CC v Rayney
[2012] WASC 56
•21 FEBRUARY 2012
CC -v- RAYNEY [2012] WASC 56
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 56 | |
| Case No: | SJA:1119/2011 | 3 FEBRUARY 2012 | |
| Coram: | COMMISSIONER SLEIGHT | 21/02/12 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| A | |||
| PDF Version |
| Parties: | CC LLOYD PATRICK RAYNEY COMMISSIONER OF POLICE |
Catchwords: | Criminal law and procedure Things seized purportedly under the Criminal Investigation Act 2006 (WA) Items not reasonably suspected of being things relevant to an offence Whether procedures under s 151 of the Act still apply Criminal law and procedure Whether police entitled to retain unlawfully seized items for forensic examination and to preserve evidentiary value Whether right to retain ceased Section 9 of the Criminal and Found Property Disposal Act 2006 (WA) Whether magistrate entitled to order return of items to owner |
Legislation: | Crimes Act 1914 (Cth) Criminal and Found Property Disposal Act 2006 (WA), s 3, s 9, s 11, s 13 Criminal Appeals Act 2004 (WA) Criminal Investigation Act 2006 (WA), s 4, s 5, s 7, s 133, s 145, s 146, s 151, s 152, s 154. s 155 District Court of Western Australia Act 1969 (WA), s 77 Interpretation Act 1984 (WA), s 19 Magistrates Court Act 2004 (WA), s 36 Police Act 1892 (WA) |
Case References: | Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 168 CLR 501 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Ghani v Jones [1970] 1 QB 693 Hart v Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FLR 384 Hewitt v Feinas [2005] WASCA 3 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335 Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 R v Mailes (2001) 53 NSWLR 251 Rayney v AW [2009] WASCA 199 Rayney v AW [2009] WASCA 203 Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137 Wright v Queensland Police Service [2002] QSC 46 Wright v The State of Western Australia [2010] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
- Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
- Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE CALDER
File No : APP 20 of 2010
Catchwords:
Criminal law and procedure - Things seized purportedly under the Criminal Investigation Act 2006 (WA) - Items not reasonably suspected of being things relevant to an offence - Whether procedures under s 151 of the Act still apply
Criminal law and procedure - Whether police entitled to retain unlawfully seized items for forensic examination and to preserve evidentiary value - Whether right to retain ceased - Section 9 of the Criminal and Found Property Disposal Act 2006 (WA) - Whether magistrate entitled to order return of items to owner
Legislation:
Crimes Act 1914 (Cth)
Criminal and Found Property Disposal Act 2006 (WA), s 3, s 9, s 11, s 13
Criminal Appeals Act 2004 (WA)
Criminal Investigation Act 2006 (WA), s 4, s 5, s 7, s 133, s 145, s 146, s 151, s 152, s 154. s 155
District Court of Western Australia Act 1969 (WA), s 77
Interpretation Act 1984 (WA), s 19
Magistrates Court Act 2004 (WA), s 36
Police Act 1892 (WA)
Result:
Appeals dismissed
(Page 3)
Category: A
Representation:
SJA 1119 of 2011
Counsel:
Appellant : Mr J L S O'Sullivan
Respondent : Mr P Yovich
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Timpano Legal
CIV 1199 of 2012
Counsel:
Appellant : Mr J L S O'Sullivan
Respondent : Mr P Yovich
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Timpano Legal
SJA 1135 of 2011
Counsel:
Appellant : Mr J L S O'Sullivan
Respondent : Mr P Yovich
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Timpano Legal
Case(s) referred to in judgment(s):
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 168 CLR 501
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Ghani v Jones [1970] 1 QB 693
Hart v Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FLR 384
Hewitt v Feinas [2005] WASCA 3
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
R v Mailes (2001) 53 NSWLR 251
Rayney v AW [2009] WASCA 199
Rayney v AW [2009] WASCA 203
Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137
Wright v Queensland Police Service [2002] QSC 46
Wright v The State of Western Australia [2010] WASCA 199
(Page 5)
1 COMMISSIONER SLEIGHT: The accused Mr Rayney is charged with the wilful murder of his wife, Mrs Corryn Veronica Anne Rayney. This decision concerns appeals by the police from orders made by his Honour Magistrate G Calder pertaining to items of property seized by the police from the motor vehicle of Mr Rayney at the time of his arrest and which his Honour ordered be returned to Mr Rayney. The appeals fall into two parts:
1. an appeal against a decision of the magistrate declining to adjudicate on a claim of legal professional privilege by Mr Rayney under the procedure contained in s 151 of the Criminal Investigation Act 2006 (WA) (the CI Act); and
2. an appeal against an order made by the magistrate pursuant to Criminal and Found Property Disposal Act 2006 (WA) (the C & FPD Act) that items seized by the police at the time of Mr Rayney's arrest be returned to Mr Rayney.
2 The determinative issue in this appeal is whether the magistrate should have declined to make an order to release to Mr Rayney the seized items, notwithstanding:
(i) the unchallenged findings by the magistrate that the police who seized the items did not reasonably suspect that the items were things relevant to an offence; and
(ii) there was no evidence presented to the magistrate that could establish there were objectively reasonable grounds for suspecting the items were things relevant to an offence.
Background
3 On 8 December 2010, Mr Rayney's motor vehicle was intercepted in Perth and Mr Rayney was arrested. On the same day, the police executed a search warrant at Mr Rayney's place of residence. On the day of the arrest, the police seized a number of items which included the following:
Item A: two files of documents
Item B: an envelope marked with the name Corryn Rayney
Item C: a mobile phone
Item D: a mobile SIM card
(Page 6)
- Item E: a $10 Telstra phonecard
4 Items A, C, D and E were seized from Mr Rayney's motor vehicle. Item B was seized from Mr Rayney's residence, which was being searched pursuant to a search warrant.
