Beneficial Finance Corporation Ltd v Commissioner of the Australian Federal Police

[1991] FCA 140

Re: BENEFICIAL FINANCE CORPORATION and OTHERS
And: COMMISSIONER OF AUSTRALIAN FEDERAL POLICE and ANOTHER
No. G123 of 1991
FED No. 140
Criminal Law
21 ATR 1584

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Criminal Law - Search warrants - Validity of warrants - Whether warrants indicated offences - Particularity of description of things authorised to be seized - Whether issuing Justice must certify his or her satisfaction that some other person reasonably suspects commission of offences.

Crimes Act 1914, s.10

Proceeds of Crime Act 1987, s.71

Administrative Decisions (Judicial Review) Act 1977, s.5

HEARING

SYDNEY

#DATE 12:4:1991

Counsel for the applicant: I. Gzell, QC and F. Carnovale

Solicitors for the applicant: Smits Leslie Barwick

Counsel for the respondent: G. Niemann and G. Nicholson

Solicitors for the respondent: Director of Public Prosecutions

ORDER

Warrants 21 and 27 referred to in the Amended Application be quashed.

Respondents numbers 1 and 7 to 12 inclusive and each and every one of them be restrained from taking any steps further to execute the said warrants.

Within two working days respondent number 1 cause to be returned to the persons from whom, or from whose premises, they were taken all things seized pursuant to warrants 21 and 27 or either of them.

Order No.3 herein be suspended until further order of a Judge or of the Court.

The claim of the applicants in respect of warrant 1 referred to in the Amended Application be dismissed.

Notwithstanding order 5, respondent numbers 1 and 7 to 12 inclusive and each of them be restrained, until further order of a Judge or of the Court, from examining or using for any purpose any of the things taken pursuant to the said warrant except for the purpose of giving effect to any request by any person from whom, or from whose premises, they were taken for access to, or provision of a copy of, any particular thing.

Respondents numbers 1 and 7 to 12 inclusive pay to the applicants one-half of their costs of these proceedings including the amount of money referred to in order 4 made on 22 March 1991.

There be liberty to apply on 24 hours notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

JUDGE1

On 28 March 1991 I dealt with an application made on behalf of the applicants for access to the informations pursuant to which the subject search warrants had been issued. I declined access and, in the ensuing discussion with counsel, I expressed the opinion that the result was to render it impossible for the applicants to succeed on either of the grounds added in the Amended Application: no evidence and unreasonableness. I also alluded to the fact that I had already granted the parties leave to appeal in connection with my decision of 22 March 1991 dealing, although only on an interlocutory basis, with what seemed to me the real issue in the case: the form of the warrants. I indicated a view that the resolution of that issue was unlikely to be assisted by further evidence and I suggested that it might be desirable for the parties to dispense with a final hearing and immediately proceed with the appeal against my decision on the matter of form which each side had indicated a desire to make. In that connection, I had made enquiries as to the possibility of an early appeal hearing date and was able to inform counsel that, if their instructing solicitors urgently undertook the necessary steps, it seemed that a Full Court could hear the matter before the end of April.

1. In response, junior counsel for the applicants said that he accepted that, without access to the material supporting the informations, his client could not hope to succeed on the two added grounds. But he said that his clients would prefer that any appeal be from a final order, rather than an interlocutory order, even though that final order was based only upon the matter of form. He suggested, therefore, that there should be a final hearing but that, as his clients wished an early appeal date, this not be allowed to cause delay. Counsel indicated that his clients would not wish to adduce any further evidence at the final hearing and would be content merely to provide written submissions on the issue of the form of the warrants.

2. Counsel for the respondents indicated dissatisfaction with this course, contending that nothing would be gained by it as it was clear that, in any event, the arguments as to form would be fully ventilated before the Full Court. He expressed concern about delay in the final resolution of the case, contending that this was likely significantly to impede the investigation being undertaken by the Australian Federal Police.

