Federal Court of Australia

Hartley v Commissioner of the Australian Federal Police [2023] FCA 368

ORDERS

THE COURT ORDERS THAT:

1.    Within 7 days of this order, the parties are to confer and submit agreed or competing short minutes of order giving effect to these reasons.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 22 November 2022, the second respondent, Lynette Duncan, an issuing officer within the meaning of s 3C(1) of the Crimes Act 1914 (Cth) (Crimes Act) issued a search warrant pursuant to s 3E of the Crimes Act (the warrant). The warrant authorised a search for certain evidential material at identified premises (of which the applicant was said to be an occupier). Officers from the Australian Federal Police attended the address on or around 24 November 2022. At that time, the warrant was executed and material was seized.

2    By his amended originating application dated 13 December 2022, the applicant challenges the validity of the warrant. He seeks an order quashing the warrant and a declaration that the warrant is invalid (orders sought 1 and 2). The applicant also seeks injunctive relief restraining the first respondent from using any material seized in the course of execution of the warrant, and an order for return of the seized material (orders sought 3 and 4). On 6 February 2023, the Court made orders for the hearing of a separate question as to whether orders 1 and 2 sought should be made, as the latter orders are premised on the invalidity of the warrant. These reasons address that separate question.

3    The sole ground of the claim that the warrant is invalid is the allegation that it does not state and/or does not sufficiently state an offence.

4    For the reasons below, orders 1 and 2 of the final relief sought in the amended originating application are not made.

5    The second respondent notified the Court of a submitting appearance. References hereafter in these reasons to “the respondent” refer only to the first respondent, the Commissioner of the Australian Federal Police.

Evidence relied on

6    The parties provided many dictionary definitions, which they agreed I could take judicial notice of.

7    The applicant also tendered the warrant.

8    The respondent tendered [2]-[4] of the affidavit of Dennis Miralis (the applicant’s solicitor) dated 7 December 2022, as admissions, together with the annexures A, B and C (namely, the warrant, a document titled “Search of Premises: Rights of the Occupier” that was provided to the applicant and a copy of the “Property Seizure Record” that was provided to the applicant). The respondent also tendered annexures B and C to its submissions, being a bundle of documents in relation to the meaning of the term “platform” and a Wayback Machine capture of the Test Flying Academy of South Africa (TFASA) website. The applicant objected to each on the basis of relevance, but it was agreed that the admissibility of that material could be addressed in the judgment: see below at [81].

Relevant legislation

9    The warrant was issued pursuant to s 3E of the Crimes Act, which relevantly states:

3E     When search warrants can be issued

(1)    An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

…

(5)    If an issuing officer issues a warrant, the officer is to state in the warrant:

(a)    the offence to which the warrant relates; and

(b)    a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c)    the kinds of evidential material that are to be searched for under the warrant; and

(d)    the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

(e)    the time at which the warrant expires (see subsection (5A)); and

(f)    whether the warrant may be executed at any time or only during particular hours.

10    The offence provision for the third condition in the warrant is s 83.3 of the Criminal Code (Cth) (Criminal Code), the relevant part of which is as follows:

83.3    Military‑style training involving foreign government principal etc.

Offence in relation to military‑style training

(1)    A person commits an offence if:

(a)     the person provides, receives, or participates in, training; and

(b)    the training involves using arms or practising military exercises, movements or evolutions; and

(c)    any of the following circumstances exists:

(i)    the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1);

(ii)    the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation.

Legal principles

11    It is appropriate at the outset to describe the warrant in issue, together with the legal principles relevant to the resolution of this application.

12    First, the warrant is in the three condition format: see Dunesky v Elder (1994) 54 FCR 540 at 556 per Lockhart, Beaumont and Hill JJ. The necessary threshold of the dual suspicions referred to in s 3E(1) of the Crimes Act, as to the presence of evidence at the premises sought to be searched having the capacity to prove the commission of an offence, are sought to be established by referring to: (1) things proposed to be searched for; (2) persons, entities or topics that those things relate to; and (3) offences that such things will afford evidence of: Australian Broadcasting Corporation v Kane [2019] FCA 1716 at [13] per Bromwich J. The warrant must necessarily be considered as a whole, read fairly and not perversely: Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 at [131], [161].

13    Relevantly, the warrant is in the following terms:

COMMONWEALTH OF AUSTRALIA

CRIMES ACT 1914: SECTION: 3E

SEARCH WARRANT FOR SEARCH OF A PREMISES

To: [NAME OF INDIVIDUAL REDACTED]

a constable within the meaning of the Crimes Act 1914, who is the executing officer in relation to this warrant;

and to any other constable whose name may be written in this warrant in accordance with section 3C(1) of the Crimes Act 1914, in which event that constable shall be the executing officer in relation to this warrant:

Whereas I LYNETTE DUNCAN

an issuing officer within the meaning of section 3C(1) of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is (or will within the next 72 hours be) at the premises located at:

[ADDRESS REDACTED]

evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following three conditions, namely:

First condition: Things which are:

•    Telecommunications devices including mobile telephones, Subscriber Identity Modules (SlM) cards, or any other item capable of sending electronic communications

•    Universal Serial Bus (USB) drives, flash cards, memory cards, memory sticks and any related container to these items

•    Computer equipment, computer hardware, and software, modems, hard drives, compact discs (CD's), digital versatile discs (DVD’s)

•    Images, image storage folders, electronic image storage devices

•    Video audio recording storage devices

•    Internet or cloud based programs

•    Business records

•    Accounting records

•    Marketing material

•    Communication records

•    Aviation training instruction manuals or courses

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

•    Contracts, receipts or invoices

•    Financial transaction records

•    Meeting notes/minutes

•    Notebooks, diaries, handwritten notes

•    Emails

•    SMS messages

•    Instant messaging messages

•    Encrypted communication application messages

Together with any manual, instruction, password or other thing that assists to gain access to or interpret or decode any of the above things.

