Crowley v Murphy
[1981] FCA 26
•19 MARCH 1981
Re: PETER LAWRENCE CROWLEY; TERENCE JOHN CHAMBERLAIN; CHRISTOPHER JOHN
CROWLEY; WILLIAM BRIAN LOFTUS
And: GEOFFREY GERARD MURPHY (1981) 52 FLR 123
No. F.C. 43 of 1979
Criminal Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
CANBERRA REGISTRY
Franki J.(1), Northrop(2) and Lockhart(3) JJ.
CATCHWORDS
Criminal Law - Search Warrant issued pursuant to Crimes Act 1914 s.10 authorising entry of solicitor's office and seizure of certain documents - Appeal from primary Judge's determination as to the nature and extent of search permissible in execution of warrant - Consideration of principles applicable in determining extent of lawful search - Whether legal professional privilege or contractual relationship between solicitor and client relevant.
Crimes Act 1914 (Cth.) s.10.
Criminal Law - Search warrant - Authority to search solicitors' office - Solicitors not implicated in alleged offence - Nature and extent of permissible search - Principles applicable - Whether legal professional privilege relevant - Whether contractual relationship between solicitor and client relevant - Crimes Act 1914 (Cth), s. 10.
HEADNOTE
A warrant was issued pursuant to s. 10 of the Crimes Act 1914. The warrant purported to authorize the respondent to enter the premises of the appellant solicitors and to seize any document which might afford evidence as to the commission of offences against s. 67 of the Companies Ordinance 1962 (A.C.T.). The appellants were not implicated in the offences alleged in the warrant. The respondent attended at the premises of the solicitors for the purpose of executing the warrant. He wanted "if necessary to go to any cupboard, safe or other place on the premises to obtain documents". The appellants refused to hand over some documents on the ground of legal professional privilege and issued a writ claiming a declaration to restrain the respondent "from pursuing . . . a threatened trespass against goods . . . in purported execution of a search warrant". The validity of the search warrant was not attacked and the only issue raised was the extent and nature of the search permitted under the warrant.
Held: Per curiam, dismissing the appeal - (1) Neither legal professional privilege nor the contractual relationship existing between solicitor and client is relevant in relation to the nature and extent of the permissible search because where a statute provides for access to documents to be available to a person the fact that those documents are held by a solicitor and were entrusted to him by a client does not provide a ground for the solicitor to refuse access to the documents.
Parry-Jones v. Law Society, (1969) 1 Ch 1; Brayley v. Wilton, (1976) 2 NSWLR 495, followed.
Smorgon v. Australia and New Zealand Banking Group Ltd. (1976), 134 CLR 475, considered.
Commissioner of Inland Revenue v. West-Walker, (1954) NZLR 191, not followed.
(2) Section 10 of the Crimes Act 1914 authorizes by implication search pursuant to a warrant. The section must be strictly construed.
R. v. Tillett; Ex parte Newton (1969), 14 FLR 101, applied.
(3) The only search which could be made pursuant to the warrant is a search which is reasonable in the particular circumstances existing at the moment when objection is taken to the search being made.
(4) In the present case the respondent's claim to the right to examine physically every document in the office was not justified.
Frank Truman Export Ltd. v. Metropolitan Police Commissioner, (1977) 1 QB 952, considered.
HEARING
Sydney 1980, September 23-24; 1981, March 19. #DATE 19:3:1981
APPEAL.
Appeal from the judgment of the Supreme Court of the Australian Capital Territory (Blackburn C.J.). The appellants sought orders restraining the respondent from searching their premises pursuant to a search warrant.
M.L. Foster Q.C. and P.L.R. Sheils, for the appellants.
T.R.H. Cole Q.C. and F.J. Purnell, for the respondent.
Cur. adv. vult.
Solicitors for the appellants: Higgins, Faulks & Martin.
Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
E.F. FROHLICH
ORDER
1. The appeal is dismissed.
JUDGE1
This appeal is from the judgment of a Judge of the Supreme Court of the Australian Capital Territory.
A search warrant was issued by a Justice of the Peace pursuant to s.10 of the Crimes Act 1914 which provides :
"If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place --
(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;
he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place."
The warrant is in the following terms:-
"COMMONWEALTH OF AUSTRALIA
CRIMES ACT 1914
SEARCH WARRANT
TO: GEOFFREY GERARD MURPHY
Australian Federal Police Officer.
WHEREAS I, HARRY TAZEWELL 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 are reasonable grounds for suspecting that there are at premises known as 6th Floor, National Mutual Centre, Darwin Place, Canberra City, and situated at Block 3 Section 5, City, in the Australian Capital Territory, occupied by CROWLEY & CHAMBERLAIN, Solicitors, books, records, cheque butts, deposit slips, receipts and other documents in relation to transactions between GRANTHAM HOMES PTY. LTD., GRANTHAM HOLDINGS PTY. LTD., GRANTHAM INVESTMENTS PTY. LTD., P.C. GRANTHAM PTY. LTD., AMSIL LIMITED, James Frederick GRANTHAM and Rena GRANTHAM as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against Section 67 of the Companies Ordinance 1962 of the Australian Capital Territory, namely the offence of receiving financial assistance from a company to purchase a share of that company YOU ARE HEREBY AUTHORISED with such assistance as you may think necessary to enter at any time the said premises, if necessary by force, and to seize any books, records, cheque butts, deposit slips and other documents in relation to the said transactions which you may find in the said premises and as to which these (sic) are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and for so doing this shall be your sufficient warrant.
GIVEN under my hand at Canberra in the said Territory this 30th day of October 1979.
(SGD.) H. Tazewell J.P. Justice of the Peace in and for the Australian Capital Territory."
The respondent attended at the offices of the solicitors for the purpose of executing the warrant. After some documents had been inspected a dispute took place between the respondent and Mr. Chamberlain, one of the appellants.
The respondent wanted to conduct the search in a way which Mr. Chamberlain sought to prevent. It appears that a gentleman from the Commonwealth Crown Solicitor's office, on whose behalf the search was apparently being conducted, was claiming that the search could be carried out in the following manner:
". . . if necessary to go to any cupboard, safe or other place on the premises to obtain documents and to examine them to ascertain whether or not they had relevance within the terms of the warrant."
The appellants then issued a writ claiming a declaration to restrain the respondent: "from pursuing or undertaking a threatened trespass against goods. . . in purported execution of a search warrant. . . ".
No statement of claim was filed but a notice of motion in the same matter was filed seeking the following orders:
"1. That the defendant be restrained from attempting to examine any document relating to the affairs of clients of the plaintiffs other than the five companies and two other persons named in the Search Warrant dated the 30th October 1979 given by H. Tazwell J.P. to the defendant.
2. That the Defendant, upon the assurance and undertaking of the plaintiffs that all such documents named in the said warrant have been or will be without delay produced as required by the defendant search the premises named therein no further.
3. A declaration that the orders numbered 1 and 2 herein are implied by law within the terms of the said warrant.
4. Such further and other orders as to the Court shall seem proper."
This appeal is from the judgment given in relation to the notice of motion.
It was common ground that the Solicitors, whose office was being searched, were not implicated in the offences alleged in the warrant.
No attack was made on the validity of the warrant before the trial Judge and on appeal any attack on its validity was disclaimed. It appears that this was done for the purpose of enabling the real issues between the parties to be determined in the proceedings. The warrant however did contain at least one error in that it referred to the alleged offence under s.67 of the Companies Ordinance 1962 as being that of "receiving financial assistance from a company to purchase a share of that company" whereas the offence is that of "giving" and not "receiving" financial assistance. The case proceeded before us upon the basis that the warrant was to be read as if the alleged offence was correctly described in it.
This appeal raises the issue of the extent and nature of the search permitted under the warrant. Since no attack was made on the validity of the warrant it must be read as authorising any act encompassed by it. Mala fides was not alleged against persons conducting the search.
It is necessary to consider two questions:
1. Whether the search was restricted because of the relationship of solicitor and client.
2. Whether, apart from any restrictions arising out of the relationship of solicitor and client, any restrictions existed on the extent of the search authorised by the warrant.
Question 1. I am satisfied that neither professional privilege nor the contractual relationship existing between solicitor and client is relevant in relation to the nature and extent of the permissible search.
There was evidence that certain clients of the appellants, who were not connected with the matters set out in the warrant, claimed that their dealings with the appellants as solicitors should enjoy the strictest confidentiality.
The possible right to have such dealings protected from disclosure may rest on two grounds. The first may depend on the contractual right arising from the relationship of solicitor and client and the second on what is known as "legal professional privilege".
This question has arisen before. In my opinion the relevant principles are set out in Parry-Jones v. Law Society (1969) 1 Ch.1. In that case before the Court of Appeal, the Law Society had served a notice on a solicitor pursuant to the Solicitors' Accounts Rules, 1945, and the Solicitors' Trust Accounts Rules, 1945, requiring that solicitor to produce for inspection his books of account and any other necessary documents relating to his practice as a solicitor and every trust of which he was trustee. The solicitor sought injunctions restraining the Law Society and its officials concerned from having access pursuant to the notice to confidential information, relating to any client of his, inter alia, without the express authority of such client. The Court held that the contractual duty of confidence was over-ridden by the duty to obey the rules made pursuant to statutory power. Lord Denning M.R. at p.7 said:
"In my opinion the contract between solicitor and client must be taken to contain this implication: the solicitor must obey the law, and, in particular, he must comply with the rules made under the authority of statute for the conduct of the profession. If the rules require him to disclose his client's affairs, then he must do so."
