Brewer, Richard James v Castles, Shane Francis

[1984] FCA 45

Re: RICHARD JAMES BREWER
And: SHANE FRANCIS CASTLES; BRETT JACKSON; PATRICK QUINN; CARLO GRASER;
JOHN CHARLES LEVETT
No. G58 of 1984
Administrative Law
1 FCR 55 / 52 ALR 577

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative law - Validity of search warrant - Lack of specificity

Crimes Act, 1914, s.10

R. v. Tillett (1969) 14 F.L.R. 101 - con.

HEARING

SYDNEY

#DATE 13:3:1984

ORDER

1. I refuse the declaration sought by the applicant that the subject warrant is bad for lack of specificity.

2. Costs reserved.

3. Adjourn the further hearing of the proceeding until 22 March, 1984.

JUDGE1

In reasons for judgment dated 9 March, 1984, it was held that the Court had jurisdiction to deal with this proceeding. There has now been argued, as a separate question, the point whether, as the applicant contends, the warrant is too wide and therefore bad (see The Queen v. Tillett (1969) 14 F.L.R. 101).

The warrant recites that the fifth respondent is satisfied by information on oath that "there are reasonable grounds for suspecting that there are in . . . the premises . . . things being the original of (sic) copies of (the documents specified) . . . and other documents and instruments all of which have been produced or held by, for, or in respect of, Leonard Noel Briot and/or other persons namely:

(list of names follows)

as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of any offence against a law of the Commonwealth namely:

(three laws are specified)

by the aforesaid Briot, and the aforesaid named persons in any combination and with any person or persons unknown."

The warrant then confers authority on the first respondent in these terms:

"YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time the said place if necessary by force and to seize the said:

correspondence, prospectuses, company records, opinions of counsel, purchase orders, sales invoices, receipts, journals, ledgers, accounting records, bank statements, cheque butts, diaries, books, contracts, agreements, memoranda of understanding, leases, mortgages microfilm copies of documents, computer tapes, cards and print-outs, assignments of debt, power of attorney and documents referring to or quoting Sales Tax Certificate of Registration numbers, common seals, and other documents and instruments as to which there are reaonable (sic) grounds for believing that it will afford evidence as to the commission of any such offence and for so doing this shall be your sufficient warrant."

It is submitted on behalf of the applicant that the warrant, when properly construed, purports to authorise the first respondent, as a member of the Australian Federal Police, to seize all documents on the subject premises and that such an unlimited power of seizure goes beyond what s.10 of the Crimes Act can authorise (see Tillett at pp.109 et seq.)

In Tillett, Fox, J. said (at pp.112-113):

"What s.10 authorizes to be seized is therefore any 'thing' which is, in the way required by the section, related to a particular offence. The warrant cannot authorize the seizure of things in general or things which are related to offences in general. In my opinion the warrant should refer to a particular offence and authorize seizure by reference to that offence. It follows that in my opinion the warrant is bad in this respect also.

It has been argued that there is no reality in a distinction between reference to a particular offence, and reference to none, or to offences in general, because, so far as search is concerned, those executing the warrant will have to search as widely and generally in the one case as in the other. This argument ignores the emphasis the section places on seizure, but is unsupportable in any event. Apart from considerations I have already mentioned, it is not correct as a purely factual matter; the search must have a purpose and what may be searched as relevant to one purpose may or may not be as extensive as that which has to be searched as relevant to another purpose."

(See also Crowley v. Murphy (1981) 34 A.L.R. 496 per Lockhart, J. at pp.515 et seq., cf. Trimboli v. Onley (1981) 37 A.L.R. 38).

The question is thus one of construction of the warrant.

