential material of that kind if the inspector finds it on the premises;
• to inspect, examine, take measurements of, and conduct tests on evidential material;
• to make any still or moving image or any recording of the premises or evidential material;
• to inspect any document on the premises;
• to take extracts from, or make copies of, any such document;
• to take and keep samples of any thing on the premises;
• to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken;
• to give directions for dealing with a container, or a label on a container, that has been opened or sampled;
• to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises;
• to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
• to operate electronic equipment on the premises in accordance with Agvet Code section 132B(1) and (2);
• to use a disk, tape, other storage device (including information stored securely on severs managed by an external provider, eg. cloud-based applications) or computer that is on the premises and can be used with the equipment or is associated with it;
• to seize other things found at the premises in the course of the search that the executing officer believes on reasonable grounds to be things that afford evidence of one or more of the following:
i. the commission of an offence against an agvet law or the contravention of an agvet penalty provision or both; or
ii. an offence against the Crimes Act 1914 or the Criminal Code that relates to an agvet law; and
if the executing officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or to protect the health of the public or of any person before a warrant to seize the things is obtained and it is necessary to secure the thing without a warrant because the circumstances are serious and urgent;
…
The basis of the application
10 The applicants challenge the validity and execution of the warrant on seven grounds:
(1) The decision to issue the warrant involved an error of law and a jurisdictional error in that the second respondent misconstrued subsections (a) and (b) of the definition of “evidential material” in s 3 of the Agvet Code.
(2) The decision to issue the warrant involved an error of law and a jurisdictional error in that the second respondent misconstrued s 132B(1)(b) of the Agvet Code.
(3) The decision to issue the warrant involved an error of law and a jurisdictional error in that the description of the offences in the third condition of the warrant were insufficiently particular to provide the applicants with notice of the object of the search purportedly authorised by the warrant.
(4) The decision to issue the warrant involved an error of law and a jurisdictional error in that there was no evidence or material before the second respondent to justify the issuing of a warrant in the terms of the warrant.
(5) The seizure and taking of the property from the premises by the third respondent were not authorised by the Agvet Code and were beyond the power of the third respondent in that the warrant was invalid or, alternatively, the parts of the warrant on which the third respondent relied were invalid.
(6) The taking of files contained on items described as Item 1 - "2 x Hard Drives Containing Files" (the electronic material) was beyond the power of the third respondent in that the third respondent failed to have regard to a relevant consideration in operating electronic equipment on the premises to transfer files that were stored on the second applicants’ computer systems onto disks or storage devices which were taken from the premises.
(7) The seizure and taking of the property identified as Item 2 - "Document - UAE Registration" and Item 3 - "Cardboard Box - Zoldronic Acid” (collectively, the physical items) were beyond the power of the third respondent in that the third respondent failed to have regard to a relevant consideration in seizing that property and taking it from the premises.
11 The applicants seek the following final relief:
(1) A declaration pursuant to s 16(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 21(1) of the Federal Court of Australia Act 1976 (Cth) that the warrant issued by the second respondent is invalid and is of no force or effect.
(2) An order pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 398(1) of the Judiciary Act 1903 (Cth) that the warrant issued by the second respondent be set aside or quashed.
(3) A declaration pursuant to s 16(1)(c) and/or s 16(2)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 21(1) of the Federal Court of Australia Act 1976 (Cth) that the third respondent's conduct in taking and removing the property from the premises was unlawful.
(4) An order pursuant to s 16(1)(d) and/or s 16(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 23 of the Federal Court of Australia Act 1976 (Cth) that the third respondent, or alternatively the first respondent, return the property to the second applicant and destroy any copies in their possession, custody or control.
12 For the reasons given below, I find that:
(1) The warrant is not invalid on the basis that the second respondent misconstrued subsections (a) and (b) of the definition of evidential material in s 3 of the Agvet Code, although the third condition is narrower than that contended for by the respondent.
(2) The second respondent did not misconstrue s 132B(1)(b) of the Agvet Code such as to render the warrant invalid.
(3) The description of the offences in the third condition of the warrant was not insufficiently particular such as to render the warrant invalid.
(4) There was evidence in relation to the second to fifth offences specified in the third condition of the warrant, sufficient to justify the magistrate issuing the warrant in respect of those offences. However, there was insufficient evidence before the magistrate to justify issuing the warrant in relation to the first offence. Although not necessary to decide given my conclusion in relation to the execution of the warrant, the first offence can be severed from the remainder of the warrant.
(5) Irrespective of the outcome as to the interpretation of the third condition in the warrant, the transferring of the electronic material from the computers to a storage device and their removal from the premises was unlawful.
(6) The seizure of the two physical items was unlawful.
(7) The electronic material and the physical items seized are to be returned to the second applicant.
Statutory scheme
13 Part 9 of the Agvet Code gives the APVMA various coercive powers in relation to the investigation of suspected offences against the Agvet Code, including the power to obtain investigation warrants (Div. 9) and to execute such warrants (Div. 4).
14 Section 143A of the Agvet Code is entitled "Investigation Warrants” and is in the following terms:
Application for warrant
(1) An inspector may apply to a magistrate for an investigation warrant under this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the investigation warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.
(3) However, the magistrate must not issue the investigation warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
Content of warrant
(4) The investigation warrant must:
(a) state the offence or offences, or civil penalty provision or civil penalty provisions, to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this section; and
(d) specify the kinds of evidential material that are to be searched for under the warrant; and
(e) state that the evidential material specified may be seized under the warrant; and
(f) state that any thing found in the course of executing the warrant that the person executing the warrant believes on reasonable grounds to be evidence of:
(i) the commission of an offence against an agvet law or the contravention of an agvet penalty provision or both; or
(ii) an offence against the Crimes Act 1914 or the Criminal Code that relates to an agvet law;
may be seized under the warrant; and
(g) name one or more inspectors; and
(h) authorise the inspectors named in the warrant:
(i) to enter the premises; and
(ii) to exercise the powers set out in Divisions 4, 5 and 6 of this Part in relation to the premises; and
(i) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(j) specify the day (not more than 1 week after the issue of the warrant) the warrant ceases to be in force.
15 Section 143A(2) refers to "evidential material", which is defined in s 3(1) of the Agvet Code as follows:
(a) a thing with respect to which an offence against an agvet law has been committed or is suspected, on reasonable grounds, to have been committed;
(b) a thing with respect to which an agvet penalty provision has been contravened or is suspected, on reasonable grounds, to have been contravened;
(c) a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence or contravention of such an agvet penalty provision;
(d) a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of committing such an offence or contravening such an agvet penalty provision.
16 Given the nature of the challenge, ss 132A and 132B are also relevant. They are relevantly as follows:
(1) The following are the investigation powers that an inspector may exercise in relation to premises under section 132:
(a) if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the inspector has reasonable grounds for suspecting may be on the premises;
(b) if entry to the premises is under an investigation warrant:
(i) the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and
(ii) the power to seize evidential material of that kind if the inspector finds it on the premises;
(c) the power to inspect, examine, take measurements of, and conduct tests on evidential material referred to in paragraph (a) or (b);
(d) the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b);
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take and keep samples of any thing on the premises;
(h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken;
(i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph (h);
(j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises;
(k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
(l) the powers set out in subsections 132B(1) and (2) and section 132C.
(2) A person who is given a direction under subsection (1) must comply with the direction.
….
132B Operating electronic equipment
(1) The investigation powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it;
if an inspector has reasonable grounds for suspecting that the electronic equipment, disk, tape or other storage device is or contains evidential material.
(2) The investigation powers include the following powers in relation to evidential material found in the exercise of the power under subsection (1):
(a) if entry to the premises is under an investigation warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;
(b) the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;
(c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(3) An inspector may operate electronic equipment as mentioned in subsection (1) or (2) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 138.
(4) An inspector may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if:
(a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or to transfer the evidential material as mentioned in paragraph (2)(c); or
(b) possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of this jurisdiction.
Relevant legal principles
17 The principles relevant to construing statutes relating to the issue and execution of search warrants are well established, and summarised by the Full Court in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 (Caratti) at [21]-[49].
18 Search warrant legislation gives primacy to the public interest in the administration of criminal justice with the protection of individual rights through the imposition of statutory conditions for the issue of a valid warrant. Consequently, strict compliance with those conditions is required in order to give effect to that statutory purpose: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George v Rockett) at 110-111.
19 Construction of statutes that authorise search warrants must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart) at [64]. As the Full Court in Hart observed at [68], “effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences”, such that a construction giving effect to “operational realities” is to be preferred to “fine legal judgments in the issue and/or execution” of search warrants.
20 I note the observations of the Full Court in Caratti at [34] that:
In all challenges to the validity of the issue of a search warrant, the usual restraints on judicial review intervention will apply. This includes, most importantly, the principle that the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error: Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. However, application of that principle must accommodate the purposes of a search warrant in informing both those executing it and occupiers as to the scope of the search that is authorised. The scope of a search warrant may be far from precise given that it is issued for an investigative purpose, based upon the low threshold of “suspicion” being met. All that really means is that an error or misdescription must be shown to be material to the purposes of a search warrant. However when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 (Baker v Campbell) at 83.
21 The Full Court in Caratti at [37]-[39] also summarised key principles from Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 (Beneficial Finance) which focussed on the sufficiency on the face of the warrant in so far as it relates to the description of the suspected offence. First, the statement of the offence in a search warrant need not be made with the precision of an indictment. The purpose of the statement of the offence is not to define the issues for trial, rather to set boundaries to the area of search: Beneficial Finance at 533; State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (Corbett) at [99]. Second, the line as to what may, or may not be seized, cannot be precisely drawn as a search warrant is not concerned with what is known, but with what there is reasonable grounds for suspecting: Beneficial Finance at 534. Third, the particularity in an offence description is directed to ensuring that the occupier knows the object of the search and can therefore make an assessment of the material likely to be relevant: Beneficial Finance at 539. Fourth, at the stage a search warrant is granted, it may not be known what particular offences may have been committed and therefore it is sufficient that the warrant specifies the suspected offences in a way so as to enable the executing officer and those assisting to decide if the things seized come within the terms of the warrant: Beneficial Finance at 539. Fifth, the issue of the sufficiency of an offence description should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. It should be answered in accordance with the principle that a search warrant should disclose the nature of the offence so as to indicate the area of search, with the precision required varying from case to case: Beneficial Finance at 543. It should not be answered by the application of a verbal formula: Beneficial Finance at 543; Corbett at [103].
22 As the applicants challenge the issue of the warrant they bear the onus to make good that challenge: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 (Williams v Keelty) at [235]-[236]. The applicants also bear the onus of establishing that the warrant was not executed according to its terms: Williams v Keelty at [235]-[236].
Evidence
23 The applicants read affidavits of Ms Amanda Foley, the applicants’ solicitor who annexed various documents including the relevant warrant affidavit. The applicants also read affidavits from two persons who are employed by the second applicant and who were present at the time of the search, Ms Kellie Terides, Office Administrator and Mr Shirish Mahashabde, who had responsibility for regulatory submissions. These deponents were not required for cross-examination.
24 Apart from three aspects of Ms Terides’ affidavits, it is unnecessary to recite their evidence as to the events surrounding the execution of the warrant.
25 First, Ms Terides deposes to a conversation had with Mr Cobley at the outset of the search which was relied on by the respondent in support of an aspect of its case. The conversation is recorded as having occurred between Mr Cobley, Ms Terides and William Vasili (Ms Terides’ colleague) in the following terms:
8. After we entered the premises, Mr Cobley said words to the following effect:
Mr Cobley: We are here to search the premises for anything to do with Zoldronic Acid. We have the right to go through anything on the premises.
9. I observed William ask if we had to allow them access and one of the people accompanying Mr Cobley said words to the effect of:
Person: We need to access the computers. If you don’t give us access to them we will remove them from the premises. Where are the computers?
I said that the computers were upstairs.
10. I went upstairs and four of the APVMA members followed me. As soon as they got upstairs two of the people from the APVMA started to go through our cupboards, desk diaries and rubbish bins. I said words to the effect of:
Me: I need to phone my boss, Angelo. He is the owner of the business and is in Dubai at the moment.