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

•    [NAME OF INDIVIDUAL REDACTED]

•    [NAME OF INDIVIDUAL REDACTED]

•    Test Flight Academy of South Africa (TFASA)

•    TFASA.co.za

•    TFASA Engineering

•    TFASA Services

•    Peoples’ Republic of China (PRC)

•    Peoples Liberation Army (PLA)

•    Peoples Liberation Army-Navy (PLA-N)

•    Peoples Liberation Army Air Force (PLA-AF)

•    J-11

•    J-16

•    JL-9

•    JL-10

•    Aviation Industry Corporation of China (AVIC)

•    AVIC International Flying Academy

•    Chinese Flight Test Establishment (CFTE)

•    GLS Consulting Pty Ltd

•    Slugwash Pty Ltd

•    Amphus Pty Ltd

•    TFASA Group Limited

•    TFASA Helicopter

•    Blue Sky Aviation

•    TG Training Limited

•    TG Training (2018) Limited

•    TG Consultants Limited

•    Royal Australian Air Force (RAAF)

•    Australian Defence Force (ADF)

•    NATO

•    Australia

•    United Kingdom

•    Canada

•    United States of America

•    New Zealand

Third condition:

And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth:

Between 30 June 2018 and January 2022, Keith Andrew HARTLEY, born 26/08/1948, contrary to section 83.3 of the Criminal Code (Cth), provided training involving the use of arms or practising military exercises, movements or evolutions where the training was directed, funded or supervised by a foreign government principal, being the Chinese Peoples’ Liberation Army (PLA), or a person acting on behalf of the PLA, in that HARTLEY as the Chief Operating Officer of Test Flight Academy of South Africa (TFASA) organised and facilitated training delivered by TFASA to PLA pilots in regard to military aircraft platforms and military doctrine, tactics and strategy.

I hereby issue this warrant which authorises you to enter and search the premises described above.

AND by virtue of section 3F(1) of the Crimes Act 1914 this warrant authorises the executing officer or a constable assisting to do all of the following;

•    enter the premises described above;

•    if the premises is a conveyance, to enter the conveyance, wherever it is;

•    search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

•    search the premises for the kinds of evidential material that satisfies ALL of the three conditions specified above and to seize such evidential material that may be found at the premises;

•    seize other things found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be:

(i)    evidential material in relation to an offence to which the warrant relates;

(ii)    evidential material in relation to another offence that is an indictable offence; or

(iii)    evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act).

if the executing officer or the constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;

•    seize other things found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be a seizable item, in that it is a thing that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

14    It is the third condition that is in issue on this application. As is typical of a three condition warrant, the third condition bears most of the work in providing the limitations on the search authorised by the warrant: see, for example, Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 at [67].

15    Second, as observed by the Full Court in Caratti at [34]:

[34]    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.

16    Third, as the applicant challenges the validity of the warrant, he bears the onus to make good that challenge: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 (Williams v Keelty) at [235]-[236].

17    Against that background, I turn more specifically to what is required in respect to the third condition.

18    The principles were recently addressed by the High Court in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177 (Smethurst), also see Zhang v Commissioner of Australian Federal Police [2021] HCA 16; (2021) 389 ALR 363. Save for one topic, which is addressed below at [74]-[80], there is no dispute between the parties as the relevant principles.

19    In Smethurst, in describing the relevant principles, the Court did not alter the established principles, rather citing a number of cases including Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 (Beneficial Finance), Williams v Keelty and New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (Corbett). Indeed, as evident from Smethurst at [28] (see below), the test for sufficiency which was applied in that case is referred to as that emerging from the decided cases.

20    As Kiefel CJ, Bell and Keane JJ (Gageler, Nettle and Gordon JJ agreeing) explained in Smethurst at [22], the “requirement that the offence to which a warrant relates be stated in the warrant has its origins in the common law’s refusal to countenance the issue of general warrants”. At [25], the plurality observed, having referred to George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George v Rockett), that (citations omitted):

[25]    It may be accepted that the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes. Nevertheless it remains a concern of the legislature, in enacting provisions authorising warrants for search and seizure, to provide a measure of protection to persons affected by a warrant. It does so in large part by ensuring that the object of the warrant is identified by reference to a particular offence and that the limits of the authority to search may thereby be discerned. The courts' insistence on strict compliance with the statutory conditions for a warrant gives effect to this legislative purpose.

21    At [27]-[28], their Honours stated (citations omitted):

[27]    The protective purpose to which these provisions are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised. In each case this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand.

