Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police

[1991] FCA 165

Re: BENEFICIAL FINANCE CORPORATION LTD and OTHERS
And: COMMISSIONER OF AUSTRALIAN FEDERAL POLICE AND OTHERS
No. G123 of 1991
FED No. 165
52 A Crim R 423

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

HEARING

SYDNEY

#DATE 28:3:1991

Counsel for the Applicant: I Gzell, QC and F Carnovale

Solicitors for the Applicant: Smits Leslie Barwick

Counsel for the Respondent: M Weinberg, QC and G Niemann

Solicitors for the Respondent: Director of Public Prosecutions

JUDGE1

Last Friday I gave judgment on an interlocutory application made by a number of persons in respect of seven search warrants. I indicated in that judgment that I was of the opinion that three of the warrants were invalid; but I was not similarly satisfied in respect of the other four warrants. I made interlocutory orders and, at that time, I continued the liberty to apply on one hour's notice which had been granted when the ex parte orders were made by me two days earlier.

1. On Monday last, 25 March, the applicants took advantage of the liberty to apply. The matter was mentioned during the course of the day, when the applicants raised two problems. In the first place they referred to the fact that they had not been furnished with copies of all of the warrants which had been issued in relation to the investigation by the Australian Federal Police into their activities.

2. As I indicated in the judgment last Friday, only seven warrants were before me at that time. But the parties had come to an agreement in respect of the remaining warrants. At that time the total number of warrants was believed to be 37. However, it appeared on Monday that not all of these warrants had been made available to the applicants. I took the view that this should be done. I made some directions for production of the remaining warrants. These directions, apparently, were complied with.

3. The second matter that was raised on Monday related to access by the applicants, or their legal advisers, to the various informations which had been put before the justices of the peace, in the case of the warrants under s.10 of the Crimes Act 1914, or the various Supreme Court judges, in the case of the warrants under s.71 of the Proceeds of Crime Act 1987. Counsel for the applicants indicated that they wished to amend their clients' Application so as to claim, not only that the warrants were defective in form - the issue dealt with by me on an interlocutory basis last Friday - but also that there was no evidence to justify the decision to issue them and that this decision was unreasonable. The applicants have since filed an amended Application which includes these grounds.

4. On Monday, I declined to make an order for production of the informations to the applicants. But I did direct that copies of the informations be brought to Court on Wednesday morning, when I would consider further the question whether they should be made available to the applicants or their legal advisers.

5. Yesterday the informations were brought to Court. Although no subpoena was issued and there was no formal discovery process, there was debate before me yesterday on the same basis as if there was a relevant subpoena.

6. The Director of Public Prosecutions, Mr Weinberg QC, appeared with Mr Niemann. He put a broad submission that, in a case such as this, the Court should never compel the production to an affected person of the information pursuant to which a search warrant was issued. In support of his submission, he referred to a decision of Forster J in Marinovich v Director of Public Prosecutions, 14 ALD 315.

7. In that case, an application was made for access to the affidavit of the police officer which led to the issue of a listening device warrant. Public interest immunity was claimed. In responding to that claim, counsel for the applicant said that he wished to have access to the material in order to determine whether he could rely upon the principle applied in Bunning v Cross (1978) 141 CLR 54, to have the magistrate dealing with the pending committal proceeding reject the evidence obtained by the use of the listening device; which, if the affidavit were inaccurate or untruthful, would have been improperly obtained. Forster J said that the short answer to this argument was that the application was "plainly a 'fishing expedition'", that the applicant had no reason to suppose that the affidavit was inaccurate but that he was simply hoping that it was, or that something useful to the defence would be turned up by an examination of the affidavit.

8. In the present case, Mr Weinberg submitted that the desire of the applicants to see the informations placed before the justices and the Supreme Court judges was also a "fishing expedition", that the applicants had no reason to suppose that these informations were inadequate to support the issue of the warrants but were hoping that something would turn up.

9. In response to this submission, counsel for the applicants referred to a comment made by Lockhart J in Arno v Forsyth (1986) 65 ALR 125 at 131. In that case his Honour said:
   

"The parties chose to conduct the case before the primary judge in this Full Court on the footing that the question of the warrant's validity on its face should be

determined without reference to the information on oath

which was before the justice when he issued the warrant. Hence the information is not and has not been before the court at any stage. This course was deliberately taken

by the parties but it has certain unsatisfactory

features. The cases show that questions of validity of

search warrants are generally decided with the

information before the court and often turn on the terms of the information itself. More than one question argued before us would, I think, be difficult, if not

impossible, to decide without knowledge of the contents

of the information. I sound this cautionary note as a

guide to future litigants in cases of this nature."