5 A claim was made by Mr Rayney that each of the items seized were subject to legal professional privilege. Pursuant to the provisions of s 151(4) of the CI Act, the items seized were delivered into the custody of the Magistrates Court, and the officer in charge of the investigation made an application to the Magistrates Court to decide whether the information contained in the seized items was privileged.
6 Mr Rayney made an application to the court under s 11 of the C & FPD Act for an order that the Commissioner of Police release the seized items and that the items be returned to Mr Rayney. This application was based upon a preliminary issue that the court could not retain custody of the items under s 151 of the CI Act, as the items were not lawfully seized pursuant to the CI Act and therefore s 151 had no application.
7 The magistrate ruled that item B was lawfully seized. In relation to this item there remains the issue of whether the item or any part of the item is privileged, pursuant to s 151 of the CI Act. This issue has been adjourned. In relation to items A, C, D and E, the magistrate found that the items had not been seized in accordance with the provisions of the CI Act and that accordingly s 151 of the CI Act had no application. He ordered, pursuant to the C & FPD Act, the items be returned to Mr Rayney.
Jurisdiction issues of the appeal.
8 The first of the appeals relates to the decision of the magistrate that s 151 of the CI Act had no application in relation to items A, C, D and E. Pursuant to s 151(14) and (15) of the CI Act, proceedings under s 151 are a part of the court's criminal jurisdiction and any appeal against a decision pursuant to s 151 lies to the Supreme Court of Western Australia under the Criminal Appeals Act 2004 (WA) (the CA Act). Based upon these provisions, the Commissioner of Police initially lodged an appeal (SJA 1119 of 2011) under the provisions of the CA Act. On 15 December 2011, I made an order that the application for leave to appeal be heard at the time of the appeal. Subsequently, solicitors for the Commissioner of Police formed the view (in my view, correctly) that, as the magistrate had ruled that s 151 had no application, the procedures under the CA Acthad
(Page 7)
- no application. Accordingly, on the hearing of the appeal a draft application under s 36 of the Magistrates Court Act 2004 (WA) (the MC Act) was presented and, without objection from the respondent, the appeal proceeded on the basis that the appeal be heard on its merits either under the CA Act or the MC Act. Since the hearing of the appeal, an application under s 36 of the MC Acthas been filed.
9 In the matter of Rayney v AW [2009] WASCA 203, McLure JA, as she then was, considered the construction of s 36 of the MC Act. The power to review only arises on one of the grounds set out in s 36(1)(a), (b) or (c) of the MC Act. Under s 36(1)(a), a ground of review is the failure of the court officer to do any act the officer was under a duty to do: Rayney v AW [34]. In this matter, the appellant complains the magistrate failed to consider an application under s 151 of the CI Act when he was under a duty to determine the application. Accordingly, the appeal comes under the powers of review under s 36 of the MC Act.
10 The second appeal is against the magistrate's decision made pursuant to theC & FPD Act. A decision of a magistrate under the C & FPD Act is within the civil jurisdiction of the Magistrates Court and, accordingly, any appeal is to the District Court. The appeal comes for hearing before the Supreme Court as result of an order by his Honour Judge McCann that the hearing of the appeal be remitted to the Supreme Court under s 77 of the District Court of Western Australia Act 1969 (WA).
Legislative Framework
11 The legislative framework regarding the issues raised in this appeal concern provisions in the CI Act and the C & FPD Act for seizing and dealing with seized property as part of criminal investigations.
12 The CI Act and C & FPD Actwere part of a package of reform legislation to replace the provisions of the Police Act 1892 (WA) and to implement recommendations of the Law Reform Commission of Western Australia's 'Report on Police Act Offences'. During the second reading speech of the Criminal Investigation Bill, it was stated the legislation represented 'a balance between the needs of law enforcement officers to effectively investigate crime and the rights of individuals'. There was particular emphasis upon the rights of the individual. The bill was said to 'introduce significant controls on these powers (the powers of the police) to ensure that individual's human rights are protected and to minimise the opportunity for the misuse of the powers'.
(Page 8)
(a) Criminal Investigation Act 2006 (WA)
13 The CI Act was not meant to be a complete codification of the law in relation to criminal investigation. The legislation specifically retains common law powers insofar as they are not inconsistent with the legislation. Section 7 of the CI Act provides as follows:
(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
14 The seizure of the items by the police from the vehicle of Mr Rayney at the time of his arrest was purportedly pursuant to s 133 of the CI Act. Section 133(7) provides:
(7) If an officer doing a search under subsection (2) or (3) finds a thing relevant to an offence, whether the serious offence or another offence, the officer -
(a) may, subject to section 146, seize the thing; and
(b) whether or not the officer seizes the thing, may do a forensic examination on it. (emphasis added)
(1) For the purposes of this Act, a thing is a thing relevant to an offence if it is reasonably suspected that -
(a) the thing has been, is being, or is intended to be used for the purpose of committing an offence;
(b) the thing has been obtained by the commission of an offence;
(c) an offence has been, is being, or may be committed in respect of the thing;
(d) the thing is or may afford -
- (i) evidence relevant to proving the commission of an offence or who committed an offence; or
(ii) evidence that tends to rebut an alibi.
- (2) For the purposes of this Act, a thing relevant to an offence may be material or non-material, animate (other than human) or inanimate.
16 Section 146 relevantly provides:
If this Act provides that an officer may seize a thing that is relevant to an offence the officer may do so only if the officer reasonably suspects one or more of the following -
…
(e) that it is necessary to seize the thing for one or more of the following purposes -
(i) to prevent it from being concealed, disturbed or lost;
(ii) to preserve its evidentiary value;
(iii) to do a forensic examination on it;
(iv) to prevent it from being used in the commission of another offence.