At p.8 Lord Denning continued:
"In my opinion that rule is a valid rule which overrides any privilege or confidence which otherwise might subsist between solicitor and client."
Diplock L.J. at p.9 said:
"The foundation of Mr. Parry-Jones' case is the submission that an inspection of documents under rule 11 of the Solicitors' Accounts Rules, 1945, is in the nature of a judicial proceeding. In my view it is no more in the nature of a judicial proceeding than an inspection by a factory inspector under the Factories Act of factory premises. Of course, the result of it may lead to subsequent judicial or quasi-judicial proceedings, but that does not make the inquiry or inspection a judicial or quasi-judicial proceeding itself.
So far as Mr. Parry-Jones' point as to privilege is concerned, privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence. What we are concerned with here is the contractual duty of confidence, generally implied though sometimes expressed, between a solicitor and client. Such a duty exists not only between solicitor and client, but, for example, between banker and customer, doctor and patient and accountant and client. Such a duty of confidence is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land. If it is the duty of such a party to a contract, whether at common law or under statute, to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void."
Salmon L.J. agreed with the judgments of Lord Denning M.R. and Diplock L.J.
This judgment was followed by Bowen C.J. in Equity in Brayley v. Wilton (1976) 2 N.S.W.L.R. 495. His Honour quoted and followed the passage which I have set out from the judgment of Diplock L.J.
Stephen J., sitting as a single Judge, in Smorgan v. Australia and New Zealand Banking Group Ltd. (1976) 134 C.L.R. 475, cited with approval, at p.487, the judgment of Diplock L.J. in Parry-Jones v. Law Society (supra) as authority for the proposition that where the law of the land requires a disclosure of documents by a banker there will be no breach of contract by the banker of which the customer could complain. Stephen J., at p.488, then referred to the case of the Commissioner of Inland Revenue v. West-Walker (1954) N.Z.L.R. 191 and said that he had not found it possible to reconcile aspects of the reasoning in that case with that in the case of Parry-Jones v. Law Society.
An appeal from the judgment of Stephen J. was taken to the Full Court and is reported in (1979) 23 A.L.R. 480. So far as is relevant the Full Court upheld the judgment of Stephen J. At p.487 Gibbs A.C.J., as he then was, referred to Parry-Jones v. Law Society, to Brayley v. Wilton and to the discussion by Stephen J. sitting as a single Judge in the case under appeal, and said:
"Further, in my opinion, the existence of the contractual duty provides no just cause or excuse for refusing or neglecting to produce the documents. It is likely that documents which relate to the income or assessment of a taxpayer will often be entrusted by him to another, e.g., to a Bank, a solicitor or an accountant." (Emphasis provided.)
In my opinion, the principle of law to be taken from these authorities is that where a statute provides for access to documents to be available to a person the fact that those documents are held by a solicitor and were entrusted to him by a client does not provide a ground for the solicitor to refuse access to the documents.
I have carefully considered the judgments in Commissioner of Inland Revenue v. West-Walker (supra). In my opinion the judgments of the majority in that case should not be preferred to those in Parry-Jones v. Law Society, Brayley v. Wilton, and what was said by Gibbs A.C.J. in Commissioner of Inland Revenue v. West-Walker. With great respect I consider that the majority in Commissioner of Inland Revenue v. West-Walker failed to pay proper regard to the nature of legal professional privilege as explained in the passage from the judgment of Diplock L.J. set out above.
I am satisfied that neither the contractual obligation existing between solicitor and client nor any question of professional privilege is relevant in considering the extent of the search authorised under the warrant.
Question 2. There are many reported cases on the duties of the person issuing a search warrant and upon questions involved in determining whether a warrant should be quashed. Illustrations are to be found in the judgment of Fox J. in The Queen v. Tillett; ex parte Newton (1969) 14 F.L.R. 101 and the Canadian cases referred to in Fontana "The Law of Search Warrants in Canada" 1974 at pp.148 to 151 and 174 to 175. However whilst those cases provide useful background material I do not regard them as decisive in the case before us. They are Canadian cases and they deal with matters relevant in applications to quash warrants. We are not concerned with whether the warrant is beyond power or otherwise objectionable, but only with the question whether the acts which were sought to be done extended beyond the acts authorised by the warrant.
Section 10 of the Crimes Act makes no mention of search but it is clear that it is authorised by implication (see The Queen v. Tillett (supra) at p.112). The critical question concerns the nature and extent of the search which is authorised by implication.
The section authorises entry "if necessary by force" but, although the use of force is mentioned specifically, the section must be strictly construed because it interferes with a previously existing common law right. I need only refer to Maxwell "On The Interpretation of Statutes" 12 Edn. (1969) where it is said at p.116:
"Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question."
As an illustration, if it is reasonable to gain access to a house when all the doors are locked, a warrant issued under the section would not appear ordinarily to justify blowing up a part of the house with an explosive or destroying a part of it with a bull-dozer although it would usually justify the use of such force as is reasonably necessary to break open a door to gain access to the premises. Since the nature of the search is not dealt with by the words of the section but arises by implication, I am clearly of the opinion that the only search which could be made pursuant to the warrant in this case is a search which is reasonable in the circumstances. I regard this conclusion as the critical factor in the determination of this appeal.
The search authorised under the warrant therefore does not extend beyond that which is reasonably necessary to ascertain what "books, records, cheque butts, deposit slips and other documents in relation to the said transactions. . . " were upon the premises.
The precise nature of the proceedings before the trial Judge from whose judgment this appeal is brought are not clear.
The proceedings based on the notice of motion appear to be in the nature of interlocutory proceedings although the parties do not appear to have so treated them and before us no such suggestion was made.
I propose to regard them, as I think the parties did, as not being proceedings in which it was appropriate to apply principles applicable to the grant of an interlocutory injunction.
Having come to the firm conclusion that the warrant authorised no search other than what was reasonable to ascertain what "books, records, cheque butts, deposit slips and other documents in relation to the said transactions. . . " were upon the premises the question which I have to decide is whether the respondent sought to go beyond this.
The evidence is unsatisfactory. The respondent claimed the right to examine physically every document in the office to ensure whether or not it was a document within the class described in the warrant. In my opinion this claim is not justified. It is impossible to lay down the limits of a reasonable search. They must depend on many factors. The test of what is reasonable in a search for a weapon used in an alleged murder, or for a large quantity of drugs, is very different to that in a search of the office of a firm of solicitors where no member of the firm is suspected of being implicated in the offence for the proof of which evidence is being sought.
In my opinion, the warrant certainly authorised a full examination of the index of files. Nothing in the evidence pointed to the index which was kept being unreliable. If the index pointed to any documents within the terms of the warrant being in any file, the warrant certainly authorised an examination of that file so far as was necessary to ascertain whether any document in it was within the terms of the warrant. Once it had been determined by the respondent that the file was not relevant no further examination of it was justified.
In addition the respondent at least was entitled to see and examine to the same extent any file or document, the existence of which he had learnt otherwise than from the index, and which he had reason to believe came within the terms of the warrant.
If the appellants were seeking to reduce the area of the search beyond that sought by the respondent, they ought to have taken all reasonable steps to establish that no document within the terms of the warrant existed other than those made available for examination.
The evidence shows that after some initial difficulties with files the appellants were prepared to make available further files. However, Mr. Chamberlain, who gave oral evidence, gave no assurance to the respondent or to the learned trial Judge that he had made an adequate investigation of the position and that all documents which might fall within the terms of the warrant had been made available to the respondent, or indeed, at the time of the hearing, were available to the respondent.
The following evidence is from the cross-examination of Mr. Chamberlain:
"Q. Can I put this to you - Crowley and Chamberlain still have in their possession a number of files relating to the subject matter of the warrant which have not been given to Constable Murphy? A. We hold still those files that were withdrawn at the request of the defendant on the second occasion. In other words, those that were taken down from the finished. . . Apart from those files and apart from those documents which we have also withdrawn from the deeds safe, I have no knowledge of any other files or documents that might relate to the affairs of those parties referred to in the warrant.
Q. Those files have not been given to Constable Murphy, on your assessment, because they come under the heading of legal professional privilege, is that the situation? A. No. No, that is not right. The documents that I have withdrawn that I have just referred to are those which I would be prepared to make available to him. They are the ones that he selected. When we came back to court they were kept as a bundle, they have been put aside, they are in our premises, they are available.
Q. Can I put it this way, you still have two types of files relating to the subject matter of the warrant. Ones which you are prepared to give Constable Murphy, and another pile which you are not prepared to give which relate, as you see it, which come under the umbrella of legal professional privilege? A. No, so far as I am aware those files and those documents that have now been bundled represent the total of those files held by our firm that have reference to the warrant. I am not prepared, and was not prepared, to allow the defendant and his officers to conduct a general search of our office otherwise.
