Carbone v Police Commissioner Hunt & Ors No. Scgrg-97-1380 Judgment No. S6489

[1997] SASC 6489

CARBONE  v  POLICE COMMISSIONER MR DAVID HUNT,

ACTING POLICE COMMISSIONER MR HURLEY,
CHIEF INSPECTOR FINNEGAN

DOYLE CJ

In these proceedings the plaintiff seeks an order quashing a search warrant and a consequential order directing the return to the plaintiff of property seized under the warrant. The search warrant is a general search warrant issued to Chief Inspector Finnigan under s67 of the Summary Offences Act.
The warrant is challenged on the ground that it was signed and issued by a person who lacked the authority to do so.
The warrant was executed on 27 April 1995.  A large number of documents belonging to the plaintiff were seized. The plaintiff asserted that many of the documents were protected from seizure by legal professional privilege. The plaintiff is a private investigator.  He claimed that many of the documents were privileged because they related to work done by him for solicitors or in relation to legal proceedings.  The plaintiff issued proceedings that challenged the validity of the warrant as well as asserting that some, or all, of the documents were privileged.
The documents were delivered to the Registrar of this court in the course of those proceedings. By agreement the documents were inspected by a solicitor.  Those not considered relevant to the matter under investigation were returned to the plaintiff.  The other documents were retained by the Registrar of this court, who still has possession of them.  The proceedings were then heard by Legoe J and on appeal by the Full Court.  The Full Court gave its decision on 26 March 1997.  The warrant was held to be valid in those proceedings or, to be more precise, the attacks upon its validity, made in those proceedings, failed. Some documents were found to be privileged and others were found to be not privileged.  An order was made directing delivery of the documents by the Registrar to the plaintiff or to the defendant Finnigan, depending upon the status of the document.
An application was made to the High Court for special leave to appeal.  Pending the hearing of that application, I stayed compliance with the order of the Full Court.  I have, in the course of dealing with the stay application, criticised the parties for the delays that have occurred in this matter.  The most recent stay was due to expire on Friday 12 December 1997, the day on which the present application came before me.  The plaintiff has recently abandoned the application to the High Court and so that application now presents no obstacle to compliance with the order of the Full Court.
The proceedings that are before me today were issued on 25 September 1997.  They challenge the validity of the search warrant on grounds not raised before.  I granted leave to serve the proceedings despite the delay, because it appeared that the plaintiff might have been inadvertently misled by the solicitor for the defendants in relation to matters relevant to the authority of the person who signed the warrant.
On Friday 12 December, when the present application came before me, I fixed the hearing of the judicial review proceedings for Thursday, 5 February 1998.  On Friday, the plaintiff sought an order directing the Registrar not to deliver to the defendants in these proceedings, the documents which the Full Court directed should be delivered to the defendants.  The plaintiff seeks that order pending the hearing and determination of the new challenge to the warrant.
No criminal proceedings have been instituted against the plaintiff relying upon the documents held by the Registrar, so far as I am aware.  It is not suggested that these documents are intended to be used in certain other charges against the plaintiff, pending in this court.  That is to be expected, because the police have not yet been able to inspect the documents now in issue.  These documents have been seized on the basis that there is reasonable cause to suspect that they may have been obtained by an offence or that they may afford evidence as to the commission of an offence.
On these facts the following issue arises.  Should I direct the registrar to withhold delivery of the non-privileged documents to the defendants, pending the Full Court's decision on the validity of the warrant under which the documents were seized?
The plaintiff's submission is as follows.  If the warrant is invalid, the seizure of the documents was unlawful.  If the seizure was unlawful, the documents should be returned to the plaintiff.  Until that issue is decided, the defendants should not be allowed to make use of the documents.  To allow the defendants to make use of the documents would be an intrusion upon the plaintiff's rights.  The police should not be allowed to try to get evidence against the plaintiff in that way.  The case will be heard fairly soon and no harm will be done if the police are denied access to the documents for another two or three months.  The latter point, I mention does not allow for a further application to the High Court for special leave to appeal.
The defendants' submission is as follows.  The Full Court has directed the Registrar to deliver the documents to the defendant Finnigan.  The stay of that order pending the application to the High Court has expired.  It is submitted that I lack the power to prevent compliance with that order.  The defendants also point to the delay and to the interference with the police investigation of a possible offence.  The defendants make the point that it is about two years and eight months since the documents were seized.  The defendants submit that it is an accident that the documents are in the possession of the Registrar.  That came about only because of the claim of legal professional privilege on behalf of third parties.  The defendants argue that if the documents had remained in the possession of the police, the return of them, pending the hearing of the challenge, would have been pointless because they would have already been examined or, alternatively, because that return would not have been ordered at an earlier stage.