[28]    It is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment. The purpose of a warrant is not to define the issues for trial. The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial. What emerges from the cases is a test of sufficiency to indicate the areas of the search. The test of sufficiency with respect to the statement of offence reflects the purpose of the condition, that persons executing and affected by the warrant understand what is being sought. If the object of the search is not identified the warrant becomes a general warrant.

22    The purpose of the statement of the offence is not to define the issues for trial, rather it is to set boundaries to the area of search: Beneficial Finance at 533; Corbett at [99]. The line as to what may, or may not be seized, cannot be precisely drawn because a search warrant is not concerned with what is known, but with what there is reasonable grounds for suspecting: Beneficial Finance at 534. Given the stage a search warrant is granted, it is sufficient that the warrant specifies the suspected offences in such a way as to enable the executing officer and those assisting to decide if the things seized come within the terms of the warrant, and to enable the persons affected to understand what is sought: Beneficial Finance at 539.

23    The test of sufficient particularity is an objective one, having regard to the content of the warrant: Smethurst at [29]. The issue of the sufficiency of an offence description should be viewed 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. What is sufficient will depend on the nature of the offence: Smethurst at [30]; Beneficial Finance at 543. As their Honours stated in Smethurst at [30], “[n]o verbal formula is possible, rather in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it”.

Submissions

24    The applicant submitted that the warrant is ambiguous and misstates the offence. The errors were said to be multiple and compounding. The first and second conditions of the warrant were also said to provide no meaningful or significant limit to the search, meaning if there is to be a meaningful constraint to the search, it must come from the third condition.

25    The applicant submitted in relation to the chapeau of the third condition, that: there is no articulation of who must hold the reasonable grounds; and the relevant threshold identified is “reasonable grounds to suspect”, a relatively undemanding threshold.

26    The applicant also submitted that the real limit (if any) arises from these words, found in the last four lines of the offence description (within the third condition): “HARTLEY as the Chief Operating Officer of Test Flight Academy of South Africa (TFASA) organised and facilitated training delivered by TFASA to PLA pilots in regard to military aircraft platforms and military doctrine, tactics and strategy”. He contended that those words contain multiple ambiguities and errors, and made the following submissions:

(a)    reference is made to “organis[ing] and facilitat[ing] training”, even though the offence is to “provide training”. In that context, the offence might be referring to accessorial liability, but that is unstated and ambiguous;

(b)    it is unclear what is meant by the training being “delivered by TFASA”;

(c)    the training is stated to have been delivered “to PLA pilots”, but there is no explanation as to how that means that the training was directed, funded or supervised by the Chinese Peoples’ Liberation Army (PLA);

(d)    the training is stated to have been “in regard to military aircraft platforms” without explanation of what a “military aircraft platform” is, and where the expression has no ordinary meaning. Whatever the meaning, it is unclear what it means for training to be “in regard to”;

(e)    the training is stated to have been “in regard to … military doctrine, tactics and strategy”, but the latter words do not relate to the underlying offence. The ambiguity and breadth is compounded by the use of the words “in regard to”.

27    The applicant relied on the combination of these contended difficulties to submit that the warrant fails each of the tests referred to in Smethurst. The warrant was said not to identify a “particular” offence, but rather to encompass multiple offences (including accessorial offences, and offences involving variously providing or participating in training). It was submitted that: the offence is not stated in a way which is both intelligible and sufficient to convey the necessary material (cf Smethurst at [27]); and the reader cannot discern the meaning of key phrases and how they relate to the statutory offence, such as “military aircraft platforms” and “military doctrine, tactics and strategy”.

28    The respondent took issue with those contentions, submitting that the description of the offence in the warrant meets the overall test of sufficiency to indicate the area of the search. The respondent addressed the applicant’s specific complaints.

29    As to the chapeau to the third condition, the language used was said to be common to the third condition of a warrant following the three condition approach: citing, inter alia, Beneficial Finance, Caratti and Smethurst. It was said to reflect the language used in the statutory scheme in relation to material that may be seized, where the suspicion must be held by the executing officer or constable who seizes the material in question: citing Adler v Gardiner [2002] FCA 1141; (2002) 43 ACSR 24 (Adler v Gardiner) at [39].

30    The respondent submitted that the description in the third condition clearly identifies the applicant as the person said to have provided the training, and the way in which he was said to have done so (that is, as Chief Operating Officer of TFASA, he organised and facilitated training delivered by TFASA). There was said to be no reasonable basis for reading the warrant as involving statement of some kind of accessorial offence and, in any event, even if that were so, it would not impact on the limits of the search.

31    In so far as the applicant’s submission suggested the alleged conduct was not capable of constituting the offence, the respondent submitted that the ordinary meaning of the word “provided” is broad enough to extend beyond immediate and in person delivery of the training, to include organisation and facilitation of such training. That was said to be confirmed by the Revised Explanatory Memorandum, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 (Cth), which inserted the offence into the Criminal Code (the Revised Explanatory Memorandum). It was submitted that to the extent that there is a dispute about the meaning of “provides”, and whether the applicant’s conduct falls within that term, this is for a court to determine in the context of any criminal trial. There was said to be no misstatement of the offence such that no offence is stated for the purposes of s 3E(5) of the Crimes Act.