Q. Are there any files contained on the premises of Crowley & Chamberlain relating to the subject matter of the warrant that you are not now prepared to make available to Constable Murphy? A. Not to my knowledge."
Mr. Chamberlain only said that so far as his knowledge extended no other files were within the terms of the warrant. This is insufficient in my opinion. He did not explain the nature of the search he had made or the basis upon which he had formed his view. What would be necessary again depends on the particular circumstances existing at the relevant moment. The question of the search of a solicitor's office was considered by Swanwick J. in Frank Truman Export Ltd. v. Metropolitan Police Commissioner (1977) 1 Q.B. 952 at pp.965-966. At p.965 Swanwick J. said: "What is reasonable when conducting a search in a solicitor's office must depend on the circumstances. What is reasonable in a man's house may well not be reasonable in the offices of his solicitor". I have cited this case but it must be read with caution because of the statements in it concerning legal professional privilege.
I do not suggest that any restrictions exist in relation to the search of a solicitor's office merely because he is a solicitor. Any restrictions arise from the search being limited to a reasonable search. Many factors are relevant. For example it is clear that a warrant to search for a particular cheque at the premises of a bank, would not, at least in the absence of some extraordinary circumstances, entitle the searcher to examine each cheque on the premises referred to in the warrant. Questions of what is reasonable would arise in the case of a warrant issued to search the offices of a member of parliament, a union official or a statutory body. It must be remembered that a Justice of the Peace, unqualified in the law, may issue a search warrant under s.10 of the Crimes Act, 1914. It is not the function of this Court to question the desirability of such a provision.
The task of a person seeking to show that more than a reasonable search is being sought will never be easy. I reiterate that what is a reasonable search depends on the particular circumstances existing at the moment when objection is taken to the search being made.
Although the views I have expressed differ from those of the learned trial Judge I consider that the appellants have not made out a case for any order. Consequently I would dismiss the appeal.
I would leave each party to pay its own costs because, although the appeal should not succeed, I reject the respondent's claim that the method of search for which he contended was permitted under the warrant.
JUDGE2
I have had the advantage of reading the reasons for judgment prepared by Lockhart J. and am in complete agreement with them. I agree with the principles of law therein stated and propose to apply those principles to the facts of this case.
In giving his reasons for refusing to grant interlocutory relief, the learned trial judge said:
"Furthermore, there are almost no reported cases of search, under a warrant, for documents in solicitors' offices. Counsel for the plaintiffs relied on this as a persuasive indication that the legislature could not have intended that s.10 should destroy the protection upon which persons who leave their documents in the possession of their solicitors are entitled to rely. This contention carries little weight with me. I am not at all surprised by the undisturbed longevity of conventions and practices, including conventional abstentions from the assertion of legal rights. Moreover, I think an explanation comes readily to mind: the rarity, or absence, of instances of this particular issue can well be explained not only in terms of mere convention but also by the honesty of both classes of persons concerned. Solicitors can usually be trusted to tell the truth, so police officers can usually accept a solicitor's statement that a given collection of documents is all that the solicitor has of documents answering to a given description. Police officers usually act in good faith, so solicitors have seldom been subjected to improper searches. Nothing I say is intended to cast the least reflection on either party in this case. But the scarcity of reported authority does not help me to decide what is the letter of the law."
The facts of this case illustrate an absence of the rational and reasonable attitude one would expect in a case of this kind.
The search warrant was issued on Tuesday, 30 October 1979. At about 4.55 p.m. on that day the respondent with other police attended at the premises of the appellants to execute the warrant. The only evidence of what occurred was given by the appellant, Mr. Chamberlain. The evidence given is somewhat confusing and it is desirable to quote from the transcript of evidence taken at the hearing of the motion for the interlocutory injunction. The extracts of evidence are selected to state the facts in chronological order. In examination in chief Mr. Chamberlain said:
"Was there some discussion between you and Mr. Murphy concerning the documents which he said claim to have the right to search? --- Mr. Murphy contended that he had the right to search willy nilly, I would say, through the office. I challenged him on this and asked whether he was seeking a right to carry out a negative search. And he affirmed that this was the case and if necessary reinforcements would be called to enforce that right.
What did you mean by a negative search? --- To inspect all or any documents that he saw fit on the premises to ensure that there was nothing in those documents or files that might relate to the matters covered by the warrant."
It is to be noted that on the evidence Mr. Chamberlain was the person who first used the expression "negative search" and he used it in the sense of the constable having the right to inspect the documents he, the constable, "saw fit".
The appellants produced some files on the Tuesday afternoon. In examination in chief Mr. Chamberlain said:
"Did you at any stage refuse to give him any documents which were sought? --- Yes.
When was that? --- When the warrant was first presented to me I said to Mr. Murphy that I thought there was only the one file in relation to the Amsell matters which appear to be that matter to which the warrant referred.
I obtained that file and subsequently made inquiries of other staff who were still at the office and found that there were, in fact, other files relating to the overall thing and a bundle of files were obtained. Of that I withheld two files and indicated to the defendant that those files in my view were privileged and not part of that those matters held by the warrant. There was a further file which was one kept for our own office which I also refused to make available to him. Subsequently he did inspect that file anyway.
What about the other two? --- They were inspected the following morning during the course of our attempts to reconcile the matter.
Why did you claim privilege on those? --- Because they related to the affairs of another Grantham who was not one of the parties or bodies referred to in the warrant itself."
In cross examination Mr. Chamberlain said:
"What further files then did you give Constable Murphy that afternoon? --- There was a further bunch of files relating to the affairs of the parties referred to in the warrant.
Do you know how many files there were? --- There would have been about ten to a dozen.
From your knowledge at that time, were they all the files held by Crowley & Chamberlain in relation to the subject matter contained in the warrant? --- To my knowledge, yes. I must qualify that to the extent that we, during the period that we acted for - particularly one of the parties, Grantham Homes, which was a builder/developer in this Territory - acted for them as the vendor of many properties. I indicated at the time to the defendant that we had a large number of files relating to Grantham Homes, that those files that I had obtained were, so far as I was aware only those to which the warrant related, but that I could not be sure.
And did Constable Murphy ask you could he search and examine those files - those other files that you told him you had? --- Yes.
And did you then refuse to allow him to search for those files? --- Initially, yes."
On Wednesday, 31 October 1979 the respondent again attended at the office of the appellants. In evidence in chief Mr. Chamberlain said:
"On the following morning did the matter come again before the court? --- Yes.
Was there any discussion with Mr. Hiscock from the Deputy Crown Solicitor's office? --- Yes. Through the course of that morning attempts were made to satisfy Mr. Murphy that files were available and all those files that we had made available or could make available to him were those to which the warrant related. Subsequently and later through the course of that morning, I think late in the morning, Mr. Hiscock indicated that that was not sufficient and that he and his officers considered they were being impeded in their search and that they sought appropriate power.
Did they say what the power was that they sought? --- Yes, to search any and all documents. And if necessary to go to any cupboard, safe or other place on the premises to obtain documents and to examine them to ascertain whether or not they had relevance within the terms of the warrant."
It is noted that the claim for the right to search every cupboard, safe or other place was claimed "if necessary".
On Wednesday, 31 October 1979 the appellants gave additional files to the respondent. In cross examination Mr. Chamberlain said:
"And what further files did you give him on that date? --- I could not advise the precise files or the number of the files, but there was a search conducted by the defendant and his officers of our index. Certain files were selected. Those files were brought down from our storage premises, and after inspection by me, if I thought they applied, they were made available to them.
And what criteria did you use for deciding whether you would give those files to Constable Murphy or not? --- My only criterion was whether or not the people referred to were covered by the terms of the warrant and whether - if I felt that there were any matters that were not - that those parties should not or were not privy to, then I did not make them available.
And on 31 October did you show Constable Murphy an index relating to 'A's and 'G's? --- He had access to the whole of our index. He looked at the 'A's and the 'G's."
"After you came over to court on the 31st, did you then, some time after, show Constable Murphy the book where the file numbers are kept when a file is given a number? --- Yes.
And after that on request of Constable Murphy did you then obtain further files? --- Yes. At the same time I might add, that I also explained to Constable Murphy the whole of the operation of our indexing, recording and file opening and closing systems.
Following that giving of files to Constable Murphy, have you given him any further files on any other occasion, or any other documents relating to the subject matter of the warrant? --- Following the inspection of the index, the files that were sought were brought down. They were inspected. Those that were selected - I do not think any of them were rejected - were put aside in a bundle. We then moved to our library where we have a deeds safe and a wills safe. A further inspection was made of the index in relation to those documents. The documents which were selected by the defendant and his officers were withdrawn from the safe and put into a bundle, with the exception of one package which related to the affairs of another Grantham. There was a bundle of personal papers, and I can only describe it as such, there was a letter on the file which indicated what papers were in that package. That letter was seen by the defendant and the package was subsequently restored to the safe.
Can I put this to you that you - Crowley & Chamberlain still have in their possession a number of files relating to the subject matter of the warrant which have not been given to Constable Murphy? ---
. . .