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.
18 The net effect of these provisions (relevant to this case) is that for a seizure to be authorised, under the circumstances where items are found in a motor vehicle at the time of the arrest of a person, it must fulfil the following conditions:
1. The item must be a 'thing relevant to an offence' (s 133(7)); that is, it is reasonably suspected that the thing is or may afford:
(i) evidence relevant to proving the commission of an offence or who committed the offence, or
(ii) evidence that tends to rebut an alibi (s 5).
(Page 10)
- 2. The officer who seizes the item must reasonably suspect that it is necessary to seize the item for one or more of the following purposes:
(i) to prevent it from being concealed, disturbed or lost;
(ii) to preserve its evidentiary value;
(iii) to do a forensic examination on it; or
(iv) to prevent it from being used in the commission of another offence (s 146).
3. There must be grounds for reasonably suspecting the thing and the grounds must be, when judged objectively, reasonable (s 4).
19 The test of whether an item is 'a thing relevant to an offence' and whether the officer 'reasonably suspected', the matters referred to in s 146, involve both a subjective and objective assessment of the items to be seized.
20 Section 151 of the CI Act sets out a procedure to be followed if an item seized is the subject of a claim of privilege. This section relevantly provides as follows:
(1) In this section -
court means the Magistrates Court;
privileged means privileged because of either or both -
(a) legal professional privilege;
(b) public interest privilege.
(2) If a record is seized or, under an order to produce a business record issued under section 53, a business record is produced and -
(a) a person entitled to possession of the record claims that all or some of the information in it is privileged; or
(b) the officer seizing the record or to whom it is produced reasonably suspects that all or some of the information in it is privileged,
the record must be dealt with in accordance with this section.
(3) The record must be secured in a manner -
- (a) that prevents it from being concealed, disturbed or lost; and
(b) that preserves its evidentiary value; and
(c) that prevents access to the information in it by any person who would not be entitled to access to the information if it were privileged.
- (4) The officer in charge of the investigation must apply to the court to decide whether the information is privileged and must deliver the record into the custody of the court.
…
(9) If the court decides that all of the information is not privileged, the court must make the record available to be collected by the applicant.
(10) If the court decides that all of the information is privileged, the court must make the record available to be collected by the person from whom it was seized.
(11) If the court decides that some of the information is privileged, the court must make orders to enable the applicant to have access to the information in the record that is not privileged.
(12) If -
(a) the court decides that all or some of the information is privileged; and
(b) the applicant has applied to be permitted to do a forensic examination on the record,
the court must make orders that enable the forensic examination to be done on the record and to ensure that any information in it that is privileged remains privileged.
21 Section 152 provides that if under the CI Act 'anything is seized', the C & FPD Act applies to and in relation to it.
22 Section 154 to s 155 of the CI Act deal with the admissibility of items seized contrary to the Act. Section 154 provides:
154. Evidence obtained improperly
(1) In this section -
authorisation includes a warrant and an order.
(Page 12)
- (2) If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a) a thing relevant to an offence is seized or obtained; and
(b) a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c) the person does not object to the admission of the evidence; or
(d) the court decides otherwise under section 155; or
(e) if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.
155. Inadmissible evidence, court may allow admission
(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2) The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3) In making a decision under subsection (2) the court must take into account -
(a) any objection to the evidence being admitted by the person against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the evidence is relevant;
(c) the seriousness of any contravention of this Act in obtaining the evidence;
(d) whether any contravention of this Act in obtaining the evidence -
- (i) was intentional or reckless; or
(ii) arose from an honest and reasonable mistake of fact;
- (e) the probative value of the evidence;
(f) any other matter the court thinks fit.
- (4) The probative value of the evidence does not by itself justify its admission.
(b) Criminal and Found Property Disposal Act 2006 (WA)
24 Section 3 of the C & FPD Actdefines 'seized property' as meaning:
property that has been seized in the course of a criminal investigation other than -
(a) any sample taken or seized under the Criminal Investigation Act 2006 or any other written law; and
(b) any thing used in obtaining an identifying particular of a person under the Criminal Investigation (Identifying People) Act 2002;
25 A 'criminal investigation' is defined in s 3 as meaning 'an investigation into whether an offence has been committed or into who committed an offence'. The definition makes no reference to the CI Act.
26 Section 9 of the C & FPD Actdeals with the authority of the chief officer (who is the Commissioner of Police - see s 3) to retain property. It provides:
9. Authority to retain seized property
(1) A chief officer's authority to retain any property that is seized property is subject to any order made under section 13 in relation to the property.
(2) A chief officer's authority to retain seized property as seized property ceases if -
(a) the property is not property that may be forfeited to the State;
(b) the property is property that may be forfeited to the State but a court has refused to order its forfeiture;
(c) the property is not the subject of proceedings under the Criminal Property Confiscation Act 2000;
- (d) seizure and retention of the property is not authorised by another written law; and
(e) it is no longer necessary for the property to be retained for one or more of these purposes -
(i) to do a forensic examination (as that term is defined by the Criminal Investigation Act 2006) on it;
(ii) to preserve its evidentiary value;
(iii) to prevent it from being used in the commission of an offence.
- (3) Subject to any order made under section 13, when a chief officer's authority to retain seized property ceases under subsection (2) the property is to be taken for the purposes of this Act -
(a) to have ceased to be seized property; and
(b) to have become held property,
and the chief officer must dispose of it under Part 5.
(4) Unless the chief officer releases it to a person entitled to it, the chief officer must not dispose of seized property that has become held property under subsection (3) until at least 2 months have elapsed since it became held property.