32    The respondent also submitted that it is not necessary for the face of the warrant to descend into the level of detail of the relationship between TFASA and the applicant. That was said to perhaps be required for the purposes of any indictment, but be unnecessary to explain the offence for the purposes of defining the area of the search. The warrant was also said to sufficiently identify the nature of the training with which the warrant is concerned.

33    Further, the term “platform” was said to have an ordinary meaning which includes a vehicle. A “military aircraft platform” was said to be a reference to a military aircraft vehicle, in other words a military plane. It was submitted that: that is an ordinary meaning as reflected, inter alia, by the Oxford English Dictionary; the term “platform” has a commonly accepted meaning in the aviation and defence industries, in which a “platform” simply means a “vehicle”; and the applicant would be expected to have been aware of this meaning from his background in the aviation and defence industries (including his previous experience and training as a fighter pilot), and regardless, given the capacity in which the offence is said in the warrant to have been carried out. The respondent submitted that in any event, the meaning of the term “platform” is clear in the context of the third condition given, for example, the training being provided by a body called Test Flight Academy South Africa.

34    It was also submitted that the subject matter of the offence is not limited to physical activities, and can encompass “military doctrine, tactics and strategy”. Regardless, there was said to be no misstatement of the offence such that no offence is stated for the purposes of s 3E(5) of the Crimes Act.

35    The respondent also submitted that the warrant expressly identifies: the relevant foreign government principal as the PLA; and the training as having been directed, funded or supervised by the PLA, or a person acting on behalf of the PLA. The warrant was also said to identify the training as having been provided to PLA pilots. Specification in the warrant as to how the training was directed, funded or supervised by the PLA was submitted to go beyond the degree of particularity necessary to identify sufficiently the area of the search.

36    In reply, the applicant submitted, inter alia, that he was not challenging the capacity of the conduct to amount to the offence. He also submitted that the respondent’s reliance on the understanding of the applicant is irrelevant, citing Smethurst at [29].

Consideration

37    The challenges raised to the sufficiency of the third condition in the warrant can be categorised into: what is said to be ambiguity in its chapeau (see [25] above and [51]-[54] below); and issues said to arise from the last four lines of the offence description (see [26] above and [55]-[90] below).

38    Each of the complaints about the third condition will be addressed in turn, bearing in mind it is the combination of them which is relied on by the applicant. As referred to above, the applicant submitted that the errors in the warrant are “multiple and compounding”. The warrant is contended, as in Smethurst, to be ambiguous and to misstate the offence. I do not accept those submissions.

39    Rather, the third condition, properly read as a whole, in the context of the warrant, meets the overall test of sufficiency to indicate the area of the search.

40    Given the nature of the applicant’s challenge, it is important to recall that when considering the sufficiency of the description in the third condition, the warrant is to be read as a whole. It is also important to recognise that the focus of the inquiry as to the sufficiency of the third condition is directed to the function of it, being to delineate the bounds of the search. This warrant is issued at the investigation stage and, in relation to the third condition, does not require language in the precision of an indictment.

41    As the respondent submitted, there are two ways to challenge the warrant. The first is that the conduct stated to have been engaged in is incapable of engaging the offence provision. The second is that even if capable, the warrant has been drafted such that it does not provide sufficient boundaries for the conduct of the search. Although a reading of the applicant’s written submissions reflects that both bases are relied on, in reply submissions during the hearing, any challenge on the basis of the former, the incapability basis, was disavowed. That being so, as explained further below, it is difficult to understand some bases of the applicant’s challenge. If the description of the conduct engaged in refers to conduct capable of amounting to the offence, the purported ambiguity as articulated, does not arise. It is also unclear how it is then said the offence is misstated. The ordinary reader of the warrant does not have to be satisfied that the conduct falls within the offence provision. That is for the issuing officer.

42    As reflected by the consideration of the particular complaints below, they do not properly arise on an ordinary reading of the warrant considered as a whole, but rather adopt a strained approach with an eye looking for ambiguity. The submissions advanced also adopt an artificial approach, which requires analysis of the third condition in a manner divorced from the task at hand.

43    Assessing whether the third condition, in context, is sufficient to fulfil its purpose, is not a test of: whether the ordinary person would match up the content of the condition with the elements of the offence; or whether the ordinary person would understand the offence can be committed in the manner described. It is also not, after careful consideration of a warrant, taking a hypercritical approach in an attempt to identify various different speculative possibilities. Further, although the object of a warrant can only be achieved if it is intelligible, it is not a test merely of vagueness or precision. Rather, the overall test is the sufficiency of the warrant to indicate the bounds of the search. It is to be recalled that in Smethurst, the plurality described that it is the “nature of the offence” which should be conveyed to achieve that purpose (see, for example, at [27] and [29]-[30]), with its sufficiency being assessed from the viewpoint of those reading it (see [30]).