We hold still those files that were withdrawn at the request of the defendant on the second occasion. In other words, those that were taken down from the finished . . . . . . Apart from those files and apart from those documents which we have also withdrawn from the deeds safe, I have no knowledge of any other files or documents that might relate to the affairs of those parties referred to in the warrant.
Those files have not been given to Constable Murphy, on your assessment, because they come under the heading of legal professional privilege, is that the situation? --- No. No, that is not right. The documents that I have withdrawn that I have just referred to are those which I would be prepared to make available to him. They are the ones that he selected. When we came back to court they were kept as a bundle, they have been put aside, they are in our premises, they are available.
Can I put it this way, you still have two types of files relating to the subject matter of the warrant. Ones which you are prepared to give Constable Murphy, and another pile which you are not prepared to give which relate, as you see it, which come under the umbrella of legal professional privilege? --- No, so far as I am aware those files and those documents that have now been bundled represent the total of those files held by our firm that have reference to the warrant. I am not prepared, and was not prepared, to allow the defendant and his officers to conduct a general search of our office otherwise.
Are there any files contained on the premises of Crowley & Chamberlain relating to the subject matter of the warrant that you are not now prepared to make available to Constable Murphy? --- Not to my knowledge."
"Can I put this to you. Was it put to you by the police at any stage that because of the non-availability to them of the index that they wished to conduct a search of all the premises? --- Yes, I think that is probably a fair assessment, but it was - I did tell him, the defendant, that the index was not on the premises, that I did not have immediate access to it, and that it was not covered by the warrant in any event. I told him also that, you know, arrangements could be made for that to be inspected. But the thing about it was that there was a practical difficulty associated with the timing of the presentation of the warrant in the sense that it was right on closing time and there were other commitments, other staff involved and this is well in terms of the sheer physical recovery of files and what had to be then done if that warrant was to be fully executed with our co-operation."
It is not disputed that on the Tuesday afternoon Mr. Chamberlain refused to allow the respondent to inspect some files which he desired to inspect. The appellants then claimed legal professional privilege. Subsequently the appellants made reference to the index of files, but even then the appellants contended that since the index was not on the premises to be searched it was not covered by the search warrant. The respondent searched the index relating to "A"s and "G"s, being the first letters of the names of the companies and individuals mentioned in the warrant. From this index the respondent selected a number of files which he desired to inspect. The appellants claimed the right to determine which of those files should be made available to the respondent and refused to make available the others. The latter category has not yet been made available to the respondent but the appellants now are prepared to make them so available.
The respondent is asserting an absolute right to search but that claim is qualified by the words "if necessary". The respondent has not given evidence of the manner by which he desires to execute the warrant. The facts show that he is interested in the files and documents indexed under any of the names of the companies or individuals named in the warrant. Where there is doubt as to the name or where the same name refers to a different company or individual, the respondent desires to inspect the file or documents to ascertain its relevance for the purpose of executing the warrant. That is a reasonable course of action.
The first order sought, namely:
"That the Respondent be restrained from attempting to examine any documents relating to the affairs of clients of the Appellants other than the five companies and two other persons named in the search warrant dated the 30th October 1979 given by H. Tazewell, J.P. to the respondent."
is based upon the existence of legal professional privilege. That privilege has no application to the facts of this case and accordingly no order should be made in the form sought.
The second order sought is:
"That the Respondent, upon the assurance and undertaking of the Appellants that all such documents named in the said search warrant have been or will be without delay produced as required by the Respondent, search the premises named therein no further."
The searcher is authorised to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances he has whatever documents are necessary to answer the terms of the warrant. The searcher must have some idea of what he is looking for. He should be entitled to look at the files and documents relating to the companies and individuals named in the warrant. An index of files and documents may identify them. In the absence of an index it may be necessary to identify all files and documents to enable the searcher to identify the relevant files and documents for examination. The appellants do not know the details of the information being sought by the respondent. It may not be a sufficient search to compel the respondent to accept the assurance and undertaking of the appellants, particularly where, as in this case, all the files relating to the case and individuals named in the warrant have not been handed to the respondent. It is extremely difficult to determine what is or is not a reasonable search in the absence of particular facts. The general legal principles have been stated. On the facts proved it is impossible to say whether the respondent has attempted to conduct the search in an unreasonable manner. An order in the form sought interferes unduly with the authority of the respondent in executing the warrant and should not be granted.
The third order sought, namely:
"A Declaration that the orders numbered 1 and 2 herein are implied by law within the terms of the said search warrant."
is not appropriate.
Accordingly, the appeal should be dismissed. The appellants have failed in their primary submission. The respondent has had restrictions imposed upon his contentions in the other submission. There should be no order as to the costs of the appeal or as to the costs below.
JUDGE3
This appeal concerns the powers of policemen executing search warrants. A warrant was granted to Geoffrey Gerard Murphy ("the respondent"), authorising him to enter premises in which the appellants, a firm of solicitors, carry on practice in Canberra and to seize documents relating to possible offences under s. 67 of the Companies Ordinance 1962 (A.C.T.).
The documents are described in the warrant in general terms and are said to relate to transactions between five companies and two natural persons. They are clients of the appellants.
It is common ground that the appellants are not themselves implicated in the alleged contraventions of s. 67.
The warrant was issued by a Justice of the Peace on Tuesday 30 October 1977 pursuant to s. 10 of the Crimes Act 1914 (Cth.) which provides:-
" If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place --
(a) anything with respect of which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;
he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary be force, and to seize any such thing which he may find in the house, vessel, or place."
The warrant is in the following terms:-
"COMMONWEALTH OF AUSTRALIA
CRIMES ACT 1914
S E A R C H W A R R A N T
TO: GEOFFREY GERARD MURPHY
Australian Federal Police Officer
WHEREAS I, HARRY TAZEWELL 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 are reasonable grounds for suspecting that there are at premises known as 6th Floor, National Mutual Centre, Darwin Place, Canberra City, and situated at Block 3 Section 5, City, in the Australian Capital Territory, occupied by CROWLEY & CHAMBERLAIN, Solicitors, books, records, cheque butts, deposit slips, receipts and other documents in relation to transactions between GRANTHAM HOMES PTY. LTD., GRANTHAM HOLDINGS PTY. LTD., GRANTHAM INVESTMENTS PTY. LTD., P. C. GRANTHAM PTY. LTD., AMSIL LIMITED, James Frederick GRANTHAM and Rena GRANTHAM as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against Section 67 of the Companies Ordinance 1962 of the Australian Capital Territory, namely the offence of receiving financial assistance from a company to purchase a share of that company YOU ARE HEREBY AUTHORISED with such assistance as you may think necessary to enter at any time the said premises, if necessary by force, and to seize any books, records, cheque butts, deposit slips and other documents in relation to the said transactions which you may find in the said premises and as to which these (sic) are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and for so doing this shall be your sufficient warrant.
GIVEN under my hand at Canberra in the said Territory this 30th day of October 1979.
(SGD.) H. Tazewell J.P. Justice of the Peace in and for the Australian Capital Territory."
I have had the advantage of reading the reasons for judgment of Northrop J. I respectfully agree with them. It is unnecessary to relate the facts as they appear fully from his judgment.
The respondent claimed, when executing the search warrant, the right to conduct what was described in the evidence as a "negative" search, namely a search of the whole office of the appellants, and everything in it, in order to be sure that there were no documents of the class described in the warrant not examined by the respondent. Mr. Chamberlain, one of the appellants, challenged his right to do this.
Neither in the Supreme Court nor before this Court on appeal did the appellants challenge the validity of the warrant. Consequently, we do not have before us the material which was considered by the Justice of the Peace and which led him to issue the warrant. It is common ground that the issue is what the respondent may lawfully do in the course of executing the warrant.
The contentions of each party may be stated briefly.
Counsel for the appellants contended that a statute is not to be construed as derogating from a common law principle unless by express words or necessary implication; that the common law principle applicable in the present case was that of legal professional privilege; and that the powers conferred by s. 10 of the Crimes Act must not be construed as abrogating that privilege; so that the "negative" search of the files of clients other than those specified in the warrant is impermissible. Much reliance was placed upon the decision of the Court of Appeal of New Zealand in Commissioner of Inland Revenue v. West-Walker 1954 N.Z.L.R. 191.
Counsel for the appellants contended, in the alternative, that the powers conferred (by the warrant) on the respondent must be exercised bona fide and reasonably and that it is not a bona fide or reasonable exercise of those powers for the respondent to assert the right to make a "negative" search i.e. to ransack the office of the appellants, in the course of which he, and the other policeman assisting him, would have access to all manner of confidential material relating to the affairs of numerous clients of the appellants having nothing whatever to do with the alleged contraventions of s. 67 by a small number of clients.
Counsel for the respondent contended that the respondent is authorised by the warrant to search the office of the appellants for documents of the class stated in the warrant; that it is impossible, without examining every document in the office, to be satisfied that he has seen every relevant document within the stated class; and that to hold otherwise would be to give less than full force and effect to the warrant and to s. 10 of the Crimes Act.
The inviolability of a person's home was recognised early in the history of English law. It is an immunity equal to the inviolability of the person himself.
