Commissioner of Police v Clarke
[1985] AFPDT 4
•13 February 1985
| ~i985 | /=/P,PT 4- |
| IN THE FEDERAL POLICE | ) | ||
| |||
| DISCIPLINARY TRIBUNAL | ) |
THE COMMISSIONER OF POLICE
against
SERGEANT RONALD GEORGE CLARKE
FINDINGS
| Member | Mr R .J . Cahill, S .M. |
The Tribunal finds that Sergeant Ronald George Clarke is
not guilty : of the two disciplinary offences alleged in charges 22/8384
and 23/8384 namely:
"At Box Hill, in the State of Victoria, on 4 March 1982, he in the performance of his duties, failed to comply with the law applicable to him and that he exceeded the authority of a search warrant
issued 3 March 1982 in that he seized documents by the said warrant".
from premises situated at unit 3/35 Victoria Street,
"At Melbourne in the State of Victoria, between
4 March and 17 June 1982 he failed to make a prompt
return of property to wit, certain documents seized
by him on 4 March 1982 to the owner thereof, which
documents were received by him in the course of
his duty" .
R.. . CAHILL, S .M.
Member
13 February 1985
FEDERAL POLICE DISCIPLINARY TRIBUNAL
No . 3 of 1984
COMMISSIONER OF AUSTRALIAN
FEDERAL POLICE
-v-
RONALD GEORGE CLARKE
Before R .J . CAHILL SM, member
JUDGMENT and REASONS
FOR FINDING
The Commissioner, by two notices dated 1 December 1983, charged the
The first charge pursuant to paragraph 3(e) alleged : "At Box Hill,member with two offences under paragraph 18(1)(a) of the Australian Federal paragraph 3(e), the second charge being an offence under paragraph 8(b).
in the State of Victoria, on 4 March 1982, he in the performance of his
duties, failed to comply with the law applicable to him ; in that he exceeded
the authority of a search warrant issued 3 March 1982 in that he seized
documents from premises situated at unit 3/35 Victoria Street, Box Hill, in
the said State which were not permitted by the said warrant ."
The second charge under paragraph 8(b) alleged : "At Melbourne in
the State of Victoria, between 4 March and 17 June 1982 1 he failed to make a
prompt return of property to wit, certain documents seized by him on 4 March
1982 to the owner thereof, which documents were received by him in the course
of his duty ."
Largely at the request of the Tribunal, the Commissioner, because of
the large number of documents involved, (said to be in excess of 2000) provided
particulars of both charges . There may be an issue as to whether the Tribunal
can compel the provision of particulars by the Commissioner . However, such
an order would, in my view, appear to be within the ambit of the discretion
given by the Court by Section 76 of the Complaints Act . The Commissioner
voluntarily provided particulars which were lodged in the registry of the
Tribunal on 1 June 1984.
The particulars provided a copy of the search warrant dated 3 May 1982
referred to in both charges and further stated as follows :-
" It is alleged that each of the documents referred
| to in | paragraphs of the Particulars of |
Docuuments herein dated 8 May 1984, were wrongfully; seized in that they were outside the scope of the said search warrant . It is further alleged that in so seizing the said documents the member failed to comply with the law applicable to him ."
A series of documents with index were lodged in the Tribunal Registry
which were said to comprise the classes of documents seized.
Following an adjournment from March 1984 until August 1984, the
particulars were withdrawn as the Commissioner found difficulty in proving that
the documents specified were in fact seized by the member pursuant to the
search warrant . The particulars as provided, whilst they may have purported .
| . | to identify classes of documents seized, did not in any way specify the basis upon which it was alleged by the Commissioner that the authority of the warrant had been exceeded by the member . Such particulars would have enabled the defence to be better prepared and also the Tribunal to appreciate the evidence that came forth. |
The charges arise out of the issue and execution of a search warrant,
and the search warrant and the information have been .tendered before the
Tribunal as Exhibit C . The information contains much of the background material
upon which the charges were based and the relevant evidence upon which the
search warrant was issued.
The search warrant states as follows :-
"TO : Ronald George CLARKE
Australian Federal Police
WHEREAS I, Graeme Treford Wheelhouse
A Stipendiary Magistrate being a Justice. of the Peace within
the meaning of that expression in Section 10 of the Crimes Act 1914 of the Commonwealth of . Australia being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting that there is in a place situate at Unit 3, 35 Victoria Street, Box Hill, Victoria or any motor vehicle garaged at these
premises Banking Receipts, Records, Bank books, Cheque Butts and Documents as to which there is . reasonable grounds for believing that the same will afford evidence as to the commission of an
| offence against Section 86(1)(a) Crimes Act 1914 | .and Section 42(1), |
Banking (Foreign Exchange) Regulations to enter at any time the said place, if necessary by force, and to seize the abovenamed articles which you may find in the said place and as to which there is reasonable ground for believing that the same will afford evidence as to the commission of the said offence and for so doing this shall be your sufficient warrant.
a law of Australia namely the offence of conspiracy to contravene
the provisions of the Banking (Foreign Exchange) Regulations.
Given under my hand at Melbourne in the said State this 3rd May 9 March.
1982
Signed G . Wheelhouse
Stipendiary Magistrate
| Justice of the Peace | " |
The information states as follows :-
It
Information to Ground the Issue of a
Search Warrant under Section 10(b)
of the Crimes Act 1914
AUSTRALIA
Crimes Act 1914
- Information (Search Warrant)
On the 3rd day of March 1982, Ronald George CLARKE of
Melbourne in the State of Victoria, Australian Federal Police Officer, hereinafter called "the informant" appears before me a Stipendiary Magistrate and Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914
of Australia and informs me on oath:
1. That he is a Detective Senior Constable in the Australian Federal Police stationed at the Currency Branch Melbourne.
2.On 15 September 1981 "the informant" received information
that Maurice HAZAN of Unit 3, 35 Victoria Street, Box hill, Victoria was transferring to ISRAEL large amounts of money. It was alleged that innocent persons were being used as couriers
to transport the money, previously converted to bank drafts, to
Israel on behalf of HAZAN.