44    As a general observation, the natural consequence of some of the applicant’s submissions is a degree of detail and specificity being required in the third condition that would likely not even be included in a properly drafted indictment. Some of those submissions fail to properly recognise the nature and purpose of a search warrant (namely, as an investigative tool), instead requiring the person seeking the warrant to, at the investigation stage, identify in precise detail the specific manner in which the offence is alleged to have been committed. That would alter the use of this investigative tool in a manner which is not supported by a proper reading of Smethurst. The level of exactitude in the drafting of the offence that would follow from some aspects of the applicant’s submissions is not necessary for achieving its purpose. It goes beyond describing the “nature of the offence” the subject of the warrant, sufficient to fulfil its purpose.

45    Plainly, each case is fact specific, with the issue of sufficiency being assessed on the basis of the warrant in the particular case. The two examples given by the plurality in Smethurst at [30] illustrate that proposition. On the one hand, in Corbett the offence could be described shortly, and although there was error in the identification of the offence provision in the warrant, it did not detract from the statement of the nature of the offence. On the other hand, as the plurality stated, “when a statute provides for the commission of a somewhat indeterminate number of offences, a general reference to a section may not be sufficient”: citing Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 (Cloran) as an example of where more was needed. The warrant in Cloran only described the offence by reference to the number of the offence provision, namely “the commission of offences against Section 70 of the Crimes Act 1914, a law of the Commonwealth”: see Cloran at 153.

46    In Smethurst, the plurality at [39], addressing the offence there in question, returned to its earlier statement, observing that (citations omitted):

[39]    … An offence under s 79(3) is not one which may be stated as pithily as that in question in New South Wales v Corbett, referred to above. More to the point is the type of provision discussed in Australian Broadcasting Corporation v Cloran, which allows for the possibility of a number of offences. Such a provision will require more by way of description of the particular offence and how it is said to arise.

47    The warrant that was held to be invalid in that case was found to be not only ambiguous, but also to significantly fail to identify any offence, in addition to substantially misstating the nature of an offence to which it related: see Smethurst at [33], [42], [43]. The relevant condition was in the following terms:

On the 29 April 2018, Annika Smethurst and the Sunday Telegraph communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets. This offence was punishable by 2 years imprisonment.

48    The relevant offence turned on the communication of a “prescribed document” within the meaning of s 79(1) of the Crimes Act. Under that provision, there were many possible scenarios and combinations by which a document, article or information became prescribed in relation to a particular person. However, the relevant condition of the warrant failed to identify that any document was prescribed, or how any document was prescribed, and therefore failed to identify one of many possible offences at all: see Smethurst at [35]-[40]. The warrant also substantially misstated the nature of the offence, by referring to the communication of a document or article being “not in the interest of the Commonwealth”, which is instead an aspect of an exception to the offence: see Smethurst at [33]-[34], [43]. That meant an element, if not the critical element, to be considered in connection with the search to be undertaken was whether a document, an article or information was “not in the interest of the Commonwealth”: see Smethurst at [32]. This misinformed anyone reading the warrant and made the authorisation for the search impossibly wide: see Smethurst at [43]. The warrant in this case is removed from that in Smethurst.

49    It may be accepted that the offence in this case requires more by way of description than a recitation of statutory terms to fulfil its purpose, as was sufficient in Corbett. However, that further description is sufficiently provided in this case.

50    Turning to the applicant’s specific complaints.

Complaints regarding the chapeau to the third condition

51    The chapeau is said to give rise to questions as to who is to hold the reasonable grounds (the issuing officer, the executing officer or the constable assisting): see [25] above. However, I note the form of the chapeau uses language common in s 3E three condition warrants: see, for example, Beneficial Finance, Smethurst and Caratti. That is, such language has been used in cases where the sufficiency of warrants have been challenged on other bases, but where the language used was not suggested to be ambiguous as to who holds the suspicion.

52    The warrant must be read as a whole. After the third condition, it states that it authorises the executing officer or constable assisting to, inter alia, “search the premises for the kinds of evidential material that satisfies ALL of the three conditions specified above and to seize such evidential material that may be found at the premises”: see above at [13]. Accordingly, on the face of the warrant, in its execution the executing officer or constable assisting must be satisfied that the evidential material satisfies all three conditions. It is the executing officer or constable assisting who seizes the material who must hold the relevant suspicion referred to in the chapeau. It is they who must hold the reasonable grounds to suspect. That plain reading of the warrant is consistent with the terms of s 3F(1) of the Crimes Act. The language in the chapeau also reflects the legislative scheme: see the definition of “evidential material” in s 3C of the Crimes Act.

53    Before leaving the chapeau, I note that although the applicant also submitted that the suspicion required by the third condition is a relatively undemanding threshold, it is unclear how this is relevant to any purported ambiguity. I also note that it is the standard contained in s 3E. Accordingly, the submission does not advance the applicant’s case.

54    As I do not accept that the chapeau is ambiguous in the manner contended, it cannot feed into the applicant’s overall complaint of insufficiency.

Complaints regarding the description of the offence in the third condition

55    The complaints regarding the description of the offence in the third condition were multifaceted and directed primarily to aspects of its last four lines: see [26] above. The complaints must be considered together and in their context.

56    As referred to above, the third condition must be read as a whole. This is to be contrasted to the applicant’s approach which put to one side the first part of the third condition as “really just a restatement of the text” of the offence provision.