1. I think it is apparent from that passage that his Honour was of the view that in many cases the information will be available to a party seeking to attack the validity of a warrant, and to the Court in evaluating that attack.

2. If a person is affected by a search warrant - in the sense that his or her premises are able, pursuant to a warrant, to be entered and searched, and documents seized - it is reasonable, as a matter of principle and subject to any valid specific objection, that the affected person be able to see the material which occasioned, and is said to justify, the issue of the warrant. Perhaps this can be described as "fishing". I would prefer to say that it is simply a case of a person, who is adversely affected by the exercise of an executive power, being able to understand the basis upon which the power was exercised. However, this general principle has to be considered subject to any specific, competing objection. I merely say, at this stage, that I would not be prepared to uphold the wide first submission put by Mr Weinberg.

3. However, Mr Weinberg went further. He put a second submission relying on the doctrine of public interest immunity. In order to found that submission, counsel for the respondents relied on an affidavit sworn by Jeffrey Phillip Penrose, a detective superintendent of the Australian Federal Police and one of the police officers who has been involved in the investigation which gave rise to the issue of the various search warrants; indeed, Detective Superintendent Penrose says in his affidavit that he has been supervising that investigation since the matter came to the notice of the Australian Federal Police late last year.

4. It is not necessary for me to set out all of the material in Detective Superintendent Penrose's affidavit. The affidavit refers to the history of the investigation. The deponent makes the point that he has not had sufficient time to go through all of the material which was included in the various informations in order to isolate and identify each specific passage or document whose production would be inimical to the public interest. However, he does state three objections to production in general terms. I think that I should set out what he says in regard to those matters, in paras 11, 12 and 13 of his affidavit:
   

"11. In addition to the matter which were the subject of the warrants already issued, there are also separate

inquiries being pursued into related matters which are

directly referred to in certain of the informations.

These related matters involve offences which are

extremely serious in nature. The fact that criminal

investigations are being carried out into these related

matters is not known to the persons or entities who are

the subject of those investigations. Were that fact to

be discovered, it is my belief that the investigations

would be impeded, if not wholly frustrated, because steps would be likely to be taken by those persons or entities to conceal or destroy evidence relating to those

matters. There is also a realistic possibility that

exculpatory evidence may be manufactured by them.

12. The information set out the names of a number of

potential witnesses who have been interviewed in relation to these matters. There are also a number of potential

witnesses identified who have not yet been spoken to.

Were their names to be revealed to the applicants at this stage of the investigation, it is my belief that the

investigation would be impeded, if not wholly frustrated, because there is a realistic possibility that steps would be taken by the applicants, or on their behalf, to induce these potential witnesses to be unco-operative or untruthful.

13. The informations contain details of avenues of

inquiry which have been completed. There are, however,

also a large number of other avenues of inquiry which

should be pursued, and which it is intended will be

pursued. I believe that from a reading of the

informations, a person who may be criminally involved in this matter, or in the related matters referred to in

those informations, would be able to deduce what form

those other inquiries may take, and adopt a course of

conduct designed to thwart them."

1. Detective Superintendent Penrose goes on to express the belief that, if the informations in their entirety were produced to the applicants before inquiries had been completed, irreparable damage may be done to the investigation and to any possible prosecution and, accordingly, that it would not be in the public interest to order that the informations be produced to the applicants at this time.

2. Notwithstanding what is said by Detective Superintendent Penrose, counsel for the applicants submitted that I should myself look at the subject documents in order to form a view whether it would be detrimental to the public interest for them to be produced at this time, in whole or in part, to their clients or their clients' legal advisers. They submit that it is for the Court, not for Detective Superintendent Penrose, to make the judgment whether, on balance, the damage to the public interest which would flow from production of the documents outweighs the general principle, which I have upheld, that persons in the position of their clients should be able to examine, and to challenge, the basis of executive action adverse to their interests. I think that this submission is correct. Accordingly, I have examined the considerable volume of documents which were produced by counsel for the respondents.