3.On 5 or 6 September 1981, HAZAN approached Jacques (Jack) AZOULAY
of 3/124 Alm Road, East St . Kilda whilst both men were at the Yeshiva
Synagogue in Hotham Street, East St . Kilda . On this occasion HAZAN
gave to AZOULAY $1,500 .00 cash and asked him to obtain a bank draft
inthe name of SIHMA CHETRIT a resident of Israel . HAZAN told AZOULAY
that CHETRIT was his mother and he needed the money but he, HAZAN
had already forwarded .his allowance . AZOULAY has provided a
statement relating to this event.
4.On 12 September, 1981 HAZAN whilst at a function held by the
AZOULAY's at their residence approached Mrs Esme AZOULAY requesting that she purchase two bank cheques on his behalf . One was to be in an amount of $3,000 .00 and the other $1,500 .00 . The cheques were to
be in the names of Esma AZOULAY and Simha CHETRIT respectively. has provided a statement relating to this event.
5.Also present at the function held at the AZOULAY's on 12 September,
1981 was one Meir BEN-CHABAT of flat 9, 124 /Alma Road, East St . Kilda.
BEN-CHABAT was present when HAZAN approached IMrs AZOULAY and heard
the conversation and saw the $4,500 .00 givea to Mrs AZOULAY by HAZAN.
Meir BEN-CHABAT has also made a statement.
6.Because of concern by the AZOULAY's that they may be compounding
an offence they reported the matter to the Federal Police . As a
result I instructed Jacques AZOULAY to purchase only one bank draft
for $1,500 .00 in the name of SIMHA CHETRIT . ;AZOULAY complied with
. . . „ :4!-
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request and purchased the draft through the ANZ Banking Group
Ltd ; 227 Carlisle Street, Balaclava.
7. Enquiries with the ANZ Bank at 227 Carlisle Street, Balaclava
have resulted in photocopies of the aforementioned drafts, purchased
by the AZOULAY's for HAZAN in the name of SIMHA CHETRIT, being
recovered . A check made through banking system has revealed that
these two drafts were negotiated at Bank Leumi Le-Israel B .M .;
130 Ben Yehuda Branch, Tel-Aviv on 15 October 1981.
8. Since that time enquiries made by "the informant" have also
revealed that HAZAN requested Mrs Kathleen HARKENSEE of Unit 9,
35 :Victoria Street, Box Hill purchase a bank draft on his behalf at
the ANZ Bank, 993 Whitehorse Road, Box Hill.
9! .Enquiries made by "the informant" at the ANZ Bank 993 Whitehorse Road, Box Hill reveal that two applications for bank drafts were made by a Mrs K . HARKENSEE of 9-35 Victoria Street, Box Hill . The first was
on 11 December 1981, in an amount of $1,000-00 Australian and the drafts were issued.
second was on 15 December 1981 in an amount of $500 .00 Australian.
10. Enquiries made by "the informant" have also revealed that HAZAN
requested Peter NEWMAN of 13 Ellesmere Road, East Burwood purchase two
bank drafts on his behalf at the State Savings Bank of Victoria,
527 Riversdale Road, Camberwell.
11. Enquiries made by "the informant" at the State Savings Bank of Victoria
527 Riversdale Road, Camberwell reveal that two applications for bank
drafts were made by Mr Peter NEWMAN of 13 Ellesmere Road, East Burwood.
The first application was made on 15 September 1981 in an amount of
$1,500 .00 Australian . Because of S .S .B . policy three drafts were issued
in U .S . currency in_amountsequal to $600 .00, $600 .00 and $300 .00
Australian respectively . Each of these drafts was made payable to
ABRAHAM SISSO of Israel.
12. On 16 December 1981 the second application was presented to the
State Savings Bank of Victoria, 527 Riversdale Road, Camberwell . This
application was also in an amount of $1,500 .00 Australian . Again three
drafts were issued to U .S . dollars in amounts equal to $600-00, $600-00
and $300-00 Australian respectively . The favouree of each draft
was Abraham SISSOS of Israel.
13. '.The informant' has been told and verily believes that HAZAN has
also approached an unknown number of persons with a view to having these
persons purchase bank drafts in amounts not exceeding $Al,500-00 1 for
favourees, nominated by HAZAN, all of whom are resident in Israel.
14. Because of Reserve Bank Exchange Control requirements records of
transactions similar to those made on behalf of HAZAN are unable to
be traced.
15. Motor Registration Branch records reveal that HAZAN is the
registered owner of Motor Vehicle IDR 439 . Surveillance indicates this
vehicle is normally garaged at Unit 3, 35 Victoria Street, Box Hill.
AND further informs me on oath that by reason of the aforesaid there is reasonable ground for suspecting that there is at Unit 3, Victoria Street; Box Hill, Victoria, Banking Receipts, Records, Bank Books, Cheque Butts and Documents as to which there are . reasonable grounds for believing
that the same will afford evidence as to the commission of an
offence against Section 86(1)(a) Crimes Act 1914, Banking (Foreign
Exchange) Regulations, namely an offence of conspiracy to
contravene the provisions of the Banking (Foreign Exchange) Regulations.
WHEREFORE the informant prays that a search warrant may be granted to search the said place situate at Unit 3, 35 Victoria Street, Box Hill and any Motor Vehicles garaged at these premises aforesaid for the said Banking Receipts, Records, Bank Books, Cheque Butts and
Documents.
| Sworn at Melbourne in the said State | Signature of Informant | |
| the 3rd March 1982 | ||
| Signature of Stipendiary | ||
|
The search warrant entitled the member to seize "the abovenamed
articles which he may find in the: place and to which there is reasonable ground
for believing that the same will afford evidence as to the commission of the
said offence and for so doing this shall be your sufficient warrant ."