57    Properly read, the first part of the third condition (up to its last four lines, quoted at [26] above) identifies: that the offence is the provision of training, as opposed to the other bases in s 83.3(1)(a), namely receiving or participating in training; the nature of the training; and the circumstances in which the training occurred, including that it was directed, funded or supervised by the PLA. Contrary to the applicant’s submission, matters of factual delineation are contained in the first part of the third condition. The latter part of the condition commencing “in that” must be read in that context. In context, it can be understood that the latter part of the condition provides further and more specific elucidation of the conduct said to have been engaged in by the applicant to constitute the offence.

58    As a result of mischaracterising the first part of the third condition, the applicant’s submissions proceed on an artificial premise.

59    Based on the last four lines of the condition, it is said that the reader cannot discern: first, whether the applicant on the one hand, is said to have provided training or, on the other hand, is said to have organised and facilitated it (see [26(a)] and [26(b)] above); second, why the latter is an offence; and third, the meaning of key phrases and how they relate to the statutory offence, such as “military aircraft platforms” and “military doctrine, tactics and strategy” (see [26((c))]-[26(e)] above). It was also submitted that the warrant encompasses multiple offences, including accessorial offences, and offences involving variously providing or participating in training.

60    Addressing each in turn.

61    The first basis relies on the applicant’s submission that the basis of liability is unclear in the third condition. It is said that the condition may be referring to accessorial liability, but that is not identified. That appears to be based on the use of the phrase “organised and facilitated” training, when the offence is instead to provide training. It was also said that the reference to the training being “delivered by TFASA” creates the same confusion. However, as explained above at [57], it is plain from the warrant that the applicant is alleged to have “provided training”, that is, he is a principal offender. The language of the third condition does not suggest any form of accessorial liability.

62    The submission appears to proceed on the basis that the concepts of “organising and facilitating training” are not within the concept of “providing training” in the offence provision. The applicant goes so far as to submit in writing that the concepts are inconsistent, meaning the two parts of the third condition are inconsistent with each other. I do not accept that proposition. Moreover, the submission suggests that the conduct alleged to have been engaged in is incapable of satisfying the offence provision. That is the submission disavowed by the applicant: see [41] above. If, as a matter of law, conduct which falls within the description is capable of satisfying the description of providing training, there is no inconsistency. As explained above, the ordinary reader of the warrant does not have to be satisfied that the conduct falls within the offence provision.

63    In so far as the applicant also submitted that it is required that the third condition explain how the concepts of “organising and facilitating” satisfy the concept of “providing”, it cannot be accepted. Such detail would not even be required in an indictment. Moreover, it must be recalled that the warrant is an investigative instrument, issued at the stage of gathering evidence. This submission also does not address focus on the task at hand. Delineation of search parameters is provided by the concepts of organising and facilitating, read in context. That also addresses the second complaint, as referred to at [59] above.

64    In the applicant’s written submissions in reply, he contended that, based on s 11.2 of the Criminal Code (which provides that the who person “aids, abets, counsels or procures the commission of an offence” is taken “to have committed that offence”), the fact that the warrant identifies the applicant as a person who “provided training” does not tell whether he is said to have done so in his own right or as an accessory. That submission illustrates an approach to reading the warrant which is designed to look for ambiguity. There is no basis for the reader of the warrant to do other than to read that the applicant provided the training in any way other than he is alleged to have done.

65    I do not accept the submission that properly read, the warrant encompasses multiple offences in the manner contended by the applicant.

66    In any event, but importantly, it is entirely unclear how, if the applicant was said in the warrant to be an accessory as opposed to a principal offender, that could affect the limits of the search. Any proof of the role of an accessory involves establishing the principal offence. Delineation of the limits of the search is provided by the description of “organising and facilitating” the training delivered by TFASA.

67    For completeness, I also observe that although the applicant disavows any submission that the conduct is incapable of amounting to the offence (see [41] above), I accept that it is capable. The ordinary meaning of “provided” is broad enough to encompass more than in person or physical delivery. Although it is not necessary to rely on extrinsic material as to the meaning of the elements of the offence, I note that this ordinary meaning is confirmed by the Revised Explanatory Memorandum at [376]: “[t]he term ‘provides’ could include organising, facilitating, supplying, and delivering training. The term is intended to include any conduct that actually constitutes the delivery of the content of the training. However, it could also include conduct that contributes to the provision of training, such as supplying weapons or constructing the training course”. I note also that in relation to the term “practising” in s 83.3(1)(b), the Revised Explanatory Memorandum at [383] states that “[t]he term ‘practising’ could include rehearsing, working at, working on and running through. This term is intended to include conduct that involves physical activity such as practising military drills, and non-physical activity such as studying or learning about the use of arms, military exercises, movements or evolutions”. If the applicant is charged with an offence, it will be for the trial court to consider the terms of the indictment presented.

68    The third complaint relates to the meaning of phrases and how they relate to the statutory offence. The two phrases identified are “military aircraft platforms” and “military doctrine, tactics and strategy”.