11. I tried several times to get through to Angelo but it was about 3:40am in Dubai and I initially could not get through to him. While I was still trying to reach Angelo on the phone, the APVMA members were searching the offices and taking photos.
26 Second, Ms Terides deposes to her observations of the examination of the computer by a person who was obviously Ms Chung:
13. A person accompanying Mr Cobley asked me if they could access accounting records on the office computers. I do not recall the name of the APVMA staff member.
14. I helped her open MYOB on the computer which we use for accounts so that she could access the MYOB records. I then stood behind her and observed as she continued to search the computer for other records.
15. The same person had with her an external USB storage device which she plugged into the computer. As she found files which she wanted on the computer, she would drag them into a folder on the USB drive.
16. I saw the person open the Microsoft Outlook program on the accounts computer. She conducted several searches using the search bar in Microsoft Outlook.
17. I observed that, during one of the searches, she typed in the word “APVMA” into the search bar. She then proceeded to highlight all of the emails that the search returned and then copied those emails across to the USB drive. She did not open the individual emails before copying them across to the USB drive.
18. The person did not have a copy of the warrant with her as she was searching through the computer records.
27 Third, Ms Terides deposes to her observations of the examination of the computer by a person who was obviously Mr Dixon.
4. …a male person who was accompanying Mr Cobley sat down at the second office computer. He did not say anything to me. I do not recall the name of the APVMA staff member.
5. I stood behind and in between both of the APVMA staff members and observed them both as they searched the computers.
6. I observed the male APVMA staff member open the Microsoft Outlook program on the second office computer. He conducted several searches using the search bar in Microsoft Outlook.
7. The same person had with him an external USB storage device which he plugged into the computer. As he found files which he wanted on the computer, he would drag them into a folder on the USB drive.
8. I did not observe the particular words that this person entered into the search bar of the Microsoft Outlook program, however I did see him highlight all of the emails that his searches returned and then copy those emails across to the USB drive. He did not open the individual emails before copying them across to the USB drive.
9. The person did not have a copy of the warrant with him as he was searching through the computer records.
28 The respondent called four witnesses, each of whom were cross-examined.
29 The first two witnesses were the ATO officers who conducted the computer searches (Ms Chung and Mr Dixon).
30 Ms Chung gave evidence that she was an IT computer forensic officer with the ATO who was involved with the execution of the warrant. Both prior and subsequent to the execution of the warrant she had not read the Agvet Code, was not familiar with the definition of evidential material or s 132B (which relates to the powers to conduct computer searches).
31 Ms Chung gave evidence that the materials she relied on prior to, and during, the execution of the warrant were: the completed ATO form received from Mr Cobley, the tactical briefing paper provided by Mr Cobley and the search terms sent by email from Mr Cobley. Ms Chung did not read the warrant either prior to execution, or subsequently. At the time the warrant was executed, Ms Chung had with her a copy of the tactical briefing paper, however did not rely on it when conducting the searches. The search terms provided by Mr Cobley which were to govern her computer searches were: “Customs, Zoledronic Acid, Zoldronic Acid, Norden, Notice to Produce and APVMA”.
32 Ms Chung’s role comprised two sets of computer searches. Ms Chung stated that she relied on Mr Cobley’s instructions relating to MYOB, which she understood Mr Cobley was particularly interested in. She believed she was entitled to operate any computer on the premises, however the APVMA was only interested in computers that orders took place on.
33 She relied on the search terms provided to her by Mr Cobley to carry out these searches. The first search used the term “zoldronic” with the condition of having an Australian address in the MYOB. This identified 19 invoices. Ms Chung stated that she used the term “zoldronic” as she understood that was the substance the APVMA were interested in obtaining invoices for. She acknowledged that this was not the exact term as instructed by Mr Cobley (which was “zoldronic acid”) and that she had used a “shortening” of this term when conducting her searches. The second search used the terms “zoldronic” and “APVMA”. Ms Chung acknowledged that for a document to respond to those terms, it only needed to contain one of the search terms (i.e. a document would be responsive if it contained only “APVMA” but not “zoldronic”). This identified 189 outlook items. Both the 19 invoices and 189 outlook items were transferred by Ms Chung to a portable hard drive brought to the premises. Ms Chung stated that she thought she was entitled to transfer the 19 invoices to the hard drive as they met the conditions of what she was told to search for. She stated that she was entitled to transfer the 189 outlook items as they met the condition of having either “APVMA” or “zoldronic” in their contents. Ms Chung conceded that neither prior to, or during, the transfer of material from the computers to the portable hard drive had she formed any state of mind as to whether the documents met the definition of evidential material in the Agvet Code.
34 The ATO forensic request form completed by Mr Cobley and provided to Ms Chung before the search referred to provisions of the Agvet Code to which the investigation related and stated that these provisions related to the manufacture, advertisement, sale and supply of “zoldronic acid”. Reference is made in this document to Randlab having “redacted” information in response to a written request. The tactical briefing paper provided by Mr Cobley to both ATO officers states that the mission was to secure evidential material in respect of the provisions in the Agvet Code. These provisions are listed but no description is provided as to what the contraventions relate to.
35 Mr Dixon gave evidence that he was a computer forensics officer with the ATO who assisted with the execution of the warrant. To the best of his recollection, he did not review the definition of “evidential material” or s 132B of the Agvet Code before being involved in the execution of the warrant. Mr Dixon was provided with the tactical briefing paper, as well as the search terms sent by email from Mr Cobley. He did not read the warrant before, or after, executing the warrant, and admitted he was not aware the warrant contained five offences nor was he familiar with what those five offences were.
36 Mr Dixon gave evidence of a conversation with Mr Cobley prior to the warrant execution in which Mr Cobley told him that he was to extract computer records relating to the sale, advertisement and supply of zoledronic acid.
37 Mr Dixon’s involvement with executing the warrant comprised three computer searches. Before commencing his searches, he created a folder on the computer called “Randlab exported emails” and exported all emails in a folder within microsoft outlook between the dates of 20 May 2014 and 20 May 2019 to the Randlab exported emails folder. This allowed him to use a forensics tool to conduct the search. The first search was for documents containing the terms “zoledronic acid” and “APVMA”. A document did not need to contain both terms to be picked up by the search. This search produced no hits. The second search was of an outlook account called debra@randlab.com.au for the period between 20 March 2014 and 20 March 2019 containing the term “zoledronic acid”. This identified 232 outlook items. Of those 232 items, Mr Dixon was not sure how many contained the term “zoledronic acid” or just “zoledronic” or just “acid”. Following this search, Mr Dixon was provided with two portable hard drives by Ms Chung and he then inserted one of the drives into the computer. He then created a separate folder on the hard drive into which he exported the 232 items. He gave evidence that he did not turn his mind to whether he was entitled to export those documents. The third search was for the same time period with documents containing the search term “APVMA”. This retrieved 165 outlook items which Mr Dixon also transferred to the portable hard drive. I note that in his affidavits read in the proceedings it appears that Mr Dixon subsequently transferred the material he had transferred to the first hard drive, from that hard drive to the second hard drive, before handing both to Ms Chung. For present purposes, it is the first transfer of material to the first hard drive which is the relevant transfer, for the purposes of assessing whether the statutory regime governing the operation of electronic equipment was complied with, as discussed in further detail below.
38 Mr Dixon gave evidence that he believed he was entitled, under the terms of the search warrant, to operate the computer and because he was instructed, (possibly, on his recollection, by Ms Chung), to operate it. Mr Dixon agreed that he did not form any view that the material he transferred to the portable hard drive was evidential material for the purposes of the Agvet Code.
39 The third witness called by the respondent was Mr Lehane, who gave evidence that he was employed as an Assistant Director by the APVMA, and was involved with the execution of the warrant in this capacity.
40 Mr Lehane’s evidence related to the seizure of the physical items. Mr Lehane received a copy of the draft warrant, however, he does not recall whether he received the final version. He also stated that he was not aware of whether there were any differences between the draft and final version and, in particular, he was not aware that the final warrant contained five instead of four offences.
41 Mr Lehane gave evidence that he considered a document would meet the third condition of the warrant if it was “evidence of” or “suspected of being evidence of” an offence, and that this included circumstantial evidence. It was on this basis that he believed the physical items identified met the search terms of the warrant.
42 In relation to the box, Mr Lehane’s evidence was that he considered this met the three conditions of the warrant. In relation to the third condition, he considered the box was circumstantial evidence of possession or intent to supply or manufacture zoldronic acid as it showed the product was “market ready”. He considered that the box, which was empty, did not appear to have been used in the commission of an offence. When shown a copy of the final warrant during cross-examination, Mr Lehane stated that he considered the box would have gone to the possession or custody offence specified in the warrant.
43 In relation to the UAE documents, Mr Lehane drew attention to what he thought was a price list, potentially in Australian dollars, in one of the documents, which he considered would show evidence of a value to the market place. He considered the UAE documents showed knowledge of requiring registration of the products in foreign markets and that this showed evidence of intent to supply. He stated it did not amount to anything more than circumstantial evidence, that is, that the documents had not been used in committing an offence.
44 He gave evidence of a conversation he had with Mr Cobley in which he described the box and said words to the effect that it “goes to show the product is market ready for supply” to which Mr Cobley agreed it met the conditions for seizure. In respect to the UAE documents, Mr Lehane described the items to Mr Cobley and said “it goes to understanding regulatory requirements for the supply of products and may link with the supply of product for export”. He further added that the material “goes both ways”. He handed these items to Mr Cobley after placing them in evidence bags. He was not aware if Mr Cobley reviewed the material other than in the conversations he had with him.
45 Regarding whose decision it was to seize the physical items, Mr Lehane stated it was Mr Cobley’s decision, as the warrant holder. While he brought the items to Mr Cobley’s attention, and placed them in the evidence bags which he later sealed, Mr Lehane’s evidence was that it was Mr Cobley who made the final decision to seize.
46 Finally, Mr. Cobley, the warrant holder gave evidence.
47 He gave evidence that there were errors in the warrant affidavit and the warrant itself, however he was unaware of these errors until preparing for these proceedings and, as such, he did not alert the issuing magistrate to these errors.
48 Mr Cobley gave evidence that he did not turn his mind to whether the relevant legislation had changed during the period specified in the warrant. He gave inconsistent evidence on whether he turned his mind to whether the offences listed in the warrant were also civil penalty provisions. He stated that the recital in the third condition was a standard form within a template and he did not pay attention to whether it had a civil or criminal penalty. He then stated that he turned his mind to whether he formed the suspicion on reasonable grounds that the offences specified in the warrant had been committed, and that he did turn his mind to whether each of the offences listed could constitute a civil penalty.
49 Mr Cobley gave evidence that he believed that the third condition encompassed any document that was relevant to one of the offences specified in the warrant, and that this included circumstantial evidence. He admitted that in drafting the tactical briefing document he took into account evidence that might confirm or reject the allegations against Randlab.
50 In respect to the search terms Mr Cobley provided the ATO officers, he gave evidence that the terms “zoldronic and zoledronic acid” were intended to capture documents related to the offence of failing to comply with the notice to produce by way of redaction. He stated that the further evidence he needed for those offences were the un-redacted documents themselves. He also stated these terms would be relevant to the other offences listed in the warrant. He acknowledged that it would be hard to ascertain whether all documents containing these terms would meet the third condition of the warrant; he admitted they may or may not and that, without looking at the documents, it was difficult to make this judgment. He also contemplated that the first applicant had failed to comply with the notice by failing to produce all relevant documents, rather than merely by redacting the documents which were produced although this was not contained in the warrant affidavit or warrant (as Mr Cobley admitted).
51 He admitted that it was possible that a document with the term “APVMA” in it could be relevant to any of the five offences in the warrant, however that it could also capture material which did not meet the three conditions of the warrant, such as an industry publication referring to the APVMA.
52 When asked if he wished to obtain documents with a view to later work out whether or not they were relevant, he acknowledged that this was a consideration and that there are provisions in the Agvet Code which allow that to take place. I note, however, that there was no evidence that these provisions were relied on in the seizure of the material, and as such whether these provisions permitted the taking of the material is irrelevant. Rather, Mr Cobley stated it was his belief that it was sufficient for a document to contain a search term to fall within the three conditions of the warrant and that it was reasonable to have a look at the documents at a later stage, if required, to ascertain whether they were relevant.