27 Section 11 of the C & FPD Actprovides:
(1) A person may apply to the appropriate court for -
(a) an order that the chief officer of a prescribed agency release seized property that is in the officer's possession to the applicant; or
(b) an order permitting the applicant to deal with seized property that is in the possession of the chief officer of a prescribed agency.
(2) The application must be made in accordance with rules of court and must be served on the chief officer.
28 Section 13 of the C & FPD Actprovides that, on an application made under s 11, the appropriate court may make any order it thinks fit. Section 13 (2) relevantly provides:
(2) The court must not order that seized property be released to a person unless satisfied that -
- (a) the person is a person entitled to the property;
(b) it would be lawful for the person to possess the property; and
(c) under section 9 the chief officer's authority to retain the property as seized property has ceased.
The magistrate's decision
29 The magistrate delivered a very lengthy and well reasoned written decision. The magistrate made the following critical factual findings:
(a) That the police officers, who seized items A, C, D and E at the time of and at the scene of Mr Rayney's arrest, did not at any time prior to or at the time of seizure, reasonably suspect that the items were 'things relevant to an offence' as defined in s 5 of the CI Act [87].
(b) That none of the officers involved in the seizure of the items, reasonably suspected that it was necessary to seize any of the items for the purpose of preventing it from being concealed, disturbed or lost or preserving its evidentiary value or doing a forensic examination on it [87].
(c) That there was no evidence before the court which would enable the court to make an objective assessment of whether it was reasonably suspected that the items were things relevant to the offence [94].
30 As a consequence of these finding, the magistrate concluded that items A, C, D and E were not seized in accordance with the CI Act. This finding was not challenged on the hearing of these appeals.
31 The magistrate made the following further rulings:
(a) Only a seizure made in accordance with all of the relevant provisions of the CI Act can be the subject of an application of a claim of privilege pursuant to s 151 of the CI Act. In view of the finding that the seized items A, C, D and E were not seized in accordance with the CI Act, s 151 had no application. Accordingly the magistrate declined to proceed with consideration of the issue of legal professional privilege and concluded that the court did not have the power to retain custody of the items under s 151 [100].
(Page 16)
- (b) Unless there is some other statutory provision to the contrary, if the seizure of items A, C, D and E were not seizures in accordance with requirements of the CI Act, then the Commissioner of Police was not authorised pursuant to the CI Act to retain the items [101].
(c) The requirements of s 9(2)(a) to s 9(2)(e) of the C & FPD Act must be satisfied conjunctively. Relevantly, the conditions in s 9(2)(d) and s 9(2)(e) must be satisfied before the authority of the police to retain the items has ceased [103].
(d) It is a necessary precondition to the requirement of s 9(2)(e) that, insofar as the seizure purports to have been effected in accordance with the provisions of the CI Act, there must have been compliance with the provisions of that Act relating to the seizure. Alternatively, if there is non-compliance, there must be a non-compliance of such a nature as could properly be said of it that Parliament did not intend that such non-compliance would have the consequence that the seizure was not lawfully made and was therefore invalid under the CI Act. The absence of a stipulated objectively reasonable suspicion is not such an inconsequential non-compliance [103].
(e) The test under s 9(2)(e) of the C & FPD Act of whether it is no longer necessary for the property seized purported, pursuant to the CI Act, to be retained to do a forensic examination or to preserve its evidentiary value is tied to whether the property has the characteristic that it is a thing relevant to an offence as defined in s 5 of the CI Act [103].
Grounds of appeal
Appeal Number One
32 The grounds of appeal in appeal no SJA 1119 of 2011 are as follows:
1. The learned magistrate erred in law in finding that it was a condition precedent to the exercise of the power to determine a claim of privilege under section 151 of the Criminal Investigation Act 2006 that the seizure of the records was lawful.
2. The learned magistrate erred in law in finding that only a seizure made in accordance with all the relevant provisions of the Criminal Investigation Act 2006 can be the subject of an application pursuant to section 151 of that Act for the determination of a claim of legal professional privilege in respect of the items seized; and
(Page 17)
- 3. The learned magistrate erred in law in finding that where the property that was seized from the respondent's vehicle during his arrest was seized unlawfully it could not be retained for consideration pursuant to section 154 and section 155 of the Criminal Investigation Act 2006.
33 The application under s 36 of the MC Actis made on the sole ground that the magistrate, in determining the application under s 151 of the CI Act,was under a duty to determine the question of whether the seized records were privileged.
Appeal Number Two
34 The grounds of appeal in civil appeal number 82 of 2011 are as follows:
1. The learned magistrate erred in law in finding that the authority of the Commissioner of Police to retain the items as seized property pursuant to the Criminal and Found Property Disposal Act 2006 had ceased on the basis that he found the items were not seized in accordance with all the relevant provisions of the Criminal Investigation Act 2006.
2. The learned magistrate erred in law and fact in finding that it was no longer necessary for the items of property to be retained for one of the purposes in section 9(2)(e) of the Criminal and Found Property Disposal Act 2006.
3. The learned magistrate erred in law in finding that the definition of 'seized property' in section 3 of the Criminal and Found Property Disposal Act 2006 only applies to property that is lawfully seized.
4. In the alternative, the learned magistrate erred in law in that, having found that the seizure of the items of property was unlawful and therefore the items of property were not 'seized property' in accordance with section 3 of the Criminal and Found Property Disposal Act 2006, then dealt with the items of property on the basis that they were seized property.
Statutory interpretation principles
35 The issues raised by these appeals concern the meaning of the relevant provisions of the CI Act and the C & FPD Act. Accordingly, it is important to take into account general principles of statutory interpretation.