3. For the reason given by counsel for the respondents, I doubted the utility of the course suggested by the applicants. But it seemed to me difficult to deny the applicants a final hearing, if they pressed for it; and it seemed to me that the course which they suggested need not necessarily preclude an appeal hearing during April. Accordingly, I indicated that I would deal with the matter by way of written submissions, as requested, and I would make final orders on Friday, 12 April. I made directions for the supply to my associate of written submissions by particular dates. I suggested that, in the meantime, the parties should approach the Registrar for the tentative allocation of a hearing date. I understand that 24 April has been tentatively appointed.

4. The parties did forward written submissions. The submissions confine themselves to three only of the search warrants, these three being selected as representative, between them, of all the warrants. The three selected warrants are: warrant No.1 in the Amended Application, being a warrant issued under s.10 of the Crimes Act 1914 in respect of the premises occupied by Beneficial Finance Corporation Limited at 33-37 Franklin Street, Adelaide; warrant No. 21 in the Amended Application, being a warrant issued under s.10 in respect of premises occupied by Beneficial Finance at 30 Clarence Street, Sydney; and warrant No. 27, being a warrant issued under s.71 of the Proceeds of Crime Act 1987 in respect of various premises in South Australia. In my decision on the interlocutory application, on 22 March 1991, I had expressed the view that the second and third of these warrants, but not the first, was invalid; and interlocutory relief had been moulded accordingly.

5. In their written submissions counsel for the applicants requested me to "make final orders, on the issue as to whether the warrants are bad on their face, only in relation to the three warrants". They indicated an understanding that the respondents would give appropriate undertakings in relation to the remaining warrants, an understanding which counsel for the respondents confirmed in their responding submissions.

6. However, counsel for the applicants went on to propose a course which would depart markedly from that agreed on 28 March. They requested me to make an order under Order 29 rule 2 for separate trial of the issue of form. They said that "(i)n the event that the Court finds against the applicants on this question in relation to the whole or part of any of the three warrants, the applicants seek leave to appeal from the judgment on that separate question". They foreshadowed that the remaining issues involved in the Amended Application might be the subject of a separate hearing following, and depending upon the outcome of, the appeal. They went on:
   

"In the present case it is submitted that the Court's decision to uphold the respondents' claim for public interest immunity in relation to certain documents does not mean that the applicants will be bound to fail in relation to the other issues raised in the Amended Application. It is still open, for example, to the applicants to demonstrate, by the oral evidence of the persons who issued the warrants, that not all of the preconditions necessary for the issue of the warrants were satisfied. Such evidence would not necessarily have to disclose matters which are protected from disclosure by the principle of public interest immunity. Accordingly, contrary to the first reaction of the applicants as to the future of the proceedings following the Court's ruling on the question of public interest immunity in relation to the material that was before the issuing Justices, the applicants now wish to have the remaining issues dealt with in a separate hearing following the outcome of the appeal."

1. The course suggested by the applicants is opposed by the respondents. They point out that nothing has been put before the Court to suggest a reasonable prospect that, even with oral evidence from the people who issued the warrants, either of the relevant grounds could be made out. They say that:
   

"... it is apparent that the course of action proposed by them involves calling a series of Supreme Court Judges and magistrates to give evidence concerning the circumstances surrounding the issue of the various warrants and examining them at large, in the hope that something of relevance will emerge therefrom. It is submitted on behalf of the Respondents that such a speculative exercise amounts to an abuse of the process of the Court and should not be permitted."

1. I would not put the matter in terms of abuse of process, but I agree that the course suggested by counsel for the applicants should be rejected. Relief under the Administrative Decisions (Judicial Review) Act 1977 is discretionary. It is important to avoid taking a course which will unreasonably intrude on pending proceedings or actions: see Lamb v Moss (1983) 76 FLR 296 at p 312 and Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462 at p 469. It is one thing for this Court, on review under the Administrative Decisions (Judicial Review) Act to examine the form of search warrants in order to determine whether they comply with the relevant statutory requirements, or even to examine the documents put before the issuing judicial officers in order to determine whether their decisions were based on proper evidence and were reasonable. It is another thing to embark upon an interrogation of the judicial officers as to the circumstances surrounding the issue of the warrants when such interrogation must inevitably delay, perhaps for a considerable period, finalisation of the challenge to the validity of the warrants and access by the investigating authorities to the material taken under any warrants not defective in form. Particularly is this the case where there is not a tittle of material to suggest any impropriety in the issue of the warrants, matters of form aside, and where questioning of the issuing officers would almost certainly result in a problem of public interest immunity. No doubt the judicial officers could be asked formal matters, such as their state of mind, but it is difficult to see what questions could be asked, relevant to the two grounds raised by the Amended Application, which did not require reference to the material placed before them.