53 Mr Cobley gave evidence that the task of the ATO officers was to search for items using the terms he provided them, and it was his responsibility to ensure that the documents met the three conditions of the warrant. His evidence as to when he viewed the electronic material obtained by the ATO officers is unclear. He was unable to say whether the material had already been transferred to the hard drive, or whether he was shown it prior to transfer while it was still on the computer. However, the only time that he looked at the material was when Ms Chung was operating the computer, and showing him the folders and some of the documents she had identified. Mr Cobley gave evidence that he understood that she had, at some point, collated both the documents that Mr Dixon had found with her own, and that he was unsure whether what he looked at contained the collated files. He stated that while he looked at a folder which contained a range of emails and did look at some of the titles of the emails, he did not look at the emails themselves while on the premises. He estimated that he looked at the titles of approximately 20 emails within the folder of 189 items. In respect to the invoices located by Ms Chung, he said he looked at some, and that he directed Ms Chung to exclude invoices relating to export. He did not view Mr Dixon carrying out the searches on the computer, however he believed that he may have viewed those documents as they had been collated by Ms Chung into the folders which she showed him.
54 Mr Cobley believed it was his decision, as the warrant holder, as to whether to seize the physical items. In relation to the box, he seized this as he thought it was potential circumstantial evidence of the commission of an offence. When asked whether he thought the box was used in the commission of the offence, he was uncertain. He stated it maybe was, however that the box was empty and so he could not tell if it had been supplied to anyone. He thought it was potential evidence of an intention to supply. He stated that he did look at the box to form a view about whether it had been used in the commission of an offence, although his evidence is slightly unclear on this point. He believed the box was relevant to a number of the offences in the warrant, being offences 3 to 5.
55 In respect to the UAE documents, he believed they were circumstantial evidence. When asked whether he thought it had been used in the commission of the offence, he stated he had not had the opportunity yet to review them, but his view at the time was that they met the three conditions. In respect to the third condition, he believed this was met as the documents contained a price list for wholesale and retail prices including for zoldronic acid and that this was in Australian dollars, which, it was said, went to supplying the product in Australia. However, he admitted that further analysis would need to be done on the documents, though he believed at the time this was sufficient to warrant the material being seized.
56 The notice to produce served on Randlab Australia Pty Ltd was in evidence. The documents sought under it included publishing materials in relation to zoldronic acid, a list of clients sent material that referenced zoldronic acid, documents which could be described as relating to the manufacture, possession and supply (within Australia) of zoldronic acid.
57 The witnesses were honest and credible. There was no real suggestion otherwise. However, as noted above, there were some inconsistencies and uncertainties in Mr Cobley’s evidence.
58 From the evidence I find that:
(1) Mr Cobley prepared the warrant affidavit and draft warrant to present to the issuing magistrate. There were a number of typographical errors in both documents, which were not noticed by him until after these proceedings were filed, and as such he did not inform the issuing magistrate of this.
(2) The recital in the third condition was in the template used by Mr Cobley in preparing the warrant, and Mr Cobley did not turn his mind to whether the offence provisions had changed during the time period specified in the offences in the third condition of the warrant.
(3) Mr Cobley understood the warrant authorised the search and seizure of material which included circumstantial evidence in proof of the nominated offences and he briefed the others involved in the search accordingly. He believed he was entitled to seize material which was both for and against the commission of an offence, or anything relevant to an offence. Mr Cobley considered that it was he who had to be satisfied that material seized satisfied the three conditions of the warrant.
(4) Mr Cobley chose the search terms to be used by the ATO officers when conducting the computer searches. Mr Cobley accepted that some documents which contained the search terms would fit within the three conditions of the warrant but others would not, and that it would be difficult to determine that question without looking at the documents themselves. The search words were chosen to identify the electronic material which Mr Cobley wanted to seize and later examine. While not referred to by other witnesses, I accept that at the premises Mr Cobley did look at some limited electronic material after it had been identified by the ATO officers as containing one of the search terms. Apart from looking at the subject line of about 20 emails, the contents of the electronic material seized was not considered by him.
(5) Given the unchallenged evidence of Ms Terides, and the evidence of the ATO officers, an examination by Mr Cobley of the electronic material did not in any way affect whether the material identified by the ATO officers was to be transferred to the hard drive by the ATO officers.
(6) The ATO officers believed they were entitled to operate the computers and did not form any state of mind as to whether the computers they operated contained evidential material for the purposes of the Agvet Code before operating them.
(7) Mr Cobley did not provide the ATO officers with a copy of the warrant to read at any time before or during the search. The ATO officers were not at any stage provided with a copy of the warrant. They were only provided with limited information about the nature of the offences to which the warrant related. The ATO officers did not form any state of mind as to whether the material they transferred constituted evidential material for the purposes of the Agvet Code.
(8) Although it was unclear who actually seized the two physical items, and when they were seized, prior to their removal from the premises both Mr Cobley and Mr Lehane were satisfied they fell within the terms of the warrant as circumstantial evidence of the listed offences.
59 These factual matters will be discussed, and where appropriate expanded as necessary, when considering the particular grounds for review.
60 At this stage, I note that although the witnesses gave evidence in relation to the search there was an absence of evidence on some topics. The following are examples which relate to matters which were in issue at the hearing. This is not to suggest that there was any onus on the respondent in relation to these aspects of evidence and the grounds alleged by the applicants, but rather an observation in light of the fact that the witnesses who executed the warrant gave evidence and were challenged in relation to their execution of the warrant: cf Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 (Caratti (No 2)) at [359].
61 First, while Mr. Cobley gave evidence of a conversation which occurred with Ms Terides who indicated two computers relevant in relation to zoldronic acid, he did not go the next step and give evidence that on that basis he had a reasonable suspicion that on each of those two computers there was or contained evidential material. The evidence led in relation to that conversation consisted of Mr Cobley describing Ms Terides as identifying the two computers as being “suitable to match the items listed within the warrant”. In Ms Terides’ affidavit read in the proceedings, she describes Mr Cobley as saying “we are here to search the premises for anything to do with zoldronic acid” and that later another officer, who is clearly Ms Chung, asked for access to the accounting records and Ms Terides helped her open that software “on the computer which we use for accounts”. Although arguably an inference as to the state of suspicion can be drawn from the identification of the computers and the fact that only those two were examined, no direct evidence was given on this topic. This is in the context where this evidence of the conversation between Mr Cobley and Ms Terides was led by the respondent specifically because the basis on which the computers were operated, and compliance with the statutory scheme governing the search powers of the APVMA, including the operation of electronic equipment on search premises, was in issue. Further, it is clear from this statutory scheme, which I discuss at [171] – [189] below, that the person who operated the computer needed to be satisfied there was evidential material within the terms of the warrant on the computer before operating the computer. Mr Cobley did not give any evidence that he had a reasonable suspicion that the computers contained things in respect to which an offence had been committed or suspected on reasonable grounds to have been committed. Nor did the ATO officers, acting under his direction, give evidence to this effect.
62 Second, the evidence of when the electronic material was transferred to hard drives, and when Mr Cobley viewed that material is unclear. Neither ATO officer gave evidence of any involvement of Mr Cobley in relation to the material they had identified before they transferred this material to the hard drives. There was evidence from Mr Cobley that each made notes of what they were doing and when, but those notes were not produced in evidence or relied on in any way. I draw no adverse inference about the fact this evidence was adduced in cross-examination of Mr Cobley. Mr Cobley could not say whether the material had been transferred to the hard drives before, or after, he looked at a limited amount of material as described above.
63 Third, there is no evidence that Mr Cobley, or the ATO officers, formed a reasonable suspicion that each of the items of electronic material constituted evidential material before the material was transferred to the hard drives and removed from the premises.
Consideration
64 Counsel for the applicants commenced his submission, both orally and in writing, with the opening passage from the first instance judgment of Wigney J in Caratti (No 2) at [1] where his Honour observed in relation to the three condition warrant before him:
The first feature is the issue and utilisation of so called “three condition” search warrants which define the object of the search in a broad, non-specific fashion. The warrants are often lengthy, overly complex and, regrettably, sometimes poorly drafted. The second feature is that the execution of the warrants is frequently, and unavoidably, carried out by teams of officers, many of whom have had little or no past involvement in the relevant investigation. The officers accordingly have little or no background knowledge or experience to assist them in the often complex and difficult task of executing the warrants. That frequently results in the execution of the warrants in a manner which is apt to create the perception, at least, that the officers do not really know what they should be searching for or seizing, and are instead simply seizing anything that looks even remotely like it might be relevant to the investigation. The third feature is that the execution of the warrants these days almost invariably involves the search and seizure of computer equipment and electronic data storage devices. That circumstances requires the executing officers, or forensic officers who are assisting them, to navigate the labyrinthine statutory provisions that deal with the search and seizure of such items.
65 The applicants contended that each of those features exist in the warrant issued and executed in this case.
66 I observe at the outset that in both the warrant affidavit, and the warrant issued, there are a number of errors said, at least in some instances, to be typographical errors. It was also accepted by the respondent that there was some infelicitous and confusing use of language in the warrant. It has resulted in a warrant where the recital in the third condition did not track the relevant statutory language in the Agvet Code. Moreover, it became apparent in the cross-examination of the deponent of the warrant affidavit that the wording of the recital in the third condition he used was from a pro-forma template and that he did not give any real consideration to it. While those features do not necessarily provide a basis for the relief ultimately sought by the applicants, they have provided the foundation that enabled the validity of the warrant to be challenged. Moreover, while mistakes happen, or infelicitous language is used, the number and type that occurred in this documentation is very troubling. The approach bespeaks a lack of attention to the task of obtaining the search warrant inconsistent with the care required, given that a warrant is a highly invasive process with fundamental rights being encroached upon. Unfortunately this approach was carried through in the execution of the warrant.
Ground 1: the second respondent misconstrued subsections (a) and (b) of the definition of evidential material in s 3 of the Agvet Code
67 The applicants submitted that the decision to issue the warrant involved an error of law and a jurisdictional error by virtue of the second respondent misconstruing subsections (a) and (b) of the definition of “evidential material” in s 3 of the Agvet Code.
68 The applicants argued that the recital in the third condition confined the evidential material to subsections (a) and (b) of the definition of evidential material in s 3 of the Agvet Code. It was argued that as some of the items in the first condition of the warrant included material that could never satisfy the definition of evidential material in subsections (a) and (b), it can be inferred that the magistrate misconstrued the definition of evidential material sufficient to vitiate the magistrate’s satisfaction. It follows, according to the applicants, that there has been an error of law constituting jurisdictional error.
69 The applicants contended that subsections (a) and (b), which contain the wording “with respect to which” an offence or contravention has been committed, are directed to things which are used in the commission of an offence or civil penalty contravention. The applicants submitted that subsection (c) of the definition is wider than (a) and (b) and picks up things which are relevant to the commission of an offence, rather than just those things used in the commission of an offence. It was submitted that subsections (a) and (b) cannot be read as being intended to pick up material that is relevant to an offence as that would make subsection (c) otiose and would violate the principle that "no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent": Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [71] per McHugh, Gummow, Kirby and Hayne JJ citing Griffiths CJ in The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414.
70 The respondent contended that the applicants’ argument depends upon two propositions, namely first, that as a matter of the construction of the warrant, the third condition limits the scope of the warrant to evidential material within the meaning of subsections (a) and (b) in s 3 of the Agvet Code, and second, as a matter of construction, those subsections refer only to “things” which are directly used or directly involved in the commission of the specified offences. The respondent contends that neither proposition should be accepted.