69    Again, the basis of this submission, in particular regarding the phrase “military doctrine, tactics and strategy” appears, at its heart, to be an incapability submission. Namely, that these words do not relate to the underlying offence, as the offence of providing training requires physical activity. If the conduct described is capable of satisfying the offence, which the applicant has made clear he does not challenge, it is difficult to understand the basis of the submission. If the submission is that the offence description in the third condition needed to explain how “military doctrine, tactics and strategy” are legally capable of satisfying the offence provision, for the reasons given above, I do not accept that argument. Again, such detail would not even be necessary in an indictment. It is a legal question of which the ordinary reader does not need to be satisfied. The phrase itself, read in context, is readily understandable. As referred to above, these concepts read in their context, provide delineation of the search parameters authorised by this warrant.

70    The phrase “military aircraft platforms” must also be read in its context. The terms of the third condition reflect that the applicant is said to be the Chief Operating Operator of the Test Flying Academy of South Africa. The training is stated on the face of the warrant to have involved “the use of arms or practising military exercises, movements or evolutions” and to have been provided to pilots. The plain reading of Test Flying is that it relates to planes.

71    As explained above, the parties placed a number of dictionary definitions before the Court, of which they submitted I could take judicial notice. Although the definition of “platform” included a number of alternative meanings and varied, at least to some extent, between the publications, the Oxford English Dictionary provides as part of the second meaning, “a vehicle, esp. an aeroplane, providing a steady firing base for heavy weaponry”. The Collins Dictionary and Merriam-Webster Dictionary, which were also provided by the respondent, similarly referred, as part of their meanings, to a vehicle (including the specific example of aircraft in the Merriam-Webster Dictionary). I note, on the other hand, that the Macquarie Dictionary supplies 13 definitions for “platform”, none of which contain reference to a “vehicle”. Nonetheless, it can hardly be said in that context that the meaning is, as the applicant submitted, a technical meaning only. It may be accepted that the phrase has an ordinary meaning, albeit perhaps used more in a particular field.

72    Further, the respondent relied on extracts concerning military matters (such as public facing military strategy documents) which use the term platform in the same manner. That does not render it a technical meaning, but rather reflects its common usage in a particular field.

73    Although there may be multiple meanings of the term, it takes its meaning from the context in which it is used. In the context of an offence of military style training, involving pilots and the use of arms or practising military exercises, movements or evolutions, the inference is that “military aircraft platforms” refers to vehicles. The ordinary reader of the warrant, reading it as a whole and in context, would reasonably have understood the phrase to be referring to military aircraft. That the applicant may be able to theorise alternate meanings (for example, software for a hardware simulator) does not create ambiguity as to the limits of the search.

74    In any event, the applicant would have been under no misapprehension as to the meaning of the term. Although unnecessary to decide given the conclusion above, it is appropriate to address the respondent’s submission that the applicant, given his position with TFASA and his background in the aviation and defence industries, would be expected to be aware of this meaning of the term. It was submitted that the occupier’s expertise and knowledge are relevant, consistent with the statement in Caratti at [40] that whether the offence description is adequate or sufficient is a “matter for assessment in all the circumstances of the case at hand”. The applicant submitted that this approach is not permitted according to Smethurst at [29], and in any event, it had not been pleaded and evidence had not been adduced that the applicant was the occupier. The respondent took issue with that, and submitted that nothing in Smethurst suggests the expertise or knowledge of the occupier must be put aside.

75    The passage of Smethurst relied on by the applicant states (citations omitted):

[29]    It follows logically from the underlying rationale of the condition that the offence be stated that the test of sufficient particularity is an objective one, which has regard to the content of the warrant. It can be no answer to a challenge to the validity of a warrant on the ground that it fails clearly to state the nature of the offence in question to say that the persons whose premises are to be searched have some ancillary information as to the offence to which the warrant is intended to relate.

76    Further, the plurality cited Wright v Queensland Police Service [2002] 2 Qd R 667 (Wright) at [31]-[32] in support of the second sentence.

77    In Wright, the warrant in issue only included the name of the offence and section number. Holmes J held that the reader, without ancillary knowledge, would not have known from the face of the warrant who committed the offence, where or when it was committed. Her Honour found that it was no answer to contend that the description of the offence was sufficient because the person affected had been charged with the offence. Her Honour concluded, having regard to the need for the persons affected by the warrant to understand the bounds of the search to be conducted, that was not sufficient: see Wright at [32].

78    This case is very different from the circumstance that arose in Wright. The knowledge said to be relevant does not relate to the commission of the offence, but rather, is based on the applicant’s background and position in the field where the description “military aircraft platform” is commonly used. It is not that what is relied on is that the applicant has “some ancillary information as to the offence to which the warrant is intended to relate”: see Smethurst at [29], the proposition for which Wright is also cited. As explained above, the phrase has an ordinary meaning, and one which the applicant would have been well aware of. In the circumstances of the case at hand, given the context of its use, the applicant would have been under no misapprehension of its meaning. Further, for the purposes of this application, there is evidence (being admissions in an affidavit of the applicant’s solicitor) that the address that the warrant related to is the applicant’s residence, and that he was provided with the document which sets out the rights of the occupier and signed off on the items seized (noting in respect to signing off the seizure record he did not indicate by crossing out alternatives, in which capacity he was doing so).

79    As explained above, this case is also very different from Smethurst, where the offence was misstated such that the reader was misinformed of its nature.