In 1604 Sir Edward Coke reported Semayne's Case (1604) 5 Co. Rep. 919; 77 E.R. 194 as resolving:-
"The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose;"
This same conception was expressed, although in more colourful language, by William Pitt, First Earl of Chatham, in a celebrated address to Parliament in 1766 on general warrants, in these terms:-
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the winds may blow through it - the storm may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement."
The only exception to this common law rule was that a warrant could issue for the limited purpose of searching a person's home for stolen goods: Hale's Pleas of the Crown (1800) Ch. XVIII. This rule was recognised substantially unchanged down to recent times; but with the increasing complexity of modern civilization, the rise of technology and the development of sophisticated criminal techniques, Parliaments have found it necessary to encroach on such a fundamental principle of the common law.
A multiplicity of statutes exist in England and Australia authorising the use of search warrants in a large variety of circumstances. In England they appear in statutes as diverse as the Prevention of Fraud (Investment) Act 1958, s. 14; Coinage Offences Act 1936 s. 11; Customs and Excise Act 1952, s. 296; Children and Young Persons (Harmful Publications) Act 1955 s. 3; Protection of Birds Act 1954 s. 6; Official Secrets Act 1911, s. 9 and Theft Act 1968 s. 26 - to mention but some.
In Australia, Commonwealth Acts include the Income Tax Assessment Act 1936, s. 263; Distillation Act 1901, ss. 60 and 61; Bankruptcy Act 1966, s. 130; Apple and Pear Levy Collection Act 1976, s.10; Customs Act 1901, s.214; Historic Shipwrecks Act, 1976 s.23; National Health Act 1953, s.82V; and Trading with the Enemy Act 1939, s. 7.
Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right at common law to enter a person's home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or the authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. Statutes authorising the issue of search warrants must be expressed in clear and unambiguous language.
Search warrants are necessary in modern society; but courts strive to balance the competing interests of the citizen to the inviolability of his home or premises and of the State to prevent the commission of crime or to obtain evidence in aid of the prosecution of offenders. It is as well to bear in mind the following passage from the judgment of the Lord Justice General of Scotland, Lord Cooper, in Lawrie v. Muir 1950 S.L.T. 37 at pp. 39-40:-
"From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the utmost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducment to the authorities to proceed by irregular methods."
This passage was cited by Lord Hodson who delivered the opinion of the Judicial Committee in King v. R. (1969) 1 A.C. 304 at p. 315 and by Stephen and Aickin JJ. in Bunning v. Cross (1978) 141 C.L.R. 54 at p. 76.
The Courts exercise a supervisory jurisdiction over the issue and execution of search warrants, which "were looked upon with grave suspicion by the Common Law": Stephen's Commentaries on The Laws of England 21st ed. Vol. IV at p. 224.
It is important that this jurisdiction be exercised zealously in modern times when inroads are made so frequently upon the rights of citizens by statute and administrative action. The jurisdiction is exercisable in various ways: for example by the prerogative writs of prohibition or certiorai to review invalid search warrants, injunctions and damages for trespass: see R. v. Tillett; Ex parte Newton 1969 14 F.L.R. 101 and the cases there cited; Benjafield and Whitmore, Principles of Australian Administrative Law (4th ed.) at p.189.
But one of the most important requirements is that the person charged with the power of issuing seach warrants satisfies himself that it is a proper case for the issue of such a substantial interference with a citizen's liberties.
An application for a warrant under s. 10 may be made to a Justice of the Peace. Justices of the Peace are a numerous and eclectic class of persons in Australia without any requirement of legal training. Doubtless they perform valuable public functions; but the dangers inherent in investing them with judicial powers when there is no necessity for judicial qualifications are obvious. They are well illustrated by the Newton Case itself where the search warrant, which Fox J. held to be invalid, was issued under s. 10, on the application of the Commonwealth police, by the manager of the branch of a bank next to their office.
A Justice of the Peace issuing a warrant under s. 10 must be satisfied by information on oath as to the matters specified in the section. Whether this means that the evidence before the Justice must be in writing and embodied in a formal information (see Montague v. R.A.H.Shen (1907) V.L.R. 45; Bridgeman v. Macallister (1898) Q.L.J. 151; Palethorpe v. Nibbin (1937) Q.W.N.33); or may be given before him, whether in writing or not, provided that it is on oath (see Mitchell v. New Plymouth Club (Inc.) (1958) N.Z.L.R. 1070) I do not find it necessary to decide; but I add my voice to that of Fox J. in Newton's Case where his Honour, without deciding the question, said at p. 109:-
"It certainly seems desirable . . . that there be a written record of what passes before the Justice and there is much to commend the adoption of a practice of having the information in writing."
The Justice of the Peace has authority to issue a warrant only to a constable (as to the meaning of "constable" see s. 3 of the Crimes Act).
The warrant must specify the offence in relation to which the search is to be authorised. I agree with Fox J. in Newton's Case when he said at pp. 112-113:-
"In my opinion the warrant should refer to a particular offence and authorise seizure by reference to that offence."
Plainly this must be so; for were it otherwise, it would lead to what Mr. D. C. Pearce said in his article on "Judicial Review of Search Warrants and the Maxwell Newton Case" (1970) 44 A.L.J. 467 at p. 472:-
". . . to an absurd result if the Justice of the Peace has to be satisfied that there are reasonable grounds for suspecting the presence of things affording evidence of a particular offence but is there empowered to issue a warrant allowing search and seizure at large."
In determining whether or not to issue a search warrant the Justice must act judicially; he must consider whether what is alleged in the information before him provides reasonable ground for suspecting that there is in the house, vessel or place to be searched anything of the kind mentioned in paras. (a), (b) or (c) of s. 10. He cannot properly come to this conclusion unless the grounds of suspicion are disclosed by the informant. It is the Justice himself who must be satisfied, not the policeman who gives the information on oath. The Justice must not act as a mere rubber stamp for the police. He must ensure that a finding of reasonable grounds is supported by credible facts and circumstances: see Aguilar v. Texas, (1964) 378 U.S. 108.
This does not mean that the Justice must be satisfied that the things to be searched for will necessarily afford evidence sufficient to result in a conviction; but simply whether they will be relevant in some way to the issue, if found. He is not to decide the case at the time it is sought to issue the warrant; but the Justice must remember that he is exercising wide powers ex parte, and must take into account the rights of the citizen who is not before him in a proceeding that cuts across the ancient principle that a person's home is inviolable. It is a power to be exercised with great care and circumspection. The warrant is not to be lightly granted.
Whether the police officer executing a warrant under s. 10 can seize only things that afford evidence as to the commission of the offence specified in the warrant or may seize other things that he finds in the course of his search that can afford evidence of the commission of other offences, is not a question that directly arises in the present case and thus does not fall for decision. The view that such other things may be seized was accepted by the Court of Appeal of England (Denning M.R., Diplock and Salmon L.JJ.) in Chic Fashions (West Wales) Limited v. Jones (1968) 2 Q.B. 299, although Diplock L.J. expressed some qualification at p. 315:-
"It may well be that there are other considerations which are relevant when police officers, although they have reasonable grounds for believing goods are stolen, have none for believing that they came otherwise than innocently (which might include purchase in market overt) into the possession of the person in whose possession they are found. On this I deliberately refrain from expressing any view."
And again at p. 317:-
"I leave aside the question, which does not arise in the present case, of what constitutes sufficient justification for the seizure and detention if the contemplated charge is not against the person in whose possession the goods were at the time of the seizure."
Salmon L.J. said at p. 321:-
"In particular I wish to make it plain that I incline to the view that if a policeman finds property which he reasonably believes to be stolen in the possession of a person who he has no reasonable grounds to believe is criminally implicated, the policeman has no common law right to seize the property. If, for example, a policeman is admitted to a house, and whilst there, sees some silver on the sideboard which he reasonably believes is stolen property but which he has no reason to suppose was dishonestly acquired by the householder, he cannot take it away without the householder's consent."
In Ghani v. Jones (1970) 1 Q.B. 693 the Court of Appeal (Denning M.R., Edmund-Davies L.J. and Sir Gordon Willmer) adopted a similar approach to that adopted by the Court of Appeal in Chic Fashions Case; but that was a case where police searched a house without a warrant.
Nor is it necessary in the present case to consider the question of the admissibility of evidence unlawfully obtained: see in particular R. v. Ireland (1970) 126 C.L.R. 321; and Bunning v. Cross (1978) 141 C.L.R. 54.
I turn to the question of the respondent's power to execute the warrant.
Most of the argument in the appeal to this Court centred on the question of legal professional privilege, as it is commonly called. Counsel for the appellants contended that the appellants were entitled to decline to make available to the respondent files and documents relating to the affairs of clients other than the clients specified in the warrant; that the respondent could not touch, search or seize them, on the ground that they would be protected in ordinary legal proceedings by the common law privilege which exists in relation to professional advice and assistance; and that the doctrine of legal professional privilege had an extended operation to render the files and documents immune from search and seizure under the warrant.
It is trite law that the privilege is that of the client. In the present case none of the clients of the appellants (except those named in the warrant) have consented to the search or seizure of the files or their contents relating to their affairs.