In its terms, the warrant purports to authorise seizure of "the said . . . (correspondence and other specified documents) . . . and other documents and instruments as to which there are reaonable (sic) grounds for believing that it (sic) will afford evidence as to the commission of any such offence". It is true that, in some minor respects, the description of specific documents in the operative part of the warrant differs from the recitals (see infra). It is also true, as the decisions in Tillett and Trimboli show, that difficulties of construction can arise where use is made of terms such as "the said" and "such" in an endeavour to refer back to earlier material (see infra). But, as Fox, J. said in Tillett (at p.125 and p.110 respectively), each case must depend upon its own facts and the question is one of impression, looked at from the standpoint of the ordinary person reading the warrant.

In my opinion, the operative portion of the warrant would be understood by the ordinary person reading it to authorise the first respondent to seize, first, the specific documents mentioned e.g., correspondence produced or held by, for, or in respect of the persons, firms and companies nominated as to which the specified grounds exist; and secondly, any other documents held on the subject premises produced or held by, for, or in respect of those persons, firms or companies as to which the specified grounds exist.

This construction of the operative portion of the warrant does, of course, depend upon attributing to "the said" where used after "to seize" a meaning which, in other contexts, may leave room for argument as to their operation, as Trimboli, supra, indicates. A similar comment could be made of the reference to "such" offence in the second last line of the warrant (see Tillett, supra, at pp.110-111). But whatever difficulties may have been experienced in other cases in attempting to incorporate earlier material by reference by the use of such terms, the language of the subject warrant is sufficiently clear, in my view, to give it the meaning already described.

In arriving at this conclusion, I have taken into account, in particular, the facts, first, that there is a slight difference in the order of the nominated documents in the operative part of the warrant when compared with the recitals; and secondly, that computer tapes are not referred to in the recitals. In my opinion, neither of these matters invalidate the warrant: as Fox, J. held in Tillett, the operative words of a warrant should not ordinarily be confined by reference to the recitals (at p.111).

In Tillett, Fox, J. said (at p.114):

"In the present case, it is argued on behalf of the applicants that the warrant is also defective because (a) it does not sufficiently specify the documents or things to be seized . . . Submission (a) is not in my opinion a valid objection in so far as it involves that there must necessarily be something in the nature of an itemization or specific description of particular documents or things. The generality of the warrant will be sufficiently narrowed in the present case if the offence is specified. This doubtless leaves the constable with some degree of discretion, but clearly that was intended. The fact is that the ambit of the discretion is to some extent circumscribed, and there is some basis for keeping his activities within proper limits."

His Honour thus emphasised the importance of specifying the offence in question. In Tillett, the principal warrant made no reference to any offence in its operative words and in the recital reference was merely made to things as to which "there are reasonable grounds for believing that the same will afford evidence as to the commission of an offence against the Commonwealth Crimes Act in such case made and provided" (see at p.105 of the report). Thus, no specific offence was singled out, even in the recitals. In the present case, three offences are nominated, notwithstanding that the description of the second offence is necessarily general in terms. But, in my opinion, the description of the apprehended offences in the subject warrant is sufficiently definite to indicate the nature of the documents, if any, to be seized.

In my view, the proper construction of the warrant calls for a consideration of the instrument as a whole. In that regard, it may be accepted that the operative words of the warrant should not be restricted or otherwise governed by its recitals. But this does not mean that, in construing the operative words, it is not permissible to read the document as a whole. In particular, in my opinion, it is appropriate to employ language in the operative portion of the warrant which incorporates by reference material in the recitals, provided the process gives a result which is reasonably clear to the ordinary reader and is sufficiently specific in terms of identifying a particular offence: to incorporate material by reference in this manner is to do no more than to read the operative words in their general context.

In my opinion, the present warrant is reasonably clear in its operation and it does achieve the degree of specificity thus required. I do not think that, on a fair reading, the warrant can be "read up" into an unlimited power of seizure as the applicant suggests. I therefore refuse to make the declaration sought by the applicant to this effect. I will now proceed to hear the further challenges to the warrant and its execution made on behalf of the applicant.

I make the following orders:

1. I refuse the declaration sought by the applicant that the subject warrant is bad for lack of specificity.

2. Costs reserved.

3. Adjourn the further hearing of the proceeding until 22 March, 1984.