The Commissioner never submitted that the documents seized would not
| have been included in the description : | "banking receipts, records, bank |
books, cheque butts and documents" but rather the documents seized and
particularized would not have afforded evidence as to the commission of offences,
(i .e ., offences under section 86(1)(a) of the Crimes Act 1914 and section 42(1)
of the Banking and Foreign Exchange Regulations, and offences of conspiracy to
contravene the provisions of the Banking and Foreign Excchange Regulations).
The facts before me really are within a narrow' compass and are
basically contained in a report submitted by the member: which comprises part
of exhibit H.
That report states as follows:
Allegations of Misconduct
| COMPLAINANT : | HAZAN, Moshe Ben © M3aurice |
As directed the following details .outlilne the circumstances that surround the investigation of the abovemamed.
2 .As a result of information received from) Jack AZOULAY,
3/124 Alma Road, East St . Kilda to be the effect that HAZAN had
approached both him and his wife Esme to purchase bank drafts in
amounts of $A1500 for persons resident in Ismael and AZOULAY not
wishing to compound any offence/s, reported the circumstances
to the St . Kilda Police initially and was advised by them to
report the matter to the Australian Federal Police Currency
Branch .
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3. On 5 September 1981 AZOULAY visited our office at the
Reserve Bank, Note Printing Branch, Fitzroy and supplied us
with scant details of the method to be used by HAZAN to transfer
monies to Israel . I instructed AZOULAY to purchase a draft
if approached by HAZAN and to advise me immediately . HAZAN
did approach AZOULAY on 12 September 1981 and requested that
he purchase three bank drafts, each in an amount equivalent
to $A1500, and to_return the drafts to him . AZOULAY contacted
our office for advice and I told him to purchase only one
draft and to return the remaining $A3000 to HAZAN . On
15 or 16 September 1981 AZOULAY advised me that he had purchased
only one draft for HAZAN payable to Simha CHETRIT in Israel.
The purchase was made at the ANZ Bank 227 Carlisle Street,
East St . Kilda.
4. When HAZAN requested AZOULAY to purchase these drafts,
apart from Mrs . AZOULAY, Mr . Meir BEN-CHABAT was also present.
Statements were obtained from Mr . and Mrs . AZOULAY and
Mr . Meir .BEN-CHABAT . Copies of the draft requisition together
with details of the draft were obtained from Mr . Rolly TOMLINSON,
Accountant at the A .N .Z . Bank, 227 Carlisle Street, East St . Kilda.
5. As a result of this an information was prepared with a
view to obtaining a Search Warrant, under the provisions of
Section 10 Crimes Act 1914 . . The information was sworn before
Mr . WHEELHOUSE, SM at Melbourne Magistrates Court on 3 March
1982 and a search warrant issued in respect . of HAZAN's
residence at 3/35 Victoria Street, Box Hill.
6. About lam on 4 March 1982 in company with Constables
Rona DENT and George WHILEY I went to 3/35 Victoria Street,
Box Hill to execute the search warrant . The front door of the
Unit was opened by HAZAN in response to my knocks . After
introducing ourselves as Federal Police and showing HAZAN my
identity certificate I told him I had a warrant to search the
premises . He then invited us into the kitchen of the unit
and there I read to him, in the presence of. DENT and 4'1HILEY,
the search warrant . He was cautioned and at my direction,
as there was another occupant in the Unit, I had policewoman DENT
raise this female, a Minnie BELL . Miss BELL was requested
to sit in the lounge room whilst we proceeded to search the
rooms occupied by HAZAN.
7. On the kitchen table I found four sheets of paper
headed 'Summary' . These appeared to be recorded details of
drafts .-purchased by persons on behalf of HAZAN . In the main
only christian names of purchasers and favourees were itemised
(copies attached).
8. HAZAN's bedroom . was searched and property seized.
This amounted to his briefcase which contained $1055 cash
and various banking documents and a diary . A metal file case
containing various documents was also seized .
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9.The lounge room was searched and a large amount of
records and documents were found and seized.
10.Miss BELL's bedroom was searched by DENT and WHILEY
in the presence of BELL whilst I .searched cupboards in the passage in the presence of HAZAN . Nothing vas seized as a result of these searches.
11. DENT remained with Miss BELL in the house while WHILEY
and I searched the garage and HAZAN's motor vehicle in his
presence . Again nothing was found or seized.
12. Upon our return to the interior of the house I requested HAZAN to shower, shave and dress as I wanted him to accompany us to Divisional Headquarters in Jolimont . After HAZAN had showered and dressed I requested Miss BELL do the same . When she was ready the seized property was loaded . into the boot of the police car and we returned to D .H .Q . I directed WHILEY to return to the Currency Branch and his normal duties.
13.Upon our arrival at Jolimont HAZAN was taken to the
second floor and sat in the foyer . Miss BELL was placed in
an interview room whilst DENT and I proceeded to try and
establish from her the addresses of the banks, at which she
purchased bank drafts on behalf of HAZAN . Miss BELL was
unable to recall these details . I then telephoned
Constable ROACH and had him take Miss BELL back to 3/35 Victoria
Street, Box Hill.
14. I then requested HAZAN to enter an interview room with
a view to establishing identity details that appeared on the
sheets of paper headed 'Summary' . At this point HAZAN requested
that he be allowed to ring a Solicitor . His request was
complied with and shortly thereafter Mr . Jereiiiiy ST . JOHN
arrived . He had a brief discussion with HAZAtN and then spoke
to me . He enquired as to whether his client Das under arrest.
I replied 'no' . ST . JOHN said 'then he refuses to answer
questions and we are leaving' . As a result of this together
with the details_on documents seized by me I had reasonable
grounds to believe that HAZAN had committed offences contrary
to Commonwealth Statutes . I advised ST . JOHN that I would
be arresting HAZAN and he again requested to speak with his
client privately . The request was granted and after this
discussion ST . JOHN told me that HAZAN was no'w alleging that
I had assaulted him . . I said to ST . JOHN that. I would get
an officer and he could formally complain to shim . ST . JOHN
declined to take the matter further . I deny having assaulted
HAZAN or of threatening him with physical violence .