The phrase "legal professional privilege" is confusing and sometimes misleading. Legal professional privilege, strictly so called, relates to legal proceedings and is the right of a client to protect from disclosure in judicial or quasi-judicial proceedings communications between himself and his solicitor for the purpose of obtaining advice and information given by him to his solicitor. It is a rule of evidence. It is a principle of high public policy, long recognised by the common law, that those confidential communications should not be subject to disclosure without the client's consent.
The right is not absolute. Some limitations have been placed upon it. In particular, the privilege does not extend to protect communications which are in themselves part of a criminal or unlawful proceeding.
It is unnecessary to examine the history of the doctrine. It has been fully examined elsewhere: see Wigmore On Evidence 4th Ed. 3193-3256; Halsbury's Laws of England 4th Ed., Vol. 13, paras. 71-85; Bullivant v. Attorney-General for Victoria (1901) A.C. 196; and Minter v. Priest (1930) A.C. 558.
There is a clear distinction between privilege relating to legal proceedings and what is sometimes called privilege that arises from an implied term in the contract between a solicitor and his client whereby the solicitor must keep his client's affairs secret and not disclose them to anyone except in exceptional circumstances: see Tournier v. National Provincial and Union Bank of England (1924) 1 K.B. 461; Parry-Jones v. Law Society (1969) 1 Ch. Div. 1; Commissioner for Inland Revenue v. West-Walker (supra).
In Parry-Jones, Diplock L.J. did not regard this duty of confidence as a privilege at all; he called it merely a contractual duty of confidence (p. 9).
This duty of confidence is not confined to the relationship of solicitor and client. It applies to other relationships; for example, accountant and client, banker and customer, doctor and patient: Parry-Jones per Lord Denning M.R. at p. 7 and Diplock L.J. at p. 9.
The solicitor's duty of confidence arising from the contract with his client is, of course, subject to the operation of the law of the land. If a solicitor is required by statute or the common law to disclose confidential information, he must do so; his contractual duty of confidence is overriden by the general law. So it is with others who are subject to a duty of confidence to their clients or patients: Parry-Jones (supra); West-Walker (supra); Smorgon v. Australia and New Zealand Banking Group Limited (1976) 134 C.L.R. 475 per Stephen J. at p. 488.
Counsel for the appellant relied heavily on the decision of the New Zealand Court of Appeal in West-Walker to support his contention that legal professional privilege, strictly so called, is not confined to judicial or quasi-judicial proceedings; but entitles the appellants, as solicitors, to decline to make available to the respondent for search and, if necessary, seizure, the files and their contents involved in this case; and prevents the respondent from searching and seizing them.
In West-Walker (supra) a notice signed by the Commissioner for Taxes was served on the defendant, a solicitor, pursuant to s. 163 of the Land and Income Tax Act 1923 (N.Z.) at his office requiring him to furnish certain information and to produce certain books or documents concerning the transactions of one of his clients, and demanded that he:-
"give all information and produce all books, correspondence, and documents in (his) knowledge, possession, or control relating to the income, financial position, financial transactions or trust account, and in particular, relating to transactions in property of the client."
The defendant refused to furnish or produce such information or any books correspondence or documents in his possession or control without the authority of his client. He was charged with the offence, under s. 149 of the Land and Income Tax Act 1923 (N.Z.), of failing or refusing to furnish in writing information and to produce documents which the Commissioner considered necessary or relevant for a purpose relating to the administration or enforcement of that Act or any other Act imposing taxes or duties.
It was held by the four members of the Court of Appeal who constituted the majority, Gresson J. dissenting, that the defendant was entitled to decline to furnish information or to produce documents without the consent of his client which would be protected in ordinary legal proceedings by the common law privilege which exists between a solicitor and his client in relation to professional advice and assistance.
In Parry-Jones (supra) the Law Society served on a solicitor a written notice pursuant to r. 11 of the Solicitors' Accounts Rules 1945 (U.K.) requiring him to produce for inspection his books of account and any other necessary documents relating to his practice as a solicitor and every trust of which he was a trustee. The solicitor sought injunctions to restrain the Law Society and its officers from having access, pursuant to the notices, to confidential information relating to any client of his without the express authority of his client and without prior information to him of the nature and content of complaint made to or by the Society; and from having access to any accounts in respect of which it was or might be alleged, without his knowledge, that he was a solicitor or trustee.
It was held by the Court of Appeal that the doctrine of legal professional privilege could not operate to excuse the solicitor from complying with the requirements of the notices served pursuant to the Rules as there was no judicial or quasi-judicial proceeding involved, only an inquiry as to whether or not there was prima facie evidence that the ground of complaint existed. It was held also that, insofar as the contractual duty of confidence was relied upon by the solicitor, it was overriden by his duty to obey the general law and that s. 29 of the Solicitors' Act 1957, in enabling the Council of the Law Society to "take such action as may be necessary", empowered it to make Rules whereby it could inspect the solicitor's books and supporting documents in order to see that the Rules were complied with, even if it meant disclosing the client's affairs.
In Smorgon's Case (supra) Stephen J. said at p. 488:-
"I have not found it possible to reconcile aspects of the reasoning in these two decisions" (that is Parry-Jones and West-Walker) . . . "I refrain from adding to these conflicting views yet one more voice since in the present case I am in no way concerned with the relationship of solicitor and client."
I too would like to join with Stephen J. and refrain from adding yet another voice to those conflicting views; but regrettably cannot do so as the conflict between West-Walker and Parry-Jones must be resolved in the present case.
This Court is not bound by decisions of the English Court of Appeal or of the Court of Appeal of New Zealand; but they must, of course, be given great weight and respect.
I find it impossible to reconcile the two decisions. I note that in Parry-Jones the English Court of Appeal was not referred to West-Walker. Parry-Jones was followed by Bowen C.J. in Eq. (as he then was) in Bayley v. Wilton (1976) 2 N.S.W.L.R. 495 where his Honour held that a solicitor must comply with a request made to him by a person duly appointed pursuant to s. 82 A (1) of the Legal Practitioners' Act 1898 (N.S.W.), and acting pursuant to s. 82 A (5) Practitioners' Act 1898 (N.S.W.), and acting pursuant to s. 82 A (5) thereof, that he produce to that person the contents of individual client's files relating to matters in which the solicitor had no interest as a principal. His Honour held that the solicitor was not protected by professional privilege because strictly speaking it refers to a right to withhold from a court or tribunal exercising judicial functions material which would otherwise be admissible in evidence; and the contractual duty of confidence between solicitor and client is subject to and is overriden by the duty of any party to comply with the law.
None of the authorities referred to by any member of the Court, in West-Walker or by counsel in the report of their argument, support the proposition that the doctrine of legal professional privilege extends beyond judicial proceedings or quasi-judicial proceedings. Nor did counsel for either party in the present appeal refer this Court to any such authorities. Nor have my own reseraches revealed any.
Indeed, in West-Walker itself, the two authorities most strongly relied on by the majority were Bullivant v. Attorney-General (supra); and Minter v. Priest (supra); yet both cases involved the doctrine of legal professional privilege strictly so called namely, the right to withhold from a Court or Tribunal acting judicially, material which would otherwise be admissible in evidence; the doctrine was treated as a rule of evidence.
The Canadian Courts have grappled with this problem. It has been held in Canada that a search warrant is not invalid merely because the records to be searched for may be covered by legal professional privilege. Fontana says in The Law of Search Warrants in Canada at pp. 150 and 151:-
"But a search warrant will not be quashed simply because the material to be searched for might be covered by the privilege. Osler J. in the Colvin case said: 'There can be no sure way of classifying the various types of material in advance and, in any event, it must be remembered that the rule (the solicitor-client privilege) is a rule of evidence, not a rule of property. I would not be prepared, therefore, to quash a warrant respecting material which there were reasonable grounds to believe might afford evidence with respect to the commission of an offence simply because the possibility existed that such material might be covered by the solicitor-client privilege. The only way, as I see it, in which the privilege can be asserted is by way of objection to the introduction of any allegedly privileged material in evidence at the appropriate time.' R.S.C. 1970, c.C-30.
In other words, a search warrant will lie as against the material in the solicitor's possession provided they are well defined and the warrant does not amount to carte blanche; an issue as to the evidentiary validity and the solicitor-client privilege may then be raised when the material is sought to be introduced at trial."
I have come to the conclusion that the doctrine of legal professional privilege applies only to judicial or quasi-judicial proceedings and is a rule of evidence. The appellants are not protected by legal professional privilege from withholding from the respondent the files, or their contents, relating to the affairs of clients of the appellants. Nor is the respondent prevented, by the doctrine of legal professional privilege, from searching them and, if they fall within the terms of the warrant, seizing them.
In reaching this conclusion I prefer to follow the decision of the English Court of Appeal in Parry-Jones and the decision of Bowen C.J. in Eq. (as he then was) in Bayley v. Wilton (supra) rather than the decision of the New Zealand Court of Appeal in West-Walker.
I do so not only because West-Walker appears to be the only reported decision pointing to the contrary of a long line of high authority; but I see no good reason for extending the operation of the doctrine of legal professional privilege beyond its present limits. The philosophy underlying the privilege is that the proper administration of justice requires that clients be free to communicate with their solicitors and counsel without the fear of disclosure in evidence of what each has said. Otherwise clients may be less than frank and the machinery of justice less easily administered. Also, settlements may be less freely and frequently arrived at.