71 As to the first proposition, it is said that a fair reading of the warrant as a whole indicates that the warrant was not intended to be limited to only some aspects of the statutory definition of “evidential material”. The respondent relied on seven reasons in support of this proposition. First, the third condition does not expressly refer to the statutory definition of evidential material or any part of it. Nor, properly construed, does the language of that condition invoke the limitation suggested by the applicants. While the formulation in the third condition bears some similarities to subsections (a) and (b), some of the words are different (e.g. “in relation to”). Read in the context of the warrant as a whole, the third condition was not intended to exclude evidential material of the kind referred to in subsections (c) and (d) of the definition. Second, the words “in relation to” and “with respect to which”, which are used in the third condition, are of wide import. Third, there is no reason – indeed it would be nonsensical – for a magistrate to choose to limit a search warrant in the manner contended for by the applicants, so that it is not extended to the type of evidential material in (c): cf Beneficial Finance at [530]. Fourth, given the purpose of the third condition is to identify the suspected offences: Dunesky v Elder at 557, an overly technical approach ought not to be taken to the interpretation of the recital to that condition. Fifth, the warrant affidavit shows the recital should not be read in the limited way, but rather, shows that the purpose of the warrant was to provide or obtain evidence in relation to the contraventions listed in the warrant. Sixth, the difficulty in drawing the line in what could be seized on the applicants’ interpretation during the course of the execution of the warrant by officers who are not trained lawyers. Finally, having regard to the principles of construction of the need to avoid a perverse construction and the preference for a construction which will preserve validity.
72 As to the second proposition, the respondent submitted that subsections (a) and (b) of the definition ought not to be construed as limited to things used or involved in the commission of an offence, or contravention of a penalty provision. The words “used” or “involved” are not found in those subsections, instead the words “with respect to which” are used. This distinction appears to have been intended by the draftsperson given that subsection (d) contains the words “used for the purpose of committing such an offence …” such that, if subsection (a) were intended to be limited to things used for the purpose of an offence, then it would be expected that it would say “a thing used in the commission of an offence” because that is the language of (d). This suggests that subsections (a) and (b) are to be understood as a broader category of things than those used in the commission of an offence, or a contravention of a penalty provision.
73 Although this argument might be more relevant to grounds 3 and 7, the respondent also submitted that, even if the applicants were correct that the third condition of the warrant only intended to capture (a) and (b) of the definition, and as such the warrant was valid however narrowly construed, it does not follow that the material seized was outside the scope of the warrant. The respondent referred to certain aspects of things taken, such as the invoices, which it was submitted were directly involved with the offence of supply such that they would fit within (a) and (b). Another example, the emails, the respondent submitted could be so closely connected with the offence that they are a thing with respect to which the offence was committed – e.g. if the email was an agreement for the supply of zoldronic acid. In relation to the supply offence, the respondent submitted that boxes and containers with a particular name are so closely connected with the offending they would also fall within (a) and (b).
74 As noted above, the respondent contended that for the applicants to succeed they must establish two matters, first that the recital is reflective of subsections (a) and (b) and second, that subsections (a) and (b) have the meaning attributed to them by the applicants. It is correct that those two steps must be established for the applicants’ submission to succeed (although not necessarily in that order). There is, however, also a third step, which is that as a consequence of the above, an inference can be drawn that the magistrate misconstrued the definition of evidential material in issuing the warrant, thereby constituting an error of law and jurisdictional error.
75 As seen from above, there was a difference between the parties as to the meaning of the recital in the third condition, and the construction of s 3 of the Agvet Code.
76 This recital in the third condition cannot be considered in a vacuum. It appears in a warrant which is issued under the Agvet Code, a code which defines evidential material for the purposes of issuing an investigative warrant. The recital is in a condition in a warrant which must be satisfied before property is evidential material within the terms of the warrant, and accordingly able to be seized pursuant to the warrant. The warrant only authorises the search and seizure of the types of evidential material that satisfy the matters specified in the three conditions of the warrant.
77 This argument around the recital’s meaning is also in a context where the first and second conditions are in very broad terms, which necessarily results in the third condition, in practical terms, doing all the work defining the scope of the warrant: Caratti at [67].
78 Consequently, it is necessary to commence with a consideration of the statutory scheme, in particular the definition of evidential material.
The definition of evidential material
79 In relation to the statutory construction question, the parties accepted that evidential material falling within subsections (a) and (b) of the definition would necessarily also fall within (c), but that the converse did not occur. That is, evidential material in (c) may satisfy (a) and (b), but not necessarily so.
80 The parties also accepted that circumstantial evidence which affords proof of an offence could not satisfy subsections (a) and (b). The difference in construction turned on where the line was to be drawn between what satisfied subsections (a) and (b), and what did not. Both parties accepted this was a grey area with no bright line. So much may be accepted.
81 The interpretation of the statutory definition of evidential material must commence with a consideration of the relevant provisions. Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ. The construction of statutes which authorise the search of premises and seizure of items must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Caratti at [22], citing Hart at [64].
82 In support of their constructional argument that subsections (a) and (b) are, in effect, limited to things used in the commission of an offence, the applicants relied on Beneficial Finance, it being the only case the parties identified which addressed the meaning of a section equivalent to subsections (a) and (b).
83 In Beneficial Finance the warrant under consideration was issued pursuant to s 10 of the Crimes Act 1914 (Cth), which has a definition of evidential material in relevantly similar terms to that in s 3 of the Agvet Code. The warrant in that case was a three condition warrant with the recital in the third condition being phrased as follows:
there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences against laws of the Commonwealth and in respect to which there are reasonable grounds for suspecting that the following offences have been committed. [emphasis added]
84 The argument in that case as to the meaning of the recital turned on the word “and”, and whether it was to be read conjunctively or disjunctively.
85 Burchett J (with whom Sheppard J agreed), concluded at 530:
The effect of that single word, having regard to the provision at the beginning of the warrant that the things to which it relates satisfy all of the three conditions expressed in it, is that, upon a literal reading, it attaches a further condition to be satisfied by anything which would otherwise fall within the authorisation conferred under s 10(1)(b). This is, of course, nonsensical; the statute by pars (a) and (b) provides alternatives, and there is no conceivable reason why the justice should have intended to exclude evidence of the commission of an offence unless it happened to be constituted by something with respect to which the offence was suspected to have been committed. Nor did he, when he repeated the authorisation to seize evidence in those concluding portions of the warrant which I have quoted. In the context, I cannot doubt that the warrant provides a clear instance where the word "and" is used disjunctively.
86 As to the meaning of the two aspects of evidential material, he continued at 531:
That faultiness of expression was contributed to by the special nature of the alternative. For things falling within the alternative would, inevitably, remain also evidence as to the commission of the offence in question. They might, for example, be income tax returns containing fraudulent statements. So, upon analysis, the only sensible meaning to be attributed to the word "and" is that of a kind of hybrid of conjunctive and disjunctive, equivalent to "or as well", conveying that all the things in question are believed to afford evidence and some of them are also things with respect to which the offence was committed. This is confirmed by the unalloyed reference to s 10(1)(b) at the end of the warrant.
87 Pincus J, while disagreeing with the meaning to be given to the word “and”, nonetheless addressed the meaning of the two alternative aspects of evidential material in the same terms. In support of his construction of the word “and’, his Honour also referred to the tax offence example, where an accurate set of accounts may afford evidence as to the commission of an offence but not be a document in respect to which an offence, for example, lodgement of a false tax return, has been committed. Pincus J concluded, at 526, that:
It is certainly an odd proceeding to confine the search and seizure to documents which fall into both categories [documents which both afford evidence of the commission of the offence, and documents in respect to which an offence has been committed], but I think a court should be slow to read the rather plain word “and” in a special sense, so as to expand the scope of the search warrant.
88 It is this analysis of the provisions and the tax example given which the applicants contend supports their construction of the warrant, and the meaning of (a) and (b) of the definition of evidential material.
89 The respondent also relied on this case in support of their argument, relying on the passage quoted at [85] above in which Burchett J concluded that it would be nonsensical for the magistrate to exclude material which may afford evidence of the commission of the offence, if the statutory definition permitted it.
90 Two observations may be made of the passages relied on in Beneficial Finance.
91 First, unlike this case, the recital to the third condition in the warrant in Beneficial Finance expressly provided for material which afforded evidence of an offence and in respect to which an offence has been committed. Having authorised the wider definition of evidential material, it was said to be nonsensical to then limit or confine that to material “in respect to which there are reasonable grounds for suspecting that the following offences have been committed”. That is very different to this case where there is no express reference to that aspect of the definition which affords evidence as to the commission of an offence.
92 Second, the example given in Beneficial Finance of the tax return offence does not sit as comfortably with the offences nominated in the third condition in this warrant. For example, the second nominated offence is that of carrying out a step in the manufacture of a prohibited chemical contrary to s 121 of the Agvet Code. The definition of “manufacture” in s 3 includes “to engage in any part of the process of producing the chemical product, or any component or ingredient of the chemical product as part of that process, or of bringing the chemical product to its final state, including by formulating, processing, assembling, packaging, labelling, storing, sterilising, testing, supplying or releasing for supply”. Given the breadth of that definition, it is difficult to identify what would constitute a thing with respect to which this offence, the carrying out of a step in the manufacture of a prohibited chemical, had been committed. I will return to this later in the reasons after considering the terms of the recital. Nonetheless, the distinction behind the tax return example is a valid one. Things with respect to which an offence has been committed focuses on the commission of the offence itself and relates to those things directly involved in the commission of the offence. Things of which there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence is directed to evidence which may go to proving the offence and is necessarily broader.
93 While there appears to have only been limited judicial consideration of the equivalent to subsections (a) and (b), there has been consideration of the phrase in subsection (c). It has been held that a thing will satisfy the description in (an equivalent to) (c) “if there are reasonable grounds for believing that it will assist directly or indirectly in disclosing that an offence has been committed or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters”: George v Rockett at 119-120.
94 The interpretation placed on subsections (a) and (b) by the respondent is unclear, although, as noted above, it appears to have been accepted by both parties that those subsections would not capture material which was only circumstantial evidence of the commission of a nominated offence. Material of that nature would fall with subsection (c). However, what is clear is that subsection (c) is an alternative to (a) and (b), and it encompasses material broader than subsections (a) and (b): Beneficial Finance at 530, 531.
95 Moreover, each subsection in the definition of evidential material is focused on a different aspect of evidential material. The respondent’s submission, that the principle of statutory construction that all words (and clauses) in the statute are intended to have meaning has limited application in this case because material captured by subsection (c) would necessarily encompass that in (a) and (b), is misplaced and does not assist in establishing the construction it contends for. Consistent with the fact that a warrant represents an intrusion into the recipient’s privacy, the statutory definition provides the capacity for a warrant to be confined to the types of evidential material that might be sought in each particular case.
96 Given the presence of subsection (c) in the definition and the breadth of its meaning, subsections (a) and (b) must necessarily be more confined. The applicants variously submitted that the words “with respect to which” that appear in those subsections should be taken to mean “used in” the offence, “used in, or in relation to, an offence” and “things which are (or are suspected to be) themselves instruments of an offence”. The respondent took issue with those descriptions, arguing that if it was intended for (a) and (b) to be limited to things used in the commission of the offence, one would expect those words to be used. I am mindful of the dangers of using language which is not the language of the statute, or of putting a gloss on the statutory language, as it is the language of the statute which must be applied.
97 In that context, the meaning attributed to the equivalent of (a) and (b) by the Court in Beneficial Finance, as highlighted by the example given in that case, is a valid one. In that example, where the lodgement of the false tax return was the offence, the false tax return was considered to be the thing used to commit the offence (thereby falling into the equivalent of subsections (a) and (b)), and the accurate set of accounts was considered as evidence as to the commission of the offence (thereby falling into the equivalent of subsection (c), but not (a) and (b) as it had not been used in the offence): Beneficial Finance at 526 per Pincus J. While this reasoning is only explicitly spelt out in the judgment of Pincus J, the reference to the income tax returns by Burchett J is consistent with that reasoning. Burchett J considered the tax returns containing the false statement would fall within both a thing used to commit the offence and evidence as to the commission of the offence: Beneficial Finance at 531. Having given that example, Burchett J concluded that the word “and” in the warrant there under consideration should be interpreted as “a kind of hybrid of conjunctive and disjunctive” on the basis that all things may afford evidence and some may also be things in respect to which an offence was committed.