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15 .ST . JOHN and I then returned to the interview room and
there in the presence of Constable DENT, ST . JOHN, HAZAN and myself I proceeded to tape record a record of interview with HAZAN . He refused to answer any questions apart from personal
particulars . He was then formally arrested and after
informations and court documents were prepared HAZAN was
taken to Melbourne Magistrates Court . A delay in the transfer
occurred because ST . JOHN had left his office for lunch and
it was not until he returned that we went to the Court . This
was done by consent to enable HAZAN to be represented at
Court and not have to be held in the cells at the City
Watchhouse.
116 .An application for bail was made which resulted in
HAZAN having to lodge a $10000 surety, surrender his passport, report twice weekly to the Box Hill police station and advise the informant of any change of address.
17. An investigation was then commenced by myself to
identify the persons described in the sheets headed 'Summary'.
This was done by circularising several major banking organisations
in Melbourne requesting that they in turn circularise their
branches in the Melbourne area . Whilst this was being done I
proceeded to examine the documents seized under the provisions
of the search warrant with a view to establishing the identity
of these persons . Several persons have now been identified
as co-offenders and they are to be interviewed and charged.
18.Due to a request by HAZAN and ST . JOHN to return to
HAZAN documents relating to proceedings before the Family Law returned to him (copy of indemnity receipt attached).
Court I contacted him by telephone and he attended the Currency
19 . . About 3pm on or about 29 April 1982 I received a telephone
call from Mr . ST . JOHN requesting the return of all documents
and papers in my possession as he required them for proceedings
in the Family Law Court . I declined to surrender the documents
•
to him and he .told .me that he would obtain a Court order and Constable WHILEY took to ST . JOHN's office on 3 ane 4 May 1982 a number of documents that were to be returned and those that were to be retained were photocopied . An indemnity receipt was obtained from ST . JOHN on behalf of HAZAN in respect of the property returned (copy attached) .
call me back . About 3 .30pm I received a phone call from a
male person stating he was the Registrar at the Family Court,
Melbourne . This person, whose name I cannot recall, told me
that the Judge presiding in HAZAN's matter would not issue an
order and would I be prepared to allow Mr . ST . JOHN to photocopy
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20. Shortly after this about 5, 6 or 7 May 1982 I
was contacted by telephone by Mr . ALWYN SAMUELS,
Solicitor advising that he was now representing HAZAN and
could I provide him with all the documents In my possession
in respect to HAZAN . Again I refused although assurances
were given by SAMUELS that the property would be put into
a trust . I told SAMUELS on this occasion that I was due to
| go on leave on 10 May 1982 until 28 May 1932. | .Upon my |
return I would again examine the documents and return to him
| those that would not be used as evidence . | He agreed and a |
date of 15 June 1982 was agreed upon . On Friday, 11 June 1982 I was instructed by . you (Mr . MITCHELL) not to. return the property to SAMUELS but to return the property to HAZAN
personally together with photocopies of documents retained.
In order to comply I contacted SAMUELS and advised him of
having to return the property_ personally . He stated that
he would contact HAZAN and have him attend his office on
17 June 1982, at 9am . On this date, in company with
Detective Acting Inspector PHELAN, I went to SAMUEL's office,
however, at that time he advised me he had failed to advise
HAZAN, but he would phone him and have him attend at his
office now . We agreed and shortly after HAZAN attended and
property and photostats . handed over (copy of :indemnity receipt
dated 17 .6 .82 attached).
21. With respect to the allegation contained in "E" I
agree that I spoke to the Mr . Noel MILLEN, Suipervisor,
New Business Department, Bank of New South Wales,
360 Collins Street, Melbourne . As I had had 'HAZAN under
surveillance he had been seen entering this particular branch
and when MILLEN was approached by our surveillance officers
he was given my name and telephone number to ,contact . No
information was . supplied to him, however, he advised me that
a search of, I believe 'Dunn and Bradstreet' records, revealed
that the ANZ bank had taken out an action against HAZAN in
respect of his overdrawn Bankcard account and, that the Bank
of N .S .W . preferred not to do business with HAZAN . I
respectfully submit that this is the perogatiive of that Bank.
22. In respect to the allegation contained at "F" I advise
that after an examination of HAZAN's bank accounts, which about
June 1981 grossed in excess of $200,000 I was, of the opinion
that loans available to Victorian residents together with the
interest . relief subsidy were for persons who suffered financial
hardship . On this basis I prepared a report on 21 April 1982
outlining details of these matters . At this time I requested
your permission to be allowed to approach the Victorian Ministry
of Housing officially so that these .matters .c:ould be brought
to their attention (copy of report attached) .
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23. On 30 April 1982 I received your reply (copy attached)
agreeing to my request . On 7 May 1982 a report was
forwarded to the Victorian Ministry of Housing advising
them of suspected breaches of their statutes (copy attached).
24.The preceding information is to the best of my
recollection the events . surrounding my involvement with
HAZAN . It should also be noted that as of the date of
this report it has been established that twenty five
persons assisted him to commit these offences and we have
successfully identified fifteen of them . I am still unable
to accurately establish the amount of money remitted
! overseas by HAZAN, however, it is believed to be
;approximately $150,000.
25.Report submitted as directed.
(R . CLARKE)
Detective Acting Senior Serqeant 529 "
The report was produced in response to a direction to the member
by Chief Inspector Mitchell pursuant to paragraph 19(1)(b) of General
Order 6 . The written direction itself is exhibit G herein.
The balance of exhibit H is the written interrogation of the
member by Chief Inspector Mitchell upon his report.
It is important to note that many of the allegations contained
in the direction, exhibit G, were totally irrelevant to the consideration of the tribunal in this matter, and went beyond the issues of the contents of that of the Search Warrant.
A later record of interview was conducted by Chief Inspector Mitchell
with the member (i .e . exhibit I) . The matters contained in the report
and the two interviews are largely undisputed.
A number of preliminary issues that had to be determined at
various states in the proceedings . A challenge was made by Mr Howie on
behalf of the member to the jurisdiction of this tribunal . The basis of
that challenge being that this tribunal, in hearing this charge, was
required to consider section 21 of the Commonwealth Crimes Act and the
time limits contained therein in respect of prosecutions for offences
against laws of the Commonwealth and of territories.