The defendants also rely upon the decision of the Federal Court in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393. There Hill J held that although documents were seized under an invalid warrant, they should not be returned to the owner. Prosecutions had been commenced against the owner of the documents in that case. As to the possible use of the documents, Hill J said at (397) that:
"... at least some of the information obtained as a result of the execution of the warrants could be expected to be used"
in the prosecution.
The submissions by the parties were quite brief and were unencumbered by reference to authority other than Puglisi.  I regard the issues raised as important and quite difficult.  For that reason I adjourned the matter over the weekend, so that I could consider the submissions. I have decided to decide the matter now.  Calling for full submissions and reference to the cases, and preparing a reserved judgment, is likely, being practical about things, to delay the matter until quite close to the hearing date.  I think it better that I give my decision now, having had an opportunity to reflect on the matter.
The order sought is of a type, in my opinion, that the court can make in order to preserve rights pending the determination of litigation.  However, the actual order sought, an order directing the Registrar not to deliver to the defendant Finnigan the documents that the Full Court directed be delivered to her, is tantamount to a variation of the Full Court order.  I consider that I lack the power to do that.  If I make an order it must be consistent with the Full Court order.  However, I consider that an appropriate order that I could make is an order restraining the defendants in these proceedings, and there are defendants other than the defendant Finnigan, from examining or reading the documents or making other use of them once they have been delivered to the defendant Finnigan.
The question is, should I make such an order?  It must be remembered that the order sought is an order pending determination of a challenge to the validity of the warrant.  It is helpful to consider what might happen if the warrant were held to be invalid.  Would the documents have to be returned by the police to the plaintiff?
In Puglisi, Hill J dealt with an application by an owner of documents seized under an invalid warrant for their return.  As I mentioned earlier, a prosecution was on foot against Mr Puglisi by the time that Hill J gave his decision.  And, as I mentioned earlier, Hill J said that in that prosecution, at least some of the information obtained could be expected to be used against the owner of the documents.  Hill J referred to English and to Australian decisions and then he held at p.405:
"I am thus placed in the situation where there are competing views, although it must be said that the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence.  While the court would not wish to be seen to be rewarding members of the police who obtain possession of material without lawful authority, there is to be weighed against that a public interest in the administration of and non-interference with justice.  Should the court order that material, albeit invalidly obtained, to be used in evidence in a pending prosecution be delivered up to those from whom it was taken the prosecution, which might otherwise succeed, could be frustrated."
As I said, Hill J refers to decisions that support that view although there are conflicting decisions. The English cases referred to including Ghani v Jones [1970] 1 QB 693, do not seem to provide direct support for his conclusion. They deal with seizure under a valid warrant of goods not covered by the warrant. They assume an entry or search which is valid. I am also somewhat cautious about applying the dictum of Deane, Dawson, Toohey and Gaudron JJ in Gollan v Nugent (1988) 166 CLR 18 at 43 to 44. There, referring to the proceedings then before them, their Honours said:
"Thus, no issue is raised that the articles are required as evidence in any prospective trial, if in which event there would be a legitimate ground for retention of them by the police..."
Their Honours there relied upon the English decision in Malone v Metropolitan Police Commissioner [1980] QB 49. That case also dealt with seizure under a valid warrant and a complaint of unduly prolonged detention of the items seized. It did not deal with a seizure that was unlawful from the outset. That does not mean that what their Honours said in Gollan v Nugent is irrelevant. All it means is that I must be cautious in applying that dictum, because it was uttered in relation to a case in which there was a material difference, namely, the warrant was validly issued.
I also have to say that I have some reservations about the correctness of the decision in Puglisi.  If it is correct, it means that even though the invalidity of a warrant under which items are seized is established in judicial review proceedings, the court must, or may, depending on whether a discretion is involved, decline to order the return of the items to the owner.  This will be done if the items might or may well provide evidence of an offence or if there are reasonable grounds to suspect that that is so.  There are various possible formulations of the factual circumstances under which the items would not be returned to the owner.
This seems to me to imply a power of seizure, or at least of retention, not previously identified in the common law and of relatively wide scope.  It is a principle that requires careful consideration.  When I said that I have reservations about the correctness of the decision in Puglisi, I meant no more than that in the light of the importance of the matter, and in light of the dearth of authority on the point, that one must recognise the possibility that if the issue is considered on appeal, the matter would be decided otherwise.  Nevertheless, Puglisi is authority for the view that the police may retain items seized under an invalid warrant when the items may be, and Hill J was no more definite than that, used as evidence in pending proceedings.