98 Beneficial Finance considered relevantly similar provisions as the definition of “evidential material” in s 3 of the Agvet Code. The respondent did not suggest that Beneficial Finance was incorrect. Rather, it was contended that while the Court in that case was exploring the difference of meaning between the types of evidential material in the equivalents to (a) and (b) on the one hand, and (c) on the other, by reference to the fraudulent tax statement example, the reasoning of the Court was not exhaustive as to the limits of the meaning of the provisions in question. The reasoning in Beneficial Finance is valid and is equally applicable to the provisions in the Agvet Code. However, factually where the line would be drawn as to what would satisfy subsections (a) and (b) in relation to the offences in this case, is a grey area.
The recital in the third condition
99 As noted above, the applicants contended that the recital, properly read, only captures evidential material within subsections (a) and (b) of the definition and does not include material affording evidence of an offence (i.e. subsection (c)). The respondent contended that a fair reading of the warrant as a whole reflects that it, by virtue of the recital in the third condition, is not limited to only some aspects of the statutory definition of “evidential material”. For the following reasons, the applicants’ submission should be accepted.
100 First, the recital does not refer to “evidence” or “material affording evidence”. Subsection (c) of the definition of evidential material addresses “a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence” as a separate category of material from a “thing with respect to which” an offence against an agvet law has been committed, or an agvet penalty provision has been contravened, or is suspected on reasonable grounds to have been committed or contravened, contained in subsections (a) and (b). In that context, if the warrant was intended to encompass material which afforded evidence of the commission of an offence, it would be expected to state as such.
101 Second, the language in the recital, while not identical to that in subsections (a) and (b), is relevantly similar. So much is apparent if the recital is juxtaposed with subsection (a). The recital contains the words “[a]nd with respect to which the following offence/s against the Agricultural and Veterinary Chemicals Code or the regulations, in relation to a contravention of a civil penalty or relation to both, has been committed/is suspected on reasonable grounds to have been committed”. Subsection (a) is “a thing with respect to which an offence against an agvet law has been committed or is suspected, on reasonable grounds, to have been committed”. Subsection (b) is in the same terms but relates to an agvet penalty provision.
102 The phrase “in relation to” in the recital that appears before the civil penalty reference and the phrase “relation to both” are not words which appear in subsections (a) or (b). The respondent submitted that it can be inferred from the use of those phrases that the recital was not intended to be tied to subsections (a) and (b) only. However, that submission does not address the meaning of “in relation to” and, in particular, the absence of the words “there are reasonable grounds for suspecting will afford evidence” in the recital in the third condition.
103 There is no basis to suggest that the choice of those phrases “in relation to” and “relation to both”, which appears to relate to civil penalty provisions, was a deliberate choice made by the drafter intended to encompass material affording evidence as to the commission of an offence or civil penalty contravention, or to circumstantial evidence. The respondent’s argument involves the wording in the recital relevantly following subsections (a) and (b), but choosing a different description to that contained in the definition, “in relation to”, to encompass subsection (c). Or, to put it another way, the absence of the phrase “reasonable grounds for suspecting will afford evidence” is in the context where the choice of wording used, “with respect to which the following offence/s…have been committed” largely accords with the language of subsections (a) and (b). Moreover, if the recital was intended to encompass a thing that there were reasonable grounds for suspecting will afford evidence as to the commission of an offence, there is no reason to include the more limited wording of “with respect to which the following offence/s …have been committed”. Indeed, it would be counter-productive to do so: cf Beneficial Finance at 530.
104 Third, the respondent’s interpretation of the recital is dependent on, or at least accepts, that the phrases “with respect to” and “in relation to” used in the recital having the same wide meaning as each other. While it may be accepted, as the respondent contends, that the phrases “with respect to” and “in relation to” are phrases of wide import, that is not always so. Those phrases are ambulatory and may be designed to cover a variety of subjects and relationships between those subjects: The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at [31] per French CJ. As Davies J in Hatfield v Health Insurance Commission [1987] FCA 286; (1987) 15 FCR 487 at 491 observed:
Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’ are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute...The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.
105 The respondent’s submission as to the meaning of those phrases faces fundamental problems. While the respondent contends that the ordinary meaning of “with respect to” and “in relation to” should be applied, it accepts that the ordinary meaning of those phrases is wider than “afford evidence of the commission of an offence”. Consequently, the respondent submits that the phrases “with respect to” and “in relation to” are limited by the definition of evidential material in the Agvet Code which is referred to at the introduction to the first condition of the warrant, because if it were otherwise, the warrant would be beyond power. That submission accepts that the ordinary wide meaning of the phrases would authorise seizure of material which does not fall within the statutory definition of evidential material.
106 In practical terms the respondent’s submission is that “in relation to” must, in effect, be read as “there are reasonable grounds for suspecting will afford evidence as to the commission of”. However, the submission that the phrase is to be read down in that manner because “evidential material” is referred to in the warrant is inconsistent with the nature of a three condition warrant. A three condition warrant defines evidential material as that which satisfies the three conditions specified in that warrant. As the warrant here states, the magistrate was satisfied “that there are reasonable grounds for suspecting that there is at premises…evidential material which satisfies all …three conditions”. The investigation powers that an inspector may then relevantly exercise under a warrant are to search the premises for the kind of evidential material specified in the warrant, and the power to seize such material: s 132A(1)(b) of the Agvet Code.
107 Moreover, the phrase “with respect to” appears in subsections (a) and (b) of the definition. The meaning of that phrase is subject to the context in which it is used. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ. As observed above, the respondent accepted that subsection (c) is broader than (a) and (b). Therefore, it must follow that the respondent’s submission is that the phrase “with respect to” has a different, and broader meaning in the recital than it does in the statutory definition. There is no reason why the phrase should be interpreted in that way. If “with respect to” has the narrower meaning reflecting the relevant part of the definition, there is no basis to suggest that “in relation to” was a deliberate choice made by the drafter, intending to encompass subsection (c).
108 To read the phrase “in relation to” or “with respect to” as meaning “reasonable grounds for suspecting will afford evidence as to the commission of an offence” would be to give a meaning to those words which they do not have.
109 Given that the wording in the recital is reflective of subsections (a) and (b), it is to be inferred that the issuing magistrate had those sections in mind: cf Beneficial Finance at 530. Given the terms of the recital, and the absence of a reference to the language of subsection (c), there is no proper basis to infer that the magistrate also had subsection (c) in mind.
110 Finally, the textual arguments relied on by the respondent do not lead to a reading of the recital which is contrary to that conclusion.
111 In so far as the respondent relied on clause 6(a) of the warrant affidavit to support the submission that the recital in the third condition was intended to be broader than (a) and (b), the meaning and relevance of that clause is unclear. The aspect of the clause (which is recited below at [161]) on which the respondent relies is the phrase “will provide evidence”. However, whatever may have been inferred from the warrant affidavit as to the deponent’s state of mind, the submission does not address or overcome the drafting of the warrant and the ordinary meaning of the third condition.
112 As noted above, the respondent also argued, relying on Dunesky v Elder, that as the purpose of the third condition is to identify the suspected offences, an overly technical approach ought not to be taken to the interpretation of the recital in that condition. However, that submission ignores the significance of the recital in the third condition and the circumstances of this case. The Court’s comments in Dunesky v Elder about the real object of the third condition are made in the context where the recital in that condition (unlike this case) did not depart from the statutory provisions: Dunesky v Elder at 557.
113 In Corbett, Callinan and Crennan JJ observed at [104] (citations omitted):
Obviously each statutory requirement or condition needs to be construed on its own terms and by reference to the statute in which it is to be found. However, common requirements for "reasonable grounds for believing" (or suspecting) imposed on an applicant (as here under s 5(1)(b)), or upon an issuing justice (as in Rockett or Beneficial Finance) have a common derivation. The concern of the common law courts to avoid general warrants and to strictly confine any exception to the principle that a person's home was inviolable is the original source of common, although differently expressed, statutory requirements. These requirements have as their purpose the proper identification of the object of a search by reference to a particular offence. This in turn limits the scope of the search authorised by the search warrant. As stated in the judgment of this Court in Rockett:
"[T]he description of the object of the search is a reference point for delimiting the scope of the warrant ... [T]he requirement of 'reasonable grounds for believing' ... performs the important function of preventing the authority to search and seize which a warrant confers from being worded in unjustifiably wide terms."
114 While the Court was considering the sufficiency of the identification of the offence, those comments are equally apt in this case. Once it is accepted, as it must be, that the recital in the third condition could confine the evidential material to any one or more of the categories within the statutory definition, its function must be to identify the object of the search. If that is so, its significance cannot be minimised.
115 The respondent called in aid the principles of construction of the need to avoid a perverse construction, and a construction which would preserve the validity of the warrant is to be preferred. There is no doubt that a warrant should be read fairly and not perversely, and that the language used need not be elegant: Different Solutions Pty Limited v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686; (2008) 190 A Crim R 265 (Different Solutions) at [108]; Beneficial Finance at 546. However, the respondent accepted that the recital could be construed in more than one way. If the recital was limited to subsections (a) and (b), the warrant would not be invalid on that account alone. The result might have been unintentional on the part of the investigating officer, but a plea to read a warrant beneficially does not permit what is, in effect, reading in words to the recital in order to encompass an aspect of the statutory definition which had not been included. The absence of the relevant words cannot properly be described as some technical flaw in the warrant. Nor can the third condition be read more broadly simply because it would make it easier to execute. Further, the fact that the third condition of a warrant might more typically refer to the wider definition of evidential material does not provide a proper basis to interpret the warrant in this case in that manner.
116 Having concluded that properly read the recital does not include material which there are “reasonable grounds for suspecting will afford evidence as to the commission of an offence”, the issue raised on the applicants’ submission is whether the issuing magistrate fell into jurisdictional error by misconstruing the definition of evidential material.
117 The only basis for this submission put forward by the applicants, is an inference being drawn from the items in the last three bullet points in the first condition. It is submitted that those items could not fall within subsections (a) and (b) of the definition properly construed. However, as observed above at [92], what may constitute a thing with respect to which an offence is committed given the offences specified in the third condition, is unclear. To take just one example, one item listed in the last dot point is “instructions pertaining to manufacture” which was said in the applicants’ written submissions as being unable to satisfy (a) or (b). However, in oral submissions the applicants accepted there were arguments both ways as to whether obtaining instructions to manufacture would constitute a step in the manufacture. If that is the case, then the instructions could arguably be a thing with respect to which an offence is committed. Given the breadth of the definition of manufacture, a number of the types of documents referred to in those dot points relied on by the applicants are arguably capable of falling within subsections (a) or (b) of the definition.
118 I observe that in Caratti the Full Court criticised the framing of the first two conditions in the search warrant in question, stating that a “shopping list” approach had been taken with the purpose of casting as wide a net as possible, not confined to things that will necessarily afford evidence of the commission of the suspected offences, as was the terms of the third condition of the warrant in that case: Caratti at [67]. This left all the work of confining the warrant to the third condition: Caratti at [67]. The Full Court highlighted the risks of this approach, including rendering the warrant more vulnerable to challenge: Caratti at [68].
119 The breadth of the first condition is not, unfortunately, unusual. It may reflect no more than adopting an undisciplined approach: cf Caratti at [52]. Given the grey area in this case as to what material would satisfy the third condition on a narrow construction, in all the circumstances, I am not satisfied that the applicants have established that the second respondent misconstrued the law such as to vitiate the relevant state of satisfaction.
120 The applicants have not established that the warrant is invalid on the basis that the magistrate misconstrued subsections (a) and (b), although the third condition of the warrant is narrower than that contended for by the respondent: Beneficial Finance at 526.
121 Although this conclusion is consistent with the respondent’s alternative argument, that the warrant was valid but narrower than originally contended for, neither party addressed what, if any, effect that finding would have on the remaining grounds of appeal.
Ground 2: the second respondent misconstrued s 132B(1)(b) of the Agvet Code
122 This ground refers to two dot points in a paragraph of the warrant which lists the acts which the warrant authorises the warrant holder or a person assisting, to do in its execution. They relate to the search and seizure of electronic material. It is submitted by the applicants that the two points do not comply with s 132B, primarily because they do not contain the limitations on the exercise of the power specified in the Agvet Code.