Iruled on 9 August 1984 that such a challenge failed . My
ruling was as follows:
"In respect of this particular matter Mr Howie
challenges the jurisdiction of the tribunal on the
following basis . He says that the provisions of
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section 21(c)(.i) of the Crimes Act, 1914 of the
Commonwealth apply to the disciplinary proceedings
presently charged before this tribunal in this case.
That particular section, in summary, provides that a various provisions . The one that would be applicable here is the provision contained in paragraph (c)(i) where it states:
prosecution in respect of an offence against . any law of the
Where the punishment provided in respect of the offence is a pecuniary penalty at any time within one year of the commencement of the offence.
I believe it is common ground in this particular case that
if that section were to apply to these proceedings the
tribunal would not have jurisdiction . Simply on the
basis there is no doubt in the particular case the
proceedings were instituted outside the period of one
year after the alleged commencement of the offence.
So there is no factual dispute as to the matter ; the
question is simply as to whether or not the Commonwealth
Crimes Act 1914 applies to proceedings under the
Complaints Act.
The vital consideration is whether or not these proceedings particular I have referred to the very recent authority of the Federal Court in Hardcastle -v- The Commissioner of Police to get some guidance as to the nature of these particular proceedings.
under the Complaints Act could be described as a
prosecution in respect of an offence against any law
of the Commonwealth . I have examined the matter closely.
In the case of Hardcastle -v- The Commissioner . of the
| O | Australian , Federal Police, which is as yet an unreported |
| decision as I understand it, handed down by the full Federal | |
| Court on 13 April 1984, the court comprising Bowen CJ, Gallop and Lockhart JJ, the court there spoke generally as to the nature of disciplinary proceedings under this complaints legislation . Whilst it was not a matter squarely on point with the submission here I believe the approach of the court is of some guidance . |
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At the bottom of page 5 of the joint judgment of the three judges the judgment states as follows:
The primary argument of counsel for the appellant concerned the construction of paragraph 18(1)(d) of the Discipline
Regulations . Counsel submitted that the they would not bar the institution of subsequent criminal proceedings in respect of the same conduct. It was submitted that paragraph 18(1)(d) should therefore be so construed as to remove the possibility of the occurrence of double jeopardy.
Tribunal lacked jurisdiction to hear the appeal
because, upon the proper construction of the
Discipline Regulations, paragraph 18(1)(d) does
not encompass conduct which, if proved, constitutes
a criminal offence . Two matters were relied on to
support this construction . First, it was
submitted that in respect of criminal conduct
a member of the Australian Federal Police is
entitled to be tried before a tribunal which
applies the criminal onus of proof namely,
proof beyond reasonable doubt and, where the
conduct is serious, he is entitled to trial by
jury . Second, it was asserted that the institution
of proceedings in relation to a disciplinary offence,
where the conduct relied on amounts to the
commission of a criminal offence, exposes the
member of the police force to double jeopardy.
I use that quotation because that puts the context that was there before the tribunal.
At the bottom of page 6 of the Federal Court go on to state;
In our opinion there is no substance in this to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body . The object of disciplinary proceedings is not to punish . ..
submission . It misconceives the character of
disciplinary proceedings'in general and under
the Discipline Regulations in particular . The
object of disciplinary proceedings under the
The Federal Court then refer to Harvey -v- Law Society of New of Sir Garfield Barwick at page 364 and then refer to Ex-parte Attorney-General ; re a Barrister and Solicitor (1972) 20 FLR 234 at page 244 .
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The judgment continues:
The expression "disgraceful or improper conduct" room for the application of what is sometimes mis- leadinglycalled the principle of double jeopardy in this case.
is of wide import ; sometimes it will and, at
other times mill not, encompass conduct which is
also criminal conduct . We see no warrant . for
construing the words of paragraph 18(l)(d)
otherwise than according to their ordinary
and natural meaning, a construction which is
consonant with the evident purpose of the
paragraph when considered in the context of the
The issue before the full Federal Court is a different one but in my view it bears some assistance in relation to the question here before me.
The concept of a prosecution involves an informant alleging
a charge against a defendant, whether it .be on indictment or
in summary form ; . it involves . the application of rules of
evidence ; it involves in my view necessarily in this context
the standard of proof being beyond reasonable doubt and the
onus of proof being on the prosecutor.
The Complaints . Act does not apply the strict rules of evidence
(cf Section 76) and further, it is quite clearly established
now as far as this tribunal is concerned that the standard of
proof involves the standard of proof on the balance of probabilities
with the reservations expressed in Briginshaw -v- Briginshaw and
Scanes -v- The Commissioner of Police.
All of those characteristics in my view make it quite obvious as a matter of law that the proceedings presently before this tribunal did not fall within the description of a prosecution in respect of an offence against any law of the Commonwealth. I am further supported in that view by the decision of
McInerney J . in Bodna -v- Della and the Public Service
Appeals Tribunal, (1981) UR 183.
There is further support for such a view in the decision of involving a public service disciplinary hearing.
The approach taken by those two judges in different jurisdiction
in relation to similar subject matter involving disciplinary
proceedings under the Public Service Act strengthens my view
that these types of proceedings here before the tribunal do not
amount to prosecutions for offences against the law of the Commonwealth .
-14-
For those reasons I am satisfied that the challenge to the
jurisdiction of tribunal put by Mr Howie must fail . I
am satisfied that the tribunal does have jurisdiction
to hear these matters on the basis that the time limit
is set out in section 21(c)(i) of the Crimes Act is
not applicable.
What I have said should not be interpreted as support for the proposition that there should be inordinate delays in bringing such proceedings . I am simply saying this in
case there appear to be no express time limits for the
bringing of . disciplinary proceedings under this complaints
legislation . I believe as a matter of policy it is . quite
obvious it is highly desirable such matters should be
dealt with as soon as possible, both in the interests
of members of the police force and obviously in the good
running and discipline of police force itself . I think
those matters need to be formally stated ."