As I implied a moment ago, it is unclear to me whether that decision was the exercise of a discretion or the  recognition of a right on the part of the police.
In the present case, no criminal proceedings are on foot, as I understand it, in which the documents in  question are likely to be used as exhibits.
The Solicitor-General invited me to apply Puglisi. He supported that submission by arguing that the plaintiff's protection against unauthorised use of his documents lay in the exercise of the discretion identified in Bunning v Cross (1978) 141 CLR 54. If the warrant is held invalid, and if the police later seek to use items seized in a trial, the court will have a discretion to reject their tender. Clearly, the court would have such a discretion in such circumstances. Its exercise does not, however, necessarily provide full protection. The items seized might be used to set in train a line of enquiry that could not later be sourced back to the documents.
There is also the fact that the use of the documents infringes the plaintiff's property and privacy rights. On the other hand, it seems to me implicit in Bunning v Cross that a finding that a warrant is invalid, does not, as Hill J found, mean that items seized will necessarily be returned to their owner. The very fact that the prosecution may, nevertheless, be permitted to retain and tender them, seems to assume that when the ruling of invalidity is made, the owner cannot simply insist upon the return of the items then and there. But, it should be noted, we are here concerned not with a collateral challenge to the warrant during the course of a criminal trial, but with a direct challenge, by way of judicial review, before criminal proceedings are on foot: see Ousley v R (1997) 71 ALJR 1548: 148 ALR 510.
It does not follow that because Bunning v Cross regulates events during a criminal trial, it should be treated as the only protection available to the owner of items seized under a warrant.  And, it may be that what I will call the Bunning v Cross situation is explicable on the basis that, in the case of a collateral challenge, the court does not have power to deal with the disposition of the things seized, but only with the validity of the warrant.
To my mind, the disposition of items seized under a warrant, being a warrant found to be invalid in proceedings by way of judicial review, raises some distinct issues. I do not consider that I have to resolve these issues, although they lie in the background and are relevant. I do not have to resolve them because they will arise only if and when the warrant is held to be invalid. The warrant in question has not yet been set aside. Until it is set aside, it should be presumed valid, as should be steps taken under it: Ousley v R (1997) 71 ALJR 1548 at 1581: 148 ALR 510 at 555, Gummow J.
The issue for me is, I consider whether I should prevent access to the documents pending the challenge to the warrant's validity, bearing in mind that if the warrant is invalid, it may be that the documents should be  returned, (that will depend upon the Full Court's attitude to Puglisi) and, bearing if mind that the Bunning v Cross discretion will offer the plaintiff some protection if a prosecution later takes place.
In considering the exercise of my discretion, a discretion to make an order pending a decision in the judicial review proceedings, I take into account the following matters.
First, the presumption already referred to.  I regard that as the starting point and a matter of some weight.
Second, the fact that the order sought will impede investigation of a suspected offence.  I regard this as a weighty consideration.  If orders such as are sought here, come to be made, the public interest in the prompt investigation of suspected offences will be prejudiced.  I  regard this as a relevant factor, despite the delay that has already occurred.
Thirdly, the later availability of the Bunning v Cross discretion as a protection for the plaintiff.  However, I accept that it does not afford complete protection.
Fourthly, the fact that it is not clear that the plaintiff has a right to the return of the documents if the warrant is invalid.  And, indeed, such authority as there is might suggest otherwise.
Fifthly, although this may be just another aspect of the second matter, I bear in mind the undesirability of the courts interfering with the investigation by the police of suspected offences.
Sixthly, the possibility, on the other hand, that if the warrant is invalid, the Full Court might order the return of the documents.  And, in that event, giving the police access in the meantime will mean that they acquire information despite their wrongful possession of the documents, as the possession then would be.
Seventhly, the plaintiff's interest in the protection of his property and privacy, matters regarded as important by the common law.
Eighthly, the fact that the alleged defect in the warrant is one that could easily be remedied by the issue of a fresh warrant, which could be executed as soon as the documents were returned to the plaintiff.
Weighing all these matters up, I have come to the conclusion, that it is not appropriate to interfere with the execution or enforcement of the warrant, pending the determination of the judicial review proceedings.  I consider that events should be allowed to take what is, at  present, presumed to be their lawful course.  I, therefore, refuse to make the orders sought by application dated 2 December 1997.
On the application dated 2 December 1997, the orders will be:

1. The application made in para 1 is dismissed.

2. That there be no order as to the costs of the application.