123 There is no requirement in the Agvet Code for a warrant, in its description of the authorisations given to the relevant inspector(s), to include each of the statutory conditions on which the exercise of any particular authorisation is to be based: s 143A(4). As the respondent submits, the two dot-points must be read together, with the first authorising the operation of electronic equipment on the premises referred to in accordance with s 132B(1) and (2). That provision necessarily includes the relevant limitations on the powers. To do otherwise would be to read the warrant in an unnecessarily technical manner: Caratti at [34]
124 In any event, when executing the warrant, the officers were bound by s 132B of the Agvet Code.
125 The warrant is not invalid on this basis.
Ground 3: the description of the offences in the third condition was insufficiently particular
126 The applicants rely on a number of aspects of the offence descriptions in the third condition to make good this ground. While this ground relates to the third condition of the warrant, the applicants’ argument was broader and extended to other aspects of the warrant.
127 In summary, it is contended that the first and second conditions are impermissibly wide. In the first condition, key parts of the condition applied to documents “relating to” one or more subject matters. The second condition required only that things found “relate to” any of the items listed in that condition. There is also no assistance given to the reader as to who the people identified in the second condition were or when a document might relate to them. In relation to the third condition, the offences listed were all qualified by the recital which the applicants contend was insufficient in a number of ways: the words “in relation to a contravention of a civil penalty, or relation to both”, it was submitted, were almost entirely meaningless; the words “has been committed/is suspected on reasonable grounds to have been committed” which the applicants argued seemed to qualify all the words before it in the recital, it was submitted were also “largely meaningless”. It was further submitted that the words “is suspected on reasonable grounds to have been committed” did not identify whose suspicion was relevant: the executing officer, the issuing officer, the applicant for the warrant? Nor did the warrant identify what it meant for a thing to be “with respect to which” an offence was committed or was suspected to have been committed. The second to fifth offences covered a time period of almost 14 years. The second offence referred to the carrying out of "a" step in the manufacture of zoldronic acid, but did not identify what that step was and whether it had been carried out only once. The third and fourth offences referred to "one or more mixtures of substances" without identifying in any way what those mixtures were.
128 The respondent challenged those contentions, primarily arguing that sufficient detail was provided in the warrant, particularly in the third condition, to allow the person executing the warrant to determine whether the items seized fell within the terms of the warrant, and to provide sufficient notice to the occupiers of the premises. It was contended that the warrant will not be invalid simply because of a failure to identify every specific aspect of the alleged offending as s 143A(4)(a) relevantly required only that the warrant state the offence or offences, or civil penalty provisions, to which the warrant related. It was argued that as the investigation was ongoing, the requirements for obtaining a warrant should not be construed so that, in effect, the APVMA would be required to articulate a complete understanding of the facts and circumstances underlying a particular offence or contravention. The respondent submitted that although the language used in the recital in the third condition is not perfect, there is no real ambiguity and that regard must be had to the purpose of the recital, which is to set out the offences. The respondent made reference to the principle that a warrant is for investigative purposes at an investigative stage and that it is not always possible to know, at that stage, when certain acts and steps were carried out. In respect of the applicants’ complaint about the absence of particularisation of the types of substances referred to in the third and fourth offences, it was submitted that the APVMA may not necessarily have been in a position to know what the substances were and that there was sufficient detail included in the offence description – being that the substances had to have a label with “zoldronic acid” on it – that meant the offence was not insufficiently particularised.
129 The principles relevant to assessing the sufficiency of the description of the offences on the face of the warrant are summarised above at [21].
130 As noted above, this ground relates to the third condition. While criticisms may properly be made of the language used in the third condition, the offence descriptions that appear there disclosed the nature and substance of the suspected offences such that the warrant is not insufficiently particular.
131 The applicants are correct that there have been some amendments to the legislation during the period covered by the nominated offences. However, those amendments have not affected the nature and substance of the provisions. The nominated offences as drafted reflect the substance of the suspected offences. In Corbett the High Court concluded that an incorrect reference to the legislation in a search warrant said to create the offence did not detract from the statement of the nature of the offence or render the object of the search unintelligible. While factually not on all fours, the reasoning is nonetheless apposite. Similar reasoning was applied in Parker v Churchill (1985) 9 FCR 316 at 320 in relation to the wrong citation of the offence provision. In each instance the warrant sufficiently set out the terms of the offence (see also: Different Solutions at [104]).
132 Contrary to the applicants’ contention, it was not necessary, when considering the offences as specified in the third condition of the warrant, for those offences to provide specificity of detail such as, what step of manufacturing was undertaken, was it just once, was it a continuing offence, what substance or mixtures were possessed, who were the substances supplied to, what substances were supplied and what notice was published.
133 One of the applicants’ main complaints about the warrant in respect to this ground relates to the date range for the offending included in the description of the offences. It was submitted that this date range – 24 June 2005 to 20 March 2019 – was too wide. The respondent contends that it is not ambiguous or impermissibly broad for a warrant to set out a wide period of offending, having regard to the fact that the warrant is for investigative purposes. The respondent also submits that when having regard to the other factors in the warrant, the broad time range does not make the warrant invalid, as sufficient detail is provided in the third condition in the offences specified. The respondent is correct.
134 The applicants have not established that the warrant is invalid on this basis (and see [146]-[148] below).
Ground 4: there was no evidence or material before the second respondent sufficient to justify the issue of the warrant
135 The applicants contended that on the evidence before the issuing officer, which was contained in the warrant affidavit, it was not open to the issuing officer to form a view that the identified offences had been committed and, accordingly, that there was evidential material in relation to those offences on the relevant premises. In oral submissions, the applicants more accurately submitted that the relevant state of satisfaction is whether there were reasonable grounds to suspect that there was evidential material at the premises.
136 The respondent contended that the issuing officer is not required to form a view that the offences had been committed. The respondent contended that, in any case, the warrant affidavit set out the basis upon which a reasonable suspicion justifying the issuing of a warrant could be formed. It was submitted that although there were some typographical errors in the warrant, these were not material errors conducive to any real ambiguity as to the scope of the search and as such could not invalidate the warrant: Ramsay v Menso [2018] FCAFC 55 at [44]-[45]; R v Sorensen [2013] WASC 135; (2013) 240 A Crim R 297 at [43].
137 The applicants contended that the relevant state of mind required to be formed by the issuing officer was satisfaction that there were reasonable grounds to suspect that there were things at the premises with respect to which the offences specified in the warrant had been committed or were suspected on reasonable grounds to have been committed, citing Caratti (No 2) at [173], George v Rockett and Williams v Keelty in support. This submission should be accepted.
138 As such, the issue is whether the information before the issuing magistrate was capable of satisfying him that there were reasonable grounds for suspecting that there was or would be evidential material at the premises to which the warrants related. That is, evidential material comprised of things described in the first and second conditions to the warrant and that these were things with respect to which the offences in the third condition had been committed or were suspected on reasonable grounds to have been committed.
139 The relevant legal principles are well established. An applicant bears the onus of proving that the information before the issuing officer was not capable of establishing reasonable grounds for entertaining the relevant suspicion: Williams v Keelty at [236]. It has been described as a “difficult and exacting task”: Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. The applicant must establish that there was an absence of “foundational facts” from which the issuing officer might have had the relevant suspicion: Williams v Keelty at [168]. An issuing officer’s finding that there were “reasonable grounds” for entertaining the relevant suspicion is only impeachable if the finding was one which could not lawfully be reached on the information before the issuing officer: Williams v Keelty at [166], [172].
140 A suspicion in this context is a “state of conjecture or surmise” or a “slight opinion without sufficient evidence”: George v Rockett at 115 citing Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303 per Kitto J. The issuing officer need not entertain the relevant suspicion; rather, it is only necessary for the issuing officer to be satisfied that there are reasonable grounds for entertaining the suspicion: Williams v Keelty at [167]. This imports an objective test, although such a decision invariably involves a value or normative judgment about which there may be legitimate differences of opinion: Williams v Keelty at [166]. A court is not entitled to substitute its own opinion on whether there were reasonable grounds for the opinion of the issuing officer: Williams v Keelty at [166]. Further, it is established that an “issuing officer could properly form the view that there are reasonable grounds to suspect the commission of an offence on the basis of materials falling well short of a prima facie case”: Williams v Keelty at [172].
141 The offences nominated in the third condition are in two categories, the first offence, and offences two to five. The factual considerations are relevantly different.
142 In relation to the first offence, the applicants argue that there is nothing in the warrant affidavit to satisfy the issuing officer that there were reasonable grounds to suspect there would be evidential material as described in the warrant on the premises. The applicants submit that this offence is akin to the tax fraud example given in Beneficial Finance. The respondent did not specifically address that submission.
143 The applicants’ submission should be accepted. The first offence is a failure to comply with a notice to produce contrary to s 130B of the Agvet Code, where the offending conduct alleged is that the response to the notice to produce contained redactions in relation to the names and addresses of clients supplied with zoldronic acid. The chronology of events in the affidavit simply describes that fact of the notice to produce and that Randlab refused to provide the client list based on the basis of privacy concerns and all emails supplied were found to have had the client details removed. Given the nature of the offence, the warrant affidavit does not contain any information to support a reasonable suspicion that there would be on the premises any things with respect to which the offence had been committed that the respondent did not already have, being the redacted response to the notice. Although it was suggested by Mr Cobley in cross-examination that he had contemplated that the offence of failing to produce may have been constituted by failing to produce all relevant documents to the notice (rather than just producing redacted documents) that was not the offence alleged in the third condition before the issuing magistrate. As such, the applicants contend that there was insufficient evidence before the issuing magistrate to allow him to form the necessary state of satisfaction in relation to the first offence.
144 In relation to offences two to five, in summary, the applicants’ contention complains that there was no material at all relating to the period between 2005 and 2015; that there was no evidence that Randlab Australia was currently under investigation by APVMA; that the warrant affidavit misidentified the company whose premises were relevant: it referred to Randlab Pty Ltd, rather than Randlab Australia Pty Ltd; that the warrant affidavit gave no information about most of the terms in the second condition and there was no evidence that Randlab Australia Pty Ltd had ever taken a step in the manufacture of a product at the premises (or anywhere). The applicants submit that, cumulatively, these deficiencies identified in the information before the issuing magistrate were such that the relevant state of satisfaction could not be formed.
145 The applicants pointed to a number of factors that, it was contended, support the submission that there was an absence of necessary foundational facts to justify the issue of the warrant. Whether there was an absence of foundational facts requires, inter alia, consideration of the nature of the offences nominated in the third condition.
146 First, as the applicants contend, the width of the date range is extremely broad. However, that does not necessarily mean that there is insufficient evidence to form the relevant suspicion. Contrary to the applicants’ contention, simply because the between dates commence with the date of incorporation in 2005, it is not necessary for the issuing magistrate to be satisfied that an offence occurred in 2005. The dates are between dates. In some senses, the drafting reflects no more than the earliest possible date and the latest possible date on which the offending could have occurred. The applicants complain that the warrant attested to conduct from 2015. In any event, given the evidence in the warrant affidavit it was open to the issuing magistrate to be satisfied that there were reasonable grounds to suspect that the conduct could have commenced before that date. More importantly, it was unnecessary for the issuing magistrate to be satisfied that the offending occurred throughout that period.
147 It is recognised that as a warrant is at the investigatory stage it may be difficult to identify when the relevant conduct occurred or is suspected of having occurred: cf Caratti (No 2) at [184]; Beneficial Finance at 533. Moreover, the nature of some of the nominated offences are such that they are likely to be continuing offences or involve a course of conduct which may span over a period of time.
148 The applicants raised another issue based on the breadth of the date range, which is that the relevant offence provisions changed during the period, and that the civil liability provisions did not exist until 2014. The offences referred to in the third condition of the warrant are references to the current legislative provisions. Both propositions are correct. It was suggested that the magistrate ought to have been informed of the changes. There was no submission that suggested that the changes in the offence provisions were significantly material. Nor, given the nature of the amendments, could they be. As the third condition included criminal offences, the fact that the civil penalty provisions did not exist until 2014 does not affect the issuing magistrate’s ability to be relevantly satisfied in relation to the time period as stated in the warrant. Moreover, the offences still existed, and the nature of the allegations were such that the offences remained, in substance, the same throughout. There was no suggestion made by the parties otherwise.