After the hearing had commenced the Commissioner attempted to
withdraw the charges from the Tribunal . I am of the view, that section 67
of the legislation . requires that, once a charge is brought before the
tribunal, the tribunal is bound to determine it . The words are mandatory,
in form and effect.
This would not have presented a practical problem if, prior to
a hearing commencing, the Commissioner had merely indicated he did not
wish to call further evidence . The tribunal would have to determine the
matter then in favour of the member . The difficulty arose in this particular
case because at the time the Commissioner sought to withdraw . there was
already some evidence before the tribunal against the member . There
appears to be no precise power to withdraw in these situations . Perhaps,
as a matter of policy there should be . I discussed that issue in a decision
I gave in the case of Commissioner of Police -v- Barrett.
I leave open the question where in the event the Commissioner does
not call evidence, whether the tribunal has a responsibility in the public
interest to pursue its own inquiries pursuant to its wide powers, under
| Ilk | section 76 of the Complaints Act . I do not need to determine that. |
The third preliminary issue relates_to the second charge, against
paragraph 8(b) of the Regulations which involved the failure to promptly
return documents seized . It became obvious during the hearing that an
arrangement that had been reached between the Commissioner and the Ombudsman
pursuant to the provisions of section 11 of the Complaints Act .
-15-
It was never part of that arrangement that Sergeant Clarke be charged with the second charge . It was the recommendation of the Ombudsman in an arrangement with the Commissioner that the second charge
would not proceed . This was made clear by the various documents tendered
by the parties.
Mr Howie for the member (and supported by Mr Vickery for the Commissioner) submitted that when a .chargewas laid contrary to an arrangement reached between the Ombudsman and the Commissioner pursuant to Section 11, the charge must fail.
A's I dismissed the second charge on other grounds I leave the
question of the effect of a departure from a "Section 11 arrangement"
upon the validity of a charge open.
It is clear that the legislature intended that where such an
arrangement was reached it should be adhered to and charges should follow accordingly . One would not see the point of any such arrangement unless that was the case . There_is specific provision for the intervention of the
Attorney-General in the event of disagreement between the Commissioner and the Ombudsman.
| s | For the first charge the Commissioner must prove: |
| (1) | The documents were in fact seized by the member, or under his authority, or by one_of his assistants - and further would have to actually identify the specific documents seized; |
| (2) | The documents were . in . fact seized outside the authority of the warrant ; and |
| (3) | The manner and basis upon which the seizure . upon which the .seizure of each and every document exceeded the authority of the Search Warrant. |
| To succeed on the second charge the Commissioner must prove: | |
| (i) | the documents were in fact . seized by the member (as with the first charge) ; and |
(ii)that the documents were not promptly returned in all the circumstances.
In relation to the second charge, I note that there was return of documents on three separate occasions . There were receipts tendered for the return of those documents, comprising exhibits D, E and F.
The last return of documents occurred in mid-June 1982 .
-16-
In respect to both charges, the Commissioner has had obvious difficulty in proving what documents were in fact seized by the member. Initially at the hearing lengthy adjournments were granted in an
endeavour to reach agreement as to what items were seized by the
member pursuant to the Search Warrant . Counsel for the Commissioner,
Mr Vickery, had not had the opportunity himself of examining the documents
prior to the hearing commencing and a delay was occasioned because of
that fact .
I believe that the experience of . this case would demonstrate
that charges of this sort should never be brought prior to the documents is a dangerous enterprise.
being clearly identified and examined in detail . To take a global. approach
in relation to documents where specific matters have to be proved by the
If the member were to have been a defendant to a civil action
to justify his seizure of the documents pursuant to the warrant . But
between a person whose documents he seized the member would have needed documents alleged to be outside the .authority of the warrant and further that he also failed to promptly return documents so seized.
It is not encumbent upon Sergeant Clarke to prove anything . The
Commissioner bears the onus of proof to the standard of proof on the
balance of probabilities with the additional factors referred to in
Scanes -v- Wilson 3 ACTR 20 at 26 per Fox J.
On .1 June 1984 there was an attempt to reach: ; agreement between
the parties as to the documents seized by the member pursuant to the
Search Warrant . That attempt was unsuccessful because :11'ir Howie on
instructions was unable to agree either. because his client denied some
of the documents were a part of those seized or alternatively his client
simply was not able to instruct him that he had seized the documents.
Such a concession need never have been made by the defence . _The defence
could have elected, quite properly, to remain silent and leave it to the
Commissioner to prove.
| i | It is obvious that after the particulars were lodged on 1 June 1984 the Commissioner had extreme difficulty in proving the documents that were seized. |
The hearing resumed in August 1984 and at that time it was
obvious that the . Commissioner desired to withdraw both, (charges . I do not investigate the basis of that attitude . . The problem of' identification of the documents was indicated to the Tribunal . Further, by that time the
complainant had been sentenced in the County Court of Victoria following a
plea of guilty . The Crown Prosecutor who conducted these proceedings had
given an opinion in support of the member's seizure of documents .
-17-
The question of withdrawal is indeed a difficult one : on the one hand the rights of the member and the Australian Federal Police are important ; but on the other hand, of course, there is a public interest
in complaints being properly pursued regardless of the attitude of the
Commissioner of the Australian Federal Police.
Accordingly, I felt it entirely appropriate that I would request
Mr Vickery to call Mr Hazan, the complainant, and Mr Hazan would have the opportunity of_giving evidence before this tribunal and at least, having had the opportunity in a public setting of having his complaint aired.
Initially, in March 1984, Mr Hazan had some difficulties in giving evidence as he had not then been dealt with and of course this tribunal should not and would not transgress the right against self-
incrimination, a person who had not been dealt with would be in jeopardy sentenced by the County Court of Victoria . The details of those proceedings are set out in exhibits K and N.
of perhaps incriminating himself . That situation had resolved itself by
Mr Hazan gave evidence of his general complaint that documents
were seized that were irrelevant to any offence alleged! . He could not be precise as to exactly what documents were taken and would not have been in a position to identify the documents seized by the member pursuant to the
Search Warrant.