80    The use of the term “military aircraft platforms” does not involve a misstatement of an offence, but rather the warrant includes a word in a phrase which is said to have more than one meaning, in the description of the alleged conduct (the issue being which ordinary meaning is understood as applying). It can be assumed that the impugned phrase was used by the police seeking to obtain the warrant, in the context of the offence alleging military style training involving a foreign principal contrary to s 83.3 of the Criminal Code. Noting also that there is no challenge made to the sufficiency of the information before the magistrate in issuing the warrant in the terms her Honour did, or its execution. There is no reason to suggest that there was any misunderstanding by the issuing or executing officer.

81    Pausing there. I referred above to the applicant’s objections to the: documents annexed to the affidavit of the applicant’s solicitor; bundle of documents in relation to the meaning of the term “platform”; and Wayback Machine capture of the TFASA website: see above at [8]. This evidence relates only to this submission. Although it was not necessary to rely on this submission to resolve the issue at hand, I nonetheless addressed it and therefore I allow the evidence, given my findings at [72]-[80] above.

82    Although not much emphasis was placed on it, the applicant also submitted that there is no explanation in the third condition as to how, if at all, the fact that training was said to be delivered to PLA pilots means that the training was “directed, funded or supervised” by the PLA. It may be argued that such a detail may be required in an indictment (or may more likely be provided by particulars), but it is not required for a condition for the purpose of identifying the limits of the search to be undertaken. The applicant submitted that he did not suggest this detail was required, but that the failure to include it contributes to the overall vagueness of the warrant. That is rather a matter of semantics. The issue is whether the nature of the offence is sufficiently identified for the purpose of the warrant. As is plain from the third condition, there is a limitation on the area of the search as the foreign entity is identified. It is unclear how the absence of further detail creates vagueness such that the nature of the offence is not sufficiently clear. Again, this illustrates an approach with an eye for ambiguity.

83    It is important to recall that the question is not whether further specificity or detail could have been included in the conditions of the warrant. Rather, the question is whether the applicant has established that the warrant is invalid on the basis that it fails to set real and meaningful parameters (as explained in the authorities) on the scope of the search that is authorised.

84    I do not accept the applicant’s submission that the matters identified by him in relation to the third condition expose “debilitating ambiguity in the articulation of the offence”. Although the applicant also asserted in his written submissions that the warrant misstates the offence, none of his complaints (whether considered separately or in combination), found that submission. I do not accept that there is any misstatement of the offence.

85    I am not assisted by the hypothetical scenarios posed by the applicant, as they are artificial and founded on the correctness of his underlying propositions. For example, the first illustration submits the reader is left to guess whether the first part of the condition (provided training involving the use of arms, where the training was funded by the PLA) or the second part, (as Chief Operating Officer of TFASA, organised and facilitated training delivered by TFASA to PLA pilots in regard to military aircraft platforms and military doctrine, tactics and strategy) is the dominant one. It is premised on the basis that there is an inconsistency between the two. For the reasons above, I do not agree.

86    More importantly, the applicant’s hypothetical examples fail to properly recognise that the warrant authorises seizure of “evidential material”. The examples provided were: a copy of “Sun Tzu’s Art of War” gifted to the applicant by the PLA; and a “document containing an agenda of activities”, including an activity marked as “quiz on military doctrine, tactics and strategy – to be run by Ms Smith for the PLA”. The term “evidential material” is defined as “anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence”: ss 3 and 3C of the Crimes Act. The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial: Smethurst at [28], citing George v Rockett at 119. As described in Adler v Gardiner at [20] (citations omitted):

[20]    A thing will afford evidence of the commission of an offence if it assists, 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. The expression “will afford evidence” does not import a requirement that the documents must necessarily be sufficient to achieve a conviction; it is sufficient that they have relevance to or probative connection with, an issue arising upon an allegation of the offence alleged. That includes things which are adjectivally relevant as well as things which are of substantive relevance.

87    Also see George v Rockett at 119-120.

88    The applicant’s approach, by the examples given, seems to erroneously assume that the evidential material must directly implicate the applicant in the elements of the offence, as opposed to, for example, doing so in an indirect way or being relevant to furthering the investigation.

89    I agree with the respondent’s submission that, if the executing officer or a constable assisting seized either of the items in the applicant’s hypothetical examples, the suspicion that the item would afford evidence as to the commission of the stated offence might well be held on reasonable grounds.

90    In any event, that in any particular case there may be room for dispute about whether particular items fall within the bounds of the warrant does not establish that the warrant is invalid. An item can only be seized if the relevant suspicion is held.

Conclusion

91    The applicant has not established that the warrant is invalid. It states conduct capable of constituting an offence, and it does so with a reasonable degree of precision. It does not merely repeat the statutory language but descends into detail to provide content of the conduct alleged to have been engaged in by the applicant. Accordingly, it sufficiently describes the nature of the offence to meet the test of sufficiency to indicate the area of search.

92    I do not make orders 1 and 2 of the amended originating application dated 13 December 2022. In light of the position explained above at [2], orders 3 and 4 of the amended originating application dated 13 December 2022 do not arise for consideration.

Associate:

Dated:    28 April 2023