If the philosophy which found favour with the majority in West-Walker is correct, I see no good reason why it should be confined to legal professional privilege. Why, on this broad approach, is the relation of solicitor and client more entitled to the protection of the law than other confidential relationships such as doctor and patient, priest and parishioner or accountant and client. Yet the courts have not extended the protection of privilege (I leave aside Crown privilege as it is irrelevant to this case), other than as a contractual term, beyond the solicitor-client relationship. I see no reason why they should do so.
So much for the question of legal professional privilege.
I turn now to the critical question in the case namely, the powers of a "constable" executing a search warrant under s. 10 of the Crimes Act.
The requirements to be satisfied before search warrants are issued are set out, usually with some particularity, in the statutes that authorise their issue. But the authorising statutes generally do not set out the procedures to be followed in enforcing search warrants, except to say in some cases, when the warrant may be executed, whether the person executing the warrant may be accompanied by other persons and to permit the use of reasonable force to enforce the warrant.
Little has been written definitively and directly on the enforcement of search warrants by the Courts of Australia, New Zealand and the United Kingdom; but I have found considerable assistance from reported decisions concerning the exercise of other statutory powers by public officers including the power of revenue authorities and company investigators to give notices to taxpayers and others requiring information to be furnished and documents to be produced and authorising entry into buildings and other places to examine and copy documents and seize them.
I will not attempt to state exhaustively the procedures that policemen should follow when executing search warrants. That would be both unnecessary and undesirable. What should be done must vary according to the circumstances of each case. But I shall endeavour to give some general guidance.
First, like most statutory powers, the power of enforcing a search warrant must be exercised in good faith.
Second, the power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose.
Third, the power must be exercised fairly, having regard to all the circumstances.
Fourth, it must be exercised having regard to those affected by its exercise and, in particular, to the rights of those persons. I shall return to this later.
Fifth, the officer executing the warrant must strictly follow the directions contained in it and must not exceed the limits of the authority it confers.
Generally, as to these matters, see Price v. Messenger (1800) 2 B. & P. 158; British Equitable Assurance Co. Limited (1906) A.C. 35; F.C. of T. v. Australia and New Zealand Banking Group Limited (1979) 23 A.L.R. 480 per Murphy J. at p. 505; R. v. Secretary of State for Trade; Ex parte Perestrello (1979) 3 W.L.R. 1 per Woolf J. at p. 13 and Carter, The Law Relating to Search Warrants at pp. 69 and 70.
I turn to the terms of the warrant in the present case. The respondent is authorised:-
"with such assistance as you may think necessary to enter at any time the said premises, if necessary by force, and to seize any books, records, cheque butts, deposit slips and other documents in relation to the said transactions which you may find in the said premises and as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences and for so doing this shall be your sufficient warrant."
It will be noted that the power is to enter the premises occupied by the appellants and to seize documents. There is no power of search conferred by express language. The warrant thus follows s. 10 itself which is curiously silent as to the power to search, although it refers to the warrant as "a search warrant". I join with the learned primary Judge in agreeing with the dictum of Fox J. in the Newton Case (supra) at p. 112:-
"It deals with entry and seizure; search is not expressly mentioned, although it is authorised by implication."
The power to enter the premises "at any time" also echoes the language of s. 10. Doubtless the section authorises an entry "at any time" to overcome the general rule of common law that, in the absence of directions in the authorising statute or warrant itself, it should be executed in the day time. As Carter points out in his work on The Law Relating to Search Warrants at p. 66, statutes variously disclose when the warrant may be executed: for example, "by day or by night", "in the day time", "between sunrise and sunset", "during the hours of eight o'clock in the morning and six o'clock in the evening", "at any time in the day or night", and "at any reasonable time by day".
When a Justice of the Peace decides to grant a search warrant in a particular case, s. 10 does not require that the warrant use the very words "at any time" in relation to the time of entry. He may specify the time he thinks appropriate (including any of the times referred to by Carter) having regard to the circumstances of the case. Those words in s. 10 are enabling only; they are not intended to have mandatory operation once the Justice has decided to grant a warrant and to be necessarily included in the terms of the warrant itself. Clearly there may be cases where the Justice ought to impose strict requirements as to the permissible time of entry.
The words "as to which there are reasonable grounds for believing that the same will afford evidence as to the commission" of offences against s. 67 of the Companies Ordinance 1962, appear both in the recital to the warrant and the operative provisions empowering the respondent to enter the premises and to seize documents. These words also are taken from s. 10 itself. There is a distinction between the words "will afford" and the words "may afford" which appear in some authorising statutes. That the documents to be seized "will afford" evidence as to the commission of offences is a matter for the Justice to determine when issuing the warrant, not the officer executing it. "Will afford" means not that the documents must be sufficient to result necessarily in a conviction; but that they have some probative connection with the offence alleged: see Re Worrall (1965) 2 C.C.C. 1, a decision of the Ontario Court of Appeal.
It is a rather daunting task that faces the respondent when executing the warrant. The warrant tells him the premises he is authorised to enter and the general nature of the alleged offence, namely against s. 67 of the Companies Ordinance. I might say that the warrant inaccurately and confusingly refers to the offence against s. 67 as "receiving" financial assistance, whereas the offence is "giving" financial assistance. However, counsel for the appellants said that no point was taken as to this. The warrant also tells the respondent those said to be parties to the relevant transactions.
But how is the respondent to tell what documents are relevant? Section 67 offences often involve difficult questions of fact and law and a multitude of documents, each establishing a link in a complex chain of proof. Bearing in mind the requirement that the respondent adhere strictly to the terms of the warrant and that he seize only those documents that he is authorised to seize, it presents him with a task requiring the wisdom of Solomon, the patience of Job and, when the time arrives to take the documents away, perhaps the strength of Hercules.
How does he go about this difficult and delicate task?
I have looked for assistance to cases relating to search warrants decided in the United States of America and have found them helpful; but they must be treated with caution in this country as they are affected by the Fourth Amendment to the U.S. Constitution.
Canadian Courts have been confronted with this problem over quite a few years and they have developed doctrines which are helpful in considering the questions arising in the present case; but with this note of caution, that in the Canadian cases the validity of the warrant was itself impeached. They are extensively referred to by J.A. Fontana in his work The Law of Search Warrants in Canada. Of the Canadian cases bearing on the questions involved in the present case, the following are helpful: Shumiatcher v. Attorney-General for Saskatchewan (1960) 129 C.C.C. 270; R. v. Colvin; Ex parte Merrick (1970) 3 O.R. 612; Re United Distilleries Limited (1946) 88 C.C.C.338; Re Bell Telephone Company of Canada (1947) 89 C.C.C. 196; and R. v. Mowat; Ex parte Toronto Dominion Bank (1968) 2 C.C. 374.
The Canadian cases draw a clear distinction between warrants to search the premises of persons implicated in the alleged offences and those not implicated, requiring a higher standard in both the grant of the warrant and its execution where innocent third parties are concerned. It is the execution of the warrant that is directly relevant here because the validity of the warrant has not been challenged.
It is of interest to note that in Canada it has been held that the information before the Justice must show a belief, based on reasonable grounds, that the person whose premises are to be searched is concealing or likely to conceal evidence relating to the alleged offence so that it will not be available to the prosecution: see Re United Distilleries Limited (supra). The underlying philosophy is that the law of Canada provides adequate means of obtaining the production of documents from third parties not implicated in an alleged offence (for example, subpoenas, and discovery against third parties) without the necessity of recourse to the drastic infringement of privacy necessarily involved in police officers searching the house or premises of an innocent third party who is unlikely to conceal, destroy or part with possession of incriminatory documents.
There may be much to be said for the adoption of this philosophy in Australia. But its relevance is primarily as to the issue, rather than the enforcement, of search warrants; hence it is unnecessary for me to decide the question in this case where the issue and validity of the warrant are not challenged.
There are many cases that have come before the Canadian Courts where a higher standard in issuing or enforcing search warrants has been recognised in the case of innocent third parties: for example, involving the search of records of solicitors, accountants, hospitals, insurance agents and pawnbrokers: see, for example, Re Bell Telephone Company of Canada (supra).
Where the premises to be searched are owned or occupied by an innocent third party or where the person is in lawful possession of the goods to be searched for, a higher standard is required, both of satisfaction by the Justice before he issues the warrant and of fairness by the policeman executing it. The Justice should not be easily satisfied. The information before him must clearly show the nature of the things to be searched for and how they will afford evidence of the commission of the offence. The policeman executing the warrant must restrict his search to things pertaining to the offence alone, and must not search and seize at large in the hope of eventually finding something of evidentiary value. But he is entitled to search to ascertain what documents answer the description of those described in the warrant. Sometimes an inspection of an Index or Register will suffice. Sometimes not. What is appropriate varies from case to case. Plainly, he does not have carte blanche to search and seize at will.