It is an element of each of the two offences to prove the
specific documents were in fact seized by the member and then go on to both charges.
consider those documents in respect of the excess of the authority in
one charge and the failure to promptly return on the other . There has
really been no document specifically tendered before me in the tribunal
as having been seized by Sergeant Clarke in relation to this search warrant
and the subject of any charge, and Mr Vickery, Counsel for the Commissioner,
indicated that he was not in a position to prove which documents were seized.
During a Record of Interview, exhibit I, Chief Inspector Mitchell
questioned the member on Page 3 (half way down) as follows:
During a search of his premises more than 20B0 documents were seized . At the time the documents were seized, had you addressed your mind to each and every document in respect of whether they afforded evidence to the commission of the offence?
| A . | No, that would be a sheer impossibility. |
| Q . | In those circumstances do you appreciate that you may have been acting illegally in seizing property which was not in fact covered by the warrant? |
| A . | Yes ." |
-18-
I accept those answers as honest and they_may be interpreted as
a general admission on a question of law, although vague and general in
nature . It involves the member making a general concession of illegality in
his seizure of documents.
It is for the tribunal_to make the legal and factual findings on
such issues . The admissions above do not satisfy the onus upon the Commissioner to identify the documents seized and the fact they were seized outside the authority of the search warrant or that he failed to
return promptly documents seized.
The Commissioner has tendered, by consent, a letter from the
Crown Prosecutor who conducted .the prosecution against Mr Hazan on behalf
of the DPP in the Victorian County Court, i .e . exhibit L . The contents
are opinion only, but of assistance to the Tribunal, as the Crown Prosecutor
is probably in the best position to make a professional judgment about the
relevance of documents to the commission of an offence and the use of
such documents in the prosecution.
Exhibit L in its relevant parts states as follows:
"Re : Ronald George Clarke - Prosecution : Maurice Hazan.
Pursuant to our telephone conversation of the 19th July, I confirm that I was Counsel briefed by and on behalf of the Director of Public Prosecutions for the Commonwealth to
prosecute the matter of Maurice Hazan (also known as
Moshe Ben Israel Hazan) . This matter related to a number of
breaches of the Banking (Foreign Exchange) Regulations
committed by Hazan, involving a considerable amount of currency.
Mr . Clarke was the Informant in the matter.
The matter ultimately proceeded by way of plea before His where the accused was dealt with.
As Prosecuting Counsel, I held the appropriate conferences
with Mr . Clarke, and was supplied with all relevant documents
from him, including documentation seized by him pursuant to
a Federal Search Warrant.
This material included financial documents, personal
correspondence, documents and materials relating to previous
litigation and personal documentation of various kinds.
All of the material I was given and sighted was of actual
or potential relevance to the Crown case, and indeed central
to many prosecution issues .
-19-
You will no doubt be aware that the Crown case against Hazan was that he had used other people to obtain foreign currency for purposes designated by him ; that he had obtained a
considerable amount of currency in this way ; that the
purposes designated appeared to be on behalf of members of
his family ; and that in short he had, by these means managed
to convert a large amount of money . into foreign currency in
an easily transmittable form (by way of bank drafts).
The Crown, to conduct the case properly, needed to be in possession, not only of materials, documentation etc ., central to the essential. elements of the case, but also material which would enable it to rebut potential defences.
Thus, to give one example, his personal correspondence with
those very members of his family, who were designated as
recipients of the fraudulently obtained bankdrafts was of
great importance to the Crown, since it appeared not to
indicate any such receipts thus again, the Jury could be
asked to draw the inference that the stipulated purpose
for which the foreign currency was obtained 'as in fact,
false- thereby grounding the Crown case of :a breach of
Regulation 41.
To give another example, the Crown had documentation showing
that the purpose of several drafts in his own name, were
allegedly for his sister, as payment for her caring for
his infant son in Israel and running into considerable sums
of money . Personal correspondence between Hazan and his sister-
in-law, however, indicates not only no such receipt but Hazan
arguing over the $20 .00 purchase of a heater for the child's
room, where he offers to pay for a third of the cost, on the
grounds that she also looks after 2 other children who would
benefit from such a purchase . This is a contra indication of
the largesse allegedly distributed by Hazan and again, a matter
from which a Jury would be asked to draw inference central to
the Crown case.
Again, documentation relating to his personal . circumstances were very relevant in establishing motive and mens rea l both central elements to the Crown case.
Material relating to his curriculum vitae was also of relevance
to the Crown, since it would (and did) enable the prosecution
to be fully appraised of all such matters which might very
easily become relevant either on rebuttal or an cross-examination,
and indeed, applied either in trial circumstances or (as
eventuated) a plea .
-20-
Of documents relating to his finances of course nothing need be said, since they (and I include here, bank account summaries, financial summaries and his diaries) formed the very core of the evidence upon which the Crown case was founded.
I have in this letter not gone into details of each
individual document but I am able to answer your
queries that the documents I sighted apparently obtained
as a result of a search warrant, were documents of
relevance to the successful prosecution . Of these
charges against Hazan, and indeed, were of a nature
such as I would expect to be seized by a competent and
reliable Police officer.
Moreover, had such documents not been seized _and presented for ultimate perusal to me, there may well have been grave difficulties placed in the path to successful prosecution.
I have not, of course, made reference to individual documents, but only an overall reference, but should you require further clarification on such individual documents please do not hesitate to specify them and I shall endeavour to categorize them .
Yours faithfully,
LILLIAN LIEIDER.
Barrister-at-Lbw ."