36 The meaning of the provisions of a statute must be determined by reference to the language of the instrument as a whole, taking into account
(Page 18)
- its context, general purpose and policy: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335 [69]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which is the subordinate provision, and which must give way to the other. Project Blue Sky[70](McHugh, Gummow, Kirby & Hayne JJ).
37 It follows that in interpreting the provisions of the CI Act and the C & FPD Act, a construction that would promote the purpose or object underlying the legislation (whether that purpose or object is expressly stated in the written legislation or not) shall be preferred to a construction that would not promote that purpose or object.
38 Where competing statutory constructions are available, the court should prefer a construction which strives to give meaning to every word of the provision: Project Blue Sky[71] (McHugh, Gummow, Kirby & Hayne JJ).
39 Where a number of Acts form a legislative scheme, it is appropriate when construing expressions used in any one of those Acts to examine the purpose of scheme. This principle has special significance in relation to bills introduced together and assented to on the same day. Sweeney v Fitzhardinge[1906] HCA 73;(1906) 4 CLR 716, 726 (Griffith CJ); Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137; R v Mailes (2001) 53 NSWLR 251 [108] (Wood CJ at CL, with whom Spigelman CJ and James J agreed).
40 It is a well-established principle of statutory construction that words will not be implied into a statute provision unless there is a clear necessity to do so in order to give effect to its underlying purpose or object: Pearce D & Geddes R Statutory Interpretation in Australia (6th Ed), [2.28]; Hewitt v Feinas [2005] WASCA 3 [57] (Roberts-Smith J).
41 In interpreting statutes that govern search and seizure provisions, the courts have consistently stated that such statutory provisions should be given a strict construction. This means no more than the court should be especially careful, in light of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weaken them in
(Page 19)
- favour of private persons to the detriment of the public welfare, nor enlarge them as against individuals towards whom they are directed: Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132, 155 (Isaacs J); Hart v Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FLR 384, 400 [67].
42 Section 19(1) of the Interpretation Act 1984 (WA) provides as follows:
(1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when -
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
Police powers to retain goods at common law
44 It is also relevant to consider, in this matter, the right of the police at common law to retain items unlawfully seized for forensic examination or to preserve the evidentiary value of the items. This is because the CI Act does not necessarily displace the common law (s 7 of the CI Act).
45 In Ghani v Jones [1970] 1 QB 693, Lord Denning MR described as 'settled law' that officers entering a house under a warrant or arresting a person, with or without warrant, for a serious offence were 'entitled to take any goods which they [found] in his possession or in his house which they reasonably [believed] to be material evidence in relation to the crime for which he [was] arrested or for which they [entered]' (706). See also Hart. Lord Denning MR also went on to state that the police must not
(Page 20)
- keep the article nor prevent its removal for any longer than is reasonably necessary to complete the investigations or preserve it for evidence (709).
46 The law creates obvious problems in modern times with persons possessing computers and telephones that may contain incriminating material, but which material may not be revealed until a forensic examination is conducted. To overcome this problem the Crimes Act 1914 (Cth) introduced provisions which entitled law enforcement officers the right to examine material and take copies prior to seizure so that the material could be analysed to ascertain its evidentiary value: Hart [74] - [80].
47 Even so, under these provisions there is a requirement that the police officers must form subjective beliefs as to the possible evidentiary value of the material. InHart it was stated as follows:
The authority to copy information on to a storage device and to take that device from the premises under s 3L is conditioned upon the executing officer or constable finding 'that evidential material is accessible by doing so'. That requires consideration of whether the stored information is evidential material. In turn that requires, at the very least, an assessment of whether the stored information is such that there are reasonable grounds for suspecting that it will afford evidence as to the commission of an offence (s 3). If no such consideration has been given and no 'finding' made that evidential material is accessible, then the copying of the information is not authorised. The disk or other storage devices onto which information is downloaded in those circumstances do not thereby become the property of the owner of the equipment from which the information was copied. But having been copied in consequence of an unauthorised invasion of privacy, the Court will, in such a case, award appropriate relief which may include the delivery up of the relevant storage devices to the owner or occupier of the premises [88]. (emphasis added)
48 The position at common law has been unclear as to whether a court has a discretion to order that items seized unlawfully by the police be retained so as to enable the police to conduct forensic examinations and/or preserve the evidentiary value of the items. In Puglisi v Australian Fisheries Management Authority(1997)148 ALR 393, Hill J reviewed conflicting authorities and came to the conclusion that although, prime facie, a person was entitled to have items seized pursuant to an invalid warrant returned to them, the court has a discretion to refuse to make an order if there are criminal proceedings pending in which the items may be used as evidence. In Puglisi v Australian Fisheries Management Authority, Hill J exercised a discretion not to order the return of items of
(Page 21)
- property seized by the police under a warrant that had been declared invalid because the supporting affidavit had not been correctly sworn.
49 In my opinion, the authorities reviewed by Hill J, in reaching the conclusion that he had a discretion, do not suggest that a discretion can arise in a situation where the invalidity of the warrant arose because there were no reasonable grounds for suspecting that the material provided evidentiary material in support of the commission of an offence by the suspect person.
50 In the Supreme Court of Queensland, Holmes J, in the case of Wright v Queensland Police Service [2002] QSC 46 followed the decision of Hill J in Puglisi v Australian Fisheries Management Authorityby ruling that there was a discretion not to order the return of goods seized under an illegally executed warrant. However, the decision reveals an important qualification. This qualification was that the goods to be retained must be shown to have material evidentiary relevance to the prosecution of the criminal proceedings. Holmes J stated as follows (excluding end note references for citations):
To the authorities cited by Hill J might be added Cassaniti v Croucher in which Dunford J noted the existence of 'a discretion to permit the police to retain items illegally seized which appear to provide evidence of the commission of criminal offences and which are required for the prosecution of such offences' and R v Fraser-Adams in which Mildren J observed that the court would not usually order the return of illegally obtained material relevant to the prosecution of criminal proceedings. In this State, the majority in Hedges v Grundmann ex parte Grundmannordered the return of a number of medical files seized under an invalid warrant but declined to extend that order to 'other property seized at the time of the execution of the warrants in view of the pending criminal proceedings'.