3. Because of one submission which was made to me this morning, I should say that, in undertaking that task, I was not concerned in any way with the question whether the documents disclosed criminal conduct; or, if so, by whom or the nature of that criminal conduct. The material sets out a complex chain of events. The question of what, if any, criminal conduct occurred, and by whom, will be matters requiring close attention. Given the fact that any prosecutions will be an expensive business, I am sure that these matters will be considered at a senior level. I simply make the points that I have not directed my mind to those questions and that the views that I express in regard to the claim of public interest immunity should not be taken as an expression of any attitude about the matter of criminality.

4. The question which I had to ask myself, in going through the documents, was whether the matters put forward by Detective Superintendent Penrose had any substance; and, if so, whether their significance was such that they outweighed the general principle to which I have referred, that a person who is affected by the exercise of executive action, should ordinarily be allowed to see the basis upon which that action was taken. Questions of degree are involved, because the whole question of public interest immunity is a balancing matter. See the comment of Bowen C.J. in Young v Quin (1985) 59 ALR 225 at pp 229-230.

5. Having looked at the documents, I have reached the firm conclusion that the claim made on behalf of the respondents, and articulated by Detective Superintendent Penrose, should be upheld.

6. Submissions have been put to me this morning by Mr Carnovale, on behalf of the applicants, about the possibility of the documents being edited so as to black out names and other details. I have given this possibility some thought. Indeed, I did so yesterday, when I was looking through the documents. But it would be an impossible task to so edit the documents that they avoided the problems to which Detective Superintendent Penrose alluded, and yet provided to the reader some idea of what the documents were saying. Even if one were to black out names, the context would, I think, enable an informed reader to make an accurate guess as to the particular person or persons referred to.

7. Mr Carnovale has pointed out that this is not a case such as that which is commonly met, perhaps especially in drug cases, where there is concern about the identity of police informants being revealed. Nor is it a case where there is concern, of what might be called an "institutional character", in terms of the relationships between an Australian police force and its overseas equivalents.

8. Mr Carnovale is entitled to make the point that these are not matters which emerge in the present case. Nonetheless, confining myself to the problems mentioned by Detective Superintendent Penrose, I think that each of the three grounds to which he refers are made out. As he says in para 11, there are separate inquiries being pursued into related matters. This much emerges clearly enough from the documents which I have seen; although of course there may be other documents, which were not produced to the issuing justices and judges, which relate to the separate inquiries and which I have not seen.

9. It is true that it would be possible to take from the file some of the documents relating to separate inquiries. By definition, they are not documents which the respondents could claim to support the issue of the present warrants. But the problem is that, in some cases, a particular document is not only relevant to the offences referred to in the various warrants, but also bears upon the separate inquiries. Once again it is theoretically possible to do an editing exercise but I think that the result would be documents which were of no assistance to anybody, documents which would not assist the applicants in making good the two grounds to which this question is relevant; that there was no evidence before the issuing justices and judges, or, alternatively, that their decision to issue the warrants was unreasonable.

10. The second ground refers to the names of potential witnesses who have been interviewed, and those identified but not yet spoken to. I think that this is a matter of concern. I am not in a position to evaluate the likely consequence of those names being revealed. But I see no reason to doubt the view expressed by Detective Superintendent Penrose. He is not only a senior police officer but he is a person who is fully cognisant of the investigation. He must have a much better idea about the reaction of any people who might be contacted than I could possibly have. Once again, I have considered the possibility of editing out names but I make the same comment as before; the result would be an incomprehensible document.

11. The third matter, which is referred to in para.13, refers to avenues of inquiry which are intended to be pursued, but have not yet been pursued. I think, once again, that this is a legitimate concern. I do not see how one could edit out material to remove the likelihood that an informed reader would gain an appreciation of what was the nature of the investigations and would deduce what course they might take in the future.

12. Essentially, the difficulty is that the documents set out a lot of detailed material, which needs to be considered as a whole in order to get a picture of the consequences in terms of possible criminal conduct. If the problems which were articulated by Detective Superintendent Penrose were to be avoided, there would have to be so much exclusion or editing of documents that the amount which could be made available to the applicants would become quite farcical. They would be left with documents which could not possibly support a submission that there was no evidence or that the issue of the warrants was unreasonable, simply because the material to which they were able to refer the Court would be only a tiny proportion of the whole.

13. Because of my general approach to this matter, it is with some reluctance that I come to the conclusion that access to the documents should be denied; but I think that it would be irresponsible for me to take a different course. I have to uphold the claim for public interest immunity and refuse the application of the applicants for access to these documents. That leaves the question of the future course of the case, a matter upon which I would wish to have submissions from counsel.