The absence of reported decisions of the courts of Australia, New Zealand and the United Kingdom may be explained, as counsel for the respondent contended, because good sense generally prevails. I think the more likely explanation is that claims by policemen executing search warrants to examine every nook and cranny of premises occupied by innocent third parties in the hope of finding the proverbial needle in a haystack mercifully have been few in the past; and hopefully will be few in the future. I do not suggest for one moment that searches bearing the deceptively innocuous title of "negative" searches are not required in appropriate cases. Plainly the circumstances of a particular case may require it; for example the search for a murder weapon in the home of a person suspected of murder or the search for drugs or records relating to the supply of drugs in the premises of a person suspected of drug trafficking. But where the premises of innocent third parties are involved, more stringent restrictions on the search process apply: See Frank Truman Limited v. Metropolitan Police Commissioner (1977) 1 Q.B. 952, esp. at pp. 965-6.
It is to warrants to search the offices of solicitors, in particular, that I now turn.
I have said already that it is a misconception to regard the doctrine of legal professional privilege as operating to prevent the grant or execution of warrants to search the premises of solicitors and the records relating to the affairs of their clients.
Where a solicitor is himself implicated in the alleged offence, either alone or together with his client, plainly he is in no different position to any other citizen and is subject to the issue and execution of a search warrant in the same way.
Where a solicitor is not himself implicated in the alleged offence and the documents to be searched are held by him pursuant to the solicitor-client relationship, the officer executing the warrant does not have carte blanche to open and read the files and papers of clients and of the solicitor himself having no connection with the alleged wrong-doing in the hope of finding something that might be of probative value. There must be some limits to the search.
The question immeditely arises as to how the officer satisfies himself that he has seen all documents that may bear on the alleged offence and that fall within the terms of the warrant unless he looks at them all, that is conducts a "negative" search.
An easy answer to the question is that he may do just that as there is no other practical means of ensuring that he can be satisfied as to the completeness of the search.
I do not accept this answer. It is impossible to lay down criteria which in every case satisfactorily confine the search to proper limits yet ensure a complete search of all relevant documents. This is a practical problem requiring a sensible solution. The extent of a search must vary according to the circumstances of the case, the exigencies of the situation and the terms of the warrant itself.
The permissible ambit of search and seizure today may be very different a decade or more hence. There is today a growing concern in our community at the extent of encroachment upon the inviolability of a person's person, home and other premises by statute, administrative action and the effects of burgeoning modern technology. Whether this will result in legislative definition of restraints on the issue and execution of search warrants remains to be seen.
But there are limits on the powers of issuing and executing search warrants notwithstanding the difficulty of defining those limits in precise and absolute terms. Difficulties of this kind are not unknown to the law. The concept of the reasonable man is firmly embedded in our legal system yet, the courts have not prescribed any fixed criteria to define who he is or what he may do. Indeed, the reasonable man of earlier years might be rather surprised if he could see himself today; but he is as real today as yesterday.
The overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant. Plainly this must vary from case to case. What is permissible on one occasion is impermissible on another. Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched. Limits on the search may be imposed by the justice issuing the warrant; but, in the end, it is for the courts to supervise the exercise of the power, subject to any relevant legislation.
Justice Minton said in Rabinowitz v. United States (1950) 339 U.S. 56 at p. 63:-
"What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches of each case must find resolution in the facts and circumstances."
Take the case of a solicitor who is a sole practitioner with only a few clients, one of whom is his principal client and accounts for most of his work. The warrant to search the documents relating to the affairs of that client may properly involve the police officer in searching all the files of that client to find only a few documents relevant to an offence. The search may involve, in another case, the policeman reading all the files in the solicitor's office - for instance if the solicitor's office system is so haphazard and disorganised that no reliance can be placed on it. Again, the solicitor may tell the officer that he will not find the documents he is looking for as he has misplaced them in the files of other clients. A negative search may then be justified.
But the occupier of the premises to be searched may be a firm of solicitors established for many years and having old and current files of many thousands of clients. The solicitors may not themselves be implicated in the alleged wrong-doing; and there may be only a small number of documents relating to the affairs of one or two clients that could fall within the ambit of the warrant. Other clients may include for example, Church Property Trusts, School Councils, Charitable Bodies, clients engaged in litigation against the Commonwealth of Australia or clients who may be charged with criminal offences by the Commonwealth completely unconnected with the alleged wrong-doing. The files may be voluminous and kept in many rooms. The office of the solicitors should not be turned upside down with all the attendant inconvenience and embarrassment, waste of time and of public funds, in circumstances when it is obvious that the files relating to those clients could have nothing to do with the object of the search. I do not accept that the authority under a search warrant in such a case authorises a "negative" search. The potential for abuse if "negative" searches are generally permissible is obvious and needs no spelling out.
The warrant in the present case states the general nature of the alleged offence (albeit inaccurately) and the companies and natural persons said to be parties to the relevant transactions. The respondent may look at documents kept by the appellants to control their office administration or procedures for example an index to or register of clients' files. He may examine the files in respect of the clients named in the warrant which relate to the alleged offences. If he finds what he is looking for he is authorised to seize the relevant documents, assuming they are encompassed by the terms of the warrant. The respondent cannot continue with the search in the hope that somewhere in the files of other clients or in the personal records of the appellants themselves or those of their staff he may find something of evidentiary value. That is not a legitimate exercise of the power of search.
Solicitors are not a class set apart from others. But by the very nature of their calling, they have in their possession confidential documents which fall within the scope of their contractual duty of confidence to clients and are subject to legal professional privilege, strictly so called, in relation to judicial or quasi-judicial proceedings. As I have said earlier, this does not place those documents out of the reach warrant; but, because a solicitor carries on the profession he does, great care must be exercised by Justices in issuing warrants and policemen in executing them to ensure that the files of solicitors and their contents are not subjected to scrutiny without the authority of their clients unless it is necessary in a particular case for this to be done for the purpose of giving full effect to the authority under the warrant.
In the present case, where it is common ground that the appellants are not themselves implicated in the alleged contraventions of s.67 of the Companies Ordinance 1962, a "negative" search of the files and other documents held by the appellants in their offices relating to the affairs of clients not mentioned in the warrant, which plainly have nothing to do with the alleged contravention, is not permissible.
Of course, it is theoretically possible that the files of clients who are not those named in the warrant may contain documents falling within the ambit of the warrant. For example, they may have been mistakenly placed there by the appellants' staff. But that is not to say that a negative search of all the files of clients is justified. I must take into account the fact that the appellants have office systems which are not said to be inefficient. The prospect of any relevant document being in the files of clients who have nothing to do with the alleged contravention of s. 67 must be remote.
One must approach this case in a practical way, balancing the necessity that evidence be obtained tending to assist the Crown in its pursuit of offenders against the requirement that the inviolability of a citizen's home and premises is not to be lightly interfered with.
For the reasons advanced by Northrop J. the facts of this case do not call for intervention by the Court; but to my mind it is plain that a "negative" search would go beyond the legitimate requirements of the occasion.
Finally, I turn to the submission on behalf of the respondent that to deny the right to make a "negative" search is to ignore the authority conferred by the language of the warrant itself and of s. 10 of the Crimes Act; and that generally it is only where the validity of the search warrant itself is impugned that the right to make a "negative" search can be attacked; this not being such a case.
The width of the powers of entry, search and seizure conferred by a search warrant and restrictions on their exercise may be defined or imposed by the person issuing the warrant at the time he authorises its issue; but it does not follow that there is no other source of limitation of those powers or their exercise.
The wide class of persons having authority to issue search warrants - some of them without any judicial qualification; the large number of statutes - Commonwealth and State - authorising the issue of search warrants; the variety of circumstances in which they may be issued; the urgency of many of the applications for issue of search warrants and, of necessity, the expedition required for determining the applications - all serve to illustrate how unreal it would be if the law did not impose fetters, moulded to suit the particular case, on the exercise of the powers conferred by the search warrant itself.
The vocation and antecedents of the person in occupation of the premises to be searched - whether an accountant, a solicitor, a drug trafficker or a seasoned criminal; the nature of the activities carried on in the premises - whether a doctor's surgery, or a gaming house; the number of persons present in the premises at the time of the search and their attitude to the search - hostility or equanimity; the system, if any, employed by the occupants in the filing and custody of documents - these are but some of the matters which bear on the manner, method and extent of the search to be conducted. They are so variable that it would be a Herculean task for the person granting a search warrant to provide for all relevant contingencies in the warrant itself. It is therefore not surprising that search warrants are frequently framed in rather general and wide terms. But that very generality and width calls for particular care on the part of the policeman executing the warrant to ensure that the liberty of the subject and the invoilability of his premises are interfered with only so far as is necessary to give effect to the warrant. It calls also for vigilance from the courts to firmly restrain abuses of the exercise of the powers of entry, search and seizure. The courts must balance the necessity, in appropriate cases, for entry into a person's premises against the freedom he enjoys there.
Thus, I do not accept that the language of the search warrant in the present case and of s. 10 of the Crimes Act ousts the jurisdiction of the courts to control the exercise of the powers conferred by the warrant.
Finally, it is to be hoped that good sense and fair play will prevail among the parties and bring this unhappy dispute to an end.
I would dismiss the appeal and make no order as to the costs of this appeal.
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