149 Second, the applicants’ complaint that there is no evidence of a step in the manufacture and therefore the second offence, must be considered in the context of the definition of “manufacture”. This definition relevantly includes supplying, or releasing for supply, of which it is not contended there was no foundational basis and for which the respondent contends there is adequate evidence. As the respondent submits, the argument that such an offence would be duplicitous with the supply offence, does not apply. Duplicity does not apply to search warrants: Williams v Keelty at [142]; Caratti (No 2) at [117].
150 Third, the suggestion that the issuing magistrate could not be satisfied that there was an investigation on foot about the company to which the warrant was directed focusses attention on reading the affidavit as a whole. The evidence was that the reference to Randlab Pty Ltd trading as Randlab Australia and not Randlab Australia Pty Ltd trading as Randlab Australia was a typographical error. As the applicants correctly point out there is no evidence that the magistrate was aware of this. However, that is the obvious inference to be drawn from a reading of the affidavit. Also the warrant, when read as a whole, supports the obvious inference that the investigation was into Randlab Australia Pty Ltd as all the nominated offences relate to their conduct.
151 There were other errors in the warrant relied on by the applicants. For example, in the third and fourth offence in the warrant there is the phrase “Zoldronic Act” instead of “Zoldronic Acid”. Two points can be made about that. First, in the warrant affidavit those offences refer to “Zoldronic Acid”, not “Act”. Second, it would have been patently obvious to the issuing magistrate that this was a typographical error. This is the case even though the fact this was a typographical error was not before the issuing magistrate and instead was the subject of evidence by Mr Cobley in these proceedings, and therefore is irrelevant to the question whether he could be relevantly satisfied on the warrant affidavit before him.
152 Fourth, the applicants contend that the warrant affidavit is scant on details of the investigation and that all it does is list a series of chronological events, but does not draw them together. I am conscious of the observations of the High Court in George v Rockett at 117 referred to by Wigney J in Caratti (No 2) that:
It may readily be accepted that the more broadly that a warrant describes the kinds of evidential material to be searched for (including the description of the offences), the more difficult it may be for the information before the issuing officer to satisfy this requirement: George v Rockett at 117.
153 Nonetheless, there is evidence in the warrant affidavit that Randlab Australia Pty Ltd (trading as Randlab Australia) advertised and sold veterinary products to the public, held an export licence, and made an application for a manufacturing license but then withdrew it. Randlab Australia was found to be supplying unregistered veterinary chemical products in Australia while only holding an export license for those products. A number of stop supply notices had been issued to Randlab Australia Pty Ltd requiring it to stop supplying listed products other than in accordance with their export permit. On 30 October 2018, Randlab Australia Pty Ltd was issued a notice to produce in relation to the advertising and supply of “Zoldronic Acid for Horses” product. The response to the notice to produce refused to provide the client list and all such details were removed from the invoices produced. On 15 March 2019, the APVMA database confirmed that the Randlab product of “Zoldronic Acid for Horses” remains unregistered in Australia, and Randlab continued to promote this product for sale on a website that states that the product is not registered, but supplied under an APVMA permit. Randlab Australia Pty Ltd does not have such a permit. Randlab advertised “Zoldronic Acid Bisphosphonate Injection for Horses” on the internet on 12 October 2018. A Randlab 2018 published PDF, which was accessible on its website, advertises the product for sale in Australia.
154 Taking into account the above, there was sufficient evidence for the issuing magistrate to be satisfied that there were reasonable grounds for suspecting that at the relevant premises there was evidential material in relation to offences two to five5 which satisfied all three conditions.
155 In light of my finding in relation to the first offence, the remaining issue in relation to this ground is whether the first offence can be validly severed from the rest of the warrant in order to preserve its validity.
156 The principles regarding severance are well established. Whether severance can take place will depend on whether the invalid part of the search warrant can be separated from the valid parts remaining: Caratti at [46]-[47]; Parker v Churchill (1986) 9 FCR 334 (Parker) at 350 per Jackson J (with whom Bowen CJ and Lockhart J relevantly agreed). This will not be possible “where the invalid provision forms part of an inseparable context or would operate differently or produce a different result from that which was intended”: Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24 at 41 per McHugh JA. If the valid and invalid parts of the warrant are so interlinked they cannot stand without the other, they are not truly separate: Parker at 350. In arguing for severance it is not necessary for the respondent to establish that no material was seized under that part of the warrant. Similarly, it is not necessary for the applicants in opposing severance to prove that items were seized in reliance on the invalid parts of the warrant: Caratti (No 2) at [236]. At the very least the applicants, in opposing severance, bear the onus of showing that if the invalid portion were severed, the warrant “would have operated differently, or would produce a different result to that intended”: Caratti (No 2) at [236].
157 The respondent submitted that severance was the complete answer to the applicants’ arguments in relation to this ground. While the applicants referred to the relevant legal principles regarding severance in their written submission, it did not address the application of them to the argument in this ground.
158 Given I will uphold the judicial review application on the grounds in relation to the execution of the warrant, it is not necessary to decide the issue of severance.
159 Nonetheless, in my view, the applicants have not established that the first offence could not be severed, for the following reasons.
160 First, the first offence as drafted is limited in subject matter, the offence being a failure to comply with the notice to produce by redacting certain information.
161 Second, the first offence was not contained in the draft warrant provided by Mr Cobley to Mr Lehane prior to him being involved with the execution of the warrant. Mr Lehane’s involvement in the execution of the warrant was by reference to that draft warrant. I note also that there is no reference to this offence in clause 6 of the warrant affidavit, referred to at [111] above, where Mr Cobley states (with any errors in the original included):
I suspect that the things described above will provide evidence of the following:
Contraventions of the Agvet Code have been committed by Randlab Australia at these premises, during the period nominated, on the basis that this company is/has carrying/carried out out a step in the manufacture of a chemical product and are promoting/offering to supply an unregistered veterinary chemical product Zoldronio Acid Bisphosphonate Injection for Horses.
162 It can be inferred that the first offence was at some stage added to the warrant which already contained the four other offences.
163 Third, although Mr Cobley’s evidence was that the search terms “zoldronic and zoledronic acid” provided to the ATO officers were intended to capture documents related to the offence of failing to comply with the notice to produce by way of redaction, he also stated that they related to the other nominated offences. A consideration of the other offences clearly reflects that to be correct.
164 Fourth, the ATO officers were not shown a copy of the warrant and the limited information about the offences they were provided with was that they related to the manufacture, advertisement, sale and supply of “zoldronic acid”. Mr Dixon gave evidence that Mr Cobley told him that he was to extract computer records relating to the sale, advertisement and supply of zoledronic acid (the active pharmaceutical ingredient in zoldronic acid) which relate to offences two to five.
165 Fifth, as discussed below, there is no evidence that any material was seized on the basis it related to the first offence and no others. Indeed, as discussed below, there is an absence of evidence as to the basis on which the material located as a result of the computer searches was taken from the premises. There is no basis to suggest that the warrant would be executed any differently with the first offence severed from it.
166 Therefore, if necessary to make a finding, I would find that the first offence could be severed from the warrant thereby preserving its validity.
167 I note also, that in so far it is submitted that there are names of persons in the second condition not referred to in the warrant affidavit (that is, which appear to be the names of eleven employees of Randlab Australia Pty Ltd), those names could also be severed, thereby preserving the validity of the warrant. In practical terms those names did not add anything to the warrant and the material would necessarily be covered by the remaining terms.
Ground 5: the execution of the warrant was beyond power as the warrant was invalid
168 Ground 5 is said to be consequential on grounds 1- 4: if the warrant is invalid, it did not validly authorise the exercise of powers in its execution.
169 This ground, as pleaded by the applicants, does not contemplate the scenario in which the warrant is valid, though more narrowly construed than that contended for by the respondent. As such, it does not contemplate my finding in respect to ground 1, that the warrant is valid, although narrow, such that it only relates to subsections (a) and (b) of the definition of evidential material.
170 It is therefore not necessary to deal with this ground as pleaded. In any case, I find that in respect to grounds 6 and 7, the electronic material and physical items seized during the execution of the warrant was unlawful.
Ground 6: the search and seizure of the electronic material
171 The applicants impugn the search for and seizure of the electronic material, which was carried out by the ATO officers under the direction of Mr Cobley. The applicants allege that the manner in which the ATO officers operated the electronic material and transferred it to the hard drives which were then removed from the premises, gave rise to a number of errors under the Agvet Code. These included that: the ATO officers gave no evidence that they had formed any suspicion that the electronic equipment they used contained evidential material: cf s 132B(1); the ATO officers gave no evidence that they had formed any suspicion that the electronic material they transferred to the storage device was evidential material: cf s 132B(1), (2)(c); the ATO officers never saw the warrant and there is no evidence they were informed of the offences under investigation; the ATO officers used the search terms as a surrogate for the warrant, and those search terms were far broader than could be justified in a search for evidential material. The applicants relied on comments by Wigney J in Caratti (No 2) at [338] and [340] which highlight the difficulty with using documents or search terms that differ from the actual warrant when conducting the search. It is contended that the search terms bore no resemblance to the three conditions in the warrant.
172 It is necessary to consider in more detail the relevant provisions in the Agvet Code which authorise the operation of electronic equipment and transfer and removal of electronic material.
173 The relevant provision, s 132B is extracted in full above (at [16]).
174 As can be seen, subsection (1) authorises operating electronic equipment on the premises and using a disk, tape or other storage device on the premises if an inspector has reasonable grounds for suspecting that the electronic equipment, disk, tape or other storage device is or contains evidential material. If that is satisfied, and evidential material is located, subsection (2) authorises what can be done with that material, including relevantly, the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device brought to the premises and removing that disk, tape or other storage device from the premises.
175 It follows that no material can be transferred until subsection (1) is satisfied, and the only material that can be transferred is evidential material. The executing officer cannot transfer the material unless they are satisfied, at the time, that that material constitutes evidential material within the terms of the warrant: ss 132A(1)(b), 132B. It is clear from the terms of s 132B(2) that the material cannot be transferred and removed from the premises with a view to later determining if it is evidential material.
176 As noted above, some aspects of the events which occurred in relation to carrying out the computers searches and the transfer of the material, are not entirely clear, and as I note in paragraph [60] above, there is an absence of evidence on some topics.
177 However, it is clear that two computers at the premises were searched, material from those computers was transferred to an external storage device and removed from the premises. The ATO officers who conducted the searches and transferred the material on to the storage device did not receive a copy of the warrant, nor were they shown the warrant during or after the search. They were not aware of the conditions in the warrant or the offences nominated in the third condition. They were not aware of the statutory requirements as to the operation of electronic equipment contained in the Agvet Code. The ATO officers were assisting Mr Cobley in the execution of the warrant. Although at what point the electronic material was transferred to the external hard drive is unclear, it is not disputed that it was the ATO officers who conducted the transfer. Each ATO officer gave evidence that they did not form any suspicion that the material they transferred to the hard drives was evidential material within the terms of the warrant before transferring the material. It is clear that the ATO officers transferred the material on the basis it was responsive to the search terms used. Mr Cobley accepted that it was his, and not the ATO officers’, responsibility to determine whether the material met the three conditions of the warrant. Neither ATO officer gave evidence that they transferred the material when they did because Mr Cobley directed them to do so. So much is uncontentious.
178 I note also that Ms Terides’ unchallenged evidence was that Ms Chung had an external USB storage device which she plugged into the computer she was operating, and that as “she found files she wanted on the computer she would drag them into a folder on the USB drive”. After conducting searches in microsoft outlook she proceeded to transfer all the emails identified to the USB without first opening the emails. Ms Terides’ unchallenged evidence was also that Mr Dixon had with him an external USB storage device which he plugged into the computer he was operating and that as he found files he wanted, “he would drag them into a folder on the USB drive”. After conducting the searches, Mr Dixon transferred the emails across to the USB drive without first opening the emails. There appears to be some inconsistency between the evidence of Ms Terides and that of Ms Chung and Mr Dixon as to the sequence of events. That does not affect the resolution of this ground as the evidence of Ms Chung and Mr Dixon as to their respective states of mind at the time they each transferred the electronic material is clear.