This would provide another ground for failure ., particularly in
| respect of the Doth charges . The opinion strongly supports and justifies. | the member's actions. |
The scope of the authority of search warrants has been the
subject of many recent authorities in the Federal Court . This case
| i | exemplifies the practical problem for a police officer investigating a fraud involving numerous documents . The question that 'has to be asked is how can a police officer be satisfied he is seizing teach individual document within the authority of a warrant without a specific and detailed |
| examination of each particular document . If that had been done before seizure, the process would have taken many hours . The practical problem highlighted by this case was adverted to by Mason J . irn Baker -v- Campbell 49 ALR 385 at page 407 as follows: |
"In approaching the scope of the authority giveen by
the warrant we must keep practical considerations
steadily in mind . It is simply impossible foir a
police officer executing a warrant to make an
-21-
instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search . Generally speaking, it is in the course
of the subsequent investigation following seizure of the reasonable grounds for believing that they will in some way
documents that informed consideration can be given to
the documents and an assessment made of their worth or
significance in the respects already mentioned . These
considerations suggest that para .(b) and the concluding
words of the section, in so far as they relate back to
I implicate the persons named in the warrant, or, if no
person is named, someone in the commission of the offence.
To say that the section excluded documents the subject
of legal professional privilege from the scope of the
authority given by the warrant would unduly inhibit the
investigation of crime and lead to the institution of
legal proceedings before trial which would require a
determination of the existence of the privilege because
the Crown's right to retain the documents would depend on
the resolution of this issue . In the case of production
on discovery and under subpoena dueeo tecum there is a
court or tribunal already exercising jurisdiction in the
matter which could determine questions of relevance and
privilege . It is otherwise in the case of search and
seizure under a warrant . This indicates that it was
unlikely that . Parliament intended to import some limitation
of the kind suggested into the authority given by a
warrant granted under s 10(b) ."
The High Court in the case was considering the applicability of legal professional privilege to documents seized under a search warrant. The majority of the court held that legal professional privilege applied to the seizure of documents under a search warrant . Mason J . was in the minority but nevertheless his comments remain pertinent to the practical problem here.
Mason J . comments on the general role of a search warrant at pages 405 and 406 of his judgment as follows:
"Likewise, search and seizure under the authority of a warrant is not a form of discovery in an action ; nor is it a proceeding ancillary to the trial in the sense
in which an interlocutory application is a proceeding
ancillary to the action itself .
-2L-
The search warrant has been described as "part of the
investigative pre-trial process of the criminal law,
often employed early in the investigation and before
the identify of all of the suspects is known":
A-G (Nova Scotia) v MacIktyke (1982) 132 DLR (3d) 385
at 397 1 per Dickson J . Its function is to authorise a
search and seizure of materials which will implicate
a person in the commission of the offence . The search
and seizure which it authorises is designed, among
other things, .to yeild evidence which can be tendered
by the prosecution in the subsequent trial of a person
for the offence described in the warrant.
i For present purposes the important characteristics of the
search warrant procedure are that its foundation is the
making of an order by a judicial officer and that the
warrant which issues by virtue of the order authorises
the search and seizure of_documents in the possession of
another for use in the investigation and in any
subsequent trial arising out of the investigation.
The end result of the procedure, though it is achieved
by different means, is relevantly similar to that of discovery
and of the subpoena dace's tecwn which make available to a
party to litigation then on foot documents in connection
with that litigation . . For this reason there is a case
for saying that a privilege which is available in answer
to production on discovery and under a subpoena should
likewise be available in answer to a search Warrant, even
though the procedure which follows the issue of a warrant
is in no sense a judicial or quasi-judicial procedure.
This argument is much stronger in its application to
documents brought into existence for the purpose of any
contemplated trial arising out of an investigation in
which the search and seizure is an element, not being
communications made in furtherance of a criminal offence,
because execution of the search warrant in relation to
the documents may constitute an interference with the
contemplated trial . But in the present case. it is not
suggested that the claim of privilege applied to documents
of this kind ."
Northrop J . in Coward v Allen (19 March 1984 federal . Court of
Australia) at page 33 of his judgment expresses reservations about the power
of a police officer to remove documents from premises for the purposes of
examining their relevance and then later returning them!. He leaves that
question open . He emphasizes the need to closely align the purpose and
scope of the warrant with the documents being seized (cf pages 25-26) . , He tends
to favour a police officer having greater flexibility in his assessment and
his ultimate decision to not issue an injunction•(see page 35) .
-23-
The issue has also been discussed by Beaumont J . in
Brewer v Castles & Others (No . 3) (Federal Court of Australia at Sydney on 28 March 1984).
A Police Officer must ensure that each document complies with
the authority of his search warrant before he seizes it . If he does not,
he leaves himself open to disciplinary charges such as this or civil action.
He must consider : can he take. the document away for a reasonable time for
| examination? This appears doubtful on the present law . | Alternatively, |
does he tie up perhaps abusy, professional office for several days while
he satisfies himself about the documents? The latter course would
obviously involve disruption and inconvenience to the operation of a
business on professional practice, along with embarrassment arising
from the presence of police at the premises.
Can a police officer be expected to make judgments about legal
professional . privilege? Must he ensure that he does not fall foul of the
principles of the majority decision of Baker v Campbell (Supra) . When
one considers that the Bench of the High Court of Australia has expressed
varied opinions as the relevant law of legal professional privilege as
it relates to Search Warrants, one can feel some sympathy for the police
officer applying these principles in the execution of his Search Warrant.
The courts have indicated the need for the resolution of the
dilemma facing the police officer in the member's situation . Perhaps
what is required is a limited power to detain and examine documents
with specific protection of the documents being retained and controlled
| in the court office or Registry . | This would enable a proper examination |
of documents by police but under the auspices and control of the Court. The inability of the Commissioner to prove and specifically identify
the documents seized under the search warrant is fatal to both charges . Further retention of the documents by the member in this case . On the evidence before me the Commissioner would probably have failed in respect of both charges if the documents had been abled to be specified by the Commissioner.
the expert opinion of the Crown Prosecutor who handled the prosecution of
I find the member not guilty of both charges before me.
I am satisfied that the Commissioner should pay the costs of the
member relating to these proceedings . The parties should endeavour to agree as to the quantum of those costs . In the event the quantum cannot be agreed I grant leave to re-list the matter before me .
13 February, 1985
(Delivered orally on 3 December, 1984)
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