The overwhelming weight of persuasive authority, in my opinion, supports the existence of a discretion to be exercised in considering an application for the return of illegally seized items; and moreover points to a refusal to exercise that discretion where criminal proceedings are on foot. On balance in this case, the greater interest lies in preserving the evidence; the question of admissibility may properly be left to the trial judge. Accordingly, I would not be prepared to make any order for the return of items seized pursuant to the invalid warrant if they are required for the prosecution of the first applicant, nor for the delivery of the videotape of the search if it affords evidence of the commission of the alleged offence. There is however, no material presently before me as to the evidentiary value of the seized items. I would be prepared to receive further material and hear argument, should the parties so wish, as to whether any or all of the material seized does in fact afford evidence of an offence. It may be
(Page 22)
- that the question can be resolved between the parties [56] - [57]. (emphasis added)
51 These passages I have highlighted from the decision of Holmes J accord with the High Court decision in George v Rockett [1990] HCA 26; (1990) 170 CLR 104, which ruled that a search warrant issued was invalid because of the absence of information in the sworn complaint which might have satisfied a magistrate as to the existence of reasonable grounds. The court, (122), stated it was not prepared to adjourn formally pronouncing the order to allow the police an opportunity to swear a fresh complaint and that the appellant was entitled to the relief of having the documents returned to him.
52 I conclude from these decisions that at common law the discretion not to make an order that items seized unlawfully be returned to the owner only arises where there is material suggesting that the items seized may afford relevant evidence to the commission of the alleged offence.
Appeal Number 1
53 The grounds of the appeal in SJA 1119 of 2011 and the application for review in CIV 1199 of 2012 can be dealt with together, as the grounds of appeal in SJA 1119 of 2011 reflect the basis that the appellant seeks a review of the magistrate's decision to decline to hear the application under s 151 of the CI Act.
Grounds 1 and 2 (SJA 1119 of 2011)
54 The appellant's submissions can be summarised as follows:
1 The words 'If a record is seized' in s 151(2) of the CI Act should be given their natural meaning and not confined to a seizure made in compliance with the provisions of the CI Act.
2. The only consequence of a seizure not being in compliance with the CI Act is that its admissibility is to be decided under s 154 and s 155 of the CI Act. In support of this submission, the appellant relies upon the decision of McLure P (with whom Buss JA agreed) in Wright v The State of Western Australia [2010] WASCA 199 (Wright's case):
That construction of s 5 is consistent with the scheme of the Act as a whole. In particular, s 154 is the only section of the Act that provides an express statutory avenue for the potential consequence of a failure to comply with the duties in, inter alia, s 137 and s 138 of the Act. It is to be expected that a statute creating obligations to
- be performed by police in the investigation of criminal offences would also expressly provide for the consequences of a failure to comply with them. The only alternative would be to construe the Act as containing an implication that a failure to comply with a duty under the Act is relevant to the admissibility of confessional evidence at common law. It would be difficult to draw such an implication when the Act expressly provides an avenue for dealing with contraventions [19].
- 3. The magistrate's construction of s 151 should be rejected because it would result in persons who had items seized from them, contrary to the CI Act, being unable to claim the protection of legal professional privilege.
4. Consistent with the provisions of s 154 and s 155 of the Act, s 151 should be given a construction that it applies whether a seizure of an item was authorised under the CI Act or not. The appellant submits that s 154 and s 155 are examples within the legislation which demonstrate that the legislation is meant to apply even though a seizure may not be in accordance with the requirements of the CI Act.
55 I reject each of the submissions of the appellant for the following reasons:
1. Section 151 falls within Part 13 of the CI Act. Section 154 and s 155 are not within Part 13 of the Act. Section 145, states that Part 13 of the Act 'applies to and in respect of the seizing under this Act of a thing that is relevant to an offence' (my emphasis). This leads me to conclude that if there is a seizure which is not 'under the Act', then Part 13 of the Act, including s 151, has no application.
2. In my opinion, McLure P's observations concerning the CI Act have little relevance to the issues in this appeal. Her Honour was dealing with the issue of whether the common law principles concerning the admissibility of unlawfully obtain confessional material were retained, or whether the express provisions of s 154 of the CI Act displaced the common law principles in relation to confessional material obtained contrary to the provisions of the CI Act. The issue in this appeal does not concern a question of admissibility but the right of the police to retain seized items of property. Although, the CI Act contains no provision as to the consequence of items being seized contrary to the provisions of the Act, there is no express provision giving to the police a right to
- retain such items seized. From this I conclude that the consequences of non-compliance with s 133 and s 146 of the CI Act do not displace consequences which might arise under other legislation such as the C & FPD Act.
- 3. In my opinion, if s 151 is only available to a lawful seizure under the CI Act, the protection of legal professional privilege is not lost in other situations where the police might have the right to retain items. In such circumstances, quite apart from s 151, a person could rely upon the common law protection of legal professional privilege. Legal professional privilege is a basic common law principle: Commissioner of Australian Federal Police v Propend Finance Pty Ltd[1997]HCA 3; (1997) 168 CLR 501 (Propend's case), 505 (Brennan CJ). Such a basic common law principle could not be abrogated by a statute in the absence of clear wording: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [11]. In Rayney v AW [2009] WASCA 199, McLure JA (as she then was) noted that neither party contended s 151 altered the common law right. There may remain problems with the mechanism for resolving the issue of legal professional privilege in the absence of s 151, but those problems are not insurmountable. Prior to the CI Act there existed protocols for dealing with such a common law claim of legal professional privilege. In the absence of these protocols a party could seek protection of legal professional privilege by seeking declaratory or injunctive relief in the Supreme Court: Propend's case; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 105 (Brennan J).