179 The applicants’ argument that the relevant provisions were not complied with, and that the transfer and removal of the electronic material was unlawful, should be accepted.
180 First, conducting a search through the use of search terms does not, by itself, raise an issue as to the execution of a warrant: cf Caratti (No 2) at [338]-[346]. However, the appropriateness and usefulness of the use of search terms is, at least in part, dependent on what search terms are used, having regard to the warrant issued. Search terms cannot usurp the terms of the warrant. Moreover, what is to occur if material containing a term is located by an executing officer, will be constrained by the terms of the warrant and the statutory scheme pursuant to which the warrant is issued.
181 As is clear from the description of the statutory scheme above, it is necessary for the relevant state of mind about evidential material to be formed by the person operating the electronic equipment before the material is transferred to an external hard drive.
182 The search terms provided by Mr Cobley to the ATO officers were very broad and, as was accepted by Mr Cobley, could capture material which would not meet the terms of the warrant, in particular the third condition of the warrant. So much is clearly apparent from the breadth of the search terms. It was Mr Cobley’s responsibility, as the executing officer, to then determine if the warrant conditions were satisfied before the material was transferred to the storage device, and then removed from the premises.
183 The respondent’s reliance on JMA Accounting v Commissioner of Taxation [2004] FCAFC 274; (2004) 139 FCR 537 (JMA) to support the proposition that satisfying the search term criteria was sufficient to enable the material to be seized, is inapt. JMA involved a different statutory scheme than that in s 132B of the Agvet Code: see JMA at [4]. The findings as to what was required in that case to satisfy the relevant statutory regime do not apply here, when regard is had to the difference in statutory schemes.
184 Second, the respondent argued that the relevant state of mind regarding evidential material is that of Mr Cobley, rather than the ATO officers, by virtue of s 132E of the Agvet Code. Section 132E permits an inspector under the Agvet Code to be assisted by other persons, and allows those persons to exercise relevant investigation powers in accordance with a direction given by the inspector. Subsection (3) relevantly provides that “[a] power exercised by a person assisting the inspector…is taken for all purposes to have been exercised by the inspector”. Properly read, this section does not support the respondent’s argument.
185 Leaving aside the legal correctness of the respondent’s assertion, the fundamental problem with that argument is that neither the ATO officers nor Mr Cobley gave evidence that they formed the relevant suspicion that the electronic material transferred to a storage device was evidential material which satisfied the conditions of the warrant before the transfer of that material: s 132B(2)(c). Indeed, each of the ATO officers stated they did not turn their mind to that issue. Nor could they have, given the limited information about the warrant with which they were provided.
186 Mr Cobley’s evidence is also silent on this topic. It is a stretch to contend, as the respondent does, that Mr Cobley reviewed the result of the ATO officers’ searches before the transfer of that material to the hard drive. At best, he viewed the subject line in about 20 emails from one of Ms Chung’s searches, out of a total of 189 items. In respect to the invoices, Mr Cobley stated he looked at some, and told Ms Chung to exclude those relating to export. As noted above, Mr Cobley did not give any evidence that he was satisfied that the emails identified met the conditions of the warrant (or what was in the subject line). Moreover, the ATO officers did not give evidence that they transferred the items of electronic material because Mr Cobley was satisfied it fell within the terms of the warrant. Rather, the ATO officers are silent as to any involvement of Mr Cobley at the search in relation to their activities with the computers.
187 Third, it follows that even if s 132B(1) is satisfied, and even if there was a statutory basis for the respondent’s argument in relation to subsection (2), the respondent’s argument fails on the basis that the relevant state of satisfaction is not supported by the evidence. It follows that the transfer of the electronic material, and its removal from the premises, was unlawful.
188 In light of that conclusion it is not necessary to resolve the issue of whether s 132B(1) is satisfied. Suffice to say, neither the ATO officers nor Mr Cobley gave evidence that they had reasonable grounds for suspecting that the computers they decided to examine contained evidential material: s 132B(1). At its highest, the evidence from Mr Cobley was that two computers were indicated to him by Ms Terides as the computers relating to zoldronic acid. There is no direct evidence that Mr Cobley formed the view that he had reasonable grounds for suspecting that they contained evidential material, although I accept it may be arguable that it could be inferred from the fact only two computers were searched. However, that a computer relates to zoldronic acid is different to, and broader than the evidential material in the warrant. However, even if the inference could be drawn, there is no evidence that the ATO officers acted on any instructions from Mr Cobley in this regard. Rather, in the case of Ms Chung, she operated the computer on the basis that Ms Terides’ indicated that a certain computer was used for accounts (in response to Ms Chung’s request for access to accounting records), and nothing more. On Mr Dixon’s evidence, it was possible that Ms Chung instructed him to operate the computer he used. There is no evidence the ATO officers turned their minds to the issue, and both ATO officers gave evidence that they believed they were entitled to operate any computer on the premises.
189 The applicants have established that the execution of the warrant in relation to the computer searches was unlawful.
Ground 7: search and seizure of the physical items
190 The two physical items seized were the cardboard box and UAE documents. For the warrant to be validly executed it must be exercised in accordance with its terms and the relevant statutory requirements: Dunesky v Elder at 556.
191 The applicants impugn the seizure of these items on the basis that both Mr Lehane and Mr Cobley misunderstood the third condition of the warrant as allowing them to search and seize things that were relevant to the offences listed in the third condition, including material both for and against proving the commission of the offence and circumstantial evidence, and that they seized these items on that basis. That is, they were satisfied that those items were circumstantial evidence of the commission of the offences listed, and did not think they were items with respect to which the offences had been committed. The applicants’ argument should be accepted.
192 As noted above at [49], Mr Cobley was of the view that the terms of the third condition of the warrant authorised him to seize things that were, what he described as, circumstantial evidence, which were relevant to proving the offence indirectly, including material both for and against the commission of the offence and anything he considered relevant to the nominated offences. He provided instructions to others involved in the search who were assisting him on that basis. In light of my finding in respect to ground 1, that understanding of the third condition is incorrect. The third condition only authorised the seizure of material with respect to which the offences listed had been, or suspected on reasonable grounds to have been, committed. An executing officer can only search for and seize the kind of evidential material specified in the warrant: s 132A(1)(b).
193 In regards to the box, although Mr Cobley gave evidence that such a box could have been used in the commission of the offence, his evidence was that he seized it on the basis that he thought it was circumstantial evidence only. Mr Lehane’s evidence was to a similar effect. In regards to the UAE documents, both Mr Cobley and Mr Lehane considered this to be circumstantial evidence, and Mr Lehane’s evidence was that it could “go both ways” to supporting the commission of the offence.
194 Although it was unclear whether it was Mr Cobley or Mr Lehane who actually seized the physical items, Mr Cobley was satisfied they fell within the terms of the warrant as circumstantial evidence of the listed offences. Mr. Lehane also considered they were circumstantial evidence. It is clear that the items were seized on this basis only.
195 As noted above (at [73]) the respondent submitted that if the warrant was narrowly construed some of the items seized may be capable of satisfying the terms of the warrant. However, that does not alter that Mr Cobley and Mr Lehane did not seize the items on that basis.
196 The physical items were unlawfully seized.
Consequences of the conclusion
197 As I have concluded that items were unlawfully seized, the issue becomes whether to order they be returned to the second applicant. This is a matter of discretion, the relevant principles in that regard are set out by Hill J in Puglisi v Australian Fisheries Management Authority [1997] FCA 846; (1997) 148 ALR 393 (Puglisi) at 403 - 405, endorsed by the Full Court in Caratti at [158]. I note that Puglisi does not support the proposition that the discretion not to order the return of an illegally seized item only arises where there are criminal proceedings on foot, although those were the relevant circumstances in that case: Caratti (No 2) at [462].
198 In Puglisi, Hill J declined to order that the unlawfully seized items be returned in circumstances which included that, following the purported execution of a third set of warrants, criminal proceedings were commenced against Mr Puglisi. The material seized had been obtained by a wholly invalid search warrant. An attempt by the authorities to remedy that situation was entirely unsuccessful. His Honour concluded that use of the material was a matter best left to the criminal courts in the exercise of its discretion as to the admissibility of illegally obtained evidence. He noted that at least some of the seized items could be “expected to be used” in the prosecution. However, there is no indication that Hill J considered the seized items or concluded that they had any evidentiary relevance.
199 Wigney J in Caratti (No 2) at [467] - [480], after considering the authorities discussed the relevant considerations in the exercise of the discretion. He made the following observations. He stated that the starting point is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods, although against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained.
200 In that context, the considerations are not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. His Honour observed that all the facts and circumstances surrounding the unlawful seizure must be considered, which may include whether the unlawful seizure was deliberate, reckless or contumelious, or if it was the product of mere technical deficiency or less serious conduct; the nature of the items seized; whether there is a risk that, if returned, the items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced; and the possible importance and probative value, if any, of the seized material. This, of course, is not an exhaustive list.
201 I note that the types of items seized in this case, depending on their content, may be capable of satisfying the conditions of the warrants.
202 The unlawful seizures in this case were not deliberate, but rather appear to have occurred as a result of Mr Cobley misunderstanding the terms of the warrant and the relevant provisions under which it was issued. For example, it appears Mr Cobley considered that it was sufficient for a computer file to refer to one of the search terms for it to be seized. He considered that the material could be seized to be examined later to determine if it was relevant. The misunderstanding of the relevant provisions as to the powers that could be exercised under the warrant is concerning.
203 The problem is, as Mr Cobley recognised, there was no basis to confine search terms to those which would limit the material to satisfying the third condition. It is in that light he chose not to satisfy himself at the scene that the material fell within the warrant. Rather he acted on the basis that the search terms were enough to satisfy the conditions. This is in the context where, at least some of the search terms, were incredibly broad. For example, to include APVMA, would necessarily capture material not within the terms of the warrant. There were also two search terms provided to the ATO officers (being “customs” and “norden”, although there is no evidence these terms were actually used when the searches were conducted) that were not terms contained in the second condition of the warrant. The attitude to the execution of the warrant in those circumstances is even more concerning.
204 By comparison to a number of cases, this search was not large or particularly complex. There was no suggestion that there were any time constraints.
205 I note that there is no evidence that the electronic material seized satisfied the terms of the warrant. While there was an undertaking not to examine the material, there was evidence from Mr Cobley that he conducted some examination before then. There is also no evidence of the titles to the emails observed by Mr Cobley. Given the breadth of the search terms, in particular the use of APVMA, Mr Cobley accepted that they would capture some material which would not satisfy the three conditions of the warrant.
206 On the other hand, I note the applicants have not been deprived of any material. For example, the computer files are copies, with the applicants retaining the material on its computers. The two physical items are of no moment in that regard.
207 I note that no criminal or civil proceedings are on foot, although it may be that the APVMA needs to assess the material to ascertain whether there is a proper basis to institute proceedings. In the circumstances of this case, given the findings made, the respondent’s submission that the effect of any unlawful conduct can be dealt with as a question of admissibility if any proceedings are instituted against the applicants, has less weight.
208 This is also in the context where the first applicant had been served with a notice to produce, but that notice had not been complied with. There is no suggestion that the notice was invalid in any way.
209 On balance, the material seized should be returned to the second applicant. The problems that have arisen in this case, while not deliberate or reckless, were, as I described above, inconsistent with the standard of conduct that is to be expected by persons obtaining and executing search warrants. The problems reflect a rather cavalier approach to the task at hand. Accepting of course that mistakes can be made, the issues that have arisen and the mistakes made in this case pervade each stage of the process in both obtaining and executing the warrant. They were readily avoidable. The circumstances of this case do not render it more appropriate to permit the material to be used by the respondent with the effect of the unlawful conduct being dealt with as a question of admissibility if any proceedings are instituted.
Conclusion
210 For the reasons above, the warrant was unlawfully executed and the property purportedly seized pursuant to the warrant must be returned, with any copies destroyed.
I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. |
Associate:
Dated: 6 September 2019