2. I propose to adhere to the course agreed on 28 March and today make final orders, in disposal of the matter at first instance.

3. I turn now to the substance of the matter. The written submissions deal only with the question whether the warrants were defective in form. This question was comprehensively and carefully argued at the time of the interlocutory hearing. As might be expected, much of the material contained in the written submissions repeats the oral interlocutory argument. Nonetheless I have read and carefully considered the written submissions. But I find myself unpersuaded from the views which I previously found and expressed in my judgment of 22 March. To express the matter in terms of the three warrants selected by the parties as test cases and identified above, I think that warrant no.1 is valid and that warrants Nos. 21 and 27 are invalid.

4. The major points raised by counsel for the applicants in their written submissions were argued at the interlocutory hearing. I dealt with those points at some length in the reasons for judgment delivered on 22 March. I adhere to the views which I there expressed and I see no point in repeating them. The arguments of the respondents in connection with warrants Nos. 21 and 27 were also put at the interlocutory hearing. I adhere to my then expressed reasons for arriving at the view that these warrants are invalid. Having regard to that view, it is unnecessary for me to deal with the applicants' additional submissions in relation to these warrants. But this leaves some new objections to the form of warrant no.1. As the matter is, in any event, to go before a Full Court at an early date, I see little value in my taking the time to deal in detail with these new objections. It is sufficient for me to say, with respect to counsel, that each of the objections seems to me to stem from a forced and unnatural reading of the document. Counsel's arguments are the product of an approach which asks what possible difficulties can be found in a particular portion of the warrant, reading it in isolation, rather than whether, reading the warrant as a whole, there is any difficulty in understanding what is intended. Moreover the arguments tend to ignore the observations of Lockhart J. in Arno v Forsyth (1986) 65 ALR 125 at p 139 to which I drew attention on 22 March. For example, the applicants' first point is that the warrant does not recite the satisfaction of the justice that each and every one of the items mentioned in what is called the first condition of the warrant is reasonably suspected to be on the premises; it recites satisfaction that, on the premises, there were "any one or more" of the listed items. The effect of the submission, if it is correct, is that the person seeking the issue of a warrant must identify to the justice the precise nature of the thing authorised to be seized. This would often be impossible. More importantly, it is not something required by s.10 of the Crimes Act itself, as I read it. Section 10 requires the justice to be satisfied that there is reasonable ground for suspecting that there is in or upon the premises "anything" which answers a description set out in para. (a), (b) or (c). No doubt the warrant should set out as precisely as possible the nature of the thing which the justice has in mind, so as to limit to the minimum the extent of the intrusion effected under the warrant. But the justice is not required to know the precise nature of the thing; to know, as the applicants' submission would have it, whether relevant financial information is to be found in books of account such as ledgers and journals or merely in cheque books and bank statements. I think that it is enough that the justice reasonably suspects the presence on the premises of one or other of these.

5. I could go on, making similar comments about the other new objections taken by counsel. But, for the reasons I have given, I do not propose to do so. It is more important to make the final orders promptly so that the Full Court can review the whole matter at an early date.

6. I propose to make an order quashing warrants 21 and 27 but dismissing the applicants' claim in respect of warrant No. 1. The present interim orders will be continued pending further order, thus maintaining the status quo for such period as may reasonably be necessary for the Full Court to deal with it.

7. In relation to costs, I have already made two orders. The first of them makes a particular amount of money, including one-half of the applicants' costs of the interlocutory application, the applicants' costs in the cause. As the applicants' have achieved favourable final orders in respect of warrants Nos. 21 and 27 they should have these costs, together with one-half of the costs of the final hearing. They should not have their full costs as the respondents have succeeded in connection with warrant No. 1, whose fate will, of course, also govern the fate of some of the other warrants.