4. The operation of s 151 can be distinguished from the operation of s 154 and s 155 of the CI Act. By s 154(2)(b), the operation of s 154 and s 155 is expressly limited to come into effect in circumstances where a requirement of the Act is contravened. Section 151 has no such express provision.
For the above reasons each of these two grounds are dismissed.
Ground number 3 (SJA 1119 of 2011)
56 This ground of appeal relates to the finding by the magistrate that the operation of s 154 and s 155 of the CI Act can have no impact on the outcome of the two applications before him.
(Page 25)
57 In my opinion this ground of appeal has no merit and the conclusion of the magistrate was correct for the following reasons. Section 154 and s 155 contain no provision to retain and/or conduct a forensic examination on items unlawfully seized. The right to seize and the right to forensically examine under the CI Act is always tied to the concept that the item is 'a thing relevant to the offence', which in turn requires that it is 'reasonably suspected that the thing is or may afford evidence relevant to proving 'the offence, the commission of an offence or rebutting an alibi'. (See s 39, s 43, s 58, s 68, s 105, s 106, s 133, s 135 and s 146, which all relate to police powers to seize items and conduct forensic examinations).
58 The submission of the appellant's counsel is that s 154 and s 155 would have no work to do, if everything seized contrary to the provisions of the CI Act could not be retained and sought to be tendered under s 155. However, this submission overlooks the fact that the contravention of the CI Act found by the magistrate was based upon the finding that the officers did not reasonably suspect that the items seized were things relevant to an offence. The provisions of s 154 and s 155 only apply to a 'thing relevant to an offence' (s 154(2)), and therefore, before s 154 has any application, this precondition must be established. Accordingly, there was, on the magistrate's finding, nothing to suggest that the items were relevant to the offence and therefore the items could not be potentially admissible under s 155. Section 154 and s 155 of the Act would still have application if the unlawfulness of the seizure of an item was due to some other ground; for example, the search warrant was incorrectly executed. Then the item seized could still be 'a thing relevant to the offence' and s 154 and s 155 could have application. For the above reasons ground 3 in SJA 1119 of 2011 is dismissed.
Appeal number 2
59 The second appeal relates to the magistrate's decision to order release of items A, C, D and E to Mr Rayney. The order was made under s 13(2) of the C & FPD Act.
Grounds 1 & 2 (SJA 1135 of 2011)
60 Both these grounds can be considered together.
61 Under s 13(2) of the C & FPD Act, the court cannot order the release of seized property unless 'the chief officer's authority to retain the property has ceased'. The authority of the chief officer (the Commissioner of Police) does not cease until the preconditions as set out in s 9(2)(a) to (e) have been satisfied.
(Page 26)
62 It is common ground that the provisions of s 9(2)(a) to s 9(2)(e) of theC & FPD Act are to be read conjunctively (although, in my opinion, s 9(2)(a) and (b) are alternatives and must be read disjunctively). Relevant to this case is whether the magistrate was correct to conclude that the conditions in s 9(2)(d) and s 9(2)(e) of the Act have been satisfied; that is:
(i) the seizure and retention of the property was not authorised by another written law; and
(ii) it was no longer necessary for the property to be retained to do a forensic examination, to preserve its evidentiary value or to prevent it from being used in the commission of an offence.
63 The appellant's submissions commenced with the proposition that s 9(2)(d) of the C & FPD Act is not directed towards determining the lawfulness or otherwise of a particular seizure under the CI Act. It was submitted that s 9(2)(d) was directed to whether there were any other written laws of the type referred to in s 4 of the C & FPD Act which did not authorise the seizure and retention of the property. Section 4 of the C & FPD Act provides as follows:
(1) Except as provided by section 15(1), this Act does not affect the operation of -
(a) any other written law that provides for the disposal of forfeited property or property that has been seized or abandoned;
(b) the Criminal Property Confiscation Act 2000;
(c) the Pawnbrokers and Second-hand Dealers Act 1994 section 86; or
(d) the Road Traffic Act 1974 Part V Division 4.
(2) If a provision in this Act is inconsistent with a provision in the Criminal Property Confiscation Act 2000, the provision in that Act prevails.
64 In my opinion, there is no basis for reading down the general wording contained in s 9(2)(d). It refers expressly to laws pertaining to 'seizure and retention of property' and the CI Act clearly falls within this description.
65 In any event, it was not argued before me that there is any written law which authorised the seizure and retention of the items A, C, D and E
(Page 27)
- given the magistrate's finding that the seizure under the CI Act was not authorised.
66 Whereas the focus of s 9(2)(d) is on whether the 'seizure and retention' is authorised by legislation, the focus of s 9(2)(e) is directed to other issues; that is, whether the retention, although not authorised, is necessary for forensic examination of the thing or preservation of its evidentiary value.
67 It is contended by the appellant that the magistrate provided, in his reasons, no evidentiary basis for finding that it was no longer necessary for the property to be retained either for a forensic examination or to preserve the evidentiary value of the item. The submission begs the question, 'When is it necessary for property to be retained to do a forensic examination or to preserve its evidentiary purpose?' within the meaning of the subsection.
68 This question must be answered, taking into account the principles of statutory construction I have referred to earlier in this decision. Accordingly, it must be taken into account that the CI Act and the C & FPD Act were introduced at the same time as a package and the purpose was to achieve a balance between the needs of law enforcement officers to effectively investigate crime and the rights of the individual.
