Adler v Gardiner

Case [2002] FCA 1141

FEDERAL COURT OF AUSTRALIA

Adler v Gardiner [2002] FCA 1141

CORPORATIONS – offences – search warrants obtained by Australian Securities & Investments Commission authorising members of Australian Federal Police to search premises – member of Australian Federal Police and officers of Australian Securities & Investments Commission searched premises and seized documents – whether ASIC officer was authorised by executing officer to “assist in executing the warrant” as a “constable assisting” within the terms of s 3C Crimes Act 1914 (Cth) – whether documents seized “afford evidence” as to the commission of an offence within the terms of s 3 Crimes Act 1914 (Cth) – whether executing officers properly ensured that documents seized fell within the terms of the warrant – whether decision to seize documents was an improper exercise of power – whether seized documents fell within the terms of the warrant

Crimes Act 1914 (Cth) s 3C, 3E, 3F, 3F(1)(c)
Corporations Law s 588G

Williams v Keelty (2001) 111 FCR 175 referred to
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 considered
George v Rockett (1990) 170 CLR 104 applied
Parker v Churchill (1985) 9 FCR 316 applied
Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 applied
Harts Australia Ltd v Commissioner, Australian Federal Police [2002] FCA 245 applied
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 applied
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1994) 29 ATR 87 considered

RODNEY STEPHEN ADLER & ADLER CORPORATION PTY LIMITED  v PAUL GERARD GARDINER & ORS

N 1014 OF 2001

HELY J
13 SEPTEMBER 2002
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1014 OF 2001

BETWEEN:

RODNEY STEPHEN ADLER
FIRST APPLICANT

ADLER CORPORATION PTY LIMITED
SECOND APPLICANT

AND:

PAUL GERARD GARDINER
FIRST RESPONDENT

THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
THIRD RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

13 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The amended application be dismissed insofar as it seeks relief on the grounds alleged in paragraphs 6, 7 and 8(a) thereof.

2.The applicant pay the respondents’ costs incurred on and from 2 August 2002, including the costs of the hearing on 10 September 2002.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1014 OF 2001

BETWEEN:

RODNEY STEPHEN ADLER
FIRST APPLICANT

ADLER CORPORATION PTY LIMITED
SECOND APPLICANT

AND:

PAUL GERARD GARDINER
FIRST RESPONDENT

THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
THIRD RESPONDENT

JUDGE:

HELY J

DATE:

13 SEPTEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 25 June 2001 Glendon Michael Unicomb (“Mr Unicomb”), an officer of the third respondent (“ASIC”), applied to the first respondent for the issue of search warrants under s 3E of the

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Details
AGLC
Adler v Gardiner [2002] FCA 1141
Case
[2002] FCA 1141
Decision Date

CaseChat Overview and Summary

Adler v Gardiner concerned a dispute regarding the validity and scope of a search warrant issued under the Crimes Act. The applicants argued that certain documents seized during the execution of the warrant were not within the scope of the warrant and thus should be excluded from any subsequent criminal proceedings. The court had to determine the legal parameters of what constitutes "evidence" under the Act and whether the seized documents fell within the warrant's scope.

The primary legal issue was whether the documents in question could ever be admitted in evidence in a trial related to the warrant offences and thus whether they were outside the scope of the warrant. The applicants argued that the documents could never be admitted in evidence and thus were outside the warrant's scope. The court held that the applicants' submission misconstrued the term "afford evidence," which could include documents that assist in disclosing the commission of an offence, even if they were not admissible at trial. The court emphasised that the term did not require the documents to be sufficient to achieve a conviction but only that they had a probative connection with the offence.

The court further explained that the executing officer's judgment at the time of seizure was crucial. While the officer must determine whether there are reasonable grounds for suspecting that a document will afford evidence, the officer's later conclusion that the document does not actually afford evidence does not necessarily invalidate the seizure. The judgment must be made at the time of seizure, and the warrant holder cannot selectively seize items and later determine their relevance.

Ultimately, the court dismissed the amended application to the extent it sought relief on the specified grounds and ordered the applicants to pay the respondents' costs incurred from 2 August 2002, including the costs of the hearing on 10 September 2002.

Orders

Orders of the court

1. The amended application be dismissed insofar as it seeks relief on the grounds alleged in paragraphs 6, 7 and 8(a) thereof.

2. The applicant pay the respondents’ costs incurred on and from 2 August 2002, including the costs of the hearing on 10 September 2002.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Both the Crimes Act and the warrant authorised search for, and seizure of, things as to which there are reasonable grounds for suspecting that they will afford evidence of the commission of an offence specified in the warrant. The applicants submitted that the disputed documents could never be admitted in evidence in a trial in relation to the warrant offences, hence they were necessarily outside the scope of the warrant. The submission misconceives the reach of the expression “afford evidence”. Bearing in mind that the power to issue a search warrant is in aid of a criminal investigation, a thing may afford evidence as to the commission of an offence, even though it may not be admissible in evidence at a trial: George v Rockett (1990) 170 CLR 104 at 119. 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: George v Rockett (supra) at 120. 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: Parker v Churchill (1985) 9 FCR 316 at 326. That includes things which are adjectivally relevant as well as things which are of substantive relevance: Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 at [30]-[31]. The executing officer’s state of mind The executing officer or constable assisting has to make a judgment as to whether seizure of a document is authorised by the warrant. The executing officer or constable assisting has to consider whether “there are reasonable grounds for suspecting” that the document will afford evidence as to the commission of a warrant offence. This is judgment which the executing officer must make in relation to every “thing” which is to be seized in reliance upon the warrant. But where the relevant thing consists of a folder or file, there may well be justification for an executing officer, or constable assisting, to take the entirety of the folder or file in which he or she locates an individual document itself within the warrant, because the context in which the document is found may itself be of assistance in evaluating the true evidentiary significance of the document in question: Harts Australia Ltd v Commissioner, Australian Federal Police [2002] FCA 245 at [39]. The judgment is one which must be made at the time of seizure. A warrant holder is not entitled to take anything which he or she chooses in purported reliance on the warrant and to leave it until later on, in the course of a subsequent examination, to determine whether any of the material taken falls within the terms of the warrant: Harts v Commissioner, Australian Federal Police (supra) at [24]. However, in an evidentiary sense, there is no necessary inconsistency between seizing documents in circumstances where the executing officer has an actual belief that there are reasonable grounds for suspecting that they will afford evidence of the commission of a warrant offence, and that same officer later coming to the conclusion on more detailed consideration of the document that it does not, in truth, have that effect: Harts v Commissioner, Australian Federal Police (supra) at [24].Ms Balding’s state of mind

Decision

Reasons for decision

HELY J

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Ratio Decidendi

Legal Principle Established

Established by: HELY J

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