69 The forensic testing authorised under the CI Act in relation to the seized items A, C, D and E is tied to a lawful seizure occurring, which, under s 146 of the CI Act, is tied to:
(a) the thing being relevant to an offence; and
(b) the officer seizing reasonably suspecting (relevant to this case) that it is necessary to seize a thing to preserve its evidentiary value or to do a forensic examination on it.
70 The CI Act is not necessarily exhaustive of whenever an item can be seized and retained for forensic examination and/or preserved for its evidentiary value. Although as stated in the second reading speech, the CI Act codifies the majority of police powers, as mentioned earlier in this decision, s 7 of the CI Act preserves the common law, except where it conflicts with the express provisions of the CI Act.
71 However, even at common law, the power to forensically test and preserve the evidentiary value of an item (similar to provisions of the CI Act) is tied to there being a reasonable suspicion that the item will
(Page 28)
- provide material evidence of an offence (see earlier in this decision under the heading Police Powers to retain goods at common law).
72 In my opinion, it is clear from the provisions of the CI Act that the intention of Parliament was not to permit police to retain items for forensic examination or to preserve the evidentiary value of items without there being some foundation of suspicion that the items would provide relevant evidence.
73 Accordingly, it cannot be said that it is necessary to retain something for forensic examination or preserve its evidentiary value within the meaning of s 9(2)(e) unless it can be shown that the item is reasonably suspected of being relevant to an offence.
74 It follows that the correct statutory interpretation of s 9(2)(e) is that before it can be said that it is necessary to retain an item for forensic examination or preserve its evidentiary value, there must be evidence to establish that the item is reasonably suspected of being, or may afford, relevant evidence.
75 This interpretation of s 9(2)(e) accords with the provisions of the CI Act, where the rights of seizure and retention of the thing are tied to the test whether it is reasonably suspected the item is, or may afford, evidence relevant to an offence. Further, this interpretation is in harmony with the common law. Finally, such an interpretation is consistent with the purpose of the joint legislative package of the CI Act and the C & FPD Act to achieve a balance between the rights of the citizen and the need of the police to be free to investigate crime. If the police were entitled to retain items arbitrarily to test forensically and preserve potential evidentiary value, then the rights of the individual would be trampled over. It is no answer to say that s 154 and s 155 provide a balance by weighing up the desirability of admitting the evidence against the undesirability of admitting the evidence. The operation of s 154, as I have earlier observed, only comes into play if 'the thing is relevant to an offence'.
76 Finally, the interpretation I have given to s 9(2)(e) enables the police to retain items that fall into the possession of the police (for example because the items are not seized by the police pursuant to the CI Actor some other statutory provision, or the items are deposited with the police by a third-party), providing there is a reasonable suspicion that the items may provide relevant evidence. So for example, if a warrant of seizure was invalid because it had not been properly executed, then the police
(Page 29)
- could still retain the items for forensic examination and to preserve the evidentiary value of items seized providing it was reasonably suspected that the items may afford relevant evidence to an offence.
77 There was no material before the magistrate to establish there were grounds for reasonably suspecting that the items may afford any evidence. At its highest, the evidence consisted of a statement contained in an affidavit, sworn by a Detective Correia, that the police intended to conduct a forensic examination and wished to preserve the evidentiary value of the items seized. However, no evidence was presented to the magistrate that the police reasonably suspected that the items may afford evidence relevant to proving the commission of an offence, or who committed an offence, or evidence that tended to rebut an alibi.
78 I am satisfied that the magistrate was right to conclude that, in the absence of any evidence of a reasonable suspicion that the items may afford relevant evidence, it could not be said that retention of the items was necessary for forensic examination or to preserve the evidentiary value of the items.
79 For the above reasons, I conclude the magistrate's decision as to the operation of s 9(2)(e) was correct and that he was entitled to find that the authority of the Commissioner of Police to retain the items had ceased and therefore the items should be returned to Mr Rayney. Accordingly, I dismiss grounds one and two of the second appeal.
Grounds 3 and 4 (SJA 1135 of 2011)
80 These grounds arise from a misunderstanding of the magistrate's reasons. The grounds are based upon a contention that the magistrate wrongfully found that that the word 'seizure' in s 9 of the C & FPD Act meant a 'seizure' in accordance with the CI Act. If the magistrate had made such a conclusion, then this would have led to the logical result that theC & FPD Acthad no application on the basis of the magistrate's finding that the seizure had not been in accordance with the CI Act. However, the magistrate expressly stated in his reasons that he proceeded on the basis that 'seized property' as defined in s 3 of theC & FPD Act included items A, C, D and E, even though he had found that they were not seized in compliance with the CI Act. In other words, the word 'seizure' in s 9 was not limited to a lawful seizure. This was made clear by what he said at [105]:
In any event, in my opinion, it is arguable that because the definition of 'seized property' (section 3 CFPD Act) says that that means property that
(Page 30)
- has been seized in the course of a criminal investigation (with the exception of certain presently irrelevant exceptions), it must be taken that Parliament did not intend that seized property could include property not lawfully seized or if not initially lawfully seized, then retained on some other lawful basis. That point however is not argued before me, and I have proceeded upon the basis that both parties accepted that, for present purposes, the property was seized property as defined. In any event it seems to me that any application to recover the property based on such argument would require the parties seeking the remedy to proceed inthe Supreme Court by way of application for review of the seizure or declaration or other appropriate process not available to this Court.
81 For the above reasons, Grounds 3 and 4 are misconceived and, accordingly, the grounds of appeal are dismissed.
Summary
82 For the above reasons the appeals (including the application to review) are dismissed. I will hear parties on the terms of the final orders.
2
19
8